Landmark Judgments On Family Matters

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COMPILATION OF
LANDMARK JUDGMENTS
OF
SUPREME COURT OF INDIA

AND LATEST JUDGMENTS OF
HIGH COURT OF JHARKHAND
ON
FAMILY MATTERS
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Judicial Academy Jharkhand
COMPILATION OF
LANDMARK JUDGMENTS
OF
AND LATEST JUDGMENTS OF
ON
FAMILY MATTERS
Year of Publication : 2019
Compiled by :
Judicial Academy Jharkhand
Phone : 0651-2772001, 2772103, Fax : 0651-2772008
INDEX
MARRIAGE AND DIVORCE

1. MOHAMMED SALIM (DEAD) THROUGH LEGAL REPRESENTATIVES
AND OTHERS VERSUS SHAMSUDEEN (DEAD) THROUGH LEGAL
REPRESENTATIVES AND OTHERS...............................................................................................3
Bench : Hon’ble Mr. Justice N.V. Ramana anad Hon’ble Mr. Justice Mohan M. Shantanagoudar
Civil Appeal No. 5158 of 2013†
2. JUVERIA ABDUL MAJID PATNI VERSUS ATIFIQBAL MANSOORI AND ANOTHER..........12
Bench : Hon’ble Mr. Justice Sudhansu Jyoti Mukhopadhaya and Hon’ble Mr. Justice S.A. Bobde
Criminal Appeal No. 2069 of 2014†
3. MR. ANURAG MITTAL VERSUS MRS. SHAILY MISHRA MITTAL..........................................29
Bench : Hon’ble Mr. Justice S.A. Bobde and Hon’ble Mr. Justice L. Nageswara Rao
Civil Appeal No.18312 of 2017
4. AMARDEEP SINGH VERSUS HARVEEN KAUR........................................................................39
Bench: Hon’ble Mr. Justice Adarsh Kumar Goel & Hon’ble Mr. Justice Uday Umesh Lalit
CIVIL APPEAL NO. 11158 OF 2017
5. SWAPNANJALI SANDEEP PATIL VERSUS SANDEEP ANANDA PATIL...............................46
Bench: Hon’ble Justice Mr. L. Nageswara Rao And Hon’ble Justice Mr. M. R. Shah
AIR 2019 SC 1500
6. SAMAR KUMAR ROY (DEAD) THROUGH LEGAL
REPRESENTATIVE (MOTHER) VERSUS JHARNA BERA........................................................52
Bench : Hon’ble Mr. Justice Rohinton Fali Nariman and Hon’ble Mr. Justice Sanjay Klshan Kaul
Civil Appeal No. 11200 of 2017
7. JOSEPH SHINE VERSUS UNION OF INDIA..............................................................................61
Bench : Hon’ble Mr. Justice A.M. Khanwilkar, Hon’ble Mr. Justice Dr. D.Y. Chandrachud
and Hon’ble Mrs. Justice Indu Malhotra
WRIT PETITION (CRIMINAL) NO. 194 OF 2017†
8. SUMAN KAPUR VERSUS SUDHIR KAPUR..............................................................................99
Bench : Hon’ble Mr. Justice C.K. Thakker & Hon’ble Mr. Justice D.K. Jain
(2009) 1 SCC 422
9. NARAYAN GANESH DASTANE VERSUS SUCHETA NARAYAN DASTANE........................114
Bench: Hon’ble Mr. Justice Y.V. Chandrachud, Hon’ble Mr. Justice P.K. Goswami &
Hon’ble Mr. Justice N.L. Untwalia
1975 AIR 1534
10. BIPIN CHANDER JAISINGHBHAI SHAH VERSUS PRABHAWATI .....................................134
(Before Hon’ble Mr. Justice Bhuvneshwar P. Sinha, Hon’ble Mr. Justice B. Jagannadhadas &
Hon’ble Mr. Justice T.L. Venkatarama Aiyyar, JJ.)
1957 AIR 176
ii
11. DR. AMIT KUMAR VERSUS DR. SONILA.................................................................................152
Bench : Hon’ble Mr. Justice Kurian Joseph and Hon’ble Mr. Justice Sanjay Kishan Kaul
12. KOLLAM CHANDRA SEKHAR VERSUS KOLLAM PADMA LATHA.....................................158
Bench : Hon’ble Mr. Justice G.S. Singhvi and Hon’ble Mr. Justice V. Gopala Gowda
13. JOYDEEP MAJUMDAR VERSUS BHARTI JAISWAL MAJUMDAR......................................172
Bench : Hon’ble Mr. Justice Sanjay Kishan Kaul, Hon’ble Mr. Justice Dinesh Maheshwari,
Hon’ble Mr. Justice Hrishikesh Roy
Civil Appeal Nos. 3786-3787 of 2020
MAINTENANCE AND ALIMONY

14. KALYAN DEY CHOWDHURY VERSUS RITA DEY CHOWDHURY NEE NANDY..................179
Bench : Hon’ble Mrs. Justice R. Banumathi and Hon’ble Mr. Justice Mohan M. Shantanagoudar
Civil Appeal No. 5369 of 2017†
15. KYNTIEW AKOR SUCHIANG VERSUS WOSTON HYNNIEWTA AND ANOTHER..............184
Criminal Appeal No. 804 of 2017
16. JAIMINIBEN HIRENBHAI VYAS & ANR VERSUS
HIRENBHAI RAMESHCHANDRA VYAS & ANR......................................................................187
Bench : Hon’ble Mr. Justice J. Chelameswar & Hon’ble Mr. Justice S.A. Bobde
CRIMINAL APPEAL NO. 2435 OF 2014
17. MANJU KUMARI SINGH @ SMT. MANJU ... VERSUS AVINASH KUMAR SINGH............191
Bench : Hon’ble Mr. Justice Abhay Sapre
CIVIL APPEAL NO.6988 OF 2018
18. CHATURBHUJ VERSUS SITA BAI.............................................................................................195
Bench: Hon’ble Dr. Justice Arijit Pasayat & Hon’ble Mr. Justice Aftab Alam
(2008) 2 SCC 316
19. DANIAL LATIFI & ANR VERSUS UNION OF INDIA.................................................................199
Bench: Hon’ble Mr. Justice G.B. Pattanaik, Hon’ble Mr. Justice S. RAjendra Babu,
Hon’ble Mr. Justice D.P. Mohapatra, Hon’ble Mr. Justice Doraiswamy Raju &
Hon’ble Mr. Justice Shivaraj V. Patil
(2001) 7 SCC 740
20. RAMESH CHANDER KAUSHAL VERSUS VEENA KAUSHAL & ORS..................................231
Bench: Hon’ble Mr. Justice V.R. Krishnaiyer & Hon’ble Mr. Justice D.A. Desai
(1978) 4 SCC 70
21. RAJNESH VERSUS NEHA AND ANOTHER.............................................................................220
2020 SCC online SC - 903, Civil Appeal No. 730 of 2020
22. ROSY JACOB VERSUS JACOB A. CHAKRAMAKKAL...........................................................277
Bench : Hon’ble Mr. Justice I.D. Dua, Hon’ble Mr. Justice A. Alagiriswami &
Hon’ble Mr. Justice C.A. Vaidyialingam
1973 AIR 2090
iii
23. ABHILASHA VERSUS PRAKASH AND ORS...........................................................................291
Bench: Hon’ble Mr. Justice Ashok Bhushan,
Hon’ble Mr. Justice R. Subhash Reddy and M.R. Shah.
Criminal Appeal No. 615 of 2020 (Arising out of SLP (Cri.) No. 8260/2018)
24. DR. SWAPAN KUMAR BANERJEE VERSUS
THE STATE OF WEST BENGAL & ANR......................................................................................304
Bench: Hon’ble Mr. Justice Deepak Gupta and Hon’ble Mr. Justice Aniruddha Bose, JJ
Criminal Appeal No(s) 232 - 233 of 2015 Decided on 19/09/2019
ADOPTION
25. RATANLAL ALIAS BABULAL CHUNILAL SAMSUKA VERSUS
SUNDARABAIGOVARDHANDAS SAMSUKA (DEAD) THROUGH LEGAL
REPRESENTATIVES AND OTHERS...........................................................................................309
Bench : Hon’ble Mr. Justice N.V. Ramana and Hon’ble Mr. Justice Amitava Roy
26. KARINA JANE CREED VERSUS UNION OF INDIA & ORS....................................................318
Bench: Hon’ble Ms. Justice Indira Banerjee Hon’ble Mr. Justice Ajay Rastogi
Special Leave to Appeal (C) No(s).13627 of 2019
27. STEPHANIE JOAN BECKER VERSUS STATE AND ORS.......................................................320
Bench : Hon’ble Mr. Justice P. Sathasivam, Hon’ble Mr. Justice Ranjan Gogoi &
Hon’ble Mr. Justice V. Gopala Gowda
CIVIL APPEAL No. 1053 of 2013
28. SHABNAM HASHMI VERSUS UNION OF INDIA & ORS.......................................................328
Hon’ble Mr. Justice Shiva Kirti Singh
WRIT PETITION (CIVIL) NO. 470 OF 2005
CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING

29. TEJASWINI GAUD VERSUS SHEKHAR JAGDISH PRASAD TEWARI.................................335
Bench : Hon’ble Mrs. Justice R. Banumathi and Hon’ble Mr. Justice R. Subhash Reddy
30. PERRY KANSAGRA VERSUS SMRITI MADAN KANSAGRA................................................348
Bench: Hon’ble Justice Mr. Abhay Manohar Sapre and Hon’ble Justice Mr. Uday Umesh Lalit
31. SURYA VADANAN VERSUS STATE OF TAMIL NADU & ORS...............................................367
Bench : Hon’ble Mr. Justice Madan B. Lokur & Hon’ble Mr. Justice Uday Umesh Lalit
32. NITHYA ANAND RAGHAVAN VERSUS STATE (NCT OF DELHI) AND ANOTHER............387
Bench : Hon’ble Mr. Justice Dipak Misra, Hon’ble Mr. Justice A.M. Khanwilkar and
Hon’ble Mr. Justice Mohan M. Shantanagoudar
iv
33. SHEILA B. DAS VERSUS P.R. SUGASREE................................................................................418
Bench : Hon’ble Mr. Justice B.P. Singh & Hon’ble Mr. Justice Altamas Kabir
Appeal (Civil) 6626 of 2004
DUTY OF FAMILY COURTS

34. SMRUTI PAHARIYA VERSUS SANJAY PAHARIYA.................................................................429
Bench: Hon’ble Mr. Justice K.G. Balakrishnan, CJI, Hon’ble Mr. Justice P. Sathasivam &
Hon’ble Mr. Justice Asok Kumar Ganguly
35. SANTHINI VERSUS VIJAYA VENKETESH................................................................................439
Bench : Hon’ble CJI, Hon’ble Mr. Justice Dipak Misra & Hon’ble Mr. Justice A.M. Khanwilkar
TRANSFER PETITION (CIVIL) NO. 1278 of 2016
LATEST JUDGMENTS OF HIGH COURT OF JHARKHAND

36. BAGA TIRKEY VERSUS PINKI LINDA.......................................................................................469
Bench : Hon’ble Mr. Justice Aparesh Kumar Singh and
Hon’ble Mrs. Justice Anubha Rawat Choudhary, JJ
2021 Supreme (Jhk) 125 Decided on 08/04/2021
37. JETHU SAW VERSUS BHAWANI DEVI.....................................................................................479
Hon’ble Mr. Justice Kailash Prasad Deo, JJ
First Appeal no. 196 of 2017, Decided on 03/03/2020
38. SUNIL YADAV VERSUS THE STATE OF JHARKHAND AND ORS.......................................483
Bench : Hon’ble Mr. Justice S. Chandrashekhar, J
Cr. Rev. No. 1603 of 2016, Decided on 25/08/2020
39. SUSHAN MANDAL VERSUS THE STATE OF JHARKHAND AND ORS..............................487
Bench : Hon’ble Mr. Justice S. Chandrashekhar, J
Cr. Rev. No. 1554 of 2016, Decided on 25/08/2020
40. JITENDRA KUMAR VERSUS ANKITA SHARMA@ THAKUR...............................................490
Hon’ble Mrs. Justice Anubha Rawat Choudhary, JJ
First Appeal No. 216 of 2017, Decided on 06/04/2021
41. MUKUL PRASAD VERSUS SANGITA KUMARI.......................................................................496
Hon’ble Mr. Justice Kailash Prasad Deo, JJ
42. LEENA SINHA VERSUS DR SIDDHARTH SINHA ..................................................................506
Hon’ble Mr. Justice Ratnaker Bhengra, JJ
Appeal from Original Decree no. 107 of 2017, Decided on 02/08/2018
v
43. TINKU PRASAD SAHA VERSUS SUMAN SAH ......................................................................514
Hon’ble Mr. Justice Deepak Roshan
44. MS. SHEOLIHATI VERSUS SOMNATH DAS ...........................................................................540
Hon’ble Mr. Justice RatnakerBhengra
45. DR. PANKAJ KUMAR VERSUS PRERNA ................................................................................552
Hon’ble Mrs. Justice Anubha Rawat Choudhary
THE FAMILY COURTS (JHARKHAND HIGH COURT) RULES, 2004

46. THE FAMILY COURTS (JHARKHAND HIGH COURT) RULES, 2004.....................................567
vi
LANDMARK JUDGMENTS
ON
MARRAIGE AND DIVORCE
LANDMARK JUDGMENTS ON SUPREME COURT OF INDIA ON FAMILY MATTERS
MOHAMMED SALIM (DEAD) THROUGH LEGAL REPRESENTATIVES

AND OTHERS VERSUS SHAMSUDEEN (DEAD) THROUGH LEGAL
REPRESENTATIVES AND OTHERS
Supreme Court of India
Bench : Hon’ble Mr. Justice N.V. Ramana anad Hon’ble Mr. Justice Mohan M. Shantanagoudar
CIVIL APPEAL NO. 5158 OF 2013†
Mohammed Salim (Dead) Through Legal Representatives And Others .. Appellants;
Versus
Shamsudeen (Dead) Through Legal Representatives And Others .. Respondents.
Decided on January 22,2019
A. Family and Personal Laws — Muslim Law — Irregular (fasid) marriage — Marriage between
Muslim male and Hindu woman — Held, irregular (fasid) and not void (batil)—Word “fasid”
synonymously regarded as invalid or irregular — Children born from such wedlock treated
as legitimate and entitled to share in father’s property — Words and Phrases — “Fasid” and
“batil”
B. Family and Personal Laws — Muslim Law — Intestate/Customary Succession/Inheritance —
Property belonging to mother, gifted by her to one of her two sons — After donee’s death, prop-
erty would devolve absolutely upon his LRs — Other property belonging to mother, after her
death, would devolve on her LRs i.e. two sons in equal share
C. Evidence Act, 1872 — Ss. 35 and 114 111. (e) — Parentage — Proof — Birth register extract
— Register maintained by statutory authorities — Mentioning names, of plaintiff ’s parents —
Held, being public document, is a fact relevant for determining parentage of plaintiff
One Z, a Muslim woman, owned Schedule A and Schedule B properties. She had two sons IL and ID
(Defendant 1). The plaintiff-Respondent 1 is the son of IL and Defendants 2 to 7 are children of ZD,
Z had gifted Schedule A property to IL by executing a gift deed. From the wedlock of the first wife
of IL no issue was born. Thereafter, IL married V, a Hindu woman in 1946 and they lived together as
husband and wife. V was later renamed as Souda. From the said wedlock, the plaintiff was born. Z died
in 1955 and IL died in 1947. Thereafter, V (Souda) married to another person.
The plaintiff filed a suit for partition and possession of 14/16th share in Schedule A property, being the
only son of IL and half the rights over Schedule B property through inheritance after demise of Z. It
is the case of the defendants that V was not the legally wedded wife of IL and that she was a Hindu by
religion at the time of marriage. She had not converted to Islam at the time of her marriage, and thus
the plaintiff being the son of V, is not entitled to any share in the property of IL. It is their further case
that IL had died two years prior to the birth of the plaintiff. The trial court decreed the suit and the first
appellate court allowed the appeal and dismissed the suit by setting aside the judgment and decree of
the trial court. However, the High Court by the impugned judgment set aside the judgment passed by
the first appellate court and confirmed the judgment and decree passed by the trial court. Hence, the
—| 3 |—
LANDMARK JUDGMENTS ON MARRAIGE AND DIVORCE
instant appeal was filed by the original defendants and the legal representatives of those among them
who have since died.
Dismissing the appeal, the Supreme Court
Held:
Under Muslim law, there are three types of marriage—valid (sahih), or irregular (fasid) or void from
the beginning (batil). A void marriage is one which is unlawful in itself, the prohibition against such
a marriage being perpetual and absolute. As regards the Arabic word “fasid”, it was contended that its
correct translation is “invalid” and not “irregular” and therefore, a fasid marriage is a void marriage.
This contention has to be considered in the light of changes over time. While in Mulla’s Principles of
Mahomedan Law, 6th Edn. Section 200, p. 162 it was stated that a marriage of a Mahomedan male
with an idolatress or fire- worshipper is not void (batil) but merely “invalid” (fasid), in Mulla’s 10th
Edn. onwards, fasid marriage has been described as an irregular marriage, instead of invalid, but
there has been no change with regard to the effect of a fasid marriage from the 6th Edn. onwards. As
stated in Mulla (21st Edn., Section 264, p. 349), an irregular marriage is one which is not unlawful in
itself, but unlawful for something else as where prohibition is temporary being that where a marriage
is prohibited by reason of difference of religion, the objection may be removed by the wife becoming
a convert to the Mussalman religion. Evidently, Muslim law clearly distinguishes between a valid
marriage (sahih), void marriage (batil), and invalid/irregular marriage (fasid). Thus, it cannot be stated
that a batil (void) marriage and a fasid (invalid/irregular) marriage are one and the same. The effect
of a batil (void) marriage is that it is void ab initio and does not create any civil right or obligations
between the parties. So also, the offspring of a void marriage are illegitimate. But children conceived
and born during the subsistence of a fasid marriage are legitimate, as in the case of a valid marriage.
A marriage between a Hindu woman and Muslim man is merely irregular and the issue from such
wedlock is legitimate. (Paras 16, 17, 20, 23, 21 and 30)
Chand Patel v. Bismillah Begum, (2008) 4 SCC 774 : (2008) 2 SCC (Cri) 490, relied on
Aisha Bi v. Saraswathi Fathima, 2012 SCC OnLine Mad 1275 : (2012) 3 LW 937; Ihsan Hassan Khan v.
Panna Lai, 1927 SCC OnLine Pat 139 : AIR 1928 Pat 19, approved
The marriage of a Muslim man with an idolater or fire-worshipper is neither a valid (sahih) nor a
void (batil) marriage, but is merely an irregular (fasid) marriage. Since Hindus are idol worshippers,
which includes worship of physical images/statues through offering of flowers, adornment, etc., the
marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely
an irregular (fasid) marriage. Any child born from such wedlock (fasid marriage) is legitimate as in
the case of a valid marriage and is entitled to claim a share in his father’s property. (Para 31)
Shamsudeen M. Illias v. Mohd. Salim M. Idris, 2007 SCC OnLine Ker 93 : AIR 2008 Ker 59, affirmed
Mulla’s Principles of Mahomedan Law, 6th Edn. Section 200, p. 162, Section 204, p. 164; 8th Edn.; 10th
Edn.; 21st Edn.; Syed Ameer All’s Mohamedan Law; Tahrir Mahmood: Muslim
Law in India and Abroad, (2nd Edn.) at p. 151; A. A. A. Fyzee: Outlines of Muhammadan Law (5th
Edn.), at p. 76, relied on
In view of the gift deed in favour of IL, upon his death, Schedule ‘A’ property would have devolved
upon his legal heirs as an absolute property as provided under Muslim law. Plaint Schedule ‘B’ property
—| 4 |—
admittedly belonged to Z and upon her death, it devolved on her legal heirs. Since Z had two sons,
both the sons/their respective legal heirs would have inherited half a share each after the death of Z.
(Para 8)
The birth register extract of the plaintiff maintained by the statutory authorities indicates that the
plaintiff is the son of IL and V. The entry made in such register, which is a public document, is itself
a relevant to resolve the dispute at hand. Additionally a specific pleading was found in the plaint that
IL and V were living together as husband and wife. Defendant 8, the first wife of IL had also clearly
admitted in her written statement that IL had married V and from the wedlock the plaintiff was born.
Further, having regard to the date of birth of the plaintiff as per the birth register extract and the
date of death of IL, as seen from the Government Almanac, which cannot be disputed inasmuch as
it is a public record maintained by the Trivandrum Public Library (Government of Kerala), it can be
concluded that the plaintiff was born two months prior to the death of IL. (Paras 9 and 10)
In this view of the matter, the trial court and the High Court were justified in concluding that the
plaintiff is the legitimate son of IL and V, and is entitled to his share in the property as per law. The
High Court was also justified in modifying the decree passed by the trial court and awarding the
appropriate share in favour of the plaintiff. No issue has been raised before us relating to the quantum
of share. Accordingly, the appeal fails and stands dismissed. (Para 32)
The Judgment of the Court was delivered by
Hon’ble Mr. Justice Mohan M. Shantanagoudar.— The judgment dated 5-9-2007 passed in
Shamsudeen M. Illias v. Mohd. Salim M. Idris1 by the High Court of Kerala at Ernakulam is the subject-
matter of this appeal. By the impugned judgment1, the High Court set aside the judgment of the
District Court, Thiruvananthapuram dated 12-7-1994 passed in AS No. 264 of 1989 and restored the
judgment and decree passed in OS No. 144 of 1984 by the Additional Sub-Court, Thiruvananthapuram
dated 17-7-1989.
2. The facts leading to this appeal are that a suit for partition and possession of 14/16th share in
the plaint Schedule ‘A’ property and half the rights over plaint Schedule ‘B’ property was filed
by Respondent 1 herein (original plaintiff). Defendant 1 in the suit, Mohammed Idris, is the
brother of Mohammed Ilias, the father of the plaintiff, and Defendants 2 to 7 are the children of
Mohammed Idris. Both, the plaintiffs father and Defendant 1 are the sons of Zainam Beevi, who
expired in 1955. Both plaint properties belonged to her. Plaint Schedule ‘A’ property was gifted
to Mohammed Ilias, based on a gift deed executed by Zainam Beevi.
3. The case of the plaintiff is that Defendant 8, namely, Saidat, was the first wife of Mohammed Ilias,
and no issue was born from the said wedlock. Thereafter, Mohammed Ilias married Valliamma
in 1120 ME (as per the Malayalam calendar, which corresponds to 1945 AD in the Gregorian
system). Valliamma was a Hindu at the time of her marriage with Mohammed Ilias. Both
Mohammed Ilias and Valliamma lived together as husband and wife at Thiruvananthapuram.
Later, Valliamma was renamed Souda Beebi. From the said wedlock, Shamsudeen (the plaintiff)
was born. Subsequent to the death of Mohammed Ilias in 1947 AD, Valliamma (Souda Beebi)
married Aliyarkunju.
4. The plaintiff claimed that he was the only son of Mohammed Ilias and on his death, he became
entitled to 14/16th of the share in Schedule ‘A’ property. He also claimed half the share in
1 2007 SCC Online Ker 93 : AIR 2008 Ker 59
—| 5 |—
Schedule ‘B’ property through inheritance after the demise of Zainam Beevi, as the same would
have devolved upon the plaintiff, being the son of the predeceased son of Zainam Beevi, and
Mohammed Idris, Defendant 1, being the only surviving son of Zainam Beevi. Hence, the suit
was filed.
5. It is the case of the defendants that Valliamma was not the legally wedded wife of Mohammed
Ilias and that she was a Hindu by religion at the time of marriage. She had not converted to Islam
at the time of her marriage, and thus the plaintiff being the son of Valliamma, is not entitled to
any share in the property of Mohammed Ilias. It is their further case that Mohammed Ilias had
died two years prior to the birth of the plaintiff.
6. As mentioned supra, the trial court decreed the suit and the first appellate court allowed the
appeal and dismissed the suit by setting aside the judgment and decree of the trial court.
However, the High Court by the impugned judgment1 set aside the judgment passed by the first
appellate court and confirmed the judgment and decree passed by the trial court. Hence, the
instant appeal was filed by the original defendants and the legal representatives of those among
them who have since died.
7. Mr Guru Krishna Kumar, learned Senior Counsel, taking us through the material on record,
submitted that the trial court and the High Court were not justified in decreeing the suit,
inasmuch as the plaintiff himself had admitted that he was born in the year 1949, whereas his
alleged father Mohammed Ilias expired in the year 1947. Therefore, the plaintiff could not be
treated as the son of Mohammed Ilias. He further submitted that since Valliamma was a Hindu
by religion, she would not have any right over the property of Mohammed Ilias, and consequently
the plaintiff would not get any share in the property of Mohammed Ilias.
8. It is not in dispute that Zainam Beevi gifted plaint Schedule ‘A’ property to her son Mohammed
Ilias. In view of the gift deed in favour of Mohammed Ilias, upon his death, Schedule ‘A’ property
would have devolved upon his legal heirs as an absolute property as provided under Muslim
law. Plaint Schedule ‘B’ property admittedly belonged to Zainam Beevi and upon her death, it
devolved on her legal heirs. Since Zainam Beevi had two sons, both the sons/ their respective
legal heirs would have inherited half a share each after the death of Zainam Beevi.
9. It is also not in dispute that Defendant 8, Saidat is the widow (first wife) of Mohammed Ilias.
She has clearly admitted in her written statement that Mohammed Ilias married Valliamma,
Defendant 9, and from the said wedlock, the plaintiff was born. Ext. A-3 is the birth register
extract of the plaintiff maintained by the statutory authorities, which indicates that the plaintiff
is the son of Mohammed Ilias .and Valliamma. It is a public document. An entry in any public
or other official book, register or record, stating a fact in issue or relevant fact, and made by a
public servant in the discharge of his official duty, or by any other person in performance of a
duty specially enjoined by the law in accordance with which such book, register or record is
kept, is itself a relevant fact, as per Section 35 of the Evidence Act, 1872. Ext. A-3 being a public
document is relevant to resolve the dispute at hand. Additionally, a specific pleading was found
in the plaint that Mohammed Ilias and Valliamma were living together as husband and wife in
House No. T.C. 13 of Poojappura Ward in Thiruvananthapuram, which has not been denied in
the written statement of the defendants.
—| 6 |—
10. As per Ext. A-3 mentioned above, the plaintiff was born on 1-7-1124 ME (12-2-1949 as per the
Gregorian Calendar) and the same has not been seriously disputed. Admittedly, Mohammed
Ilias died on 10-9-1124 ME The said date corresponds to 22-4-1949 in the Gregorian Calendar,
as seen from the Government Almanac, which cannot be disputed inasmuch as it is a public
record maintained by the Trivandrum Public Library (Government of Kerala). Thus, it can be
concluded that the plaintiff was born two months prior to the death of Mohammed Ilias.
11. Under these circumstances, in our considered opinion, the trial court and the High Court were
justified in concluding, based on the preponderance of probabilities, that Valliamma was the
legally wedded wife of Mohammed Ilias, and the plaintiff was the child born from the said
wedlock.
12. The High Court, in our considered opinion, was also justified in concluding that though the
plaintiff was born from a fasid (irregular) marriage, he cannot be termed as an illegitimate son of
Mohammed Ilias. On the contrary, he is the legitimate son of Mohammed Ilias, and consequently
is entitled to inherit the shares claimed in the estate of his father. The High Court relied upon
various texts, including Mulla’s Principles of Mahommedan Law (for brevity “Mulla”) and Syed
Ameer AW s Principles of Mahommedan Law, to conclude that Muslim law does not treat the
marriage of a Muslim with a Hindu woman as void, and confers legitimacy upon children born
from such wedlock.
13. In the 21st Edn. of Mulla, at p. 338, Section 250, “marriage” is defined as follows:
“Marriage (nikah) is defined to be a contract which has for its object the procreation and the
legalising of children.”
14. Thus, it appears that a marriage according to Muslim law is not a sacrament but a civil contract.
Essentials of a marriage are dealt with in Section 252 at p. 340 of Mulla (21st Edn.) as follows:
“It is essential to the validity of a marriage that there should be a proposal made by or on
behalf of one of the parties to the marriage, and an acceptance of the proposal by or on
behalf of the other, in the presence and hearing of two male or one male and two female
witnesses, who must be sane and adult Mohamedans. The proposal and acceptance must
both be expressed at one meeting; a proposal made at one meeting and an acceptance made
at another meeting do not constitute a valid marriage. Neither writing nor any religious
ceremony is essential.”
15. Section 259(1) at p. 345 of the 21st Edn. deals with difference of religion, providing that marriage
of a Muslim man with a non-Muslim woman who is an idolatress or fire worshipper is not void,
but merely irregular. It reads:
“A Mahomedan male may contract a valid marriage not only with a Mahomedan woman,
but also with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire-
worshipper. A marriage, however, with an idolatress or a fire-worshipper, is not void, but
merely irregular.”
16. Before proceeding further, it is crucial to note that under Muslim law, there are three types of
marriage—valid, irregular and void, which are dealt with in Section 253 at p. 342 of Mulla (21st
Edn.):
—| 7 |—
“A marriage may be valid (sahih), or irregular (fasid) or void from the beginning (batil).”
The High Court, while dealing with the contention that the correct translation of the Arabic word
“fasid” was “invalid”, and not “irregular”, and that therefore a fasid marriage was a void marriage,
considered the changes over time in the interpretation of “fasid”. It would be worthwhile for us
to refer to these changes as well. In the 6th Edn. of Mulla, at Sections 197,199 and 200, fasid
marriage is interpreted as “invalid”. So also in Sections 197, 199 and 204-A of the 8th Edn. of
Mulla, fasid is stated to mean “invalid”. For instance, in the 6th Edn. of Mulla, Section 200 at p.
162, dealing with the difference of religion, reads:
“(1) A Mahomedan male may contract a valid marriage not only with a Mahomedan
woman but with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a
fire-worshipper. If he does marry an idolatress or a fire-worshipper the marriage is not void
(batil), but merely invalid (fasid).” (emphasis supplied)
17. Section 204-A at p. 164 of the same edition deals with the distinction between void (batil) and
invalid (fasid) marriage. It provides that a marriage which is not valid may either be void (batil)
or invalid (fasid). A void marriage is one which is unlawful in itself, the prohibition against such
a marriage being perpetual and absolute. An invalid marriage (fasid marriage) is described as
one which is not unlawful in itself, but unlawful “for something else”, as here the prohibition is
temporary or relative, or when the invalidity arises from an accidental circumstance such as the
absence of a witness. Section 204-A(3) at p. 165 of the 6th Edn. of Mulla reads:
“... Thus, the following marriages are invalid, namely—
(a) a marriage contracted without witnesses (Sections 196-197);
(b) a marriage by a person having four wives with a fifth wife (Section 198); •
(c) a marriage with a woman who is the wife of another (Section 198-A);
(d) a marriage with a woman undergoing iddat (Section 199);
(e) a marriage prohibited by reason of difference of religion (Section 200);
(f) a marriage with a woman so related to the wife that if one of them had been a male,
they could not have lawfully intermarried (Section 204)....” (emphasis supplied)
18. The reason why the aforesaid marriages are invalid and not void has also been provided later in
the same paragraph. With respect to marriages prohibited by reason of difference of religion, it
is stated thus:
“... in clause (e), the objection may be removed by the wife becoming a convert to the
Mussulman, Christian or Jewish religion, or the husband adopting the Moslem faith....”
19. In the 10th Edn., a change has been made to the meaning of fasid marriage. In Section 196-A,
valid, irregular and void marriages are dealt with. It reads:
“A marriage may be valid (sahih) or irregular (fasid), or void from the beginning (batil).”
(emphasis supplied)
20. From the 10th Edn. onwards, fasid marriage has been described as an irregular marriage, instead
of invalid, but there has been no change with regard to the effect of a fasid marriage from the 6th
—| 8 |—
Edn. onwards. The effects of an invalid (fasid) marriage have been dealt with in the 6th Edn. of
Mulla at Section 206 at p. 166, clauses (1) and (2) of which read:
“(1) An invalid marriage has no legal effect before consummation.
(2) If consummation has taken place, the wife is entitled to dower [“proper” (Section
220) or specified (Section 218), whichever is less], and children conceived and born
during the subsistence of the marriage are legitimate as in the case of a valid marriage.
But an invalid marriage does not, even after consummation, create mutual rights of
inheritance between the parties.”
21. In the 8th Edn. of Mulla, the effects of a fasid marriage have been dealt with in Section 206 at
p. 173. As in the 6th Edn., it is stated that children conceived and born during the subsistence
of a fasid marriage are legitimate, as in the case of a valid marriage. As noted supra, the same
position has been followed in the subsequent editions also, except that fasid has been described
as “irregular” from the 10th Edn. onwards rather than as “invalid”.
22. Irrespective of the word used, the legal effect of a fasid marriage is that in case of consummation,
though the wife is entitled to get dower, she is not entitled to inherit the properties of the husband.
But the child born in that marriage is legitimate just like in the case of a valid marriage, and is
entitled to inherit the property of the father.
23. Evidently, Muslim law clearly distinguishes between a valid marriage (sahih), void marriage
(batil), and invalid/irregular marriage (fasid). Thus, it cannot be stated that a batil (void) marriage
and a fasid (invalid/irregular) marriage are one and the same. The effect of a batil (void) marriage
is that it is void ab initio and does not create any civil right or obligations between the parties. So
also, the offspring of a void marriage are illegitimate (Section 205-A of the 6th and 8th Edns. and
Sections 205-A of the 10th Edn., and 266 of the 18th Edn. of Mulla). Therefore, the High Court
correctly concluded that the marriage of Defendant 9 with Mohammed Ilias cannot be held to
be a batil marriage but only a fasid marriage.
24. We find that the same position has been reiterated in the 21st Edn. of Mulla as follows. The
distinction between void and irregular marriages has been dealt with in Section 264 at p. 349:
“(1) A marriage which is not valid may be either void or irregular.
(2) A void marriage is one which is unlawful in itself, the prohibition against the marriage
being perpetual and absolute. Thus, a marriage with a woman prohibited by reason of
consanguinity (Section 260), affinity (Section 261), or fosterage (Section 262), is void,
the prohibition against marriage with such a woman being perpetual and absolute.
(3) An irregular marriage is one which is not unlawful in itself, but unlawful ‘for something
else’, as where the prohibition is temporary or relative, or when the irregularity arises
from an accidental circumstance, such as the absence of witnesses. Thus, the following
marriages are irregular, namely:
(a) a marriage contracted without witnesses (Section 254);
(b) a marriage with a fifth wife by a person having four wives (Section 255);
(c) a marriage with a woman undergoing iddat (Section 257);
—| 9 |—
(d) a marriage prohibited by reason of difference of religion (Section 259);

(e) a marriage with a woman so related to the wife that if one of them had
been a male, they could not have lawfully intermarried (Section 263).
The reasonwhy the aforesaid marriages are irregular, and not void, is that in clause (a)
the irregularity arises from an accidental circumstance; in clause (b) the objection may
be removed by the man divorcing one of his four wives; in clause (c) the impediment
ceases on the expiration of the period of iddat; in clause (d) the objection may be
removed by the wife becoming a convert to the Mussalman, Christian or Jewish
religion, or the husband adopting the Moslem faith; and in clause (e) the objection
may be removed by the man divorcing the wife who constitutes the obstacle; thus, if a
man who has already married one sister marries another, he may divorce the first, and
make the second lawful to himself.” (emphasis supplied)
25. The effect of an irregular (fasid) marriage has been dealt with in Section 267 at pp. 350-51 of the
21st Edn. of Mulla as follows:
“267. Effect of an irregular (fasid) marriage.—(1) An irregular marriage may be terminated
by either party, either before or after consummation, by words showing an intention to
separate, as where either party says to the other “I have relinquished you”. An irregular
marriage has no legal effect before consummation.
(2) If consummation has taken place—
(i) the wife is entitled to dower, proper or specified, whichever is less (Sections
286, 289);
(ii) she is bound to observe the iddat, but the duration of the iddat both on
divorce and death is three course [see Section 257(2)];
(iii) the issue of the marriage is legitimate. But an irregular marriage, though
consummated, does not create mutual rights of inheritance between
husband and wife....” (emphasis supplied)
26. The Supreme Court, in Chand Patel v. Bismillah Begum2, while considering the question of the
validity of a marriage of a Muslim man with the sister of his existing wife, referred to the above
passages from Mulla (from an earlier edition, as reproduced in the 21st Edn.) while discussing
the difference between void and irregular marriages and the effects of an irregular marriage.
27. In Syed Ameer All’s Mohamedan Law also, the same principle has been enunciated. The learned
author, while dealing with the issue of the legitimacy of the children, observed at p. 203 of Vol.
II, 5th Edn.:
“The subject of invalid marriages, unions that are merely invalid (fasid) but not void (batil)
ab initio under the Sunni law, will be dealt with later in detail, but it may be stated here that
the issue of invalid marriage is without question legitimate according to all the sects.
For example, if a man were to marry a nonscriptural woman, the marriage would be only invalid,
for she might at any time adopt Islam or any other revealed faith, and thus remove the cause of
invalidity. The children of such marriage, therefore, would be legitimate.”
2 (2008) 4 SCC 774 : (2008) 2 SCC (Cri) 490
—| 10 |—
28. Tahrir Mahmood in his book Muslim Law in India and Abroad, (2nd Edn.) at p. 151 also affirms
that the child of a couple whose marriage is fasid i.e. unlawful but not void, under Muslim
law will be legitimate. Only a child born outside of wedlock or born of a batil marriage is not
legitimate.
29. A.A.A. Fyzee, at p. 76 of his book Outlines of Muhammadan Law (5th Edn.) reiterates by citing
Mulla that the nikah of a Muslim man with an idolater or fire-worshipper is only irregular and
not void. He also refers to Ameer Ali’s proposition that such a marriage would not affect the
legitimacy of the offspring, as the polytheistic woman may at any time adopt Islam, which would
at once remove the bar and validate the marriage.
30. The position that a marriage between a Hindu woman and Muslim man is merely irregular and
the issue from such wedlock is legitimate has also been affirmed by various High Courts. (See
Aisha Bi v. Saraswathi Fathima3, Ihsan Hassan Khan v. Panna Lai4).
31. Thus, based on the above consistent view, we conclude that the marriage of a Muslim man with
an idolater or fire-worshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely
an irregular (fasid) marriage. Any child born from such wedlock (fasid marriage) is entitled to
claim a share in his father’s property. It would not be out of place to emphasise at this juncture
that since Hindus are idol worshippers, which includes worship of physical images/ statues
through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female
with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid)
marriage.
32. In this view of the matter, the trial court and the High Court were justified in concluding that the
plaintiff is the legitimate son of Mohammed Ilias and Valliamma, and is entitled to his share in
the property as per law. The High Court was also justified in modifying the decree passed by the
trial court and awarding the appropriate share in favour of the plaintiff. No issue has been raised
before us relating to the quantum of share. Accordingly, the appeal fails and stands dismissed.
qqq
3 2012 SCC OnLine Mad 1275 : (2012) 3 LW 937

4 1927 SCC OnLine Pat 139 : AIR 1928 Pat 19
—| 11 |—
JUVERIA ABDUL MAJID PATNI VERSUS

ATIFIQBAL MANSOORI AND ANOTHER
Bench : Hon’ble Mr. Justice Sudhansu Jyoti Mukhopadhaya and Hon’ble Mr. Justice S.A. Bobde
CRIMINAL APPEAL NO. 2069 OF 2014†
Juveria Abdul Majid Patni ...Appellant;
Versus
Atifiqbal Mansoori And Another ...Respondents.
Decided on September 18,2014
A. Family and Personal Laws — Muslim Law — Divorce — Khula —Wife’s proposal for disso-
lution of marriage — When becomes effective —Principles laid down — Mere ex parte fatwa
(advisory opinion) of khula (divorce) obtained from Mufti (juris consult) without clear proof
of acceptance of proposal of dissolution of marriage by the husband, or, without issuance of
qaza (judgment) of khula by Qazi (Judge), held, ineffectual in effecting divorce
— Definite pleading and evidence is required to prove that khula became effective — Ex parte
fatwa of khula obtained by appellant wife from Mufti under Muslim Personal Law — Respondent
husband, instead of accepting ex parte fatwa of khula or seeking qaza from Qazi, filed petition before
Family Court and also sought restitution of conjugal rights — No definite plea taken by respondent
husband or appellant wife that khula under Muslim Personal Law (Shariat) became effective — Held,
in absence of definite pleading, evidence and finding re khula, it cannot be concluded with certainty
that divorce had taken place — Muslim Law — Muslim Personal Law (Shariat) Application Act, 1937,
S. 2
B. Crimes Against Women and Children — Protection of Women from Domestic Violence Act,
2005 — Ss. 12, 2(a), (f) & (s), 3,18 to 23 and 26 —“Aggrieved person” — Who is — Divorced
wife, held, included — Application under S. 12 seeking relief under Ss. 18 to 23 filed by appel-
lant Muslim wife against husband after obtaining divorce — Held, maintainable — If domes-
tic violence had taken place when wife lived together in shared household with her husband
through relationship in nature of marriage, held, application would be maintainable — Act of
domestic violence once committed, subsequent decree of divorce, would not absolve husband
from his liability for offence (though in present case, the alleged divorce not really found to
have taken place) — Criminal Procedure Code, 1973 — S. 125 — Words and Phrases — “Ag-
grieved person”, “domestic relationship” and “shared household”
C. Crimes Against Women and Children — Protection of Women from Domestic Violence Act,
2005 — Ss. 26 and 18 to 22 — Proceedings in which relief under Ss. 18 to 22 of DVA Act can
be claimed — Proceedings other than under DVA Act — Held, any relief available under the
aforesaid provisions may also be sought for in any legal proceeding even before a civil court
and Family Court, apart from the criminal court, affecting the aggrieved person whether such
proceeding was initiated before or after the commencement of the DVA Act — Even before the
criminal court where case under S. 498-A IPC is pending, if the allegation is found genuine, it
—| 12 |—
is always open to the appellant to ask for reliefs under Ss. 18 to 22 of the DVA Act and interim
relief under S. 23 of the DVA Act — Penal Code, 1860 — S. 498-A — Criminal Procedure Code,
1973, S. 125
D. Crimes Against Women and Children — Protection of Women from Domestic Violence Act,
2005 — Ss. 20 and 12 — Nature of relief available under S. 20 — Distinguished from mainte-
nance — Held, monetary relief as stipulated under S. 20 of the DVA Act is different from main-
tenance, which can be in addition to an order of maintenance under S. 125 CrPC or any other
law — Such monetary relief can be granted to meet the expenses incurred and losses suffered
by the aggrieved person and child of the aggrieved person as a result of the domestic violence,
which is not dependent on the question whether the aggrieved person, on the date of filing of
the application under S. 12 of the DVA Act is in a domestic relationship with the respondent —
Criminal Procedure Code, 1973, S. 125
E. Crimes Against Women and Children — Protection of Women from Domestic Violence Act,
2005 — S. 23 — Grant of interim relief under — When warranted — Held, in view of S. 23 of
the DVA Act it is well within the jurisdiction of the Magistrate to grant the interim ex parte
relief as he deems just and proper, if the Magistrate is satisfied that the application prima facie
discloses that the respondent is committing, or has committed an act of domestic violence or
that there is a likelihood that the respondent may commit an act of domestic violence
The appellant got married to the first respondent according to Muslim rites and rituals on 13-5-2005.
According to the appellant, the respondent was in the habit of harassing her. She was subjected to
physical abuse and cruelty during the period of 2006-2007. The appellant lodged an FIR in 2007 under
Sections 498-A and 406 IPC against the first respondent, his mother and his sister. Against the same, a
writ petition was filed by the first respondent which was partly allowed by the High Court quashing the
FIR against the first respondent’s mother and sister with the observation that a prima facie case under
Section 498-A was made out against the first respondent. According to the appellant, she obtained an
ex parte khula (divorce) from Mufti under the Muslim Personal Law on 9-5-2008. The first respondent
challenged the khula (divorce) pronounced by Mufti before the Family Court, and also filed a petition
for restitution of conjugal rights.
On 29-9-2009, the appellant filed a petition under Section 12 of the Protection of Women from Domestic
Violence Act, 2005 against the first respondent for relief under Sections 18 to 23 of the DVA Act
alleging that he is not providing maintenance for herself as well as for the minor child. The Protection
Officer appointed by the Magistrate under the DVA Act filed his report, inter alia, stating that an act of
domestic violence was committed by the first respondent upon the appellant. Subsequently, pursuant
to an application filed by the appellant, the Magistrate directed the first respondent to pay interim
maintenance of Rs 25,000. Without paying the maintenance, the first respondent preferred an appeal
before the Sessions Court challenging the order of the Magistrate. The Sessions Court concluded that
the divorce having been taken place on 9-5-2008 the domestic relationship between the parties did
not remain and therefore, the application under Section 12 was not maintainable and the question of
granting any interim relief did not arise because it could be said that the applicant had no prima facie
case. Accordingly, the Sessions Court allowed the appeal and set aside the interim order passed by
the Magistrate. The High Court by the impugned judgment affirmed the order passed by the Sessions
Court.
—| 13 |—
The following questions arose for consideration by the Supreme Court in the present appeal:
(i) Whether divorce of the appellant and the first respondent had taken place on 9-5-2008? and
(ii) Whether a divorced woman can seek reliefs against her ex-husband under Sections 18 to 23 of
the Domestic Violence Act, 2005? Allowing the appeal, the Supreme Court
Held:
(1) Khula (divorce) is a mode of dissolution of marriage when the wife does not want to continue
with the marital tie. If the wife does not want to continue with marital tie and takes mode of khula
(divorce) for dissolution of marriage, she is required to propose her husband for dissolution of
marriage. This may or may not accompany her offer to give something in return. The wife may
offer to give up her claim to Mahr (dower). The khula (divorce) being a mode of divorce which
proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with
regard to what the wife has offered to give him in return. To settle the matter privately, the wife
need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa or advisory
decision based on the Shariat of his school. However, if the matter is carried to the point of
litigation and cannot be settled privately then the Qazi (Judge) is required to deliver a qaza
(judgment) based upon the Shariat. (Para 13)
Masroor Ahmed v. State (NCI of Delhi), ILR (2007) 2 Del 1329, approved
C. Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808 : (1962) 1 SCR 67, cited
In the present case, the appellant stated that she obtained an ex parte khula (divorce) on 9-5-2008
from Mufti under the Muslim Personal Law. There is no definite plea taken either by the appellant wife
or by the first respondent husband that khula (divorce) became effective in accordance with Muslim
Personal Law (Shariat). Neither the appellant nor the first respondent placed any evidence on record in
support of such divorce. Neither it is pleaded nor is it made clear by the appellant or the first respondent
as to whether for such khula (divorce) the appellant had made a proposal to the first respondent-
husband for dissolution of marriage accompanied by an offer to give something in return. It has not be
made clear whether the appellant gave up her claim to Mahr (dower). The first respondent-husband
has neither accepted khula (divorce) given by Mufti (jui consult) nor has he moved before the Qazi
(Judge) to deliver a qaza (judgmei based upon the Shariat. Instead, he has moved before the Family
Court agair the khula (divorce) by filing petition and also prayed for restitution of conjug rights. In
this background it must be held that the Sessions Judge wrong concluded that the appellant is no more
wife of the first respondent when i evidence was produced in support of the statement either made
by the appellant or by the first respondent. Therefore, it cannot be stated with certainty that tl divorce
took place on 9-5-2008, in absence of pleading, evidence and finding. (Paras 14 and 17)
ShamimAra v. State ofU.P., (2002) 7 SCC 518 : 2002 SCC (Cri) 1814, relied on
(2) In the instant case, the appellant wife had filed an application und Section 12 seeking relief
under Sections 18 to 23 of the DVA Act. The moneta relief as stipulated under Section 20 of the DVA
Act is different fro maintenance, which can be in addition to an order of maintenance under Section
125 CrPC or any other law. Such monetary relief can be granted to meet tl expenses incurred and
losses suffered by the aggrieved person and child of the aggrieved person as a result of the domestic
violence, which is not dependent the question whether the aggrieved person, on the date of filing of
the applicable under Section 12 of the DVA Act is in a domestic relationship with the respondent. In
—| 14 |—
view of Section 23 of the DVA Act it is well within jurisdiction of the Magistrate to grant the interim
ex parte relief as he deems and proper, if the Magistrate is satisfied that the application prima facie
disclost that the respondent is committing, or has committed an act of domestic violent or that there is
a likelihood that the respondent may commit an act of domest violence. Further, it is not necessary that
relief available under Sections 18, 20, 21 and 22 of the DVA Act can only be sought for in a proceeding
under the Domestic Violence Act. Any relief available under the aforesaid provisions also be sought
for in any legal proceeding even before a civil court and Fami Court, apart from the criminal court,
affecting the aggrieved person whether proceeding was initiated before or after the commencement of
the DVA Act. There is apparent from Section 26 of the DVA Act. Even before the criminal cou where
case under Section 498-A IPC is pending, if the allegation is four genuine, it is always open to the
appellant to ask for reliefs under Sections 18 and 22 of the DVA Act and interim relief under Section
23 of the DVA Act. In the present case, the alleged domestic violence took place during 2006-2007
and the writ petition filed by the first respondent the High Court refused to quash FIR against him
observing that a prima facie case under Section 498-A IPC made out against him. (Paras 23 to 31)
V.D. Bhanot v. Savita Bhanot, (2012) 3 SCC 183 : (2012) 2 SCC (Civ) 53 : (2012) 2 SC (Cri) 102, relied
on
Even if it is accepted that the appellant has obtained ex parte khula (divorce under the Muslim
Personal Law from the Mufti on 9-5-2008, the petition undi Section 12 of the Domestic Violence Act
is maintainable. The erstwhile wife cz claim one or other relief as prescribed under Sections 18, 19, 20,
21, 22 ar interim relief under Section 23 of the Domestic Violence Act, 2005, as domesti “ violence had
taken place when the wife lived together in shared household wil her husband through a relationship
in the nature of marriage. An act of domesti violence once committed, subsequent decree of divorce
will not absolve the liability of the respondent from the offence committed or to deny the benefit to
which the aggrieved person is entitled under the DVA Act including monetary relief under Section 20,
child custody under Section 21, compensation under Section 22 and interim or ex parte order under
Section 23 of the DVA Act. Both the Sessions Judge and the High Court failed to notice the provisions
of the DVA Act viz. Sections 2(a), 2(f), 2(s), 3, 18 to 23 and 26 and the fact that in any case the FIR
under Sections 498-A and 406 IPC was lodged much prior to the alleged divorce between the parties
and erred in holding that the petition under Section 12 of the DVA Act was not maintainable. (Paras
18,19 and 29 to 31)
Hon’ble Mr. Justice Sudhansu Jyoti Mukhopadhaya.— Leave granted. This appeal has been preferred
by the appellant against the judgment dated 23-1-2013 passed by the High Court of Judicature of
Bombay in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori1. By the impugned judgment5, the High
Court dismissed me writ petition preferred by the appellant and upheld the order dated 3-11-2012
passed by the Additional Sessions Judge, Sewree, Mumbai whereby the Sessions Judge held that the
application filed by the appellant under the Protection of Women from Domestic Violence Act, 2005
(hereinafter referred to as “the Domestic Violence Act, 2005”) is not maintainable.
2. The case of the appellant is that she got married to the first respondent according to Muslim
rites and rituals on 13-5-2005. The first respondent was in the habit of harassing her. She was
subjected to physical abuse and cruelty. For example, the first respondent acted with cruelty,
5 Criminal WP No. 4250 of 2012, decided on 23-1-2013 (Bom)
—| 15 |—
harassed her and had banged her against a wall on her back and stomach on 5-1-2006, due
to which she suffered severe low back pain. The first respondent refused her entry into the
matrimonial house on 19-2-2006 and asked her to stay with her parents. She delivered a baby
boy at Breach Candy Hospital, Mumbai on 10-8-2006 but the first respondent never visited to
see the new-born baby. Later, the first respondent filed a petition seeking custody of the minor
child.
3. The appellant lodged FIR No. 224 of 2007 on 6-9-2007 before Agripada Police Station under
Sections 498-A and 406 IPC against the first respondent, his mother and his sister. Against the
same, a writ petition was filed by the first respondent bearing Writ Petition No. 1961 of 2007
seeking quashing of the FIR. The High Court dismissed6 the said writ petition and the same was
challenged by the first respondent on which this Court issued notice. Subsequently, this Court by
order dated 16-7-20087, remitted the matter to the High Court for hearing afresh Writ Petition
No. 1961 of 2007. On 4-12-20088, Writ Petition No. 1961 of 2007 was partly allowed by the High
Court quashing the FIR against the first respondent’s mother and sister with the observation
that the prima facie case under Section 498-A was made out against the first respondent.
4. According to the appellant, she obtained an ex parte “khula” from Mufti under the Muslim
Personal Law on 9-5-2008. The first respondent challenged the “khula” pronounced by Mufti
before the Family Court, Bandra vide Petition No. B-175 of 2008. He also filed a petition for
restitution of conjugal rights.
5. On 29-9-2009, the appellant filed a petition under Section 12 of the Domestic Violence Act,
2005 against the first respondent before the ACMM’s 46th Court, Mazgaon, Mumbai for relief
under Sections 18 to 23 of the Domestic Violence Act, 2005 alleging that he is not providing
maintenance for herself as well as for the minor child. The first respondent filed his reply to
the said application which was followed by the rejoinder filed by the appellant. The protection
officer appointed by the Magistrate under the Domestic Violence Act, 2005 filed his report, inter
alia, stating that an act of domestic violence was committed by the first respondent upon the
appellant.
But the Magistrate was transferred, the Court fell vacant and no order was passed. Subsequently,
the appellant fded an application for interim maintenance and the Magistrate by order dated
4-2-2012 allowed the application directing the first respondent to pay interim maintenance of
Rs 25,000. Without paying the maintenance, the first respondent preferred an appeal before
the Sessions Court challenging the order of the Magistrate dated 4-2-2012. The Sessions Court,
Sewree, Mumbai by order dated 3-8-2012 condoned the delay in preferring the appeal and
directed the first respondent to deposit the entire amount of maintenance prior to the hearing of
the appeal. As the first respondent did not deposit the amount, the appellant filed an application
for issuance of distress warrant. Accordingly a notice was issued on 1-9-2012. The counsel for
the respondent stated across the Bar that the first respondent had deposited the money before
the Sessions Court and filed two applications on 3-9-2012 for recalling the order dated 4-2-2012
and for dismissal of the application on the ground that the domestic relationship did not exist
between the appellant and the first respondent.
6 Atif Iqbal Mansuri v. State of Maharashtra, Criminal WP No. 1961 of 2007, order dated 18-12-2007 (Bom)
7 Atif Iqbal Mansuri v. State of Maharashtra, Criminal Appeal No. 1120 of 2008, order dated 16-7-2008 (SC)
8 Atif Iqbal Mansuri v. State of Maharashtra, Criminal WP No. 1961 of 2007, order dated 4-12-2008 (Bom)
—| 16 |—
6. The Sessions Judge, Seweree, Mumbai by order dated 3-11-2012 observed and held as follows:
“14. First I will take the legal point which has been taken by the learned advocate for the
appellant as to whether there was domestic relationship between the parties (sic) on
the divorce that took place between the parties on 9-5-2008. The learned advocate for
the respondent submitted that though the divorce has taken place as per custom, then
also it is not confirmed by the civil court. Secondly, he argued that the non-applicant
himself filed a proceeding for restitution of conjugal rights after this date and also filed
proceedings for setting aside that divorce obtained by custom and therefore, it cannot be
said that divorce took place between the parties. But this argument cannot be accepted
because we have to see the pleadings of the applicant. She herself came with a case that
marriage was dissolved by Mufti on 9-5-2008. She herself filed such documents along
with application in which declaration is made about Nikah of the applicant with the
non-applicant is declared null and void and therefore, the applicant is no more wife
of the appellant, after period of Iddat she was (sic no more) wife of the appellant, after
period of Iddat she was free from any hindrance. She herself came with a case that she
is no more wife of the non-applicant after 9-5-2008. It is further to be noted that she
herself moved for this customary divorce and according to the non-applicant same was
obtained ex parte. In this background the applicant cannot blow hot and cold by saying
that though she took such divorce then also same has not been confirmed by the civil
court as well as the non-applicant has filed the proceeding for restitution of conjugal
rights and setting aside of that divorce and therefore, she may be treated as bis wife.
75. So, now a legal question arises as to whether in view of divorce that took place on
9-5-2008, the domestic relationship between the parties existed on the date of filing of
this petition on 29-9-2009?; and if there is no domestic relationship then whether the
application is maintainable?
* * *
20. So, it is the consistent view of the Hon’ble Apex Court, the Hon’ble Bombay High Court
and other Hon’ble High Court that after divorce, domestic relationship between the
parties did not remain and therefore, application under the Act after date of divorce is
not maintainable. In the present case also the facts are similar and therefore, the law
laid down is applicable.
21. ... So, I conclude that in view of divorce that took place between the parries on 9-5-
2008 the domestic relationship between the parties did not remain and therefore,
this application filed on 29-6-2009 under the Act is not maintainable and therefore,
question of granting of any interim relief does not arise because it can be said that the
applicant has no prima facie case.
* * *
23. ... Even if I would have held that the application is maintainable, then in such
circumstances it would have remanded back the matter to the lower court for hearing
afresh and recording such reasons. But when I am coming to a conclusion that as prima
facie the application is itself not maintainable so the applicant has no prima facie case
and therefore, I told that the impugned order is liable to be set aside straightaway.” The
—| 17 |—
Sessions Judge by the aforesaid judgment allowed the appeal and set aside the interim
order dated 4-2-2012 passed by the Additional Chief Metropolitan Magistrate, 46th
Court at Mazgaon, Mumbai. By the impugned judgment1, the High Court affirmed
the aforesaid order.
7. Before this Court the parties have taken similar pleas as taken before the lower courts. According
to the appellant the cause of action i.e. domestic violence took place much before the divorce,
therefore, FIR was filed and hence the appellant is entitled for the relief under the Domestic
Violence Act, 2005. The protection officer has already submitted the report holding that domestic
violence was committed by the first respondent upon the appellant.
8. On the other hand, according to the counsel for the first respondent after dissolution of the
marriage no relief can be granted under the Domestic Violence Act, 2005. In his support reliance
was placed on the decision of this Court in Inderjit Singh Grewal v. State of Punjab9.
9. The questions that arise for our consideration are:
(i) Whether divorce of the appellant and the first respondent has taken place on 9-5-2008?
and
(ii) Whether a divorced woman can seek for reliefs against her ex-husband under Sections 18
to 23 of the Domestic Violence Act, 2005?
10. For determination of the issue, it is necessary to notice the relationship between the appellant
and the first respondent. It is not in dispute that the appellant got married to the first respondent
according to the Muslim rites and rituals on 13-5-2005. Since then their relationship was
“domestic relationship” as defined under Section 2(f) of the Domestic Violence Act, 2005. Both
of them had lived together in a “shared household” as defined under Section 2(s) of the Domestic
Violence Act when they are/were related by marriage.
11. The appellant had taken plea that she obtained an ex parte “khula” from Mufti under the Muslim
Personal Law. But the first respondent has not accepted the same and has challenged the “khula”
obtained by the appellant before the Family Court, Bandra vide MJ Petition No. B-175 of 2008.
The respondent has also filed a petition for restitution of conjugal rights.
12. The concept of dissolution of marriage under Muslim Personal Law was noticed and discussed
by the Single Judge of the High Court of Delhi in Masroor Ahmed v. State (NCT of Delhi)10.
In the said case, the High Court noticed different modes of dissolution of marriage under the
Muslim Personal Law (Shariat) and held: (ILR pp. 1348-51, paras 15-16)
“15. The question which arises is, given the Shariat and its various schools, how does a
person proceed on an issue which is in dispute? The solution is that in matters which
can be setded privately, a person need only consult a mufti (jurisconsult) of his or
her school. The mufti gives his fatwa or advisory decision based on the Shariat of his
school. However, if a matter is carried to the point of litigation and cannot be settled
privately then the Qazi (Judge) is required to deliver a qaza (judgment) based upon the
Shariat [A Qazi (or qadi) is a Judge appointed by the political authority or State. He
or she may pass judgments in his or her jurisdiction in respect of many legal matters,
9 (2011) 12 SCC 588 : (2012) 2 SCC (Civ) 742 : (2012) 2 SCC (Cri) 614
10 ILR (2007) 2 Del 1329
—| 18 |—
including divorce, inheritance, property, contractual disputes, etc. Schacht, p. 188. A

qaza or kada is a judgment, which must be given according to the madhab to which the
Qadi belongs. Schacht, p. 196. More information on qazis and qazas can be found at
pp. 188-98]. The difference between a fatwa and a qaza must be kept in the forefront.
A fatwa is merely advisory whereas a qaza is binding. Both, of course, have to be based
on the shariat and not on private interpretation dehors the shariat [Abdur Rahim, p.
172 (in respect of Qazis)].
The Muslim Personal Law (Shariat) Application Act, 1937 and the various forms of
dissolution of marriage recognised by it.
16. In India, the confusion with regard to application of customary law as part of Muslim
law was set at rest by the enactment of the Muslim Personal Law (Shariat) Application
Act, 1937. Section 2 of the 1937 Act reads as under:
‘2. Application of personal law to Muslims.—Notwithstanding any customs or usage to
the contrary, in all questions (save questions relating to agricultural land) regarding
intestate succession, special property of females, including personal property inherited
or obtained under contract or gift or any other provision of personal law, marriage,
dissolution of marriage, including talaq, ila, zihar, lion, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other
than charities and charitable institutions and charitable and religious endowments)
the rule of decision in cases where the parties are Muslims shall be the Muslim Personal
Law (Shariat).’
The key words are ‘notwithstanding any customs or usage to the contrary’ and ‘the rule
of decision in cases where the parties are Muslims shall be the Muslim Personal Law
(Shariat)’. This provision requires the court before which any question relating to, inter
alia, dissolution of marriage is in issue and where the parties are Muslims to apply the
Muslim Personal Law (Shariat) irrespective of any contrary custom or usage. This is
an injunction upon the court (see C. Mohammad Yunus v. Syed Unnissa11). What is
also of great significance is the expression— ‘dissolution of marriage, including talaq,
ila, zihar, Han, khula and mubaraat....’ This gives statutory recognition to the fact that
under the
Muslim Personal Law, a dissolution of marriage can be brought about by various
means, only one of which is talaq. Although Islam considers divorce to be odious
and abominable, yet it is permissible on grounds of pragmatism, at the core of which
is the concept of an irretrievably broken marriage. An elaborate lattice of modes of
dissolution of marriage has been put in place, though with differing amplitude and
width under the different schools, in an attempt to take care of all possibilities. Khula,
for example, is the mode of dissolution when the wife does not want to continue with
the marital tie. She proposes to her husband for dissolution of the marriage. This may
or may not accompany her offer to give something in return. Generally, the wife offers
to give up her claim to Mahr (dower). Khula is a divorce which proceeds from the wife
which the husband cannot refuse subject only to reasonable negotiation with regard
11 AIR 1961 SC 808 : (1962) 1 SCR 67
—| 19 |—
to what the wife has offered to give him in return. Mubaraat is where both the wife
and husband decide to mutually put an end to their marital tie. Since this is divorce
by mutual consent there is no necessity for the wife to give up or offer anything to the
husband. It is important to note that both under khula and mubaraat there is no need
for specifying any reason for the divorce. It takes place if the wife (in the case of khula)
or the wife and husband together (in the case of mubaraat) decide to separate on a no-
fault/no-blame basis. Resort to khula (and to a lesser degree, mubaraat) as a mode of
dissolution of marriage is quite common in India.” (emphasis in original)
13. From the discussion aforesaid, what we find is that “khula” is a mode of dissolution of marriage
when the wife does not want to continue with the marital tie. To settle the matter privately,
the wife need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa
or advisory decision based on the Shariat of his school. Further, if the wife does not want to
continue with marital tie and takes mode of “khula” for dissolution of marriage, she is required
to propose her husband for dissolution of marriage. This may or may not accompany her offer to
give something in return. The wife may offer to give up her claim to Mahr (dower). The “khula”
is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to
reasonable negotiation with regard to what the wife has offered to give him in return. The Mufti
gives his fatwa or advisory decision based on the Shariat of his school. However, if the matter is
carried to the point of litigation and cannot be settled privately then the Qazi (Judge) is required
to deliver a qaza (judgment) based upon the Shariat.
14. In the present case, the appellant stated that she has obtained an ex parte “khula” on 9-5-2008
from Mufti under the Muslim Personal Law. Neither it is pleaded nor is it made clear by the
appellant or the first respondent as to whether for such “khula” the appellant made a proposal to
first respondent-husband for dissolution of marriage accompanied by an offer to give something
in return. It has not been made clear that whether the appellant gave up her claim to Mahr
(dower). The husband, first respondent has not accepted “khula” given by Mufti (juris consult)
which is in the form of fatwa or advisory decision based on the Shariat. He, however, has not
moved before the Qazi (Judge) to deliver a qaza (judgment) based upon the Shariat. Instead, he
has moved before the Family Court, Bandra against the “khula” by filing petition MJ Petition
No. B-175 of 2008. He has also prayed for restitution of conjugal rights. Therefore, with no
certainty, it can be stated that the divorce was taken on 9-5-2008.
15. In Shamim Ara v. State of U.P.12, this Court considered valid “talaq” in Islamic Law. This Court
while discussing the correct law of “talaq”, as ordained by the Holy Quran observed that: (SCC
p. 526, para 13)
“13. ... 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.” The Court further
held that the talaq to be effective has to be pronounced.
16. In Shamim Ara cases, the Muslim woman claimed maintenance under Section 125 of the Code
of Criminal Procedure, 1973. The husband, Respondent 2 in his written statement filed in the
proceedings under Section 125 CrPC alleged his wife, the applicant under Section 125 CrPC
12 (2002) 7 SCC 518 : 2002 SCC (Cri) 1814
—| 20 |—
to be sharp, shrewd and mischievous and stated that he divorced her on 11-7-1987 being fed
up with all such activities unbecoming of the wife. This Court noticed that the particulars of
the alleged talaq were not pleaded and even during the trial, the husband, examining himself,
adduced no evidence in proof of talaq said to have been given by him on 11-7-1987. It was
further observed that there were no reasons substantiated in justification of talaq and no plea
or proof that any effort at reconciliation preceded talaq. Subsequently, it was held that there is
no proof of talaq for having been taken place on 11-7-1987. What the High Court has upheld as
talaq is the plea taken in the written statement and its communication to the wife by delivering
a copy of the written statement on 5-12-1990. This Court held that: (Shamim Ara case^, SCC p.
527, para 16)
“16. ... a mere plea taken in the written statement of a divorce having been pronounced
sometime in the past cannot by itself be treated as effectuating talaq on the date of
delivery of the copy of the written statement to the wife. [The husband] ought to have
adduced evidence and proved the pronouncement of talaq on 11-7-1987 and if he
failed in proving the plea raised in the written statement, the plea ought to have treated
as failed.”
17. In the present case, as noticed that there is no definite plea taken either by the appellant or by the
first respondent that “khula” become effective in accordance with Muslim Personal Law (Shariat).
Neither the appellant nor the first respondent placed any evidence in support of such divorce.
No specific pleading was made that the appellant proposed to her husband, first respondent
for dissolution of marriage. On the other hand, it is clear that the “khula” was pronounced by
the Mufti ex parte. For the said reason, the first respondent challenged the same by filing MJ
Petition No. B-175 of 2008, before the Family Court, Bandra. In this background, we hold that
the Sessions Judge, Sewree, Mumbai by order dated 3-11-2012 wrongly observed and held that
the appellant is no more wife of the first respondent. The High Court has also failed to notice
that no evidence was produced in support of the statement either made by the appellant or by
the first respondent. It also failed to appreciate the fact that the “khula” was obtained from the
Mufti and not from Qazi and the same was challenged by the first respondent before the Family
Court, Bandra, Mumbai and Wrongly upheld the finding of the Sessions Judge. Therefore, with
no certainty, it can be stated that the divorce has taken place on 9-5-2008, in absence of pleading,
evidence and finding.
18. Even if it is presumed that the appellant has taken “khula” (divorce) on 9-5-2008 and the first
respondent is no more the husband, the question arises that in such case whether the erstwhile
wife can claim one or other relief as prescribed under Sections 18, 19, 20, 21, 22 and interim
relief under Section 23 of the Domestic Violence Act, 2005, if domestic violence had taken place
when the wife lived together in shared household with her husband through a relationship in the
nature of marriage.
19. For determination of such issue, it is desirable to notice the relevant provisions of the Domestic
Violence Act, 2005, as discussed hereunder:
19.1. Section 2(a) of the Domestic Violence Act, 2005 defines “aggrieved person” as follows:
—| 21 |—
“2. (a) ‘aggrieved person’ means any woman who is, or has been, in a domestic
relationship with the respondent and who alleges to have been subjected to any
act of domestic violence by the respondent;”
Therefore, it is clear that apart from the woman who is in a domestic relationship, any
woman who has been, in a domestic relationship with the respondent, if alleges to have
been subjected to act of domestic violence by the respondent comes within the meaning
of “aggrieved person”.
19.2. Definition of “domestic relationship” reads as follows:
“2. (a) ‘domestic relationship’ means a relationship between two persons who live
or have, at any point of time, lived together in a shared household, when they are
related by consanguinity, marriage or through a relationship in the nature of marriage,
adoption or are family members living together as a joint family;”
From the aforesaid provision we find that a person aggrieved (wife herein), who at any
point of time has lived together with husband (first respondent) in a shared household, is
also covered by the meaning of “domestic relationship”.
19.3. Section 2(s) defines “shared household”:
“2. (s) ‘shared household’ means a household where the person aggrieved lives or at any
stage has lived in a domestic relationship either singly or along with the respondent and
includes such a household whether owned or tenanted either jointiy by the aggrieved
person and the respondent, or owned or tenanted by either of them in respect of which
either the aggrieved person or the respondent or both jointiy or singly have any right,
tide, interest or equity and includes such a household which may belong to the joint
family of which the respondent is a member, irrespective of whether the respondent or
the aggrieved person has any right, tide or interest in the shared household;”
Therefore, if the “person aggrieved” (wife herein) at any stage has lived in a domestic
relationship with the respondent (husband herein) in a house, the person aggrieved can
claim a “shared household”.
19.4. Definition of “domestic violence” as assigned in Section 3 reads:
“3. Definition of domestic violence.—For the purposes of this Act, any act, omission
or commission or conduct of the respondent shall constitute domestic violence in
case it—
(a) harms or injures or endangers the health, safety, life, limb or well being, whether
mental or physical, of the aggrieved person or tends to do so and includes causing
physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her
or any other person related to her to meet any unlawful demand for any dowry or
other property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by any
conduct mentioned in clause (a) or clause (by, or
—| 22 |—
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved
person.
Explanation I.—For the purposes of this section—
(i) ‘physical abuse’ means any act or conduct which is of such a nature as to cause bodily
pain, harm, or danger to life, limb, or health or impair the health or development of the
aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) ‘sexual abuse’ includes any conduct of a sexual nature that abuses, humiliates, degrades or
otherwise violates the dignity of woman;
(iii) ‘verbal and emotional abuse’ includes—
(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with
regard to not having a child or a male child; and
(b) repeated threats to cause physical pain to any person in whom the aggrieved person
is interested.
(iv) ‘economic abuse’ includes—
(a) deprivation of all or any economic or financial resources to which the aggrieved
person is entitled under any law or custom whether payable under an order of a
court or otherwise or which the aggrieved person requires out of necessity including,
but not limited to, household necessities for the aggrieved person and her children,
if any, stridhan, property, jointly or separately owned by the aggrieved person,
payment of rental related to the shared household and maintenance;
(b) .disposal of household effects, any alienation of assets whether movable or
immovable, valuables, shares, securities, bonds and the like or other property in
which the aggrieved person has an interest or is entitled to use by virtue of the
domestic relationship or which may be reasonably required by the aggrieved person
or her children or her stridhan or any other property jointly or separately held by the
aggrieved person; and
(c) prohibition or restriction to continued access to resources or facilities which the
aggrieved person is entided to use or enjoy by virtue of the domestic relationship
including access to the shared household.
Explanation II.—For the purpose of determining whether any act, omission, commission or
conduct of the respondent constitutes ‘domestic violence’ under this section, the overall facts
and circumstances of the case shall be taken into consideration.”
Therefore, apart from “physical abuse” and “sexual abuse”, “verbal and emotional abuse” and
“economic abuse” also constitute “domestic violence”.
20. Chapter IV of the Domestic Violence Act, 2005 deals with “procedure for obtaining the orders
of reliefs”. Section 12 relates to the application to Magistrate, which reads as follows:
“12. Application to Magistrate.—(1) An aggrieved person or a Protection Officer or any
other person on behalf of the aggrieved person may present an application to the
Magistrate seeking one or more reliefs under this Act:
—| 23 |—
Provided that before passing any order on such application, the Magistrate shall take
into consideration any domestic incident report received by him from the Protection
Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order
for payment of compensation or damages without prejudice to the right of such person
to institute a suit for compensation or damages for the injuries caused by the acts of
domestic violence committed by the respondent:
Provided that where a decree for any amount as compensation or damages has been
passed by any court in favour of the aggrieved person, the amount, if any, paid or
payable in pursuance of the order made by the Magistrate under this Act shall be set off
against the amount payable under such decree and the decree shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law
for the time being in force, be executable for the balance amount, if any, left after such
set off.
(3) Every application under sub-section (1) shall be in such form and contain such
particulars as may be prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond
three days from the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under sub-section
(1) within a period of sixty days from the date of its first hearing.”
21. As per proviso to sub-section (1) of Section 12, the Magistrate before passing any order under
Section 12 is required to take into consideration any domestic incident report received by him
from the protection officer or the service provider.
22. The reliefs which can be granted by the Magistrate under the Domestic Violence Act, 2005 are
as follows:
(i) Right to reside in a shared household - Section 17;
(ii) Protection orders - Section 18;
(iii) Residence orders - Section 19;
(iv) Monetary reliefs - Section 20;
(v) Custody orders - Section 21;
(vi) Compensation orders - Section 22; and
(vii) Interim and ex parte orders - Section 23.
23. In the instant case, the appellant sought relief under Sections 18 to 23 of the Domestic Violence
Act, 2005. It includes protection order under Section 18, monetary relief under Section 20,
custody orders under Section 21, compensation under Section 22 and interim relief under
Section 23. The relevant provisions read as follows:
“20. Monetary reliefs.—(1) While disposing of an application under sub-section (1) of
Section 12, the Magistrate may direct the respondent to pay monetary relief to meet
—| 24 |—
the expenses incurred and losses suffered by the aggrieved person and any child of the
aggrieved person as a result of the domestic violence and such relief may include, but is
not limited to—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or removal of any property from
the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any, including
an order under or in addition to an order of maintenance under Section 125 of
the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time
being in force.
(2) The monetary relief granted under this section shall be adequate, fair and reasonable
and consistent with the standard of living to which the aggrieved person is accustomed.
(3) The Magistrate shall have the power to order an appropriate lump sum payment or
monthly payments of maintenance, as the nature and circumstances of the case may
require.
(4) The Magistrate shall send a copy of the order for monetary relief made under sub-
section (1) to the parties to the application and to the in-charge of the police station
within the local limits of whose jurisdiction the respondent resides.
(5) The respondent shall pay the monetary relief granted to the aggrieved person within
the period specified in the order under sub-section (1).
(6) Upon the failure on the part of the respondent to make payment in terms of the order
under sub-section (1), the Magistrate may direct the employer or a debtor of the
respondent, to direcdy pay to the aggrieved person or to deposit with the court a portion
of the wages or salaries or debt due to or accrued to the credit of the respondent, which
amount may be adjusted towards the monetary relief payable by the respondent.”
The monetary relief as stipulated under Section 20 is different from maintenance, which can be
in addition to an order of maintenance under Section 125 CrPC or any other law. Such monetary
relief can be granted to meet the expenses incurred and losses suffered by the aggrieved person
and child of the aggrieved person as a result of the domestic violence, which is not dependent on
the question whether the aggrieved person, on the date of filing of the application under Section
12 is in a domestic relationship with the respondent.
24. “22. Compensation orders.—In addition to other reliefs as may be granted under this Act, the
Magistrate may on an application being made by the aggrieved person, pass an order directing
the respondent to pay compensation and damages for the injuries, including mental torture and
emotional distress, caused by the acts of domestic violence committed by that respondent.
23. Power to grant interim and ex parte orders.—(1) In any proceeding before him under
this Act, the Magistrate may pass such interim order as he deems just and proper.
—| 25 |—
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent
is committing, or has committed an act of domestic violence or that there is a likelihood
that the respondent may commit an act of domestic violence, he may grant an ex parte
order on the basis of the affidavit in such form, as may be prescribed, of the aggrieved
person under Section 18, Section 19, Section 20, Section 21 or, as the case may be, Section
22 against the respondent.”
Therefore, it is well within the jurisdiction of the Magistrate to grant the interim ex parte
relief as he deems just and proper, if the Magistrate is satisfied that the application prima
facie discloses that the respondent is committing, or has committed an act of domestic
violence or that there is a likelihood that the respondent may commit an act of domestic
violence.
25. It is not necessary that relief available under Sections 18, 19, 20, 21 and 22 can only be sought for
in a proceeding under the Domestic Violence Act, 2005. Any relief available under the aforesaid
provisions may also be sought for in any legal proceeding even before a civil court and Family
Court, apart from the criminal court, affecting the aggrieved person whether such proceeding
was initiated before or after the commencement of the Domestic Violence Act. This is apparent
from Section 26 of the Domestic Violence Act, 2005 as quoted hereunder:
“26. Relief in other suits and legal proceedings.—(1) Any relief available under Sections
18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court,
Family Court or a criminal court, affecting the aggrieved person and the respondent
whether such proceeding was initiated before or after the commencement of this Act.
(2) Any relief referred to in sub-section (1) may be sought for in addition to and
along with any other relief that the aggrieved person may seek in such suit or
legal proceeding before a civil or criminal court.
(3) In case any relief has been obtained by the aggrieved person in any proceedings
other than a proceeding under this Act, she shall be bound to inform the
Magistrate of the grant of such relief.”
26. The appellant has filed an FIR against the first respondent for the offence committed under
Section 498-A IPC. The High Court refused to quash the FIR qua first respondent on the ground
that prima facie case has been made out. Even before the criminal court where such case under
Section 498-A is pending, if allegation is found genuine, it is always open to the appellant to ask
for reliefs under Sections 18 to 22 of the Domestic Violence Act and interim relief under Section
23 of the said Act.
27. In V.D. Bhanot v. Savita Bhano13, this Court held that the conduct of the parties even prior to
the coming into force of the Protection of Women from Domestic Violence Act, 2005 could be
taken into consideration while passing an order under Sections 18, 19 and 20 thereof. The wife
who had shared a household in the past, but was no longer residing with her husband can file
a petition under Section 12 if subjected to any act of domestic violence. In V.D. Bhanot9 this
Court held as follows: (SCC pp. 186-87, para 12)
13 (2012) 3 SCC 183 : (2012) 2 SCC (Civ) 53 : (2012) 2 SCC (Cri) 102
—| 26 |—
“72. We agree with the view expressed by the High Court that in looking into a complaint
under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the
coming into force of the PWD Act, could be taken into consideration while passing an
order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also
rightly held that even if a wife, who had shared a household in the past, but was no
longer doing so when the Act came into force, would still be entitled to the protection of
the PWD Act, 2005.”
28. In Inderjit Singh Grewal the appellant Inderjit Singh and Respondent 2 of the said case got
married on 23-9-1998. The parties to the marriage could not pull on well together and decided
to get divorce and, therefore, filed a case for divorce by mutual consent under Section 13-B of the
Hindu Marriage Act, 1955. After recording the statement in the said case, the proceedings were
adjourned for a period of more than six months to enable them to ponder over the issue. The
parties again appeared before the Court on second motion and on the basis of their statement,
the District Judge, Ludhiana vide judgment and order dated 20-3-2008 allowed the petition
and dissolved their marriage. After dissolution of marriage, the wife filed a complaint before
the Senior Superintendent of Police, Ludhiana against Inderjit Singh under the provisions of
the Domestic Violence Act alleging that the decree of divorce obtained by them was a sham
transaction. It was further alleged that even after getting divorce both of them had been living
together as husband and wife. In the said case, the Superintendent of Police, City I conducted the
full-fledged inquiry and reported that the parties had been living separately after the dissolution
of the marriage. Hence, no case was made out against Inderjit Singh. In this context, this Court
held that Section 12 “application to Magistrate” under the Domestic Violence Act challenging
the said divorce was not maintainable and in the interest of justice and to stop the abuse of
process of court, the petition under Section 482 CrPC was allowed. The law laid down in the said
case is not applicable for the purpose of determination of the present case.
29. In the present case, the alleged domestic violence took place between January 2006 and 6-9-2007
when FIR No. 224 of 2007 was lodged by the appellant under Sections 498-A and 406 IPC against
the first respondent and his relatives. In a writ petition filed by the first respondent the High
Court refused to quash the said FIR against him observing that prima facie case under Section
498-A was made out against him. Even if it is accepted that the appellant during the pendency
of the SLP before this Court has obtained ex parte “khula” (divorce) under the Muslim Personal
Law from the Mufti on 9-5-2008, the petition under Section 12 of the Domestic Violence Act,
2005 is maintainable.
30. An act of domestic violence once committed, subsequent decree of divorce will not absolve
the liability of the respondent from the offence committed or to deny the benefit to which the
aggrieved person is entided under the Domestic Violence Act, 2005 including monetary relief
under Section 20, child custody under Section 21, compensation under Section 22 and interim
or ex parte order under Section 23 of the Domestic Violence Act, 2005.
31. Both the Sessions Judge and the High Court failed to notice the aforesaid provisions of the Act
and the fact that the FIR was lodged much prior to the alleged divorce between the parties and
erred in holding that the petition under Section 12 was not maintainable.
—| 27 |—
32. For the reasons aforesaid, we set aside the impugned judgment dated 23-1-2013 passed by the
High Court of Judicature of Bombay in Juveria Abdul Majid Patni v. Atiflqbal Mansoori1, the
order dated 3-11-2012 passed by the Additional Sessions Judge, Mumbai and uphold the order
dated 4-2-2012 passed by the Additional Chief Metropolitan Magistrate, 46th Court at Mazgaon,
Mumbai. The first respondent is directed to pay the amount, if not yet paid, in accordance with
the order passed by the Magistrate. The Magistrate will now proceed with the matter and finally
dispose of the petition under Section 12 of the Domestic Violence Act after going through the
report and hearing the parties.
33. The appeal is allowed with the aforesaid observations and directions.
qqq
† Under Article 32 of the Constitution of India
—| 28 |—
MR. ANURAG MITTAL VERSUS MRS. SHAILY MISHRA MITTAL

Mr. Anurag Mittal ...Appellant (S)
Versus
Mrs. Shaily Mishra Mittal ...Respondent (S)
Decided on : 24th August, 2018
In the present case, the petitioner-wife filed a petition seeking divorce under Section 13(1)(i)(a)
of the Hindu Marriage Act, 1955 which was granted by the Additional District Judge, North, Tis
Hazari Court, Delhi. It also dismissed the petition filed under Section 9 of the Act by the husband.
Aggrieved by the order of the court, the appellant-husband filed appeals before the High Court and
accordingly, the High Court stayed the judgment and the operation of the judgment passed by the
Family Court. While the appeal was pending before the High Court, the parties reached a settle-
ment through mediation which stipulated that the Appellant-husband was required to withdraw the
appeals before the High Court within 30 days. Subsequently, the High Court dismissed the appeals
as withdrawn on 20.12.2011. In the meanwhile, the Appellant-husband married the Respondent
on 06.12.2011. Very soon, their relationship got bitter and the respondent-wife filed a petition for
declaring the marriage as void under Section 5(i) read with Section 11 of the Act. The family court
dismissed the petition. The respondent-wife approached the High Court challenging the judgment of
the Family court. The High Court allowed the appeal and declared the marriage between the Appel-
lant-husband and the Respondent-wife as null and void. Aggrieved by this order of the High court,
the Appellant-husband approached the Supreme Court. The Supreme Court held that the restriction
placed on a second marriage in S.15 of the Act till dismissal of an appeal would not apply to a case
where the parties have settled and decided not to pursue further appeal. Also, the court observed
that it is not the case of the appellant that marriage was lawful because of the interim order that was
passed in appeals filed by him against the decree of divorce and he rested his case on petition filed for
withdrawal of appeal. Therefore the judgment of the High Court that the marriage was void is erro-
neous. [Per L. Nageshwar Rao, J.] If provision of law prescribes incapacity to marry and yet person
marries while under that incapacity, marriage would not be void in absence of express provision
that declares nullity. [Per S.A. Bobde, J.] Further, the court held that the withdrawal of suit is an ab-
solute right of the plaintiff and Order 13 Rule 1 applies to appeals as well, therefore, if the appellant
makes such an application unconditionally to the court, the court has to grant it. Hence, the appeal
is deemed to have been withdrawn on the date of filing of application of withdrawal.
JUDGMENT
Hon’ble Mr. Justice L. Nageswara Rao :—

1. By a judgment dated 31.08.2009, the Additional District Judge, North, Tis Hazari Court, Delhi
allowed the petition filed by Ms. Rachna Aggarwal under Section 13 (1) (i) (a) of the Hindu
Marriage Act, 1955 (hereinafter referred to as the Act) and dissolved the marriage between her
—| 29 |—
and the Appellant. By the said judgment the petition filed under Section 9 of the Act by the
Appellant for restitution of conjugal rights was dismissed. The Appellant filed appeals against the
said judgment Date: 2018.08.24 and the operation of the judgment and decree dated 31.08.2009
was stayed by the High Court on 20.11.2009. During the pendency of the Appeal, the Appellant
and Ms. Rachna Aggarwal reached a settlement before the Mediation Centre, Tis Hazari Court,
Delhi. According to the terms of the settlement dated 15.10.2011, the Appellant had to move an
application for withdrawal of the Appeals within 30 days. The Appellant filed an application to
withdraw the appeals before the High Court in terms of the settlement dated 15.10.2011 which
was taken up on 28.11.2011 by the Registrar of the High Court of Delhi. He recorded that there
was a settlement reached between the parties before the Mediation Centre, Tis Hazari Court,
Delhi and listed the matter before the Court on 20.12.2011. The High Court dismissed the appeals
filed by the Appellant as withdrawn in terms of the settlement by an order dated 20.12.2011.
In the meanwhile, the Appellant married the Respondent on 06.12.2011. Matrimonial discord
between the Appellant and the Respondent led to the filing of a petition by the Respondent for
declaring the marriage as void under Section 5 (i) read with Section 11 of the Act. The main
ground in the petition was that the appeal filed by the Appellant against the decree of divorce
dated 31st August, 2009 was pending on the date of their marriage i.e. 06.12.2011. The Family
Court dismissed the petition filed by the Respondent. The Respondent challenged the judgment
of the Family Court in the High Court. By a judgment dated 10.08.2016, the High Court set
aside the judgment of the Family Court and allowed the appeal of the Respondent and declared
the marriage between the Appellant and the Respondent held on 06.12.2011 as null and void.
Aggrieved by the judgment of the High Court, the Appellant has approached this Court.
2. As a pure question of law arises for our consideration in this case, we make it clear that we are
not dealing with the merits of the allegations made by both sides. The points that arises for
consideration are:
a) Whether the dismissal of the appeal relates back to the date of filing of the application for
withdrawal?
b) Whether the marriage dated 06.12.2011 between the Appellant and the Respondent during
the pendency of the appeal against the decree of divorce is void?
3. The Family Court framed only one substantial issue as to whether the marriage between the
parties was null and void on account of the contravention of Section 5 (i) of the Act. It was held
by the Family Court that the judgment and decree of divorce dated 31.08.2009 is a judgment
in rem which was neither reversed nor set aside by a superior court. As the judgment was
confirmed by the High Court, the marriage between the parties stood dissolved w.e.f. 31.08.2009
itself. The Family Court also observed that there is no provision in the Act which declares a
marriage in contravention of Section 15 to be void. It was further held by the Family Court that
the effect of stay of the judgment by a superior court is only that the decree of divorce remained
in abeyance but it did not become non-existent. On the other hand, the High Court framed a
question whether the Appellant could have contracted a second marriage after the decree of
divorce was passed on 31.08.2009 notwithstanding the operation of the decree being stayed. The
High Court was of the opinion that any marriage solemnized by a party during the pendency of
the appeal wherein the operation of the decree of divorce was stayed, would be in contravention
of Section 5 (i) of the Act.
—| 30 |—
4. Section 11 of the Act provides that any marriage solemnized after commencement of the Act
shall be null and void if it contravenes any of the conditions specified in Clauses (i), (iv) and (v)
of Section
5. Clause (i) of Section 5 places a bar on marriage by a person who has a spouse living at the time
of the marriage. Section 15 of the Act which is relevant is as follows: 15. Divorced persons. When
may marry again.- When a marriage has been dissolved by a decree of divorce and either there is
no right of appeal against the decree or, if there is such a right of appeal, the time for appealing
has expired without an appeal having been presented, or an appeal has been presented but has
been dismissed, it shall be lawful for either party to the marriage to marry again.
5. There is no dispute that the marriage between the Appellant and the Respondent was held
on 06.12.2011 during the pendency of the appeals filed by the Appellant against the decree
of divorce in favour of Ms. Rachna Aggarwal. It is also clear from the record that the appeals
were dismissed as withdrawn on 20.12.2011 pursuant to an application for withdrawal that was
placed before the Registrar on 28.11.2011. The Family Court has rightly held that the decree of
divorce is a judgment in rem.1
6. It is pertinent to take note of the Proviso to Section 15 of the Act according to which it shall not
be lawful for the respective parties to marry again unless at the time of such marriage at least
one year has elapsed from the date of the decree in the Court of first instance. This Proviso was
repealed w.e.f. 27.05.1976. 2 In Lila Gupta v. Laxmi Narain3, Rajender Kumar contracted second
marriage with Lila Gupta before the expiry of one year from the date of decree of divorce. This
Court was concerned with a point relating to the marriage between Rajender Kumar and Lila
Gupta being void having been contracted in violation of the Proviso to Section 15 of the Act. In
the said context this Court observed as follows:
8. Did the framers of law intend that a marriage contracted in violation of the provision
contained in 1 Marsh v. Marsh 1945 AC 271 2 Hindu Marriage (Amendment ) Act, 1976,
Act 68 of 1976 3 (1978) 3 SCC 258 the proviso to Section 15 to be void? While enacting the
legislation, the framers had in mind the question of treating certain marriages void and
provided for the same. It would, therefore, be fair to infer as legislative exposition that a
marriage in breach of other conditions the legislature did not intend to treat as void. While
prescribing conditions for valid marriage in Section 5 each of the six conditions was not
considered so sacrosanct as to render marriage in breach of each of it void. This becomes
manifest from a combined reading of Sections 5 and 11 of the Act. If the provision in the
proviso is interpreted to mean personal incapacity for marriage for a certain period and,
therefore, the marriage during that period was by a person who had not the requisite
capacity to contract the marriage and hence void, the same consequence must follow
where there is breach of condition (iii) of Section 5 which also provides for personal
incapacity to contract marriage for a certain period. When minimum age of the bride and
the bridegroom for a valid marriage is prescribed in condition (iii) of Section 5 it would
only mean personal incapacity for a period because every day the person grows and would
acquire the necessary capacity on reaching the minimum age. Now, before attaining the
minimum age if a marriage is contracted Section 11 does not render it void even though
Section 18 makes it punishable. Therefore, even where a marriage in breach of a certain
condition is made punishable yet the law does not treat it as void. The marriage in breach
—| 31 |—
of the proviso is neither punishable nor does Section 11 treat it void. Would it then be
fair to attribute an intention to the legislature that by necessary implication in casting the
proviso in the negative expression, the prohibition was absolute and the breach of it would
render the marriage void? If void marriages were specifically provided for it is not proper
to infer that in some cases express provision is made and in some other cases voidness had
to be inferred by necessary implication. It would be all the more hazardous in the case of
marriage laws to treat a marriage in breach of a certain condition void even though the
law does not expressly provide for it. Craies on Statute Law, 7th Edn., P. 263 and 264 may
be referred to with advantage:
The words in this section are negative words, and are clearly prohibitory of the marriage
being had without the prescribed requisites, but whether the marriage itself is void ... is a
question of very great difficulty. It is to be recollected that there are no words in the Act
rendering the marriage void, and I have sought in vain or any case in which a marriage has
been declared null and void unless there were words in the statute expressly so declaring
it (emphasis supplied). . . . From this examination of these Acts I draw two conclusions.
First, that there never appears to have been a decision where words in a statute relating to
marriage, though prohibitory and negative, have been held to infer a nullity unless such
nullity was declared in the Act. Secondly, that, viewing the successive marriage Acts, it
appears that prohibitory words, without a declaration of nullity, were not considered by
the legislature to create a nullity [Ed. Quoting Catterall v. Sweetman, (1845) 9 Jur 951, 954]
.
9. In the Act under discussion there is a specific provision for treating certain marriages
contracted in breach of certain conditions prescribed for valid marriage in the same Act
as void and simultaneously no specific provision having been made for treating certain
other marriages in breach of certain conditions as void. In this background even though
the proviso is couched in prohibitory and negative language, in the absence of an express
provision it is not possible to infer nullity in respect of a marriage contracted by a person
under incapacity prescribed by the proviso.
10. Undoubtedly the proviso opens with a prohibition that: It shall not be lawful etc. Is it an
absolute prohibition violation of which would render the act a nullity? A person whose
marriage is dissolved by a decree of divorce suffers an incapacity for a period of one year
for contracting second marriage. For such a person it shall not be lawful to contract a
second marriage within a period of one year from the date of the decree of the Court of first
instance. While granting a decree for divorce, the law interdicts and prohibits a marriage
for a period of one year from the date of the decree of divorce. Does the inhibition for a
period indicate that such marriage would be void? While there is a disability for a time
suffered by a party from contracting marriage, every such disability does not render the
marriage void. A submission that the proviso is directory or at any rate not mandatory
and decision bearing on the point need not detain us because the interdict of law is that it
shall not be lawful for a certain party to do a certain thing which would mean that if that
act is done it would be unlawful. But whenever a statute prohibits a certain thing being
done thereby making it unlawful without providing for consequence of the breach, it is
not legitimate to say that such a thing when done is void because that would tantamount
—| 32 |—
to saying that every unlawful act is void. As pointed out earlier, it would be all the more
inadvisable in the field of marriage laws. Consequences of treating a marriage void are so
serious and far reaching and are likely to affect innocent persons such as children born
during the period anterior to the date of the decree annulling the marriage that it has
always been considered not safe to treat a marriage void unless the law so enacts or the
inference of the marriage being treated void is either inescapable or irresistible. Therefore,
even though the proviso is couched in a language prohibiting a certain thing being done,
that by itself is not sufficient to treat the marriage contracted in contravention of it as void.
7. In the said judgment, this Court also had occasion to deal with the continuance of the marital tie
even after the decree of divorce for the period of incapacity as provided in the Proviso to Section
15 of the Act. In the said context, this Court held as follows:
13. To say that such provision continues the marriage tie even after the decree of divorce for
the period of incapacity is to attribute a certain status to the parties whose marriage is
already dissolved by divorce and for which there is no legal sanction. A decree of divorce
breaks the marital tie and the parties forfeit the status of husband and wife in relation to
each other. Each one becomes competent to contract another marriage as provided by
Section
15. Merely because each one of them is prohibited from contracting a second marriage for a
certain period it could not be said that despite there being a decree of divorce for certain
purposes the first marriage subsists or is presumed to subsist. Some incident of marriage
does survive the decree of divorce; say, liability to pay permanent alimony but on that
account it cannot be said that the marriage subsists beyond the date of decree of divorce.
Section 13 which provides for divorce in terms says that a marriage solemnised may on a
petition presented by the husband or the wife be dissolved by a decree of divorce on one or
more of the grounds mentioned in that section. The dissolution is complete once the decree
is made, subject of course, to appeal. But a final decree of divorce in terms dissolves the
marriage. No incident of such dissolved marriage can bridge and bind the parties whose
marriage is dissolved by divorce at a time posterior to the date of decree. An incapacity for
second marriage for a certain period does not have effect of treating the former marriage
as subsisting. During the period of incapacity the parties cannot be said to be the spouses
within the meaning of clause (i), sub-section (1) of Section 5. The word spouse has been
understood to connote a husband or a wife which term itself postulates a subsisting
marriage. The word spouse in sub-section (1) of Section 5 cannot be interpreted to mean
a former spouse because even after the divorce when a second marriage is contracted if the
former spouse is living that would not prohibit the parties from contracting the marriage
within the meaning of clause (i) of sub-section (1) of Section 5. The expression spouse in
clause ( i), sub- section (1) of Section 5 by its very context would not include within its
meaning the expression former spouse. (underlining ours)
8. After a comprehensive review of the scheme of the Act and the legislative intent, this Court in
Lila Gupta (supra) held that a marriage in contravention of the proviso to Section 15 is not void.
Referring to Sections 5 and 11 of the Act, this Court found that a marriage contracted in breach
of only some of the conditions renders the marriage void. This Court was also conscious of the
absence of any penalty prescribed for contravention of the proviso to Section 15 of the Act. This
—| 33 |—
Court referred to the negative expression it shall not be lawful used in proviso to Section 15
which indicates that the prohibition was absolute. In spite of the absolute prohibition, this Court
was of the view that a marriage contracted in violation of the proviso to Section 15 was not
void. There was a further declaration that the dissolution of a marriage is in rem and unless and
until a Court of appeal reversed it, marriage for all purposes was not subsisting. The dissolution
of the marriage is complete once the decree is made, subject of course to appeal. This Court
also decided that incapacity for second marriage for a certain period of time does not have the
effect of treating the former marriage as subsisting and the expression spouse would not include
within its meaning the expression former spouse.
9. The majority judgment was concerned only with the interpretation of proviso to Section 15 of
the Act. Justice Pathak in his concurring judgment referred to Section 15, but refrained from
expressing any opinion on its interpretation.
Effective date of the Dismissal of Appeal
10. In case of a dissolution of marriage, a second marriage shall be lawful only after dismissal of the
appeal. Admittedly, the marriage between the Appellant and the Respondent was on 06.12.2011
i.e. before the order of withdrawal was passed by the Court on 20.12.2011. There is no dispute
that the application for withdrawal of the appeal was filed on 28.11.2011 i.e. prior to the date of
the marriage on 06.12.2011. We proceed to consider the point that whether the date of dismissal
of the appeal relates back to the date of filing of the application for withdrawal of the appeal.
Order XXI Rule 89 (2) of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC)
provides that unless an application filed under Order XXI Rule 90 of the CPC is withdrawn,
a person shall not be entitled to make or prosecute an application under Order XXI Rule 89
of the CPC. In Shiv Prasad v. Durga Prasad,4 the contention of the Appellant therein that an
application filed under the aforesaid Rule 90 does not stand withdrawn until an order to the
effect is recorded by the Court, was not accepted. It was held that every applicant has a right
to unconditionally withdraw his application and his unilateral act in that behalf is sufficient.
No order of the Court is necessary permitting the withdrawal of the application. This Court
concluded that the act of withdrawal is complete as soon as the applicant intimates the Court
that he intends to withdraw the application. The High Court of Bombay in Anil Dinmani
Shankar Joshi v. Chief Officer, Panvel Municipal Council, Panvel5 followed the judgment of this
Court in Shiv Prasad (supra) and held that the said judgment is applicable to suits also. The High
Court recognized the unconditional right of the plaintiff to withdraw his suit and held that the
withdrawal would be 4 (1975) 1 SCC 405 5 AIR 2003 Bom. 238, 239 complete as soon as the
plaintiff files his purshis of withdrawal.
11. Order XXIII Rule 1 (1) of the CPC enables the plaintiff to abandon his suit or abandon a part
of his claim against all or any of the defendants. Order XXIII Rule 1 (3) of the CPC requires the
satisfaction of the Court for withdrawal of the suit by the plaintiff in case he is seeking liberty to
institute a fresh suit. While observing that the word abandonment in Order XXIII Rule 1 (1) of
the CPC is absolute withdrawal which is different from the withdrawal after taking permission
of the court, this Court held as follows6: 12. The law as to withdrawal of suits as enacted in the
present Rule may be generally stated in two parts:
—| 34 |—
(a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without
the permission of the court; in that case he will be precluded from suing again on the same
cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to
himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be
compelled to proceed with the suit; and
(b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court
to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty
being granted 6 K.S. Bhoopathy v. Kokila (2000) 5 SCC 458 by the Court enables the
plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC.
12. Order XXIII Rule 1 (1) of the CPC gives an absolute right to the plaintiff to withdraw his suit or
abandon any part of his claim. There is no doubt that Order XXIII Rule 1 of the CPC is applicable
to appeals as well and the Appellant has the right to withdraw his appeal unconditionally and if
he makes such an application to the Court, it has to grant it. 7 Therefore, the appeal is deemed to
have been withdrawn on 28.11.2011 i.e. the date of the filing of the application for withdrawal.
On 06.12.2011 which is the date of the marriage between the Appellant and the Respondent, Ms.
Rachna Aggarwal cannot be considered as a living spouse. Hence, Section 5 (i) is not attracted
and the marriage between the Appellant and the Respondent cannot be declared as void.
13. Sh. Sakha Ram Singh, learned Senior Counsel appearing for the Respondent placed reliance
on a judgment of this Court in Lila Gupta (supra) to submit that the marriage between the
Appellant and the 7 Bijayananda Patnaik v. Satrughna Sahu (1962) 2 SCR 538, 550 Respondent
held on 06.12.2011 is void as it was in violation of Section 15 of the Act. He relied upon the
concurring judgment of Justice Pathak in support of his submission that the findings pertaining
to Proviso to Section 15 cannot be made applicable to Section 15. He submitted that there is a
qualitative difference between the period of incapacity set out in the Proviso during which a
second marriage cannot be contracted and the bar for another marriage during the pendency of
an appeal. We have already noted that Justice Pathak refrained from expressing any view on the
expression of Section 15 of the Act.
However, the scope and purport of Section 15 of the Act arise for consideration in the present
case.
Interpretation of Section 15 Interpretation has been explained by Cross in Statutory
Interpretation8 as:
“The meaning that the Court ultimately attaches to the statutory words will frequently be
that which it believes members of the legislature attached to them, or the meaning which they
would have attached to the words had the situation before the Court been present to their
minds. Interpretation is the process by which the Court determines the meaning of a statutory
8 Cross Statutory Interpretation, Ed. Dr. John Bell & Sir George Ingale, Second Edition (1987)
provision for the purpose of applying it to the situation before it.
14. The Hindu Marriage Act is a social welfare legislation and a beneficent legislation and it has to
be interpreted in a manner which advances the object of the legislation. The Act intends to bring
about social reforms.9 It is well known that this Court cannot interpret a socially beneficial
legislation on the basis as if the words therein are cast in stone.10
—| 35 |—
15. The predominant nature of the purposive interpretation was recognized by this Court in Shailesh
Dhairyawan v. Mohan Balkrishna Lulla11 which is as follows:
33. We may also emphasise that the statutory interpretation of a provision is never static but is
always dynamic. Though the literal rule of interpretation, till some time ago, was treated as
the golden rule, it is now the doctrine of purposive interpretation which is predominant,
particularly in those cases where literal interpretation may not serve the purpose or may
lead to absurdity. If it brings about an end which is at variance with the purpose of statute,
that cannot be countenanced.
Not only legal process thinkers such as Hart and Sacks rejected intentionalism as a grand
strategy for statutory interpretation, and in its place they offered purposivism, this principle is
now widely applied by 9 Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi (1996)
4 SCC 76, para 68 10 Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1, para 40 11 (2016) 3 SCC
619 the courts not only in this country but in many other legal systems as well.
16. In Salomon v. Salomon & Co Ltd.12, Lord Watson observed that :
In a Court of Law or Equity, what the legislature intended to be done or not to be done can only
be legitimately ascertained from that which it has chosen to enact, either in express words or
by reasonable and necessary implication. In Black-Clawson International Ltd. v. Papierwerke
Waldhof-Aschaffenburg AG13, Lord Reid held that:
We often say that we are looking for the intention of Parliament, but that is not quite accurate.
We are seeking the meaning of the words which Parliament used. We are seeking not what
Parliament meant but the true meaning of what they said.
17. It is also relevant to take note of Dy. Custodian v. Official Receiver14 in which it was declared that
if it appears that the obvious aim and object of the statutory provisions would be frustrated by
accepting the literal construction suggested by the Respondent, then it may be open to the Court
to inquire whether an alternative construction which would serve the purpose of achieving the
aim and object of the Act, is reasonably possible .
12 [1897] AC 22 at 38 13 [1975] AC 591, p. 613 14 (1965) 1 SCR 220 at 225 F - G
18. Section 15 of the Act provides that it shall be lawful for either party to marry again after
dissolution of a marriage if there is no right of appeal against the decree. A second marriage
by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if
filed. If there is no right of appeal, the decree of divorce remains final and that either party to the
marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of
the appeal shall not be lawful. The object of the provision is to provide protection to the person
who has filed an appeal against the decree of dissolution of marriage and to ensure that the
said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that
would arise due to a second marriage during the pendency of the appeal, in case the decree of
dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to
a person who is contesting the decree of divorce.
19. Aggrieved by the decree of divorce, the Appellant filed an appeal and obtained a stay of the
decree. During the pendency of the appeal, there was a settlement between him and his former
spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His
—| 36 |—
intention was made clear by filing of the application for withdrawal. It cannot be said that he has
to wait till a formal order is passed in the appeal, or otherwise his marriage dated 06.12.2011
shall be unlawful. Following the principles of purposive construction, we are of the opinion that
the restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal
would not apply to a case where parties have settled and decided not to pursue the appeal.
20. It is not the case of the Appellant that the marriage dated 06.12.2011 is lawful because of the
interim order that was passed in the appeals filed by him against the decree of divorce. He
rested his case on the petition filed for withdrawal of the appeal. The upshot of the above
discussion would be that the denouement of the Family Court is correct and upheld, albeit for
different reasons. The conclusion of the High Court that the marriage dated 06.12.2011 is void
is erroneous. Hence, the judgment of the High Court is set aside.
21. Accordingly, the Appeal is allowed.
Per Hon’ble Mr. Justice S.A. Bobde :—

1. I am in agreement with the view taken by Nageswara Rao J. but it is necessary to state how the
question before us has already been settled by the decision in Lila Gupta v. Laxmi Narain and
Ors.1. Even when the words of the proviso were found to be prohibitory in clear negative terms
it shall not be lawful etc., this Court held that the incapacity to marry imposed by the proviso
did not lead to an inference of nullity, vide para 9 of Lila Gupta (supra). It is all the more difficult
to infer nullity when there is no prohibition; where there are no negative words but on the
other hand positive words like it shall be lawful. Assuming that a marriage contracted before it
became lawful to do so was unlawful and the words create a disability, it is not possible to infer
a nullity or voidness vide paras 9 (1978) 3 SCC 258 and 10 of Lila Gupta case. The Court must
have regard to the consequences of such an interpretation on children who might have been
conceived or born during the period of disability.
2. The observations in Lila Guptas case are wide. They are undoubtedly made in the context of the
proviso to sec 15 of the Hindu Marriage (Amendment) Act, 1976 2, since deleted. The proviso
opened with the prohibition that it shall not be lawful. This Court considered the question
whether a marriage contracted in violation of the proviso would be a nullity or void and came
to the conclusion that though the proviso is couched in prohibitory and negative language, in
the absence of an express provision it was not possible to infer nullity in respect of a marriage
contracted by a person under incapacity prescribed by the proviso.
What is held in essence is that if a provision of law prescribes an incapacity to marry and yet
the person marries while under that incapacity, the marriage would not be void in the absence
of an express provision that declares nullity. Quae incapacity imposed by statute, there is no
difference between an incapacity imposed by negative language such as it shall not be lawful or
an incapacity imposed by positive language like it shall be lawful (in certain conditions, in the
absence of which it is impliedly unlawful). It would thus appear that the law is already settled
by this Court that a marriage contracted during a prescribed period will not be void because it
—| 37 |—
was contracted under an incapacity. Obviously, this would Act 68 of 1976 have no bearing on
the other conditions of a valid marriage. The decision in Lila Gupta case thus covers the present
case on law.
3. In any event, in the present case we are satisfied that the appellants marriage was not subsisting
when he married again. He had filed an application for withdrawal of his appeal against the
decree for dissolution and had done nothing to contradict his intention to accept the decree of
dissolution.
qqq
—| 38 |—
AMARDEEP SINGH VERSUS HARVEEN KAUR

IN THE SUPREME COURT OF INDIA
Bench: Hon’ble Mr. Justice Adarsh Kumar Goel & Hon’ble Mr. Justice Uday Umesh Lalit
Amardeep Singh …Appellant
Versus
Harveen Kaur …Respondent
(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)
The question which arises for consideration in this appeal is whether the minimum period of six
months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion
for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any
exceptional situations.
In determining the question whether provision is mandatory or directory, language alone is not
always decisive. The Court has to have the regard to the context, the subject matter and the object
of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory
Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.as
follows:15 (2005) 4 SCC 480 “The study of numerous cases on this topic does not lead to formulation
of any universal rule except this that language alone most often is not decisive, and regard must be
had to the context, subject-matter and object of the statutory provision in question,in determining
whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No
universal rule can be laid down as to whether mandatory enactments shall be considered directory
only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to
try to get at the real intention of the legislature by carefully attending to the whole scope of the statute
to be considered.’ “ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J.
‘the court may consider inter alia, the nature and design of the statute, and the consequences which
would follow from construing it the one way or the other; the impact of other provisions whereby
the necessity of complying with the provisions in question is avoided; the circumstances,namely,
that the statute provides for a contingency of the non-compliance with the provisions; the fact
that the non-compliance with the provisions is or is not visited by some penalty; the serious or the
trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be
defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it
will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience
will be created to innocent persons without very much furthering the object of enactment, the same
will be construed as directory.”
• Applying the above to the present situation, we are of the view that where the Court dealing
with a matter is satisfied that a case is made out to waive the statutory period under Section
13B(2),it can do so after considering the following :
—| 39 |—
i) the statutory period of six months specified in Section 13B(2), in addition to the statutory
period of one year under Section 13B(1) of separation of parties is already over before the first
motion itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/
Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed
and there is no likelihood of success in that direction by any further efforts;
iii) the parties have genuinely settled their differences including alimony, custody of child or any
other pending issues between the parties;
iv) the waiting period will only prolong their agony. The waiver application can be filed one week
after the first motion giving reasons for the prayer for waiver. If the above conditions are
satisfied, the waiver of the waiting period for the second motion will be in the discretion of the
concerned Court. Since we are of the view that the period mentioned in Section 13B(2) is not
mandatory but directory, it will be open to the Court to exercise its discretion in the facts and
circumstances of each case where there is no possibility of parties resuming cohabitation and
there are chances of alternative rehabilitation.
JUDGMENT
Hon’ble Mr. Justice Adarsh Kumar Goel :—
1. The question which arises for consideration in this appeal is whether the minimum period of six
months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion
for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in
any exceptional situations.
Signature Not Verified Digitally signed by SWETA DHYANI Date: 2017.09.12 16:23:52 IST
Reason:
2. Factual matrix giving rise to this appeal is that marriage between the parties took place on 16
th January, 1994 at Delhi. Two children were born in 1995 and 2003 respectively. Since 2008
the parties are living separately. Disputes between the parties gave rise to civil and criminal
proceedings. Finally, on 28 th April, 2017 a settlement was arrived at to resolve all the disputes
and seeks divorce by mutual consent. The respondent wife is to be given permanent alimony of
Rs.2.75 crores. Accordingly, HMA No. 1059 of 2017 was filed before the Family Court (West),
Tis Hazari Court, New Delhi and on 8 th May, 2017 statements of the parties were recorded. The
appellant husband has also handed over two cheques of Rs.50,00,000/-, which have been duly
honoured, towards part payment of permanent alimony. Custody of the children is to be with
the appellant. They have sought waiver of the period of six months for the second motion on the
ground that they have been living separately for the last more than eight years and there is no
possibility of their re union. Any delay will affect the chances of their resettlement. The parties
have moved this Court on the ground that only this Court can relax the six months period as per
decisions of this Court.
3. Reliance has been placed inter alia on decision of this Court in Nikhil Kumar vs. Rupali Kumar
1 wherein the statutory period of six months was waived by this Court under Article 142 of the
Constitution and the marriage was dissolved.
—| 40 |—
The text of Section 13B is as follows:

“13-B. Divorce by mutual consent.— (1) Subject to the provisions of this Act a petition for
dissolution of marriage by a decree of divorce may be presented to the district court by both
the parties to a marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have
been living separately for a period of one year or more, that they have not been able to live
together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of
the presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the meantime, the court
shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks
fit, that a marriage has been solemnized and that the averments in the petition are true,
pass a decree of divorce declaring the marriage to be dissolved with effect from the date of
the decree.”
4. There is conflict of decisions of this Court on the question whether exercise of power under
Article 142 to waive the statutory period under Section 13B of the Act was appropriate. In 1
(2016) 13 SCC 383 Manish Goel versus Rohini Goel2, a Bench of two-Judges of this Court held
that jurisdiction of this Court under Article 142 could not be used to waive the statutory period
of six months for filing the second motion under Section 13B, as doing so will be passing an
order in contravention of a statutory provision. It was observed :
“14. Generally, no court has competence to issue a direction contrary to law nor can the court
direct an authority to act in contravention of the statutory provisions. The courts are meant to
enforce the rule of law and not to pass the orders or directions which are contrary to what has
been injected by law. (Vide State of Punjab v. Renuka Singla[(1994) 1 SCC 175], State of U.P. v.
Harish Chandra [(1996) 9 SCC 309], Union of India v. Kirloskar Pneumatic Co. Ltd. [(1996)
4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and
Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SC 560]
15. A Constitution Bench of this Court in Prem Chand Garg v. Excise Commr.[AIR 1963 SCC
996] held as under: (AIR p. 1002, para 12) “12. … An order which this Court can make in order
to do complete justice between the parties, must not only be consistent with the fundamental
rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive
provisions of the relevant statutory laws.” (emphasis supplied) The Constitution Benches of this
Court in Supreme Court Bar Assn. v. Union of India [(1998) 4 SCC 409] and E.S.P. Rajaram v.
Union of India [(2001) 2 SCC 186] held that under Article 142 of the Constitution, this Court
cannot altogether ignore the substantive provisions of a statute and pass orders concerning an
issue which can be settled only 2 (2010) 4 SCC 393 through a mechanism prescribed in another
statute. It is not to be exercised in a case where there is no basis in law which can form an edifice
for building up a superstructure.”
5. This Court noted that power under Article 142 had been exercised in cases where the Court
found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken
down irretrievably. This power was also exercised to put quietus to all litigations and to save the
parties from further agony 3. This view was reiterated in Poonam versus Sumit Tanwar4.
—| 41 |—
6. In Neeti Malviya versus Rakesh Malviya5, this Court observed that there was conflict of decisions
in Manish Goel (supra) and Anjana Kishore versus Puneet Kishore6. The matter was referred
to bench of three-Judges. However, since the matter became infructuous on account of grant of
divorce in the meanwhile7.
3 Para 11 ibid, noting earlier decisions in Romesh Chander v. Savitri (1995) 2 SCC 7; Kanchan
Devi v. Promod Kumar Mittal (1996) 8 SCC 90; Anita Sabharwal v. Anil Sabharwal (1997) 11
SCC 490; Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226; Kiran v. Sharad Dutt (2000)10
SCC 243; Swati Verma v. Rajan Verma (2004) 1 SCC 123; Harpit Singh Anand v. State of W.B.
(2004) 10 SCC 505; Jimmy Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410;
Durga Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu Kohli
(2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220; Rishikesh
Sharma v. Saroj Sharma (2007) 2 SCC 263; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 and
Satish Sitole v. Ganga (2008) 7 SCC 734 4 (2010) 4 SCC 460 5 (2010) 6 SCC 413 6 (2002) 10 SCC
194 7 Order dated 23rd August, 2011 in Transfer Petition (Civil)No. 899 of 2007
7. Without any reference to the judgment in Manish Goel (supra), power under Article 142 of the
Constitution has been exercised by this Court in number of cases 8 even after the said judgment.
8. We find that in Anjana Kishore (supra), this Court was dealing with a transfer petition and
the parties reached a settlement. This Court waived the six months period under Article 142
in the facts and circumstances of the case. In Anil Kumar Jain versus Maya Jain9, one of the
parties withdrew the consent. This Court held that marriage had irretrievably broken down and
though the civil courts and the High Court could not exercise power contrary to the statutory
provisions, this Court under Article 142 could exercise such power in the interests of justice.
Accordingly the decree for divorce was granted. 8 Priyanka Singh v. Jayant Singh(2010) 15 SCC
390; Sarita Singh v. Rajeshwar Singh (2010) 15 SCC 374; Harpreet Singh Popli v. Manmeet Kaur
Pople (2010) 15 SCC 316; Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234; Veena v.
State (Govt of NCT of Delhi) (2011) 14 SCC 614; Priyanka Khanna v. Amit Khanna (2011) 15
SCC 612; Devinder Singh Narula v. Meenakshi Nangia (2012) 8 SCC 580; Vimi Vinod Chopra v.
Vinod Gulshan Chpra (2013) 15 SCC 547; Priyanka Chawla v. Amit Chawla (2016) 3 SCC 126;
Nikhil Kumar v. Rupali Kumar (2016) 13 SCC 383 9 (2009) 10 SCC 415
9. After considering the above decisions, we are of the view that since Manish Goel (supra) holds
the field, in absence of contrary decisions by a larger Bench, power under Article 142 of the
Constitution cannot be exercised contrary to the statutory provisions, especially when no
proceedings are pending before this Court and this Court is approached only for the purpose of
waiver of the statute.
10. However, we find that the question whether Section 13B(2) is to be read as mandatory or
discretionary needs to be gone into. In Manish Goel (supra), this question was not gone into as
it was not raised. This Court observed :
“23. The learned counsel for the petitioner is not able to advance arguments on the issue as to
whether, statutory period prescribed under Section 13-B(1) of the Act is mandatory or directory
and if directory, whether could be dispensed with even by the High Court in exercise of its writ/
appellate jurisdiction.”
11. Accordingly, vide order dated 18th August, 2017, we passed the following order :
—| 42 |—
“List the matter on 23rd August, 2017 to consider the question whether provision of Section 13B
of the Hindu Marriage, Act, 1955 laying down cooling off period of six months is a mandatory
requirement or it is open to the Family Court to waive the same having regard to the interest of
justice in an individual case.
Mr. K.V. Vishwanathan, senior counsel is appointed as Amicus to assist the Court. Registry to
furnish copy of necessary papers to learned Amicus”.
12. Accordingly, learned amicus curiae has assisted the Court. We record our gratitude for the
valuable assistance rendered by learned amicus who has been ably assisted by S/Shri Abhishek
Kaushik, Vrinda Bhandari and Mukunda Rao Angara, Advocates.
13. Learned amicus submitted that waiting period enshrined under Section 13(B)2 of the Act
is directory and can be waived by the court where proceedings are pending, in exceptional
situations. This view is supported by judgments of the Andhra Pradesh High Court in K.
Omprakash vs. K. Nalini 10, Karnataka High Court in Roopa Reddy vs. Prabhakar Reddy11,
Delhi High Court in Dhanjit Vadra vs. Smt. Beena Vadra12 and Madhya Pradesh High Court
in Dinesh Kumar Shukla vs. Smt. Neeta13. Contrary view has been taken by Kerala High Court
in M. Krishna Preetha vs. Dr. Jayan 10 AIR 1986 AP 167 (DB) 11 AIR 1994 Kar 12 (DB) 12 AIR
1990 Del 146 13 AIR 2005 MP 106 (DB) Moorkkanatt14. It was submitted that Section 13B(1)
relates to jurisdiction of the Court and the petition is maintainable only if the parties are living
separately for a period of one year or more and if they have not been able to live together and
have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the
discretion to waive the period is a guided discretion by consideration of interest of justice where
there is no chance of reconciliation and parties were already separated for a longer period or
contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus,
the Court should consider the questions:
i) How long parties have been married?
ii) How long litigation is pending?
iii) How long they have been staying apart?
iv) Are there any other proceedings between the parties?
v) Have the parties attended mediation/conciliation?
vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of
child or any other pending issues between the parties?
14. AIR 2010 Ker 157 14. The Court must be satisfied that the parties were living separately for more
than the statutory period and all efforts at mediation and reconciliation have been tried and
have failed and there is no chance of reconciliation and further waiting period will only prolong
their agony.
15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it
stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved
by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of
amendment in the year 1976, the concept of divorce by mutual consent was introduced. However,
Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after
—| 43 |—
filing of the divorce petition by mutual consent. The said period was laid down to enable the
parties to have a rethink so that the court grants divorce by mutual consent only if there is no
chance for reconciliation.
16. The object of the provision is to enable the parties to dissolve a marriage by consent if the
marriage has irretrievably broken down and to enable them to rehabilitate them as per available
options. The amendment was inspired by the thought that forcible perpetuation of status of
matrimony between unwilling partners did not serve any purpose. The object of the cooling
off the period was to safeguard against a hurried decision if there was otherwise possibility of
differences being reconciled. The object was not to perpetuate a purposeless marriage or to
prolong the agony of the parties when there was no chance of reconciliation. Though every effort
has to be made to save a marriage, if there are no chances of reunion and there are chances of
fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better
option.
17. In determining the question whether provision is mandatory or directory, language alone is not
always decisive. The Court has to have the regard to the context, the subject matter and the object
of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory
Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and
ors.15as follows:
15 (2005) 4 SCC 480 “The study of numerous cases on this topic does not lead to formulation
of any universal rule except this that language alone most often is not decisive, and regard
must be had to the context, subject-matter and object of the statutory provision in question,
in determining whether the same is mandatory or directory. In an oft-quoted passage Lord
Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be
considered directory only or obligatory with an implied nullification for disobedience. It is the
duty of courts of justice to try to get at the real intention of the legislature by carefully attending
to the whole scope of the statute to be considered.’ “ ‘For ascertaining the real intention of the
legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of
the statute, and the consequences which would follow from construing it the one way or the
other; the impact of other provisions whereby the necessity of complying with the provisions
in question is avoided; the circumstances, namely, that the statute provides for a contingency of
the non-compliance with the provisions; the fact that the non-compliance with the provisions
is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom;
and above all, whether the object of the legislation will be defeated or furthered’. If object of the
enactment will be defeated by holding the same directory, it will be construed as mandatory,
whereas if by holding it mandatory serious general inconvenience will be created to innocent
persons without very much furthering the object of enactment, the same will be construed as
directory.”
18. Applying the above to the present situation, we are of the view that where the Court dealing with
a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2),
it can do so after considering the following :
—| 44 |—
i) the statutory period of six months specified in Section 13B(2), in addition to the statutory
period of one year under Section 13B(1) of separation of parties is already over before the
first motion itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3
CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties
have failed and there is no likelihood of success in that direction by any further efforts;
iii) the parties have genuinely settled their differences including alimony, custody of child or
any other pending issues between the parties;
iv) the waiting period will only prolong their agony.
19. The waiver application can be filed one week after the first motion giving reasons for the prayer
for waiver.
20. If the above conditions are satisfied, the waiver of the waiting period for the second motion will
be in the discretion of the concerned Court.
21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but
directory, it will be open to the Court to exercise its discretion in the facts and circumstances of
each case where there is no possibility of parties resuming cohabitation and there are chances of
alternative rehabilitation.
22. Needless to say that in conducting such proceedings the Court can also use the medium of video
conferencing and also permit genuine representation of the parties through close relations such
as parents or siblings where the parties are unable to appear in person for any just and valid
reason as may satisfy the Court, to advance the interest of justice. 23. The parties are now at
liberty to move the concerned court for fresh consideration in the light of this order.
The appeal is disposed of accordingly.
qqq
—| 45 |—
SWAPNANJALI SANDEEP PATIL VERSUS SANDEEP ANANDA PATIL

THE SUPREME COURT OF INDIA
Bench: Hon’ble Justice Mr. L. Nageswara Rao And Hon’ble Justice Mr. M. R. Shah
Swapnanjali Sandeep Patil………Appellant(S)
Versus
Sandeep Ananda Patil………Respondent(S)
AIR 2019 SC 1500
(ARISING OUT OF SLP (C) NO.25080 OF 2016)
Decided On 16th July, 2019
JUDGMENT
Hon’ble Justice Mr. M.R. SHAH
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.03.2016
passed by the High Court of Judicature at Bombay in First Appeal No.342 of 2015 by which the
High Court has dismissed the said appeal filed by the original applicant and has confirmed the
judgment and decree dated 01.12.2014 passed by the learned District Judge, Pune in Marriage
Petition No.55 of 2012 by which the learned District Judge dismissed the said marriage petition,
the original applicant/appellant-wife has preferred the present appeal.
3. The facts leading to the present appeal in nutshell are as under:
(a) That the appellant herein married with respondent– husband on 05.04.2010.
(b) That their marriage was an inter-caste marriage.
(c) According to the appellant-wife the respondent-husband started harassing her in various
ways.
(d) That he used to come in a drunken state and he withdrew money from the bank account
of the appellant by using her credit card. Therefore, on 30.06.2012 the appellant left the
matrimonial house and took shelter in her parental home.
(e) According to the appellant-wife, while gathering her personal belongings for leaving
the house, the appellant came across a zerox copy of Marriage Dissolution Deed, dated
14.12.2009 between the respondent and his first wife.
(f) She realized that the respondent had married her without obtaining the decree of divorce
from the competent court and that at that time of marriage the respondent was having a
living spouse and that he has suppressed the fact of the first marriage from the appellant.
(g) Therefore, the appellant-wife filed Marriage Petition No.55 of 2012 in the Court of District
Court, Pune under Section 25 of the Special Marriage Act, 1954, for declaration of marriage
as null and void.
—| 46 |—
4. Thus, according to the appellant, the respondent obtained her consent for marriage by fraud;
the appellant was ignorant to the first marriage of the respondent at the time of marriage; the
respondent, at the time of registration of marriage, in the document of marriage has declared
himself as bachelor; that he concealed the fact of his earlier marriage which was in existence on
the date of marriage of the appellant with the respondent; and that at the time of her marriage
with the respondent, the respondent’s first marriage was subsisting and therefore according to
the appellant, she is entitled for declaration of nullity of marriage.
5. The application was vehemently opposed by the respondent-husband. According to the
respondent-husband, prior to his marriage with the applicant, they were having a love affair;
that the respondent married with the daughter of his maternal uncle on 08.03.2007 at Bhusawal
and the applicant was in knowledge of the said fact. According to the respondent, after his
marriage he started residing with his wife at Dehu Road. According to the respondent, at the
time of their marriage on 05.04.2010, the applicant was in knowledge of his first marriage and
despite the same she married with him. According to the respondent, at the time of marriage,
as such, he was not at all willing to marry to the applicant, however, because of the pressure of
the applicant and her threat to commit suicide he was compelled to marry the applicant. It was
also the case on behalf of the respondent-husband that there was a customary divorce between
the respondent and his first wife, which was prior to the solemnization of the marriage between
the applicant and the respondent. Therefore, it was the specific case on behalf of the respondent-
husband that neither there was any fraud nor there was any suppression of his first marriage by
the respondent-husband and therefore it was prayed to dismiss the petition.
6. The learned trial court framed the following issues :
“(1) Whether marriage of petitioner and respondent performed on 5.4.2010 under Special
Marriage Act by suppressing previous marriage of respondent, performed on 8.3.2007
with Savita Patil in the said marriage was in existence on the date of marriage of party?
(2) Whether consent of petitioner has been sought by respondent for the above marriage by
suppressing previous marriage?
(3) Whether respondent has meted out mental cruelty to petitioner?
(4) Whether petitioner has forced the respondent to perform marriage with her by giving
threat of suicide having knowledge of substitution of marriage of respondent with Savita
Patil?
(5) Whether the petitioner justified decree of divorce?
(6) What order?”
7. That the learned trial court dismissed the marriage petition by observing that as the applicant is
seeking nullity of marriage only on the grounds that she was ill-treated by the respondent and on
the date of marriage the respondent was having a subsisting first marriage and her consent to the
marriage was obtained by fraud, none of the above grounds is a ground for nullity of marriage
as per the provisions of the Section 25 of the Special Marriage Act, 1954 (hereinafter referred to
as the ‘Act’). The learned trial court therefore did not go into the details of the allegations and
counter-allegations made in the plaint and the written statement on the ground that the case of
—| 47 |—
the applicant does not fall in any of the provisions enumerated under Section 25 of the Act and
therefore the applicant is not entitled for a decree of nullity of marriage.
8. Learned trial court also observed that even the application was out of period of limitation as
according to the provisions of Section 25 of the Act, the period of limitation is one year after the
coercion had ceased or, as the case may be, the fraud had been discovered or the petitioner has
with his or her free consent lived with other party to the marriage as husband and wife after the
coercion had ceased or, as the case may be, the fraud had been discovered.
9. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial
court dismissing her marriage petition, the appellant-wife preferred the appeal before the
Bombay High Court bearing First Appeal No.342 of 2015. Before the High Court the grievance
made on behalf of the appellant was that the district court has decided the issue of limitation
without framing the issue on that ground. It was submitted that since no issue was framed, the
appellant did not get an opportunity to lead the evidence and, therefore, first she was deprived
of an opportunity of leading the evidence to show the fact as regards the knowledge of the earlier
marriage of respondent, and the same has not been specifically pleaded anywhere. Therefore, it
was submitted that in the absence of any such pleadings, there could not have been any evidence
as regards the fact of knowledge. The High Court did not accept the same by observing that
though ordinarily in the absence of framing an issue and giving an opportunity to the parties
to lead evidence, the issue cannot be decided, in the present case, there is sufficient evidence
before the court that the appellant was, in fact, well aware of the fact of earlier marriage of
the respondent and the customary divorce obtained by him and, therefore, the uncontroverted
evidence of the respondent has established that in fact the appellant was the cause of divorce
of the respondent from his first wife. By observing so, the High Court has dismissed the first
appeal.
10. Feeling aggrieved and dissatisfied with the impugned judgment passed by the High Court, the
appellant-wife has preferred the present appeal.
10.1 Shri Vinay Navare, learned Counsel has appeared on behalf of the appellant-wife and Shri
Sushil Kumar Jain, learned Senior Advocate has appeared as an Amicus Curiae on behalf
of the respondent-husband.
11. Shri Navare, learned Advocate has vehemently submitted that, in the present case, both the
learned trial court as well as the High Court have not at all considered Section 24 of the Act.
Relying upon Section 24 of the Act, it is vehemently submitted by Shri Navare that, at the time
of marriage between the appellant and the respondent, the first marriage of the respondent with
his first wife was subsisting and therefore the marriage between the appellant and respondent
was a nullity/void marriage. It is submitted that, in the present case, neither the district court nor
the High Court had considered Section 24 of the Act and only considered Section 25 of the Act.
11.1 Further, it is vehemently submitted by Shri Navare that though it was the case on behalf
of respondent-husband that there was a customary divorce between the respondent-
husband and his first wife, which was prior to the marriage between the appellant and
the respondent, neither there was any specific issue framed by the learned trial court nor
even the respondent-husband led any evidence and prayed for the customary divorce
between the respondent-husband and his first wife. It is submitted, therefore, in absence
—| 48 |—
of proving customary divorce between the respondent-husband and his first wife, there
was a subsisting marriage between the respondent-husband and his first wife at the time
of the marriage between the appellant and the respondent and therefore Section 24 read
with Section 4 of the Act was required to be considered.
11.2 It is submitted by learned advocate appearing on behalf of the appellant-wife that so far
as for the declaration sought for in view of Section 24 of the Act is concerned, there is no
period of limitation provided, as a declaration for a void marriage can be sought at any
time, as the void marriage as is void and nullity. It is submitted therefore the limitation
provided under Section 25 of the Act shall not be applicable in a case where the declaration
for nullity of marriage is sought in view of Section 24 read with Section 4 of the Act is
concerned.
11.3 Making the above submissions, it is prayed to allow the present appeal.
12. Present appeal is vehemently opposed by Shri Jain, learned Senior advocate appearing as an
Amicus Curiae on behalf of the respondent-husband. It is vehemently submitted by Shri Jain
that, in the facts and circumstances of the case, both the learned trial court as well as the High
Court have rightly dismissed the marriage petition and have rightly refused to grant the relief of
declaration of nullity of marriage between the appellant and the respondent, considering Section
25 of the Act and by observing that the marriage petition was barred by period of limitation, as
provided under Section 25 of the Act.
12.1 It is further submitted by Shri Jain that it was the specific case on behalf of the respondent-
husband that, at the time of marriage, the appellant was in the knowledge of the first
marriage of the respondent with his first wife. It is submitted that as such she was the
root cause for the divorce between the respondent and his first wife. It is submitted that
as such the customary divorce had taken place between the respondent-husband and his
first wife much prior to the date of marriage between the appellant and the respondent.
It is submitted, therefore, when there was already a dissolution of marriage between the
respondent and his first wife, by way of customary divorce, which was much prior to the
marriage between the appellant and the respondent and, therefore the marriage between
the appellant and the respondent cannot be said to be void under Section 24 of the Act.
12.2 Shri Jain, learned Senior Counsel has heavily relied upon the decision of this Court in the
case of Ass Kaur (Smt) (Deceased) by LRs v. Kartar Singh (Dead) by LRs (2007) 5 SCC
561 and the case of Laxmibai (Dead) through LRs v. Bhagwantbuva (Dead) through LRs
(2013) 4 SCC 97.
12.3 Making the above submissions, it is prayed to dismiss the present appeal.
13. Heard the learned counsel appearing on behalf of the respective parties at length.
13.1 At the outset it is required to be noted that the appellant filed the marriage petition for a
declaration to declare her marriage with the respondent as null and void on the ground
that, at the time of their marriage, the first marriage of the respondent with his first wife
was subsisting; that the respondent committed a fraud and suppressed the material fact of
his first marriage, and in fact, in the registration form he stated himself to be a bachelor.
On the other hand, it was the case on behalf of the respondent that neither there was any
—| 49 |—
suppression nor any fraud committed by him. It was the case on behalf of the respondent
that the appellant was in the knowledge of his first marriage and that as such there was a
customary divorce between the respondent and his first wife, which was much prior to the
marriage between the appellant and the respondent. That the learned trial court dismissed
the marriage petition on the ground that none of the grounds stated in the plaint for
declaration of the marriage between the appellant and respondent as null and void, would
fall within Section 25 of the Act and that, even otherwise, the marriage petition is beyond
the period of limitation as prescribed in explanation to Section 25 of the Act. It is required
to be noted that, however, neither the trial court nor even the High Court at all considered
Section 24 read with Section 4 of the Act nor considered the case on behalf of the appellant
that as at the time of her marriage with the respondent, the respondent’s first marriage was
subsisting and therefore the marriage between the appellant and the respondent would be
void and nullity.
13.2 As per Section 4 of the Act, the marriage between any two persons may be solemnized
under the Special Marriage Act if at the time of the marriage neither party has a spouse
living. Section 24 of the Act provides that any marriage solemnized under the Special
Marriage Act shall be null and void and may, on a petition presented by either party
thereto against the other party, be so declared by a decree of nullity if any of the conditions
specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled. Clause (a) of
Section 4 provides that neither party shall have a spouse living at the time of marriage.
Therefore, considering Section 24 read with Section 4 of the Act, if at the time of marriage
either of the party has spouse living, then the said marriage is a void marriage and a
decree of nullity can be passed on a petition presented by either party thereto against the
other party. No period of limitation is prescribed so far as presentation of petition for
declaration to declare a marriage being nullity/void marriage, under Section 24 of the Act
and rightly so, as once the marriage is void the same is a nullity and at any time the same
can be declared as nullity being a void marriage. Therefore, both the trial court as well
as the High Court have committed an error in observing that the marriage petition was
barred by limitation. While holding so, both the trial court as well as the High Court had
considered first proviso to Section 25 of the Act. In the facts and circumstances of the case,
we are of the opinion that Section 25 of the Act shall not be applicable and Section 24 of
the Act would be applicable which does not provide for any period of limitation like first
proviso to Section 25 of the Act.
14. Now, so far as the submission on behalf of the respondent-husband that there was already
a customary divorce between him and his first wife, which was much prior to the marriage
between the appellant and the respondent and that the appellant was in the knowledge of his
first marriage is concerned, at the outset, it is required to be noted that as such there is no specific
issue framed by the learned trial court on the alleged customary divorce between the respondent
and his first wife. Even there was no specific issue framed with respect to the limitation. There
was not even an issue framed with respect to the knowledge of the appellant that she was having
the knowledge of the first marriage of the respondent with his first wife. In absence of any
such issue framed, the learned trial court as well as the High Court have committed a grave
error in observing that there was a customary divorce between the respondent-husband and his
first wife. There must be a specific issue framed by the Court on the aforesaid and the same is
—| 50 |—
required to be established and proved by leading evidence. In the present case, neither an issue
has been framed nor even the respondent husband has led any evidence and proved that there
was a customary divorce between respondent and his first wife. Even the respondent-husband
was required to prove that such a customary divorce was permissible in their caste/community.
In the absence of any such issue or any evidence, the Courts below were not justified in observing
that there was a customary divorce between the respondent and his first wife. Therefore, in
absence of the above, it can be said that at the time of marriage between the appellant and
the respondent, the respondent had a living spouse and, therefore, considering Section 24 read
with Section 4 of the Act, the marriage between the appellant and respondent was void and the
appellant was entitled to a decree of nullity at her instance. Therefore, both the Courts below
have materially erred in rejecting the marriage petition. For the reasons stated above, we are
of the opinion that the appellant is entitled to a decree of nullity of the marriage between the
appellant and the respondent.
15. In view of the above and for the reasons stated above, the present appeal succeeds. The
impugned judgment and order passed by the High Court dated 09.03.2016 passed in First
Appeal No.342/2015, as well as the judgment and decree passed by the learned district court,
dismissing the marriage petition, are hereby quashed and set aside. The Marriage Petition No.55
of 2012 is hereby decreed and there shall be a decree of nullity of the marriage of the appellant-
wife with the respondent-husband, solemnized on 05.04.2010 before the Marriage Officer, Pune.
Consequently, the marriage between the appellant-wife and the respondent-husband solemnized
on 05.04.2010 before the Marriage Officer, Pune is hereby declared as null and void. No costs.
qqq
—| 51 |—
SAMAR KUMAR ROY (DEAD) THROUGH LEGAL REPRESENTATIVE

(MOTHER) VERSUS JHARNA BERA
Bench : Hon’ble Mr. Justice Rohinton Fali Nariman and Hon’ble Mr. Justice Sanjay Klshan Kaul
Samar Kumar Roy (Dead) Through Legal Representative (Mother) . . Appellant;
Versus
Jharna Bera .. Respondent.
Decided on September 5, 2017
Specific Relief Act, 1963 — S. 34 — Suit for declaration of legal character of parties in regard to their
alleged marriage can be filed under S. 34 by plaintiff and on his death can be continued by his LR at
behest of plaintiff — Nature of such suit — Effect, if any, of Ss. 7 and 8, Family Courts Act, 1984 on
jurisdiction of ordinary civil court to entertain such declaratory suit
— Plaintiff sought declaration that defendant was not his legally married wife and that she had no
right to claim him as her husband as his alleged marriage with defendant was not legal and valid, and
thus claimed a permanent injunction restraining defendant from claiming plaintiff as her husband
and temporary injunction — Suit not based on any ground specified under S. 11 or S. 12 of Hindu
Marriage Act or under Special Marriage Act, 1954 — After death of plaintiff, his mother applied
under Or. 22 R. 3 CPC to be added as LR of plaintiff — Held, suit was in substance one filed under
S. 34, hence maintainable at behest of deceased plaintiff — Suit having not been filed under Hindu
Marriage Act or Special Marriage Act, civil suit under S. 34 not barred by Ss. 7 and 8 of Family Court
Act — High Court in revision erred in setting aside order allowing application for substitution of LR
on ground that after death of plaintiff, no right to sue survived in favour of plaintiff ’s mother
— Family and Personal Laws — Judicial Intervention/Family Courts/ Judges/Officers — Family
Courts Act, 1984 — Ss. 7 and 8 — Exclusion of civil court’s jurisdiction — Civil court’s jurisdiction
under S. 34 of Specific Relief Act in respect of suits or proceedings between parties which are not filed
under Hindu Marriage Act or Special Marriage Act not barred under S. 8 — In absence of express bar,
exclusion of civil court’s jurisdiction should not be readily inferred — Hindu Marriage Act, 1955 — Ss.
12 and 11 — Special Marriage Act, 1954 — Ss. 31 and 27 — Civil Procedure Code, 1908, S. 9
Held:
The first question that needs to be decided is as to whether a suit which is, in substance, a suit filed
under Section 34 of the Specific Relief Act, is maintainable at the behest of a legal representative of
a dead plaintiff. The High Courts have uniformly taken the view that a suit for declaration of a legal
character filed under Section 34 can be filed by a third party plaintiff, or continued at the behest of
the legal representative of a dead plaintiff. In Krishna Pal, 1982 SCC OnLine Cal 120, a Single Judge
of the Calcutta High Court observed “... the plaintiff has chosen not to pray for any relief either by
way of annulment of decree of nullity or by way of a decree for dissolution of the alleged marriage.
The plaint filed by him cannot be considered to be a petition under the Hindu Marriage Act. The
—| 52 |—
plaintiff has sought for certain declaration regarding the status of the parties and for consequential
reliefs and the learned Munsif has jurisdiction under the Specific Relief Act to consider whether the
plaintiff has made out any case for obtaining such discretionary declaratory and consequential reliefs.”
In Sasanka Sekhar Basu, 1993 SCC OnLine Cal 48, the Calcutta High Court observed: “In the instant
case, although the petitioner inter alia prayed for a declaration that the marriage between the parties
was void, the same will not make the plaint ipso facto a petition under the Hindu Marriage Act within
the meaning of Section 19 of the said Act. Under Sections 11 and 12 of the Hindu Marriage Act, the
circumstances under which a petition can be filed for annulment of marriage on the ground that the
same is void are clearly specified. But in the instant case, such declaration that the marriage is void
has not been asked for by the plaintiff on any of such grounds on which such an annulment can be
obtained under Section 12 or even under Section 11 of the said Act. The instant suit really appears to
be on the face of the plaint, a suit for declaration as to the status of the parties.” (Paras 6, 10 and 12)
Krishna Pal v. Ashok Kumar Pal, 1982 SCC OnLine Cal 120 : (1982) 2 Cal LJ 366; Tapash Kumar
Moitra v. Pratima Roy Chowdhury, (1984-85) 89 CWN 671; Sasanka Sekhar Basu v. Dipika Roy, 1993
SCC OnLine Cal 48 : AIR 1993 Cal 203; Harmohan Senapati v. Kamala Kumari Senapati, 1978 SCC
OnLine Ori 105 : AIR 1979 Ori 51; Ram Pyari v. Dharam Das, 1983 SCC OnLine All 652 : AIR 1984
All 147; Lajya Devi v. Kamla Devi, 1992 SCC OnLine J&K 22 : AIR 1993 J&K 31, approved Har-Shefi
v. Har-Shefi, 1953 P 161 : (1953) 2 WLR 690 (CA); NoorJehan Begum v. Eugene Tiscenko, 1941 SCC
OnLine Cal 221 : AIR 1942 Cal 325, cited
An allied question that arises is as to whether suits of the present kind would be barred under any
provision of law. From Sections 7 and 8 of the Family Courts Act it is clear that a suit or proceeding
between parties to a marriage for a decree of nullity or restitution of conjugal rights or judicial
separation or dissolution of marriage, all have reference to suits or petitions that are filed under
the Hindu Marriage Act and/or Special Marriage Act for the aforesaid reliefs. There is no reference
whatsoever to suits that are filed for declaration of a legal character under Section 34 of the Specific
Relief Act. The examination of the remedies provided and the scheme of the Hindu Marriage Act and
of the Special Marriage Act show that the statute creates special rights or liabilities and provides for
determination of rights relating to marriage. The Acts do not lay down that all questions relating to
the said rights and liabilities shall be determined only by the Tribunals which are constituted under
the said Act. Section 8(a) of the Family Courts Act excludes the civil court’s jurisdiction in respect of
a suit or proceeding which is between the parties and filed under the Hindu Marriage Act or Special
Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights
or judicial separation. It does not purport to bar the jurisdiction of the civil court if a suit is filed
under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged
marriage. Also an exclusion of the jurisdiction of the civil courts is not readily inferred. Given the
line of judgments referred to by the High Courts, and given the fact that a suit for declaration as to
legal character which includes the matrimonial status of parties to a marriage when it comes to a
marriage which allegedly has never taken place either de jure or de facto, it is clear that the civil court’s
jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by
any law. (Paras 14 to 16)
Hon’ble Mr. Justice Rohinton Fali Nariman.— Leave granted. The present case arises out of a title
suit filed in January 2006 by one Samar Kumar Roy against Smt Jharna Bera. The suit is instituted as a
—| 53 |—
title suit under Section 34 of the Specific Relief Act, 1963 for a declaratory decree, and under Section
38 of the Specific Relief Act, 1963 for perpetual injunction.
2. According to the plaintiff, the father of the defendant was a senior employee under the Directorate
of Employment Exchange, Government of West Bengal. The plaintiff was a junior employee
under the same Directorate. According to the plaintiff, by blackmail and coercion, a show of
marriage was arranged by the defendant’s father with the plaintiff by registration of the said
marriage under the Special Marriage Act, 1954. The averments in the plaint are that no essential
ceremonies of a Hindu marriage were performed and that there was no consummation of the
said marriage thereafter. After narrating a litany of wrongs by the defendant, the plaintiff asked
for the following reliefs:
“A. A decree of declaration that the defendant is not legally married wife of the plaintiff
and that she has no right to claim the plaintiff as her husband inasmuch as the alleged
marriages between the plaintiff and the defendant are not legal, valid and tenable in
law;
B. Permanent injunction against the defendant restraining her from claiming the plaintiff
as her husband and disturbing the plaintiff at his office, on the way of the plaintiff
going to office and coming back home;
C. Temporary injunction;
D. For such other relief or reliefs, the plaintiff is entitled to in law and equity.”
3. A written statement was filed by the present respondent in the said suit, denying all the allegations
contained therein. While the said suit was pending, the plaintiff died on 10-10-2012. On 19-12-
2012, the plaintiff ’s mother applied under Order 22 Rule 3 of the Code of Civil Procedure, 1908,
to be added as a legal representative of the plaintiff. By an order dated 17-4-2013, the plaintiffs
mother was so substituted. Against the said order, a revision was filed, and by the impugned
order dated 15-10-201514, the order dated 17-4-2013 was set aside, it being held that after the
death of the plaintiff, no right to sue survived in favour of the plaintiffs mother.
4. Mr Gourab Banerji, learned Senior Counsel appearing on behalf of the appellant, has submitted
that the High Court’s judgment is wrong on principle, and has cited extracts from the 59th Law
Commission Report of 1974 and various judgments to show that the plaintiffs mother could
continue the suit, inasmuch as the said suit was not, in substance, a petition for dissolution of
marriages under either the Special Marriage Act, 1954 or the Hindu Marriage Act, 1955. It was
a suit filed under the Specific Relief Act for declaration of a legal character which, according to
him, was maintainable as such.
5. On the other hand, the learned counsel for the respondent, has argued before us that the High
Court judgment is correct and that, in substance, the suit is really for a decree for annulment of
marriage and would, therefore, fall under the Special Marriage Act and/or the Hindu Marriage
Act. He has referred to the Family Courts Act, 1984, Sections 7 and 8 in particular, to buttress
his submission that in any event, the civil court’s jurisdiction would be barred the moment a suit
of this nature is filed.
14 Jharna Bera v. Samar Kumar Roy, Civil Order No. 3409 of 2013, decided on 15-10-2015 (Cal)
—| 54 |—
6. Having heard the learned counsel for the parties, the question that needs to be decided is as to
whether a suit which is, in substance, a suit filed under Section 34 of the Specific Relief Act is
maintainable at the behest of a legal representative of a dead plaintiff.
7. Shri Banerji took us through portions of the 59th Law Commission Report, 1974. What exercised
the Law Commission was as to whether the expression “on a petition presented by either parties
thereto” ought to be omitted, and third parties be allowed to ask for the reliefs that only the
husband and wife could ask for under the Hindu Marriage Act. Examples were given of a first
wife being left out and persons who seek reliefs after the death of a party being left out. The Law
Commission opined that there was no need to change the present law inasmuch as:
“2.4. ... A third party (for example, a person interested in the estate of either the husband or
the wife) can certainly question the validity of their marriage in a civil suit and obtain
a finding, or he may even bring a suit for a declaration that the marriage was void. But
such a decree, made by a civil court, will not be a decree of “nullity”, as contemplated
by matrimonial law.
2.5. ... A void marriage can, no doubt, be invalidated at the instance of other parties, but it
is better not to incorporate the remedies of third parties into the Hindu Marriage Act
and confuse matrimonial relief with declaratory relief.”
8. The Law Commission then went on to state:
“2.6. Remedy available to third parties.—This does not mean that third parties have no
remedy at all. They have—but not by a petition under the Hindu Marriage Act.
The Specific Relief Act, in Section 34, provides as follows:
‘34. Discretion of court as to declaration of status or right.—Any person entitled to any
legal character, or to any right as to any property, may institute a suit against any
person denying or interested to deny, his title to such character or right, and the court
may in its discretion make therein a declaration that he is so entitled, and the plaintiff
need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able
to seek further relief than a mere declaration of title, omits to do so.
Explanation.—A trustee of property is a “person interested to deny” a title adverse to
the title of someone who is not in existence, and for whom, if in existence, he would be
a trustee.’
Under Section 35 of the Act, the declaration is binding only on the parties, etc.
Banerji in his Tagore Law Lectures on the Law of Specific Relief, observed:
‘The Indian enactment, in one respect at any rate, has a more extended scope, for
it contemplates the settlement, not only of conflicting claims to property but also of
disputes as to status.’
Holland, in his Elements of Jurisprudence, explaining the meaning of “status” says:
‘The Chief varieties of status among natural persons may be referred to the following
causes:
—| 55 |—
(1) Sex, (2) minority, (3) “patria potestas” and “manus”, (4) coverture, (5) celibacy, (6)
mental defect, (7) bodily defect (8) rank, caste and official position, (9) race and colour,
(10) slavery, (11) profession, (12) civil death, (13) illegitimacy, (14) heresy, (15) foreign
nationality, and (16) hostile nationality. All of the facts included in this list, which may
be extended, have been held, at one time or another, to differentiate the legal position
of persons affected by them from that of persons of the normal type.’
There can, therefore, be no objection if a third party claiming an interest in the property,
sues for a declaration that B was not the lawfully wedded spouse of A. In an English
case15, it was specifically held that a declaration may be granted that a marriage has
been dissolved. The grant of similar relief was held to be competent in a Calcutta case16.”
(emphasis in original)
9. We may hasten to add that since the Special Marriage Act did not contain an express limitation to
the effect that the petition can only be filed by a party to the marriage, this was also recommended
and, in fact, carried out by the Marriage Laws (Amendment) Act, 1976.
10. We find that the High Courts have uniformly taken the view that a suit for declaration of a
legal character filed under Section 34 can be filed by a third party plaintiff, or continued at
the behest of the legal representative of a dead plaintiff. Thus, in Krishna Pal v. Ashok Kumar
Pal17 a Single Judge of the Calcutta High Court was confronted with whether a suit filed in the
Munsif s Court for a declaration that there was no marriage solemnised at all would be without
jurisdiction. Section 19 of the Hindu Marriage Act requires all suits or petitions filed under the
Act to be instituted before a District Court, whereas a suit for declaration as to a legal status is to
be instituted in the Munsif s court. After referring to the prayer in that case, the learned Single
Judge found: (SCC OnLine Cal para 9)
“9. As already stated, the plaintiff has chosen not to pray for any relief either by way of
annulment of decree of nullity or by way of a decree for dissolution of the alleged
marriage. The plaint filed by him cannot be considered to be a petition under the Hindu
Marriage Act. The plaintiff has sought for certain declaration regarding the status of the
parties and for consequential reliefs and the learned Munsif has jurisdiction under the
Specific Relief Act to consider whether the plaintiff has made out any case for obtaining
such discretionary declaratory and consequential reliefs. I add that the findings and
observations made by the learned Munsif regarding the maintainability of the suit did
not amount to determination of any other issue framed by him. I accordingly discharge
this rule without any orders as to costs. Let the records be sent down expeditiously.”
11. This statement of the law has since been followed by the Calcutta High Court in Tapash Kumar
Moitra v. Pratima Roy Chowdhury18. Paras 12 to 15 of the judgment are as under:
“12. I respectfully agree with the above observations of Chittatosh Mookerjee, J. in the case
referred to above.
15 Har-Shefi v. Har-Shefi, 1953 P 161 : (1953) 2 WLR 690 (CA)

16 Noor Jehan Begum v. Eugene Tiscenko, 1941 SCC OnLine Cal 221 : AIR 1942 Cal 325
17 1982 SCC OnLine Cal 120 : (1982) 2 Cal LJ 366
18 (1984-85) 89 CWN 671
—| 56 |—
13. In the instant case, the plaintiff-petitioner in his plaint has neither prayed for restitution
of conjugal rights nor for dissolution of marriage under Section 9 or Section 13 of the
said Act. He has also not prayed for annulment of alleged marriage by a decree of
nullity. The plaintiff in the instant suit has asked for a declaration that the purported
registration of the alleged marriage be declared null and void and consequently,
cancellation of the said purported registration of marriage.
14. In my opinion, this suit is simply for cancellation of purported registration of the alleged
marriage under the Hindu Marriage Act, 1955 and the Hindu Marriage Registration
Rules, 1958 and consequential reliefs. If it is the averment that marriage has not
been solemnised, then the registration under Section 8 of the Act read with relevant
provisions of the said Hindu Marriage Registration Rules by itself will not result in
making the marriage complete and binding between the parties. Such registration may
raise a presumption of marriage being solemnised.
75. 1 am, therefore, of opinion that the plaint in the instant suit cannot be considered to be
a petition under Section 19 of the said Act, and the learned Munsif is fully competent
and has jurisdiction to entertain, try and determine the suit.”
12. And in Sasanka Sekhar Basu v. Dipika Roy19, it was held:
“16. In the instant case although the petitioner inter alia prayed for a declaration that the
marriage between the parties was void, the same will not make the plaint ipso facto a
petition under the Hindu Marriage Act within the meaning of Section 19 of the said
Act. Under Sections 11 and 12 of the Hindu Marriage Act, the circumstances under
which a petition can be filed for annulment of marriage on the ground that the same
is void are clearly specified. But in the instant case, such declaration that the marriage
is void has not been asked for by the plaintiff on any of such grounds on which such an
annulment can be obtained under Section 12 or even under Section 11 of the said Act.
The instant suit really appears to be on the face of the plaint, a suit for declaration as to
the status of the parties.
17. In deciding whether or not the plaint filed by the petitioner in substance is a petition
under Section 12 or under Section 11 of the Hindu Marriage Act for annulling the
marriage between the parties by a decree of nulling or for the matter of that under any
other provisions of the Hindu Marriage Act and which is the proper forum for filing
the suit, at the preliminary stage the Court is not called upon to record a finding about
truth or otherwise of the allegations made in the plaint. The only question relevant
for consideration at such a stage is whether on the basis of the averments made in the
plaint and the prayers contained therein, the suit is a suit for annulment of marriage
within the meaning of the Hindu Marriage Act or for a declaration under the Specific
Relief Act.
18. Proceeding on such a basis it appears to me prima facie that suit is not one under
Section 11 or under Section 12 of the Hindu Marriage Act or for any other provisions
under the Hindu Marriage Act, but for a declaration relating to status. Therefore,
not being a petition under the Hindu Marriage Act, Section 19 of the said Act is not
19 1993 SCC OnLine Cal 48 : AIR 1993 Cal 203
—| 57 |—
attracted in the instant case. The learned Munsif, therefore, has jurisdiction to try the
suit before whom such a suit can be maintained.”
13. A similar view has been taken by the Orissa High Court at the behest of a suit filed by the first
wife in Harmohan Senapati v. Kamala Kumari Senapati20; and by the Allahabad and Jammu and
Kashmir High Courts in Ram Pyari v. Dharam Das21 and Lajya Devi v. Kamla Devi22 respectively.
14. An allied question that arises is as to whether suits of the present kind would be barred under
any provision of law. The learned counsel for the respondent has brought to our notice Sections
7 and 8 of the Family Courts Act, 1984 which read as follows:
“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) * * *
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;
* * *
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)-(c) * * *”
15. It is obvious that a suit or proceeding between parties to a marriage for a decree of nullity or
restitution of conjugal rights or judicial separation or dissolution of marriage, all have reference
to suits or petitions that are filed under the Hindu Marriage Act and/or Special Marriage Act
for the aforesaid reliefs. There is no reference whatsoever to suits that are filed for declaration
of a legal character under Section 34 of the Specific Relief Act. Indeed, in Dhulabhai v. State
ofM.P.23, this Court had occasion to consider whether the civil court’s jurisdiction was expressly
or impliedly barred by statute. After referring to a number of judgments, this Court laid down 7
propositions of law, of which two are of relevance to the present case: (AIR pp. 89-90, para 32)
20 1978 SCC OnLine Ori 105 : AIR 1979 Ori 51

21 1983 SCC OnLine All 652 : AIR 1984 All 147
22 1992 SCC OnLine J&K 22 : AIR 1993 J&K 31
23 (1968) 3 SCR 662 : AIR 1969 SC 78
—| 58 |—
“32 (2) Where there is an express bar of the jurisdiction of the court, an examination of
the scheme of the particular Act to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme
of the particular Act to find out the intendment becomes necessary and the result of
the inquiry may be decisive. In the latter case it is necessary to see if the statute creates
a special right or a liability and provides for the determination of the right or liability
and further lays down that all questions about the said right and liability shall be
determined by the tribunals so constituted, and whether remedies normally associated
with actions in civil courts are prescribed by the said statute or not.
* * *
(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the
conditions above set down apply.”
16. On a reading of the aforesaid propositions, it is clear that the examination of the remedies
provided and the scheme of the Hindu Marriage Act and of the Special Marriage Act show that
the statute creates special rights or liabilities and provides for determination of rights relating
to marriage. The Acts do not lay down that all questions relating to the said rights and liabilities
shall be determined only by the Tribunals which are constituted under the said Act. Section 8(a)
of the Family Courts Act excludes the civil court’s jurisdiction in respect of a suit or proceeding
which is between the parties and filed under the Hindu Marriage Act or Special Marriage Act,
where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights or judicial
separation. It does not purport to bar the jurisdiction of the civil court if a suit is filed under
Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged
marriage. Also as was pointed out, an exclusion of the jurisdiction of the civil courts is not
readily inferred. Given the line of judgments referred to by the High Courts, and given the fact
that a suit for declaration as to legal character which includes the matrimonial status of parties
to a marriage when it comes to a marriage which allegedly has never taken place either de jure
or de facto, it is clear that the civil court’s jurisdiction to determine the aforesaid legal character
is not barred either expressly or impliedly by any law.
17. This Court has referred to personal causes of action and held in Yallawwa v. Shantawa24 which
reads as follows: (SCC pp. 168-69, para 6)
“6. ... Save and except the personal cause of action which dies with the deceased on the
principle of actio personalis moritur cum persona i.e. a personal cause of action dies
with the person, all the rest of the causes of action which have an impact on proprietary
rights and socio-legal status of the parties cannot be said to have died with such a
person.”
18. The learned counsel for the respondent has also argued before us that the 2006 suit is itself
time-barred inasmuch as the so-called marriage between the parties took place on 13-12-2002
whereas the suit was filed in January 2006, that is beyond the period of three years mentioned
in Article 58 of the Limitation Act, 1963. Shri Banerji, appearing on behalf of the appellant, has
drawn our attention to Section 16(1) of the Limitation Act in this behalf and has argued that in
24 (1997) 11 SCC 159
—| 59 |—
any event insofar as his client is concerned, the cause of action would begin to run only from
the date of death of the plaintiff, and that since he has applied within two-and-a-half months for
continuing the suit, the bar of limitation would not apply. We do not propose to go into this plea
in view of the fact that Shri Banerji has very fairly submitted before us that instead of driving
the parties to another long litigation, he would be prepared to share the estate of the deceased
plaintiff with the respondent. This being the case, we call upon the respondent to file an affidavit,
within a period of four weeks from today, in which she has to disclose truly and faithfully to this
Court all the amounts that have been received by her owing to her alleged marriage with the
deceased plaintiff. 50% of the total amount stated therein shall be payable by her to the appellant
within a period of eight weeks thereafter.
19. The appeal is disposed of accordingly.
qqq
—| 60 |—
JOSEPH SHINE VERSUS UNION OF INDIA

Bench : Hon’ble Mr. Justice A.M. Khanwilkar, Hon’ble Mr. Justice Dr. D.Y. Chandrachud
and Hon’ble Mrs. Justice Indu Malhotra
Joseph Shine ...Petitioner(s)
Versus
Union of India ...Respondent(s)
WRIT PETITION (CRIMINAL) NO. 194 OF 2017†
Decided on 27 September, 2018
A. Penal Code, 1860 — S. 497 — Adultery — Futility of punishing it as a criminal offence in pro-
tecting institution of marriage from breakdown — Held, when parties to a marriage lose their
moral commitment of the relationship, it creates a dent in the marriage and it will depend
upon the parties how they deal with the situation — It is now widely recognised that causes for
the breakdown in marriages are far more complex — Quite frequently adultery is found to be
the result and not the cause of an unhappy marital relationship — It is absolutely a matter of
privacy at its pinnacle — The theories of punishment, whether deterrent or reformative, would
not save the situation — A punishment is unlikely to establish commitment, if punishment is
meted out to either of them or a third party
B. Penal Code, 1860 — S. 497 — Adultery as a crime — Held, provision violative of Arts. 14,
15(1) and 21 of the Constitution, being manifestly arbitrary, gender discriminatory, encroach-
ment into women's identity, dignity, liberty, privacy, sexual autonomy and freedom to make
independent choice in matters of sexuality — An anachronistic law with underlying stereo-
types of masculine chauvinism and dominance by treating women as mere property of men
devoid of independent sexual agency
— Change in social, cultural, moral, economic and political values and perspective with passage
of time and in the wake of evolving notions of transformative constitutionalism and constitutional
moralism, provision criminalising adultery has lost its efficacy — Global trend is also in favour of
treating adultery as a civil wrong and a ground of divorce — Hence S. 497 IPC and S. 198 CrPC deserve
to be struck down as unconstitutional — Sowmithri Vishnu, 1985 Supp SCC 137 and V. Revathi,
(1988) 2 SCC 72, overruled — Constitution of India — Arts. 14, 15(1) and 21 — Human and Civil
Rights — Right to Sexual Freedom/Orientation, Marry, Family Life, Reproductive Freedom/Right to
Abortion and Adoption — Family and Personal Laws — Marriage, Relationships and Sexual Freedom
C. Criminal Procedure Code, 1973 — S. 198 — Providing procedure for filing complaint in re-
spect of offence of adultery under S. 497 IPC struck down as unconstitutional alongwith S. 497
IPC — Constitution of India, Arts. 14, 15(1) and 21
The instant writ petition has been filed under Article 32 of the Constitution of India challenging
the validity of Section 497 IPC. A three-Judge Bench, on the first occasion, taking note of the authorities
in Yusuf Abdul Aziz, 1954 SCR 930, Sowmithri Vishnu, 1985 Supp SCC 137, V. Revathi, (1988) 2 SCC
72 and W. Kalyani, (2012) 1 SCC 358 and appreciating the submissions advanced by the petitioner, felt
—| 61 |—
the necessity to have a re-look at the constitutionality of the provision. That is how the matter is placed
before the present Bench.
Unanimously striking down Section 497 IPC, the Supreme Court
Held:
Per Dipak Misra, C.J. and Khanwilkar, J.
In Yusuf Abdul Aziz, 1954 SCR 930, the Court was dealing with the controversy that had
travelled to the Supreme Court while dealing with a different fact situation. In the said case, the
question arose whether Section 497 contravened Articles 14 and 15 of the Constitution. The Court
treated the provision to be a special provision made for women and, therefore, saved by clause (3) of
Article 15. Thus, the Court proceeded on the foundation of affirmative action. (Paras 8 and 9)
YusufAbdul Aziz v. State of Bombay, 1954 SCR 930 : AIR 1954 SC 321 : 1954 Cri U 886, distinguished
Central Board ofDawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 : 2005 SCC
(Cri) 546 : 2005 SCC (L&S) 246, referred to
Yusuf Abdul Ajiz v. State, 1951 SCC OnLine Bom 59 : ILR 1952 Bom 449 : AIR 1951 Bom 470; Union
of India v. Raghubir Singh, (1989) 2 SCC 754; Union of India v. Hansoli Devi, (2002) 7 SCC 273, cited
In Kalyani the issue of constitutional validity of the provision did not arise. (Para 23)
W. Kalyani v. State, (2012) 1 SCC 358 : (2012) 1 SCC (Cri) 445, distinguished
Section 497 IPC is unconstitutional as it violates Articles 14 and 21 Of the Constitution. Adultery
should not be treated as an offence. It is also appropriate to declare Section 198 CrPC which deals with
the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. When
the substantive provision goes, the procedural provision has to pave the same path. (Paras 66 and 67)
The decisions in Sowmithri Vishnu and V. Revathi cases stand overruled and any other judgment
following precedents also stands overruled. (Para 68)
Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930 : AIR 1954 SC 321 : 1954 Cri U 886, limited
Sownuthri Vishnu v. Union of India, 1985 Supp SCC 137 : 1985 SCC (Cri) 325; V. Revathi v. Union of
India, (1988) 2 SCC 72 : 1988 SCC (Cri) 308, overruled
Per Nariman, J. (concurring)
In Yusuf Abdul Aziz case, the difference in language between Article 15(3) and Articles 19(2)
to (6) was not noticed. The limited ratio of this judgment merely refers to the last sentence in Section
497 which it upholds. Its ratio does not extend to upholding the entirety of the provision or referring
to any of the arguments made before the present Bench for striking down the provision as a whole.
This judgment does not, in any manner, commend itself or keep in tune with modern constitutional
doctrine. In any case, its ratio is an extremely limited one as it upheld a wife hot being punishable as an
abettor which is contained in Section 497 IPC. The focus on whether the provision as a whole would
be constitutionally infirm was not there in the aforesaid judgment. (Paras 91 and 108)
Sowmithri Vishnu case must be said to be swept away by the tidal wave of recent judgments
expanding the scope of the fundamental rights contained in Articles 14,15 and 21. Ancient notions
—| 62 |—
of the man being the seducer and the woman being the victim permeate the judgment, which is no
longer the case today. The statement in this judgment that stability of marriages is not an ideal to be
scorned, can scarcely be applied to this provision, marital stability is not the object for which this
provision was enacted. On all these counts, therefore, Sowmithri judgment is overruled. (Para 109)
Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 : 1985 SCC (Cri) 325, overruled
Equally, the judgment in V. Revathi case, which upheld the constitutional validity of Section 198
must, for similar reasons, be held to be no longer good law. (Para 109)
V. Revathi v. Union of India, (1988) 2 SCC 72: 1988 SCC (Cri) 308, overruled
Section 497 IPC and Section 198 CrPC are violative of Articles 14, 15(1) and 21 of the Constitution
of India and is, therefore, struck down as being invalid. (Para 109)
Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930 : AIR 1954 SC 321 : 1954 Cri U 886,
distinguished
Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 : 1985 SCC (Cri) 325; V. Revathi v.
Union of India, (1988) 2 SCC 72 :1988 SCC (Cri) 308, overruled
Per Chandrachud, J. (concurring)
In Yusuf Abdul Aziz, the challenge was to a limited part of Section 497: that which prohibited
a woman from being prosecuted as an abettor. Broader issues such as whether (/) the punishment for
adultery violates Article 21; (z7) the statutory provision suffers from manifest arbitrariness; (Hi) the
legislature has, while ostensibly protecting the sanctity of marriage, invaded the dignity of women;
and (/v) Section 497 violates Article 15(1) by enforcing gender stereotypes were neither addressed
before the Supreme Court nor were they dealt with. (Para 117)
In the subsequent decision of the three-Judge Bench in Sowmithri Vishnu case, the Court
proceeded on the basis that the earlier decision in Yusuf Abdul Aziz case had upheld Section 497
against a challenge based on Articles 14 and 15 of the Constitution. This is not a correct reading or
interpretation of the judgment. The decision in Sowmithri Vishnu case dealt with the constitutional
challenge by approaching the discourse on the denial of equality in formal, and rather narrow terms.
The error in Sowmithri Vishnu case lies in holding that there was no constitutional infringement. The
decision has left unanswered the fundamental challenge under Article 14 of the Constitution which
was urged before the Court. It construed Article 14 in narrow and formal sense. Sowmithri Vishnu
case fails to deal with the substantive aspects of constitutional jurisprudence which have a bearing
on the validity of Section 497: the guarantee of equality as a real protection against arbitrariness, the
guarantee of life and personal liberty as an essential recognition of dignity, autonomy and privacy
and above all gender equality as a cornerstone of a truly equal society. For these reasons, the decision
in Sowmithri Vishnu case cannot be regarded as a correct exposition of the constitutional position.
Sowmithri Vishnu case is overruled. (Paras 119, 122 and 125)
Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137": 1985 SCC (Cri) 325, overruled
The decision in Revathi case is a reiteration of Sowmithri Vishnu case. It applies the doctrine of
equality and the prohibition against discrimination on the ground of sex in a formalistic sense. The
logic of the judgment is that since neither of the spouses (man or woman) can prosecute the erring
—| 63 |—
spouse, the provision does not discriminate on the ground of sex. Apart from reading equality in a
narrow confine, the judgment does not deal with crucial aspects bearing on the constitutionality of
the provision. Revathi case, like Sowmithri Vishnu case does not lay down the correct legal principle.
(Para 127)
Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 :1985 SCC (Cri) 325, overruled
Section 497 lacks an adequately determining principle to criminalise consensual sexual activity
and is manifestly arbitrary. Section 497 is a denial of substantive equality as it perpetuates the
subordinate status ascribed to women in marriage and society. Section 497 violates Article 14 of the
Constitution. (Para 220.1)
Section 497 is based on gender stereotypes about the role of women and violates the non-
discrimination principle embodied in Article 15 of the Constitution. (Para 220.2)
Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual
autonomy which are intrinsic to Article 21 of the Constitution. (Para 220.3)
Section 497 is unconstitutional. (Para 220.4)
The decisions in Sowmithri Vishnu and Revathi cases are overruled. (Para 220.5)
Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 : 1985 SCC (Cri) 325; V. Revathi v.
Union of India, (1988) 2 SCC 72 : 1988 SCC (Cri) 308, overruled
Per Indu Mathotra, J. (concurring)
Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the
Constitution. (Para 282.1)
Section 198(2) CrPC which contains the procedure for prosecution under Chapter XX IPC shall
be unconstitutional only to the extent that it is applicable to the offence of adultery under Section
497. (Para 282.2)
The decisions in Sowmithri Vishnu case, V. Revathi case and W. Kalyani case hereby stand
overruled. The view taken by the two-Judge Bench in Revathi case, that the absence of the right of
the wife of an adulterous husband to sue him, or his paramour, was well-balanced by the inability of
the husband to prosecute his adulterous wife for adultery, cannot be sustained. The wife's inability to
prosecute her husband and his paramour, should be equated with the husband's ability to prosecute
his wife's paramour. (Paras 282.3 and 264)
Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137 : 1985 SCC (Cri) 325; V. Revathi v. Union
of India, (1988) 2 SCC 72 : 1988 SCC (Cri) 308; W. Kalyani v. State, (2012) 1 SCC 358 : (2012) 1 SCC
(Cri) 445, overruled
Constitution of India — Art. 14
D. Penal Code, 1860 — S. 497 — Adultery as penal offence — Ingredients — Creates gender
discrimination by not treating sexual agency of women on a par with that of men, contrary to
constitutional guarantee of equality
— Anomalies and inconsistencies — Married man having sexual relationship with unmarried
woman or widow with her consent or with married woman with her husband's consent or connivance
—| 64 |—
does not constitute offence of adultery — Adulteress is excluded from punishment as abettor by
treating her a victim which shows chauvinistic nature of the provision — But wife of adulterer given
no right to prosecute husband — On one hand it protects a woman on other hand it does not protect
the other woman — By criminalising adultery ostensible object of preserving and protecting sanctity
of marriage cannot be achieved — Adultery as an offence does not distinguish between broken
marriage and continuing marriage as it depends upon spouses to exonerate marital infidelity and
continue to live together or to seek divorce and separation — Provision reflects male dominance and
subjugation of women and husband's control over wife's sexuality — Provision, based on hypothesis
of husband being owner of wife's sexual agency, perpetuates patriarchal and paternalistic notions of
wife as mere chattel or property of husband — Held, provision discriminatory, irrational, manifestly
arbitrary, inconsistent with constitutional morality and fails to meet essence of substantive equality in
its application to marriage — Hence violative of Art. 14 — Constitution of India, Art. 14
E. Criminal Procedure Code, 1973 — S. 198(2) — Aggrieved person — Husband of adulteress
deemed to be person aggrieved having right to seek prosecution of adulterer but wife of adul-
terer having no such right — Held, deeming definition manifestly arbitrary — Provision vio-
lative of Art. 14 — Constitution of India, Art. 14
F. Doctrines and Maxims — Coverture — Doctrine recognises that after marriage wife's person
gets incorporated into that of husband, as a result wife loses her identity and remains under
protection and cover of husband — Words and Phrases — "Coverture"
G. Constitution of India — Art 14 — Substantive equality — Concept — It is in consonance with
constitutional morality — Test — What is real impact of legislation; whether it contributes to
subordination of disadvantaged group of individuals having regard to present social realities
— Envisages an egalitarian existence where all forms of inequality, social, cultural, economic,
political and sexual, are recognised and obliterated
H. Constitution of India — Art. 14 — Manifest arbitrariness — Test — Has elements of caprice,
irrationality and lack of determining principle — Manifestly arbitrary legislation would be
violative of Art. 14
I. Constitution of India — Art. 14 — Classification — Test — Whether based on intelligible dif-
ferentia having rational nexus with object which legislation sought to achieve
J. Constitution of India — Art. 14 — Gender discrimination — A law not held unconstitutional
earlier can be held so having regard to later developments in societal norms and values, in-
cluding gender equality
Held:
Section 497 IPC does not bring within its purview an extramarital relationship with an unmarried
woman or a widow. The provision has made it a restricted one as a consequence of which a man, in
certain situations, becomes criminally liable for having committed adultery while, in other situations,
he cannot be branded as a person who has committed adultery as Section 497 IPC lays down that
when there is consent or connivance of the husband of the adulteress, there is no offence. Section 198
CrPC treats the husband of the woman as deemed to be aggrieved by an offence committed under
Section 497 IPC. It does not consider the wife of the adulterer as an aggrieved person. The offence
—| 65 |—
and the deeming definition of an aggrieved person is absolutely and manifestly arbitrary as it does not
even appear to be rational and it can be stated with emphasis that it confers a licence on the husband
to deal with the wife as he likes which is extremely excessive and disproportionate. This is so, as it
does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the
wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but
the husband is also entitled to take civil action. However, that does not save the provision as being
manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-
eyed, it is clear that on the one hand, it protects a woman and on the other, it does not protect the other
woman. The rationale of the provision suffers from the absence of logicality of approach. (Para 30)
Further, on a reading of the provision, it is demonstrable that women are treated as subordinate
to men inasmuch as it lays down that when there is connivance or consent of the man, there is no
offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient
to the will of the master. It is a reflection of the social dominance that was prevalent when the penal
provision was drafted. Therefore, it suffers from the vice of Article 14 of the Constitution being
manifestly arbitrary. (Paras 29 and 30)
A statutory law can be struck down if it is found to be arbitrary. "Manifest arbitrariness", as
laid own in Shayara Bano, (2017) 9 SCC 1 "must be something done by the legislature capriciously,
irrationally and/or without adequate determining principle. Also, when something is done which is
excessive and disproportionate, such legislation would be manifestly arbitrary." Therefore arbitrariness
in the sense of manifest arbitrariness would apply to negate legislation as well under Article 14 of the
Constitution. (Para 26)
Shayara Bono v. Union of India, (2017) 9 SCC 1: (2017) 4 SCC (Civ) 277, relied on Joseph Shine v.
Union of India, (2018) 2 SCC 189 : (2018) 2 SCC 190 : (2018) 1 SCC (Cri)
470 : (2018) 1 SCC (Cri) 471, referred to Prem Chand Garg v. Excise Commr, AIR 1963 SC 996; State
ofU.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 : AIR 1960 SC 1125 : 1960 Cri U 1504; Lachhman Dass
v. State of Punjab, (1963) 2 SCR 353 : AIR 1963 SC 222; S.G. Jaisinghani v. Union of India, (1967) 2
SCR 703 : AIR 1967 SC 1427; United States v.Wunderlich, 1951 SCC Online US SC 93 : 96 L Ed 113 :
342 US 98 (1951); R. v. Wilkes, (1770) 4 Burr 2527 : 98 ER 327; State of Mysore v. S.R. Jayaram, (1968)
1 SCR 349 : AIR 1968 SC 346; Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1; E.P. Royappa v.
State of T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165; Maneka Gandhi v. Union of India, (1978) 1 SCC
248; A.L Kalra v. Project & Equipment Corpn. of India Ud., (1984) 3 SCC 316 : 1984 SCC (L&S) 497;
Ajay Hasia v. Khalid Mujib Sehravaidi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258; K.R. Lakshmanan
v. State of T.N., (1996) 2 SCC 226; Mithu v. State of Punjab, (1983) 2 SCC 277 : 1983 SCC (Cri) 405;
SunilBatra v. DelhiAdmn., (1978) 4 SCC 494:1979 SCC (Cri) 155, cited

In order to constitute the offence of adultery, the following must be established:
(i) Sexual intercourse between a married woman and a man who is not her husband;
(ii) The man who has sexual intercourse with the married woman must know or has reason to
believe that she is the wife of another man;
—| 66 |—
(in) Such sexual intercourse must take place with her consent i.e. it must not amount to rape;
(iv) Sexual intercourse with the married woman must take place without the consent or connivance
of her husband. (Para 100)
What is apparent from these ingredients is that a married man, who has sexual intercourse
with an unmarried woman or a widow, does not commit the offence of adultery. Also, if a man has
sexual intercourse with a married woman with the consent or connivance of her husband, he does not
commit the offence of adultery. The consent of the woman committing adultery is material only for
showing that the offence is not another offence, namely, rape. (Para 101)
The background in which the provision was enacted shows that in 1860, when the Penal Code
was enacted, the vast majority of the population in this country, namely, Hindus, had no law of divorce
as marriage was considered to be a sacrament. Equally, a Hindu man could marry any number of
women until 1955. It is, therefore, not far to see as to why a married man having sexual intercourse
with an unmarried woman was not the subject-matter of the offence. Since adultery did not exist as a
ground in divorce law, there being no divorce law, and since a man could marry any number of wives
among Hindus, it was clear that there was no sense in punishing a married man in having sex with an
unmarried woman as he could easily marry her at a subsequent point in time. Two of the fundamental
props or bases of this archaic law have since gone. Post 1955-1956, with the advent of the "Hindu
Code", so to speak, a Hindu man can marry only one wife; and adultery has been made a ground for
divorce in Hindu Law. (Para 102)
Charles A. Tinker v. Frederick L Colwell, 1904 SCC OnLine US SC 70 : 48 L Ed 754 : 193 US 473
(1904); Pritchard v. Pritchard and Sims, 1967 P 195 : (1967) 2 WLR 264 : (1966) 3 All ER 601 (CA),
referred to
Exodus 20:14 (King James Version); Leviticus 20:10 (King James Version); 1 Corinthians 6:9-10 (King
James Version); Matthew 5:27-28 (King James Version); John 8:7 (English Standard Version); G. Buhler
(Tr.), The Laws of Manu (Clarendon Press, UK 1886) p. 150; Patrick Olivelle (Tr.), Dharmasutras—
The Law Codes of Apastamba, Gautama, Baudhayana, and Vasistha (OUP 1999) pp. 70-71; Maulana
Muhammad Ali (Tr.), The Koran (Al-Qur'an): Arabic-English Edn. with an Introduction by
Mohamed A. 'Arafa (Tellerbooks 2018) p. 363; Linda Fitts Mischler: "Personal Morals Masquerading
as Professional Ethics: Regulations Banning Sex between Domestic Relations Attorneys and Their
Clients", 23 Harvard Women's Law Journal 1,21-25 (2000) ["Linda Fitts Mischler"]; Section 4, Law
Reforms (Miscellaneous Provisions) Act, 1970; G.H. Hmtmann: A Penal Code Prepared by the Indian
Law Commissioners, and Published by the Command of the Governor General of India in Council
(Bengal Military Orphan Press 1837) pp. 91-93; James C. Melvill: Copies of the Special Reports of the
Indian Law Commissioners (East India House 1847) p. 76, referred to
Further, the real heart of this archaic law discloses itself when consent or connivance of the
married woman's husband is obtained — the married or unmarried man who has sexual intercourse
with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic
notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the
chattel by the "licensor", namely, the husband, no offence is committed. Consequently, the wife who
has committed adultery is not the subject-matter of the offence, and cannot, for the reason that she is
regarded only as chattel, even be punished as an abettor. This is also for the chauvinistic reason that the
third- party male has "seduced" her, she being his victim. What is clear, therefore, is that this archaic
—| 67 |—
law has long outlived its purpose and does not square with today's constitutional morality, in that the
very object with which it was made has since become manifestly arbitrary, having lost its rationale
long ago and having become in today's day and age, utterly irrational. On this basis alone, the law
deserves to be struck down, for with the passage of time, Article 14 springs into action and interdicts
such law as being manifestly arbitrary. That legislation can be struck down on the ground of manifest
arbitrariness is no longer open to any doubt. (Para 103)
The ostensible object of Section 497, as pleaded by the State, being to protect and preserve the
sanctity of marriage, is not in fact the object of Section 497 at all. The sanctity of marriage can be
utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow,
as has been seen hereinabove. Also, if the husband consents or connives at such sexual intercourse,
the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be
protected and preserved, but a proprietary right of a husband. Secondly, no deterrent effect has been
shown to exist, or ever to have existed, which may be a legitimate consideration for a State enacting
criminal law. Also, manifest arbitrariness is writ large even in cases where die offender happens to be
a married woman whose marriage has broken down, as a result of which she no longer cohabits with
her husband, and may in fact, have obtained a decree for judicial separation against her husband,
preparatory to a divorce being granted. If, during this period, she has sex with another man, the other
man is immediately guilty of the offence. (Para 104)
Even when the CrPC was fully replaced in 1973, Section 198 CrPC continued to be on the statute
book. Even as of today, Section 497 IPC continues to be on the statute book. When these sections are
wholly outdated and have outlived their purpose, not only does the maxim of Roman law, cessante
ratione legis, cessat ipsa lex, apply to interdict such law, but when such law falls foul of constitutional
guarantees, it is the Supreme Court's solemn duty not to wait for legislation but to strike down such
law. (Para 109)
Section 497 IPC and Section 198 CrPC are violative of Article 14 of the Constitution of India
and are, therefore, struck down as being invalid. (Paras 105 and 109)
The act which constitutes the offence under Section 497 IPC is a man engaging in sexual
intercourse with a woman who is the "wife of another man". For the offence to arise, the man who
engages in sexual intercourse must either know or have reason to believe that the woman is married.
The provision stipulates that a man who has sexual intercourse with the wife of another will not be
guilty of offence if the husband of the woman were to consent or, worse still, to connive. Whether or
not a man with whom she has engaged in sexual intercourse is guilty of an offence depends exclusively
on whether or not her husband is a consenting 'individual. For, in the eye of the law, in such a case it
is for the man in the marital relationship to decide whether to agree to his spouse engaging in a sexual
act with another. The mirror image of this constitutional infirmity is that the wife of the man who
has engaged in the act has no voice or agency under the statute. Again, the law does not make it an
offence for a married man to engage in an act of sexual intercourse with a single woman. His wife is
not regarded by the law as a person whose agency and dignity is affected. The underlying basis of not
penalising a sexual act by a married man with a single woman is that she (unlike a married woman) is
not the property of a man (as the law would treat her to be if she is married). (Paras 160, 161 and 123)
Iris Marion Young: Justice and the Politics of Difference (Princeton University Press, 1990), referred to
—| 68 |—
Though women are exempted from prosecution under Section 497, the underlying notion upon
which the provision rests, which conceives of women as property, is extremely harmful. The power
to prosecute lies only with the husband (and not to the wife in cases where her husband commits
adultery), and whether the crime itself has been committed depends on whether the husband provides
"consent for the allegedly adulterous act". Women, therefore, occupy a liminal space in the law: they
cannot be prosecuted for committing adultery, nor can they be aggrieved by it, by virtue of their
status as their husband's property. Section 497 is also premised upon sexual stereotypes that view
women as being passive and devoid of sexual agency. The notion that women are "victims" of adultery
and therefore require the beneficial exemption under Section 497. Such an understanding of the
position of women is demeaning and fails to recognise them as equally autonomous individuals in
society. Effectively, Indian jurisprudence has interpreted the constitutional guarantee of sex equality
as a justification for differential treatment: to treat men and women differently is, ultimately, to act
in women's interests. The status of Section 497 as a "special provision" operating for the benefit of
women, therefore, constitutes a paradigmatic example of benevolent patriarchy. (Paras 141 and 142)
Cleveland Board of Education v. LaFLEUR, 1974 SCC Online US SC 18 : 39 L Ed 2d 52 : 414 US 632
(1974); Griswotd v. Connecticut, 1965 SCC Online US SC 124 : 14 L Ed 2d 510 : 381 US 479 (1965);
Carey v. Population Services International, 1977 SCC Online US SC 103 : 52 L Ed 2d 675 : 431 US 678
(1977); Irving v. Commonwealth of Virginia, 1967 SCC Online US SC 152 : 18 L Ed 2d 1010 : 388 US
1 (1967); Zablocki v. Redhail, 1978 SCC Online US SC 14:54 L Ed 2d 618 : 434 US 374 (1978); Boddie
v. Connecticut, 1971 SCC Online US SC 44 : 28 L Ed 2d 113 : 401 US 371 (1971); Moore v. City of
East Cleveland Ohio, 1977 SCC Online US SC 93 : 52 L Ed 2d 531 : 431 US 494 (1977); Bowers v.
Haniwick, 1986 SCC Online US SC 165 :92 L Ed 2d 140: 478 US 186 (1986); Roberts v. United States,
1984 SCC Online US SC 182 : 82 L Ed 2d 462 : 468 US 609 (1984); Thornburgh v. American College
of Obstetricians and Gynecologists, 1986 SCC Online US SC 126 : 90 L Ed 2d 779 : 476 US 747 (1986);
Eisenstadt v. R, Baini, 1972 SCC Online US SC 62: 31 L Ed 2d 349 :405 US 438 (1972); Law & Advocacy
for Women in Uganda v. Attorney General of Uganda, 2007 SCC Online UGCC 1, referred to
Law Commission of India, 42nd Report: Indian Penal Code (1971), p. 326; Law Commission of
India, 156th Report: Indian Penal Code (1997) p. 172; Report of Malimath Committee on Reforms
of Criminal Justice System (2003), p. 190; Abhinav Sekhri: "The Good, The Bad, And The Adulterous:
Criminal Law And Adultery In India", Socio-Legal Review (2016), p. 63; Brenda Cossman and Ratna
Kapur: Subversive Sites: Feminist Engagements with Law in India (Sage Publications 1996); Katherine
T. Bartlett, "Feminist Legal Methods", Harvard Law Review (1990); UN Working Group on Women's
Human Rights: Report (18-10-2012), available at: <http://newsarchiye.ohchr.org/EN/ NewsEvents/
Pages/DisplayNews.aspx?NewsID=12672&LangID=E>; Case No: 2009Hun-Bal7, (Adultery Case),
South Korean Constitutional Court (26-2-2015), available at <Error! Hyperlink reference not valid.>;
Firstpost, "South Korean court abolishes law that made adultery illegal", (26-2-2015), available at <https://
www.firstpost.com/world/south-korean-court-aboUshes-law-saying-adultery-is-illegal-2122935.
html>; Opinions of Park Han-Chul, Lee Jin-Surig, Kim Chang-Jong, Seo Ki-Seog and Cho Yong-Ho,
JJ. (Adultery is Unconstitutional); Article 10 of the South Korean Constitution; Case No: 2009Huri-
Bal7, (Adultery Case), South Korean Constitutional Court (26-2-2015), available at <http://english.
ccourtgo.kr/ cckh6me/eng/deeisionsAnajordecisions/majorDetail.do>, Part V-A (3)(1) ("Change in
Public's Legal Awareness" under the head of "Appropriateness of Means and Least Restrictiveness");
Case No: 2009Hun-Bal7, (Adultery Case), South Korean Constitutional Court (26-2-2015), available
at <http://english.ccourt.go.kr/ cckhome/eng/decisions/majordecisions/majorDetail.do>, Part V-A
—| 69 |—
(3)(3) ("Effectiveness of Criminal Punishment", under the head of "Appropriateness of Means and
Least Restrictiveness"); Case No: 2009Hun-Bal7, (Adultery Case), South Korean Constitutional
Court (26-2-2015), available at <http://english.ccourt.go.kr/cckhome/ eng/decisions/majordecisions/
majorDetail.do>, Part V-A (5) ("Balance of Interests & Conclusion"); Reuters: 'Uganda scraps "sexist"
adultery law', (5-4-2007), available at <https://www.reuters.com/article/us-uganda-adultery/uganda-
scraps-sexist-adultery-law-idUSL0510814320070405>; Martin J. Siegel: "For Better or For Worse:
Adultery, Crime & the Constitution", Journal of Family Law, Vol. 30, (1991) pp. 45,70,74, 78,82,85 and
89; Deborah Rhode, Adultery: Infidelity and the Law (HUP, 2016), referred to
The offence applies only to the man committing adultery. A woman committing adultery is not
considered to be an "abettor" to the offence. The power to prosecute for adultery rests only with the
husband of the woman. The history of adultery throws light upon disparate attitudes toward male and
female infidelity, and reveals the double standard in law and morality that has been applied to men
and women. Section 497 IPC and Section 198 CrPC are seen to treat men and women unequally. That
a woman is regarded no more than as a possession of her husband is evidenced in Section 497 IPC, in
more than one context. Arbitrariness is writ large on the provision. The problem with Section 497 IPC
is not just a matter of underinclusion. (Paras 128, 129, 140 and 123)
R. v. Mawgridge, 1707 Kelyng J 119 : 84 ER 1107, referred to
David Turner: "Adultery", in The Oxford Encyclopaedia of Women in World History (2008); James A.
Brundage: Law, Sex, and Christian Society in Medieval Europe, pp. 6, 10 & 27; Faramerz Dabhoiwala:
The Origins of Sex: A History of the First Sexual Revolution (2012) p. 5; David Turner: "Adultery",
in The Oxford Encyclopaedia of Women in World History (2008), p. 30; Vern Bullough: Medieval
Concepts of Adultery, p. 7; Bonnie G. Smith (Ed.): The Oxford Encyclopaedia of Women in World
History (Oxford), pp. 27 & 30; Martin Siegel: "For Better or for Worse: Adultery, Crime & the
Constitution", Vol. 30, Journal of Family Law (1991), p. 46; Jeremy D. Weinstein: "Adultery, Law, and
the State: AHistory", Vol. 38, HASTINGS L.J. (1986), p. 202; R. Huebner, F. Philbrick (Tr.) A History of
Germanic Private Law (1918); James R. Mellow: "Hawthorne's Divided Genius", The Wilson Quarterly
(1982); Mary Beth Norton: Founding Mothers and Fathers: Gendered Power and the Forming of
American Society (1996); Keith Thomas: "The Puritans and Adultery: The Act of 1650 Reconsidered",
in Donald Pennington, Keith Thomas (Eds.), Puritans and Revolutionaries: Essays in Seventeenth
Century History Presented to Christopher Hill, p. 281; Charles E. Torcia: Wharton's Criminal Law,
Section 218, (1994) p. 528; J.E. Loftis: "Congreve's Way of the World and Popular Criminal Literature",
Studies in English Literature, 1500-1900, 36(3) (1996) p. 293; Joanne Bailey: Unquiet Lives: Marriage
and Marriage Breakdown in England, 1660-1800 (2009) p. 143; David Turner: Adultery in The Oxford
Encyclopaedia of Women in World History (2008) p. 28; Blackstone's Commentaries on the Laws of
England, Book TV (1778), pp. 191-92; William Blackstone: Commentaries on the Laws of England,
Vol. I (1765), pp. 442-45; Vera Bergelson: "Rethinking Rape-By-Fraud" in Chris Ashford, Alan Reed
and Nicola Wake (Eds.), Legal Perspectives on State Power: Consent and Control (2016), p. 161;
Blackstone's Commentaries on the Laws of England, (Book IV 1778) pp. 64-65; Abhinav Sekhri: "The
Good, The Bad, And The Adulterous: Criminal Law And Adultery In India", Socio-Legal Review
(2016), p. 52; Macaulay's Draft Penal Code (1837), Note Q; Second Report on the Indian Penal Code
(1847), at pp. 134-35, cited from, Law Commission of India, Forty-second Report: Indian Penal Code,
at p. 365; A Penal Code prepared by The Indian Law Commissioners (1838), The Second Report on
the Indian Penal Code, at p. 74, referred to
—| 70 |—
The provision proceeds on the notion that the woman is but a chattel; the property of her husband.
The fact that he is engaging in a sexual relationship outside marriage is of no consequence to the
law. The woman with whom he is in marriage has no voice of her own, no agency to complain. If the
woman who is involved in the sexual act is not married, the law treats it with unconcern. The premise
of the law is that if a woman is not the property of a married man, her act would not be deemed to be
"adulterous", by definition. (Para 160)
Section 497 is destructive of and deprives a woman of her agency, autonomy and dignity. If the
ostensible object of the law is to protect the "institution of marriage", it provides no justification for
not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of
marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of
any significance to the ingredients of the offence. The law also deprives the married woman who has
engaged in a sexual act with another man, of her agency. Section 497 is thus founded on the notion
that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Manifest
arbitrariness is writ large on the provision. (Para 162)
The hypothesis which forms the basis of the law on adultery is the subsistence of a patriarchal order.
Section 497 is based on a notion of morality which fails to accord with the values on which the
Constitution is founded. The freedoms which the Constitution guarantees inhere in men and women
alike. In enacting Section 497, the legislature made an ostensible effort to protect the institution of
marriage. "Ostensible" it is, because the provision postulates a notion of marriage which subverts the
equality of spouses. Marriage in a constitutional regime is founded on the equality of and between
spouses. Each of them is entitled to the same liberty which Part III guarantees. Each of them is entitled
to take decisions in accordance with his and her conscience and each must have the ability to pursue
the human desire for fulfilment. Section 497 is based on the understanding that marriage submerges
the identity of the woman. It is based on a notion of marital subordination. In recognising, accepting
and enforcing these notions, Section 497 is inconsistent with the ethos of the Constitution. Section
497 treats a woman as but a possession of her spouse. The essential values on which the Constitution
is founded—liberty, dignity and equality—cannot allow such a view of marriage. Section 497 suffers
from manifest arbitrariness. (Para 168)
Navtej Singh Joharv. Union of India, (2018) 10 SCC 1: (2019) 1 SCC (Cri) 1; Shayara Bono v. Union of
India, (2017) 9 SCC 1: (2017) 4 SCC (Civ) 277, relied on
State of A.P.V. McDowell & Co., (1996) 3 SCC 709, cited
While engrafting the provision into Chapter XX of the Penal Code—"Of offences relating to
marriage"—the legislature has based the offence on ah implicit assumption about marriage. The
notion which the law propounds and to which it imposes the sanctions of penal law is that the marital
tie subordinates the role and position of the woman. In that view of marriage, the woman is bereft
of the ability to decide, to make choices and give free expression to her personality. Human sexuality
is an essential aspect of identity. Choices in matters of sexuality are reflective of the human desire
for expression. Sexuality cannot be construed purely as a physiological attribute. In its associational
attributes, it links up with the human desire to be intimate with a person of one's choice. Sharing
of physical intimacies is a reflection of choice. In allowing individuals to make those choices in a
consensual sphere, the Constitution acknowledges that even in the most private of zones, the
individual must have the ability to make essential decisions. Sexuality cannot be disassociated from
—| 71 |—
the human personality. For, to be human involves the ability to fulfil sexual desires in the pursuit of
happiness. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human
dignity both recognises and protects the autonomy of the individual in making sexual choices. The
sexual choices of an individual cannot obviously be imposed on others in society and are premised
on a voluntary acceptance by consenting parties. Section 497 denudes the woman of the ability to
make these fundamental choices, in postulating that it is only the man in a marital relationship who
can consent to his spouse having sexual intercourse with another. Section 497 disregards the sexual
autonomy which every woman possesses as a necessary condition of her existence. Far from being an
equal partner in an equal relationship, she is subjugated entirely to the will of her spouse. The provision
is proffered by the legislature as an effort to protect the institution of marriage. But it proceeds on a
notion of marriage which is one-sided and which denies agency to the woman in a marital tie. The
ability to make choices within marriage and on every aspect concerning it is a facet of human liberty
and dignity which the Constitution protects. In depriving the woman of that ability and recognising
it in the man alone, Section 497 fails to meet the essence of substantive equality in its application to
marriage. Equality of rights and entitlements between parties to a marriage is crucial to preserve the
values of the Constitution. Section 497 offends that substantive sense of equality and is violative of
Article 14. (Para 169)
In consonance with constitutional morality, substantive equality is "directed at eliminating individual,
institutional and systemic discrimination against disadvantaged groups which effectively undermines
their full and equal social, economic, political and cultural participation in society". To move away from
a f formalistic notion of equality which disregards social realities, the Court must take into account
the impact of the rule or provision in the lives of citizens. (Para 171) S. Martin and K. Mahoney (Eds.),
Kathy Lahey: Feminist Theories of (Inequality, in Equality and Judicial Neutrality (1987), referred to
The primary enquiry to be undertaken by the Court towards the realisation of substantive equality
is to determine whether the provision contributes to the , subordination of a disadvantaged group of
individuals. The disadvantage must be addressed not by treating a woman as "weak" but by construing
her entitlement to an equal citizenship. The former legitimises patronising attitudes towards women.
The latter links true equality to the realisation of dignity. The focus of such an approach is not simply
on equal treatment under the law, but rather on the real impact of the legislation Thus, Section 497 has
to be examined in the light of existing social structures which enforce the position of a woman as an
unequal participant in a marriage. (Para 172)
Nivedita Menon (Ed.), Ratna Kapur and Brenda Cossman: "On Women, Equality and the Constitution:
Through the Looking Glass of Feminism in Gender and Politics in India" (1993); Maureen Maloney:
"An Analysis of Direct Taxes in India: A Feminist Perspective", Journal of the Indian Law Institute
(1988); Catherine A. Mackinnon: "Sex equality under the Constitution of India: Problems, prospects,
and 'personal laws' ", (OUP and New York University School of Law 2006), referred to
Facially, the law may be construed to operate as an exemption from criminal sanctions. However,
when viewed in the context of a social structure which considers the husband as the owner of the
wife's sexuality, the law perpetuates a deeply entrenched patriarchal order. The true realisation of the
substantive content of equality must entail an overhaul of these social structures. When all visible
and invisible forms of inequality—social, cultural, economic, political or sexual—are recognised and
obliterated; a truly egalitarian existence can be imagined. (Para 174)
—| 72 |—
Per Indu Malhotra, J. (concurring)

The provision of Section 497 is replete with anomalies and incongruities, such as: (7) Under Section
497, it is only the male paramour who is punishable for the offence of adultery. The woman who is
pari delicto with the adulterous male, is not punishable, even as an "abettor". The adulterous woman
is excluded solely on the basis of gender, and cannot be prosecuted for adultery (W. Kalyani case, SCC
para 10). (2) The Section only gives the right to prosecute to the husband of the adulterous wife. On
the other hand, the wife of the adulterous man, has no similar right to prosecute her husband or his
paramour. (3) Section 497 IPC read with Section 198(2) CrPC only empowers the aggrieved husband,
of a married wife who has entered into the adulterous relationship to initiate proceedings for the
offence of adultery. (4) The act of a married man engaging in sexual intercourse with an unmarried or
divorced woman* does not constitute "adultery" under Section 497. (5) If the adulterous relationship
between a man and a married woman, takes place with the consent and connivance of her husband,
it would not constitute the offence of adultery. The anomalies and inconsistencies in Section 497 as
stated above, would render the provision liable to be struck down on the ground of it being arbitrary
and discriminatory. (Para 271),
W. Kalyani v. State, (2012) 1 SCC 358 : (2012) 1 SCC (Cri) 445, considered
The constitutional validity of Section 497 has to be tested on the anvil of Article 14 of the Constitution.
Any legislation which treats similarly situated persons unequally, or discriminates between persons
on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the
Constitution, which form the pillars against the vice of arbitrariness and discrimination. Article 14
forbids class legislation; however, it does not forbid reasonable classification. A reasonable classification
is permissible if two conditions are satisfied: (i) The classification is made on the basis of an "intelligible
differentia" which distinguishes persons or things that are grouped together, and separates them from
the rest of the group; and (ii) The said intelligible differentia must have a rational nexus with the object
sought to be achieved by the legal provision. (Para 272)
E. V. Chinnaiah v. State ofA.P., (2005) 1 SCC 394: (2008) 2 SCC (L&S) 329, relied on
With respect to the offence of adultery committed by two consenting adults, there ought not to be
any discrimination on the basis of sex alone since it has no rational nexus with the object sought
to be achieved. Section 497 IPC, makes two classifications: The first classification is based on who
has the right to prosecute: It is only the husband of the married woman who indulges in adultery,
is considered to be an aggrieved person given the right to prosecute for the offence of adultery.
Conversely, a married woman who is the wife of the adulterous man, has no right to prosecute either
her husband, or his paramour. The second classification is based on who can be prosecuted. It is only
the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman,
even though the relationship is consensual; the adulterous woman is not even considered to be an
"abettor" to the offence. It would be unrealistic to proceed on the basis that even in a consensual sexual
relationship, a married woman, who knowingly and voluntarily enters into a sexual relationship with
another married man, is a "victim", and the male offender is the "seducer". Section 497 fails to consider
both men and women as equally autonomous individuals in society. (Paras 272.1, 272.2, 273.3 and
273.4)
Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1, affirmed
—| 73 |—
Having regard to the historical background, adultery, as an offence, was not a crime under Common
Law, in England. It was punishable by the ecclesiastical courts which exercised jurisdiction over
sacramental matters that included marriage, separation, legitimacy, succession to personal property,
etc. In England, coverture determined the rights of married women, under Common Law. A "feme
sole" transformed into a "feme coverf after marriage. "Feme covert" was based on the doctrine of
"Unity of Persons" — i.e. the husband and wife were a single legal identity. This was based on notions
of biblical morality that a husband and wife were "one in flesh and blood". The effect of "coverture" was
that a married woman's legal rights were subsumed by that of her husband. A married woman could
not own property, execute legal documents, enter into a contract, or obtain an education against her
husband's wishes, or retain a salary for herself. The principle of coverture subsisted throughout the
marriage of the couple. (Paras 224 and 227)
Pritchard v. Pritchard and Sims, 1967 P 195 : (1967) 2 WLR 264: (1966) 3 All ER 601 (CA), referred to
The New International Webster's Comprehensive Dictionary of the English Language, (Deluxe
Encyclopedic Edition, Trident Press International 1996) p. 21, referred to
On the historical context in 1860 when the IPC was enacted, women had no rights independent of
their husbands, and were treated as chattel or "property" of their husbands. Hence, the offence of
adultery was treated as an injury to the husband, since it was considered to be a "theft" of his property,
for which he could proceed to prosecute the offender. The said classification is no longer relevant or
valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground
alone. (Para 272.3)
A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the
wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is
therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands
today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything
which is unreasonable, discriminatory, and arbitrary. (Para 272.4)
A provision previously not held to be unconstitutional, can be rendered so by later developments
in society, including gender equality. Section 497 IPC was framed in the historical context that the
infidelity of the wife should not be punished because of the plight of women in this country during
the 1860s. Women were married while they were still children, and often neglected while still young,
sharing the attention of a husband with several rivals. This situation is not true 155 years after the
provision was framed. With the passage of time, education, development in civil-political rights and
socio-economic conditions, the situation has undergone a sea change. The historical background in
which Section 497 was framed, is no longer relevant in contemporary society. (Paras 273.1 and 273.2)
Motor General Traders v. State of A.P., (1984) 1 SCC 222; Rattan Arya v. State of T.N., (1986) 3 SCC
385; John Vallamattom v. Union of India, (2003) 6 SCC 611, referred to
A Penal Code prepared by The Indian Law Commissioners (1838), Notes of Lord Thomas Babington
Macaulay, Note Q, referred to
Section 497 fails to consider both men and women as equally autonomous individuals in society.
The time when wives were invisible to the law, and lived in the shadows of their husbands, has long
since gone by. A legislation that perpetuates such stereotypes in relationships, and institutionalises
discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.
—| 74 |—
There is therefore, no justification for continuance of Section 497 IPC as framed in 1860, to remain on
the statute book. (Paras 273.4 and 273.5) Uma Chakravarti: Gendering Caste: Through a Feminist Lens
(STREE Publications 2003 p. 71; 156th Report on the Indian Penal Code (Vol. I), Law Commission
of India at Para 9.43 at p. 169; A Penal Code prepared by The Indian Law Commissioners (1838), The
Second Report on the Indian Penal Code; A Penal Code prepared by The Indian Law Commissioners
(1838), Notes of Lord Thomas Babington Macaulay, Note Q; 42nd Report on the Indian Penal Code,
Law Commission of India; 156th Report on the Indian Penal Code (Vol. I), Law Commission of India,
pp. 169-72; Report of the Committee on Reforms of Criminal Justice System, Government of India,
Ministry of Home Affairs, chaired by Justice VS. Malimath, (2003), referred to
K. Penal Code, I860 — S. 497 — Adultery — Provision discriminates against woman on ground
of sex only
— Provision an archaic law which seeks to perpetuate gender stereotype of women being
submissive and passive, not expected to exercise their sexual agency during marriage but infidelity of
men is normal — Treats woman as chattel and punishes man who commits theft of husband's property
— Recognises husband's control over wife's sexual agency — Thereby it demeans women because of
sex, while Constitution guarantees men and women equal status — Such discriminatory treatment
meted out to women on ground of sex only offends Art. 15(1) — Provision not conceived to benefit
women, hence not saved by Art. 15(3) — Constitution of India — Arts. 15(1) and (3) — Human and
Civil Rights — Right to Gender Equality/Freedom/Justice and against Discrimination — Generally
L. Constitution of India — Art. 15(3) — Enabling provision — Object is to effectuate protective
discrimination — To discriminate in favour of women, a form of affirmative action for their
advantage
— Has to be considered in entire context of Arts. 14 to 18, being constituent of a sin-
gle code on equality incorporating principle of non¬discrimination — Does not protect legislation
which perpetuates patriarchal notions in garb of protecting women — Human and Civil Rights —
Right to Gender Equality/Freedom/Justice and against Discrimination — Generally
Held:
Per Nariman, J.
Section 497 IPC is violative of Article 15(1) of the Constitution being discriminatory against women
on ground of sex only. (Para 105)
In treating a woman as chattel for the purposes of Section 497 IPC, it is clear that such provision
discriminates against women on grounds of sex only, and must be struck down on ground of being
violative of Article 15(3) of the Constitution. (Para 105)
Section 198 CrPC is also a blatantly discriminatory provision, in that it is the husband alone or somebody
on his behalf who can file a complaint against another man for this offence. Consequently, Section 198
has also to be held constitutionally infirm being violative of Article 15(1) of the Constitution. (Para
105)
Per Chandrachud, J.
From a joint reading of Section 497 IPC and Section 198(2) CrPC, the following propositions emerge:
—| 75 |—
(i) Sexual relations by a married woman with another man outside her marriage without the
consent of her husband is criminalised;
(ii) In an "adulterous relationship", the man is punished for adultery, while the woman is not (even
as an abettor);
(iii) Sexual relations by a married man with an unmarried woman are not criminalised;
(iv) Section 497 accords primacy to the consent of the husband to determine whether criminality is
attached to the man who has consensual sexual relations with the spouse of the former. Consent
or willingness of the woman is irrelevant to the offence;
(v) A man who has sexual relations with the spouse of another man is relieved of the offence only if
her spouse has consented or, even connived; and
(vi) Section 497 IPC, read with Section 198 CrPC, gives the man the sole right to lodge a complaint
and precludes a woman from initiating criminal proceedings. (Para 176)
The effect of Section 497, despite granting immunity from prosecution to the married woman, is
to attach a notion of wrongdoing to the exercise of her sexual agency. Despite exempting her from
prosecution, the exercise of her sexual agency is contingent on the consent or connivance of the
husband. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse
with another man, but the wife is not, if her husband does the same. Viewed from this angle, Section
497 discriminates between a married man and a married woman to her detriment on the ground of
sex. This kind of discrimination is prohibited by the non-discrimination guarantee in Article 15 of the
Constitution. Section 497 also places a woman within marriage and the man with whom she shares a
sexual relationship outside marriage on a different footing. (Para 178)
Section 497 criminalises the conduct of the man who has sexual intercourse with the wife of another
without his consent. It exempts women from criminal liability. Underlying this exemption is the
notion that women, being denuded of sexual agency, should be afforded the "protection" of the law.
In criminalising the accused who engages in the sexual relationship, the law perpetuates a gender
stereotype that men, possessing sexual agency are the seducers, and that women, as passive beings
devoid of sexual agency, are the seduced. The notion that a woman is "submissive", or worse still
"naive" has no legitimacy in the discourse of a liberal Constitution. It is deeply offensive to equality
and destructive of the dignity of the woman. On this stereotype, Section 497 criminalises only the
accused man. (Para 179)
Pertinent to the present enquiry, is that the provision allows only the husband to initiate a prosecution
for adultery. The consent or connivance of the husband precludes prosecution. If a husband consents,
his spouse is effectively granted permission to exercise her sexual agency with another individual.
This guarantees a degree of control to the husband over the sexual agency of his spouse. As a relic of
Victorian morality, this control over the sexual agency of the spouse, views the wife as the property
of the husband. Fidelity of the woman, and the husband's control over it, is seen as maintaining the
"property" interest of a husband in his wife. In this view, a woman is confounded with things that can
be possessed. In construing the spouse as a passive or inanimate object, the law on adultery seeks to
punish a person who attempts theft on the property of the husband. Sexual relations by a man with
another man's wife is therefore considered as theft of the husband's property. Ensuring a man's control
over the sexuality of his wife was the true purpose of Section 497. (Paras 180 and 181)
—| 76 |—
Phyllis Coleman: "Who's Been Sleeping in My Bed? You and Me, and the State Makes Three", Vol. 24,
Indian Law Review (1991); Women's Work, Men's Property: The Origins of Gender and Class (1986),
referred to
Underlying Section 497 is a gender stereotype that the infidelity of men is normal, but that of a woman
is impermissible. Implicit in seeking to privilege the fidelity of women in a marriage, is the assumption
that a woman contracts away her sexual agency when entering a marriage. Women are expected to be
chaste. A woman, by marriage, consents in advance to sexual relations with her husband or to refrain
from sexual relations outside marriage without the permission of her husband. Section 497 has a
significant social impact on the sexual agency of women. It builds on existing gender stereotypes and
bias and further perpetuates them. Cultural stereotypes are more forgiving of a man engaging in sexual
relations than a woman. In restricting the sexual agency of women, Section 497 gives legal recognition
to socially discriminatory and gender-based norms. This is also offensive to liberty and dignity. Such a
notion has no place in the constitutional order. Sexual autonomy constitutes an inviolable core of the
dignity of every individual. At the heart of the constitutional rights guaranteed to every individual is
a primacy of choice and the freedom to determine one's actions. Curtailing the sexual autonomy of a
woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional
values. (Paras 181 to 183)
The provision is grounded in and has a deep social effect on how society perceives the sexual agency
of women. In reinforcing the patriarchal structure which demands her controlled sexuality, Section
497 purports to serve as a provision envisaged for the protection of the sanctity of marriage. In the
context of a constitutional vision characterised by the struggle to break through the shackles of gender
stereotypes and guarantee an equal citizenship, Section 497 entrenches stereotypes and existing
structures of discrimination and has no place in a constitutional order. (Para 186)
In Navtej Singh Johar, (2018) 10 SCC 1, it was observed (SCC p. 222 para 438): "A discrimination
will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a
class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether
direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be
distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of
sex." In Yusuf Abdul Aziz, 1954 SCR 930, the Court construed the exemption granted to women from
criminal sanctions as a "special provision" for the benefit of women and thus, protected under Article
15(3) of the Constitution. It is of particular relevance to examine the mischief that the provision
intends to remedy. The history of Section 497 reveals that the law on adultery was for the benefit of
the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the
woman from exercising her sexual agency. Thus, Section 497 was never conceived to benefit women.
(Paras 185 and 118)
Union of India v. Elphinstone Spg. and Wvg. Co. Ltd., (2001) 4 SCC 139; Navtej Singh Johar v. Union
of India, (2018) 10 SCC 1 : (2019) 1 SCC (Cri) 1, relied on
Anuj Carg v. Hotel Assn. of India, (2008) 3 SCC 1, affirmed
Section 497 exempts a woman from being punished as an abettor. Underlying this exemption is the
notion that a woman is the victim of being seduced into a sexual relationship with a person who is not
her husband. In assuming that the woman has no sexual agency, the exemption seeks to be justified on
—| 77 |—
the ground of being a provision that is beneficial to women and protected under Article 15(3) of the
Constitution. This is contrary to the remedy which Article 15(3) sought to embody. (Para 187)
State ofA.P. v. P.B. Vijayakumar, (1995) 4 SCC 520 : 1995 SCC (L&S) 1056; Independent Thought v.
Union of India, (2017) 10 SCC 800 : (2018) 1 SCC (Cri) 13, affirmed
Article 15(3) encapsulates the notion of "protective discrimination". The constitutional guarantee in
Article 15(3) cannot be employed in a manner that entrenches paternalistic notions of "protection". This
latter view of protection only serves to place women in a cage. Article 15(3) does not exist in isolation.
Articles 14 to 18, being constituents of a single code on equality, supplement each other and incorporate
a non-discrimination principle. Neither Article 15(1), nor Article 15(3) allow discrimination against
women. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim the
protection of Article 15(3). In exempting women from criminal prosecution, Section 497 implies
that a woman has no sexual agency and that she was "seduced" into a sexual relationship. Given the
presumed lack of sexual agency, criminal exemption is then granted to the woman in order to "protect"
her. The "protection" afforded to women under Section 497 highlights the lack of sexual agency that
the section imputes to a woman. Article 15(3) when read with the other Articles in Part III, serves as
a powerful remedy to remedy the discrimination and prejudice faced by women for centuries. Article
15(3) as an enabling provision is intended to bring out substantive equality in the fullest sense. Dignity
and autonomy are crucial to substantive equality. Hence, Article 15(3) does not protect a statutory
provision that entrenches patriarchal notions in the garb of protecting women. (Para 189)
Per Indu Malhotra, J.
Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial
legislation in favour of women and children, to protect and uplift this class of citizens. Section 497 is a
penal provision for the offence of adultery, an act which is committed consensually between two adults
who have strayed out of the marital bond. Such a provision cannot be considered to be a beneficial
legislation covered by Article 15(3) of the Constitution. The true purpose of affirmative action is to
uplift women and empower them in socio-economic spheres. A legislation which takes away the rights
of women to prosecute cannot be termed as "beneficial legislation". (Para 274)
Thota Sesharathamma v. Thota Manikyamma, (1991) 4 SCC 312, affirmed
W. Kalyani v. State, (2012) 1 SCC 358 : (2012) 1 SCC (Cri) 445, considered
The purpose of Article 15(3) is to further socio-economic equality of women. It permits special
legislation for special classes. However, Article 15(3) cannot operate as a cover for exemption from an
offence having penal consequences. A section which perpetuates oppression of women is unsustainable
in law, and cannot take cover under the guise of protective discrimination. (Para 277)
Constitution of India — Arts. 366(10) and 372 — "Existing Law"
M. Penal Code, 1860 — S. 497 — An "existing law" enacted prior to the Constitution within mean-
ing of Art. 366(10), which continues by virtue of Art. 372(1) of Constitution — Constitution of
India, Arts. 366(10) and 372(1)
N. Constitution of India — Arts. 366(10), 372(1), 15(3), 16(4) and 19(2) to (6) — "Existing laws"
refer to pre-constitutional laws which continue to operate by virtue of Art. 372(1) — Expres-
—| 78 |—
sion "State making any laws" used in Arts. 19(2) to (6) refers to law made by State after Con-
stitution
Held:
Per Nariman, J.
Section 497 is, in constitutional language, an "existing law" which continues, by virtue of Article
372(1), to apply, and could not, therefore, be said to be a law made by the "State". (Para 87)
Articles 19(2) to (6) clearly refer to "existing law" as being separate from "the State making any law",
indicating that the State making any law would be laws made after the Constitution comes into force as
opposed to "existing law", which are pre-constitutional laws enacted before the Constitution came into
force, as is clear from the definition of "existing law" contained in Article 366( 10). (Para 89) Dattatraya
MotiramMore v. State of Bombay, 1952 SCC Online Bom 120 : AIR 1953 Bom 311, criticised Article
15(3) refers to the State making laws which therefore, obviously cannot include existing law. Article
15(3) is in this respect similar to Article 16(4). The vital difference in language between Articles 15(3)
and 16(4) on the one hand, and Articles 19(2) to.(6) on the other, must thus be given effect. (Para 90)
O. Penal Code, 1860—S. 497—Adultery as a crime—It encroaches upon women's liberty, dignity,
privacy, sexual autonomy and freedom of choice in matters of sexuality — Hence violative of
Art. 21 of the Constitution
— By criminalising adultery, it seeks to enforce fidelity in marriage by coercive means
which amounts to intrusion into core of privacy — Further, underlying command to remain loyal
in matrimonial relationship is socio-moral in nature which has no place in evolving concept of
constitutional morality — It confers power to prosecute adulterer on husband of adulteress and
whether crime itself committed also made dependent upon "consent or connivance" of husband —
But consent of adulteress irrelevant in constituting offence if ingredients of the provision satisfied —
Wife of adulterer also incapable of making complaint for prosecution of adulterer — Such masculine
chauvinism downgraded status of married women to mere chattel or property of husband
— Thereby women are denuded of their identity, right to liberty and dignity — P rov i s i o n
also disregards sexual autonomy of women and disallows them to make fundamental choices regarding
sexuality — In view of violation of these basic rights, equally guaranteed to women by the Constitution,
this anachronistic provision deserves to be struck down — Constitution of India, Art. 21
P. Constitution of India — Arts. 15,14,21 and 32 — Role of constitutional court in case of viola-
tion of fundamental rights of women — Court would be obliged to step in to ensure that these
rights be enjoyed equally by women as well in fullest sense
Q. Constitution of India — Art. 21 — Identity — Human sexuality Is an essential aspect of iden-
tity — Identity of an individual must be as an individual in her/his own right — Woman's
Identity does not get submerged as a result of her marriage — If women are forced to think
as men or how society desires, that would be disastrous to their identity — Human and Civil
Rights — Right to Identity/Identification/Aadhaar — Generally
R. Constitution of India — Art. 21 — Sexual autonomy and dignity — Individual has sovereign-
ty over own body and can surrender it wilfully to another individual — Autonomy to fulfil
—| 79 |—
sexual desires in pursuit of happiness is intrinsic to dignified human existence—To character-

ise woman as a passive object denuded of sexual agency is denial of autonomy — Respect for
sexual autonomy of woman is founded on equality
S. Constitution of India — Art. 21 — Freedom of choice in matters of sexuality — Reflective of
human desire of expression and to be intimate with person of choice — To make sexual choice
by an individual is a facet of human liberty and dignity
T. Constitution of India — Art. 21 — Privacy of women — Connotes acts within their personal
sphere which includes exercise of sexual agency — Men's control over wife's sexuality results
in violation of Art. 21 — Privacy and personal liberty are, however, subject to reasonable
restrictions when legitimate public interests involved — Freedom to have consensual sexual
relationship outside marriage by a married person does not warrant protection under Art. 21
— Human and Civil Rights — Right to Privacy
U. Constitution of India — Art 21 — Liberty — Perspective of public interest relevant — Human
and Civil Rights — Right to Liberty and Freedom
Held:
Individual dignity has a sanctified realm in a civilised society. The civility of a civilisation earns warmth
and respect when it respects more the individuality of a woman. The said concept gets a further accent
when a woman is treated with the real spirit of equality with a man. Any system treating a woman with
indignity, inequity and inequality or discrimination invites the wrath of the Constitution. A woman
cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it
slaughters her core identity. (Para 1)
There cannot be a patriarchal monarchy over the daughter or, for that matter, husband's monarchy over
the wife. That apart, there cannot be a community exposition of masculine dominance. A husband is
not the master. Equality is the governing parameter. All historical perceptions should evaporate and
their obituaries be written. (Paras 43 and 1)
R. v. R., (1992) 1 AC 599 : (1991) 3 WLR 767 : (1991) 4 All ER 481 (HL), relied on
Arun Kumar Agrawal v. National Insurance Co. Ltd., (2010) 9 SCC 218 : (2010) 3 SCC (Civ) 664 :
(2010) 3 SCC (Cri) 1313; State ofM.P. v. Madanlal, (2015) 7 SCC 681 : (2015) 3 SCC (Cri) 287; Pawan
Kumarv. State of HP., (2017) 7 SCC 780: (2017) 4 SCC (Cri) 161; Shamima Farooqui v. ShahidKhan,
(2015) 5 SCC 705 ; (2015) 3 SCC (Civ) 274 : (2015) 2 SCC (Cri) 785; Voluntary Health Assn. of Punjab
v. Union of India, (2013) 4 SCC 1 : (2013) 2 SCC (Cri) 287; Cham Khurana v. Union of India, (2015) 1
SCC 192 : (2015) 1 SCC (L&S) 161; Shakti Vahini v. Union of India, (2018) 7 SCC 192 : (2018) 3 SCC
(Civ) 580 : (2018) 3 SCC (Cri) 1, affirmed
Ajit Savant Majagvai v. State ofKarnataka, (1997) 7 SCC 110 : 1997 SCC (Cri) 992; Madhu Kishwar v.
State of Bihar, (1996) 5 SCC 125; State of HP. v. Nikku Ram, (1995) 6 SCC 219 :1995 SCC (Cri) 1090,
cited
The Due Process of Law (Butterworths, London 2002) p. 212, relied on
John Stuart Mill, On Subjection of Women, Chapter 1 (1869), referred to
—| 80 |—
In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and
also makes the adulterer the culprit. This expectation by law is a command which gets into the core of
privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may
part on the said ground but to attach criminality to the same is inapposite. (Para 63)
The Court, with the passage of time, has recognised the conceptual equality of woman and the essential
dignity which a woman is entitled to have. There can be no curtailment of the same. But, Section 497
IPC effectively does the same by creating invidious distinctions based on gender stereotypes which
creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance
or consent of the husband tantamounts to subordination of women. Therefore, Section 497 IPC offends
Article 21 of the Constitution. (Para 48)
K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1; Common Cause v. Union of India,
(2018) 5 SCC 1, relied on
National Legal Services Authority v. Union of India, (2014) 5 SCC 438, affirmed
Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 : 1980 SCC (Cri) 815; Francis CoralieMullin v.
State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212; Bandhua MuktiMorcha v. Union of India,
(1984) 3 SCC 161 : 1984 SCC (L&S) 389; Maharashtra University of Health Sciences v. Satchikitsa
Prasarak Mandal, (2010) 3 SCC 786 : (2010) 1 SCC (L&S) 894; Shabnam v. Union of India, (2015) 6
SCC 702 : (2015) 3 SCC (Cri) 355; Jeeja Ghosh v. Union of India, (2016) 7 SCC 761: (2016) 3 SCC
(Civ) 551; Mehmood NayyarAzam v. State ofChhattisgarh, (2012) 8 SCC 1: (2012) 4 SCC (Civ) 34 :
(2012) 3 SCC (Cri) 733 : (2012) 2 SCC (L&S) 449, Cited
The dignity of the individual, which is spoken of in the Preamble to the Constitution of India, is a facet
of Article 21 of the Constitution, A statutory provision belonging to the hoary past which demeans
or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be
struck down on this ground also. (Para 107)
K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, relied on
Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360; Prem Shankar Shukla v. Delhi Admn.,
(1980) 3 SCC 526 : 1980 SCC (Cri) 815, cited

In the preceding years, the Court has evolved a jurisprudence of rights— granting primacy to the
right to autonomy, dignity and individual choice. The right to sexual autonomy and privacy has been
granted the stature of a constitutional right. In confronting the sources of gendered injustice which
threaten the rights and freedoms promised in our Constitution, the validity of Section 497 IPC has to
be examined. In doing so, the constitutionality of moral and societal regulation of women and their
intimate lives through the law have also to be tested. (Para 114)
Section 497 IPC, in its effort to protect the sanctity of marriage, has adopted a notion of marriage
which does not regard the man and the woman as equal partners. It proceeds on the subjection of the
—| 81 |—
woman to the will of her husband. In doing so, Section 497 IPC subordinates the woman to a position
of inferiority thereby offending her dignity, which is the core of Article 21 of the Constitution.
(Para 124)
The criminalisation of adultery came at a social cost: of disregarding the agency of a woman as a
sentient being. The law on adultery is but a codified rule of patriarchy. Patriarchy has permeated the
lives of women for centuries. Ostensibly, society has two sets of standards of morality forjudging sexual
behaviour. One set for its female members and another for males. Society ascribes impossible virtues to
a woman and confines her to a narrow sphere of behaviour by an expectation of conformity. Raising a
woman to a pedestal is one part of the endeavour. The second part is all about confining her to a space.
The boundaries of that space are defined by what a woman should or should not be. A society which
perceives women as pure and an embodiment of virtue has no qualms of subjecting them to virulent
attack: to rape, honour killings, sex determination and infanticide. As an embodiment of virtue, society
expects the women to be a mute spectator to and even accepting of egregious discrimination within
the home. This is part of the process of raising women to a pedestal conditioned by male notions of
what is right and what is wrong for a woman. The notion that women, who are equally entitled to
the protections of the Constitution as their male counterparts, may be treated as objects capable of
being possessed, is an exercise of subjugation and inflicting indignity. Anachronistic conceptions of
"chastity" and "honour" have dictated the social and cultural lives of women, depriving them of the
guarantees of dignity and privacy, contained in the Constitution. The right to privacy depends on
the exercise of autonomy and agency by individuals. In situations where citizens are disabled from
exercising these essential attributes, courts must step in to ensure that dignitj is realised in the fullest
sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated.
To grant immunity in situation! when rights of individuals are in siege, is to obstruct the unfolding
vision of the Constitution. Section 497 seeks the preservation of a construct of marriage in wbicl
female fidelity is enforced by the letter of the law and by the coercive authority o the State. Such a
conception goes against the spirit of the rights-based jurisprudence of the Supreme Court, which
seeks to protect the dignity of an individual and her "intimate personal choices". It cannot be held that
these rights cease to exist once the woman enters into a marriage. (Paras 190 to 192 and 202)
Charles Jean Marie Letorneau, The Evolution of Marriage (2011); Nandita Haksar, "Dominance,
Suppression and the Law" in Lotika Sarkar and B. Sivaramayya (Eds.), Women and the Law:
Contemporary Problems, (Vikas Publishing House 1994), referred to
Control over women's sexuality is the key patriarchal assumption that underlies family and marriage.
When it shifts to the "public" as opposed to the "private", the misogyny becomes even more pronounced.
Section 497 embodies this. By the operation of the provision, women's sexuality is sought to be
controlled in a number of ways. First, the husband and he alone is enabled to prosecute the man with
whom his wife has sexual relations. Even in cases where the relationship is based on the consent of the
woman, the law treats it as an offence, denying a woman who has voluntarily entered into a consensual
relationship of her sexual agency. Second, such a relationship would be beyond the reach of penal law
if her husband consents to it. The second condition is a telling reflection of the patriarchal assumption
underlying the criminal provision: that the husband is the owner of the wife's sexual agency.(Para 195)
Nivedita Menon, Seeing like a Feminist, (Zubaan Books 2012) p. 35, relied on
—| 82 |—
Patriarchy and paternalism are the underpinnings of Section 497. It needs no iteration that misogyny
and patriarchal notions of sexual control find no place in a constitutional order which has recognised
dignity as intrinsic to a person, autonomy being an essential component of this right. The operation
of Section 497 denotes that "adulterous women" virtually exercise no agency; or at least not enough
agency to make them criminally liable. They are constructed as victims. As victims, they are to be
protected by being exempt from sanctions of a criminal nature. Not only is there a denial of sexual
agency, women are also not seen to be harmed by the offence. Thus, the provision is not simply about
protecting the sanctity of the marital relationship. It is all about protecting a husband's interest in his
"exclusive access to his wife's sexuality". (Para 197)
Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, (Sage
Publications 1996) pp. 119-120, referred to
Section 497 chains the woman to antediluvian notions of sexuality. Sexual autonomy as a facet of
individual liberty, is protected under Article 21 of the Constitution. To characterise a woman as a
passive object, denuded of agency, is a denial of autonomy. (Paras 198 and 199)
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1: (2019) 1 SCC (Cri) 1, relied on
David A.J. Richards, "Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in
Human Rights and the Unwritten Constitution", Hastings Law Journal, Vol. 30, at pp. 1000-1001;
Thomas M. Jr. Scanlon, "Rawls' Theory of Justice", University of Pennsylvania Law Review (1973) at
p. 1022; Id, p. 1023, referred to
The identity of the woman must be as an "individual in her own right". In that sense, her identity does
not get submerged as a result of her marriage. Section 497 lays down the norm that the identity of a
married woman is but as the Wife of her spouse. Underlying the norm is a notion of control over and
subjugation of the woman. Such notions cannot withstand scrutiny under a liberal Constitution.
(Para 203)
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 : (2019) 1 SCC (Cri) 1, relied on
In criminalising adultery, the legislature has imposed its imprimatur on the control by a man over the
sexuality of his spouse. In doing that, the statutory provision fails to meet the touchstone of Article 21.
Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the encroachment
on her right to life and personal liberty by adopting a notion of marriage which subverts true equality.
Equality is subverted by lending the sanctions of the penal law to a gender biased approach to the
relationship of a man and a woman. The statute confounds paternalism as an instrument for protecting
marital stability. It defines the sanctity of marriage in terms of a hierarchical ordering which is skewed
against the woman. The law gives unequal voices to partners in a relationship. (Para 209)
This judgment has dwelt on the importance of sexual autonomy as a value which is integral to life and
personal liberty under Article 21. Individuals in a relationship, whether within or outside marriage,
have a legitimate expectation that each will provide to the other the same element of companionship
and respect for choices. Respect for sexual autonomy is founded on the equality between spouses
and partners and the recognition by each of them of the dignity of the other. Control over sexuality
attaches to the human element in each individual. Marriage —whether it be a sacrament or contract—
does not result in ceding of the autonomy of one spouse to another. (Para 210)
—| 83 |—
Shafin Jahan v. Asokan KM., (2018) 16 SCC 368 : (2019) 1 SCC (Civ) 446, affirmed Nivedita Menon:
Seeing like a Feminist, (Zubaan Books 2012) p. 135; quoting Archana Verma, Stree Vimarsh Ke
Mahotsav (2010), referred to
The hallmark of a truly transformative Constitution is that it promotes and engenders societal change.
To consider a free citizen as the property of another is an anathema to the ideal of dignity. Section
497 denies the individual identity of a married woman, based on age-old societal stereotypes which
characterised women as the property of their spouse. It is the duty of the Supreme Court to break
these stereotypes and promote a society which regards women as equal citizens in all spheres of life—
irrespective of whether these spheres may be regarded as "public" or "private". (Para 213)
The right to privacy depends on the exercise of autonomy and agency by individuals. In situations
where citizens are disabled from exercising these essential attributes, courts must step in to ensure that
dignity is realised in the fullest sense. Familial structures cannot be regarded as private spaces where
constitutional rights are violated. To grant immunity in situations when rights of individuals are in
siege, is to obstruct the unfolding vision of the Constitution. (Para 192)
In remedying injustices, the Court cannot shy away from delving into the "personal", and as a
consequence, the "public". It becomes imperative to intervene when structures of injustice and
persecution deeply entrenched in patriarchy are destructive of constitutional freedom. But, in
adjudicating on the rights of women, the Court is not taking on a paternalistic role and "granting"
rights. The Court is merely interpreting the text of the Constitution to re-state what is already set
in ink—women are equal citizens of this nation, entitled to the protections of the Constitution. Any
legislation which results in the denial of these constitutional guarantees to women, cannot pass the test
of constitutionality. (Para 196)
The right to privacy and personal liberty is not an absolute one; it is subject to reasonable restrictions
when legitimate public interest is involved. It is true that the boundaries of personal liberty are difficult
to be identified in black and white; however, such liberty must accommodate public interest. The
freedom to have a consensual sexual relationship outside marriage by a married person, does not
warrant protection under Article 21. (Para 278)
In the context of Article 21, an invasion of privacy by the State must be justified on the basis of a law
that is reasonable and valid. Such an invasion must meet a threefold requirement as set held in K.S.
Puttaswamy (Privacy-9J.), (2017) 10 SCC 1: (i) legality, which postulates the existence of law; (ii) need,
defined in terms of a legitimate State interest, and (Hi) proportionality, which ensures a rational nexus
between the object and the means adopted. Section 497 as it stands today, fails to meet the threefold
requirement, and must therefore be struck down. (Para 279)
Adultery as criminal offence — Propriety
V. Penal Code, 1860 — S. 497 — Adultery should not be treated as criminal offence — It can be a
ground for civil wrong including dissolution of marriage
— Treating adultery an offence would tantamount to State entering into privacy of matrimonial
sphere and impinging on rights to liberty, dignity, equality and autonomy, which would offend Art.
—| 84 |—
21 of the Constitution — Adultery envisages a tripartite involvement of adulterer, adulteress and

husband of adulteress—Though several enactments made by Parliament provided penal offences
in matrimonial matters for protection of women but those are meant for other purposes relating to
matrimonial relationship and extinction of life of married women during subsistence of marriage and
there is no third party involvement therein — Therefore, adultery should be left as a ground of divorce
—Constitution of India — Art. 21 — Family and Personal Laws — Marriage, Divorce, Other Unions
and Children — Alienation of Affection — Divorce — Grounds for Divorce — Adultery
W. Jurisprudence — Transnational jurisprudence — Decisions on a point rendered by judiciary
across the world lead to creation of a rich body of transnational jurisprudence — Interpreta-
tion of Statutes — External Aids — Foreign case-law/law
X. Criminal Jurisprudence — Generally — Crime — What is — Public wrongs — Criminal sanc-
tion justified where there is public element in wrong, where victim is not individual but com-
munity as a whole — State must follow minimalist approach in criminalising offences and
avoid criminal sanction where civil remedy will serve the purpose
Held:
Even assuming that the new definition of adultery encapsules within its scope sexual intercourse with
an unmarried woman or a widow, adultery is basically associated with the institution of marriage.
There is no denial of the fact that marriage is treated as a social institution and regard being had to
various aspects that social history has witnessed in this country, Parliament has always made efforts
to maintain the rights of women. For instance, Section 498-A IPC deals with husband or relative
of husband of a woman subjecting her to cruelty. Parliament has also brought in the Protection of
Women from Domestic Violence Act, 2005. This enactment protects women. It also enters into the
matrimonial sphere. But adultery is different from an offence committed under Section 498-A or
any violation of the Protection of Women from Domestic Violence Act, 2005 or, for that matter, the
protection conceived of under Section 125 of the Code of Criminal Procedure or Sections 306 or 304-
B or 494 IPC. These offences are meant to subserve various other purposes relating to a matrimonial
relationship and extinction of life of a married woman during subsistence of marriage.
(Paras 49 and 57)
Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 : (2013) 4 SCC (Civ) 616 : (2013) 3
SCC (Cri) 801; Ghusabhai Raisangbhai Chorasiya v. State of Gujarat, (2015) 11 SCC 753 : (2015) 4
SCC (Cri) 545, referred to
Edmund Burke had said, "a good legislation should be fit and equitable so that it can have a right to
command obedience". Burke would like to put it in two compartments, namely, "equity" and "utility".
If the principle of Burke is properly understood, it conveys that laws and legislations are necessary to
serve and promote a good life. (Para 50)
Under the existing Section 497 IPC, the husband is treated as an aggrieved person and the wife is
ignored as a victim. Presently, the provision is reflective of a tripartite labyrinth. A situation may be
conceived of where equality of status and the right to file a case may be conferred on the wife. In either
situation, the whole scenario is extremely private. It stands in contradistinction to the demand for
dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a complaint
—| 85 |—
for second marriage. Adultery stands on a different footing from the aforesaid offences. Adultery does
not fit into the concept of crime. If it is treated as a crime, there would be immense intrusion into the
extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce. For any other
purpose as Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will
offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case
may be, and the privacy attached to a relationship between the two. (Para 58)
Common Cause v. Union of India, (2018) 5 SCC 1, relied on
Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, (1986) 3 SCC 156 :1986 SCC
(L&S) 429, affirmed
Halsbury's Laws of England, Vol. 11 (4th Edn.) p. 11; Kenny's Outlines of Criminal Law, 19th Edn.,
1966 by J.W. Cecil Turner, referred to
Earldom of Oxford, In re, (1625) W Jo 96 : 82 ER 50, cited
Adultery as a crime is no more prevalent in People's Republic of China, Japan, Australia, Brazil
and many western European countries. The diversity of culture in those countries can be judicially
taken note of. Non-criminalisation of adultery, apart from what has been stated hereinabove, can be
proved from certain other facets. When the parties to a marriage lose their moral commitment of the
relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with
the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a
matter of privacy at its pinnacle. The theories of punishment, whether deterrent or reformative, would
not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out
to either of them or a third party. (Para 64)
By no stretch of imagination, one can say, that Section 498-A or any other provision, as mentioned
hereinbefore, also enters into the private realm of matrimonial relationship. In case of the said offences,
there is no third party involved. It is the husband and his relatives. There has been correct imposition
by law not to demand dowry or to treat women with cruelty so as to compel her to commit suicide.
The said activities deserve to be punished and the law has rightly provided so. (Para 59)
Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It
is difficult to conceive of such situations in absolute terms. The issue that requires to be determined
is whether the said "act" should be made a criminal offence especially when on certain occasions,
it can be the cause and in certain situations, it can be the result. If the act is treated as an offence
and punishment is provided, it would tantamount to punishing people who are unhappy in marital
relationships and any law that would make adultery a crime would have to punish indiscriminately
both the persons whose marriages have been broken down as well as those persons whose marriages
are not. A law punishing adultery as a crime cannot make distinction between these two types of
marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness.
(Para 65)
Thinking of adultery from the point of view of criminality would be a retrograde step. The Supreme
Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely
inappropriate to sit in a time machine to a different era where the machine moves on the path of
regression. Hence, to treat adultery as a crime would be unwarranted in law. (Para 66)
—| 86 |—
Adultery is better to be left as a ground for any kind of civil wrong including dissolution of marriage. As
Section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate
to declare Section 198 CrPC which deals with the procedure for filing a complaint in relation to the
offence of adultery as unconstitutional. When the substantive provision goes, the procedural provision
has to pave the same path. (Paras 50 and 67)
International trends worldwide indicate that very few nations continue to treat adultery as a crime,
though most nations retain adultery for the purposes of divorce laws. (Para 98)
James Sibongo v. Lister Lutombi Chaka, Case No. SA 77 of 2014, decided on 19-8-2016 (SC of Namibia);
Wassenaar v. Jameson, (1969) 2 SA 349 (W), referred to
De v. Rh, 2015 SCC Online ZACC 18 : (2015) 5 SA 83 (CC), cited
2009 Hun-Ba 17, (26-2-2015) [Constitutional Court of South Korea]; Expediente 936-95, (7-3-1996),
Republica de Guatemala Corte de Constitucionalidad [Constitutional Court of Guatemala], referred
to
The last few decades have been characterised by numerous countries around the world taking
measures to decriminalise the offence of adultery due to the gender discriminatory nature of adultery
laws as well as on the ground that they violate the right to privacy. However, progressive action has
primarily been taken on the ground that provisions penalising adultery are discriminatory against
women either patently on the face of the law or in their implementation. Reform towards achieving
a more egalitarian society in practice has also been driven by active measures taken by the United
Nations and other international human rights organisations, where it has been emphasised that even
seemingly gender-neutral provisions criminalising adultery cast an unequal burden on women. The
abolishing of adultery has been brought about in equal measure by legislatures and courts. When
decisions have been handed down by the judiciary across the world, it has led to the creation of a rich
body of transnational jurisprudence. (Para 144)
Law & Advocacy for Women in Uganda v. Attorney General of Uganda, 2007 SCC OnLine UGCC 1;
De v. Rh, 2015 SCC OnLine ZACC 18 : (2015) 5 SA 83 (CC), referred to
UN Working Group on Women's Human Rights: Report (18-10-2012) ' available at: <http://
newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsH)=12672&LangiD=E>;
at <http://english.ccourt.goJa/cckhome/eng/ decisions/majordecisions/majorDetail.do>; Fkstpost,
"South Korean court abolishes law that made adultery illegal", (26-2-2015), available at <https://
www.firstpost.com/world/ south-korean-court-abolishes-law-saying-adultery-is-illegal-2122935.
hunl>; Opinions of Park Han-Chul, Lee Jin-Sung, Kim Chang-Jong, Seo Ki-Seog and Cho Yong-Ho,
JJ. (Adultery is Unconstitutional); Article 10 of the South Korean Constitution; Case No: 2009Hun-
Bal7, (Adultery Case), South Korean Constitutional Court (26-2-2015), available at <http://english.
ccourt.go.kr/cckhome/ eng/decisions/majordecisions/majorDetail.do>, Part V-A (3)(1) ("Change in
Public's Legal Awareness" under the head of "Appropriateness of Means and Least Restrictiveness");
at <http://english.ccourt.go.kr/cckhome/ eng/decisions/majordecisions/majorDetail.do>, Part V-A
—| 87 |—
(3)(3) ("Effectiveness of Criminal Punishment", under the head of "Appropriateness of Means and
Least Restrictiveness"); Case No: 2009Hun-Bal7, (Adultery Case), South Korean Constitutional
Court (26-2-2015), available at <http://english.ccourt.go.kr/cckhome/eng/decisions/ majordecisions/
majorDetail.do, Part V-A (5) ("Balance of Interests & Conclusion"), referred to
Recognition of sexual autonomy as inhering in each individual and of the r elements of privacy and
dignity have a bearing on the role of the State in regulating the conditions and consequences of marital
relationships. There is a fundamental reason which militates against criminalisation of adultery. Its
genesis lies in the fact that criminalising an act is not a valid constitutional response to a sexual
relationship outside the fold of marriage. Adultery in the course of a subsisting marital relationship
may, and very often does question the commitment of the : spouse to the relationship. In many cases,
a sexual relationship of one of the spouses outside of the marriage may lead to the end of the marital
relationship. But in other cases, such a relationship may not be the cause but the consequence of a pre-
existing disruption of the marital tie. All too often, spouses who have drifted apart irrevocably may be
compelled for reasons personal to them to continue with the veneer of a marriage which has ended
for all intents and purposes. The interminably long delay of the law in the resolution of matrimonial
conflicts is an aspect which cannot be ignored. The realities of human existence are too complex to
place them in closed categories of right and wrong and to subject all that is considered wrong with the
sanctions of penal law. Just as all conduct which is not criminal may not necessarily be ethically just,
all conduct which is inappropriate does not justify being elevated to a criminal wrongdoing.(Para 211)
The State undoubtedly has a legitimate interest in regulating many aspects of marriage. That is the
foundation on which the State does regulate rights, entitlements and duties, primarily bearing on
its civil nature. Breach by one of the spouses of a legal norm may constitute a ground for dissolution
or annulment. When the State enacts and enforces such legislation, it does so on the postulate that
marriage as a social institution has a significant bearing on the social fabric. But in doing so, the State
is equally governed by the norms of a liberal Constitution which emphasise dignity, equality and
liberty as its cardinal values. The legitimate aims of the State may, it must be recognised, extend to
imposing penal sanctions for certain acts within the framework of marriage. Physical and emotional
abuse and domestic violence are illustrations of the need for legislative intervention. The Indian State
has legitimately intervened in other situations such as by enacting anti-dowry legislation or by creating
offences dealing with the harassment of women for dowry within a marital relationship. The reason
why this constitutes a legitimate recourse to the sovereign authority of the State to criminalise conduct
is because the acts which the State proscribes are deleterious to human dignity. In criminalising certain
types of wrongdoing against women, the State intervenes to protect the fundamental rights of every
woman to live with dignity. Consequently, it is important to underscore that this judgment does not
question the authority and even the duty of the State to protect the fundamental rights of women from
being trampled upon in unequal societal structures. Adultery as an offence does not fit that paradigm.
In criminalising certain acts, Section 497 has proceeded on a hypothesis which is deeply offensive to
the dignity of women. It is grounded in paternalism, solicitous of patriarchal values and subjugates
the woman to a position where the law disregards her sexuality. The sexuality of a woman is part of
her inviolable core. Neither the State nor the institution of marriage can disparage it. By reducing the
woman to the status of a victim and ignoring her needs, the provision penalising adultery disregards
something which is basic to human identity. Sexuality is a definitive expression of identity. Autonomy
over one's sexuality has been central to human urges down through the ages. It has a constitutional
foundation as intrinsic to autonomy. It is in this view of the matter that it has been concluded that
—| 88 |—
Section 497 is violative of the fundamental rights to equality and liberty as indeed, the right to pursue
a meaningful life within the fold of Articles 14 and 21. (Para 212)
Criminal sanction may be justified where there is a public element in the wrong, such as offences
against State security, and the like. These are public wrongs where the victim is not the individual, but
the community as a whole. Adultery undoubtedly is a moral wrong qua the spouse and the family.
But there is no sufficient element of wrongfulness to society in general, in order to bring it within the
ambit of criminal law. (Paras 281 and 281.1)
The element of public censure, visiting the delinquent with penal consequences, and overriding
individual rights, would be justified only when the society is directly impacted by such conduct. In
fact, a much stronger justification is required where an offence is punishable with imprisonment.
The State must follow the minimalist approach in the criminalisation of offences, keeping in view the
respect for the autonomy of the individual to make his/her personal choices. (Paras 281.2 and 281.3)
The right to live with dignity includes the right not to be subjected to public censure and punishment
by the State except where absolutely necessary. In order to determine what conduct requires State
interference through criminal sanction, the State must consider whether the civil remedy will serve
the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction
by the State. (Para 281.4)
Oliverson v. West Valley City, 875 F Supp 1465 (1995); Lawrence v. Texas, 2003 SCC OnLine US SC
73 : 156 L Ed 2d 508 : 539 US 558 (2003); RH v. DE, 2013 SCC OnLine ZASCA 94 : 2014 ZASCA 133;
Green v. Fitzgerald, 1914 AD 88; Adultery case, 27-1 (A) KCCR 20 (26-2-2015), referred to
Illinois Criminal Code, 720ILCS 5/11-35, Adultery; Martin Siegel, "For Better or for Worse: Adultery,
Crime & the Constitution", 30 Journal of Family Law 45,51-52 (1991); Abhinav Sekhri, "The Good, The
Bad, and The Adulterous: Criminal Law and Adultery in India", 10 Socio Legal Review 47 (2014); Utah
Code Ann. 76-7-103; New York Penal Laws, Article 255.17-Adultery; Criminal Code of Canada, 1985,
Section 172; Divorce Act, 1968; S. 54(l)(a), Law Reform (Marriage and Divorce) Act, 1976. [Malaysia];
S. 58, Law Reform (Marriage and Divorce) Act, 1976. [Malaysia]; S. 183, Penal Code, 1907 [Japan];
H. Meyers, "Revision of Criminal Code of Japan", Washington Law Review & State Bar Journal, Vol.
25, (1950) pp. 104-34; Article 770, Civil Code, 1896. [Japan]; Anayasa Mahkemesi, 1996/15; 1996/34
(23-9-1996); No. 15 CVS 5646 (2017) (Superior Court of North Carolina); Oxford University Press,
(7th Edn.) May 2013; A.P. Simester and Andreas von Hirsch: Crimes, Harms, and Wrongs: On The
Principles of Criminalisation, (Hart Publishing, Oxford 2011), referred to
Constitutional Morality and Transformative Constitutionalism
Y. Constitutional Law — Constitutional Morality/Values and Transformative Constitutionalism
— Constitutional morality — Different from "common morality" — Constitutional morality
recognises certain indispensable rights for free, equal and dignified existence — State should
be guided by values of constitutional morality in making law relating to exercise of sexual
agency by women — Commitment to constitutional morality obliges Court to enforce consti-
tutional guarantees — Constitution of India, Arts. 14, 15 and 21
Held:
—| 89 |—
Per Chandrachud, J.
It is not the "common morality" of the State at any time in history, but rather constitutional morality,
which must guide the law. In any democracy, constitutional morality requires the assurance of certain
rights that are indispensable for the free, equal, and dignified existence of all members of society. A
commitment to constitutional morality requires the Court to enforce the constitutional guarantees of
equality before law, non-discrimination on account of sex, and dignity, all of which are affected by the
operation of Section 497. (Para 143)
Z. Constitution of India — Pt. Ill — Role of the Constitution in evolution of law — In process of
evolution, law operates as "site for discursive struggle" where ideas compete and new visions
are shaped
Held:
Per Chandrachud, J.
The Constitution, both in text and interpretation, has played a significant role in the evolution of law
from being an instrument of oppression to becoming one of liberation. Used in a liberal perspective,
the law can enhance democratic values. As an instrument which preserves the status quo on the other
hand, the law preserves stereotypes and legitimises unequal relationships based on pre-existing societal
mscximination. Constantly evolving, law operates as an important "site for discursive struggle", where
ideals compete and new visions are shaped. In regarding law as a "site of discursive struggle", it becomes
imperative to examine the institutions and structures within which legal discourse operates. (Para
113) Ratna Kapur and BrendaCossman, SubversiveSiies: Feminist Engagements with Law in India
(Sage Publications 1996) p. 41; Gayatri Spivak, Post-Colonial Critic: Interviews, Strategies, Dialogues
(Routledge 1990), referred to
ZA. Precedents — Generally — Doctrine of, how affected by transformative constitutionalism —
Cohesive adjustment
— When constitutionality of a law is assailed, Court has to keep in mind normative changes,
principle of transformative constitutionalism and evolving concept of recognising certain rights
as forming part of fundamental rights such as Arts. 14 and 21 of the Constitution — If in process
precedent loses its efficacy, cohesive adjustment is needed to effectuate progressive interpretation —
Constitution of India — Arts. 141, 14 and 21 — Constitutional Law — Constitutional Morality/Values
and Transformative Constitutionalism
Held:
It is not correct to say that the precedents are not to be treated as such and that it is excuse of perceptual
shift of law, the binding nature of precedent should not be allowed to retain its status or allowed to be
diluted. When a constitutional court faces such a challenge, namely, to be detained by a precedent or
to grow out of the same because of the normative changes that have occurred in the other arenas of law
and the obtaining precedent does not cohesively fit into the same, the concept of cohesive adjustment
has to be in accord with the growing legal interpretation and the analysis has to be different, more
so, where the emerging concept recognises a particular right to be planted in the compartment of
a fundamental right, such as Articles 14 and 21 of the Constitution. In such a backdrop, when the
—| 90 |—
constitutionality of a provision is assailed, the Court is compelled to have a keen scrutiny of the
provision in the context of developed and progressive interpretation.
A constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives
of human beings who transcendentally grow. It can be announced with certitude that transformative
constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any
kind of regressive approach. The whole thing can be viewed from another perspective. What might be
acceptable at one point of time may melt into total insignificance at another point of time. However, it
is worthy to note that the change perceived should not be in a sphere of fancy or individual fascination,
but should be founded on the solid bedrock of change that the society has perceived, the spheres in
which the legislature has responded and the rights that have been accentuated by the constitutional
courts. (Para 4)
ZB. Jurisprudence — Certainty of law — No inflexible concept can be laid down in view of societal
changes and expansion of rights by Court on interpretation of organic and living Constitution
of India
Held:
Though there is necessity of certainty of law, yet with the societal changes and more so, when the rights
are expanded by the Court in respect of certain aspects having regard to the reflective perception of
the organic and living Constitution, it is not apposite to have an inflexible stand on the foundation that
the concept of certainty of law should be allowed to prevail and govern. The progression in law and the
perceptual shift compels the present to have a penetrating look to the past. (Para 3)
ZC. Jurisprudence — Law and society — Social reforms — Role of law in influencing society and
societal values — Law must be understood as a discourse about social structuring
ZD. Jurisprudence — Law and society — Role of law and society in bringing gender equality — Pa-
triarchal social values and law should not be allowed to hinder exercise of constitutional rights
by women — Role of court
Held:
Per Chandrachud, J.
Law and society are intrinsically connected and oppressive social values often find expression in legal
structures. The law influences society as well but societal values are slow to adapt to leads shown by the
law. The law on adultery cannot be construed in isolation. To fully comprehend its nature and impact,
every legislative provision must be understood as a "discourse" about social structuring. However, the
discourse of law is not homogeneous. In the context particularly of Section 497, it regards individuals
as "gendered citizens". In doing so, the law creates and ascribes gender roles based on existing societal
stereotypes. An understanding of law as a "discourse" would lead to the recognition of the role of law
in creating "gendered identities". (Para 111)
Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India (Sage
Publications 1996) p. 40, referred to
Over the years, legal reform has had a significant role in altering the position of women in societal
orderings. This is seen in matters concerning inheritance and in the protection against domestic
—| 91 |—
violence. However, in some cases, the law operates to perpetuate an unequal world for women. Thus,
depending on the manner in which it is used, law can act as an agent of social change as well as social
stagnation. (Para 112)
Patricia J. Williams, The Alchemy of Race and Rights (HUP, Cambridge 1991), referred to
ZE. Interpretation of Statutes — Basic Rules — Contextual construction/ meaning — Provision of
law should be read in context of social, historical and cultural contexts in which it operates
Held:
Per Chandrachud, J.
A provision of law must not be viewed as operating in isolation from the social, political, historical
and cultural contexts in which it operates. In its operation, law "permeates and is inseparable from
everyday living and knowing, and it plays an important role in shaping (legal) consciousness". A
contextual reading of the law shows that it influences social practices, and makes "asymmetries of
power seem, if not invisible, natural and benign". (Para 183)
Rosemary Coombe, "Is There a Cultural Studies of Law?", in A Companion to Cultural Studies (Oxford
2001); Austin Sarat, Jonathan Simon, "Beyond Legal Realism?: Cultural Analysis, Cultural Studies,
and the Situation of Legal Scholarship", Yale Journal of Law & the Humanities, (2001), p. 19; R.B.
Outwaithe, The Rise and Fall of the English Ecclesiastical Courts, 1500-1860 (CUP, Cambridge UK
2007); Angela Fernandez, "Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists
on Marital Unity" in Tim Stretton and Krista J. Kesselring (Eds.), Married Women and the Law:
Coverture in England and the Common Law World, (McGill-Queen's University Press 2013) pp. 192-
216; Blackstone's Commentaries on the Laws of England, Books HI & TV (8th Edn.), 1778; Bracton:
De Legibus Et Consuetudinibus Anglice (Bracton on the Laws and Customs of England attributed
to Henry of Bratton, c. 1210-1268) Vol. B3, p. 115; Margot Finn, "Women, Consumption and
Coverture in England, c. 1760-1860". The Historical Journal, 39 (1996), pp. 703-22; "The High Sheriff
of Oxfordshire's Annual Law Lecture" given by Lord Wilson on 9-11-2012; Matrimonial Causes Act,
1857; 1857 (20 & 21 Vict.) C. 85, referred to
ZF. Statute Law — Presumptions — No presumption of constitutionality arises in favour of ex-
isting pre-constitutional law made in British era — Such law requires to be tested on anvil of
Pt. Ill of the Constitution — Constitution of India—Pt. Ill — Constitutionality of law — Pre-
sumptions .........
...... 266.1. The respondents submit that an act which outrages the morality of society, and
harms its members, ought to be punished as a crime. Adultery falls squarely within this
definition.
266.2. The learned ASG further submitted that adultery is not an act that merely affects
just two people; it has an impact on the aggrieved spouse, children, as well as society. Any
affront to the marital bond is an affront to the society at large. The act of adultery affects
the matrimonial rights of the spouse, and causes substantial mental injury. Adultery is
essentially violence perpetrated by an outsider, with complete knowledge and intention,
on the family which is the basic unit of a society.
—| 92 |—
267. It was argued on behalf of the Union of India that Section 497 is valid on the ground of affirmative
action. All discrimination in favour of women is saved by Article 15(3), and hence were exempted
from punishment. Further, an underinclusive definition is not necessarily discriminatory. The
contention that Section 497 does not account for instances where the husband has sexual
relations outside his marriage would not render it unconstitutional.
268. It was further submitted that the sanctity of family life, and the right to marriage are fundamental
rights comprehended in the right to life under Article 21. An outsider who violates and injures
these rights must be deterred and punished in accordance with criminal law.
269. It was finally suggested that if this Court finds any part of this Section violative of the constitutional
provisions, the Court should read down that part, insofar as it is violative of the Constitution but
retain the provision.
....
Discussion and Analysis
270. Section 497 is a pre-constitutional law which was enacted in 1860. There would be no presumption
of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature.
The provision would have to be tested on the anvil of Part III of the Constitution.
271. Section 497 IPC is placed under Chapter XX of "Offences Relating to Marriage". The provision
of Section 497 is replete with anomalies and incongruities, such as:
271.1. Under Section 497, it is only the male paramour who is punishable for the offence
of adultery. The woman who is pari delicto with the adulterous male, is not punishable,
even as an "abettor". The adulterous woman is excluded solely on the basis of gender, and
cannot be prosecuted for adultery (W. Kalyani5, SCC para 10).
271.2. The Section only gives the right to prosecute to the husband of the adulterous wife.
On the other hand, the wife of the adulterous man, has no similar right to prosecute her
husband or his paramour.
271.3. Section 497 IPC read with Section 198(2) CrPC only empowers the aggrieved
husband, of a married wife who has entered into the adulterous relationship to initiate
proceedings for the offence of adultery.
271.4. The act of a married man engaging in sexual intercourse with an unmarried or
divorced woman, does not constitute "adultery" under Section 497.
271.5. If the adulterous relationship between a man and a married woman, takes place
with the consent and connivance of her husband, it would not constitute the offence of
adultery.
271.6. The anomalies and inconsistencies in Section 497 as stated above, would render the
provision liable to be struck down on the ground of it being arbitrary and discriminatory.
272. The constitutional validity of Section 497 has to be tested on the anvil of Article 14 of the
Constitution. Any legislation which treats similarly situated persons unequally, or discriminates
between persons on the basis of sex alone, is liable to be struck down as being violative of
Articles 14 and 15 of the Constitution, which form the pillars against the vice of arbitrariness
—| 93 |—
and discrimination. Article 14 forbids class legislation; however, it does not forbid reasonable
classification. A reasonable classification is permissible if two conditions are satisfied:
(i) The classification is made on the basis of an "intelligible differentia" which distinguishes
persons or things that are grouped together, and separates them from the rest of the group;
and
(ii) The said intelligible differentia must have a rational nexus with the object sought to be
achieved by the legal provision.
272.1. The discriminatory provisions in Section 497 have to be considered with reference
to the classification made. The classification must have some rational basis,25 or a nexus
with the object sought to be achieved. With respect to the offence of adultery committed
by two consenting adults, there ought not to be any discrimination on the basis of sex
alone since it has no rational nexus with the object sought to be achieved.
272.2. Section 497 JPC, makes two classifications:
272.2.1. The first classification is based on who has the right to prosecute: it is only the husband
of the married woman who indulges in adultery, is considered to be an aggrieved person
given the right to prosecute for the offence of adultery. Conversely, a married woman who
is the wife of the adulterous man, has no right to prosecute either her husband, or his
paramour.
272.2.2. The second classification is based on who can be prosecuted. It is only the adulterous
man who can be prosecuted for committing adultery, and not the adulterous woman, even
though the relationship is consensual; the adulterous woman is not even considered to be
an "abettor" to the offence.
2723. The aforesaid classifications were based on the historical context in 1860 when
the IPC was enacted. At that point of time, women had no rights independent of their
husbands, and were treated as chattel or "property" of their husbands. Hence, the offence
of adultery was treated as an injury to the husband, since it was considered to be a "theft" of
his property, for which he could proceed to prosecute the offender. The said classification
is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is
liable to be struck down on this ground alone.
272.4. A law which deprives women of the right to prosecute, is not gender-neutral.
Under Section 497, the wife of the adulterous male, cannot prosecute her husband for
marital infidelity. This provision is therefore ex facie discriminatory against women,
and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows
against the discerning light of Article 14 which irradiates anything which is unreasonable,
discriminatory, and arbitrary.
273. A law which could have been justified at the time of its enactment with the passage of time may
become outdated and discriminatory with the evolution of society and changed circumstances.26
What may have once been a perfectly valid legislation meant to protect women in the historical
25 E.V. Chinnaiah v. State ofA.R, (2005) 1 SCC 394: (2008) 2 SCC (L&S) 329 (A legislation may not be amenable to a challenge on
the ground of violation of Article 14 of the Constitution if its intention is to give effect to Articles 15 and 16 or when the differentiation
is not unreasonable or arbitrary).
26 Motor General Traders v. State ofA.R, (1984) 1 SCC 222; See also Rattan Arya v. State of T.N., (1986) 3 SCC 385
—| 94 |—
background in which it was framed, with the passage of time of over a century and a half, may
become obsolete and archaic.
273.1. A provision previously not held to be unconstitutional, can be rendered so by later
developments in society, including gender equality.27
273.2. Section 497 IPC was framed in the historical context that the infidelity of the wife
should not be punished because of the plight of women in this country during the 1860s.
Women were married while they were still children, and often neglected while still young,
sharing the attention of a husband with several rivals.189 This situation is not true 155
years after the provision was framed. With the passage of time, education, development
in civil-political rights and socio-economic conditions, the situation has undergone a sea
change. The historical background in which Section 497 was framed, is no longer relevant
in contemporary society.
2733. It would be unrealistic to proceed on the basis that even in a consensual sexual
relationship, a married woman, who knowingly and voluntarily enters into a sexual
relationship with another married man, is a "victim", and the male offender is the "seducer".
273.4. Section 497 fails to consider both men and women as equally autonomous individuals
in society. In Anuj Garg v. Hotel Assn. of India160, this Court held that: (SCC pp. 11-12 &
13, paras 20 & 26)
"20. At the very outset we want to define the contours of the discussion which is going to
ensue. Firstly, the issue floated by the State is very significant, nonetheless it does not
fall in the same class as that of rights which it comes in conflict with, ontologically.
Secondly, the issue at hand has no social spillovers. The rights of women as individuals
rest beyond doubts in this age. If we consider (various strands of) feminist jurisprudence
as also identity politics, it is clear that time has come that we take leave of the theme
encapsulated under Section 30. And thirdly we will also focus our attention on the
interplay of doctrines of self-determination and an individual's best interests.
* * *
26. When a discrimination is sought to be made on the purported ground of classification,
such classification must be founded on a rational criteria. The criteria which in absence
of any constitutional provision and, it will bear repetition to state, having regard to
the societal conditions as they prevailed in early 20th century, may not be a rational
criteria in the 21st century. In the early 20th century, the hospitality sector was not
open to women in general. In the last 60 years, women in India have gained entry in all
spheres of public life. They have also been representing people at grassroot democracy.
They are now employed as drivers of heavy transport vehicles, conductors of service
carriages, pilots, et. al." (emphasis supplied)
273.5. The time when wives were invisible to the law, and lived in the shadows of their
husbands, has long since gone by. A legislation that perpetuates such stereotypes in
relationships, and institutionalises discrimination is a clear violation of the fundamental
27 John Vallamattom v. Union of India, (2003) 6 SCC 611
—| 95 |—
rights guaranteed by Part III of the Constitution. There is therefore, no justification for
continuance of Section 497 IPC as framed in 1860, to remain on the statute book.
274. Article 15(3) of the Constitution is an enabling provision which permits the State to frame
beneficial legislation in favour of women and children, to protect and uplift this class of
citizens. Section 497 is a penal provision for the offence of adultery, an act which is committed
consensually between two adults who have strayed out of the marital bond. Such a provision
cannot be considered to be a beneficial legislation covered by Article 15(3) of the Constitution.
The true purpose of affirmative action is to uplift women and empower them in socio-economic
spheres. A legislation which takes away the rights of women to prosecute cannot be termed as
"beneficial legislation".
275. This Court in Thota Sesharathamma v. Thota Manikyamma28 held that: (SCC pp. 325-26, para
21)
"27. ... Article 15(3) relieves from the rigour of Article 15(1) and charges the State to make
special provision to accord to women socio¬economic equality. ... As a fact Article
15(3) as a forerunner to common code does animate to make law to accord socio-
economic equality to every female citizen of India, irrespective of religion, race, caste
or religion."
276. In W. Kalyani v. State5 this Court has recognised the gender bias in Section 497. The Court in
Kalyani5 observed that: (SCC p. 360, para 10)
"70. The provision is currently under criticism from certain quarters for showing a strong
gender bias for it makes the position of a married woman almost as a property of her
husband."
277. The purpose of Article 15(3) is to further socio-economic equality of women. It permits special
legislation for special classes. However, Article 15(3) cannot operate as a cover for exemption
from an offence having penal consequences. A section which perpetuates oppression of women
is unsustainable in law, and cannot take cover under the guise of protective discrimination.
278. The petitioners have contended that the right to privacy under Article 21 would include the
right of two adults to enter into a sexual relationship outside marriage. The right to privacy and
personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when
legitimate public interest is involved. It is true that the boundaries of personal liberty are difficult
to be identified in black and white; however, such liberty must accommodate public interest. The
freedom to have a consensual sexual relationship outside marriage by a married person, does
not warrant protection under Article 21.
279. In the context of Article 21, an invasion of privacy by the State must be justified on the basis of
a law that is reasonable and valid. Such an invasion must meet a threefold requirement as held
in K.S. Puttaswamy (Privacy-9J.) v. Union of India39: (i) legality, which postulates the existence
of law; (ii) need, defined in terms of a legitimate State interest, and (iii) proportionality, which
ensures a rational nexus between the object and the means adopted. Section 497 as it stands
today, fails to meet the threefold requirement, and must therefore be struck down.
28 (1991) 4 SCC 312 5 (2012) 1 SCC 358 : (2012) 1 SCC (Cri) 445 39 (2017) 10 SCC 1
—| 96 |—
280. The issue remains as to whether "adultery" must be treated as a penal offence subject to criminal
sanctions, or marital wrong which is a valid ground for divorce.
280.1. One view is that family being the fundamental unit in society, if the same is
disrupted, it would impact stability and progress. The State, therefore, has a legitimate
public interest in preserving the institution of marriage. Though adultery may be an act
committed in private by two consenting adults, it is nevertheless not a victim-less crime.
It violates the sanctity of marriage, and the right of a spouse to marital fidelity of his/
her partner. It impacts society as it breaks the fundamental unit of the family, causing
injury not only to the spouses of the adulterer and the adulteress, it impacts the growth
and well-being of the children, the family, and society in general, and therefore must be
subject to penal consequences. Throughout history, the State has long retained an area of
regulation in the institution of marriage. The State has regulated various aspects of the
institution of marriage, by determining the age when an adult can enter into marriage;
it grants legal recognition to marriage; it creates rights in respect of inheritance and
succession; it provides for remedies like judicial separation, alimony, restitution of
conjugal rights; it regulates surrogacy, adoption, child custody, guardianship, partition,
parental responsibility; guardianship and welfare of the child. These are all areas of private
interest in which the State retains a legitimate interest, since these are areas which concern
society and public well-being as a whole. Adultery has the effect of not only jeopardising
the marriage between the two consenting adults, but also affects the growth and moral
fibre of children. Hence the State has a legitimate public interest in making it a criminal
offence.
280.2. The contra view is that adultery is a marital wrong, which should have only civil
consequences. A wrong punishable with criminal sanctions, must be a public wrong
against society as a whole, and not merely an act committed against an individual victim.
To criminalise a certain conduct is to declare that it is a public wrong which would
justify public censure, and warrant the use of criminal sanction against such harm and
wrongdoing. The autonomy of an individual to make his or her choices with respect to his/
her sexuality in the most intimate spaces of life, should be protected from public censure
through criminal sanction. The autonomy of the individual to take such decisions, which
are purely personal, would be repugnant to any interference by the State to take action
purportedly in the "best interest" of the individual.
2803. Andrew Ashworth and Jeremy Horder in their commentary titled Principles of
Criminal Law29 have stated that the traditional starting point of criminalisation is the
"harm principle" the essence of which is that the State is justified in criminalising a conduct
which causes harm to others. The authors opine that the three elements for criminalisation
are: (/) harm, (ii) wrongdoing, and (iii) public element, which are required to be proved
before the State can classify a wrongful act as a criminal offence.
280.4. John Stuart Mill states that "the only purpose for which power can be rightly
exercised over the member of a civilized community against his will is to prevent harm to
others".30
29 Oxford University Press, (7th Edn.) May 2013.
30 John S. Mill, "Chapter I: Introductory", On Liberty, (4th Edn., Longman, Roberts, & Green Co., London 1869).
—| 97 |—
280.5. The other important element is wrongfulness. Andrew Simester and Andreas von
Hirsch opine that a necessary prerequisite of criminalisation is that the conduct amounts
to a moral wrong.31 That even though sexual infidelity may be morally wrong conduct, this
may not be a sufficient condition to criminalise the same.
281. In my view, criminal sanction may be justified where there is a public element in the wrong, such
as offences against State security, and the like. These are public wrongs where the victim is not
the individual, but the community as a whole.
281.1. Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue
is whether there is a sufficient element of wrongfulness to society in general, in order to
bring it within the ambit of criminal law?
281.2. The element of public censure, visiting the delinquent with penal consequences, and
overriding individual rights, would be justified only when the society is directly impacted
by such conduct. In fact, a much stronger justification is required where an offence is
punishable with imprisonment.
2813. The State must follow the minimalist approach in the criminalisation of offences,
keeping in view the respect for the autonomy of the individual to make his/her personal
choices.
281.4. The right to live with dignity includes the right not to be subjected to public censure
and punishment by the State except where absolutely necessary. In order to determine what
conduct requires State interference through criminal sanction, the State must consider
whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act
is sufficient, it may not warrant criminal sanction by the State.
282. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 271
above, it is declared that:
282.1. Section 497 is struck down as unconstitutional being violative of Articles 14,15 and
21 of the Constitution.
282.2. Section 198(2) CrPC which contains the procedure for prosecution under Chapter
XX IPC shall be unconstitutional only to the extent that it is applicable to the offence of
adultery under Section 497.
282.3. The decisions in Sowmithri Vishnu3, V. Revathi4 and W. Kalyani5 hereby stand
overruled.
qqq
31 A.P. Simester and Andreas von Hirsch, Crimes, Harms, and Wrongs: On The Principles of Criminalisation, (Hart Publishing,
Oxford 2011).
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SUMAN KAPUR VERSUS SUDHIR KAPUR

In the Supreme Court of India
Bench : Hon’ble Mr. Justice C.K. Thakker & Hon’ble Mr. Justice D.K. Jain
(2009) 1 SCC 422
Arising out of Special Leave Petition (Civil) No. 10907 of 2007
Suman Kapur ...Appellant
Versus
Sudhir Kapur ...Respondent
Abortion by a woman without her husband’s knowledge and consent will amount to mental cruelty
and a ground for divorce, the Supreme Court has held.
“Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one
spouse caused by the conduct of the other for a long time may lead to mental cruelty. A sustained
course of abusive and humiliating treatment calculated to torture, discommode or render life miser-
able for the spouse,” said a Bench consisting of Justices C.K. Thakker and D.K. Jain.
It was held: “The treatment complained of and the resultant danger or apprehension must be very
grave, substantial and weighty. Sustained reprehensible conduct, studied neglect, indifference or
total departure from the normal standard of conjugal kindness, causing injury to mental health or
deriving sadistic pleasure, can also amount to mental cruelty.”
The conduct must be much more than jealousy, selfishness, possessiveness, which caused unhappi-
ness and dissatisfaction and emotional upset but might not be a reason for grant of divorce on the
ground of mental cruelty.
Absence of intention
It was held: “To establish legal cruelty, it is not necessary that physical violence should be used.
Continuous cessation of marital intercourse or total indifference on the part of the husband towards
marital obligations would lead to legal cruelty. In such cases, the cruelty will be established if the
conduct itself is proved or admitted. The absence of intention should not make any difference in the
case, if by ordinary sense in human affairs the act complained of could otherwise be regarded as
cruelty. Mens rea is not a necessary element in cruelty. The relief to the party cannot be denied on
the ground that there has been no deliberate or wilful ill treatment.”
“Mere coldness or lack of affection cannot amount to cruelty; frequent rudeness of language, petu-
lance of manner, indifference and neglect may reach such a degree that it makes the married life for
the other spouse absolutely intolerable.”
In the instant case, Suman Kapur was aggrieved at the decree of divorce granted against her by a tri-
al court and confirmed by the Delhi High Court. Both courts gave a finding that her three abortions
without the knowledge and consent of her husband, Sudhir Kapur, was a valid ground for divorce.
Disposing of the appeal, the Bench noted that Sudhir Kapur got remarried on March 5, 2007 before
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the expiry of the period of 90 days for filing appeal before this court and a child was born from the
second marriage.
“Since, we are confirming the decree of divorce on the ground of mental cruelty as held by both
courts, i.e. the trial court as well as the High Court, no relief can be granted so far as the reversal
of decree of the courts below is concerned. At the same time, however, in our opinion, the respond-
ent-husband should not have remarried before the expiry of period stipulated for filing appeal. Ends
of justice would be met if we direct the respondent to pay Rs. 5 lakh to the appellant.”
JUDGMENT
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is filed by the appellant-wife being aggrieved and dissatisfied with the decree
of divorce dated August 07, 2004 passed by the Additional District Judge, Delhi in HMA No.
322/2001/96 and confirmed by the High Court of Delhi on January 29, 2007 in Matrimonial
Appeal No. 62 of 2004.
3. The facts in nutshell are that the appellant Suman Kapur is the wife and respondent Sudhir
Kapur is the husband. The matrimonial alliance was entered into between the parties as per
Hindu rites and rituals in Delhi on March 04, 1984. It was the case of the appellant that both
the parties were friends from childhood and were knowing each other since 1966. They had
also studied together in the same school. They were very close since 1974 and after a friendship
of more than a decade, they decided to marry. The marriage was inter-caste marriage. Though
initially parents of both the parties were opposed to the marriage, subsequently, they consented.
The parties have no issue from the said wedlock.
4. The appellant has a brilliant academic record and has been the recipient of the prestigious
Lalor Foundation Fellowship of United States of America (USA), offered to young scientists for
outstanding performance in the area of research. According to her, at the time of her marriage,
she was in employment with the Department of Bio-chemistry in the All India Institute of
Medical Sciences (AIIMS) and was also pursuing her Ph.D.
5. It is the case of the appellant that she conceived for the first time in 1984, within a period of
about one month of the marriage, but on account of being exposed to harmful radiations as
a part of lab work of her Ph.D. thesis, she decided to terminate the pregnancy. The appellant
asserted that it was done with the knowledge and consent of the respondent-husband.
6. Again, in 1985, she conceived. But even that pregnancy was required to be terminated on the
ground of an acute kidney infection for which she had to undergo an IVP, which entailed
six abdominal X-rays and radiometric urinary reflect test with radioactive drinking dye. She
claimed that even the second pregnancy was terminated with the knowledge and consent of the
respondent- husband.
7. According to the appellant, third time she became pregnant in 1989, but she suffered natural
abortion on account of having a congenitally small uterus and thus prone to recurrent
miscarriages.
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8. It is the case of the appellant that though she was well-placed and having good job in AIIMS
in Delhi, only with a view to accompany her husband who was serving in Bombay, she left the
job. In 1988, the parties together left for USA. The appellant was awarded Lalor Foundation
Fellowship in USA for which she had to move to Kansas city and could not join the respondent-
husband at the place of his work.
9. The case of the respondent-husband, on the other hand was that since solemnization of
marriage between the parties, the attitude, conduct and behaviour of the appellant-wife towards
the respondent as well as his family members was indignant and rude. It was alleged by him
that first pregnancy was terminated in 1984 by the appellant-wife without consent and even
without knowledge of the respondent. Same thing was repeated at the time of termination of
second pregnancy in 1985. He was kept in complete dark about the so-called miscarriage by
the appellant-wife in 1989. The respondent was thus very much aggrieved since he was denied
the joy of feeling of fatherhood and the parents of the respondent were also deprived of grand-
parenthood of a new arrival. It was also contended by the respondent that the attitude of the
appellant-wife towards her in-laws was humiliating. Several instances were cited in support of
the said conduct and behaviour by the husband.
10. The respondent-husband, therefore, filed HMA No. 322/2001/96 in the Court of Additional
District Judge, Delhi under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955
(hereinafter referred to as `the Act’) for getting divorce from the appellant-wife. Two grounds
were taken by the respondent-husband in the said petition, i.e. (i) cruelty and (ii) desertion. It
was alleged by the husband that the wife was all throughout conscious, mindful and worried of
one thing and that was her career. In view of her thinking only in one direction, she deprived the
respondent-husband of conjugal rights and matrimonial obligations. She also treated the family
members of the respondent-husband with cruelty. She, without consent or even knowledge
of the respondent- husband, got her pregnancy terminated twice in 1984 as well as in 1985
and falsely stated that there was natural miscarriage at the time of third pregnancy in 1989. At
no point of time, she had taken consent of the husband nor even she had informed about the
termination of pregnancy or about miscarriage to the respondent. At several occasions, she had
stated that she was not interested at all in living with the respondent-husband and to perform
marital obligations. She had made it explicitly clear to the respondent-husband that she was not
willing to be a mother at the cost of her career. She had specifically told the respondent-husband
that if he was very much interested and eager to be a father and his mother (respondent’s mother)
wanted to be a grand-mother, he could enter into marriage tie with any other woman, but the
appellant-wife would not give up her career. She had also stated that she had no objection if the
respondent adopts a child which action would not adversely affect her career. She had issued a
notice to the respondent-husband that it would be better that they would peacefully separate
from each other so that the respondent-husband may be able to fulfil the wishes of his parents
and the appellant-wife may pursue her future career. The respondent- husband, therefore,
submitted that the case attracted both the provisions, viz. (i) cruelty on the part of the wife under
clause (ia) of sub-section (1) of Section 13 and (ii) desertion of matrimonial home and refusal to
perform marital obligations falling under clause (ib) of sub-section (1) of Section 13 of the Act.
On both the grounds, the respondent- husband was entitled to a decree of divorce.
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11. The appellant-wife in her objections denied the allegations of the husband. According to her,
she was doing her best to please her husband as well as her in-laws. Precisely for that purpose,
she had left her service in Delhi and joined the husband. It was admitted that she was in service
and was also interested in career as she was well- educated lady and wanted to contribute to the
society. But that did not mean that she was not performing her marital obligations. It was an
admitted fact that immediately after her marriage, she conceived and she was very happy about
it. Unfortunately, however, for the circumstances beyond her control, she was compelled to get
the pregnancy terminated with the knowledge and consent of her husband. The same thing was
repeated in 1985. In 1989, there was natural miscarriage. She also contended that she had to
go to USA for receiving prestigious award of Lalor Foundation Fellowship. According to her,
instead of being happy about the progress of the wife, the husband had initiated the present
proceedings with jealousy and hence, he was not entitled to a decree of divorce. Even otherwise,
there was no cruelty on her part. According to the wife, during regular intervals, the parties used
to stay together and the appellant had never refused to perform her matrimonial obligations
or even had shown her intention to deprive the husband of conjugal rights. It was, therefore,
submitted that the husband was not entitled to the relief sought by him and the petition was
liable to be dismissed.
12. The trial Court after hearing the parties held that the husband was not entitled to a decree of
divorce on the ground that the wife had deserted the husband for a continuous period of not less
than two years immediately preceding the presentation of the petition. He, however, held that
it was fully established by the husband that there was cruelty on the part of the wife. The wife
without the knowledge and consent of the husband got her pregnancy terminated twice - firstly
in 1984 and secondly in 1985. The husband was also not informed about natural miscarriage
in 1989. A finding was also recorded by the trial Court that the wife was not ready and willing
to perform matrimonial obligations and she always attempted to stay away from her husband
by depriving conjugal rights of the husband. It was, therefore, a case of mental cruelty. The trial
Court also referred to several letters written by wife to the husband, and notice issued by the
wife through an advocate which went to show that she was not interested in performing marital
obligations and continuing marital relations with the husband. The Court also relied upon
various entries made by the appellant-wife in her diary which suggested that all throughout she
was worrying about her future and her career. For wife, according to the trial Court, her career
was the most important factor and not matrimonial obligations. The trial Court, therefore, held
that the case was covered by mental cruelty which was shown by the wife towards the husband
and the husband was entitled to a decree of divorce on that ground.
13. Being aggrieved by the decree passed by the trial Court, the wife preferred an appeal in the
High Court of Delhi. The High Court again appreciated the evidence on record and confirmed
the decree of divorce passed by the trial Court. The High Court, however, held that it was not
necessary for the Court to consider mental cruelty so far as termination of pregnancy was
concerned, since in the opinion of the High Court, even otherwise from the letters and entries
in diary, it was proved that there was mental cruelty on the part of the wife. Accordingly, the
decree of divorce passed by the trial Court was confirmed by the High Court.
14. The said order has been challenged in the present proceedings. On July 16, 2007, notice was
issued by this Court. The respondent appeared and affidavit-in-reply and affidavit-in-rejoinder
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were thereafter filed. Considering the nature of controversy, the Registry was directed to place
the matter for final hearing and accordingly, the matter has been placed before us.
15. We have heard the learned counsel for the parties.
16. The learned counsel for the appellant contended that both the courts had committed an error of
law in granting a decree of divorce against the appellant-wife. It was submitted that the courts
below ought not to have held that there was mental cruelty on the part of the appellant-wife
and the respondent-husband was entitled to a decree of divorce on that ground. It was also
submitted that once the High Court has not considered the allegation as to termination of
pregnancy without the consent of the husband, no decree for divorce on the ground of mental
cruelty could have been passed by it. Even if all the allegations leveled against the wife had been
accepted, they were in the nature of `normal wear and tear’ in a matrimonial life of a couple
which would not fall within the mischief of clause (ia) of sub- section (1) of Section 13 of the
Act and the orders passed by the courts below are liable to be set aside. It was further submitted
that even otherwise, the wife is entitled to an appropriate relief from this Court inasmuch as
from the evidence, it is clearly established that the High Court confirmed the decree passed by
the trial Court on January 29, 2007 and before the period of filing Special Leave to Appeal to
this Court expires, the respondent- husband entered into re-marriage with a third party and
from the said wedlock, he is having an issue. It was, therefore, submitted that the husband has
created a situation which had seriously prejudiced the appellant and the Court may not allow
the respondent-husband to take undue advantage of the situation created by him.
17. The learned counsel for the respondent-husband, on the other hand, supported the decree passed
by the trial Court and confirmed by the High Court. It was urged that the trial Court on the basis
of evidence adduced by the parties recorded a finding of fact that the conduct and behaviour
of the wife was in the nature of mental cruelty and accordingly allowed the petition filed by the
husband. The High Court, though convinced on all grounds, did not think it fit to enter into
correctness or otherwise of the finding recorded with regard to illegal termination of pregnancy
by wife without the knowledge and consent of the husband since it was convinced that even
otherwise on the basis of evidence on record, mental cruelty of the wife was established. It was
not necessary for the High Court to consider and to record a finding as to illegal termination
of pregnancy by wife since the decree passed by the trial Court could be confirmed. As far as
mental cruelty is concerned, on the basis of other evidence and material on record, a finding had
been recorded by the trial Court. The said finding was a finding of fact which was confirmed by
the High Court. In exercise of jurisdiction under Article 136 of the Constitution, this Court will
not interfere with the said finding and hence the appeal deserves to be dismissed.
18. Regarding re-marriage by the husband, it was stated that after the decree of divorce passed by
the trial Court, the husband did not re-marry. But the decree of divorce was confirmed by the
High Court. The husband thereafter had taken the action which cannot be said to be illegal or
otherwise unlawful. The wife, therefore, cannot take a technical contention that the husband
should have waited till the period of filing Special Leave to Appeal to this Court would expire. It
was, therefore, submitted that the appeal deserves to be dismissed.
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19. Having heard the learned counsel for the parties, on the facts and in the circumstances of the
case, in our opinion, it cannot be said that by recording a finding as to mental cruelty by the wife
against the husband, the Courts below had committed any illegality.
20. Section 13 of the Hindu Marriage Act provides for grant of divorce in certain cases. It enacts
that any marriage solemnized whether before or after the commencement of the Act may be
dissolved on a petition presented either by the husband or by the wife on any of the grounds
specified therein. Clause (ia) of sub- section (1) of Section 13 declares that a decree of divorce
may be passed by a Court on the ground that after the solemnization of marriage, the opposite
party has treated the petitioner with cruelty.
21. Now, it is well-settled that the expression `cruelty’ includes both (i) physical cruelty; and (ii)
mental cruelty. The parties in this connection, invited our attention to English as well as Indian
authorities. We will refer to some of them.
Mental Cruelty
22. The concept of cruelty has been dealt with in Halsbury’s Laws of England [Vol.13, 4th Edition
Para 1269] as under;
“The general rule in all cases of cruelty is that the entire matrimonial relationship must
be considered, and that rule is of special value when the cruelty consists not of violent acts
but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is
averred, it is undesirable to consider judicial pronouncements with a view to creating certain
categories of acts or conduct as having or lacking the nature or quality which renders them
capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the
conduct rather than its nature which is of paramount importance in assessing a complaint of
cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of
fact and previously decided cases have little, if any, value. The court should bear in mind the
physical and mental condition of the parties as well as their social status, and should consider
the impact of the personality and conduct of one spouse on the mind of the other, weighing
all incidents and quarrels between the spouses from that point of view; further, the conduct
alleged must be examined in the light of the complainant’s capacity for endurance and the
extent to which that capacity is known to the other spouse”.
23. In Gollins V. Gollins 1964 AC 644: (1963)2 All ER 966, Lord Reid stated:
“No one has ever attempted to give a comprehensive definition of cruelty and I do not intend
to try to do so. Much must depend on the knowledge and intention of the respondent, on
the nature of his (or her) conduct, and on the character and physical or mental weakness of
the spouses, and probably no general statement is equally applicable in all cases except the
requirement that the party seeking relief must show actual or probable injury to life, limb or
health”.
24. Lord Pearce also made similar observations;
“It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct
or departure from normal standards of conjugal kindness causes injury to health or an
apprehension of it, is, I think, cruelty if a reasonable person, after taking due account of the
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temperament and all the other particular circumstances would considered that the conduct
complained of is such that this spouse should not be called on to endure it”.
[see also Russell v. Russell, (1897) AC 395 : (1895-99) All ER Rep 1].
25. The test of cruelty has been laid down by this court in the leading case of N.G. Dastane v. S.
Dastane, (1975)2 SCC 326 thus:
“The enquiry therefore has to be whether the conduct charges as cruelty is of such a character
as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or
injurious for him to live with the respondent....”
26. In Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr., (1981) 4 SCC 250, this
Court stated that the concept of legal cruelty changes according to the changes and advancement
of social concept and standards of living. It was further stated that to establish legal cruelty, it is
not necessary that physical violence should be used. Continuous cessation of marital intercourse
or total indifference on the part of the husband towards marital obligations would lead to legal
cruelty.
27. In Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, this Court examined the concept of
cruelty. It was observed that the term `cruelty’ has not been defined in the Hindu Marriage Act.
It has been used in Section 13(1)(ia) of the Act in the context of human conduct and behavior
in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of
one spouse which adversely affects the other spouse. The cruelty may be mental or physical,
intentional or unintentional. If it is physical, it is a question of degree which is relevant. If it is
mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact
of such treatment on the mind of the other spouse. Whether it caused reasonable apprehension
that it would be harmful or injurious to live with the other, ultimately, is a matter of inference
to be drawn by taking into account the nature of the conduct and its effect on the complaining
spouse. There may, however, be cases where the conduct complained of itself is bad enough and
per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not
be enquired into or considered. In such cases, the cruelty will be established if the conduct itself
is proved or admitted. The absence of intention should not make any difference in the case, if by
ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.
Mens rea is not a necessary element in cruelty. The relief to the party cannot be denied on the
ground that there has been no deliberate or wilful ill-treatment.
28. In V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337, the Court observed;
“Mental Cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts
upon the other party such mental pain and suffering as would make it not possible for that
party to live with the other. In other words, mental cruelty must be of such a nature that the
parties cannot reasonably be expected to live together. The situation must be such that the
wronged party cannot reasonably be asked to put up with such unintentional. If it is physical,
it is a question of fact and degree.
If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as
to the impact of such treatment on the mind of the spouse. Whether it caused reasonable
apprehension that it would be harmful or injurious to live with the other, ultimately, is a
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matter of inference to be drawn by taking into account the nature of the conduct and its effect
on the complaining spouse. There may, however, be cases where the conduct complained of
itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on
the other spouse need not be enquired into or considered. In such cases, the cruelty will be
established if the conduct itself is proved or admitted. The absence of intention should not
make any difference in the case, if by ordinary sense in human affairs, the act complained of
could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The
relief to the party cannot be denied on the ground that there has been no deliberate or wilful
ill-treatment or conduct and continue to live with the other party. It is not necessary to prove
that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving
at such conclusion, regard must be had to the social status, educational level of the parties,
the society they move in, the possibility or otherwise of the parties ever living together in case
they are already living apart and all other relevant facts and circumstances which it is neither
possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to
cruelty in another case. It is a matter to be determined in each case having regard to the facts
and circumstances of that case. If it is a case of accusations and allegations, regard must also
be had to the context in which they were made”.
29. This Court in Chetan Dass v. Kamla Devi, (2001) 4 SCC 250, stated;
“Matrimonial matters are matters of delicate human and emotional relationship. It demands
mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments
with the spouse. The relationship has to conform to the social norms as well. The matrimonial
conduct has now come to be governed by statute framed, keeping in view such norms and
changed social order. It is sought to be controlled in the interest of the individuals as well as
in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy
and not a disturbed and porous society. The institution of marriage occupies an important
place and role to play in the society, in general. Therefore, it would not be appropriate to
apply any submission of “irretrievably broken marriage” as a straitjacket formula for grant
of relief of divorce. This aspect has to be considered in the background of the other facts and
circumstances of the case”.
30. Mental cruelty has also been examined by this Court in Parveen Mehta v. Inderjit Mehta(2002)
5 SCC 706 thus;
“Cruelty for the purpose of Section 13 (1)(ia) is to be taken as a behavior by one spouse
towards the other, which causes reasonable apprehension in the mind of the latter that it is not
safe for him or her to continue the matrimonial relationship with the other. Mental Cruelty is
a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern
by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct
evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances
of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the
conduct of the other can only be appreciated on assessing the attending facts and circumstances
in which the two partners of matrimonial life have been living. The inference has to be drawn
from the attending facts and circumstances taken cumulatively. In case of mental cruelty
it will not be a correct approach to take an instance of misbehavior in isolation and then
pose the question whether such behavior is sufficient by itself to cause mental cruelty. The
—| 106 |—
approach should be to take the cumulative effect of the facts and circumstances emerging
from the evidence on record and then draw a fair inference whether the petitioner in the
divorce petition has been subjected to mental cruelty due to conduct of the other.”
31. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, the Court observed as under:
“The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental.
Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable
conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to
give rise to a reasonable apprehension of such a danger. The question of mental cruelty has
to be considered in the light of the norms of marital ties of the particular society to which
the parties belong, their social values, status, environment in which they live. Cruelty, as
noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong.
Cruelty need not be physical. If from the conduct of the spouse, same is established and/or
an inference can be legitimately drawn that the treatment of the spouse is such that it causes
an apprehension in the mind of the other spouse, about his or her mental welfare then this
conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see
the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to
criminal trials and not to civil matters and certainly not to matters of such delicate personal
relationship as those of husband and wife. Therefore, one has to see what are the probabilities
in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect
on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty
may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and
direct evidence, but in the case of mental cruelty there may not at the same time be direct
evidence. In cases where there is no direct evidence, Courts are required to probe into the
mental process and mental effect of incidents that are brought out in evidence. It is in this
view that one has to consider the evidence in matrimonial dispute.”
32. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778, the Court said;
“It is settled by a catena of decisions that mental cruelty can cause even more serious injury
than the physical harm and create in the mind of the injured appellant such apprehension
as is contemplated in the section. It is to be determined on whole facts of the case and the
matrimonial relations between the spouses. To amount to cruelty, there must be such willful
treatment of the party which caused suffering in body or mind either as an actual fact or by
way of apprehension in such a manner as to render the continued living together of spouses
harmful or injurious having regard to the circumstances of the case.
The word “cruelty” has not been defined and it has been used in relation to human conduct
or human behaviour. It is the conduct in relation to or in respect of matrimonial duties
and obligations. It is a course of conduct and one which is adversely affecting the other. The
cruelty may be mental or physical, intentional or unintentional. There may be cases where
the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact
or the injurious effect on the other spouse need not be enquired into or considered. In such
cases, the cruelty will be established if the conduct itself is proved or admitted”.
33. It was further stated:
—| 107 |—
“Each case depends on its own facts and must be judged on these facts. The concept of cruelty
has varied from time to time, from place to place and from individual to individual in its
application according to social status of the persons involved and their economic conditions
and other matters.
The question whether the act complained of was a cruel act is to be determined from the
whole facts and the matrimonial relations between the parties. In this connection, the
culture, temperament and status in life and many other things are the factors which have to
be considered.
The legal concept of cruelty which is not defined by the statute is generally described as
conduct of such character as to have caused danger to life, limb or health (bodily and mental)
or to give rise to reasonable apprehension of such danger. The general rule in all questions of
cruelty is that the whole matrimonial relations must be considered, that rule is of a special
value when the cruelty consists not of violent act but of injurious reproaches, complaints,
accusations or taunts. It may be mental such as indifference and frigidity towards the wife,
denial of a company to her, hatred and abhorrence for wife, or physical, like acts of violence
and abstinence from sexual intercourse without reasonable cause. It must be proved that
one partner in the marriage however mindless of the consequences has behaved in a way
which the other spouse could not in the circumstances be called upon to endure, and that
misconduct has caused injury to health or a reasonable apprehension of such injury. There
are two sides to be considered in case of apprehension of such injury. There are two sides to
be considered in case of cruelty. From the appellants, ought this appellant to be called on to
endure the conduct? From the respondent’s side, was this conduct excusable? The Court has
then to decide whether the sum total of the reprehensible conduct was cruel. That depends
on whether the cumulative conduct was sufficiently serious to say that from a reasonable
person’s point of view after a consideration of any excuse which the respondent might have in
the circumstances, the conduct is such that the petitioner ought not be called upon to endure.”
34. Recently, in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, this Court held;
“No uniform standard can ever be laid down for guidance, yet we deem it appropriate to
enumerate some instances of human behavior which may be relevant in dealing with the
cases of `mental cruelty’. The instances indicated in the succeeding paragraphs are only
illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony
and suffering as would not make possible for the parties to live with each other could
come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes
abundantly clear that situation is such that the wronged party cannot reasonably be
asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of
language, petulance of manner, indifference and neglect may reach such a degree that
it makes the married life for the other spouse absolutely intolerable.
—| 108 |—
(iv) Mental Cruelty is a state of mind. The feeling of deep anguish, disappointment,
frustration in one spouse caused by the conduct of other for a long time may lead to
mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture,
discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical
and mental health of the other spouse. The treatment complained of and the resultant
danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from
the normal standard of conjugal kindness causing injury to mental health or deriving
sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes
unhappiness and dissatisfaction and emotional upset may not be a ground for grant of
divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which
happens in day to day life would not be adequate for grant of divorce on the ground of
mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a
period of years will not amount to cruelty. The ill-conduct must be persistent for a
fairly lengthy period, where the relationship has deteriorated to an extent that because
of the acts and behavior of a spouse, the wronged party finds it extremely difficult to
live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons
and without the consent or knowledge of his wife and similarly if the wife undergoes
vasectomy or abortion without medical reason or without the consent or knowledge of
her husband, such an act of the spouse may lead to mental cruelty.
(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.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the
marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded
that the matrimonial bond is beyond repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law in such cases, does not
serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings
and emotions of the parties. In such like situations, it may lead to mental cruelty”.
35. Now, coming to the facts of the case, from the evidence of Smt. Vimal Kapur (mother- in-law
of appellant-wife and mother of respondent-husband) who is examined as PW 1 and Sudhir
Kapur, husband-PW 2, the trial Court held that the wife was interested in her career only
and she had neglected towards matrimonial obligations and exercise of conjugal rights by the
husband. The trial Court also held that termination of pregnancy by wife was without consent
—| 109 |—
or even knowledge of the husband which was in the nature of mental cruelty. But keeping
the said element of mental cruelty aside, the High Court was convinced that the allegation of
mental cruelty towards the husband by the wife was clearly established from the evidence on
record adduced by the respondent-husband. The High Court noted that the appellant-wife was
constantly and continuously avoiding staying with the husband and preventing him to have
matrimonial relations. From the letters of the appellant- wife also, the High Court held that it
was the wife who had stated that she had completely lost interest in the marriage and she was
willing to get divorce. The High Court further noted that the appellant-wife sent a notice through
her advocate to the respondent-husband during the pendency of mediation proceedings in the
High Court wherein she alleged that the respondent was having another wife in USA whose
identity was concealed. This was based on the fact that in his income-tax return, the husband
mentioned the Social Security Number of his wife as 476-15-6010, a number which did not
belong to the appellant-wife, but to some American lady (Sarah Awegtalewis). The High Court,
however, recorded a finding of fact accepting the explanation of the husband that there was
merely a typographical error in giving Social Security Number allotted to the appellant which
was 476-15-6030. According to the High Court, taking undue advantage of the error in Social
Security Number, the appellant wife had gone to the extent of making serious allegation that the
respondent had married to an American woman whose Social Security Number was wrongly
typed in the income tax return of the respondent-husband.
36. The High Court also observed that the appellant wanted to pursue her professional career to
achieve success. In her written statement itself, she had admitted that she was very much interested
in her career; that she was independent since 1979 and she was keen to live independent life.
37. The High Court also took a serious note of an entry in the personal diary of the appellant-wife
dated September 14, 1986 wherein she stated;
“I said, “we started this journey as two individuals and if you can do so fine otherwise forget
and don’t bring the ghost of parents in between the two of us. He did not like the use of words
ghosts and first cursed my vocabulary and then he said “you do not have any, but I have
better ties”. At this I told him you are given these 15 days and you can find another wife for
yourself. He has this notion that he will go to USA (NY) and I will stay with his parents and
I told him I will not and he says this was the deal in July and when I refuted he said “no you
had promised”. I told him you have just now paid the fine and you are again using the same
tricks again. Naturally, he did not like and said to me “I am not and have never with you
played tricks”. I said sorry- I do not trust you any further and he said it is your fault. It may
now be my fault but I think it is just quits. I don’t think I will write to anybody back in Delhi
now for 15 days and if I can find myself work here any kind”.
38. From the above letter, it is clear that the appellant-wife had described the parents of the husband
as `ghost’.
39. In the letter dated June 21, 1988, she stated;
“I really wish you would understand my urge in pursuing my freedom away from the hawk
eyes of your mother, sister and all other relatives. But, as I am not ready to share the economic
gains of this job with you and other family members. I don’t expect either you or them to
—| 110 |—
understand my need and commitment for this job, or any job. I am bound to cause friction
with so many people around me- I was at war with just you around me in Bombay.”
40. In another letter, she stated that the respondent-husband should not make a condition for the
wife of living together. She stated;
“I am not a good person to waste all your potential, emotion on. I do not deserve it.
... ... ... ...
Please do not make living together a condition for the coming few months. And do not read
from these lines that I do not miss you- I do so individually and circumstantially- but as is
my way of working I am not ready to stop myself for bonds and I believe the same for you. I
wish the best and topmost for you-the most perfect, one can hope to be and wish that nothing
becomes a barrier between you and you and your achievements. Even me. It will be best if we
could help each other constructively; I also believe that we can do so- it is just that we believe
in different things.
... ... ... ...
If possible, stand out of all this mess and try to work the best possible solution for us and your
family. I do want you to remember that you are only one son and your family commitments.
I would honour- but not at the cost of my spiritual search in life.”
41. She further said that the respondent- husband should not bring her marital status preventing
her from pursuing her career in the name of marriage. She stated that when she was unable to
give even a child to the respondent- husband, up to what stage, they should live together. She
clarified that she did not want to close her avenues in life at least at that stage. She also did not
want to forego her chances whatever she would believe about her chances. She did not believe
in love any more. She expressly stated that she did not believe in Indian social value system and
she was very happy in the foreign country.
42. She stated;
“Mujhe is vivah ke naam per apne raste se mat roke. Ho sakta he mein he galat hoon-per
mujhe nahin lagta. Dampati ke tarah hum saath ji liye hein- purani quality of life se kuch
neechey hi star per jiye hein- ye aur koin jaane ya na jaane- Cambridge school se ek dosre
ko bada hota dekh suman- sudhir achhey se jaante hein. Es vivah mein aapko santan bhi na
de saki- phir kahan tak jaruri hai ki hum saath rahe? Aap mere vicharo se to kabhi sahmat
nahin honge per auron ki rai kar lein-jis kisiki bhi- apni jindgi suljha lein. Mujh se ye ummid
karma chod de ke kisi vyaktigat (per mujh se unrelated) ya samajik karan se abhi mein apna
rehne sochne ka tarika badloon. Jaisa maine pehle likha- jindagi ji kar jaise bhi, job hi, jab
bhi samajh aayega tabhi aayega, jaise main apne liye chhot chahti hoon vaise he apni oar se
jitna mujhe adhikar hein aapko bhi mukt karti hoon. Meine to kareeb chheh page par hi ye
patr samapt kar diya-except for some help that I needed for car, etc-buy your fax today was
quite unsettling. I don’t like to close my avenues in life- at lease not yet. I was naove to believe
whatever I did for marriage as a constitution and marriage to you. I am not ready to forgo
my chances- whatever I believe to be chances for what I have experienced as being married. I
think the best alternative will be you stay in India for some more time. Chances are that even
if you get an assignment outside Kansas we would be living separately. So decide for yourself
—| 111 |—
cause when time comes I am going to do so for myself. I will this time not make a compromise
and regret it a few months later and make both our lives miserable. I have done that several
times in the past-at least you should have enough of it to stop trying to push me against my
belief.
My way of loving is not like that. I do not even believe in love any more. There is no bigger lie
that any one could tell another person. I do not even believe in the Indian social value system.
So I am better off being here away from every person and every thing that I grew up with.
Whenever I have understood things to be a different shade I will decide whether I want to be
here or there.”
43. The High Court, in contrast, referred to the letters written by the respondent- husband. It noted
that those letters were full of love and affection. According to the High Court, the husband
tried his level best to keep the marriage tie to subsist and made all attempts to persuade the
wife explaining and convincing her about the sacred relations of husband and wife, the need
and necessity of child in their life and also feelings of his parents who wanted to become grand
parents. According to the High Court, however, nothing could persuade the wife who was only
after her career. In the light of the above facts and circumstances, the Court held that the trial
Court did not commit any error of fact or of law in passing the decree for divorce on the ground
of mental cruelty.
44. The High Court in paragraph 28 of the judgment stated;
“Applying the above principles to the facts of the present case, I feel the respondent has been
able to establish and prove `cruelty’ under Section 13(1) (ia) of the Act. The conduct of the
appellant has been examined above. I have referred to the letters exchanged between the
parties during the period 1986 onwards till 1994. Some of the letters have been written by
the appellant herself. These letters reveal the conflict and difference between the parties. The
present case also reveals that the respondent was bending over his heels to placate and woo
the appellant till 1994 but thereafter gave up. The respondent was deeply in love and was
emotionally attached to her. He has however over the passage of time developed a hatred
and ill-will for the appellant. There is no apparent ground and reason for the same except the
conduct of the appellant.”
45. We find no infirmity in the approach of the High Court. The finding relating to mental cruelty
recorded by the trial Court and confirmed by the High Court suffers from no infirmity and we
see no reason to interfere with the said finding.
46. The fact, however, remains and it has been brought to the notice of this Court that the respondent
got re-married on March 05, 2007 before the expiry of period of filing Special Leave to Appeal
to this Court under Article 136 of the Constitution. It was also stated that a child was born
from the said wedlock on December 20, 2007. Thus, the marriage had been performed within a
period of ninety days of the order impugned in the present appeal.
47. Since, we are confirming the decree of divorce on the ground of mental cruelty as held by both
the courts, i.e. the trial Court as well as by the High Court, no relief can be granted so far as the
reversal of decree of the courts below is concerned. At the same time, however, in our opinion,
the respondent-husband should not have re-married before the expiry of period stipulated for
filling Special Leave to Appeal in this Court by the wife.
—| 112 |—
48. It is true that filing of appeal under Article 136 of the Constitution is not a right of the party. It is
the discretion conferred on this Court to grant leave to the applicant to file appeal in appropriate
cases. But, since the Constitution allows a party to approach this Court within a period of ninety
days from an order passed by the High Court, we are of the view that no precipitate action
could have been taken by the respondent-husband by creating the situation of fait accompli.
Considering the matter in its entirety, though we are neither allowing the appeal nor setting
aside the decree of divorce granted by the trial Court and confirmed by the appellate Court in
favour of respondent-husband, on the facts and in the circumstances of the case, in our opinion,
ends of justice would be met if we direct the respondent-husband to pay an amount of Rs. Five
lakhs to the appellant-wife. The said payment will be made on or before 31st December, 2008.
49. The appeal is disposed of accordingly. The parties will bear their own costs all throughout.
qqq
—| 113 |—
NARAYAN GANESH DASTANE VERSUS SUCHETA NARAYAN DASTANE
1975 SCR (3) 967 1975 SCC (2) 326
Bench: Hon’ble Mr. Justice Y.V. Chandrachud, Hon’ble Mr. Justice P.K. Goswami &
Hon’ble Mr. Justice N.L. Untwalia
Petitioner: Narayan Ganesh Dastane
Versus
Respondent: Sucheta Narayan Dastane
1975 AIR 1534
DATE OF JUDGMENT 19/03/1975
Hindu Marriage Act--Section 10(1)(b) and 23(1)(a)(b)--Meaning of cruelty--Burden of proof in

matrimonial matters--Whether beyond reasonable doubt--Condonation--of cruelty--Whether sex-
ual intercourse amounts to condonation--Whether condonation is conditional--Revival of cruelty.
Code of Civil Procedure--Section 100 and 103--Powers of High Court in second appeal.
The appellant husband filed a petition for annulment of marriage on the ground of fraud, for divorce
on the ground of unsoundness of mind and for judicial separation on the ground of cruelty. The ap-
pellant and respondent possess high educational qualifications and they were married in 1956. Two
children were born of the marriage one in 1957 and the other in 1959.
The Trial Court rejected the contention of fraud and unsoundness of mind. It, however, held the wife
guilty of cruelty and on that ground passed a decree for judicial separation. Both sides went in ap-
peal to the District Court which dismissed the husband’s appeal and allowed the wife’s. The husband
then filed a Second Appeal in the High Court.
The High Court dismissed that appeal.
On appeal to this Court,
Neither s.10 nor s. 23 of the Hindu Marriage Act requires that the petitioner must prove his case
beyond reasonable doubt S. 23 confers on the court the power to pass a decree if it is satisfied on
the matters mentioned in Clauses (a) to (e) of that Section. Considering that proceedings under the
Act are essentially of a civil nature the word ‘satisfied’ must mean satisfied on a preponderance of
probabilities and not satisfied beyond a reasonable doubt. The society has a stake in the institution
of marriage and, therefore, the erring spouse is treated not as a mere defaulter but as an offender.
But this social philosophy, though it may have a bearing on the need to have the clearest proof of an
allegation before it is accepted as a ground for- the dissolution of marriage, it has no bearing on the
standard of proof in matrimonial cases. In England, a view was at one time taken that a petitioner
in a matrimonial petition must establish his or her case beyond a reasonable doubt but the House of
—| 114 |—
Lords in Blyth v. Blyth has held that the grounds of divorce or the bars to the divorce May be proved
by a preponderance of probability
On the question of condonation of cruelty, a specific provision of a specific enactment has to be inter-
preted, namely s. 10(1) (b). The enquiry, therefore, has to be whether the conduct charged as cruelty
is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will
be harmful or injurious for him to live with the respondent. It is not necessary, as under the English
Law, that the cruelty must be of such a character as to cause danger to life, limb or health or as to give
rise to a reasonable apprehension of such a danger.
Acts like the tearing of the Mangal Sutra, locking out the husband when he is due to arrive from the
office, rubbing of chilly powder on the tongue of an infant child, beating a child mercilessly while in
high fever and switching on the light at night and sitting by the bedside of the husband merely to nag
him are acts which tend to destroy the legitimate ends and objects of matrimony. The conduct of wile
amounts to cruelty within the meaning of s. 10(1) (b) of the Act. The threat that she would put an
end to her own life or that she will set the house on fire, the threat that she will make the husband lose
his job and have the matter published in newspapers and the persistent abuses and insults hurled at
the husband and his parents are all of so grave an order as to ‘imperil the appellant’s sense of per-
sonal safety, mental happiness, job satisfaction and reputation.
JUDGMENT
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2224 of 1970.
From the judgment and order dated the 19th February, 1969 of the Bombay High Court in Second
Appeal No. 480 of 1968.
V. M. Tarkunde, S. Bhandare, P. H. Parekh and Manju Jaitely, for the appellant.
V. S. Desai, S. B. Wad and Jayashree Wad, for the respondents.
CHANDRACHUD, J.-This is a matrimonial dispute arising out of a petition filed by the appellant for
annulment of his marriage with the respondent or alternatively for divorce or for judicial separation.
The annulment was sought on the ground of fraud, divorce on the ground of unsoundness of mind
and judicial separation on the ground of cruelty.
The spouses possess high academic qualifications and each one claims a measure. of social respectability
and cultural sophistry. The evidence shows some traces of these. But of this there need be no doubt,: the
voluminous record which they have collectively built up in the case contains a fair reflection of their
rancour and acrimony, The appellant, Dr. Narayan Ganesh Dastane, passed his M.Sc. in Agriculture
from the Poona University. He was sent by the Government of India to Australia in the Colombo
Plan Scheme. He obtained his Doctorate in Irrigation Research from an Australian University and
returned to India in April, 1955. He worked for about 3 years as an Agricultural Research Officer and
in October, 1958 he left Poona to take charge of a new post as an Assistant Professor of Agronomy
in the ’Post-Graduate School, Pusa Institute, Delhi. At present be is said to be working on a foreign
assignment.
His father was a solicitor-cum lawyer practising in Poona.
—| 115 |—
The respondent, Sucheta, comes from Nagpur but she spent her formative years mostly in Delhi.
Her father was transferred to Delhi in 1949 as an Under Secretary in the Commerce Ministry of the
Government of India and she came to Delhi along with the rest of the family. She passed her B.Sc.
from the Delhi University in 1954 and spent a year in Japan where her father was attached to the
Indian Embassy. After the rift in her marital relations, she obtained a Master’s Degree in Social Work.
She has done field work in Marriage Conciliation and Juvenile Delinquency. She is at present working
in the Commerce and Industry Ministry, Delhi.
In April, 1956 her parents arranged her marriage with the appellant. But before finalising the proposal,
her father- B. R. Abhyankarwrote two letters to the appellant’s father saying in the first of these that
the respondent “had a little misfortune before going to Japan in that she had a bad attack of sunstroke
which affected her mental condition for sometime”. In the second letter which followed at an interval
of two days, “cerebral malaria” was mentioned as an additional reason of the mental affectation. The
letters stated that after a course of treatment at the Yeravada Mental Hospital, she was cured : “you
find her as she is today”. The respondent’s father asked her appellant’s father to discuss the matter, if
necessary, with the doctors of the Mental Hospital or with one Dr. P. L. Deshmukh, a relative of the
respondent’s mother. The letter was written avowdely’in order that the appellant and his people “should
not be in the dark about an important episode” in the life of the respondent, which “fortunately, had
ended happily”.
Dr. Deshmukh confirmed what was stated in the letters and being content with his assurance, the
appellant and his father made no enquiries with the Yeravada Mental Hospital. The marriage was
performed at Poona on May 13, 1956. The appellant was then 27 and the respondent 21 years of age.
They lived at Arbhavi in District Belgaum from June to October, 1956. On November 1, 1956 the
appellant was transferred to Poona where the two lived together till 1958.
During this period a girl named Shubha was born to them on March 11, 1957. The respondent delivered
in Delhi where ,her parents lived and returned to Poona in June, 1957 after an absence, normal on
such occasions, of about 5 months. In October, 1958 the appellant took a job in the Pusa Institute of
Delhi, On March 21, 1959 the second daughter, Vibha, was born. The respondent delivered at Poona
where the appellant’s parents lived and returned to Delhi in August, 1959. Her parents were living at
this time in Djakarta, Indonesia.
In January, 1961, the respondent went to Poona to attend the marriage of the appellant’s brother, a
doctor-by profession, who has been given an adoption in the Lohokare family. A fortnight after the
marriage, on February 27, 1961 the appellant who had also gone to Poona for the marriage got the
respondent examined by Dr. seth, a Psychiatrist in charge of the Yeravada Mental Hospital. Dr. Seth
probably wanted adequate data to make his diagnosis and suggested that he would like to have a few
sittings exclusively with the respondent. For reasons good or bad, the respondent was averse to submit
herself to any such scrutiny. Either she herself or both she and the appellant decided that she should
stay for some time with a relative of bers, Mrs-Gokhale. On the evening of the 27th, she packed her
titbits and the appellant reached her to Mrs. Gokhale’s house.
There was no consultation thereafter with Dr. Seth.
According to the appellant, she had promised to see Dr, Seth but she denies that she made any such
promise. She believed that the appellant was building up a case that she was of unsound mind and she
was being lured to walk into that trap.
—| 116 |—
February 1961 was the last that they lived together-. But on the day of parting she was three months
in the family way. The third child, again a girl, named Pratibha was born on August 19, 1961 when her
parents were in the midst of a marital crisis.
Things had by then come to an impossible pass. And close relatives instead of offering wise counsel
were fanning the fire of discord that was devouring the marriage. A gentleman called Gadre whose
letter-head shows an “M.A. (Phil.) M.A. (Eco.) LL.B.”, is a maternal uncle of the respondent. On-March
2, 1961 he had written to tile appellant’s father a pseudonymous letter now proved to be his, full of
malice and sadism. He wrote :
“I on my part consider myself to be the father of ’Brahmadev ............. This is only the beginning.
From the spark of your foolish and half-baked egoism, a big conflagration of family quarrels
will break out and all will perish therein This image of the mental agony suffered by all your
kith and’ kin gives me extreme happiness...... You worthless person, who cherishes a desire to
spit on my face, now behold that all the world is going to spit on your old cheeks.
So why should I loose the opportunity of giving you a few severe slaps on your cheeks and of
fisting your ear. It is my earnest desire that the father-in-law should beat your son with foot-
ware in a public place.”
On March 11, 1961 the appellant returned to Delhi all alone. Two days later the respondent followed
him but she went straight to her parents’ house in )Delhi. On the 15th, the appellant wrote a letter
to the police asking for protection as he feared danger to his life from the respondent’s parents and
relatives. On the 19th, the respondent saw the appellant but that only gave to the parties one more
chance to give vent to mutual dislike and distrust. After a brief meeting, she left the broken home for
good. On the 20th, the appellant once again wrote to the police renewing his request for protection.
On March 23, 1961 the respondent wrote to the appellant complaining against his conduct and asking
for money for the maintenance of herself and the daughters. On May 19, 1961 the respondent wrote
a letter to the Secretary, Ministry of Food and Agriculture, saying that the appellant had deserted
her, that he had treated her with extreme cruelty and asking that the Government should make
separate provision for her maintenance. On March 25, her statement was recorded by an Assistant
Superintendent of Police, in which she alleged desertion and ill-treatment by the appellant. Further
statements were recorded by the police and the Food Ministry also followed up respondent’s letter of
May 19 but ultimately nothing came out of these complaints and cross complaints. As stated earlier,
the third daughter, Pratibha, was born on August 19, 1961. On November 3, 1961 the appellant wrote
to respondent’s father complaining of respondent’s conduct and expressing regret that not even a
proper invitation was issued to him when the naming ceremony of the child was performed. On
December 15, 1961 the appellant wrote to respondent’s father stating that he had decided to go to the
court for seeking separation from the respondent. The proceedings out of which this appeal arises
were instituted on February 19, 1962.
The parties are Hindus but we do not propose, as is commonly done and as has been done in this case, to
describe the respondent as a “Hindu wife in contrast to non-Hindu wives as if wotmen professing this
or that particular religion are exclusively privileged in the matter of good sense, loyalty and conjugal
kindness. Nor shall we refer to the appellant as a “Hindu husband” as if that species unfailingly projects
the image of tyrant husbands. We propose to consider the evidence on its merits, remembering of
course the peculiar habits, ideas, susceptibilities and expectations of persons belonging to the strata
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of society to which these two belong. All circumstances which constitute the ,occasion or setting
for the conduct complained of have relevance but we think that no assumption can be made that
respondent is the oppressed and appellant the oppressor. The evidence in any case ought to bear a
secular examination.
The appellant asked for annulment of his marriage by a decree of nullity under section 12(1) (c) of
’The Hindu Marirage Act’, 25 of 1955, (“The Act”) on the ground that his consent to the marriage was
obtained by fraud. Alternatively, he asked for divorce under section 13 (1) (iii) on the ground that
the respondent was incurably of unsound mind for a continuous period of not less than three years
immediately preceding the presentation of the petition. Alternatively, the appellant asked for Judicial
separation under section 10(1) (b) on the ground that the respondent had treated him with such
cruelty as to cause a reasonable apprehension in his mind that. it would be harmful or injurious for
him to live with her.
The appellant alleged that prior to the marriage, the respondent was treated in the Yeravada Menfal
Hospital for Schizophrenia but her father fraudulently represented that she was treated for sun-stroke
and cerebral malaria. The trial court rejected this contention. It also rejected the contention that the
respondent was of unsound mind.It,however, held that the respondent was guilty of cruelty and on
that ground it passed a decree for judicial separation.
Both sides went in appeal to the District Court which dismissed the appellant’s appeal and allowed the
respondent’s, with the result that the petition filed by the appellant stood wholly dismissed.
The appellant then filed Second Appeal No. 480 of 1968 in the Bombay High Court. A learned single
Judge of that court dismissed that appeal by a judgment dated February 24, 1969.
This Court granted to the appellant special leave to appeal, limited to the question of judicial separation
on the ground of cruelty.
We are thus not concerned with the question whether the appellant’s consent to the marriage was
obtainede by fraud or whether the respondent bad been of unsound mind for the requisite period
preceding the presentation of the petition.
The decision-of the-High Court on those questions must be treated as final and can not be reopened.
In this appeal by special leave, against the judgment rendered by the High Court in Second Appeal,
we would not have normally permitted the parties to take us through the evidence in the case. Sitting
in Second Appeal, it was not open to the High Court itself to reappreciate evidence. Section 100 of
the Code of Civil Procedure restricts the jurisdiction of the High Court in Second appeal to questions
of law or to substantial errors or defects in the procedure which may possibly have produced error
or defect in the decision of the case upon the merits. But the High Court came to the conclusion that
both the courts below had “failed to apply the correct principles of law in determining the issue of
cruelty”. Accordingly, the High Court proceeded to consider the evidence for itself and came to the
conclusion independently that the appellant had failed to establish that the respondent had treat him
with cruelty. A careful consideration of the evidence by the High Court ought to be enough assurance
that the finding of fact is correct and it is not customary for this Court in appeals under Article 136 of
the Constitution to go into minute details of evidence and weigh them one against the other, as if for
the first time. Disconcertingly, this normal process is beset with practical difficulties.
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In judging of the conduct of the respondent, the High Court assumed that the words of abuse or insult
used by the respondent “could not have been addressed in vacuum. Every abuse, insult, remark or
retort must have been probably in exchange for remarks and rebukes from the husband............. a court
is bound to consider the probabilities and infer, as I have done, that they must have been in the context
of the abuses, insults, rebukes and remarks made by the husband and without evidence on the record
with respect to the conduct of the husband in response to which the wife behaved in a particular way
on each occasion, it is difficult, if not impossible to draw inferences against the wife.”
We find this approach difficult to accept. Under section 103 of the Code of Civil Procedure, the High
Court may, if the evidence on the record is sufficient, determine any issue of ’fact necessary for the
disposal of the appeal which has not been determined by the lower appellate court or which has
been wrongly determined by such court by reason of any illegality, omission, error or defect such as
is referred to in sub-section (1) of section 100. But, if the High Court takes upon itself the duty to
determine an issue of fact its power to appreciate evidence would be subject to the same restraining
conditions to which the power of any court of facts is ordinarily subject. The limits of that power
are not wider for the reason that the evidence is being appreciated by the High Court and not by the
District Court. While appreciating ,evidence, inferences may and have to be drawn but courts of facts
have to remind themselves of the line that divides an inference from guesswork.
If it is proved, as the High Court thought it was, that the respondent had uttered words of abuse
and insult, the High Court was entitled to infer that she had acted in retaliation, provided of course
there was evidence, direct or circumstantial, to justify such an inference. But the High Court itself
felt that there was no evidence on the record with regard to the conduct of the husband in response
to which the wife could be said to have behaved in the particular manner. The High Court reacted
to this situation by saying that since there was no evidence regarding the conduct of the husband, “it
is difficult, if not impossible, to draw inferences against the wife”. If there was no evidence that the
husband had provoked the wife’s utterances, no inference could be drawn against the husband.
There was no question of drawing any inferences against the wife because, according to the High Court,
it was established on the evidence that she had uttered the particular words of abuse and insult. The
approach of the High Court is thus erroneous and its findings are vitiated. We would have normally
remanded the matter to the High Court for a fresh consideration of the evidence but this proceeding
has been pending for 13 years and we thought that rather than delay the decision any further, we
should undertake for ourselves the task which the High Court thought it should undertake under
section 103 of the Code. That makes it necessary to consider the evidence in the case.
But before doing so, it is necessary to clear the ground of certain misconceptions, especially as they
would appear to have influenced the judgment of the High Court. First, as to the nature of burden
of Proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden
must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party
which affirms a fact, not on the party which denies it., This principle accords with commonsense as
it is so much earlier to prove a positive than a negative. The petitioner must therefore prove that the
respondent has treated him with cruelty within the meaning of section 10 (1) (b) of the Act.
But does the law require, as the High Court has held, that the petitioner must prove his case beyond
a reasonable doubt ? In other words, though the burden lies on the petitioner to establish the charge
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of cruelty, what is the standard of proof to be applied in order Lo judge whether the burden has been
discharged ?
The normal rule which governs civil proceedings is that a fact can be said to be estabilshed if it is
proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, section
3, a fact issaid to be proved when the court either believes it to exist or considersits existence so
probable that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance
of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will
act on the supposition that the fact exists, if on weighing the various probabilities he finds that the
preponderance is in favour of the existence of the particular fact. As a prudent man, so the court
applies this test for finding whether a fact in issue can be said to be proved. The first step in this
process is to fix the probabilities, the second to weigh them, though the two may often intermingle.
The impossible is weeded out at the first stage, the improbable at the second. Within the wide range
of probabilities the court has often a difficult choice to make but it is this choice which ultimately
determines where. the preponderance of probabilities lies. Important issues like those which affect the
status of parties demand a closer scrutiny than those like the loan on a promissory note “the nature
and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the
truth of the issue”(1) ; or as said by Lord Denning, “the degree of probability depends on the subject-
matter. In proportion as the offence is grave, so ought the proof to be clear” (2).
But whether the issue is one of cruelty or of a loan on a promote, the test to apply is whether on a
preponderance of robabilities the relevant fact is proved. In civil cases this, normally, is the standard of
proof to apply for finding whether the burden of proof is discharged. Proof beyond reasonable doubt
is proof by a higher standard which generally governs criminal trials or trials involving inquiry into
issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be
taken away on a mere preponderance of probabilities. If the probabilities are so’ nicely balanced that a
reasonable, (1) Per Dixon,J.in Wright v.Wright (1948)77 C.L.R.191at p. 210. (2) Blyth v. Blyth, [1966]
1 A.E.R. 524 at 536. not a vascillating, mind cannot find where the preponderance lies, a doubt arises
regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the
accused. It is wrong to import such considerations in trials of a purely civil nature.
Neither section 10 of the Act which enumerates the grounds on which a petition for judicial separation
may be presented nor section 23 which governs the jurisdiction of the court to pass a decree in any
proceeding under the Act requires that the petitioner must prove his case beyond a reasonable doubt.
Section 23 confers on the court the power to pass a decree if it is “satisfied” on matters mentioned
in clauses (a) to (e) of the section. Considering that proceedings under the Act are essentially of a
civil nature, the word “satisfied” must mean “satisfied on a preponderance of probabilities” and not
“satisfied beyond a reasonable doubt”. Section 23 does not alter the standard of proof in civil cases.
The misconception regarding the standard of proof in matrimonial cases arises perhaps from a loose
description of the respondent’s conduct in such cases as constituting a “matrimonial offence”. Acts
of a spouse which are calculated to impair the integrity of a marital union have a social significance.
To mar’ or not to marry and if so whom, may well be a private affair but the freedom to break a
matrimonial tie is not. The society has a stake in the institution of marriage and therefore the erring
spouse is treated not as a mere defaulter but as an offender. ]But this social philosophy, though it may
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have a bearing on the need to have the clearest proof of an allegation before it is accepted as a ground
for the dissolution of a marriage, has no bearing on the standard of proof in matrimonial cases.
In England, a view was at one time taken that the petitioner in a matrimonial petition must establish
his case beyond a reasonable doubt but in Blyth v. Blyth(P), the House of Lords held by a majority that
so far as the grounds of divorce or the bars to divorce like connivance or condonation are concerned,
“the case; like any civil case, may be proved by a preponderance of probability”. The High Court of
Austraila in Wright v. Wright (2) , has also taken the view that “the civil and not the criminal standard of
persuasion applies to matrimonial causes, including issues of adultery”. The High Court was therefore
in error in holding that the petitioner must establish the charge of cruelty “beyond reasonable doubt”.
The High Court adds that “This must be in accordance with the law of evidence”, but we are not clear
as to the implications of this observation.
Then, as regards the meaning of “Cruelty”. The High Court on this question begins with the decision
in Moonshee Bazloor Rubeem v. Shamsoonnissa Begum(3), where the Privy Council observed:
“The Mohomedan law, on a question of what is legal cruelty between Man and Wife, would
probably not differ materially from our own of which one of the most recent exposition is the
following :- ’There must be actual violence (1) [1966] A.E.R. 524 at 536. (2) 1948, 77 C.L.R.
191 at 210. (3) 11 Moore’s Indian Appeals 551. of such a character as to endanger personal
health or safety; or there must be a reasonable apprehension of it’.”
The High Court then refers to the decisions of some of the Indian Courts to illustrate “The march of
the Indian Courts with the Englishs Courts” and cites the following passage from D. Tolstoy’s “The
Law and Practice of Divorce and Matrimonial Causes” (Sixth Ed., p. 61):
“Cruelty which is a ground for dissolution of marriage may be defined as wilful and
unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or
mental, or as to give rise to a reasonable apprehension of such a danger.”
The High Court concludes that “Having regard to these principles and the entire evidence in the case,
in my judgment, I find that none of the acts complained of against the respondent can he considered
to be so sufficiently grave and weighty as to be described as cruel according to the matrimonial law.”
An awareness of foreign decisions could be a useful asset in interpreting our own laws. But it has to be
remembered that we have to interpret in this case a specific provision of a specific enactment, namely,
section 10(1) (b) of the Act. What constitutes cruelty must depend upon the terms of this statute
which provides :
“10(1) Either party to a marriage, whether solemnized before or after the commencement of
this Act, may present a petition to the district court praying for a decree for judicial separation
on the ground that the other party-
(b) has treated the petitioner with such cruelty as to cause areasonable apprehension in the
mind of the petitioner that it will be harmful or injurious for the petitioner to live with the
other party;”
The inquiry therefore has to be whether the conduct charged a,.- cruelty is of such a character as to
cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for
him to live with the respondent.
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It is not necessary, as under the English law, that the cruelty must be of such a character as to cause
“danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger.
Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a
reasonable apprehension that it is harmful or injurious for one spouse to live with the other. The risk
of relying on English decisions in this field may be shown by the learned Judge’s reference to a passage
from Tolstoy (p. 63) in which the learned author, citing Horton v. Horton(1), says :
“Spouses take each other for better or worse, and it is not enough to show that they find life
together impossible, even if there results injury to health.” (1) [1940] P. 187.
If the danger to health arises merely from the fact that the spouses find it impossible to live together
as where one of the parties shows an attitude of indifference to the other, the charge of cruelty may
perhaps fail. But under section 10(1) (b), harm or injury to health, reputation, the working career or
the like, would be an important consideration in determining whether the conduct of the respondent
amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the
charge of cruelty having regard to the principles of English law, but whether the petitioner proves that
the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind
that it will be harmful or injurious for him to live with the respondent.
One other matter which needs to be clarified is that though under section 10(1) (b), the apprehension
of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is
wrong, except in the context of such apprehension, to import the concept of a reasonable man as known
to the law of negligence for judging of matrimonial relations. Spouses are undoubtedly supposed and
expected to conduct their joint venture as best as they might but it is no function of a court inquiring
into a charge of cruelty to philosophise on the modalities of married life. Some one may want to
keep late hours to finish the day’s work and some one may want to get up early for a morning round
of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man
situated similarly will behave in a similar fashion. “The question whether the misconduct complained
of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the
particular person complaining of the acts. The question is not whether the conduct would be cruel to a
reasonable person or a person of average or normal sensibilities, but whether it would have that effect
upon the aggrieved spouse,. That which may be cruel to one person may be laughed off by another,
and what may not be cruel to an individual under one set of circumstances may be extreme cruelty
under another set of circumstances.”(1) The Court has to deal, not with an ideal husband and ideal
wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or
a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not
be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual
faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins (2).
“In matrimonial cases we are not concerned with the reasonable man, as we are in cases of
negligence. We are dealing with this man and this woman and the fewer a priori assumptions
we make bout them the better. In cruelty cases one can hardly ever even start with a
presumption that the parties are reasonable people, because it is hard to imagine any cruelty
case ever arising if both the spouses think and behave as reasonable people.”
We must therefore try and understand this Dr. Dastane and his wife Sucheta as nature has made them
and as they have shaped their lives.
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(1) American Jurisprudence, 2nd Ed., Vol. 24, p. 206.

(2) [1963] 2 A.E.R. 966,970.
The only rider is the interdict of section 23 ( 1 ) (a) of the Act that the relief prayed for can be decreed
only if the court is satisfied that the petitioner is not in any way taking advantage of his own wrong. Not
otherwise. We do not propose to spend time on the trifles of their married life. Numerous incidents
have been cited by the appellant as constituting cruelty but the simple trivialities which can truly be
described as the reasonable, wear and tear of married life have to be ignored. It is in the context of
such trivialities that one says that spouses take each other for better or worse. In many marriages each
party can, if it so wills, discover many a cause for complaint but such grievances arise mostly from
temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a
cause for the dissolution of marriage. We will therefore have regard only to grave and weighty incidents
and consider these to find what place they occupy on the marriage canvas.
The spouses parted company on February 27, 1961, the appellant filed his petition on February 19,
1962 and the trial began in September, 1964. The 3-1/2 years’ separation must naturally have created
many more misunderstandings and further embitterment. In such an atmosphere, truth is a common
casualty and therefore we consider it safer not to accept the bare word of the appellant either as to what
the respondent said or did or as to the genesis of some of the more serious incidents. The evidence of
the respondent too would be open to the same criticism but the explanation of her words and deeds,
particularly of what she put in cold print, must come from her oral word and that has to be examined
with care.
The married life of these spouses is well-documented, almost incredibly documented. They have
reduced to writing what crossed their minds and the letters which they have written to each other
bear evidence of the pass to which the marriage had come. Some of these were habitually written as
the first thing in the morning like a morning cup (if tea while some were written in the silence of mid-
night soon after the echo of harsh words had died down. To think that this young couple could indulge
in such an orgy of furious letter-writing is to have to deal with a problem out of the ordinary for it is
seldom that a husband and wife, while sharing a common home, adopt the written word as a means of
expression or communication.
The bulk of the correspondence is by the wife who seems to have a flair for letter-writing. She writes
in some style and as true as “The style is the man”, her letters furnish a clue to her personality. They
are a queer mixture of confessions and opprobrious accusations. It is strange that almost every one
connected with this couple his a penchant for writing. The wife, apart from her voluminous letters, has
written an autobiographical account of her unfortunate experiences in the Yeravada Hospital, calling
it “Mee Antaralat Tarangat Asta” (“while I was floating in space”).
The husband’s father idealised the Shiva-Parvati relationship in a book called : “Gauriharachai Goad
Kahani” (“The sweet story of Gaurihar”). Quite a few of the wifes relatives including a. younger sister
of hers and of course her maternal uncle have set their pen to paper touching some aspect or the other
of her married life. Perhaps, it was unfortunate that the promised millennium that did not come began
with a letter. That was the letter of April 25, 1956 which the wife’s lather wrote to the husband’s father
while the marriage negotiations were in progress. The marriage took place on May 13, 1956.
Nothing deserving any serious notice happened till August, 1959 except that the letters Exs. 556, 238,
243 and 244 show that quite frequently the respondent used to get into fits of temper and say things
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for which She would express regret later. In the letter Ex. 556 dated November 23, 1956 she admits to
having behaved “very badly”; in Ek. 238 dated March 26, 1959 she admits that she was behaving like
an “evil star” and had harassed the appellant; in Ex. 243 dated May 5, 1959 she says that she was aware
of her “lack of sense” and asks for forgiveness for having insulted the appellant, his parents, his sister
and her husband; and in Ex. 244 dated May 22, 1959 she entreats the appellant that he should not feel
guilty for the insults hurled by her at his parents.
The period from August 1959 to March 1960 was quite critical and the correspondence covering that
period shows that an innate lack of self-control had driven the respondent to inexorable conduct. By
the letter. Ex. 256 dated February 16, 1960 the appellant complained to the respondent’s father who
was then in Indonesia that the respondent kept on abusing him, his parent and sister and that he was
extremely unhappy. The appellant says in the letter that differences between a husband and wife were
understandable but that it was impossible to tolerate the respondent constantly accusing him and his
relatives of wickedness. The appellant complains that the respondent used to say that the book written
by his father should be burnt to ashes, that the appellant should apply the ashes to his forehead, that
the whole Dastane family was utterly mean and that she wished that his family may be utterly ruined.
The appellant was gravely hurt at the respondent’s allegation that his father’s ’Sanad’ bad been once
forfeited. The appellant tells the respondent’s father that if he so desired he could ask her whether
anything stated in the letter was untrue and that he had conveyed to her what be was stating in the
letter. It may be stated that the respondent admits that the appellant had shown her this letter before it
was posted to her father. On March 21. 1960 the respondent wrote a letter (Ex. 519) to the appellant’s
parents admitting the truth of the allegations made by the appellant in Ex. 256.
On June 23, 1960 the respondent made a noting in her own hand stating that she had accused the
appellant of being a person with a beggarly luck, that she had said that the food eaten at his house,
instead of being digested would cause worms in the stomach and that she had given a threat :
“murder shall be avenged with murder”.
During June 1, 1960 to December 15, 1960 the marital relations were subjected to a stress and strain
which ultimately wrecked the marriage. In about September, 1960 the appellants father probably
offered to mediate and asked the appellant and the respondent to submit to him their respective
complaints in writing. The appellant’s bill of complaints is at Ex. 426 dated October 23, 1960. The
letter much too long to be reproduced, contains a sorry tale. The gist of the more important of the
appellant’s grievances in regard to the period prior to June, 1960 is this : (1)’ The respondent used to
describe the appellant’s mother as a boorish woman; (2) On the day of ’Paksha’ (the day oil which
oblations are offered to ancestors) she used to abuse the ancestors of the appellant; (3) She tore off the
’Mangal- Sutra’; (4) She beat the daughter Shubha while she was running a high temperature of 104’;
(5) One night she started behaving as if she was ’possessed’. She tore off the Mangal-Sutra once again
and said that she will not put it on again; and (6) She used to switch on the light at midnight and sit by
the husband’s bedside nagging him through the night, as a result he literally prostrated himself before
her on several occasions.
The gist of the incidents from May to October, 1960 which the appellant describes as ’a period of
utmost misery’ is this. (1) The respondent would indulge in every sort of harassment and would blurt
out anything that came to her mind; (2) One day while a student of the appellant called Godse was
sitting in the outer room she shouted :
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“You are not a man at all”; (3) In the heat of anger she used to say that she would pour kerosene on
her body and would set fire to herself and the house; (4) She used to lock out the appellant when he
was due to return from the office. On four or five occasions he had to go back to the office without
taking any food; (5) For the sheer sake of harassing him she would hide his shoes, watch, keys and
other things.
The letter Ex. 426 concludes by saying : , “She is a hard headed, arrogant, merciless, thoughtless,
unbalanced girl devoid of sense of duty. Her ideas about a husband are : He is a dog tied at doorstep
who is supposed to come and go at her beck and call whenever ordered. She behaves with the relatives
of her husband as if they were her servants. When I see her besides herself with fury, I feel afraid that
she may kill me at any moment. I have become weary of her nature of beating the daughters, scolding
and managing me every night uttering abuses and insults.”
Most of these incidents are otherwise, supported, some by the admissions of the respondent herself,
and for their proof we do not have to accept the bare word of the appellant.
On July 18, 1960 the respondent wrote a letter (Ex. 274) to the appellant admitting that within the
bearing of a visitor she had beaten the daughter Shubha severely. When the appellant protested she
retorted that if it was a matter of his prestige, be should not have procreated the children.
She has also admitted in this letter that in relation to her daughters she bad said that there will be
world deluge because of the birth of those “ghosts”. On or about July 20. 1960 she wrote another letter
(Ex. 275) to the appellant admitting that she had described him as “a monster in a human body”, that
she had and that be’should not have procreated children. that he should “Pickle them and preserve
them in a jar” and that she had given a threat that she would see to it that he loses his job and then
she would publish the news in the Poona newspapers. On December 15, 1960 the appellant wrote a
letter (Ex. 285) to the respondent’s father complaining of the strange and cruel behaviour not only
of the respondent but of her mother. He says that the respondent’s mother used to threaten him that
since she was the wife of an Under Secretary she knew many important persons and could get him
dismissed from service, that she used to pry into his correspondence in his absence and that she even
went to the length of saying that the respondent ought to care more for her parents because she could
easily get another husband but not another pair of parents.
The respondent then went to Poona for the appellant’s brother’s marriage, where she was examined by
Dr. Seth of the Yeravada Hospital and the spouses parted company on February 27, 1961.
The correspondence subsequent to February 27, 1961 shall have to be considered later in a different,,
though a highly important, context. Some of those letters clearly bear the stamp of being written under
legal advice. The parties had fallen out for good and the domestic war having ended inconclusively
they were evidently preparing ground for a legal battle.
In regard to the conduct of the respondent as reflected in her admissions, two contentions raised on her
behalf must be considered. It is urged in the first place that the various letters containing admissions
were written by her under coercion. There is no substance in this contention. In her written statement,
the respondent alleged that the appellant’s parents had coerced her into writing the letters. At the
trial she shifted her ground and said that the coercion proceeded from the appellant himself. That
apart, at a time when the marriage had gone asunder and the respondent sent to the appellant formal
letters resembling a lawyer’s notice, some of them by registered post, no allegation was made that the
appellant or his parents had obtained written admissions from her. Attention may be drawn in this
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behalf to the letters Exs. 299 and 314 dated March 23 and May 6, 1961 or to the elaborate complaint
Ex. 318 dated May 19, 1961 which she made to the Secretary to Government of India, Ministry of
Food and Agriculture.
Prior to that on September 23, 1960 she had drawn up a list of her complaints (Ex. 424) which begins
by saying : “He has oppressed me in numerous ways like the following.” But she does not speak therein
of any admission or writing having been obtained from her. Further, letters like Exs. 271 and 272
dated respectively June 23 and July 10, 1960 which besides containing admissions on her part also
contain allegations against the appellant could certainly not have been obtained by coercion. Finally,
considering that the respondent was always surrounded by a group of relatives who had assumed
the role of marriage-counsellors, it is unlikely that any attempt to coerce her into making admissions
would have been allowed to escape unrecorded. After all, the group here consists of greedy letter-
writers.
The second contention regarding the admissions of the respondent is founded on the provisions of
section 23(1)(a) of the Act under which the court cannot decree relief unless it is satisfied that “the
petitioner is not in any way taking advantage of his own wrong’. The fulfilment of the conditions
mentioned in, section 23(1) is so imperative that the legislature has taken the care to provide that “then,
and in such a case, but not otherwise, the court shall decree such relief accordingly”. It is urged that the
appellant is a bigoted and egocentric person who demanded of his wife an impossibly rigid standard of
behaviour and the wife’s conduct must be excused as being in selfdefence. In other words, the husband
is said to have provoked the wife to say and act the way she did and he cannot be permitted to take
advantage of his own wrong. The appellant, it is true, seems a stickler for domestic discipline and these
so-called perfectionists can be quite difficult to live with. On September 22, 1957 the respondent made
a memorandum (Ex. 379) of the instructions given by the appellant, which makes interesting reading:
“Special instructions given by my husband.
(1) On rising up in the morning, to look in the minor.
(2) Not to fill milk vessel or tea cup to the brim.
(3) Not to serve meals in brass plates cups and vessels.
(4) To preserve carefully the letters received and if addresses of anybody are given therein to note
down the same in the note book of addresses.
(5) After serving the first course during meals, not to repeatedly ask ’what do you want?’ but to
inform at the beginning of the meals how much and which are the courses.
(6) As far as possible not to dip the fingers in any utensils.
(7) Not to do any work with one hand.
(8) To keep Chi. Shuba six feet away from the primus stove and Shegari.
(9) To regularly apply to her ’Kajal’ and give her tomato juice, Dodascloin etc. To make her do
physical exercise, to take her for a walk and not to lose temper with her for a year.
(10) To give him his musts and the things he requires when he starts to go outside.
(11) Not to talk much.
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(12) Not to finish work somehow or the other; for example to write letters in good hand writing, to
take a good paper, to write straight and legibly in a line.
(13) Not to make exaggerations in letters.
(14) To show imagination in every work. Not to note down the milk purchased on the calendar.”
Now, this was utterly tactless but one cannot say that it called for any attack in self-defence. The
appellant was then 28 and the respondent 22 years of age. In that early morning flush of the marriage’
young men and women do entertain lavish expectations of each other do not and as years roll by they
see the folly of. their ways. But we think that the wife was really offended by the instructions given by
the appellant. The plea of self-defence seems a clear after-thought which took birth when there was a
fundamental failure of faith and understanding.
Reliance was then placed on certain letters to show that the husband wanted to assert his will at any
cost, leaving the wife no option but to retaliate. We see no substance in this grievance either. The, plea
in the written statement is one of the denial of conduct alleged and not of provocation. Secondly, there
are letters on the record by which the wife and her relatives had from time to time complimented the
husband and his parents for their warmth, patience and understanding.
Counsel for the respondent laid great emphasis on the letter, Ex. 244 dated May 22, 1959 written by
her to the appellant in which she refers to some “unutterable question” put by him to her. It is urged
that the appellant was pestering her with a demand for divorce and the “unutterable question” was the
one by which he asked for divorce. No such inference can in our opinion be raised. The respondent has
not produced the letter to which Ex. 244 is reply; in the written statement there is hardly a suggestion
that the appellant was asking her for a divorce; and the appellant was not asked in his evidence any
explanation in regard to the “unutterable question”.
These defences to the charge of cruelty must accordingly be rejected. However, learned counsel for
the respondent is right in stressing the warning given by Denning L.J., in Kaslefsky v. Kaslefsky that
: “If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for
incompatibility of temperament. This is an easy path to tread especially in undefended cases. The
temptation must be resisted test we slip into a state of affairs where the institution of marriage itself is
imperilled.” But we think that t1o hold in this case that the wife’s conduct does not amount to cruelty
is to close for ever the door of cruelty so as to totally prevent any access thereto. This is not a case of
mere austerity of temper, petulance of manners, rudeness of language or a want of civil attention to
the needs of the husband and the household. Passion and petulance have perhaps to be suffered in
silence as the price of what turns out to be an injudicious selection of a partner. But the respondent
is the mercy of her inflexible temper. She delights in causing misery to her husband and his relation-,
and she willingly suffers the calculated insults which her relatives hurled at him and his parents : the
false accusation that, “the pleader’s Sanad of that old bag of your father was forfeited”; “I want to see
the ruination of the whole Dastane dynasty”, “burn (1)[1950] 2 A.E.R. 398,403.
the book written by your father and apply the ashes to your forehead”; “you are not a man” conveying
that the children were not his; “you are a monster in a human body. “I will make you lose your job
and publish it in the Poona newspapers”-these and similar outbursts are not the ordinary wear and
tear of married life but they became, by their regularity a menace to the peace and well-being of the
household. Acts like the tearing of the Mangal-Sutra, locking out the husband when he is due to return
from the office, rubbing chillie powder on the tongue of an infant child, beating a child mercilessly
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while in high fever and switching on the light at night and sitting by the bedside of the husband merely
to nag him are acts which tend to destroy the legitimate ends and objects of matrimony. Assuming that
there was some justification for occasional sallies or show of temper, the pattern of behaviour which
the respondent generally adopted was grossly excessive.
The conduct of the respondent clearly amounts to cruelty within the meaning of section 10(1) (b) of
the Act. Under that provision, the relevant consideration is to see whether the conduct is such as to
cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for
him to live with the respondent. The threat that she will put an end of her own life or that she will
set the house on fire, the threat that she will make him lose his job and have the matter published in
newspapers and the, persistent abuses and insults hurled at the appellant and his parents are all of so
grave an order as to imperil the appellant’s sense of personal safety. mental, happiness, job satisfaction
and reputation. Her once-too-frequent.
apologies do not reflect genuine contrition but were merely impromptu device to tide over a crisis
temporarily. The next question for consideration is whether the appellant had at any time condoned
the respondent’s cruelty. Under section 23(1) (b) of the Act, in any proceeding under the Act whether
defended or not, the relief prayed for can be decreed only and only if “where the ground of the petition
is cruelty the petitioner has not in any manner condoned the cruelty”.
The respondent did not take up the plea in her written statement that the appellant bad condoned her
cruelty. Probably influenced by that omission, the trial court did not frame any issue on condonation.
While granting a decree of judicial separation on the ground of cruelty, the learned Joint Civil Judge,
Junior Division, Poona, did not address himself to the question of condonation. In appeal, the learned
Extra Assistant Judge, Poona, having found that the conduct of the respondent did not amount to
cruelty, the question of condonation did not arise. The High Court in Second Appeal confirmed the
finding of the 1st Appellate Court on the issue of cruelty and it further held that in any case the alleged
cruelty was condoned by the appellant.
The condonation, according to the High Court, consisted in the circumstance that the spouses co-
habited till February 27, 1961 and a child was born to them in August, 1961.
Before us, the question of condonation was argued by both the sides. It is urged on behalf of the
appellant that there is no evidence of condonation while the argument of the respondent is that
condonation is implicit in the act of co-habitation and is proved by the fact that on February 27, 1961
when the spouses parted, the respondent was about 3 months pregnant. Even though condonation
was not pleaded as a defence by the respondent it is our duty, in view of the provisions of section 23(1)
(b), to find whether the cruelty was condoned by the appellant. That section casts an obligation on
the court to consider the question of condonation, an obligation which has to be discharged even in
undefended cases. The relief prayed for can be decreed only if we are satisfied “but not otherwise”, that
the petitioner has not in any manner condoned the cruelty. It is, of course, necessary that there should
be evidence on the record of the case to show that the appellant had condoned the cruelty.
Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to
the same position as he or she occupied before the offence was committed. To constitute condonation
there must be, therefore, two things : forgiveness and restoration(1). The evidence of condonation in
this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does
not consist in the mere fact that the spouses continued to share a common home during or for some
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time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists
in most cases of a series of acts spread over a period of time. Law does not require that at the first
appearance of a cruel act, the other spouse must leave the matrimonial home lest the continued co-
habitation be construed as condonation. Such a construction will hinder reconciliation and thereby
frustrate the benign purpose of marriage laws.
The evidence of condonation consists here in the fact that the spouses led a normal sexual life despite
the respondent’s Acts of cruelty. This is not a case where the spouses, after separation, indulged in
a stray act of sexual intercourse, in which case the necessary intent to forgive and restore may be
said to be lacking. Such stray acts may bear more than one explanation. But if during co-habitation
the spouses, uninfluenced by the conduct of the offending spouse, lead a life of intimacy which
characterises normal matrimonial relationship, the intent to forgive and restore the offending spouse
to the original status may reasonably be inferred. There is then no scope for imagining that the
conception of the child could be the result of a single act of sexual intercourse and that such an act
could be a stark animal act unaccompanied by the nobler graces of marital life. One might then as
well magine that the sexual act was undertaken just in order to kill boredom or even in a spirit of
revenge. Such speculation is impermissible. Sex plays an important role in marital life and cannot be
separated from other factors which lend to matrimony a sense of fruition and fulfilment. Therefore,
evidence showing that the spouses led a normal sexual life even after a series of acts of cruelty by one
spouse is proof that the other spouse condoned that cruelty. Intercourse, of course, is not a necessary
ingredient of condonation because there may be evidence otherwise to show that the offending spouse
has been forgiven and has been received back into the position previously occupied in the home. But
intercourse in circumstances as obtain here would raise a strong inference of condonation with its
dual requirement, forgiveness and restoration. That inference stands uncontradicted, the appellant not
having explained the circumstances in which he came to lead and live a normal sexual life with the
respondent, even after a series of acts of cruelty on her part.
But condonation of a matrimonial offence is not to be likened to a full Presidential Pardon under
Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival.
Condonation is always subject to the implied condition that the offending spouse will not commit a
fresh matrimonial offence, either of the same variety as the one condoned or of any other variety.
“No matrimonial offence is erased by condonation. It is obscured but not obliterated” (1).
Since the condition of forgiveness is that no further matrimonial offence shall occur, it is
not necessary that the fresh offence should be ejusdem generis with the original offence(2).
Condoned cruelty can therefore be revived, say, by desertion or adultery.”
Section 23 (1) (b) of the Act, it may be urged, speaks of condonation but not of its revival and therefore
the English doctrine of revival should not be imported into matters arising under the Act. Apparently,
this argument may seem to receive some support from the circumstances that under the English law,
until the passing of the Divorce Reform Act, 1969 which while abolishing the traditional bars to relief
introduces defences in the nature of bars, at least one matrimonial offence, namely, adultery could
not be revived if once condoned (3). But a closer examination of such an argument would reveal
its weakness. The doctrine of condonation was established by the old ecclesiastical courts in Great
Britain and was adopted by the English Courts from the canon law. ’Condonation’ is a technical word
which means and implies a conditional waiver of the right of the injured spouse to take matrimonial
proceedings. It is not ’forgiveness’ as commonly understood (4). In England condoned adultery could
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not be received because of the express provision contained in section 3 of the Matrimonial Causes
Act, 1963 which was later incorporated into section 42(3) of the Matrimonial Causes Act, 1965. In the
absence of any such provision in the Act governing the charge of cruelty, the word ’condonation’ must
receive the meaning which it has borne for centuries in the world of law(“).
’Condonation’ under section 23 (1) (b) therefore means conditional forgiveness, the implied condition
being that no further matrimonial offence shall be committed.
(1) See Words and Phrases Legally Defined (Butterworths) 1969 Ed., Vol I, p. 305, (“Condonation”).
(2) See Halsbury’s Laws of England, 3rd Ed., Vol. 12, p. 3061.
(3) See Rayden on Divorce, 11th Ed. (1971) pp. 11, 12, 23, 68, 2403.
(4) See Words and Phrases Legally Defined (Butterworths) 1969 Ed., p. 306 and the Cases cited
therein.
(5) See Ferrers vs Ferrers (1791) 1 Hag. Con 130 at pp. 130, 131.
It therefore becomes necessary to consider the appellant’s argument that even on the assumption
that the appellant had condoned the cruelty, the respondent by her subsequent conduct forfeited the
conditional forgiveness, thereby reviving the original cause of action for judicial separation on the
ground of cruelty. It is alleged that the respondent treated the appellant with cruelty during their brief
meeting on March 19, 1961, that she refused to allow to the appellant any access to the children, that
on May 19, 1961 she wrote a letter (Ex. 318) to the Secretary to the Government of India, Ministry of
Food and Agriculture, New Delhi, containing false and malicious accusations against the appellant
and his parents and that she deserted the appellant and asked the Government to provide her with
separate maintenance.
These facts, if proved, shall have to be approached and evaluated differently from the facts which were
alleged to constitute cruelty prior to its condonation. The incidents on which the appellant relied to
establish the charge of cruelty had to be grave and weighty. And we found them to be so. In regard
to the respondent’s conduct subsequent to condonation, it is necessary to bear in mind that such
conduct may not be enough by itself to found a decree for judicial separation and yet it may be enough
to revive the condoned offence. For example, gross familiarities short of adultery(1) or desertion for
less than the statutory period (2) may be enough to revive a condoned offence. The incident of March
19, 1961 is too trifling to deserve any notice. That incident is described by the appellant himself in
the complaint (Ex. 295) which he made to the police on March 20, 1961. He says therein that on the
19th morning, the respondent went to his house with some relatives, that those relatives-instigated
her against him, that they entered his house though he asked them not to do so and that she took
away certain household articles with her. As shown by her letter (Ex. 294) dated the 19th itself, the
articles which she took away were some petty odds and ends like a do]], a slate, a baby hold-all, two
pillows, a bundle of clothes and a baby-cart. The police complaint made by the appellant betrays some
hypersensitivity.
As regards the children, it does seem that ever since February 27, the appellant was denied a chance
to meet them. His letters Exs. 307. 309 and 342 dated April 20, April 21 and November 23, 1961
respectively contain the grievance that the children were deliberately not allowed to see him., From
his point of view the grievance could be real but then the children, Shubha and Vibha, were just 4 and
2 years of age in February, 1961 when their parents parted company.
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Children of such tender age need a great amount of looking after and they could not have been sent to
meet their father unescorted. The one person who could so escort them was the mother who bad left
or bad to leave the matrimonial home for good. The appellant’s going to the house of the respondent’s
parents where he was living was in the circumstances an impracticable proposition. Thus, the wall that
divided the parents denied to the appellant access to his children.
(1) Halsbury’s Law-, of England, 3rd Ed., Vol. 12, p. 306, para 609.
(2) Beard vs. Beard [1945] 2 A.E.R. 306.
The allegations made by the respondent in her letter to the Government, Ex. 318 dated May 19, 1961
require a close consideration. It is a long letter, quite an epistle, in tune with the, respondent’s proclivity
as a letter-writer. By that letter, she asked the Government to provide separate maintenance for herself
and the children. The allegations contained in the letter to which the appellant’s counsel has taken
strong exception are these : (1) During the period that she lived with the appellant, she was subjected
to great harassment as well as mental and physical torture; (2) The appellant had driven her out of the
house on February 27, 1961; (3) The appellant had deserted her and had declared that he will not have
any connection with her and that he will not render any financial help for the maintenance of herself
and the children. He also refused to give medical help to her in her advanced stage of pregnancy; (4)
The appellant had denied to her even the barest necessities of life like food and clothing; (5) The parents
of (he appellant were wicked persons and much of her suffering was due to the influence which they
had on the appellant; (6) The appellant used to threaten her that he would divorce her, drive her out of
the house and even do away with her life, (7) The plan to get her examined by Dr. Seth of the Peravada
Mental Hospital was an insincere wicked and evil move engineered by the appellant, his brother and
his father, (8) On her refusal to submit to the medical examination any further, she was driven out of
the house with the children after being deprived of the valuables on her person and in her possession;
and (9) The appellant had subjected her to such cruelty as to cause a reasonable apprehension in her
mind that it would be harmful or injurious for her to live with him.
Viewed in isolation, these allegations present a different and a somewhat distorted picture. For their
proper assessment and understanding, it is necessary to consider the context in which those allegations
came to be made. We will, for that purpose, refer to a few letters.
On March 7, 1961 the respondent’s mother’s aunt, Mrs. Gokhale wrote a letter (Ex. 644) to the
respondent’s mother. The letter has some bearing on the events which happened in the wake of the
separation which took place on February 27, 1961. It shows that the grievance of the respondent and
her relatives was not so much that a psychiatrist was consulted as that the consultation was arranged
without any prior intimation to the respondent. The letter shows that the appellant’s brother Dr.
Lohokare, and his brother-in-law Deolalkar, expressed regret that the respondent should have been
got examined by a psychiatrist without previous intimation to any of her relatives. The letter speaks of
a possible compromise between the husband and wife and it sets out the terms which the respondent’s
relatives wanted to place before the appellant. The terms were that the respondent would stay at her
parents’ place until her delivery but she would visit the appellant off and on; that the children would
be free to visit the appellant; and that in case the appellant desired that the respondent should live
with him, he should arrange that Dr. Lohokare’s mother should stay with them in Delhi for a few
days. The last term of the proposed compromise Was that instead of digging the past the husband and
wife should live in peace and happiness. The letter bears mostly the handwritting of the respondent
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herself and the significance of that circumstance is that it was evidently written with her knowledge
and consent. Two things are clear from the letter : one, that the respondent did not want to leave the
appellant and two, that she did not either want to prevent the children from seeing the appellant. The
letter was written by one close relative of the respondent to another in the ordinary course of events
and was not, so to say, prepared in order to create evidence or to supply a possible defence. It reflects
a genuine attitude, not a make believe pose and the feelings expressed therein were shared by the,
respondent whose handwriting the letter bears.
This letter must be read along with the letter Ex. 304 which the respondent sent to the appellant on
April 18, 1961. She writes :
“I was sorry to hear that you are unwell and need treatment. I would always like never to
fail in my wifely duty of looking after you, particularly when you are ailing, but you will,
no doubt, agree that even for this, it will not be possible for me to join you in the house out
of which you have turned me at your father’s instance. ’This is, therefore, just to keep you
informed that if you come to 7/6 East Patel Nagar, I shall be able to nurse you properly and
my parents will ever be most willing to afford the necessary facilities under their care to let
me carry out this proposal of mine.”
There is no question that the respondent had no animus to desert the appellant and as stated by her or
on her behalf more than once, the appellant had on February 27, 1961 reached her to Mrs. Gokhale’s
house in Poona, may be in the hope that she will cooperate with Dr. Seth in the psychiatric exploration.
She did not leave the house of her own volition.
But the appellant had worked himself up to believe that the respondent had gone off her mind. On
March 15, 1961 he made a complaint (Ex. 292) to the Delhi Police which begins with the recital that
the respondent was in the Mental Hospital before marriage and that she needed treatment from a
psychiatrist. He did say that the respondent was “a very loving and affectionate person” but he qualified
it by saying : “when excited, she appears to be a very dangerous woman, with confused thinking”.
On April 20, 1961 the appellant wrote a letter (Ex. 305) to the respondent charging her once again of
being in an “unsound state of mind”. The appellant declared by that letter that he will not be liable for
any expenses incurred by her during her stay in her parents’ house. On the same date he wrote a letter
(Ex. 307) to the respondent’s father reminding him that he, the appellant, had accepted a girl “who
had returned from the Mental Hospital”. On April 21, 1961 he wrote it letter (Ex. 309) to the Director
of Social Welfare, Delhi Administration, in which he took especial care to declare that the respondent
“was in the Poona Mental Hospital as a lunatic before the marriage”. The relevance of these reiterations
regarding the so-called insanity of the respondent, particularly in the last letter, seems only this, that
the appellant was preparing ground for a decree of divorce or of annulment of marriage. He was
surely not so naive as to believe that the Director of Social Welfare could arrange to “give complete
physical and mental rest” to the respondent. Obviously, the appellant was anxious to disseminate the
information as widely as possible that the respondent was of unsound mind.
On May 6, 1961 the respondent sent a reply (Ex. 314) to the appellant’s letter, Ex. 305, dated April
20, 1961. She expressed her willingness to go back to Poona as desired by him, if he could make
satisfactory arrangements for her stay there. But she asserted that as a wife she was entitled to live
with him and there was no purpose in her living at Poona “so many miles away from Delhi, without
your shelter”. In regard to the appellant’s resolve that he will not bear the expenses incurred by her, she
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stated that not a pie remitted by him will be illspent and that, whatever amount he would send her will
be, accounted for fully. It is in this background that on May 19, 1961 the respondent wrote the letter
Ex. 318 to the Government. When asked by the Government to offer his explanation, the appellant by
his reply Ex. 323 dated July 19, 1961 stated that the respondent needed mental treatment, that she may
have written the letter Ex. 318 in a “madman’s frenzy” and that her father had “demoralised” her. In
his letter Ex. 342 dated November 23 , 1961 to the respondent’s father, he described the respondent as
“’your schizophrenic daughter”.
Considered in this context, the allegations made by the respondent in her letter Ex. 318 cannot revive
the original cause of action. These allegations were provoked by the appellant by his persistent and
purposeful accusation, repeated times without number, that the respondent was of unsound mind.
He snatched every chance and wasted no opportunity to describe her as a mad woman which, for the
purposes of this appeal, we must assume to be wrong and unfounded. He has been denied leave to
appeal to this Court from the finding of the High Court that his allegation that the respondent was of
unsound mind is baseless. He also protested that he was not liable to maintain the respondent.
It is difficult in these circumstances to accept the appellant’s argument either that the respondent
deserted him or that she treated him with cruelty after her earlier conduct was condoned by him. It is
true that the more serious the original offence, the less grave need be the subsequent acts to constitute
a revival(1) and in cases of cruelty, “very slight fresh evidence is needed to show a resumption of the
cruelty. for cruelty of character is bound to show itself in conduct and behaviour, day in and day out,
night in and night out”. But the conduct of the respondent after condonation cannot be viewed apart
from the conduct of the appellant after condonation. Condonation is conditional forgiveness but the
grant of such forgiveness does not give
(1) Cooper vs. Cooper (1950) W.N. 200 (H.L.)
(2) Per Scott L. J. in Batram vs. Batram (1944) p. 59 at p. 60.
to the condoning spouse a charter to malign the other spouse. If this were so, the condoned spouse
would be required mutely to submit to the cruelty of the other spouse without relief or remedy. The
respondent ought not to have described the appellant’s parents as “wicked” but that perhaps is the only
allegation in the letter Ex. 318 to which exception may be taken. We find ourselves unable to rely on
that solitary circumstance to allow the revival of condoned cruelty.
We therefore hold that the respondent was guilty of cruelty but the appellant condoned it and the
subsequent conduct of the respondent is not such as to amount to a revival of the original cause of
action. Accordingly, we dismiss the appeal and direct the appellant to pay the costs of the respondent.
Appeal dismissed.
qqq
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BIPIN CHANDER JAISINGHBHAI SHAH VERSUS PRABHAWATI

Equivalent Citations: 1956 Scr 838
(Before Hon’ble Mr. Justice Bhuvneshwar P. Sinha, Hon’ble Mr. Justice B. Jagannadhadas &
Hon’ble Mr. Justice T.L. Venkatarama Aiyyar, JJ.)
1957 AIR 176
Bipin Chander Jaisinghbhai Shah
Vs.
Prabhawati.
Date of Judgment: 19/10/1956
HMA-section 13- divorce- ground of desertion - For the offence of desertion, so far as the deserting
spouse is concerned, two essential conditions must be there, namely
(1) the factum of separation, and
(2) the intention to bring cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted spouse is concerned:
(1) the absence of consent, and
(2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form
the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those ele-
ments in the two spouses respectively....
Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The
inference may be drawn from certain facts which may not in another case be capable of leading to
the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by
those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts
of separation. If, in fact, there has been a separation the essential question always is whether that
act could be attributable to an animus deserendi. The offence of desertion commences when the fact
of separation and the animus deserendi co-exist. But it is not necessary that they should commence
at the same time. The de facto separation may have commenced without the necessary animus deser-
endi coincide in point of time.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 247 of 1953. Appeal by special leave from
the judgment and decree dated August 22, 1952 of the Bombay High Court in Appeal No. 66 of 1952
arising out of the decree dated March 7, 1952 of Bombay High Court in its Ordinary Original Civil
Jurisdiction in Suit No. 1177 of 1951.
M. C. Setalvad, Attorney-General for India, Purshottam Tricumdas, T. Godiwala, J. B. Dadachanji,
Rameshwar Nath and S. N. Andley, for the appellant.
C. K. Daphtary, Solicitor-General of India and Sardar Bahadur, for the respondent.
1956, October 19. The Judgment of the Court was delivered by
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SINHA J.-This is an appeal by special leave against the judgment and decree of the High Court of
Judicature at Bombay dated August 22,1952, reversing those of a single Judge of that Court on the
Original Side, dated March 7,1952, by which he had granted a decree for dissolution of marriage
between the appellant and the respondent.
The facts and circumstances of this case may be stated as follows: The appellant, who was the plaintiff,
and the respondent were married at Patan on April 20, 1942, according to Hindu rites of the Jain
Community. The families of both the parties belong to Patan, which is a town in Gujarat, about a
night’s rail journey from Bombay. They lived in Bombay in a two-room flat which was in occupation of
the appellant’s family consisting of his parents and his two sisters, who occupied the larger room called
the hall, and the plaintiff and the defendant who occupied the smaller room called the kitchen. The
appellant’s mother who is a patient of asthma lived mostly at Patan. There is an issue of the marriage,
a son named Kirit, born on September 10, 1945. The defendant’s parents lived mostly at Jaigaon in the
East Khandesh district in Bombay. The parties appear to have lived happily in Bombay until a third
party named Mahendra, a friend of the family came upon the scene and began to live with the family
in their Bombay flat some time in 1946, after his discharge from the army. On January 8, 1947, the
appellant left for England on business. It was the plaintiff ’s case that during his absence from Bombay
the defendant became intimate with the said Mahendra and when she went to Patan after the plaintiff ’s
departure for England she carried on “amorous correspondence” with Mahendra who continued to
stay with the plaintiff ’s family in Bombay. One of the letters written by the defendant to Mahendra
while staying at the plaintiff ’s flat in Bombay, is Ex. E as officially translated in English, the original
being in Gujerati except a few words written in faulty English. This letter is dated April,1947, written
from the plaintiff ’s house at Patan, where the defendant bad been staying with her mother-in-law. This
letter had been annexed to the plaint with the official translation. It was denied by the defendant in her
written statement. But at the trial her counsel admitted it to have been written by her to Mahendra.
As this letter started all the trouble between the parties to this litigation, it will have to be set out in
extenso hereinafter. Continuing the plaintiff ’s narrative of the events as alleged in the plaint and in his
evidence, the plaintiff returned to Bombay from abroadon May 20, 1947. To receive him back from
his foreign journey the whole family’ including the defendant was there in Bombay. According to the
plaintiff, he found that on the first night after his return his bed had been made in the hall occupied by
his father and that night he slept away from his wife. As this incident is said to have some significance
in the narrative of events leading up to the separation between the husband and the wife and about
the reason for which the parties differ, it will have to be examined in detail later. Next morning, that
is to say, on May 21, 1947, the plaintiff ’s father handed over the letter aforesaid to the plaintiff, who
recognised it as being in the familiar handwriting of his wife. He decided to tackle his wife with
reference to the letter. He handed it to a photographer to have photo copies made of the same. That
very day in the evening he asked his wife as to why she had addressed the letter to Mahendra. She at
first denied having written any letter and asked to see the letter upon which the plaintiff informed her
that it was with the photographer with a view to photo copies being made. After receiving the letter
and the photo copies from the photographer on May 23, the plaintiff showed the defendant the photo
copy of the letter in controversy between them at that stage and then the defendant is alleged to have
admitted having written the letter to Mahendra and to have further told the plaintiff that Mahendra
was a better man than him and that Mahendra loved her and she loved him. The next important event
in the narrative is what happened on May 24, 1947. On the morning of that day, while the plaintiff
was getting ready to go to his business office his wife is alleged to have told him that she had packed
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her luggage and was ready to go to Jalgaon on the ostensible ground that there was a marriage in her
father’s family. The plaintiff told her that if she had made up her mind to go, he would send the car to
take her to the station and offered to pay her Rs. 100 for her expenses. But she refused the offer. She
left Bombay apparently in the plaintiff ’s absence for Jalgaon by the afternoon train. when the plaintiff
came back home from his office, he “discovered that she had taken away everything with her and had
left nothing behind”. It may be added here that the plaintiff ’s mother had left for Patan with his son
some days previously. Plaintiff ‘s case further is that the defendant never came back to Bombay to live
with him, nor did she write any letters from Jalgaon, where she stayed most of the time. It appears
further that the plaintiff took a very hasty, ‘if not also a foolish, step of having a letter addressed to the
defendant by his solicitor on July 15, 1947, charging her with intimacy between herself and Mahendra
and asking her to send back the little boy. ,The parties violently differ on the intent and effect of this
letter which will have to be set out in extenso at the appropriate place. No answer to this letter was
received by the plaintiff. In November, 1947, the plaintiff ’s mother came from Patan to Bombay and
informed the plaintiff that the defendant might be expected in Bombay a few days later. Thereupon the
plaintiff sent a telegram to his father-in-law at Patan. The telegram is worded as follows:-
“Must not send Prabha. Letter posted.
Wishing happy new year”.
The telegram stated that a letter bad been posted. The defendant denied that any such letter bad been
received by her or by her father. Hence the original, if any, is not on the record. But the plaintiff
produced what he alleged to be a carbon copy of that letter which purports to have been written on
November 13, 1947, the date on which the telegram was despatched. An English translation of that
letter is Ex. C and is to the following effect:-
Bombay 13-11-47 To Rajmanya Rajeshri Seth Popatlal & others. There is no letter from you recently.
You must have received the telegram sent by me today.
Further, this is to inform you that I have received information from my Mami (mother) thatPrabha is
going to come to Bombay in 3 or 4 days. I am surprised to hear this news; Ever since she has gone to
Jalgaon, there has been not a single letter from her to this day. Not only that, but, although you know
everything, neither you nor any one on your behalf has come to see me in this connection. What has
made Prabha thus inclined to come all of a sudden! After her behaviour while going to Jalgaon for: the
marriage, (and after), her letter to Mahendra and her words. ‘He is better than you-Has feeling for’ me
and I love him’ and all this, I was afraid that she would not set up a house with me. Hence when my
mother gave me the news of her return, I was surprised.
I have not the slightest objection to the return of Prabha, but if she gives such shameless replies to me
and shows such improper behaviour, I shall not be able to tolerate the same. If she now really realises
her mistake and if she is really repenting and wants sincerely to come, please make her write a reply
to this letter. On getting a letter from her, I shall personally come to Patan to fetch her. Kirit is young.
For his sake also, it is necessary to persuade Prabha.
Further, I have to state that I have so far kept peace. I have made efforts to call back Prabha. Please
understand this to her my final effort. If even now Prabha does not give up her obstinacy, I am not
responsible and (then) do not blame me.
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Well, that is all for the present. Kirit must be bale and hearty. My new year’s greetings to you all. Please
do assign to me such work-as I can manage.
Written by Bipinchandra”
The plaintiff stated that be received no answer either to the telegram or to the letter. Two days later,
on, November 15, the plaintiff ’s father addressed a letter to the defendant’s father, which is Ex. D. This
letter makes reference. to the defendant’s mother having, talked to the plaintiffs mother about sending
the defendant I to Bombay and to the fact that the plaintiff bad sent a telegram on November 13, and
ends with the expression of opinion by the plaintiff ’s father that it was “absolutely necessary” that
the plaintiff ’s consent should be obtained before sending the defendant to Bombay. This letter also
remained unanswered. According to the plaintiff, nothing happened until May, 1948, when he went to
Patan and there met the defendant and told her “that if she repented for her relations with Mahendra
in the interests of the child as well as our own interests she could come back and live with me”. To that
the defendant is said to have replied that in November, 1947, as a result of pressure from her father
and the community, she had-been thinking of coming to live with the plaintiff) but that she had then
decided not to do so. The defendant has given quite a different version of this interview. The second
interview between the plaintiff and the defendant again took place at Patan some time later in 1948
when the plaintiff went there to see her on coming to know that she had been suffering from typhoid,.
At that time also she evinced no desire to come back to the plaintiff. The third and the last interview
between the plaintiff and the defendant took place at Jalgaon in April-May, 1949. At that interview also
the defendant turned down the plaintiff ’s request that at least in the interests of the child she should
come back to him. According to the plaintiff, since May 24, 1947, when the defendant left his home
in Bombay of her own accord, she bad not come back to her marital home. The suit was commenced
by the plaintiff by filing the plaint dated July 4, 1951, substantially on the ground that the defendant
bad been in desertion ever since May 24, 1947, without reasonable cause and without his consent and
against his will for a period of over four years. He therefore prayed for a decree for a dissolution of his
marriage with the defendant and for the custody of the minor child.
The suit was contested by the defendant by a written statement filed on February 4, 1952, substantially
on the ground that it was the plaintiff who by his treatment of her after his return from England had
made her life unbearable and compelled her to leave her marital home against her wishes on or about
May 24, 1.947. She denied any intimacy between herself and Mahendra or that she was confronted by
the plaintiff with a photostat copy of the letter., Ex. E, or that she had confessed any such intimacy to
the plaintiff. She admitted having received the Attorney’s letter, Ex. A, and also that she did not reply
to that letter. She adduced her father’s advice as the reason for not sending any answer to that letter.
She added that her paternal uncle Bhogilal (since deceased) and his son Babubhai saw the plaintiff in
Bombay at the instance of the defendant and her father and that the plaintiff turned down their request
for taking her back. She also made reference to the negotiations between the defendant’s mother and
the plaintiff ’s mother to take the defendant back to Bombay and that the defendant could not go to
Bombay as a result of the telegram of November 13, 1947, and the plaintiff ’s father’s letter of November
15, 1947, aforesaid. She also stated that the defendant and her son, Kirit, both lived with,the plaintiff ’s
family at Patan for over four months and off and on on several occasions. The defendant’s definite case
is that she had always been ready and willing to go back to the plaintiff and that it was the plaintiff
who all along had been wailfully refusing to keep her and to cohabit with her. On those allegations she
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resisted the plaintiff ’s claim for a decree for a dissolution of the marriage. On those pleadings a single
issue was joined between the parties, namely,-
“Whether the defendant deserted the plaintiff for a continuous period of over four years prior to the
filing of the suit”.
At the trial held by Tendolkar, J. of the Bombay High Court on the Original Side, the plaintiff examined
only himself in support of his case. The defendant examined herself, her father, Popatlal, and her
cousin, Bhogilal, in support of her case that she had been all along ready and willing to go back to her
marital home and that in spite of repeated efforts on her part through her relations the plaintiff had
been persistently refusing to take her back.
The learned trial Judge answered the only issue in the case in the affirmative and granted a decree
for divorce in favour of the plaintiff, but made DO order as to the costs of the suit. He held that the
letter, Ex. E “reads like a love letter written by a girl to her paramour. The reference to both of them
having been anxious about something and there being now no need to be anxious any more can only
be to a possible fear that she might miss her monthly periods and her having got her monthly period
thereafter, because, if it were not so and the reference was to anything innocent, there was nothing
that she should have repented later on in her mind as she says she did, nor should there have been
occasion for saying ‘after all love is such an affair’.” With reference to that letter he further held that it
was capable of the interpretation that she had misbehaved with Mahendra and that she was conscious
of her guilt. With reference to the incident of May 24, the learned Judge observed that having regard
to the demeanour of the plaintiff and of the defendant in the witness box, he was inclined to prefer the
husband’s testimony to that of the wife in all matters in which there was a conflict. He held therefore
that there was desertion with the necessary animus deserendi and that the defendant had failed to
prove that she entertained a bonafide intention to come back to the marital home, that is to say, there
was no animus revertendi. With reference to the contention that the solicitor’s letter of July 15,1947,
had terminated the desertion, if any, he held that it was not well founded inasmuch as the defendant
had at no time a genuine desire to return to her husband. He made no reference to the prayer in the
plaint that the custody of the child should be given to the father, perhaps because that prayer was not
pressed. The defendant preferred an appeal under the Letters Patent which was heard by a. Division
Bench consisting of Chagla C.J. and Bhagwati J. The Appellate Bench, allowed the appeal, set aside the
decision of the trial Judge and dismissed the suit with costs. It held that the defendant was not guilty of
desertion, that the letter of July 15, 1947, clearly established that it was the ‘plaintiff who had deserted
the defendant. Alternatively, the Appellate Court held that even assuming that the defendant was in
desertion as a result of what had happened on May 24, and subsequently, the letter aforesaid bad the
effect of putting an end to that desertion. In its judgment the letter, Ex. E, did not justify the plaintiff
having any reasonable suspicions about his wife’s guilt and that the oral evidence of the defendant
and her relations proved the wife’s anxiety to return back to her husband and of the obduracy of the
husband in refusing to take the wife back. The plaintiff made an application to the High Court for
leave to appeal to this Court. The leave asked for was refused by another Division Bench consisting of
the Chief Justice and Dixit J. Thereafter the plaintiff moved this Court and obtained special leave to
appeal from the judgment of the Appellate Bench of the High Court.
In this appeal the learned Attorney-General appearing on behalf of the appellant and the learned
Solicitor-General appearing on behalf of the respondent have placed all relevant considerations of
fact and law before us, and we are beholden to them for the great assistance they rendered to us
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in deciding this difficult case. The difficulty is enhanced by the fact that the two courts below have
taken diametrically opposite views of the facts of the case which depend mostly upon oral testimony
of the plaintiff-husband and the defendant-wife and not corroborated in many respects on either
side. It is a case of the husband’s testimony alone on his side and the wife’s testimony aided by that
of her father and her cousin. As already indicated, the learned trial Judge was strongly in favour of
preferring the husband’s testimony to that of the wife whenever there was any conflict. But he made
no reference to the testimony of the defendant’s father and cousin which, if believed, would give an
entirely different colour to the case. Before we deal with the points in controversy, it is convenient
here to make certain general of observations on the history of the law on the subject and the well
established general principles on which such cases are determined. The suit giving rise to this appeal
is based on section 3(1) (d) of the Bombay Hindu Divorce Act’, XXII of 1947, (which hereinafter will
be referred to as “The Act”) which came into force on May 12, 1947, the date the Governor’s assent
was published in the Bombay Government Gazette. This Act, so far as the Bombay Province, as it
then was, was concerned, was the first step in revolutionizing the law of matrimonial relationship,
and, as the Preamble shows, was meant “to provide for a right of divorce among all communities of
Hindus in certain circumstances”. Before the enactment, dissolution of a Hindu marriage particularly
amongst what were called the regenerate classes was unknown to general Hindu law and was wholly
inconsistent with the basic conception of a Hindu marriage as a sacrament, that is to say, a holy alliance
for the performance of religious duties. According to the Shastras, marriage amongst the Hindus was
the last of the ten sacraments enjoined by the Hindu religion for purification. Hence according to
strict Hindu law as given by the Samhitas and as developed by the commentators, a Hindu marriage
could not be dissolved on any-ground whatsoever, even on account of degradation in the hierarchy of
castes or apostacy. But custom’, particularly amongst the tribal and what used to be called the lower
castes recognised divorce on rather easy terms. Such customs of divorce on easy terms have been in
some instances held by the courts to be against public policy. The Act in section 3 sets out the grounds
of divorce. It is noticeable that the Act does not recognise adultery simpliciter as one of the grounds
of divorce, though cl. (f) renders the fact that a husband “has any other woman as a concubine” and
that a wife “is a concubine of any other man or leads the life of a prostitute” a ground of divorce. In the
present case we are immediately concerned with the provisions of s. 3(1)(d), which are in these terms:-
3. (1) A husband or wife may sue for divorce on any of the following grounds, namely:-
............................................
(d) that the defendant has deserted the plaintiff for a continuous period of four years”.
“Desertion” has been defined in section 2(b) in these terms:-
‘Desert’ means to desert without reasonable cause and without the consent or against the will of the
spouse”. It will be seen that the definition is tautological and not very helpful and leads us to the
Common Law of England where in spite of repeated legislation on the subject of matrimonial law, no
attempt has been made to define “desertion”. Hence a large body of case law has developed round the
legal significance of “desertion”. “Marriage” under the Act means “a marriage between Hindus whether
contracted before or after the coming into operation of this Act”. “Husband” means a Hindu husband
and “wife” means a Hindu wife.
In England until 1858 the only remedy for desertion was a suit for restitution of conjugal rights. But
by the Matrimonial Causes Act of 1857, desertion without cause for two years and upwards was made
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a ground for a suit for judicial separation. It was not till 1937 that by the Matrimonial Causes Act,
1937, desertion without cause for a period of three years immediately preceding the institution of
proceedings was made a ground for divorce. The law has now been consolidated in the Matrimonial
Causes Act, 1950 (14 Geo. VI, c. 25 ). It would thus appear that desertion as affording a cause of action
for a suit for dissolution of marriage is a recent growth even in England. What is desertion? “Rayden
on Divorce” which is a standard Work on the subject at p. 128 (6th Edn.) has summarised the case-law
on the subject in these terms:-
“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting
spouse of bringing cohabitation permanently to on end without reasonable cause and without the
consent of the other spouse; but the physical act of departure by one spouse does not necessarily make
that spouse the deserting party”.
The legal position has been admirably summarised in paras. 453 and 454 at pp. 241 to 243 of Halsbury’s
Laws of England (3rd Edn.) Vol. 12, in the following words:- “In its essence desertion means the
intentional permanent forsaking and abandonment of one spouse by the other without that other’s
consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view
of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts
at defining desertion, there being no general principle applicable to all cases.
Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce
is the recognition and discharge of the common obligations of the married state; the state of things
may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by
the parties, or without the marriage having been consummated.
The person who actually withdraws from cohabitation is not necessarily the deserting party. , The
fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of
desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as
a ground for divorce it must exist for a period of at least three years immediately preceding the
presentation of the petition or, where the offence appears as a cross-charge, of the answer. Desertion
as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence
founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted.
Desertion is a continuing offence”.
Thus the quality of permanence is one of the essential elements which differentiates desertion from
wilful separation. If a spouse abandon the other spouse in a state of temporary passion, for example,
anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion.’
For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must
be there., namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently
to an end (animus deserendi ). Similarly two elements are essential so far as the deserted spouse is con-
cerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce
bears the burden of proving those elements in the two spouses respectively. Here a difference between
the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under
the English law those essential conditions must continue throughout the course of the three years
immediately preceding the institution of the suit for divorce; under the Act, the period is four years
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without specifying that it should immediately precede the commencement of proceedings for divorce.
Whether the omission of the last clause has any practical result need not detain us, as it does not
call for decision in the present case. Desertion is a matter of inference to be drawn from the facts
and circumstances of each case. The inference may be drawn from certain facts which may not in
another case be capable of leading to the same inference; that is to say, the facts have to be viewed
as to the purpose which is revealed by those acts or by conduct and expression of intention, both
anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the
essential question always is whether that act could be attributable to an animus deserendi. The offence
of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not
necessary that they should commence at the same time. The de facto separation may have commenced
without the necessary animus or it may be that the separation and the animus deserendi coincide in
point of time; for example, when the separating spouse abandons the marital home with the intention,
express or-implied, of bringing cohabitation permanently to a close. The law in England has prescribed
a three year period and the Bombay Act prescribes a period of four years as a continuous period
during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus
poenitentiae thus provided by law and decides to come back to the deserted spouse by a bonafide offer
of resuming the matrimonial some with all the implications of marital life, before the statutory period
is out or even after the lapse of that period, unless proceedings for divorce have been commenced,,
desertion comes to an end and if the deserted spouse unreasonably refuses the offer, the latter may be
in desertion and not the former. Hence it is necessary that during all the period that there has been a
desertion the deserted spouse must affirm the marriage and be ready and willing to resume married
life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce’ the
plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable
doubt. Hence, though corroboration is not required as an absolute rule of law, the courts insist upon
corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this
connection the following observations of Lord Goddard, C.J. in the case of Lawson v. Lawson32 may
be referred to:-
“These cases are not cases in which corroboration is required as a matter of law. It is required as a
matter of precaution...............
With these preliminary observations we now proceed to examine the evidence led on behalf of the
parties to find out whether desertion has been proved in this case and, if so, whether there was a bona
fide offer by the wife to return to her matrimonial home with a view to discharging marital duties and,
if so, whether there was an unreasonable refusal on the part of the husband to take her back.
In this connection the plaintiff in the witness box deposed to the incident of the night of May 20, 1947.
He stated that at night he found that his bed had been made in the hall in which his father used to
sleep, and on being questioned by him, the defendant told him that it was so done with a view to giving
him the opportunity after a long absence in England to talk to his father. The plaintiff expressed his
wish to the defendant that they should sleep in the same room as they used to before his departure for
England, to which the wife replied that as the bed had already been made, “it would look indecent if
they were removed”. The plaintiff therefore slept in the hall that night. This incident was relied upon by
the plaintiff with a view to showing that the wife had already made up her mind to stop cohabitation.
This incident has not been admitted by the defendant in her cross-examination. On the other hand
32 [1955] 1 All E.R. 341, 342.
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she would make it out that it was at the instance of the plaintiff that the bed had been made in the
hall occupied by his father and that it was the plaintiff and not she who was responsible for their
sleeping apart that night. As the learned trial Judge has preferred the plaintiff ’s testimony to that of the
defendant on all matters on which there was simply oath against oath, we would not go behind that
finding. This incident by itself is capable of an innocent explanation and therefore has to be viewed
along with the other incidents deposed to by the plaintiff in order to prove his case of desertion by
the defendant. There was no reason why the husband should have thought of sleeping apart from the
wife because there was no suggestion in the record that the husband was aware till then of the alleged
relationship between the defendant and Mahendra. But the wife may have been apprehensive that the
plaintiff had known of her relations with Mahendra. That apprehension may have induced her to keep
out of the plaintiff ’s way. The most important event which led to the ultimate rupture between the
parties took place on May 21, 1947, when in the morning the plaintiff ’s father placed Mahendra’s letter
aforesaid in the plaintiff ’s hands. The letter which has rightly been pointed out in the courts below as
the root case of the trouble is in its relevant parts in these terms:-
“Mahendrababu, Your letter has been received. I have read the same and have noted the contents. In
the same way, I hope, you will take the trouble of writing me a letter now and then. I am writing, this
letter with fear in my mind, because if this reaches anybody’s hands, that cannot be said to be decent.
What the mind feels has got to be constrained in the mind only. On the pretext of lulling (my) son to
sleep, I have been sitting here in this attic, writing this letter to you. All others are chitchatting below.
I am thinking now and then that I shall write this and shall write that. Just now my brain cannot go in
any way. I do not feel like writing on the main point. The matters on which we were to remain anxious
and you particularly were anxious, well we need not now be. I very much repented later on in my
mind. But after all love is such an affair. (Love begets love).
........................................ “While yet busy doing services to my mother-in-law, the clock strikes twelve.
At this time, I think of you and you only, and your portrait shoots up before my eyes. I am reminded of
you every time. You write of coming, but just now there is nothing like a necessity, why unnecessarily
waste money? And again nobody gets salvation at my bands and really nobody will. You know the
natures of all. Many a time I get tired and keep on being uneasy in my mind, and in the end I weep
and pray God and say, 0 Lord, kindly take me away soon: I am not obsessed by any kind of anxiety and
so relieve me from this mundane existence. I do not know how many times I must be thinking of you
every day................”
This letter is not signed by the defendant and in place of the signature the word “namaste” findsplace.
The contents of the letter were put to the defendant in cross-examination. At that time it was no more
a contested document, the defendant’s counsel having admitted it during the cross-examination” of
the plaintiff. She stated that she had feelings for Mahendra as a brother and not as a lover’ When the
mysterious parts of the letter beginning with the words “The matters on which” and ending with the
words “such an affair” were put to her, she could not give any explanation as to what she meant. She
denied the suggestion made on behalf of the plaintiff in these words:-
“It is not true that the reference here is to our having had sexual intercourse and being afraid that I
might remain pregnant”.
The sentence “I very much repented later on in my mind” was also put to her specifically and her
answer was “I do not know what I repented for. I wrote some thing foolishly”. Pressed further about
—| 142 |—
the meaning of the next sentence after that, her answer was “I cannot now understand how I came
to write such a letter. I admit that this reads like a letter written by a girl to her lover. Besides the fact
that my brain was not working properly I bad no explanation to give as to how I wrote such a letter”.
She also admitted that she took good care to see that the. other members of the family, meaning the
mother-in-law and the sisters-in-law, did not see her writing that letter and that she wanted that the
letter should remain a secret to them. Being further pressed to explain the sentence “We need not be
anxious now”, her answer was “ I did not intend to convey that I had got my monthly period about
which we were anxious. I cannot say what the normal natural meaning of this letter would be”. She bad
admitted having received at least one letter from Mahendra. Though it would appear from the trend
of her cross-examination that she received more letters than one, she stated that she did not preserve
any of his letters. She has further admitted in cross-examination “I have not signed this letter. It must
have remained to be signed by mistake. I admit that under the letter where the signature should be
I have put the word ‘Namaste’ only. It is not true that I did not sign this letter because I was afraid,
that if it got into the hands of any one, it might compromise me and Mahendra. Mahendra would
have known from my handwriting that this was my letter. I had previously written one letter to him.
That letter also I had not signed. I had only said ‘Namaste”’. The tenor of the letter and the defendant’s
explanation or want of explanation in the witness box of those portions of the letter which very much
need explanation would leave no manner of doubt in any person who read that letter that there was
something between her and Mahendra which she was interested to keep a secret from everybody.
Even when given the opportunity to explain, if she could, those portions of the letter, she was not able
to put any innocent meaning to her words except saying in a bland way that it was a letter from a sister
to a brother. The trial court rightly discredited her testimony relating to her answers with respect to
the contents of the letter. The letter shows a correspondence between her and Mahendra which was
clearly unworthy of a faithful wife and her pose of innocence by characterising it as between a sister
and a brother is manifestly disingenuous. Her explanation, if any, is wholly unacceptable. The plaintiff
naturally got suspicious of his wife and naturally taxed her with reference to the contents of the letter.
That she had a guilty mind in respect of the letter is shown by the fact that she at first denied having
written any such letter to Mahendra, a denial in which she persisted even in her answer to the plaint.
The plaintiff ’s evidence that he showed her a photostatic copy of that letter on May 23, 1947, and
that she then admitted having written that letter and that she bad tender feelings for Mahendra can
easily be believed. The learned trial Judge was therefore justified in coming to the conclusion that the
letter betrayed on the part of the writer “a consciousness of guilt”. But it is questionable how far the
learned Judge was justified in observing further that’ the contents of the letter “are only capable of
the interpretation that she had misbehaved with Mahendra during the absence of the plaintiff ”. If he
meant by the word “misbehaved” that the defendant had sexual intercourse with Mahendra, he may
be said to have jumped to the conclusion which did not necessarily follow as the only conclusion from
them. The very fact that a married girl was writing amorous letters to a man other than her husband
was reprehensible and easily capable of furnishing good grounds to the husband for suspecting the
wife’s fidelity. So far there can be no difficulty in assuming that the husband was fully justified in losing
temper with his wife and in insisting upon her repentance and assurance of good conduct in future.
But we are not prepared to say that the contents of the letter are capable of only that interpretation and
no other. On the other hand, the learned Judges of the Appeal Court were inclined to view this letter
as an evidence merely of what is sometimes characterised as “platonic love” between two persons who
by reasons of bond of matrimony are compelled to restrain themselves and not to go further than
—| 143 |—
merely showing love and devotion for each other. We are not prepared to take such a lenient, almost
indulgent, view of the wife’s conduct as betrayed in the letter in question. We cannot but sympathise
with the husband in taking a very serious view of the lapse on the wife’s part. The learned Judges
of the Appeal Court have castigated the counsel for the plaintiff for putting those questions to the
defendant in cross-examination. They observe in their judgment (speaking through the Chief Justice)
that there was no justification for the counsel for the plaintiff to put to the defendant those questions in
cross-examination suggesting that she had intercourse with Mahendra as a result of which they were
apprehending future trouble in the shape of pregnancy and illegitimate child birth. It is true that it was
not in terms the plaintiff ’s case that there had been an adulterous intercourse between the defendant
and Mahendra. That need not have been so, because the Act does not recognise adultery as one of
the grounds for divorce. But we do not agree with the appellate Court that those questions to the
defendant in cross-examination were not justified. The plaintiff proposed to prove that the discovery
of the incriminating letter containing those mysterious sentences was the occasion for the defendant
to make up her mind to desert,the plaintiff. We do not therefore agree with the observations of the
appellate Court in all that they have said in respect of the letter in question.
There can be no doubt that the letter in question made the plaintiff strongly suspicious of his wife’s
conduct (to put it rather mildly), and naturally he taxed his wife to know from her as to what she bad
to say about her relations with Mahendra. She is said to have confessed to him that Mahendra was a
better man than the plaintiff and that he loved her and she loved him. When matters had come to such
a head, the natural reaction of the parties would be that the husband would get not only depressed,
as the plaintiff admitted in the witness box, but would in the first blush think of getting rid of such
an unloving, if not a faithless, wife. The natural reaction of the defendant would be not to face the
husband in that frame of mind. She would naturally wish to be out of the sight of her husband at least
for some time, to gain time for trying, if she was so minded, to reestablish herself in her husband’s
estimation and affection, if not love. The event of the afternoon of May 24, 1947, must therefore be
viewed in that light. There was going to be performed the marriage of the defendant’s cousin at her
father’s place of business in Jalgaon, though it was about five to six weeks from then. The plaintiff
would make it out in his evidence that she left rather in a recalcitrant mood in the afternoon during
his absence in office with all her belongings and that she had refused his offer of being sent in his car
to station and Rs. 100 for’ expenses. This conduct on the part of the wife can easily be explained as
that of a person who had found that her love letter had been discovered by the husband. She would-
naturally try to flee away from the husband for the time being at least because she had not the moral
courage to face him. The question is whether her leaving her marital home on the afternoon of May 24,
1947, is only consistent with her having deserted, her husband, in the sense that she had deliberately’
decided permanently to forsake all relationship with her husband with the intention of not returning
to consortium, without the consent of the husband and against his wishes. That is the plaintiff ’s case.
May that conduct be not consistent with the defendant’s case that she had not any such intention, i.e.,
being in desertion? The following observations of Pollock, M. R. in Thomas v. Thomas33 may usefully
be quoted in this connection:-
“Desertion is not a single act complete in itself and revocable by a single act of repentance.
33 [1924] P. 194.
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The act of departure from the other spouse draws its significance from the purpose with which it
is done, as revealed by conduct or other expressions of intention: see Charter v. Charter34. A mere
temporary parting is equivocal, unless and until its purpose and object is made plain.
I agree with the observations of Day J. in Wilkinson v. Wilkinson35 that desertion is not a specific act,
but a course of conduct. As Corell Barnes J. said in Sickert v. Sickert36: ‘The party who intends bringing
the cohabitation to an end, and whose conduct in reality causes its termination, commits the act of
desertion’. That conduct is not necessarily wiped out by a letter of invitation to the wife to return”.
The defendant’s further case that she bad been turned out of the house by the husband under duress
cannot be accepted because it is not corroborated either by circumstances or by direct testimony.
Neither her father nor her cousin say a word about her speaking to them on her arrival at Jalgaon that
she had been turned out of her husband’s home. If her case that she bad been forcibly turned out of
her marital home by the husband had been made out, certainly the husband would have been guilty
of “constructive desertion”, because the test is riot who left the matrimonial home first. (See Lang v.
Lang37). If one spouse by his words and conduct compel the other spouse to leave the marital home.
the former would be guilty of desertion, though it is the latter who has physically separated from the
other and has been made to leave the marital home. It should be noted that the wife did not cross-
petition for divorce or for any other relief. Hence it is no more necessary for us to go into that question.
It is enough to point out that we are not prepared to rely upon the uncorroborated testimony ‘of the
defendant Chat she had been compelled to leave her marital home by the threats of the plaintiff.
The happenings of May 24, 1947, as pointed out above, are consistent with the plaintiff ’s case of
desertion by the wife. But they are also consistent not with the defendant’s case as actually Pleaded
in her written statement, but with the fact; and circumstances disclosed in the evidence, namely, that
the defendant having been discovered in her clandestine amorous correspondence with her supposed
paramour Mahendra, she could not face her husband or her husband’s people living in the same flat
in Bombay and therefore shamefacedly withdrew herself and went to her parent’s place of business in
Jalgaon on the pretext of the marriage of her cousin which was yet far off. That she was not expected
at Jalgaon on that day in connection with the marriage is proved by her own admission in the witness
box that “when I went to Jalgaon everyone was surprised”. As pointed out above, the burden is on the
plaintiff to prove desertion without cause for the statutory period of four years, that is. to say, that the
deserting spouse must be in desertion throughout the whole period. In this connection the following
observations of Lord Macmillan in his speech in the House of Lords in the case of Pratt v. Pratt38 are
apposite:-
“In my opinion what is required of a petitioner for divorce on the ground of desertion is proof that
throughout the whole course of the three years the respondent has without cause been in desertion.
The 861, deserting spouse must be shown to have persisted in the intention to desert throughout the
whole period. In fulfilling its duty of determining whether on the evidence a case of desertion without
cause has been proved the court ought not, in my opinion, to leave out of account the attitude of mind
of the petitioner. If on the facts it appears that a petitioning husband has made it plain to his deserting
34 84 L T. 272.
35 58 J. P. 415.
36 [1899] P. 278, 282
37 [1955] A.C. 402. 417.
38 [1939] A C. 417, 420.
—| 145 |—
wife that he will not receive her back, or if he has repelled all the advances which she may have made
towards a resumption of married life, he cannot complain that she has persisted without cause in her
desertion”. It is true that the defendant did not plead that she had left her husband’s home in Bombay
in the circumstances indicated above. She, on the other hand, pleaded constructive desertion by the
husband. That case, as already observed, she has failed to substantiate by reliable evidence. But the
fact that the defendant has so failed does not necessarily lead to the conclusion that the plaintiff has
succeeded in proving his case. The plaintiff must satisfy the court that the defendant had been in
desertion for the continuous period of four years as required by the Act. If we come to the conclusion
that the happenings of May 24, 1947, are consistent with both the conflicting theories, it is plain that
the plaintiff has not succeeded in bringing the offence of desertion home to the defendant beyond all
reasonable doubt. We must therefore examine what other evidence there is in support of the plaintiff ’s
case and in corroboration of his evidence in court.
The next event of importance in this narrative is the plaintiff ’s solicitor’s letter of July 15, 1947, addressed
to the defendant, care of her father at Jalgaon. The defendant’s cousin’s marriage was performed towards
the end of June and she could have come back to her husband’s place, soon thereafter’ Her evidence
is that after the marriage had been performed she was making preparations to go back to Bombay
but her father detained her and asked her to await a letter from the plaintiff. The defendant instead of
getting an invitation from the plaintiff to come back to the marital home received the solicitor’s letter
aforesaid, which, to say the least, was not calculated to bring the parties nearer. The letter is in these
terms:-
“Madam, Under instructions from our client Bipin Chandra J. Shah we have to address you as under:-
That you were married to our client in or about April 1942 at Patan. Since the marriage you and our
client lived together mostly in Bombay and son by name Kirit was born on or about the 10th day of
September 1944.
Our client. states that he left for Europe in January last and returned by the end of May last. After our
client’s return, our client learnt that during our client’s absence from India you developed intimacy
with one Mahendra and you failed to give any satisfactory reply when questioned about the same
and left for your parents under the pretext of attending to the marriage ceremony of your cousin.
You have also taken the minor with you and since then you are residing with your father to evade any
satisfactory explanation.
Our client states that under the events that have happened, our client has become entitled to obtain a
divorce and our client does not desire to keep you any longer under his care and protection. Our client
desires the minor to be kept by him and we are instructed to request you to send back the minor to our
client or if necessary our client will send his agent to bring the minor to him. Our client further states
that in any event it will be in the interest of the minor that he should stay with our client. Our client
has made this inquiry about the minor to avoid any unpleasantness when our client’s agent comes to
receive the minor”. The letter is remarkable in some respects,apart from antedating the birth of the
son Kirit by a year. The letter does not in terms allege that the defendant was in desertion, apart from
mentioning the fact that she had left against the plaintiff ’s wishes or that she had done so with the
intention of permanently abandoning her marital duties. On the other hand, it alleges that “You are
residing with your father to avoid any satisfactory explanation”. The most important part of the letter is
to the effect that the plaintiff had “become entitled to obtain a divorce” and that he “does not desire to
—| 146 |—
keep you any longer under his care and protection”. Thus if the solicitor’s letter is any indication of the
working of the mind of the plaintiff, it makes it clear that at that time the plaintiff did not believe that
the defendant had been in desertion and that the plaintiff had positively come to the determination
that he was no longer prepared to affirm the marriage relationship. As already indicated, one of the
essential conditions for success in a suit for divorce grounded upon desertion is that the deserted
spouse should have been willing to fulfill his or her part of the marital duties. The statement of the law
in para 457 at p. 244 of Halsbury’s Laws of England (3rd Edn. Vol 12) may be usefully quoted:
“The burden is on the petitioner to show that desertion without cause subsisted, throughout the
statutory period. The deserting spouse must be shown to have persisted in the intention to desert
throughout the whole of the three year period. It has been said that a petitioner should be able honestly
to say that he or she was all along willing to fulfill the duties of the marriage, and that the desertion was
against his or her will, and continued throughout the statutory period without his or her consent; but
in practice it is accepted that once desertion has been started by the fault of the deserting spouse, it is
no longer necessary for the deserted spouse to show that during the three years preceding the petition
be or she actually wanted the other spouse to come back, for the intention to desert is presumed to
continue. That presumption may, however, be rebutted”. Applying those observations to the facts of
the present case, can the plaintiff honestly say that be was all along willing to fulfill the duties of the
marriage and that the defendant’s desertion, if any, continued throughout the statutory period without
his consent. The letter, Ex. A) is an emphatic no. In the first place, even the plaintiff in that letter did
not allege any desertion and, secondly, he was not prepared to receive her back to the matrimonial
home. Realising his difficulty when cross-examined as to the contents of that letter, he wished the
court to believe that at the time the letter was written in his presence he was “in a confused state of
mind” and did not remember exactly whether he noticed the sentence -that he did not desire to keep
his wife any longer. Pressed further in cross-examination, he was very emphatic in his answer and
stated:-
“It is not true that by the date of this letter I had made up my mind not to take her back. It was my hope
that the letter might induce her parents to find out what had happened, and they would persuade her
to come back. I am still in the confused state of mind that despite my repeated attempts my wife puts
me off ”.
In our opinion, the contents of the letter could not thus be explained away by the plaintiff in the witness
box. On the other hand, it shows that about seven weeks after the wife’s departure for her father’s
place the plaintiff had at least for the time being convinced himself that the defendant was no more a
suitable person to live with. That, as found by us, be was justified in this attitude by the reprehensible
conduct of his wife during his absence is beside the point. This letter has an importance of its own only
in so far as it does not corroborate the plaintiff ’s version that the defendant was in desertion and that
the plaintiff was all along anxious to induce her to come back to him. This letter is more consistent
with the supposition that the husband was very angry with her on account of her conduct as betrayed
by the letter, Ex. E and that the wife left her husband’s place in shame not having the courage to face
him after that discovery. But that will not render her in the eye of the law a deserter, as observed by
Pollock, M. R. in Bowron v. Bowron39 partly quoting from Lord Gorell as follows:-
“In most cases of desertion the guilty party
39 [1925] P. 187, 192.
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actually leaves the other, but it is not always or necessarily the guilty party who leaves the matrimonial
home. In my opinion, the party who intends bringing the cohabitation to an end, and whose conduct
in reality causes its termination, commits the act of desertion: See also Graves v. Graves40; Pulford v.
Pulford41; Jackson v. Jackson42; where Sir Henry Duke P. explains the same doctrine. You must look at
the conduct of the spouses and ascertain their real intention”.
It is true that once it is found that one of the spouses has been in desertion, the presumption is that
the desertion has continued and that it is not necessary for the deserted spouse actually to take steps
to bring the deserting spouse back to the matrimonial home. So far we do not find any convincing
evidence in proof of the alleged desertion by the wife and naturally therefore the presumption of
continued desertion cannot arise.
But it is not necessary that at the time the wife left her husband’s home, she should have at the same
time the animus deserendi. Let us therefore examine the question whether the defendant in this case,
even if she had no such intention at the time she left Bombay, subsequently decided to put an end to
the matrimonial tie. This is in consonance with the latest pronouncement of the Judicial Committee
of the Privy Council in the case of Lang v. Lang43 in an appeal from the decision of the High Court of
Australia, to the following effect:-
“Both in England and in Australia, to establish desertion two things must be proved: first, certain
outward and visible conduct the ‘factum’ of desertion; secondly, the ‘animus deserendi’ the intention
underlying this conduct to bring the matrimonial union to an end.
In ordinary desertion the factum is simple: it is the act of the absconding party in leaving the matrimonial
home. The contest in such a case will be almost entirely as to the ‘animus’. Was the intention of the
party leaving the home to break it up for good, or something short of, or different from that?” In this
connection the episode of November, 1947, when the plaintiff ’s mother came from Patan to Bombay is
relevant. It appears to be common ground now that the defendant had agreed to come back to Bombay
along with the plaintiff ’s mother or after a few days. But on this information being given to the plaintiff
he countermanded any such steps on the wife’s part by sending the telegram, Ex. B,aforesaid and the
plaintiff ’s father’s letter dated November 15, 1947. ‘We are keeping out of consideration for the present
the letter, Ex. C, dated November 13, 1947, which is not admitted to have been received either by the
defendant or her father. The telegram is in peremptory terms: “Must not send Prabha”. The letter of
November 15, 1947, by the plaintiff ’s father to the defendant’s father is equally peremptory. It says
“It is absolutely necessary that you should obtain the consent of Chi. Bipinchandra before sending
Chi. Prabhavati”. The telegram and the letter which is a supplement to the telegram, as found by the
courts below, completely negative the plaintiff ’s statement in court that he was all along ready and
willing to receive the defendant back to his home. The letter of November 13, 1947, Ex. C, which the
plaintiff claims to have written to his father-in-law in explanation of the telegram and is a prelude to
it is altogether out of tune with the tenor of the letter and the telegram referred to above. The receipt
of this letter has been denied by the defendant and her father. In court this letter has been described
as a fake in the sense that it was an afterthought and was written with a. view to the legal position and
40 3 Sw. & Tr. 350.
41 [1923] P. 18.
42 [1924] P. 19.
43 [1955] A.G. 402, 417.
—| 148 |—
particularly with a view to getting rid of the effect of the solicitor’s letter of July 15, which the plaintiff
found it hard to explain away in the witness box. Neither the trial court, which was entirely in favour of
the plaintiff and which had accepted the letter as genuine, nor the appellate Court, which was entirely
in favour of the defendant has placed implicit faith in the bona fides of this letter. The lower appellate
Court is rather ironical about it, observing “This letter as it were stands in isolated glory. There is no
other letter. There is no other conduct of the plaintiff which is consistent with this letter”. Without going
into the controversy as to the genuineness or bona fldes of this letter, it can be said that the plaintiff ’s
attitude, as disclosed therein, was that he was prepared to take her back into the matrimonial home
provided she wrote a letter to him expressing real repentance and confession of mistake. This attitude
of the plaintiff cannot be said to be unreasonable in the circumstances of the case. He was more sinned
against than sinning at the beginning of the controversy between the husband and the wife.
This brings us to a consideration of the three attempts alleged by the plaintiff to have been made by
him to induce his wife to return to the matrimonial home when he made two journeys to Patan in
1948 and the third journey in April- May, 1949, to Jalgaon. These three visits are not denied by the
defendant. The only difference between the parties is as to the purpose of the visit and the substance
of the talk between them. That the plaintiff ’s attachment for the defendant had not completely dried
up is proved by the fact that when he came to know that she had been suffering from typhoid he went
to Patan to see her. On this occasion which was the second visit the plaintiff does not say that he
proposed to her to come back and that she refused to do so. He only says that she did not express any
desire to come back. That may be explained as being due to diffidence on her part. But in respect of the
first and the third visits the plaintiff states that on both those occasions he wanted her to come back
but she refused. On the other hand, the defendant’s version is that the purpose of his visit was only to
take away the child and not to take her back to his home. It is also the plaintiff ’s complaint that the
defendant never wrote any letter to him offering to come back. The wife’s answer is that she did write
a few letters before the solicitor’s letter was received by the father and that thereafter under her father’s
advice she did not writeany more to the plaintiff. In this connection it becomes necessary to examine
the evidence of her cousin Babulal and her father Popatlal. Her cousin, Babulal, who was a member of
her father’s joint family, deposes that on receipt of the letter, Ex. A, a fortnight later he and his father,
since deceased, came to Bombay and saw the plaintiff. They expostulated with him and pleaded the
defendant’s cause and asked the plaintiff to forgive and forget and to take her back. The plaintiff ’s
answer was that he did not wish to keep his wife. The defendant’s father’s evidence is to the effect that
after receipt of the letter, Ex. A, he came to Bombay and saw the plaintiff ’s father at his residence and
protested to him that “a false notice had been given to us”. The plaintiff ’s father is said to have replied
that they “would settle the matters amicably” He also deposes as to his brother and his brother’s son
having gone to the plaintiff. He further states that he with his wife and the defendant went to Patan and
saw the plaintiff ’s mother and in consultation with her made arrangements to send her back to
‘Bombay. But before that could be done the telegram, Ex. B, and the letter, Ex. D, were received and
consequently he gave up the idea of sending the defendant to Bombay without straightening matters.
Both these witnesses on behalf of the defendant further deposed to the defendant having done several
times and stayed with the plaintiff ’s family, particularly his mother at Patan along with the boy. The
evidence of these two witnesses on behalf of the defendant is ample corroboration of the defendant’s
,case and the evidence in court that she has all along been ready and willing to go back to the
matrimonial home. The learned trial Judge has not noticed this evidence and we have not the advantage
of his comment on this corroborative evidence. This body of evidence is in consonance with the
—| 149 |—
natural course of events. The plaintiff himself stated in the witness box that he had sent the solicitor’s’
letter by way of a shock treatment to the defendant’s family so that they might persuade his wife to
come back to his matrimonial home. The subsequent telegram and letters (assuming that both the
letters of the 13th and 15th November had been posted in the usual course and received by the
addressees) would give a shock to the family. Naturally thereafter the members of the family would be
up and doing to see that a reconciliation is brought about between the husband and the wife. Hence
the visits of the defendant’s uncle and the father would be a natural conduct after they had been
apprised of the rupture between them. We therefore do not see any sufficient reasons for brushing
aside all that oral evidence which has been believed by the Lower Appellate Court and had not in
terms been disbelieved by the trial court. This part of the case on behalf of the defendant and her
evidence is corroborated by the evidence of the defendant’s relatives aforesaid. It cannot be seriously
argued that evidence should be disbelieved, because the witnesses happened to be the defendant’s
relatives. They were naturally the parties most interested in bringing about a reconciliation They were
anxious not only for the welfare of the defendant but were also interested in the good name of the
family and the community as is only natural in families like these which have not been so urbanised
as to completely ignore the feelings of the community. They would therefore be the persons most
anxious in the interests of all the parties concerned to make efforts to bring the husband and the wife
together and to put an end to a controversy which they considered to be derogatory to the good
name and, prestige of the families concerned. The plaintiff ’s evidence, on the other hand, on this part
of the case is uncorroborated. Indeed his evidence stands uncorroborated in many parts of his case
and the letters already discussed run counter to the tenor of his evidence in court. We therefore feel
inclined to accept the defendant’s case that after her leaving her husband’s home and after the
performance of her cousin’s marriage she was ready and willing to go back to her husband. It, follows
from what we have said so far that the wife was not in desertion though she left her husband’s home
without any fault on the part of the plaintiff which could justify her action in leaving him, and that
after the lapse of a few months’ stay at her father’s place she was willing to go back to her matrimonial
home. This conclusion is further supported by the fact that between 1948 and 1951 the defendant
stayed with her mother- in-law at Patan whenever she was there, sometimes for months, at other times
for weeks. This conduct is wholly inconsistent with the plaintiff ’s case that the defendant was in
desertion during the four years that she was out of her matrimonial home. It is more consistent with
the defendant’s attempts to. get herself re-established in her husband’s home after the rupture in May
1947 as aforesaid. It is also in evidence that at the suggestion of her mother- in-law the defendant sent
her three year old son to Bombay so that be might induce his’ ,father to send for the mother, The boy
stayed in Bombay for about twenty days and then was brought. back to Patan by his father as he (the
boy) was unwilling to stay there without the mother., This was in August_September 1948 when the
defendant deposes to having questioned her husband why she bad not been called back and the
husband’s answer was evasive. Whether or not this statement of the defendant is true, there can be no
doubt that the defendant would not have allowed her little boy of about three years of age to be sent
alone to Bombay except in the hope that he might be instrumental in bringing about a reconciliation
between the father and the mother. The defendant has deposed to the several efforts made by her
mother-in-law and her father-in-law to intercede on her behalf with the plaintiff but without any
result. There is no explanation why the plaintiff could not examine his father and mother in
corroboration of his case of continuous desertion for the statutory period by the defendant. Their
evidence would have been as valuable, if not more, as that of the defendant’s father and cousin as
—| 150 |—
discussed above. Thus it is not a case where evidence was not available in corroboration of the plaintiff ’s
case. As the plaintiff ’s evidence on many important aspects of the case has remained uncorroborated
by evidence which could be available to him, we must hold that the evidence given by the plaintiff falls
short of proving his case of desertion by his wife. Though we do not find that the essential ingredients
of desertion have been proved by the plaintiff, there cannot be the least doubt that it was the defendant
who had by her objectionable conduct brought about a rupture in the matrimonial home and caused
the plaintiff to become so cold to her after she left him.
In view of our finding that the plaintiff has failed to prove his case of desertion by the defendant, it
is not necessary to go into the question of animus revertendi on which considerable argument with
reference to case-law was addressed to us on both sides. For the aforesaid reasons we agree with the
Appellate Bench of the High Court in the conclusion at which they had arrived, though not exactly
for the same reasons. The appeal is accordingly dismissed. But as the trouble started on account of the
defendant’s conduct, though she is successful in this Court, we direct that each party must bear its
own costs throughout. Appeal dismissed.
qqq
—| 151 |—
DR. AMIT KUMAR VERSUS DR. SONILA

Bench : Hon’ble Mr. Justice Kurian Joseph and Hon’ble Mr. Justice Sanjay Kishan Kaul
Dr. Amit Kumar ....Appellant
Versus
Dr. Sonila & Ors. ...Respondents
[Arising out of SLP(C) No.21786/2018]
Decided on : 26th October, 2018
In the present case, the Appellant and Respondent were married and from the wedlock were born a
son and a daughter (aged 11 and 8 years respectively). Both the parties are doctors deployed with
the CRPF.
Due to the relationship becoming sore between them, the parties agreed for a decree of divorce by
mutual consent and henceforth filed a petition under Section 13B of the Hindu Marriage Act, 1955.
According to the decree of divorce, both the parties were at liberty to marry any other person and
agreed to the custody of both the children with the husband with a stipulation that financial obli-
gations of the son would be borne by the husband and those of the daughter to be borne by the wife.
After a while, the husband re-married and also got transferred to Jammu. Consequently, he admit-
ted the children at a boarding school in Pune. Till then, the wife had not made any payment with re-
gard to her financial obligation. Therefore, the husband sent a legal notice demanding the payment.
In reply, the wife stated that the consent decree was not accepted to her and thereupon she also filed
an application under Section 6 of the Hindu Minority and Guardianship Act, 1956 seeking custody
of her minor children.
After two rounds of litigation, the matter reached the Supreme Court .
held that the decision to give custody to the husband was a conscious decision taken by the par-
ties and can hardly be categorized as a decision under force, pressure or fraud. Also, there was six
months hiatus period for the parties to think over the terms of the settlement. Further, the proceed-
ings initially initiated for the custody and thereafter for seeking cancellation of the decree of divorce
were clearly an endeavor to pressurize the appellant not to claim any amounts.
Therefore, having regard to the facts of the case, the court held that the custody should remain with
the father.
JUDGMENT
Hon’ble Mr. Justice Sanjay Kishan Kaul :—

1. Leave granted.
2. The appellant and respondent No.1 were married according to Hindu rites on 7.5.2004 and,
from the wedlock were born a son (respondent No.2) and a daughter (respondent No.3), who
—| 152 |—
are now about 11 years and 8 years respectively. It appears that the marriage ran into problem
at some stage and all endeavours for reconciliation failed. The appellant and respondent No.1,
both, are qualified doctors, who were deployed with the CRPF throughout, which position exists
even today.
3. The appellant and respondent No.1 ultimately agreed for a decree of divorce by mutual consent
and filed a petition under Section 13B of the Hindu Marriage Act, 1955. The first motion was
filed in June, 2016 and after the expiry of the statutory period of six (6) months, the second
motion was passed and a decree of divorce was granted on 9.12.2016.
4. The two relevant terms of the decree of divorce for the purposes of this present appeal are
extracted as under:
5) That, petitioner No.1 and 2 are at liberty to marry with any other person of their choice. In
future petitioner No.1 has no any right of husband over petitioner No.2, so also petitioner
No.2 has lost right as wife over petitioner No.1 today.
6) That, petitioner No.1 and 2 both are agree to custody of both the childrens residing with
petitioner No.1. Petitioner No.1 will provide education, medicines, and marriage of
Aarokya Kumar s/o Amit Kumar. Petitioner No.2 will provide education, medicines and
marriage of Riya Kumar d/o Amit Kumar.
5. A perusal of the aforesaid shows that para 5 was a natural corollary to the decree of divorce, i.e.,
that either parties could re-marry. Clause 6 provides for an agreement inter se the appellant and
respondent No.1 qua the issue of custody of both the children, which was agreed to be with the
appellant. However, possibly in view of their similar financial strength, it was agreed that the
appellant would provide for education, medicines and marriage of the son while respondent
No.1 would do the likewise for the daughter.
6. The parties at the relevant time were posted in Nanded and, thus, initially the arrangement for
custody worked out fine. The issue, however, arose once the appellant was transferred out of
Nanded. The appellant was transferred to Jammu, which apparently necessitated him to make
arrangements for admission of respondent Nos.2 & 3 to a boarding school in Pune, while he
assessed the possibility of bringing the children to live with him in Jammu. The undisputed
fact is that at no point of time did respondent No.1 make any financial contributions towards
her obligations, in terms of the decree of divorce by mutual consent. The appellant sent a legal
notice dated 28.3.2017 to respondent No.1 pointing out this fact and demanding the payment of
unpaid amounts, apart from the amount required for securing admission and meeting the living
expenses of the daughter in the boarding school at Pune. It is this demand which seems to have
triggered off the present dispute.
7. Respondent No.1 sent a reply to the aforesaid notice through her counsel on 15.4.2017. The
said reply raised the issue that the consent decree was not acceptable to her, and hence her
counsel had advised her to seek a modification of the terms & conditions of the decree regarding
the custody of the children. It was also alleged that the transfer of respondent Nos.2 & 3 to
the boarding school was a unilateral act of the appellant and that the expenses quoted were
exorbitant.
—| 153 |—
8. Respondent No.1 filed an application dated 31.5.2017 under Section 6 of the Hindu Minority
and Guardianship Act, 1956, seeking custody of her minor children. In the application, it is
alleged that respondent No.1 was mentally disturbed regarding the future of respondent Nos.2
& 3, who are of a tender age, and that at the time of the divorce, the appellant forced and coerced
the applicant to dance on his tunes though not acceptable to the applicant. It is further pleaded
that respondent No.1 had not asked for absolute custody of the children only so that they do not
get disturbed in their education. This application also admits that the trigger has been the notice
dated 28.3.2017, sent by the appellant through his counsel, whereby respondent No.1 was for the
first time informed that the children were being put in a boarding school. A reference has also
been made to the communication, where it was alleged by the appellant that the respondent No.1
wanted to get rid of the custody and responsibility of the children and that is the reason why
she had given their custody to the appellant as respondent No.1 had decided to get re-married.
There are certain other allegations made qua the problem of the visiting rights of respondent
No.1 vis-a-vis the appellant but they are not germane to the controversy in question.
9. The aforesaid application was resisted by the appellant by filing a reply where it was sought to
be emphasised that the terms of the decree had been agreed upon, six months time period had
been granted to the parties to have a thought over the same, and only thereafter had they been
incorporated in the decree of divorce. In the reply it has also been pointed out that though
the marriage between the appellant and respondent No.1 was a love marriage, issues arose on
account of an alleged affair between respondent No.1 and her school boyfriend, as named in
the reply. It was also alleged that she was caught red-handed, but on her begging forgiveness,
the appellant decided to maintain the relationship. This, however, it is alleged, did not bring
the liaison to an end. Not only this, in March 2016, she is alleged to have started an affair with
a person working in the same organisation, who has been named in the application, and that
on being found out, respondent No.1 even attempted to commit suicide on that account, for
which medical records are available. The divorce is stated to have been agreed upon without
making these allegations against respondent No.1, in order to maintain the dignity of the parties
in the society at large. The District Judge disposed of the application on 04.09.2017. The court
noticed that the paramount consideration was the interest of the children. The court took into
consideration that both the parties were well qualified and enjoyed an equal occupation and
status, and had mutually agreed to the terms and conditions of the decree for divorce after the
completion of the statutory period of six months. There was, thus, no reason to deprive the
appellant of the custody of the children, but visiting right arrangements were made in view of
the fact that the two parties were based in different stations.
10. This order was assailed by respondent No.1 before the High Court in WP No.12432/2017 in
September, 2017. While the writ petition was still pending, respondent No.1 filed a civil suit for
declaration that the decree of divorce by mutual consent passed by the Family Court had been
obtained by coercion, fraud and misrepresentation and was, thus, null and void, and hence did
not affect the marriage between the parties. This suit is stated to be still pending.
11. During the proceedings, mediation was also endeavoured, but it failed. The learned Single
Judge of the Bombay High Court passed an order on 12.6.2018, after having interacted with the
children. The learned Judge took note of the subsequent development that the appellant had
married recently, prior to the order, and that there was a biological son of his second wife, borne
—| 154 |—
out of her first wedlock, who is residing with them, currently. The appellant had also got the
children admitted to a school in Jammu, by that point in time. The interaction with the children
is stated to have led the Judge to the conclusion that the son and daughter desire to live with
respondent No.1, but that they also love their father equally. The learned Judge gave preference
to the desire of respondent No.1, as a mother, and directed that the children would remain in the
custody of the mother for a period of one year to take education at a school in which they would
acquire admission, at the place where their mother lives and that the father would have visiting
rights. A number of directions were passed qua the implementation of the visiting rights.
12. The appellant, aggrieved by this order, preferred SLP (Civil) No.16667/2018. Leave was granted
and this appeal No.6500/2018 was disposed of on 11.7.2018, by making a reference to the clauses
in the consent decree, which had not been noticed by the High Court, while passing the order.
The matter was then remitted to the High Court for fresh consideration.
13. Based on the interaction with the children, the learned Single Judge of the Bombay High Court
by the impugned order dated 25.7.2018, once again, directed the custody of the children to
be with the mother, with visiting rights given to the father. The High Court after noticing the
submission made on behalf of the appellant that the condition in the divorce decree had not
been varied till date, posted the matter on 19.3.2019, to be reviewed after a year.
14. We had directed the personal presence of the appellant and the respondents with whom we
interacted. Learned counsel for the appellant drew our attention to certain pleadings which
would show that proceedings had been initiated against the officer with whom the liaison of
respondent No.1 was alleged. The Memorandum dated 14.3.2017 issued by the Directorate
General, CRPF referred to the imputations of misconduct in support of the article of charges
and it is specifically alleged that the said officer had used immoral texts during office hours
while communicating with respondent No.1. The details of the same have also been set out.
The inquiry is stated to be still pending. In the course of the Courts interaction, it came to
light that as per the appellant and his second wife, the matrimonial arrangement was with the
understanding that Respondent Nos.2 and 3 would stay with the appellant, and the second wife of
the appellant would take care of them. The second wife of the appellant is an MBA graduate and
was previously working with a bank, but resigned to take care of domestic responsibilities. The
appellant also stated that while on the one hand no financial aid had been given by respondent
No.1 to the appellant for the daughter, as per the obligations in the consent decree on other hand
she had been transferring substantive amounts to the person with whom she allegedly had a
liaison. On the Courts query, respondent No.1 initially took offence to the fact that the appellant
had access to her bank details, but on a pointed query admitted that she did transfer the funds
to her colleague, but stated that the same was her own business. She sought to plead that it was
immaterial whether she was or was not a good wife, but that she was indeed a good mother, as
had become apparent in the interaction of the children with the learned Single Judge.
15. We have given deep thought to the matter. The issue is not so simple as it involves the interests
of these young children, respondent Nos.2 & 3, which is of paramount concern. While saying
so, it has been kept in mind that these children are still young and are of an impressionable age
and the interaction can only be one of the factors to be taken into account.
—| 155 |—
16. In our view, it clearly emerges that the decision to give custody to the appellant, of the two
children, was a conscious decision taken by the parties at the relevant stage and can hardly
be categorised as a decision under force, pressure or fraud. Respondent No.1 is well-educated
and is a medical practitioner. There was a six (6) months hiatus period for the parties to think
over the terms of the settlement before the grant of the decree of divorce, which is the statutory
period available for the parties to have a re-think, if they so deem it appropriate. The parties had
clearly agreed as per clause 5 that they were free to re-marry. As per the terms of the custody, the
said marriage does not have any effect on the custody rights, at least in the terms between the
parties. The appellant has also borne all the expenses for both the children, as respondent No.1
even initially failed to contribute anything towards the expenses for the daughter, contrary to the
agreement inter se the parties.
17. The trigger for respondent No.1 claiming custody of the children only arose when the appellant
asked her to contribute financially. It was not a case of financial difficulty, but the unwillingness of
respondent No.1 to contribute for her own daughter, while simultaneously transferring amounts
to a colleague of hers. It does appear that the proceedings initiated initially for the custody
and thereafter for seeking cancellation of the decree of divorce were clearly an endeavour to
pressurise the appellant to not claim any amounts. We may also invite attention to Order II Rule
2 of the Code of Civil Procedure, 1908 specifying that where a plaintiff intentionally relinquishes,
any portion of his claim, he shall not afterwards sue in respect of the portion so relinquished.
Respondent No.1 had relinquished her rights to claim custody and the suit filed by her, thus, is
also highly doubtful.
18. We may hasten to add that it is not as if there can be no eventuality where such terms may
require modification, but that would arise if the interests of the children so desire, and more
specifically if the appellant had failed to honour his commitments, or look after the children.
The second marriage of the appellant cannot be put against him, nor can the factum of the child
of his second wife residing with him deprive him of the custody rights of his two children, which
has been specifically conferred on him with the consent of respondent No.1.
19. A perusal of the impugned order shows that it is not as if the appellant was not looking after
the children. The children showed affection for their father. It was due to the exigencies of the
appellants service condition that the children had to be put in a boarding school for some time,
which exigency also does not remain at present. It was known to the parties that they were in
a transferable job. A conscious decision was taken by the parties to give the sole custody to the
appellant, in the interest of the children. The second wife of the appellant is an educated lady.
Merely because the appellant has decided to go ahead in life, and has had a second marriage,
it provides no ground whatsoever to deprive him of the custody of the children as agreed
upon between the appellant and respondent No.1, especially when he has been looking after
the children and has not gone back on any of his commitments. Respondent No.1, in order to
avoid the financial liability started these proceedings, resulting in the impugned order, as also a
separate suit proceeding. One fails to appreciate what is it that respondent No.1 wants by filing
the suit now, by claiming that the decree of divorce is null and void, when there is admission of
a mutual consent for divorce and the appellant has already re-married. We are not going into
the details of the allegations against respondent No.1s liaison with another man in the same
service, as the inquiry is still pending and, it may not be appropriate also, to do so in the present
—| 156 |—
proceedings. We, however, see no reason why the appellant has been compelled to go through
this unnecessary litigation when the parties, at the threshold, after deep deliberation, and for the
interest of the children, have given the custody to the appellant.
20. We are of the view that the learned Single Judge has given undue importance to the conversation
with the children at a time when naturally they would prefer to stay with a parent rather than a
boarding school. Respondent No.1 cannot be permitted to take advantage of the visiting rights
granted for the vacation period to now claim that the children should continue to stay with her.
21. We are, thus, of the unequivocal view that the interference by the learned Single Judge, vide
impugned order dated 25.7.2018, was unjustified, and the order of the Family Court dated
9.12.2016 was in order.
22. Insofar as any further facilitative directions, for the purpose of visiting rights of respondent
No.1 are concerned, it would be open for the Family Court or High Court to make necessary
arrangements. Respondent Nos.2 & 3 should be returned to the appellant by respondent No.1,
along with all relevant documents of the children, within thirty (30) days from today, before the
Family Court. In case the appellant is unable to make arrangement for a mid-term admission for
the children, he may inform respondent No.1 and in that eventuality the children will continue
to study in the same school at present and continue to stay with respondent No.1 till the end of
the session. This is in order to ensure that the study of the children are not disturbed. We also
make it clear that the rights and obligations as envisaged in the decree of divorce by mutual
consent will bind both the appellant and respondent No.1. Needless to say that after the children
attain the age of majority, they would have their own choice.
23. The appeal is accordingly allowed, leaving the parties to bear their own costs.
qqq
—| 157 |—
KOLLAM CHANDRA SEKHAR VERSUS KOLLAM PADMA LATHA

Bench : Hon’ble Mr. Justice G.S. Singhvi and Hon’ble Mr. Justice V. Gopala Gowda
Kollam Chandra Sekhar .. Appellant;
Versus
Kollam Padma Latha .. Respondent.
Decided on September 17, 2013
A. Family and Personal Laws — Hindu Law — Hindu Marriage Act, 1955 — S. 13(1)(iii) Expln.
and S. 9 — Divorce on grounds of "unsoundness of mind" and "mental disorder" including
schizophrenia — When may not be granted — Merc existence of mental disorder insufficient
to justify dissolution of marriage — Need for existence of serious mental disorder — Further
held, one spouse cannot simply abandon the other spouse because the latter is suffering from
sickness
— In instant case, medical report failed to support case of appellant husband that respondent was
suffering from serious case of schizophrenia — Rather, report indicated that although respondent
was suffering from a "illness of schizophrenic type" but did not show symptoms of psychotic illness,
had responded well to treatment from acute phases and her symptoms were fairly under control with
medication and further that if there was good compliance with treatment coupled with good family
and social support, a schizophrenic patient could continue normal conjugal and marital relationship
— Besides, respondent wife had not only completed MBBS but had also done a postgraduate diploma
in Medicine and was ^ continuously working as a Government Medical Officer — Had she been
suffering from any serious kind of mental disorder, it would have been impossible for her to work in
said post — Impugned judgment not granting decree of divorce and allowing petition for restitution
of conjugal rights, upheld — Special Marriage Act, 1954, S. 27(1)(e)
B. Family and Personal Laws — Marriage — Strong foundation of marriage — To weather storms
and embrace sunshine, both with equanimity
C. Family and Personal Laws — Divorce — Welfare of child prime consideration
The marriage between the appellant and the respondent was solemnised on 31-5-1995 as per
Hindu rites and customs. A child was born to them on d 7-7-1997. Some tensions arose between
the two after the death of appellant husband's brother, and both of them received medical
treatment.
The appellant husband alleged that the respondent fell seriously ill, and when she consulted some
psychiatrists they advised her to live with her mother; and that when he visited her after two
weeks, her mental condition had aggravated to such a point that it was impossible to cohabit as
her husband. He contended that she was exhibiting all the classical symptoms of schizophrenia
e including violence, psychotic behaviour, suicidal tendencies and abnormal and irrational
behaviour.
—| 158 |—
The trial court relying on certified copy of report from Institute of Mental Health, Government
Hospital for mental care found that the respondent wife suffered from schizophrenia, and hence
granted decree of divorce to husband, while dismissing the respondent's petition for restitution
of conjugal rights.
The High Court by the impugned judgment allowed the appeal filed by respondent wife holding
that there was no positive evidence to show that the respondent suffered from schizophrenia,
and even if she did suffer it was not of such seriousness as would attract Section 13(1 Hindu
Marriage Act, 1955 for grant of divorce.
Hence, instant appeal by appellant husband.
The issue for consideration was whether the marriage between the parties can be dissolved by
granting a decree of divorce on the basis of mere existence of one spouse's mental illness which
includes schizophrenia under Section 13(1)070 of the Hindu Marriage Act, 1955.
Dismissing the appeal, the Supreme Court
Held: .
The High Court relied on the evidence of RW 2 Superintendent, Institute of Mental Health who had
stated that schizophrenia can be put on a par with diseases like hypertension and diabetes, and by
constant medication it can be controlled. Reliance was also placed on the testimony of PW 4. Professor
and Head of Department of Psychiatry at NlMHANS, Bangalore who had deposed that there was
no contra-indication in leading a normal conjugal life. The High Court has rightly examined the
evidence on record and correctly found fault with the findings recorded by the trial court with regard
to the ailment attributed to the respondent for seeking dissolution of marriage under the ground of
"unsound mind" which is a non-existent fact. It was also justified in holding that a husband cannot
simply abandon his wife because she is suffering from mental sickness. Section 13(1)(m) of HMA,
1955 does not make a mere existence of a mental disorder of any degree sufficient in law to justify the
dissolution of marriage. (Paras 22 to 36)
The contents of the report as stated by the team of doctors do not support the case of the appellant
that the respondent is suffering from a serious case of schizophrenia, in order to grant the decree of
divorce under Section 13(1)(iii) of the Act. The report states that the respondent, although suffering
from "illness of schizophrenic type", docs not show symptoms of psychotic illness at present and has
responded well to the treatment from the acute phases and her symptoms are fairly under control
with the medication which had been administered to her. It was further stated that if there is good
compliance with treatment coupled with e good social and family support, a schizophrenic patient can
continue their marital relationship. In view of the aforesaid findings and reasons recorded, it is held
that the patient is not suffering from the symptoms of schizophrenia. (Para 37)
A pertinent point to be taken into consideration is that the respondent had not only completed MBBS
but also did a postgraduate diploma in Medicine and was continuously working as a Government
Medical Officer and had she been f suffering from any serious kind of mental disorder, particularly,
acute type of schizophrenia, it would have been impossible for her to work in the said post. The
appellant husband cannot simply abandon his wife because she is suffering from sickness. Hence, the
two parties must reconcile and if the appellant so feels that the respondent is still suffering, then she
must be given the right treatment. The respondent must stick to her treatment plan and make the best
—| 159 |—
attempts to get better. A decree for restitution of conjugal rights under Section 9 of the Act in favour
of the respondent. (Paras 38, 39, 43 and 44)
Kollam Padma Latha v. Kollam Chandra Sekhar, (2007) 1 ALD 598 : (2007) 1 An LT 177, affirmed
Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something
that cannot be taken lightly. In the Vedic period, the sacredness of the marriage tic was repeatedly
declared; the family ideal was decidedly high and it was often realised. Marriage is highly revered in
India and we are a nation that prides itself on the strong foundation of our marriages, come hell or
high water, rain or sunshine. Lite is made up of good times and bad, and the bad times can bring with
it terrible illnesses and extreme hardships. The partners in a marriage must weather these storms and
embrace the sunshine with equanimity. Any person may have bad health, this is not their fault and
most times, it is not within their control, as in the present case, the respondent was unwell and was
taking treatment for the same. The illness had its fair share of problems. But, this cannot be a reason
for the appellant to abandon her and seek dissolution of marriage after the child is born from their
union. The welfare of the child must be the prime consideration for both the parties. (Paras 41 and 42)
Hon’ble Mr. Justice V. Gopala Gowda.— Leave granted. This appeal is directed against the common
judgment and order dated 28-9-2006 passed in Kollam Padma Latha v. Kollam Chandra Sekhar44 of
the High Court of Andhra Pradesh as it has set aside the judgment and decree of divorce granted in
favour of the appellant husband dissolving the marriage between the appellant and the respondent by
dismissing Original Petition No. 203 of 2000 tiled by the appellant for dissolution of their marriage
under Section 13(1)(iii) of the Hindu Marriage Act, 1955 (in short "the Act") and allowing Original
Petition No. 1 of 1999 filed by the respondent wife against the appellant by granting restitution of
conjugal rights urging various facts and legal contentions.
2. The factual and rival legal contentions urged on behalf of the parties are adverted to in this
judgment with a view to examine the tenability of the appellant's submissions. The relevant facts
arc stated as hereunder:
3. The marriage between the appellant and the respondent was solemnised on 31-5-1995 at Kakinada
(Andhra Pradesh) as per Hindu rites and customs and their marriage was consummated. It is
the case of the appellant that at the time of marriage, he was working as Senior Resident at the
All India Institute of Medical Sciences in New Delhi. After marriage, the respondent wife joined
the appellant at New Delhi and secured employment in the said Institute.
4. It is the case of both the parties that when they were living at New Delhi, the brother of the
appellant died in an accident. At that point of time, the appellant herein came to Yanam (Andhra
Pradesh) leaving the respondent at Delhi, who gave birth to a female child on 7-7-1997.
5. It is contended by the learned Senior Counsel for the appellant, Mr Jaideep Gupta, in the
pleadings that dispute arose between the appellant and his parents on the one hand and the
in-laws of the deceased brother of the appellant on the other. There were threats to kill the
appellant. During that period, the respondent's father stayed in the company of the appellant
and his parents at Yanam. At that time, both the appellant and the respondent suffered tensions
and they were restless on account of the situation created by the in ¬laws of the appellant's
44 (2007) 1 ALD 598 : (2007) 1 An LT 177
—| 160 |—
deceased brother. Both of them received medical treatment and due to depression, the appellant
submitted his resignation and the respondent also resigned from her job at AllMS. The appellant
then joined as Assistant Professor in Gandhi Hospital at Secunderabad. The respondent and the
child also joined him at Hyderabad. It is their further case that while they were in Hyderabad,
the appellant used to receive threatening calls from the in-laws of his deceased brother which
used to create tension in their family. The respondent was treated for hypothyroidism problem.
6. In the counter-statement filed by the respondent, she contended that after one year of their
marriage, the appellant and his parents started harassing her by demanding colour television,
refrigerator, etc. In May 1998, after the death of the father of the respondent, the appellant
went on insisting that the respondent gets the house situated at Rajahmundry registered in his
name and when she refused, he started to torture her. The respondent applied for postgraduate
entrance examination, which was scheduled to be held on 13-8-1998, and the appellant was
making arrangements to go to Madras on 12-8-1998 in connection with FRCS admission. On
11-8-1998, the appellant picked up a quarrel with the respondent insisting that she must get
the house at Rajahmundry registered in his name to which she did not agree. The respondent
also requested him not to go to Madras as she had to appear for the postgraduate entrance
examination on 13-8-1998 for which the respondent alleged that the appellant badly tortured
her both physically and mentally
7. A telegram was sent to the respondent's mother with false allegations of her mental illness with
a view to create evidence as he could have as well conveyed the message through telephone
as there was telephone facility at the house of her parents. As the appellant was preparing
to appear for FRCS examination and would spend most of his time in the libraries and the
respondent and their child would be left alone without help, he suggested that the appellant (sic
respondent) should go to Rajahmundry and stay with her parents to which she agreed and went
to Rajahmundry and joined Chaitanya Nursing Home and Bhavaili Nursing Home to work as a
doctor.
8. In the second week of November 1998, the appellant came to Rajahmundry and asked the
respondent to go to Yanam and stay with his parents saying that she can have the company of
his parents and she can carry on the medical profession along with his father who was also a
doctor to which she agreed. Thereafter, the appellant got issued a notice dated 25-11-1998 to the
respondent making certain false allegations saying that she a was suffering from schizophrenia
and she had suicidal tendencies, etc. with the object of marrying again for fat dowry.
9. The respondent has denied that she suffered from schizophrenia or suicidal tendencies and
further stated that during her delivery days and subsequently on account of the threats received
from the in-laws of the appellant's deceased brother, there was some depression for which the
respondent was treated and the appellant never allowed her to go through the prescriptions of
her treatment at any time and she was also not allowed to see the medicines given to her as part
of treatment for her depression. It is stated by her that she believes that as part of the ill motive
of the appellant, he might have administered some medicines to build up a false case against her
with a view to file petition for dissolution of marriage. The respondent got issued a reply notice
to the lawyer of the appellant mentioning the above facts on 18-12-1998.
—| 161 |—
10. It is further contended by the learned Senior Counsel for the respondent, Mr Pallav Shishodia,
that the appellant never cared for her and encouraged his parents to dislodge her from the
family house. She filed OS No. 53 of 1998 on the file of the District Munsif 's Court, Yanam for
permanent injunction against the parents of the appellant and filed Interlocutory Application
No. 237 of 1998 for temporary injunction against them not to evict her from the residential
house where she was staying. It is further stated that the appellant has no right to withdraw from
her society and demand for divorce and that she is entitled for restitution of conjugal rights.
11. It is contended by the respondent that the impugned judgment45 is a e well-considered judgment
both on facts and in law and the Division Bench of the High Court lightly allowed the appeals
filed by the respondent refusing to grant a decree of divorce in favour of the appellant and
granting a decree for restitution of conjugal rights in favour of the respondent. Therefore, the
respondent has prayed for dismissal of the petition filed by the appellant praying for grant of
decree of divorce against her.
12. The appellant filed the counter-statement to the petition for restitution of conjugal rights
denying the allegations made in the petition. He contended that the behaviour of the respondent
even when they were staying at New Delhi was marked by emotional disturbances and she also
received treatment from a psychiatrist there. He has further stated that he underwent severe
mental stress due to irrational behavioural pattern of the respondent. Her erratic behaviour
started increasing as time passed by. She started manifesting symptoms of schizophrenia like
violent or aggressive behaviour and a tendency to be harsh and hostile towards other members
of the family without any reason whatsoever which were not visible earlier. For that reason, she
was kept with her parents' family so that she can develop a sense of security which is required for
patients suffering from schizophrenia. He has further stated that she also started developing the
symptoms like sudden withdrawal and being silent for long periods without any communication.
13. Further, the appellant has stated that after the death of his brother, he brought his wife and child
to Hyderabad where he had secured a job as Assistant Professor of Orthopaedics in Gandhi
Medical College. He further contended that on account of the death of his brother, tension
developed in his family and that neither he nor his family members harassed the respondent
demanding goods, etc. He also stated that at the time of marriage, mental status of the respondent
was not known to him. Further, the respondent tried to evict his parents from their house at
Yanam and when she failed in her attempt, she tiled OS No. 53 of 1998 at the District Munsif 's
Court, Yanam which shows her erratic attitude towards the parents of the appellant.
14. The respondent fell seriously ill due to which the appellant sent her mother a telegram to come
and take care of her. She went to live with her mother at Rajahmundry as she consulted some
psychiatrists who advised her to live with her mother. The appellant visited her after two weeks
and found that her mental condition had aggravated to such a point that it would be impossible
for him to live with her as her husband. He contended that she was showing all the classical
symptoms of schizophrenia including violence, psychotic behaviour, suicidal tendencies,
withdrawal symptoms and abnormal and irrational behaviour including in the matter of her
speech and her conversation. She also used to say that she would like to commit suicide and
he was, thus, worried about her and the child. The respondent was continuously on psychiatric
treatment.
45 Kolkim Padma hatha v. Kollam Chandra Sekhar, (2007) 1 ALD 598 : (2007) 1 An LT 177
—| 162 |—
15. The above facts were narrated by the appellant in his divorce petition filed before the trial court.
He has further contended that under the circumstances narrated above, it was impossible for
him to resume cohabitation with the respondent as he was afraid of danger to his life and that of
his daughter and therefore, he requested the court for grant of a decree of divorce and that the
respondent's petition for restitution of conjugal rights be dismissed as she is not entitled to the
relief prayed for by her.
16. The learned trial Judge in his judgment held that the appellant is entitled to a decree of divorce
if not annulment of marriage and that since the disease of the respondent was not disclosed to
the appellant before marriage, she is not entitled to a decree of restitution of conjugal rights. As
a result, OP No. 1 of 1999 filed by the respondent for restitution of conjugal rights was dismissed
and OP No. 203 of 2000 filed by the appellant for grant of divorce was allowed by dissolving the
marriage between the appellant and the respondent and decree of divorce was granted.
17. The trial court relied on the certified copy of report from Institute of Mental Health, Government
Hospital for Mental Care, Sanjeeva Reddy Nagar, Hyderabad, bearing Nos. A and D/402 of 1999
submitted to the Registrar (Judicial), High Court of Andhra Pradesh, Hyderabad, marked as
Ext. B-10, given as per procedure and by conducting chemical examination, etc. It is stated that
the report clearly showed that the respondent is suffering from schizophrenia. The trial court
relied on Tarlochan Singh v. Jit Kaut46, wherein it was held that since the fact of the wife being a
patient of schizophrenia was not disclosed to the husband before marriage, it would amount to
matrimonial fraud and therefore it was held that the husband was a entitled to decree of divorce
if not annulment of marriage.
18. Being aggrieved by the common judgment and decree of the trial court passed in OPs Nos.
1 of 1999 and 203 of 2000 the respondent filed appeals before the High Court of Andhra
Pradesh questioning the correctness of the same urging various grounds. The High Court on
reappreciation of the pleadings and evidence held that there is no positive evidence to show
that the respondent has suffered schizophrenia and even in the case that she suffered from
schizophrenia, it cannot be said that she was suffering from such a serious form of the disease
that it would attract the requirements of Section 13(1)(iii) of the Act for grant of decree for
dissolution of marriage between the parties.
19. On perusal of the facts and legal evidence on record and hearing the rival legal contentions
urged by both the parties, the points that would arise for consideration of this Court arc:
19.1. (i) Whether the respondent is suffering from a serious mental disorder i.e. schizophrenia
or incurable unsoundness of mind, and can this be considered as a ground for divorce
under Section 13(l)(m) of the Hindu Marriage Act, 1955?
19.2. (ii) Whether the High Court has correctly reap predated the facts pleaded and evidence
on record while dismissing the divorce petition of the appellant and allowing the petition
for restitution of conjugal rights of the respondent?
19.3. (iii) Whether the appeal filed by the appellant has to be allowed and we must restore the
judgment and decree of the trial court and dismiss the petition for conjugal rights filed by
the respondent?
46 AIR 1986P&H379
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19.4. (iv) What order? Answer to Points (i) to (iii)
20. These points arc answered together as they arc interrelated. On careful scrutiny of the pleadings
and evidence on record and the decision of this Court referred to above, the provision of Section
13(1)(m) of the Act is interpreted and the meanings of "unsound mind'7 and "mental disorder"
as occurring in the above provisions of the Act are examined and referred to in the impugned
judgment.
21. The High Court, while examining the correctness of the findings recorded in the common
judgment of the trial court, has placed reliance on Ram Narain Gupta v. Rameshwari Gupta47,
wherein this Court has interpreted g the provision of Section 13(1)(iii) of the Act and laid down
the law regarding mental disorder or unsound mind as a ground available to a party to get
dissolution of the marriage.
22. The relevant portions with regard to "unsoundness of mind" and "mental disorder" from the case
referred to supra are extracted hereunder: (Ram Narain Gupta case3, SCC pp. 254-56, paras 20-
24)
"20. The context in which the ideas of unsoundness of 'mind' and 'mental disorder' occur
in the section as grounds for dissolution of a marriage, require the assessment of the
degree of the 'mental disorder'. Its degree must be such that the spouse seeking relief
cannot reasonably be expected to live with the other. All mental abnormalities arc not
recognised as grounds for grant of decree. If the mere existence of any degree of mental
abnormality could justify dissolution of a marriage few marriages would, indeed,
survive in law.
21. The answer to the apparently simple—and perhaps misleading—question as to
'who is normal?' runs inevitably into philosophical thickets of the concept of mental
normalcy and as involved therein, of the 'mind' itself. These concepts of 'mind',
'mental phenomena*, etc. are more known than understood and the theories of 'mind'
and 'mentation' do not indicate any internal consistency, let alone validity, of their
hasic ideas. Theories of 'mind' with cognate ideas of 'perception' and 'consciousness'
encompass a wide range of thoughts, more ontological than cpistcmological. Theories
of mental phenomena arc diverse and include the dualist concept—shared by Descartes
and Sigmund Freud— of the separateness of the existence of the physical or the material
world as distinguished from the non-material mental world with its existence only
spatially and not temporally. There is, again, the theory which stresses the neurological
basis of the 'mental phenomenon' by asserting the functional correlation of the neuronal
arrangements of the brain with mental phenomena. The 'behaviourist' tradition,
on the other hand, interprets all reference to mind as 'constructs' out of behaviour.
'Functionalism', however, seems to assert that mind is the logical or functional state
of physical systems. But all theories seem to recognise, in varying degrees, that the
psychometric control over the mind operates at a level not yet fully taught to science.
When a person is oppressed by intense and seemingly insoluble moral dilemmas, or
when grief of loss of deal- ones etch away all the bright colours of life, or where a broken
47 (1988) 4 SCC 247
—| 164 |—
marriage brings with it the loss of emotional security, what standards of normalcy of
behaviour could be formulated and applied? The arcane infallibility of science has not
fully pervaded the study of the non-material dimensions of being'.
22. Speaking of the indisposition of science towards this study, a learned author says:
'... we have inherited cultural resistance to treating the conscious mind as a biological
phenomenon like any other. This goes back to Descartes in the seventeenth century.
Descartes divided the world into two kinds of substances: mental substances and
physical substances. Physical substances were the proper domain of science and mental
substances were the property of religion. Something of an acceptance of this division
exists even to the present day. So, for example, consciousness and subjectivity are often
regarded as unsuitable topics for science. And this reluctance to deal with consciousness
and subjectivity is part of a persistent objectifying tendency. People think science
must be about objectively ohservable phenomena. On occasions when I have lectured
to audiences of biologists and neurophysiologists, I have found many of them very
a reluctant to treat the mind in general and consciousness in particular as a proper
domain of scientific investigation.
... the use of the noun 'mind' is dangerously inhabited by the ghosts of old philosophical
theories. It is very difficult to resist the idea that the mind is a kind of a thing, or at
least an arena, or at least some kind of black box in which all of these mental processes
occur.48
23. Lord Wilberforce, referring to the psychological basis of physical illness said that the
area of ignorance of the body-mind relation seems to expand with that of knowledge.
In McLaughlin v. 0'Brians49, the learned Lord said, though in a different context: (AC
p. 418 B : All ER p. 301)
Whatever is unknown about the mind-body relationship (and the area of ignorance
seems to expand with that of knowledge), it is now accepted by medical science that
recognisable and severe physical damage to the human body and system may he caused
by the impact, through the senses, of external events on the mind. There may thus be
produced what is as identifiable an illness as any that may be caused by direct physical
impact. It is safe to say that this, in general terms, is understood by the ordinary man
or woman who is hypothesised by the courts '
24. But the illnesses that are called 'mental' are kept distinguished from those that ail the
'body' in a fundamental way. In Philosophy and Medicine, Vol. 5 at p. X the learned
editor refers to what distinguishes the two qualitatively:
'Undoubtedly, mental illness is so disvalued because it strikes at the very roots of
our personhood. It visits us with uncontrollable fears, obsessions, compulsions and
anxieties....
... This is captured in part by the language we use in describing the mentally ill. One
is an hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic-depressive.
48 John R. Searle, Minds, Bruins and Science-Reith Lectures (Harvard University Press, 1984), a pp. 10 and 11.
49 (1983) 1 AC 410 : (1982) 2 WLR 982 : (1982) 2 All ER 298 (HL)
—| 165 |—
On the other hand, one has heart disease, has cancer, has the flu, has malaria, has
smallpox. (emphasis in original)
The principle laid down by this Court in the aforesaid case with all fours is applicable to
the fact situation on hand wherein this Court has rightly referred to Section 13(1 )(iii)
of the Act and Explanation to the said clause and made certain pertinent observations
regarding "unsound mind" or "mental disorder" and the application of the same as
grounds for dissolution of marriage. This Court cautioned that Section 13(1)(iii) of the
Act does not make a mere existence of a mental disorder of any degree sufficient in law
to justify the dissolution of marriage.
23. The High Court in the present case stated that a husband cannot simply abandon his wife
because she is suffering from sickness and relied on the evidence of RW 2, Dr Krishna Murthy,
Superintendent, Institute of Mental Health, Hyderabad, wherein it is stated by him that
schizophrenia can be put on a par with diseases like hypertension and diabetes on the question
of treatability meaning that constant medication is required in which event the disease would be
under control.
24. The High Court also relied on the evidence of PW 4, Dr Ravi S. Pandey, Professor and Head
of Department of Psychiatry at NIMHANS, Bangalore, who had examined the respondent and
stated that the team could not find any evidence suggesting that she has been suffering from
schizophrenia at the time of examining her and also stated in his cross-examination that no
treatment including drugs were given to her at NIMHANS as they did not find any abnormality
in her behaviour. He also stated that it is true that psychiatrically there is no contra-indication
in leading a normal C conjugal life. Thus, they gave her a certificate, which is marked as Ext.
B-l 1, based on clinical examination and in the absence of any abnormal behaviour including
psychiatric features in the past history of the respondent.
25. The High Court has not accepted the finding of fact recorded by the trial court on the contentious
issue and further stated that "schizophrenia" does not appear to be such a dangerous disease and
it can be controlled by drugs and in the present case, this finding is supported by evidence of
RW 2, who has stated in his examination-in-chief that the appellant herein has not made any
reference to any of the acts of the respondent that can constitute "schizophrenia" ailment.
26. It is further held by the High Court that there is no positive evidence to show that the
respondent has suffered from schizophrenia and even in case she has suffered from some form
of schizophrenia, it cannot be said that she was suffering from such a serious form of the disease
that would attract the requirement as provided under Section 13(1)(a) of the Act and that it is of
such a nature that it would make life of the appellant so miserable that he cannot lead a marital
life with her.
27. We are of the opinion that the High Court has rightly examined the entire evidence on record
and correctly found fault with the findings of fact recorded by the trial court with regard to the
ailment attributed to the respondent for seeking dissolution of marriage under the ground of
"unsound mind" which is a non-existent fact. In Vinita Saxena v. Pankaj Pandit6, this Court has
examined in detail the issue of schizophrenia wherein the facts arc different and the facts and
evidence on record are not similar to the case on & hand. Therefore, the observations made
in the judgment for grant of decree for dissolution of marriage under Section 13(1)(i-a) and
—| 166 |—
Section 13(1)(iii) of the Act cannot be applied to the fact situation of the case on hand. But,
we would like to examine what was said in that case on the issue of this disease, schizophrenia:
(SCC pp. 794-95, para 28)
"What is the disease and what one should know?
A psychotic lacks insight, has the whole of his personality distorted by illness, and constructs a
false environment out of his subjective experiences.
It is customary to define 'delusion' more or less in the following way. A delusion is a false un
shake able belief, which is out of keeping with the patient's social and cultural background.
German psychiatrists tend to stress the morbid origin of the delusion, and quite rightly so. A
delusion is the product of internal morbid processes and this is what makes it unamenable to
external influences.
Apophanous experiences which occur in acute schizophrenia and form the basis of delusions
of persecution, but these delusions arc also the result of auditory hallucinations, bodily
hallucinations and experiences of passivity. Delusions of persecution can take many forms. In
delusions of reference, the patient feels that people are talking about him, slandering him or
spying on him. It may be difficult to be certain if the patient has delusions of self-reference or if he
has self-reference hallucinosis. Ideas of delusions or reference arc not confined to schizophrenia,
but can occur in depressive illness and psychogenic reactions.
Causes
The causes of schizophrenia are still under debate. A chemical imbalance in the brain seems to
play a role, but the reason for the imbalance remains unclear. One is a bit more likely to become
schizophrenic if he has a family member with the illness. Stress does not cause schizophrenia,
but can make the symptoms worse.
Risks
Without medication and therapy, most paranoid schizophrenics are unable to function in the
real world. If they fall victim to severe hallucinations and delusions, they can be a danger to
themselves and those around them.
What is schizophrenia?
Schizophrenia is a chronic, disabling mental illness characterised by: Psychotic symptoms
Disordered thinking Emotional blunting
How does schizophrenia develop?
Schizophrenia generally develops in late adolescence or early adulthood, most often:
In the late teens or early twenties in men
In the twenties to early thirties in women
What are the symptoms of schizophrenia?
Although schizophrenia is chronic, symptoms may improve at times (periods of remission) and
worsen at other times (acute episodes, or period of relapse).
Initial symptoms appear gradually and can include:
—| 167 |—
Feeling tense
Difficulty in concentrating
Difficulty in sleeping
Social withdrawal
What are psychotic symptoms?
Psychotic symptoms include:
Hallucinations: hearing voices or seeing things.
Delusions: bizarre beliefs with no basis in reality (for example delusions of persecution or
delusions of grandeur).
These symptoms occur during acute or psychotic phases of the illness, but may improve during
periods of remission.
A patient may experience:
A single psychotic episode during the course of the illness Multiple psychotic episodes over a
lifetime...."
28. As per evidence of RW 2, schizophrenia is a treatable, manageable disease, which can be put
on a par with hypertension and diabetes. So also, PW 4, who had examined the respondent at
NIMHANS, Bangalore stated that the team could not find any evidence suggesting schizophrenia
at the time of their examining the respondent and he had stated in his cross-examination that no
treatment including drugs was given to her at NlMHANS as they did not find any abnormality
in her. They thus gave her a certificate of normal mental status, based on the absence of any
abnormal findings in her medical report including psychiatric features in the past history and
normal psychological test.
29. We have carefully perused the report marked as Ext. B-10 dated 24-4-1999 given by the doctors
of Institute of Mental Health, Hyderabad before the trial court. The learned trial Judge has
misread the contents of the said report and also wrongly interpreted the same and recorded the
finding that the respondent is suffering from the ailment of "schizophrenia" and therefore he has
accepted the case of the appellant who has made out a ground under Section 13(l)(w) of the Act
wherein it is stated that a spouse suffering from schizophrenia or incurably unsound mind is a
ground for dissolution of the marriage between the parties.
30. The High Court has thus rightly set aside the decree of dissolution of marriage granted in favour
of the appellant and dismissed his petition and granted a decree of restitution of conjugal rights
in favour of the respondent by allowing her petition. The High Court has recorded the finding
of fact on reappreciation of material evidence on record and has rightly held that the trial court
has erroneously come to the conclusion that the respondent was suffering from schizophrenia
by relying on the evidence of PW 1, who is the appellant herein and as per the opinion given by
the committee of doctors in Ext. B-10.
31. In the deposition by witness RW 2 Dr K. Krishna Murthy, he has stated in his examination-in-
chief that schizophrenia has become eminently treatable with the advent of many new psychiatric
drugs. He further stated that many patients with schizophrenia arc able to lead a near normal life
—| 168 |—
with medication. The trial court has erroneously relied on certain cases referred to and applied
the principle laid down in those cases to the facts of this case even though they are not applicable
to the case on hand cither on facts or in law as the appellant has not proved the allegations made
in the petition against the respondent by adducing positive and substantive evidence on record
to substantiate the same and that the alleged ailment of the respondent would fall within the
provision of Section 13(1)(a) of the Act. Therefore, he has not made out a case for grant of decree
for dissolution of marriage.
32. We have carefully examined Exts. X-6 to X-11, which are the prescriptions of medicine
prescribed to the respondent by Dr Mallikarjuna Rao, Dr. Pramod Kumar and Dr. M. Kumari
Devi. The above prescriptions mention the symptoms of the ailment of the respondent, which
were in the nature of delusions, suspicious apprehensions and fears, altered hehaviours, suicidal
tendency and past history of depression. Reliance is placed by PW 1 on the above documentary
evidence to prove that the respondent was suffering from the mental disorder of schizophrenia
and therefore it squarely falls within the provision of Section 13(1)(a) of the Act for grant of
decree of dissolution of marriage in his favour.
33. The High Court has rightly held that the trial court has erroneously accepted the same and
recorded its finding of fact on the contentious issues to pass decree of divorce in favour of the
appellant, which is contrary to the decision of this Court in Ram Narain Gupta v. Rameshwari
Gupta3. The same decision has been relied upon by the respondent before the High Court,
wherein the said decision was correctly accepted by it to set aside the d erroneous finding of fact
recorded by the trial court on the contentious issue.
34. The legal question that arises for our consideration is whether the marriage between the parties
can be dissolved by granting a decree of divorce on the basis of one spouse's mental illness which
includes schizophrenia under Section 13(1) of the Act?
35. In the English case of Whysall v. Whysall50, it was held that a spouse e is "incurably of unsound
mind" if he or she is of such mental incapacity as to make normal married life impossible and
there is no prospect of any improvement in mental health, which would make this possible in
future. The High Court of Judicature of Calcutta, in Pramatha Kumar Maity v. Ashima Maitys51
has held that mental disorder of the wife, even if proved, cannot, by itself, warrant a decree of
divorce and it must be further proved that it is of such a nature as the husband could not be
expected to live with the wife.
36. The Allahabad High Court, in Titli v. Alfred Robert Jones52 has held that where it has come on
record that the wife has improved her educational qualifications and has been looking after her
children, the apprehension of the husband that there is danger to his life or to his children is
not borne out is the finding recorded in the said case. Inability to manage his or her affairs is an
essential attribute of an "incurably unsound mind". The facts pleaded and the evidence placed
on record produced by the appellant in this case does not establish such inability as a ground on
which dissolution of marriage was sought for by him before the trial court.
50 1960 P 52 : (1959) 3 WLR 592 : (1959) 3 All ER 389

51 AIR 1991 Cal 123
52 AIR 1934 All 273
—| 169 |—
37. The High Court has rightly set aside the said finding and allowed the appeal of the respondent
after careful scrutiny of Ext. B-10. The correctness of the finding of the High Court in the
impugned judgment1 is seriously challenged by the learned Senior Counsel on behalf of the
appellant in this appeal. We have examined this contention, after careful perusal of the contents
of Ext. B-10. In our considered view, the contents of the report as stated by the team of doctors
do not support the case of the appellant that the respondent is suffering from a serious case of
schizophrenia, in order to grant the decree of divorce under Section 13(1)(a) of the Act. The
report states that the respondent, although suffering from "illness of schizophrenic type", does
not show symptoms of psychotic illness at present and has responded well to the treatment from
the acute phases and her symptoms arc fairly under control with the medication which had
been administered to her. It was further stated that if there is good compliance with treatment
coupled with good social and family support, a schizophrenic patient can continue their marital
relationship. In view of the aforesaid findings and reasons recorded, we have to hold that the
patient is not suffering from the symptoms of schizophrenia as detailed above.
38. We are of the view that the High Court in exercise of its appellate jurisdiction has rightly come to
a different conclusion that the respondent is not suffering from the ailment of schizophrenia or
incurable unsoundness of mind. Further, the High Court has rightly rejected the finding of the
trial court which is based on Ext. B-10 and other documentary and oral evidence by applying
the ratio laid down by this Court in Ram Narain Gupta v. Rameshwari Gupta3 referred to supra.
A pertinent point to be taken into consideration is that the respondent had not only completed
MBBS but also did a postgraduate diploma in Medicine and was continuously working as
a Government Medical Officer and had she been suffering from any serious kind of mental
disorder, particularly, acute type of schizophrenia, it would have been impossible for her to work
in the said post. The appellant husband cannot simply abandon his wife because she is suffering
from sickness. Therefore, the High Court allowed both the CMAs and dismissed OP No. 203 of
2000 filed by the appellant for divorce and allowed OP No. 1 of 1999 filed by the respondent for
restitution of conjugal rights wherein the High Court granted decree of restitution of conjugal
rights in favour of the respondent.
39. It is thus clear that the respondent, even if she did suffer from schizophrenia, is in a much better
health condition at present. Therefore, this Court cannot grant the dissolution of marriage on
the basis of one spouse's illness. The appellant has not proved the fact of mental disorder of the
respondent with reference to the allegation made against her that she has been suffering from
schizophrenia by producing positive and substantive evidence on record and on the other hand,
it has been proved that the respondent is in much better health condition and does not show
signs of schizophrenia as per the most recent medical report from NIMHANS, as deposed by
PW 4 in his evidence before the trial court.
40. For the aforesaid reasons, we are of the firm view that the findings and reasons recorded in
setting aside the judgment and decree of the trial court is neither erroneous nor does it suffer
from error in law which warrants our interference and calls for setting aside the impugned
judgment1 and decree of the first appellate court. Therefore, this Court cannot interfere with
the impugned judgment of the High Court as the same is well-reasoned and based on cogent
reasoning of facts and evidence on record and accordingly, we answer Point (iv) in favour of the
respondent.
—| 170 |—
41. Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something
that cannot be taken lightly. In the Vedic period, the sacredness of the marriage tie was repeatedly
declared; the family ideal was decidedly high and it was often realised53. In Vedic Index I it is
stated that "the high value placed on the marriage is shown by the long and striking hymn". In
Rig Veda, X, 85; ''be, thou, mother of heroic children, devoted to the Gods; be. thou. Queen in
thy father-in-law's household. May all the Gods unite the hearts of us 'two into one' “, as stated
in Justice Ranganath Misra's Mayne's Treatise on Hindu Law and Usage.
42. Marriage is highly revered in India and we are a nation that prides itself on the strong foundation
of our marriages, come hell or high water, rain or sunshine. Life is made up of good times and
bad, and the bad times can bring with it terrible illnesses and extreme hardships. The partners in
a marriage must weather these storms and embrace the sunshine with equanimity. Any person
may have bad health, this is not their fault and most times, it is not within their control, as in
the present case, the respondent was unwell and was taking treatment for the same. The illness
had its fair- share of problems. Can this be a reason for the appellant to abandon her and seek
dissolution of marriage after the child is born from their union? Since the child is now a grown-
up girl, her welfare must be the prime consideration for both the parties.
43. In view of the foregoing reasons, we arc of the opinion that the two parties in this case must
reconcile and if the appellant so feels that the respondent is still suffering, then she must be
given the right treatment. The respondent must stick to her treatment plan and make the best
attempts to get better. It is not in the best interest of either the respondent or her daughter who
is said to be of adolescent age for grant of a decree of dissolution of marriage as prayed for by the
appellant. Hence, the appeal is liable to be dismissed.
44. Accordingly, we dismiss the appeal and uphold the judgment1 of the High Court in not granting
a decree of divorce and allowing the petition for restitution of conjugal rights. Therefore, we
grant a decree for restitution of conjugal rights under Section 9 of the Act in favour of the
respondent.
qqq
53 Vedic Index, I, 484. 4S5: CHI. 1, 89 as in Rangana Ih Misra, J., Mayne’s Treatise on Hindu Law and Usage I15lh Edn. (Revised).
Bharat Law House, 2003] 91.
—| 171 |—
JOYDEEP MAJUMDAR VERSUS BHARTI JAISWAL MAJUMDAR

Bench : Hon’ble Mr. Justice Sanjay Kishan Kaul, Hon’ble Mr. Justice Dinesh Maheshwari and
Hon’ble Mr. Justice Hrishikesh Roy.
CIVIL APPEAL NOS. 3786-3787 OF 2020
Joydeep Majumdar .. Appellant;
Versus
Bharti Jaiswal Majumdar .. Respondent.
Decided on February 26, 2021
Hindu Marriage Act, 1955 – Section 13 – Divorce – Cruelty by wife – For considering dissolution
of marriage atinstance of a spouse who allege mental cruelty, result of such mental cruelty must be
such that it is not possibleto continue with matrimonial relationship – Respondent had made several
defamatory complaints toappellant’s superiors in Army for which a Court of inquiry was held by Army
authorities against appellant –Primarily for those, appellant’s career progress got affected – Respondent
was also making complaints to otherauthorities, such as, State Commission for Women and has posted
defamatory materials on other Platforms –Appellant’s career and reputation had suffered – When
appellant has suffered adverse consequences in his lifeand career on account of allegations made by
respondent, legal consequences must follow and those cannot beprevented only because no Court has
determined that allegations were false – Allegations are levelled by ahighly educated spouse and they
do have propensity to irreparably damage character and reputation ofappellant – When reputation of
spouse is sullied amongst his colleagues, his superiors and society at large, itwould be difficult to expect
condonation of such conduct by affected party – Explanation of wife that she madethose complaints in
order to protect matrimonial ties would not justify persistent effort made by her toundermine dignity
and reputation of appellant – In circumstances like this, wronged party cannot be expectedto continue
with matrimonial relationship and there is enough justification for him to seek separation – HighCourt
was in error in describing broken relationship as normal wear and tear of middle class married life – It
isa definite case of cruelty inflicted by respondent against appellant and as such enough justification
is found toset aside impugned judgment of High Court and to restore order passed by Family Court
– Appellant heldentitled to dissolution of his marriage and consequently respondent’s application for
restitution of conjugalrights stands dismissed – Ordered accordingly. (Paras 11, 12, 13, 14 and 15)
Facts of the case:
Appellant is an Army Officer with M.Tech qualification. The respondent is holding a faculty position
in theGovernment P G College, Tehri with Ph.D. degree. They got married on 27.9.2006 and lived
together for fewmonths at Vishakhapatnam and at Ludhiana. But from the initial days of married
life, differences cropped upand since 15.9.2007, couple have lived apart. Challenge in these appeals
is to the analogous judgment and orderdated 25.6.2019 in the First Appeal No. 81 of 2017 and First
Appeal No. 82 of 2017 whereby the High Court ofUttarakhand had allowed both appeals by reversing
the common order dated 4.7.2017 of the Family Court,Dehradun. Before Family Court, the appellant
succeeded with his case for dissolution of marriage but therespondent failed to secure a favourable
verdict in her petition for restitution of conjugal rights. Questionwhich requires to be answered here
is whether the conduct of the respondent would fall within the realm ofmental cruelty.
Findings of Court:
—| 172 |—
Wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.
Thedegree of tolerance will vary from one couple to another and Court will have to bear in mind the
background,the level of education and also the status of the parties, in order to determine whether
the cruelty alleged issufficient to justify dissolution of marriage, at the instance of the wronged party.
Result : Appeal allowed.
Acts Referred:
HINDU MARRIAGE ACT : S.3
Cases Referred:
Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511 – Relied [Para 10]
IMPORTANT POINTS
(1) Divorce – When husband has suffered adverse consequences in his life and career on account of
allegations madeby wife, legal consequences must follow and those cannot be prevented only because
no Court has determined thatallegations were false.
(2) Cruelty – Degree of tolerance will vary from one couple to another and Court will have to bear in
mindbackground, level of education and also status of parties, in order to determine whether cruelty
alleged is sufficient tojustify dissolution of marriage, at instance of wronged party.
Advocates Appeared :
For the Appellant : Gopal Sankaranarayanan, Gaurav Goel, Gaurav Gupta, Rook Ray, AakashKhattar,
Rajesh Kumar, Advocates
For the Respondent : Mr. Ahmad Ibrahim, Advocate, Mr. S. K. Verma, Advocates
JUDGMENT
Hrishikesh Roy, J.
1. Heard Mr. Gopal Sankaranarayanan, the learned Senior Counsel appearing for the appellant
(Husband). Also heardMr. Ahmad Ibrahim, learned counsel appearing for the respondent
(Wife).
2. The challenge in these appeals is to the analogous judgment and order dated 25.6.2019 in the First
Appeal No. 81 of2017 and First Appeal No. 82 of 2017 whereby the High Court of Uttarakhand
had allowed both appeals by reversing the common order dated 4.7.2017 of the Family Court,
Dehradun. Before the Family Court, the appellant succeeded with his case for dissolution of
marriage but the respondent failed to secure a favourable verdict in her petition for restitution
of conjugal rights.
3. The appellant is an Army Officer with M.Tech qualification. The respondent is holding a faculty
position in the Government P G College, Tehri with Ph. D degree. They got married on 27.9.2006
and lived together for few monthsat Vishakhapatnam and at Ludhiana. But from the initial days
of married life, differences cropped up and since15.9.2007, the couple have lived apart.
4. Following the estrangement, the appellant earlier applied for divorce from the Family Court at
Vishakhapatnam. The respondent then filed a petition against the respondent in the Dehradun
Court for restitution of conjugal rights.Later, when she learnt of the case filed by the appellant
—| 173 |—
at Vishakhapatnam, the respondent filed Transfer Petition (C)No. 1366/2011 before this Court.
The appellant appeared before the Supreme Court and stated that the case at Vishakhapatnam
would be withdrawn. This Court then recorded the following order:
"Counsel for the respondent states that the respondent would withdraw his petition pending
before the Family Court at Visakhapatnam, Andhra Pradesh and in case he has to file any
petition seeking any relief against the petitioner (his estranged wife), he will file the petition
only before the proper Court at Dehradun, Uttarakhand.
In view of the statement made at the Bar, the petitioner is left with no grievance.
The transfer petition is disposed of.
We may, however, observe that in case the respondent files a petition at Dehradun, the
Dehradun Court shall take it up and dispose it of expeditiously and without any undue loss
of time."
5. In the divorce proceeding, the appellant pleaded that he was subjected to numerous malicious
complaints by the respondent which have affected his career and loss of reputation, resulting in
mental cruelty. On the other hand, the respondent in her case for restitution of conjugal rights
contended that the husband without any reasonable cause haddeserted her and accordingly she
pleaded for direction to the appellant, for resumption of matrimonial life.
6. The Family Court at Dehradun analogously considered both cases. The learned judge applied his
mind to theevidence led by the parties, the documents on record and the arguments advanced by
the respective counsel and gave a finding that the respondent had failed to establish her allegation
of adultery against the husband. It was further found that the respondent had subjected the
appellant to mental cruelty with her complaints to the Army and other authorities. Consequently,
the Court allowed the appellant's suit for dissolution of marriage and simultaneously dismissed
the respondent's petition for restitution of conjugal rights.
7. The aggrieved parties then filed respective First Appeals before the Uttarakhand High Court. On
consideration of the pleadings and the issues framed by the trial Court, the High Court noted
that cruelty is the core issue in the dispute. The Court then proceeded to examine whether the
wife with her complaints to various authorities including the Army's top brass, had treated the
appellant with cruelty to justify his plea for dissolution of marriage. While it was found thatthe
wife did write to various authorities commenting on the appellant's character and conduct, the
Division Bench opined that those cannot be construed as cruelty since no court has concluded
that those allegations were false or fabricated. According to the Court, the conduct of the parties
against each other would at best be squabbles of ordinary middle class married life. Accordingly,
the High Court set aside the decree for dissolution of marriage and allowed the respondent's suit
for restitution of conjugal rights, under the impugned judgment.
8. Challenging the High Court's decision, Mr. Gopal Sankaranarayanan, the learned Senior
Counsel highlights that the respondent had filed a series of complaints against the appellant
before the superior officers in the Army up to the level of the Chief of Army Staff and to other
authorities and these complaints have irreparably damaged the reputation and mental peace
of the appellant. The appellant cannot therefore be compelled to resume matrimonial life with
the respondent, in the face of such unfounded allegations and cruel treatment. Moreover,
—| 174 |—
matrimonial life lasted only for few months and the couple have been separated since 15.9.2007
and after all these years, restitution would not be justified or feasible.
9. Per contra, Mr. Ahmad Ibrahim, the learned counsel submits that the respondent is keen to
resume her matrimonial life with the appellant. According to the counsel, the respondent wrote
letters and filed complaints only to assert her legal right as the married wife of the appellant and
those communications should therefore be understood as efforts made by the wife to preserve the
marital relationship. It is further contended that only because the appellant had filedt he divorce
case before the Vishakhapatnam Court and had obtained an ex-parte order, the respondent was
constrained to write to various authorities to assert her right as the legally wedded wife of the
appellant.
10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the
result of such mental cruelty must be such that it is not possible to continue with the matrimonial
relationship. In other words, the wronged party cannot be expected to condone such conduct
and continue to live with his/her spouse. The degree of tolerance will vary from one couple to
another and the Court will have to bear in mind the background, the level of education and
also the status of the parties, in order to determine whether the cruelty alleged is sufficient to
justifydissolution of marriage, at the instance of the wronged party. In Samar Ghosh vs. Jaya
Ghosh, (2007) 4 SCC 511, this Court gave illustrative cases where inference of mental cruelty
could be drawn even while emphasizing that no uniform standard can be laid down and each
case will have to be decided on its own facts.
11. The materials in the present case reveal that the respondent had made several defamatory
complaints to the appellant's superiors in the Army for which, a Court of inquiry was held by
the Army authorities against the appellant. Primarily for those, the appellant's career progress
got affected. The Respondent was also making complaints to other authorities, such as, the State
Commission for Women and has posted defamatory materials on other platforms. The net
outcome of above is that the appellant's career and reputation had suffered.
12. When the appellant has suffered adverse consequences in his life and career on account of the
allegations made bythe respondent, the legal consequences must follow and those cannot be
prevented only because, no Court has determined that the allegations were false. The High
Court however felt that without any definite finding on the credibility of the wife's allegation,
the wronged spouse would be disentitled to relief. This is not found to be the correct way to deal
with the issue.
13. Proceeding with the above understanding, the question which requires to be answered here
is whether the conduct of the respondent would fall within the realm of mental cruelty. Here
the allegations are levelled by a highly educated spouse and they do have the propensity to
irreparably damage the character and reputation of the appellant. When the reputation of the
spouse is sullied amongst his colleagues, his superiors and the society at large, it would be
difficult to expect condonation of such conduct by the affected party.
14. The explanation of the wife that she made those complaints in order to protect the matrimonial
ties would not in our view, justify the persistent effort made by her to undermine the dignity and
reputation of the appellant. In circumstances like this, the wronged party cannot be expected
—| 175 |—
to continue with the matrimonial relationship and thereis enough justification for him to seek
separation.
15. Therefore, we are of the considered opinion that the High Court was in error in describing the
broken relationship as normal wear and tear of middle class married life. It is a definite case
of cruelty inflicted by the respondent against the appellant and as such enough justification is
found to set aside the impugned judgment of the High Court and to restore the order passed by
the Family Court. The appellant is accordingly held entitled to dissolution of his marriage and
consequently the respondent's application for restitution of conjugal rights stands dismissed. It
is ordered accordingly.
16. With the above order, the appeals stand disposed of leaving the parties to bear their own cost.
qqq
—| 176 |—
LANDMARK JUDGMENTS
ON
MAINTAINANCE AND ALIMONY
KALYAN DEY CHOWDHURY VERSUS

RITA DEY CHOWDHURY NEE NANDY
Bench : Hon’ble Mrs. Justice R. Banumathi and Hon’ble Mr. Justice Mohan M. Shantanagoudar
Kalyan Dey Chowdhury . . Appellant;
Versus
Rita Dey Chowdhury Nee Nandy . . Respondent.
Decided on April 19, 2017
A. Family and Personal Laws — Hindu Marriage Act, 1955 — Ss. 25(1) and (2) — Powers of court
under — Scope of — Power to modify, vary or discharge permanent alimony or maintenance,
due to change in circumstances — Held, S. 25 of Hindu Marriage Act, confers power
upon court to grant a permanent alimony to cither spouse who claims same by making an
application — S. 25(2) confers ample power on courts to vary, modify or discharge any order for
permanent alimony or permanent maintenance that may have been c made in any proceeding
under provisions contained in S. 25(1) — in exercising power under S. 25(2), court would have
regard to change in circumstances of either party when mi application is made under S. 25(2)
for variation, modification or rescission of order as court may deem just (Paras 14 to 16)
Kulbhushan Kumar v. Raj Kumari, (1970) 3 SCC 129, followed
Rita Dey Chowdhury nee Nandy v. Kalyan Dey Chowdhury. 2016 SCC On Line Cal 4972,
modified
Rita Dey Chaudhury v. Kalyan Dey Chowdhury, 2015 SCC OnLinc Cal 10447; Rita Dey
Choudhury v. Kalyan Dey Chowdhury. Criminal Revision No, 3087 of 2006. order dated 21-3-
2011 (Cal); Rita Dey Chowdhury v. Kalyan Dey Chowdhury, SLP(C) No. 12968 of 2015, order
dated 22-2-2016 (SC), referred to
B. Family and Personal Laws — Hindu Marriage Act, 1955 — Ss. 25(1), (2) and S, 28(2) —
Permanent maintenance — Quantum of — Factors to be considered — Change in circumstances
— Enhancement of, under S. 25 of Hindu Marriage Act, 1955 — Validity of
— High Court in review petition in matrimonial appeal enhancing alimony from Rs 16,000 to Rs
23,000 p.m. — In February 2016, net salary of appellant staled to be Rs 95,527 and married for second
time with a son from second / wedlock — Divorcee wife with eighteen-year-old son, a qualified
beautician and Montessori teacher and earning Rs 30,000 p.m.
— Held, amount of permanent alimony awarded to wife must be befitting status of parties and
capacity of spouse to pay maintenance — Maintenance is always dependant on factual situation of case
and court would be justified in moulding claim for maintenance passed on various factors — High
Court & was justified in enhancing maintenance — However, since appellant lias also got married
second time and has a child from the second marriage, in the interest of justice, maintenance of Rs
23,000 reduced to Rs 20,000 p.m. as maintenance lo respondent wife and son — Impugned judgment
—| 179 |—
LANDMARK JUDGMENTS ON MAINTENANCE AND ALIMONY
modified — Maintenance amount payable to respondent wife on or before 10th of every succeeding
English calendar month — Hindu Adoptions and Maintenance Act, 1956, S. 18. (Paras 14 to 16)
Hon’ble Mr. Justice R. Banumathi.—
Leave granted. Challenge in this appeal is to the order dated 15-9-2016 passed by the High Court of
Calcutta in Rita Dey Chowdhury nee Nandy v. Kalyan Dey Chowdhury1, reviewing an order dated
2-2-20152 passcd earlier in an application filed under Section 25(2) of the Hindu Marriage Act, 1955,
thereby enhancing the amount of maintenance from Rs 16,000 per month to Rs 23,000 per month.
2. The parties are entangled in several rounds of litigation. Background facts in a nutshell are as
follows: the marriage of the appellant and the respondent was solemnised on 10-8-1995 as per
Hindu rites and customs at the appellant’s residence at Kalna. A male child was born on 4-10-
1996 at Chandannagore who is now a major pursuing his college education. After the birth of
the child, it is alleged that the respondent continued to live in her parents’ house. The appellant
husband requested the respondent to return lo the matrimonial home at Kalna along with the
child. It is alleged that instead of acceding to the request of the appellant husband and returning
back to the matrimonial home, the respondent wife insisted that the appellant husband shifts to
her father’s place at C hand an nag ore.
3. The appellant filed an application under Section 9 of the Hindu Marriage Act, 1955 for restitution
of conjugal rights against the respondent wife in Matrimonial Suit No. 370 of 1997 before the
District Judge, Burdwan on 23-12-1997. On receipt of summons in the above matrimonial suit
on 9-2-1998, the respondent wife lodged an FIR bearing PS Case No. 25 dated 13-2-1998 under
Sections 498-A and 406 IPC against the appellant and his parents at PS Chandannagore. The
appellant and his parents were granted anticipatory bail by the Sessions Judge, Burdwan on 20-
5-1998 in the FIR filed by the respondent wife. The respondent wife also filed a maintenance
case being Misc. Case a No. 24 of 1998 under Section 125 CrPC against the appellant husband
claiming maintenance for herself and the minor son.
4. On 10-8-2000, the Additional District Judge, Burdwan passed decree of restitution of conjugal
rights in favour of the appellant husband. However, the respondent did not reconcile and preferred
an appeal against the said decree of restitution of conjugal rights before the High Court being
FA No. 198 of 2001. In the High Court, by an order dated 24-5-2001 an interim arrangement
was made directing the appellant herein to go to the parental home of the respondent wife
at Chandannagore and take back the wife and the child to his residence at Kalna and make
necessary arrangement for living with his wife and child separately from the parents of the
husband in the first floor of the matrimonial home. Subsequently, the interim arrangement was
recalled. The interim arrangement did not work and the appeal filed by the respondent wife was
allowed on 13-8-2003.
5. In the year 2003, the respondent wife filed Matrimonial Suit No. 533 of 2003 before the
District Judge, Hooghly against the appellant husband under Section 10 of the Act for judicial
separation. According to the appellant, though he filed written objections denying allegations
made against him, he could not attend the hearing and it is alleged that he was manhandled in
1 2016 SCC OnLine Cat 4972
2 Rita Dev Chaudhury v. Kalyan Dey Chowdhury. 2015 SCC OnLine Cal 10447
—| 180 |—
the court premises by some men of the respondent wife. Ex parte decree for judicial separation
was ordered on 19-5-2006, as a consequence of which decree for permanent alimony was also
ordered under Section 25 of the Hindu Marriage Act to the respondent wife amounting to Rs
2500 per month and Rs 2000 per month to the minor son.
6. In the meanwhile, the appellant husband and his parents were acquitted e of all the charges
by the Additional District and Sessions Judge, 2nd Fast Track Court, Serampore on 20-7-2006
in the case filed alleging dowry harassment. Being aggrieved by the order hereinabove, the
respondent wife filed a revision petition being CRR No. 3087 of 2006 before the High Court at
Calcutta which came to be dismissed on 21 -3-20113.
7. The appellant husband filed a divorce petition being Matrimonial Suit No. 71 of 2007 which
was renumbered as Suit No. 193 of 2010 under Section 13(1)0-a) of the Hindu Marriage Act for
dissolution of marriage. In the said divorce petition, the respondent wife filed an application for
permanent alimony under Section 25 of the Act. By an order dated 19-5-2006, passed by the
Additional District Judge, 1st Court, Hooghly in Matrimonial Suit No. 533 of 2003, enhanced
the amount of maintenance to Rs 8000 per month in FA g No. 193 of 2008.
8. On 10-10-2010, the respondent filed an amendment application before the Court being Misc.
Case No. 2 of 2010 in Matrimonial Suit No. 533 of 2003 under Section 25(2) of the Act praying
for enhancement of maintenance amounting to Rs 10,000 per month for herself and Rs 6000 for
her minor son. Vide order dated 10-10-2012, the said application was allowed and maintenance
@ Rs 6000 each was ordered for the respondent and her minor son.
9. Aggrieved by this order, the respondent wife preferred a revision petition under Article 227 of
the Constitution of India before the High Court being CO No. 4228 of 2012. During its pendency,
Matrimonial Suit No. 193 of 2010 was decreed and the marriage between the parties came to
be dissolved by the order of the Additional District Judge, 1st Fast Track Court, Serampore on
30-11-2012. Post-divorce, the appellant herein remarried and has a male child born from the
second wedlock.
10. By an order dated 2-2-20152, the High Court disposed of the above revision petition by directing
the appellant husband to pay a sum of Rs 16,000 towards the maintenance of the respondent wife
as well as her minor son. Aggrieved by this order, the respondent wife preferred Special Leave
Petition (C) No. 12968 of 2015 which was disposed4 of as withdrawn with liberty to approach
the High Court by way of review. Pursuant to the above order, the respondent wife filed a review
application being RVW No. 85 of 2016 arising out of CO No. 4228 of 2012. Upon hearing both
the parties, by order dated 15-9-20161, the learned Single Judge of the High Court modified
the order under review and enhanced the amount of maintenance from Rs 16,000 to Rs 23,000
which is the subject-matter of challenge in this appeal.
11. The learned counsel for the appellant Mr Pijush K. Roy submitted that in exercise of review
jurisdiction, the High Court ought not to have enhanced the maintenance amount from Rs
16,000 to Rs 23,000. It was further submitted that the appellant husband is posted at Malda
3 Rita Dey Choudhury v. Kalyan Dey Choudhury. Criminal Revision No. 3087 of 2006, order dated 21-3-2011 (Cal)
4 Rita Dey Chowdhury v. Kalyan Dey Chowdhury, SLP (C) No. 12968 of 2015, order dated 22-2-2016 (SC), wherein it was directed:
“The learned counsel for the petitioner seeks leave to withdraw this special leave petition with liberty to approach the High
Court in a review petition. Permission is granted with the above liberty. The special leave petition is, accordingly, disposed of as
withdrawn.”
—| 181 |—
Medical College, Malda, West Bengal and gets a net salary of Rs 87,500 per month and while
so, the appellant would find it difficult to pay enhanced maintenance amount of Rs 23,000 per
month to the respondent wife. It is also submitted that the respondent is a qualified beautician
and Montessori teacher and earns Rs 30,000 per month and the son has also attained eighteen
years of age and hence the enhanced maintenance amount of Rs 23,000 per month is on the
higher side and prayed for restoring the original order of Rs 16,000 per month.
12. Per contra, the learned counsel for the respondent wife Ms Supriya Juneja submitted that the
High Court on perusal of the pay slip and the expenditure of the appellant husband has arrived
at the right conclusion of granting Rs 23,000 as maintenance to the respondent. The learned
counsel has also further submitted that even though the son has attained majority and since
the son is aged only eighteen years and is presently studying in a college and for meeting the
expenses of higher education and other requirements enhanced maintenance amount of Rs
23,000 per month is a reasonable one and the impugned order warrants no interference.
13. We have considered the rival contentions and perused the impugned judgment1 and other
materials on record.
14. Section 25 of the Hindu Marriage Act, 1955 confers power upon the court to grant a permanent
alimony to either spouse who claims the same by making an application. Sub-section (2) of
Section 25 of the Hindu Marriage 5 Act confers ample power on the court to vary, modify or
discharge any order for permanent alimony or permanent maintenance that may have been
made in any proceeding under the Act under the provisions contained in sub-section (1) of
Section 25. In exercising the power under Section 25(2), the court would have regard to the
“change in the circumstances of the parties”. There must be some change in the circumstances of
either party which may have to be taken into account when an application is made under sub-
section (2) of Section 25 for variation, modification or rescission of the order as the court may
deem just.
15. The review petition under Order 47 Rule I CPC came to be tiled by the respondent wife
pursuant to the liberty granted by this Court when the earlier order dated 2-2-20152 awarding a
maintenance of Rs 16,000 to the respondent wife as well as to her minor son was under challenge
before this Court. As pointed out by the High Co tin. in February 2015 the appellant husband
was getting a net salary of Rs 63,842 after deduction of Rs 24,000 on account of GPF and Rs
12,000 towards income tax. In February 2016, the net salary of the appellant is stated to be Rs
95,527. Following Kulbhushan Kumar v. Raj Kumuri, in this case, it was held that 25% of the
husband’s net salary would be just and proper to be awarded as maintenance to the respondent
wife. The amount of permanent alimony awarded to the wife must be befitting the status e of
the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent
on the factual situation of the case and the court would be justified in moulding the claim for
maintenance passed on various factors. Since in February 2016, the net salary of the husband
was Rs 95,000 per month, the High Court was justified in enhancing the maintenance amount.
However, since the appellant has also got married second time and has a child from the second
marriage, in the interest of justice, we think it proper to reduce the amount of maintenance of
Rs 23,000 to Rs 20,000 per month as maintenance to the respondent wife and son.
—| 182 |—
16. In the result, the maintenance amount of Rs 23,000 awarded to the respondent wife is reduced to
Rs 20,000 per month and the impugned judgment is modified and this appeal is partly allowed.
The maintenance of Rs 20,000 per 9 month is payable to the respondent wife on or before 10th
of every succeeding English calendar month. No costs.
qqq
—| 183 |—
KYNTIEW AKOR SUCHIANG VERSUS

WOSTON HYNNIEWTA AND ANOTHER
Kynteew Akor Suchiang .. Appellant;
Versus
Woston Hynniewta And Another .. Respondents.
Decided on April 26, 2017
Constitution of India — Arts. 244(2) and 275(1), Sch. VI, Para 4, Provisions as to the Administration
of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram — Jurisdiction of District
Council — Dispute between parties belonging to different tribes
— Held, District Council has jurisdiction only in respect of tribals who belong to Scheduled
Tribes within such area for which said District Council constituted and would have no jurisdiction
where one of the parties belong to another area which is under jurisdiction of another District Council
— Thus, District Council East Khasi Hills would have no jurisdiction to decide present dispute which
is between appellant wife belonging to tribe of Jaintia Hills District Council and respondent husband
belonging to East Khasi Hills District Council — In such cases, courts constituted under ordinary
law viz. Criminal Procedure Code, 1973 would have jurisdiction — Direction given by High Court
remanding matter to District Council, East Khasi Hills for adjudication modified and matter remanded
to District & Sessions Judge i.e. court constituted under ordinary law — Family and Personal Laws —
Maintenance and Financial Provision Alimony/Palimony — Criminal Procedure Code, 1973, Ss. 125
and 397 (Paras 4 to 9)
ORDER
1. Leave granted. This appeal has been preferred by the petitioner wife against the impugned
judgment and order dated 23-9-2016 passed by the High Court of Meghalaya in Woston
Hynniewta v. Kyntiew Akor Suehiang5, whereby the High Court allowed the said revision
petition and directed the learned Judicial Magistrate, Shillong, to remand the case to the District
Council, East Khasi Hills, to adjudicate the matter independently.
2. The appellant wife is a tribal belonging to Panar tribe and resident of Jowai, West Jaintia Hills
District which falls under the jurisdiction of Jaintia Hills Autonomous District Council. On the
other hand, the respondent husband is a tribal belonging to East Khasi Hills District which falls
under the jurisdiction of Khasi Hills Autonomous District Council.
5 2016 SCC OnLine Megh 232
—| 184 |—
3. Initially, the appellant wife filed an application for maintenance under Section 125 of the Code
of Criminal Procedure (for short “CrPC”) before the learned Judicial Magistrate, Shillong.
By order dated 14-3-2016, the learned Magistrate directed the respondent husband to pay an
interim maintenance of Rs 7000 in favour of the appellant and issued notice to him. Thereafter,
on 2-6-2016, the learned Magistrate, Shillong, rejected the preliminary objection raised by the
respondent husband that the Court of the learned Judicial Magistrate, Shillong did not have the
requisite jurisdiction to try the matter on account of the fact that the dispute was between two
tribal individuals. The respondent husband challenged the said orders of the learned Magistrate
by filing revision petition before the High Court which was allowed in terms of the above. Being
aggrieved, the appellant wife preferred this appeal.
4. Having heard the learned counsel appearing for the parties and upon perusal of the record, we
find that the issue of jurisdiction is covered by Para 4 under the heading “Provisions as to the
Administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram” of the
Sixth Schedule to the Constitution of India under Articles 244(2) and 275(1), which reads as
follows:
“4. Administration of justice in autonomous districts and autonomous regions.—
(1) The Regional Council for an autonomous region in respect of areas within such
region and the District Council for an autonomous district in respect of areas within
the district other than those which are under the authority of the Regional Councils,
if any, within the district may constitute village councils or courts for the trial of suits
and cases between the parties all of whom belong to Scheduled Tribes within such
areas, other than suits and cases to which the provisions of sub-para (1) of Para 5 of
this Schedule apply, to the exclusion of any court in the State, and may appoint suitable
persons to be members of such village councils or presiding officers of such courts, and
may also appoint such officers as may be necessary for the administration of the laws
made under Para 3 of this Schedule.” (emphasis supplied)
5. As a result, a District Council, constituted for the purpose of deciding disputes, has jurisdiction
only in respect of tribals who belong to the Scheduled Tribes within such area for which the said
District Council is constituted. It would have no jurisdiction where one of the parties belongs to
another area which is under the jurisdiction of another District Council.
6. Thus, we find that East Khasi Hills District Council would have no jurisdiction to determine
the present dispute which is between the appellant wife who belongs to a tribe of Jaintia Hills
District Council and the respondent husband who belongs to East Khasi Hills District Council.
A similar question has been decided by the High Court of Gauhati (Shillong Bench) in State of
a Meghalaya v. Richard Lyngdoh6.
7. In such a situation, the courts constituted under ordinary law, in the instant case, the Code of
Criminal Procedure, would have jurisdiction.
8. The orders dated 14-3-2016 and 2-6-2016 passed by the learned Judicial Magistrate, Shillong,
in favour of the appellant wife, were correctly dealt with by the High Court. However, the
direction of the High Court given to the learned Magistrate to remand the matter to the District
6 2005 SCC OnLine Gau 371 : (2006) 2 Gau LR 328
1 Woston Hynniewta v. Kyntiew Akor Suchiang, 2016 SCC OnLine Megh 232
—| 185 |—
Council, East Khasi Hills, for fresh adjudication, is not warranted, since both the parties are
tribals belonging to two different areas. The aforesaid orders of the learned Magistrate can only
be questioned before the appropriate court constituted under the ordinary law and which is
admittedly the District Court at Shillong, for deciding the dispute under Sections 397(1) and (2)
CrPC.
9. Hence, we partly allow this appeal, uphold the direction of remand given by the High Court
vide its impugned judgment and order1, but modify it to the extent that the matter shall stand
remanded to the District and Sessions Judge, Shillong.
10. In the meantime, the respondent husband shall pay interim maintenance of Rs 7000 (Rupees
seven thousand only) to the appellant wife, as directed by the learned Judicial Magistrate,
Shillong.
11. The learned Judicial Magistrate, Shillong, shall direct the payment of arrears of interim
maintenance which was not paid by the respondent to the appellant wife, by way of interim
order.
qqq
—| 186 |—
JAIMINIBEN HIRENBHAI VYAS & ANR VERSUS

HIRENBHAI RAMESHCHANDRA VYAS & ANR.
Bench : Hon’ble Mr. Justice J. Chelameswar & Hon’ble Mr. Justice S.A. Bobde
Jaiminiben Hirenbhai Vyas & Anr
Versus
Hirenbhai Rameshchandra Vyas & Anr.
Decided on 19 November, 2014
(Arising out of SLP (Crl.) No. 3345 of 2013)
• On the Appellants application for maintenance made for herself and her children, the Family
Court granted maintenance in the sum of Rs 5,000/- only to her daughter under Section
125 Cr.P.C. The son was living with the father who was maintaining him and was therefore
not granted maintenance. The main ground for denying maintenance to the Appellant was
that she was found to have been working before her marriage and the Family Court was of
the view that she could earn her living even now after the separation and therefore she was
denied maintenance. This view did not find favour with the High Court, which noted that the
Appellant had stopped working after her marriage and had given birth to two children. She
had been only looking after the family and had therefore stopped working. The High Court
thus reversed the Order of the Family Court and granted maintenance in the sum of Rs. 5,000/-
. This was however granted from the date of the order.
• The High Court has not given any reason why it has not directed maintenance from the date
of the application for maintenance . Section 125 of the Cr.P.C., therefore, impliedly requires
the Court to consider making the order for maintenance effective from either of the two dates,
having regard to the relevant facts. For good reason, evident from its order, the Court may
choose either date. It is neither appropriate nor desirable that a Court simply states that
maintenance should be paid from either the date of the order or the date of the application in
matters of maintenance.
• The High Court has not given any reason for not granting maintenance from the date of the
application. We are of the view that the circumstances eminently justified grant of maintenance
with effect from the date of the application in view of the finding that the Appellant had worked
before marriage and had not done so during her marriage. There was no evidence of her income
during the period the parties lived as man and wife.
JUDGMENT
Hon’ble Mr. Justice S.A. Bobde
1. Leave granted.
—| 187 |—
2. This appeal has been preferred by a wife and a minor daughter. The Family Court directed
payment of interim maintenance to wife and minor daughter @ Rs. 6,000/- per month under
Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.).
Interim maintenance was also ordered under Section 24 of the Hindu Marriage Act, 1955
(hereinafter referred to as the H.M. Act) @ 3,000/- per month payable to both. Eventually, the
Family Court disposed the maintenance proceedings finally by the Order dated 31.01.2009. By
this Order the Family Court granted maintenance in favour of daughter @ Rs. 5,000/- per month
from the date of judgment. The Family Court, however, took the view that the appellant wife
would not be entitled to receive any amount more than the interim maintenance which she is
receiving under the H.M. Act.
3. On the Appellants application for maintenance made for herself and her children, the Family
Court granted maintenance in the sum of Rs 5,000/- only to her daughter under Section 125
Cr.P.C. The son was living with the father who was maintaining him and was therefore not
granted maintenance. The main ground for denying maintenance to the Appellant was that she
was found to have been working before her marriage and the Family Court was of the view
that she could earn her living even now after the separation and therefore she was denied
maintenance. This view did not find favour with the High Court, which noted that the Appellant
had stopped working after her marriage and had given birth to two children. She had been only
looking after the family and had therefore stopped working. The High Court thus reversed the
Order of the Family Court and granted maintenance in the sum of Rs. 5,000/-. This was however
granted from the date of the order.
4. We have given our anxious consideration to the Order of the High Court but find it difficult to
uphold the direction that the maintenance should be paid only from the date of the Order. The
High Court has not given any reason why it has not directed maintenance from the date of the
application for maintenance.
5. The relevant part of Section 125 reads as follows:
125. Order for maintenance of wives, children and parents.
(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, as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate may from time to time direct:
—| 188 |—
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:
Provided further that the Magistrate may, during the pendency of the
proceeding regarding monthly allowance for the maintenance under this
sub- section, order such person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother, and the expenses of
such proceeding which the Magistrate considers reasonable, and to pay the
same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim
maintenance and expenses of proceeding under the second proviso shall, as
far as possible, be disposed of within sixty days from the date of the service of
notice of the application to such person.
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.
6. The provision expressly enables the Court to grant maintenance from the date of the order or
from the date of the application. However, Section 125 of the Cr.P.C. must be construed with
sub-section (6) of Section 354 of the Cr.P.C. which reads thus:
354 (6) Language and contents of judgment - Every order under Section 117 or sub-section (2)
of Section 138 and every final order made under Section 125, Section 145 or Section 147 shall
contain the point or points for determination, the decision thereon and the reasons for the
decision.
Therefore, every final order under Section 125 of the Cr.P.C. [and other sections referred to in
sub-section (c) of Section 354] must contain points for determination, the decision thereon and
the reasons for such decision. In other words, Section 125 and Section 354 (6) must be read
together.
7. Section 125 of the Cr.P.C., therefore, impliedly requires the Court to consider making the order
for maintenance effective from either of the two dates, having regard to the relevant facts. For
good reason, evident from its order, the Court may choose either date. It is neither appropriate
nor desirable that a Court simply states that maintenance should be paid from either the date
of the order or the date of the application in matters of maintenance. Thus, as per Section 354
—| 189 |—
(6) of the Cr.P.C., the Court should record reasons in support of the order passed by it, in both
eventualities.
The purpose of the provision is to prevent vagrancy and destitution in society and the Court
must apply its mind to the options having regard to the facts of the particular case.
8. In Shail Kumari Devi v. Krishan Bhagwan Pathak,[1] this Court dealt with the question
as to from which date a Magistrate may order payment of maintenance to wife, children or
parents. In Shail Kumar Devi, this Court considered a catena of decisions by the various High
Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the
Magistrate should grant maintenance only from the date of the order and not from the date of
the application for maintenance. It is, therefore, open to the Magistrate to award maintenance
from the date of application. The Court held, and we agree, that if the Magistrate intends to pass
such an order, he is required to record reasons in support of such Order. Thus, such maintenance
can be awarded from the date of the Order, or, if so ordered, from the date of the application for
maintenance, as the case may be. For awarding maintenance from the date of the application,
express order is necessary.
9. In the case before us, the High Court has not given any reason for not granting maintenance
from the date of the application. We are of the view that the circumstances eminently justified
grant of maintenance with effect from the date of the application in view of the finding that the
Appellant had worked before marriage and had not done so during her marriage. There was
no evidence of her income during the period the parties lived as man and wife. We, therefore
reverse the Order of the High Court in this regard and direct that the respondent shall pay the
amount of maintenance found payable from the date of the application for maintenance. As far
as maintenance granted under Section 24 of the H.M. Act by the Courts below is concerned, it
shall remain unaltered.
10. Accordingly, the appeal is allowed.
[1] (2008) 9 SCC 632; Paras 39 - 41.

qqq
—| 190 |—
MANJU KUMARI SINGH @ SMT. MANJU ... VERSUS

AVINASH KUMAR SINGH
Bench : Hon’ble Mr. Justice Abhay Sapre
Manju Kumari Singh @ Smt. Manju Singh ….Appellant(s)
Versus
Avinash Kumar Singh ….Respondent(s)
(Arising out of S.L.P.(C) No.19420 of 2017)
Decided on 25 July, 2018
JUDGMENT
Hon’ble Mr. Justice Abhay Manohar Sapre.—
1. Leave granted.
2. This appeal is filed by the wife against the final judgment and order dated 28.02.2017 passed by
the High Court of Jharkhand at Ranchi in F.A. No. Signature Not Verified 51 of 2004 whereby the
High Court dismissed the Digitally signed by ANITA MALHOTRA Date: 2018.07.25 17:07:14
IST Reason:
appeal and affirmed the judgment dated 23.12.2002 passed by the Principal Judge, Family Court,
Singhbhum East at Jamshedpur in Matrimonial Suit No.40 of 2001 by which the marriage
between the appellant¬wife and the respondent-husband was dissolved.
3. Few facts need to be mentioned infra to appreciate the short issue involved in the appeal.
4. The appellant is the wife whereas the respondent is the husband. The appellant and the respondent
were married on 16.02.1997. The appellant is serving as a Teacher whereas the respondent is a
practicing advocate. The couple was blessed with a daughter in 1998 and she has been living
with the appellant since birth. As on this date, the daughter is studying and is of marriageable
age. Unfortunately, due to various reasons, their married life was not cordial soon after the
marriage, which eventually led to filing of divorce petition (Matrimonial Suit No.40/358 of
2001) by the respondent (husband) in the year 2001 against the appellant (wife) in the Family
Court, Singhbhum East, Jamshedpur.
5. The respondent sought divorce inter alia on the ground of cruelty and desertion against the
appellant. The appellant denied the allegations of cruelty/desertion and contested the suit by
joining issues.
6. By order dated 23.12.2002, the Family Judge dissolved the marriage between the appellant¬wife
and the respondent¬husband on the ground that the allegation of cruelty and desertion against
the appellant was proved and the suit filed by the respondent-husband for the dissolution of
marriage was decreed.
—| 191 |—
7. The appellant felt aggrieved, filed First Appeal (51 of 2004) before the High Court of Jharkhand
at Ranchi. By order dated 24.09.2008, the High Court affirmed the order passed by the Family
Judge.
8. Challenging the said order, the appellant¬wife filed an appeal before this Court. Vide order
dated 09.01.2015, this Court remanded the matter to the High Court for fresh hearing. Against
the said order, the respondent¬husband filed a review petition, which was dismissed vide this
Court’s order dated 14.07.2015.
9. After remanding, the High Court again heard the matter. By impugned order, the High Court
dismissed the appellant’s appeal and affirmed the order of the Family Judge and, in consequence,
allowed the respondent’s divorce petition by granting a decree of divorce in his favour on the
ground of desertion. It is against this order of theHigh Court, the wife (appellant herein) felt
aggrieved and filed the present appeal by way of special leave in this Court.
10. We have heard the learned counsel for the parties, respondent¬in¬person and perused the
record of the case.
11. It is not in dispute that the parties have been living separately for the last more than a decade.
All attempts of reconciliation through mediation have failed. It is, therefore, clear that there is
absolutely no chance of both living together to continue their marital life.
12. In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, the husband had filed petition seeking
divorce on the ground of cruelty on the part of wife. While the matter was pending in the Trial
Court, efforts were made for amicable settlement but without any success. Finding that there
was no cordiality left between the parties to live together, the Trial Court ordered dissolution of
marriage and directed the husband to deposit Rs.5 lakhs towards permanent maintenance of the
wife. The appeal at the instance of the wife having been allowed, the husband approached this
Court by filing an appeal. The observations of this Court in paragraphs 86 and 90 are relevant
for our purposes and the same are quoted hereunder:
“86. In view of the fact that the parties have been living separately for more than 10 years
and a very large number of aforementioned criminal and civil proceedings have been
initiated by the respondent against the appellant and some proceedings have been
initiated by the appellant against the respondent, the matrimonial bond between
the parties is beyond repair. A marriage between the parties is only in name. The
marriage has been wrecked beyond the hope of salvage, public interest and interest of
all concerned lies in the recognition of the fact and to declare defunct de jure what is
already defunct de facto. To keep the sham is obviously conducive to immorality and
potentially more prejudicial to the public interest than a dissolution of the marriage
bond.
90. Consequently, we set aside the impugned judgment of the High Court and direct that
the marriage between the parties should be dissolved according to the provisions of the
Hindu Marriage Act, 1955. In the extraordinary facts and circumstances of the case,
to resolve the problem in the interest of all concerned, while dissolving the marriage
between the parties, we direct the appellant to pay Rs 25,00,000 (Rupees twenty¬five
lakhs) to the respondent towards permanent maintenance to be paid within eight weeks.
This amount would include Rs 5,00,000 (Rupees five lakhs with interest) deposited by
—| 192 |—
the appellant on the direction of the trial court. The respondent would be at liberty to
withdraw this amount with interest. Therefore, now the appellant would pay only Rs
20,00,000 (Rupees twenty lakhs) to the respondent within the stipulated period. In case
the appellant fails to pay the amount as indicated above within the stipulated period,
the direction given by us would be of no avail and the appeal shall stand dismissed.
In awarding permanent maintenance we have taken into consideration the financial
standing of the appellant.”
13. In Sanghamitra Ghosh v. Kajal Kumar Ghosh, (2007) 2 SCC 220, it was observed in paragraphs
18, 19, 20 and 21 as under:
“18. In the instant case, we are fully convinced that the marriage between the parties has
irretrievably broken down because of incompatibility of temperament. In fact there has
been total disappearance of emotional substratum in the marriage. The matrimonial
bond between the parties is beyond repair. A marriage between the parties is only
in name. The marriage has been wrecked beyond the hope of salvage, therefore, the
public interest and interest of all concerned lies in the recognition of the fact and to
declare defunct de jure what is already defunct de facto as observed in Naveen Kohli
case(2006) 4 SCC 558.
19. In view of peculiar facts and circumstances of this case, we consider it appropriate to
exercise the jurisdiction of this Court under Article 142 of the Constitution.
20. In order to ensure that the parties may live peacefully in future, it has become
imperative that all the cases pending between the parties are directed to be disposed of.
According to our considered view, unless all the pending cases are disposed of and we
put a quietus to litigation between the parties, it is unlikely that they would live happily
and peacefully in future.
In our view, this will not only help the parties, but it would be conducive in the interest
of the minor son of the parties.
21. On consideration of the totality of the facts and circumstances of the case, we deem it
appropriate to pass the order in the following terms:
(a) the parties are directed to strictly adhere to the terms of compromise filed before
this Court and also the orders and directions passed by this Court;
(b) we direct that the cases pending between the parties, as enumerated in the
preceding paragraphs, are disposed of in view of the settlement between the
parties; and
(c) all pending cases arising out of the matrimonial proceedings including the case
of restitution of conjugal rights and guardianship case between the parties shall
stand disposed of and consigned to the records in the respective courts on being
moved by either of the parties by providing a copy of this order, which has settled
all those disputes in terms of the settlement.”
14. In our considered view, in order to ensure that the parties may live peacefully in future and
their daughter would be settled properly in her life, a quietus must be given to all litigations
—| 193 |—
between the parties. Indeed both the learned counsel appearing for the parties too agreed for
this. Such an approach, in our view, would be consistent with the approach adopted by this
Court in the aforesaid matters. Consistent with the broad consensus arrived at between the
parties, we consider it just and proper to dispose of the appeal with the following directions:¬
(i) The respondent¬husband will pay a total sum of Rs. 10,00,000/¬(ten lakhs) in two
instalments towards permanent alimony and maintenance to the appellant and daughter.
(ii) First instalment of Rs. 5,00,000/¬ would be paid by the respondent¬ husband to the
daughter by way of a Demand Draft drawn in favour of his daughter within three months
from the date of this order.
(iii) Second instalment of Rs.5,00,000/¬ would be paid by the respondent¬husband to the
daughter by way of a Demand Draft drawn in favour of his daughter within four months
from the date of payment of first instalment.
(iv) All allegations made in pending cases arising out of the matrimonial proceedings including
the one out of which this appeal arises are expunged. All proceedings pending in various
Courts, if any, shall stand disposed of accordingly.
15. In view of the peculiar facts and circumstances of this case, we also consider it appropriate to
exercise our power under Article 142 of the Constitution in order to do substantial justice to the
parties to this appeal and accordingly declare dissolution of their marriage subject to fulfillment
of the aforesaid conditions.
16. With the aforesaid directions, the appeal stands accordingly disposed of. No costs.
qqq
—| 194 |—
CHATURBHUJ VERSUS SITA BAI

Appeal (Crl.) 1627 of 2007 (Arising out of SLP (Crl.) No.4379 of 2006)
Bench: Hon’ble Dr. Justice Arijit Pasayat & Hon’ble Mr. Justice Aftab Alam
(2008) 2 SCC 316
Chaturbhuj
Vs.
Sita Bai
Date of Judgment: 27/11/2007
The respondent had filed an application under Section 125 of Cr.P.C. claiming maintenance from the
appellant. Trial Court directed to pay Rs.1500/- p.m.
Revision petition was filed by the present appellant was 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.
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.
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 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.
JUDGMENT
Dr. ARIJIT PASAYAT, J.—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
—| 195 |—
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
(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,
—| 196 |—
(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 ofArticle
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).
—| 197 |—
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 analysed 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.
qqq
—| 198 |—
DANIAL LATIFI & ANR VERSUS UNION OF INDIA

Writ Petition (Civil) 868 of 1986
Bench: Hon’ble Mr. Justice G.B. Pattanaik, Hon’ble Mr. Justice S. RAjendra Babu,
Hon’ble Mr. Justice D.P. Mohapatra, Hon’ble Mr. Justice Doraiswamy Raju &
Hon’ble Mr. Justice Shivaraj V. Patil
(2001) 7 SCC 740
Danial Latifi & Anr.

Vs.
Union of India
Date of Judgment : 28/09/2001
The Supreme Court in the case of Daniel Latifi v. Union of India a held that reasonable and
fair provisions include provision for the future of the divorced wife (including maintenance) and
it does not confine itself to the iddat period only. The Constitutional validity of the Act was also
upheld.
JUDGMENT
RAJENDRA BABU, J.:

The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986
[hereinafter referred to as the Act] is in challenge before us in these cases.
The facts in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. (1985) 2 SCC 556, are as follows.
The husband appealed against the judgment of the Madhya Pradesh High Court directing him to pay to
his divorced wife Rs.179/- per month, enhancing the paltry sum of Rs.25 per month originally granted
by the Magistrate. The parties had been married for 43 years before the ill and elderly wife had been
thrown out of her husbands residence. For about two years the husband paid maintenance to his wife at
the rate of Rs.200/- per month. When these payments ceased she petitioned under Section 125 CrPC.
The husband immediately dissolved the marriage by pronouncing a triple talaq. He paid Rs.3000/-
as deferred mahr and a further sum to cover arrears of maintenance and maintenance for the iddat
period and he sought thereafter to have the petition dismissed on the ground that she had received the
amount due to her on divorce under the Muslim law applicable to the parties. The important feature of
the case was that the wife had managed the matrimonial home for more than 40 years and had borne
and reared five children and was incapable of taking up any career or independently supporting herself
at that late stage of her life - remarriage was an impossibility in that case. The husband, a successful
Advocate with an approximate income of Rs.5,000/- per month provided Rs.200/- per month to the
divorced wife, who had shared his life for half a century and mothered his five children and was in
desperate need of money to survive.
Thus, the principle question for consideration before this Court was the interpretation of Section
127(3)(b) CrPC that where a Muslim woman had been divorced by her husband and paid her mahr,
would it indemnify the husband from his obligation under the provisions of Section 125CrPC. A Five-
—| 199 |—
Judge Bench of this Court reiterated that the Code of Criminal Procedure controls the proceedings in
such matters and overrides the personal law of the parties. If there was a conflict between the terms
of the Code and the rights and obligations of the individuals, the former would prevail. This Court
pointed out that mahr is more closely connected with marriage than with divorce though mahr or a
significant portion of it, is usually payable at the time the marriage is dissolved, whether by death or
divorce. This fact is relevant in the context of Section 125 CrPC even if it is not relevant in the context
of Section 127(3)(b) CrPC. Therefore, this Court held that it is a sum payable on divorce within the
meaning of Section 127(3)(b) CrPC and held that mahr is such a sum which cannot ipso facto absolve
the husbands liability under the Act.
It was next considered whether the amount of mahr constitutes a reasonable alternative to the
maintenance order. If mahr is not such a sum, it cannot absolve the husband from the rigour ofSection
127(3)(b) CrPC but even in that case, mahr is part of the resources available to the woman and
will be taken into account in considering her eligibility for a maintenance order and the quantum
of maintenance. Thus this Court concluded that the divorced women were entitled to apply for
maintenance orders against their former husbands under Section 125 CrPC and such applications were
not barred under Section 127(3)(b) CrPC. The husband had based his entire case on the claim to be
excluded from the operation of Section 125 CrPC on the ground that Muslim law exempted from any
responsibility for his divorced wife beyond payment of any mahr due to her and an amount to cover
maintenance during the iddat period and Section 127(3)(b)CrPC conferred statutory recognition
on this principle. Several Muslim organisations, which intervened in the matter, also addressed
arguments. Some of the Muslim social workers who appeared as interveners in the case supported the
wife brought in question the issue of mata contending that Muslim law entitled a Muslim divorced
woman to claim provision for maintenance from her husband after the iddat period. Thus, the issue
before this Court was: the husband was claiming exemption on the basis of Section 127(3)(b) CrPC on
the ground that he had given to his wife the whole of the sum which, under the Muslim law applicable
to the parties, was payable on such divorce while the woman contended that he had not paid the whole
of the sum, he had paid only the mahr and iddat maintenance and had not provided the mata i.e.
provision or maintenance referred to in the Holy Quran, Chapter II, Sura
241. This Court, after referring to the various text books on Muslim law, held that the divorced wifes
right to maintenance ceased on expiration of iddat period but this Court proceeded to observe that
the general propositions reflected in those statements did not deal with the special situation where
the divorced wife was unable to maintain herself. In such cases, it was stated that it would be not only
incorrect but unjust to extend the scope of the statements referred to in those text books in which
a divorced wife is unable to maintain herself and opined that the application of those statements of
law must be restricted to that class of cases in which there is no possibility of vagrancy or destitution
arising out of the indigence of the divorced wife. This Court concluded that these Aiyats [the Holy
Quran, Chapter II, Suras 241-242] leave no doubt that the Holy Quran imposes an obligation on the
Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary
argument does less than justice to the teaching of the Holy Quran. On this note, this Court concluded
its judgment.
There was a big uproar thereafter and Parliament enacted the Act perhaps, with the intention of
making the decision in Shah Banos case ineffective.
The Statement of Objects & Reasons to the bill, which resulted in the Act, reads as follows :
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The Supreme Court, in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. [AIR 1985 SC 945), has
held that although the Muslim Law limits the husbands liability to provide for maintenance of the
divorced wife to the period of iddat, it does not contemplate or countenance the situation envisaged
by Section 125 of the Code of Criminal Procedure, 1973. The Court held that it would be incorrect
and unjust to extend the above principle of Muslim Law to cases in which the divorced wife is unable
to maintain herself. The Court, therefore, came to the conclusion that if the divorced wife is able to
maintain herself, the husbands liability ceases with the expiration of the period of iddat but if she is
unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 of
the Code of Criminal Procedure.
2. This decision has led to some controversy as to the obligation of the Muslim husband to pay
maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights
which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests.
The Bill accordingly provides for the following among other things, namely:-
(a) a Muslim divorced woman shall be entitled to a reasonable and fair provision and
maintenance within the period of iddat by her former husband and in case she maintains
the children born to her before or after her divorce, such reasonable provision and
maintenance would be extended to a period of two years from the dates of birth of the
children. She will also be entitled to mahr or dower and all the properties given to her by
her relatives, friends, husband and the husbands relatives. If the above benefits are not
given to her at the time of divorce, she is entitled to apply to the Magistrate for an order
directing her former husband to provide for such maintenance, the payment of mahr or
dower or the deliver of the properties;
(b) where a Muslim divorced woman is unable to maintain herself after the period of iddat,
the Magistrate is empowered to make an order for the payment of maintenance by her
relatives who would be entitled to inherit her property on her death according to Muslim
Law in the proportions in which they would inherit her property. If any one of such
relatives is unable to pay his or her share on the ground of his or her not having the means
to pay, the Magistrate would direct the other relatives who have sufficient means to pay
the shares of these relatives also. But where, a divorced woman has no relatives or such
relatives or any one of them has not enough means to pay the maintenance or the other
relatives who have been asked to pay the shares of the defaulting relatives also do not have
the means to pay the shares of the defaulting relatives the Magistrate would order the State
Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are
unable to pay.
The object of enacting the Act, as stated in the Statement of Objects & Reasons to the Act, is that
this Court, in Shah Banos case held that Muslim Law limits the husbands liability to provide for
maintenance of the divorced wife to the period of iddat, but it does not contemplate or countenance
the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973 and, therefore, it
cannot be said that the Muslim husband, according to his personal law, is not under an obligation
to provide maintenance beyond the period of iddat to his divorced wife, who is unable to maintain
herself.
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As held in Shah Banos case, the true position is that if the divorced wife is able to maintain herself, the
husbands liability to provide maintenance for her ceases with the expiration of the period of iddat but
if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section
125 CrPC. Thus it was held that there is no conflict between the provisions of Section 125 CrPC and
those of the Muslim Personal Law on the question of the Muslim husbands obligation to provide
maintenance to his divorced wife, who is unable to maintain herself. This view is a reiteration of what
is stated in two other decisions earlier rendered by this Court in Bai Tahira vs. Ali Hussain Fidaalli
Chothia, (1979) 2 SCC 316, andFuzlunbi vs. K.Khader Vali & Anr., (1980) 4 SCC 125.
Smt. Kapila Hingorani and Smt. Indira Jaisingh raised the following contentions in support of the
petitioners and they are summarised as follows :
1. Muslim marriage is a contract and an element of consideration is necessary by way of mahr or
dower and absence of consideration will discharge the marriage. On the other hand, Section
125CrPC has been enacted as a matter of public policy.
2. To enable a divorced wife, who is unable to maintain herself, to seek from her husband, who
is having sufficient means and neglects or refuses to maintain her, payment of maintenance at
a monthly rate not exceeding Rs.500/-. The expression wife includes a woman who has been
divorced by, or has obtained a divorce from her husband and has not remarried. The religion
professed by a spouse or the spouses has no relevance in the scheme of these provisions
whether they are Hindus, Muslims, Christians or the Parsis, pagans or heathens. It is submitted
thatSection 125 CrPC is part of the Code of Criminal Procedure and not a civil law, which
defines and governs rights and obligations of the parties belonging to a particular religion like
the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section
125 CrPC, it is submitted, was enacted in order to provide a quick and summary remedy. The
basis there being, neglect by a person of sufficient means to maintain these and the inability of
these persons to maintain themselves, these provisions have been made and the moral edict of
the law and morality cannot be clubbed with religion.
3. The argument is that the rationale of Section 125 CrPC is to off- set or to meet a situation where
a divorced wife is likely to be led into destitution or vagrancy. Section 125 CrPC is enacted to
prevent the same in furtherance of the concept of social justice embodied in Article 21 of the
Constitution.
4. It is, therefore, submitted that this Court will have to examine the questions raised before us
not on the basis of Personal Law but on the basis that Section 125 CrPC is a provision made
in respect of women belonging to all religions and exclusion of Muslim women from the same
results in discrimination between women and women. Apart from the gender injustice caused
in the country, this discrimination further leads to a monstrous proposition of nullifying a law
declared by this Court in Shah Banos case. Thus there is a violation of not only equality before
law but also equal protection of laws and inherent infringement of Article 21 as well as basic
human values. If the object of Section 125 CrPC is to avoid vagrancy, the remedy thereunder
cannot be denied to Muslim women.
5. The Act is an un-islamic, unconstitutional and it has the potential of suffocating the muslim
women and it undermines the secular character, which is the basic feature of the Constitution;
that there is no rhyme or reason to deprive the muslim women from the applicability of
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the provisions of Section 125 CrPC and consequently, the present Act must be held to be
discriminatory and violative of Article 14 of the Constitution; that excluding the application
ofSection 125 CrPC is violative of Articles 14 and 21 of the Constitution; that the conferment of
power on the Magistrate under sub-section (2) of Section 3 and Section 4 of the Act is different
from the right of a muslim woman like any other woman in the country to avail of the remedies
under Section 125 CrPC and such deprivement would make the Act unconstitutional, as there
is no nexus to deprive a muslim woman from availing of the remedies available under Section
125CrPC, notwithstanding the fact that the conditions precedent for availing of the said remedies
are satisfied.
The learned Solicitor General, who appeared for the Union of India, submitted that when a question of
maintenance arises which forms part of the personal law of a community, what is fair and reasonable
is a question of fact in that context. Under Section 3 of the Act, it is provided that a reasonable and fair
provision and maintenance to be made and paid by her former husband within the iddat period would
make it clear that it cannot be for life but would only be for a period of iddat and when that fact has
clearly been stated in the provision, the question of interpretation as to whether it is for life or for the
period of iddat would not arise. Challenge raised in this petition is dehors the personal law. Personal
law is a legitimate basis for discrimination, if at all, and, therefore, does not offend Article 14 of the
Constitution. If the legislature, as a matter of policy, wants to apply Section 125 CrPC to Muslims, it
could also be stated that the same legislature can, by implication, withdraw such application and make
some other provision in that regard. Parliament can amend Section 125 CrPC so as to exclude them
and apply personal law and the policy of Section 125 CrPC is not to create a right of maintenance
dehors the personal law. He further submitted that in Shah Banos case, it has been held that a divorced
woman is entitled to maintenance even after the iddat period from the husband and that is how
Parliament also understood the ratio of that decision. To overcome the ratio of the said decision, the
present Act has been enacted and Section 3(1)(a) is not in discord with the personal law.
Shri Y.H.Muchhala, learned Senior Advocate appearing for the All India Muslim Personal Law Board,
submitted that the main object of the Act is to undo the Shah Banos case. He submitted that this Court
has harzarded interpretation of an unfamiliar language in relation to religious tenets and such a course
is not safe as has been made clear by Aga Mahomed Jaffer Bindaneem vs. Koolsom Bee Bee & Ors.,
24 IA 196, particularly in relation to Suras 241 and 242 Chapter II, the Holy Quran.. He submitted
that in interpreting Section 3(1)(a) of the Act, the expressions provision and maintenance are clearly
the same and not different as has been held by some of the High Courts. He contended that the aim
of the Act is not to penalise the husband but to avoid vagrancy and in this context Section 4 of the
Act is good enough to take care of such a situation and he, after making reference to several works on
interpretation and religious thoughts as applicable to Muslims, submitted that social ethos of Muslim
society spreads a wider net to take care of a Muslim divorced wife and not at all dependent on the
husband. He adverted to the works of religious thoughts by Sir Syed Ahmad Khan and Bashir Ahmad,
published from Lahore in 1957 at p. 735. He also referred to the English translation of the Holy Quran
to explain the meaning of gift in Sura 241. In conclusion, he submitted that the interpretation to be
placed on the enactment should be in consonance with the Muslim personal law and also meet a
situation of vagrancy of a Muslim divorced wife even when there is a denial of the remedy provided
underSection 125 CrPC and such a course would not lead to vagrancy since provisions have been
made in the Act. This Court will have to bear in mind the social ethos of Muslims, which are different
and the enactment is consistent with law and justice.
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It was further contended on behalf of the respondents that the Parliament enacted the impugned Act,
respecting the personal law of muslims and that itself is a legitimate basis for making a differentiation;
that a separate law for a community on the basis of personal law applicable to such community, cannot
be held to be discriminatory; that the personal law is now being continued by a legislative enactment
and the entire policy behind the Act is not to confer a right of maintenance, unrelated to the personal
law; that the object of the Act itself was to preserve the personal law and prevent inroad into the same;
that the Act aims to prevent the vagaries and not to make a muslim woman, destitute and at the same
time, not to penalise the husband; that the impugned Act resolves all issues, bearing in mind the
personal law of muslim community and the fact that the benefits of Section 125 CrPC have not been
extended to muslim women, would not necessarily lead to a conclusion that there is no provision to
protect the muslim women from vagaries and from being a destitute; that therefore, the Act is not
invalid or unconstitutional.
On behalf of the All India Muslim Personal Law Board, certain other contentions have also been
advanced identical to those advanced by the other authorities and their submission is that the
interpretation placed on the Arabic word mata by this Court in Shah Banos case is incorrect and
submitted that the maintenance which includes the provision for residence during the iddat period is
the obligation of the husband but such provision should be construed synonymously with the religious
tenets and, so construed, the expression would only include the right of residence of a Muslim divorced
wife during iddat period and also during the extended period under Section 3(1)(a) of the Act and
thus reiterated various other contentions advanced on behalf of others and they have also referred to
several opinions expressed in various text books, such as, -
1. The Turjuman al-Quran by Maulana Abul Kalam Azad, translated into English by Dr. Syed
Abdul Latif;
2. Persian Translation of the Quran by Shah Waliullah Dahlavi
3. Al-Manar Commentary on the Quran (Arabic);
4. Al-Isaba by Ibne Hajar Asqualani [Part-2]; Siyar Alam-in-Nubla by Shamsuddin Mohd. Bin
Ahmed BinUsman Az-Zahbi;
5. Al-Maratu Bayn Al-Fiqha Wa Al Qanun by Dr. Mustafa As- Sabai;
6. Al-Jamil ahkam-il Al-Quran by Abu Abdullah Mohammad Bin Ahmed Al Ansari Al-Qurtubi;
7. Commentary on the Quran by Baidavi (Arabic);
8. Rooh-ul-Bayan (Arabic) by Ismail Haqqi Affendi;
9. Al Muhalla by Ibne Hazm (Arabic);
10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad abu Zuhra Darul Fikrul Arabi.
On the basis of the aforementioned text books, it is contended that the view taken in Shah Banos case
on the expression mata is not correct and the whole object of the enactment has been to nullify the
effect of the Shah Banos case so as to exclude the application of the provision ofSection 125 CrPC,
however, giving recognition to the personal law as stated in Sections 3 and 4 of the Act. As stated
earlier, the interpretation of the provisions will have to be made bearing in mind the social ethos of
the Muslim and there should not be erosion of the personal law.
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[On behalf of the Islamic Shariat Board, it is submitted that except for Mr. M. Asad and Dr. Mustafa-
as-Sabayi no author subscribed to the view that the Verse 241 of Chapter II of the Holy Quran casts
an obligation on a former husband to pay maintenance to the Muslim divorced wife beyond the iddat
period. It is submitted that Mr. M. Asads translation and commentary has been held to be unauthentic
and unreliable and has been subscribed by the Islamic World League only. It is submitted that Dr.
Mustafa-as-Sabayi is a well-known author in Arabic but his field was history and literature and not the
Muslim law. It was submitted that neither are they the theologists nor jurists in terms of Muslim law.
It is contended that this Court wrongly relied upon Verse 241 of Chapter II of the Holy Quran and the
decree in this regard is to be referred to Verse 236 of Chapter II which makes paying mata as obligatory
for such divorcees who were not touched before divorce and whose Mahr was not stipulated. It is
submitted that such divorcees do not have to observe iddat period and hence not entitled to any
maintenance. Thus the obligation for mata has been imposed which is a one time transaction related
to the capacity of the former husband. The impugned Act has no application to this type of case. On
the basis of certain texts, it is contended that the expression mata which according to different schools
of Muslim law, is obligatory only in typical case of a divorce before consummation to the woman
whose mahr was not stipulated and deals with obligatory rights of maintenance for observing iddat
period or for breast-feeding the child. Thereafter, various other contentions were raised on behalf of
the Islamic Shariat Board as to why the views expressed by different authors should not be accepted.
Dr. A.M.Singhvi, learned Senior Advocate who appeared for the National Commission for Women,
submitted that the interpretation placed by the decisions of the Gujarat, Bombay, Kerala and the minority
view of the Andhra Pradesh High Courts should be accepted by us. As regards the constitutional
validity of the Act, he submitted that if the interpretation of Section 3 of the Act as stated later in the
course of this judgment is not acceptable then the consequence would be that a Muslim divorced wife
is permanently rendered without remedy insofar as her former husband is concerned for the purpose
of her survival after the iddat period. Such relief is neither available under Section 125 CrPC nor is it
properly compensated by the provision made in Section 4 of the Act. He contended that the remedy
provided under Section 4 of the Act is illusory inasmuch as firstly, she cannot get sustenance from the
parties who were not only strangers to the marital relationship which led to divorce; secondly, wakf
boards would usually not have the means to support such destitute women since they are themselves
perennially starved of funds and thirdly, the potential legatees of a destitute woman would either be
too young or too old so as to be able to extend requisite support. Therefore, realistic appreciation
of the matter will have to be taken and this provision will have to be decided on the touch stone of
Articles 14, 15 and alsoArticle 21 of the Constitution and thus the denial of right to life and liberty
is exasperated by the fact that it operates oppressively, unequally and unreasonably only against one
class of women. While Section 5 of the Act makes the availability and applicability of the remedy as
provided bySection 125 CrPC dependent upon the whim, caprice, choice and option of the husband of
the Muslim divorcee who in the first place is sought to be excluded from the ambit of Section 3 of the
post-iddat period and, therefore, submitted that this provision will have to be held unconstitutional.
This Court in Shah Banos case held that although Muslim personal law limits the husbands liability to
provide maintenance for his divorced wife to the period of iddat, it does not contemplate a situation
envisaged by Section 125 CrPC of 1973. The Court held that it would not be incorrect or unjustified
to extend the above principle of Muslim Law to cases in which a divorced wife is unable to maintain
herself and, therefore, the Court came to the conclusion that if the divorced wife is able to maintain
herself the husbands liability ceases with the expiration of the period of iddat, but if she is unable to
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maintain herself after the period of iddat, she is entitled to recourse to Section 125 CrPC. This decision
having imposed obligations as to the liability of Muslim husband to pay maintenance to his divorced
wife, Parliament endorsed by the Act the right of a Muslim woman to be paid maintenance at the time
of divorce and to protect her rights.
The learned counsel have also raised certain incidental questions arising in these matters to the
following effect-
1) Whether the husband who had not complied with the orders passed prior to the enactments
and were in arrears of payments could escape from their obligation on the basis of the Act, or in
other words, whether the Act is retrospective in effect?
2) Whether Family Courts have jurisdiction to decide the issues under the Act?
3) What is the extent to which the Wakf Board is liable under the Act?
The learned counsel for the parties have elaborately argued on a very wide canvass. Since we are only
concerned in this Bench with the constitutional validity of the provisions of the Act, we will consider
only such questions as are germane to this aspect. We will decide only the question of constitutional
validity of the Act and relegate the matters when other issues arise to be dealt with by respective
Benches of this Court either in appeal or special leave petitions or writ petitions.
In interpreting the provisions where matrimonial relationship is involved, we have to consider the
social conditions prevalent in our society. In our society, whether they belong to the majority or
the minority group, what is apparent is that there exists a great disparity in the matter of economic
resourcefulness between a man and a woman. Our society is male dominated both economically and
socially and women are assigned, invariably, a dependant role, irrespective of the class of society to
which she belongs. A woman on her marriage very often, though highly educated, gives up her all
other avocations and entirely devotes herself to the welfare of the family, in particular she shares with
her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her
entire life a sacramental sacrifice of her individual self and is far too enormous to be measured in
terms of money. When a relationship of this nature breaks up, in what manner we could compensate
her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small
solace to say that such a woman should be compensated in terms of money towards her livelihood
and such a relief which partakes basic human rights to secure gender and social justice is universally
recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends
to provide a different kind of responsibility by passing on the same to those unconnected with the
matrimonial life such as the heirs who were likely to inherit the property from her or the wakf boards.
Such an approach appears to us to be a kind of distortion of the social facts. Solutions to such societal
problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and
decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be
decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial
or communal constraints. Bearing this aspect in mind, we have to interpret the provisions of the Act
in question.
Now it is necessary to analyse the provisions of the Act to understand the scope of the same. The
Preamble to the Act sets out that it is an Act to protect the rights of Muslim women who have been
divorced by, or have obtained divorce from, their husbands and to provide for matters connected
therewith or incidental thereto. A divorced woman is defined under Section 2(a) of the Act to mean
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a divorced woman who was married according to Muslim Law, and has been divorced by, or has
obtained divorce from her husband in accordance with Muslim Law; iddat period is defined under
Section 2(b) of the Act to mean, in the case of a divorced woman,-
(i) three menstrual courses after the date of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation; and
(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of
her child or the termination of her pregnancy whichever is earlier. Sections 3 and 4 of the Act are
the principal sections, which are under attack before us. Section 3 opens up with a non-obstante
clause overriding all other laws and provides that a divorced woman shall be entitled to -
(a) a reasonable and fair provision and maintenance to be made and paid to her within the
period of iddat by her former husband;
(b) where she maintains the children born to her before or after her divorce, a reasonable
provision and maintenance to be made and paid by her former husband for a period of
two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to Muslim Law; and
(d) all the properties given to her by her before or at the time of marriage or after the marriage
by her relatives, friends, husband and any relatives of the husband or his friends.
Where such reasonable and fair provision and maintenance or the amount of mahr or dower due
has not been made and paid or the properties referred to in clause (d) of sub-section (1) have not
been delivered to a divorced woman on her divorce, she or any one duly authorised by her may,
on her behalf, make an application to a Magistrate for an order for payment of such provision and
maintenance, mahr or dower or the delivery of properties, as the case may be. Rest of the provisions of
Section 3 of the Act may not be of much relevance, which are procedural in nature.
Section 4 of the Act provides that, with an overriding clause as to what is stated earlier in the Act or
in any other law for the time being in force, where the Magistrate is satisfied that a divorced woman
has not re-married and is not able to maintain herself after the iddat period, he may make an order
directing such of her relatives as would be entitled to inherit her property on her death according to
Muslim Law to pay such reasonable and fair maintenance to her as he may determine fit and proper,
having regard to the needs of the divorced woman, the standard of life enjoyed by her during her
marriage and the means of such relatives and such maintenance shall be payable by such relatives in
the proportions in which they would inherit her property and at such periods as he may specify in
his order. If any of the relatives do not have the necessary means to pay the same, the Magistrate may
order that the share of such relatives in the maintenance ordered by him be paid by such of the other
relatives as may appear to the Magistrate to have the means of paying the same in such proportions as
the Magistrate may think fit to order. Where a divorced woman is unable to maintain herself and she
has no relatives as mentioned in sub-section (1) or such relatives or any one of them has not enough
means to pay the maintenance ordered by the Magistrate or the other relatives have not the means
to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by
such other relatives under the second proviso to sub-section (1), the Magistrate may, by order direct
the State Wakf Board, functioning in the area in which the divorced woman resides, to pay such
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maintenance as determined by him as the case may be. It is, however, significant to note thatSection 4
of the Act refers only to payment of maintenance and does not touch upon the provision to be made
by the husband referred to in Section 3(1)(a) of the Act.
Section 5 of the Act provides for option to be governed by the provisions of Sections 125 to 128CrPC.
It lays down that if, on the date of the first hearing of the application under Section 3(2), a divorced
woman and her former husband declare, by affidavit or any other declaration in writing in such form as
may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions
of Sections 125 to 128 CrPC, and file such affidavit or declaration in the court hearing the application,
the Magistrate shall dispose of such application accordingly.
A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim woman
divorcee by putting them outside the scope of Section 125 CrPC as the divorced woman has been
defined as Muslim woman who was married according to Muslim law and has been divorced by or has
obtained divorce from her husband in accordance with the Muslim law. But the Act does not apply to
a Muslim woman whose marriage is solemnized either under the Indian Special Marriage Act, 1954 or
a Muslim woman whose marriage was dissolved either underIndian Divorce Act, 1969 or the Indian
Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim wives. The
maintenance under the Act is to be paid by the husband for the duration of the iddat period and this
obligation does not extend beyond the period of iddat. Once the relationship with the husband has
come to an end with the expiry of the iddat period, the responsibility devolves upon the relatives of the
divorcee. The Act follows Muslim personal law in determining which relatives are responsible under
which circumstances. If there are no relatives, or no relatives are able to support the divorcee, then the
Court can order the State Wakf Boards to pay the maintenance.
Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband, a
reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under
Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former husband has
not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered
the properties given to her before or at the time of marriage by her relatives, or friends, or the husband
or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass
an order directing the former husband to pay such reasonable and fair provision and maintenance to
the divorced woman as he may think fit and proper having regard to the needs of the divorced woman,
standard of life enjoyed by her during her marriage and means of her former husband. The judicial
enforceability of the Muslim divorced womans right to provision and maintenance under Section
(3)(1)(a) of the Act has been subjected to the condition of husband having sufficient means which,
strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during
the iddat period is unconditional and cannot be circumscribed by the financial means of the husband.
The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding
payment of maintenance to his erstwhile wife after divorce and the period of iddat.
A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to
a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that
the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word
provision indicates that something is provided in advance for meeting some needs. In other words,
at the time of divorce the Muslim husband is required to contemplate the future needs and make
preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may
—| 208 |—
include provision for her residence, her food, her cloths, and other articles. The expression within
should be read as during or for and this cannot be done because words cannot be construed contrary
to their meaning as the word within would mean on or before, not beyond and, therefore, it was held
that the Act would mean that on or before the expiration of the iddat period, the husband is bound to
make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it
by filing an application before the Magistrate as provided inSection 3(3) but no where the Parliament
has provided that reasonable and fair provision and maintenance is limited only for the iddat period
and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a
second time.
The important section in the Act is Section 3 which provides that divorced woman is entitled to obtain
from her former husband maintenance, provision and mahr, and to recover from his possession her
wedding presents and dowry and authorizes the magistrate to order payment or restoration of these
sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable
and fair provision and maintenance to be made and paid to her within the iddat period by her former
husband. The wordings of Section 3 of the Act appear to indicate that the husband has two separate
and distinct obligations : (1) to make a reasonable and fair provision for his divorced wife; and (2)
to provide maintenance for her. The emphasis of this section is not on the nature or duration of any
such provision or maintenance, but on the time by which an arrangement for payment of provision
and maintenance should be concluded, namely, within the iddat period. If the provisions are so read,
the Act would exclude from liability for post-iddat period maintenance to a man who has already
discharged his obligations of both reasonable and fair provision and maintenance by paying these
amounts in a lump sum to his wife, in addition to having paid his wifes mahr and restored her dowry
as per Section 3(1)(c) and3(1)(d) of the Act. Precisely, the point that arose for consideration in Shah
Banos case was that the husband has not made a reasonable and fair provision for his divorced wife
even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance
and he was, therefore, ordered to pay a specified sum monthly to her under Section 125 CrPC. This
position was available to Parliament on the date it enacted the law but even so, the provisions enacted
under the Act are a reasonable and fair provision and maintenance to be made and paid as provided
under Section 3(1)(a) of the Act and these expressions cover different things, firstly, by the use of
two different verbs to be made and paid to her within the iddat period, it is clear that a fair and
reasonable provision is to be made while maintenance is to be paid; secondly, Section 4of the Act,
which empowers the magistrate to issue an order for payment of maintenance to the divorced woman
against various of her relatives, contains no reference to provision. Obviously, the right to have a fair
and reasonable provision in her favour is a right enforceable only against the womans former husband,
and in addition to what he is obliged to pay as maintenance; thirdly, the words of the Holy Quran, as
translated by Yusuf Ali of mata as maintenance though may be incorrect and that other translations
employed the word provision, this Court in Shah Banos case dismissed this aspect by holding that it
is a distinction without a difference. Indeed, whether mata was rendered maintenance or provision,
there could be no pretence that the husband in Shah Banos case had provided anything at all by way
of mata to his divorced wife. The contention put forth on behalf of the other side is that a divorced
Muslim woman who is entitled to mata is only a single or one time transaction which does not mean
payment of maintenance continuously at all. This contention, apart from supporting the view that
the word provision inSection 3(1)(a) of the Act incorporates mata as a right of the divorced Muslim
woman distinct from and in addition to mahr and maintenance for the iddat period, also enables a
—| 209 |—
reasonable and fair provision and a reasonable and fair provision as provided under Section 3(3) of
the Act would be with reference to the needs of the divorced woman, the means of the husband, and
the standard of life the woman enjoyed during the marriage and there is no reason why such provision
could not take the form of the regular payment of alimony to the divorced woman, though it may look
ironical that the enactment intended to reverse the decision in Shah Banos case, actually codifies the
very rationale contained therein.
A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided
in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling
those who can do so to support those who are unable to support themselves and who have a normal
and legitimate claim to support is satisfied. If that is so, the argument of the petitioners that a different
scheme being provided under the Act which is equally or more beneficial on the interpretation placed
by us from the one provided under the Code of Criminal Procedure deprive them of their right loses
its significance. The object and scope of Section 125CrPC is to prevent vagrancy by compelling those
who are under an obligation to support those who are unable to support themselves and that object
being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.
Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted
and even otherwise, the Magistrate has been conferred with the power to make appropriate provision
for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC
would now be granted under the very Act itself. This being the position, the Act cannot be held to be
unconstitutional.
As on the date the Act came into force the law applicable to Muslim divorced women is as declared
by this Court in Shah Banos case. In this case to find out the personal law of Muslims with regard to
divorced womens rights, the starting point should be Shah Banos case and not the original texts or
any other material all the more so when varying versions as to the authenticity of the source are shown
to exist. Hence, we have refrained from referring to them in detail. That declaration was made after
considering the Holy Quran, and other commentaries or other texts. When a Constitution Bench of
this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material,
we do not think, it is open for us to re-examine that position and delve into a research to reach another
conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is
whether in the Act specific deviation has been made from the personal laws as declared by this Court
in Shah Banos case without mutilating its underlying ratio. We have carefully analysed the same and
come to the conclusion that the Act actually and in reality codifies what was stated in Shah Banos
case. The learned Solicitor General contended that what has been stated in the Objects and Reasons in
Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts
and the law in Shah Banos case and proceeded to find out the impact of the same on the Act. If the
language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in
enacting the law will not be of much materiality.
In Shah Banos case this Court has clearly explained as to the rationale behind Section 125 CrPC to make
provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy
or destitution on the part of a Muslim woman. The contention put forth on behalf of the Muslims
organisations who are interveners before us is that under the Act vagrancy or destitution is sought
to be avoided but not by punishing the erring husband, if at all, but by providing for maintenance
through others. If for any reason the interpretation placed by us on the language ofSections 3(1)(a)
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and 4 of the Act is not acceptable, we will have to examine the effect of the provisions as they stand,
that is, a Muslim woman will not be entitled to maintenance from her husband after the period of
iddat once the Talaq is pronounced and, if at all, thereafter maintenance could only be recovered
from the various persons mentioned in Section 4 or from the Wakf Board. This Court in Olga Tellis
v. Bombay Municipal Corporation, 1985(3) SCC 545, and Maneka Gandhi v. Union of India, 1978
(1) SCC 248, held that the concept of right to life and personal liberty guaranteed under Article 21
of the Constitution would include the right to live with dignity. Before the Act, a Muslim woman
who was divorced by her husband was granted a right to maintenance from her husband under the
provisions of Section 125 CrPC until she may re-marry and such a right, if deprived, would not be
reasonable, just and fair. Thus the provisions of the Act depriving the divoced Muslim women of
such a right to maintenance from her husband and providing for her maintenance to be paid by the
former husband only for the period of iddat and thereafter to make her run from pillar to post in
search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board
does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC. Such
deprivation of the divorced Muslim women of their right to maintenance from their former husbands
under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all
other women in India cannot be stated to have been effected by a reasonable, right, just and fair law
and, if these provisions are less beneficial than the provisions of Chapter IX of the Code of Criminal
Procedure, a divorced Muslim woman has obviously been unreasonably discriminated and got out of
the protection of the provisions of the general law as indicated under the Code which are available to
Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The
provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating
equality and equal protection of law to all persons otherwise similarly circumstanced and also violative
of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as
the Act would obviously apply to Muslim divorced women only and solely on the ground of their
belonging to the Muslim religion. It is well settled that on a rule of construction a given statute will
become ultra vires or unconstitutional and, therefore, void, whereas another construction which is
permissible, the statute remains effective and operative the court will prefer the latter on the ground
that Legislature does not intend to enact unconstitutional laws. We think, the latter interpretation
should be accepted and, therefore, the interpretation placed by us results in upholding the validity of
the Act. It is well settled that when by appropriate reading of an enactment the validity of the Act can
be upheld, such interpretation is accepted by courts and not the other way.
The learned counsel appearing for the Muslim organisations contended after referring to various
passages from the text books to which we have adverted to earlier to state that the law is very clear that
a divorced Muslim woman is entitled to maintenance only upto the stage of iddat and not thereafter.
What is to be provided by way of Mata is only a benevolent provision to be made in case of divorced
Muslim woman who is unable to maintain herself and that too by way of charity or kindness on the
part of her former husband and not as a result of her right flowing to the divorced wife. The effect of
various interpretations placed on Suras 241 and 242 of Chapter 2 of Holy Quran has been referred
to in Shah Banos case. Shah Banos case clearly enunciated what the present law would be. It made a
distinction between the provisions to be made and the maintenance to be paid. It was noticed that the
maintenance is payable only upto the stage of iddat and this provision is applicable in case of a normal
circumstances, while in case of a divorced Muslim woman who is unable to maintain herself, she is
entitled to get Mata. That is the basis on which the Bench of Five Judges of this Court interpreted
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the various texts and held so. If that is the legal position, we do not think, we can state that any other
position is possible nor are we to start on a clean slate after having forgotten the historical background
of the enactment. The enactment though purports to overcome the view expressed in Shah Banos case
in relation to a divorced Muslim woman getting something by way of maintenance in the nature of
Mata is indeed the statutorily recognised by making provision under the Act for the purpose of the
maintenance but also for provision. When these two expressions have been used by the enactment,
which obviously means that the Legislature did not intend to obliterate the meaning attributed to these
two expressions by this Court in Shah Banos case. Therefore, we are of the view that the contentions
advanced on behalf of the parties to the contrary cannot be sustained.
In Arab Ahemadhia Abdulla and etc vs. Arab Bail Mohmuna Saiyadbhai & Ors. etc., AIR 1988 (Guj.)
141; Ali vs. Sufaira, (1988) 3 Crimes 147; K. Kunhashed Hazi v. Amena, 1995 Crl.L.J. 3371;K. Zunaideen
v. Ameena Begum, (1998] II DMC 468; Karim Abdul Shaik v. Shenaz Karim Shaik, 2000 Cr.L.J. 3560
and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh & Anr., 1999 (3) Mh.L.J. 694, while
interpreting the provision of Sections 3(1)(a) and 4 of the Act, it is held that a divorced Muslim woman
is entitled to a fair and reasonable provision for her future being made by her former husband which
must include maintenance for future extending beyond the iddat period. It was held that the liability
of the former husband to make a reasonable and fair provision under Section 3(1)(a) of the Act is not
restricted only for the period of iddat but that divorced Muslim woman is entitled to a reasonable and
fair provision for her future being made by her former husband and also to maintenance being paid to
her for the iddat period. A lot of emphasis was laid on the words made and paid and were construed to
mean not only to make provision for the iddat period but also to make a reasonable and fair provision
for her future. A Full Bench of the Punjab and Haryana High Court in Kaka v. Hassan Bano & Anr.,
II (1998) DMC 85 (FB), has taken the view that under Section 3(1)(a) of the Act a divorced Muslim
woman can claim maintenance which is not restricted to iddat period. To the contrary it has been held
that it is not open to the wife to claim fair and reasonable provision for the future in addition to what
she had already received at the time of her divorce; that the liability of the husband is limited for the
period of iddat and thereafter if she is unable to maintain herself, she has to approach her relative or
Wakf Board, by majority decision in Umar Khan Bahamami v. Fathimnurisa, 1990 Cr.L.J. 1364; Abdul
Rashid v. Sultana Begum, 1992 Cr.L.J. 76; Abdul Haq v. Yasima Talat; 1998 Cr.L.J. 3433; Md. Marahim
v. Raiza Begum, 1993 (1) DMC 60. Thus preponderance of judicial opinion is in favour of what we
have concluded in the interpretation of Section 3 of the Act. The decisions of the High Courts referred
to herein that are contrary to our decision stand overruled.
While upholding the validity of the Act, we may sum up our conclusions:
1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced
wife which obviously includes her maintenance as well. Such a reasonable and fair provision
extending beyond the iddat period must be made by the husband within the iddat period in
terms of Section 3(1)(a) of the Act.
2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after
iddat period can proceed as provided under Section 4 of the Act against her relatives who are
liable to maintain her in proportion to the properties which they inherit on her death according
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to Muslim law from such divorced woman including her children and parents. If any of the
relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board
established under the Act to pay such maintenance.
4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
In the result, the writ petition Nos. 868/86, 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86 and
1281/86 challenging the validity of the provisions of the Act are dismissed.
All other matters where there are other questions raised, the same shall stand relegated for consideration
by appropriate Benches of this Court.
qqq
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RAMESH CHANDER KAUSHAL VERSUS VEENA KAUSHAL & ORS

Equivalent citations: 1978 AIR 1807, 1978 SCR (3) 782
(1978) 4 SCC 70
Ramesh Chander Kaushal

Vs.
Veena Kaushal & Ors.
Date of Judgment : 27/04/1978
We cannot help but observe that the current Indian ethos rightly regards the family and its stability
as basic to the strength of the social fabric and the erotic doctrine of ‘sip every flower and change
every hour’ and the philosophy of philandering self-fulfilment, unless combated on the militant basis
of gender justice and conditions of service, are fraught with catastrophic possibilities. All public
sector (why, private sector too) institutions, including the Airlines, must manifest, in their codes
of discipline, this consciousness of social justice and inner morality as essential to its life style.
Lascivious looseness of man or wife is an infectious disease and marks the beginning of the end of the
material and spiritual meaning of collective life. The roots of the rule of law lie deep in the collective
consciousness of a community and this sociological factor has a role to play in understanding
provisions like Section 125 Criminal Procedure Code which seek to inhibit neglect of women and
children, the old and the Infirm. A facet of this benignancy of Section 125 falls for study in the
present proceeding.
A final determination of a civil right by a civil court must prevail against a like decision by a criminal
court. But here two factors make the principle inapplicable.
Firstly, the direction by the civil court is not a final determination under the Hindu Adoptions and
Maintenance Act but an order pendente lite, Under Section 24 of the Hindu Marriage Act to pay the
expenses of the proceeding, and monthly during 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.
Secondly, this amount does not include the claim for maintenance of the children although the
order does advert to the fact that the respondent has their custody. This incidental direction is no
comprehensive adjudication.
The relevant portion of the section reads :
125. (i) If any person having sufficient means neglects or refuses to maintain
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or 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
—| 214 |—
same to such person as the Magistrate may from time to time direct.”
This provision is a measure of social justice and specially enacted to protect women and children and
falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that
sections of statutes calling for construction by Courts are not petrified print but vibrant words with
social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections
like women and children must inform interpretation if it has to have social relevance. So viewed, it
is possible to be selective in picking out that interpretation out of two alternatives which advance the
causethe cause of the derelicts.
The judgment would seem to indicate that once divorce is decreed the wife ceases to have any right
to claim maintenance and that such an impact can be brought about by an application Under
Section 127 of the Code. It is clear that this conclusion contradicts the express statutory provision.
The advocates on both sides agree that this is a patent error and further agree that the law may be
correctly stated and the contradiction with the statute eliminated.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION : Special Leave Petition (Criminal) No. 1268 of 1977.
From the Judgment and Order dated 5-9-1977 of the Delhi High Court in Criminal Revision No. 224
of 1977. S. T. Desai and R. Bana for the Petitioner. Y. M. Isser, S. Balakrishnan and M. K. D. Namboodri
for the Respondent.
The Order of the Court was delivered by KRISHNA IYER, J.-Social justice is not constitutional
claptrap but fighting faith which enlivens legislative texts with militant meaning. The points pressed
in the Special Leave Petition, which we negative, illustrate the functional relevance of social justice as
an aid to statutory interpretation.
The conjugal tribulations of Mrs. Veena, the respondent, who hopefully married Capt. Kaushal,
the petitioner, and bore two young children by him, form the tragic backdrop to this case. The wife
claimed that although her husband was affluent and once affectionate, his romantic tenderness
turned into flagellant tantrums after he took to the skies as pilot in the Indian Airlines Corporation.
Desertion, cruelty and break-up of family followed, that sombre scenario which, in its traumatic
frequency, flaring up even into macabre episodes consternates our urban societies. The offspring of
the young wedlock were not only two vernal innocents but two dismal litigations one for divorce, by
the husband, hurling charges of adultery, and the other for maintenance, by the wife, flinging charges
of affluent cruelty and diversion of affection after the Airlines assignment. These are versions, not
findings. We do not enter the distressing vicissitudes of this marital imbroglio since proceedings are
pending and incidental moralizing, unwittingly injuring one or the other party, are far from our intent
and outside the orbit of the present petition. Even so, we cannot help but observe that the current
Indian ethos rightly regards the family and its stability as basic to the strength of the social fabric and
the erotic doctrine of ‘sip every flower and change every hour’ and the philosophy of philandering
self-fulfilment, unless combated on the militant basis of gender justice and conditions of service, are
fraught with catastrophic possibilities. AR public sector (why, private sector too) institutions, including
the Airlines, must manifest, in their codes of discipline, this consciousness of social justice and inner
morality as essential to its life style. Lascivious looseness of man or wife is an infectious disease and
marks the beginning of the end of the material and spiritual meaning of collective life. The roots of
the rule of law lie deep in the collective consciousness of a community and this sociological factor has
—| 215 |—
a role to play in understanding provisions like Section 125 Criminal Procedure Code which seek to
inhibit neglect of women and children, the old and the infirm. A facet of this benignancy ofSection
125 falls for study in the present proceeding.
The husband sought divorce through the civil court and the wife claimed maintenance through the
criminal Court. As an interim measure, the District Court awarded maintenance and the High Court
fixed the rate at 400/- per mensem for the spouse as a provisional figure. Meanwhile, the magistrate,
on the evidence before him, ordered ex-parte, monthly maintenance at Rs. 1000/- for the mother and
two children together.
Sri S. T. Desai urged two points which merit reflection but meet with rejection. They are that : (i) a
civil court’s determination of the quantum is entitled to serious weight and the criminal court, in its
summary decision, fell into an error in ignoring the former; (ii) the awardable maximum for mother
and children, as a whole under Section 125 of the Code was Rs. 500/- having regard to the text of
the section. Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that a
final determination of a civil right by a civil court must prevail against a like decision by a criminal
court. But here two factors make the principle inapplicable. Firstly, the direction by the civil court is
not a final determination under the Hindu Adoptions and Maintenance Act but an order pendente
lite, under section 24 of the Hindu Marriage Act to pay the expenses of the proceeding, and monthly
during 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. Secondly, this amount does not include the
claim for maintenance of the children although the order does advert to the fact that the respondent
has their custody. This incidental direction is no comprehensive adjudication.
Therefore, barring marginal relevance for the Magistrate it does not bar his jurisdiction to award a
higher maintenance. We cannot, therefore, fault the Magistrate for giving Rs. 1000/- on this score.
The more important point turns on the construction of section 125, Crl. Procedure Code which is a
reincarnation of section 488 of the old Code except for the fact that parents also are brought into the
category of persons eligible for maintenance and legislative cognizance is taken of the devaluation of
the rupee and the escalation of living costs by raising the maximum allowance for maintenance from
Rs. 100/- to Rs. 500/-. The relevant portion of the section reads “125. (i) if any person having sufficient
means neglects or refuses to maintain-
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or 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.”
This provision is a measure of social justice and specially enacted to protect women and children and
falls within the constitutional sweep of Article 15(3) reinforced by Article
39. We have no doubt that sections of statutes calling for construction by Courts are not petrified
print but vibrant words with social functions to fulfil. The brooding presence of the constitutional
empathy for the weaker sections like women and children must inform interpretation if it has to have
—| 216 |—
social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two
alternatives which advance the cause he cause of the derelicts.
Sri Desai contends that section 125 of the Code has clearly fixed the ceiling of the monthly allowance
“for the maintenance of.... wife or such child, father or mother, at such monthly rate not exceeding five
hundred rupees in the whole”. Assuming the Parliament not to be guilty of redundancy it is argued that
the words “in the whole” mean that the total award- for wife, child, father or mother together cannot
exceed Rs. 500/-. We do not agree. Both precedentially and interpretatively the argument is specious.
The words which connote that the total, all together, cannot exceed Rs. 500/- namely “in the whole’
have been inherited from the previous Code although some ambiguity in the sense of the clause is
injected by these words. Clarity, unfortunately, has not been a strong point of our draftsmanship, at
least on occasions, and litigation has been engendered by such deficiency. Luckily, these words have
been subject to decisions which we are inclined to adopt as correct. A Full Bench of the Bombay High
Court in Prabhavati v. Sumatilal(1) has held that the sum specified is not compendious but separate.
Chagla C.J. explained the position correctly, if we may say so with respect :
“The suggestion that the jurisdiction of the Magistrate is limited to allowing one hundred rupees
in respect of maintenance of the wife and the children jointly is, in our opinion, an impossible
construction once it is accepted that the right of the wife and of each child is an independent right.
Such a construction would lead to extremely anomalous results.
If, for instance, a wife applies for maintenance for herself and for her children and the Magistrate allows
a maintenance of one hundred rupees, and if thereafter an (1) A.I.R. 1954 Bom. 546illegitimate child
were to come forward and to make an application for maintenance, the Magistrate having allowed an
allowance to her up to the maximum of his jurisdiction would be prevented from making any order
in favour of the illegitimate child. Or, a man may have more than one wife and he may have children
by each one of the wives. If the suggestion is that maintenance can be, allowed in a compendious
application to be made and such maintenance cannot exceed one hundred rupees for all the persons
applying for maintenance, then in a conceivable case a wife or a child may be deprived of maintenance
altogether under the section.
The intention of the Legislature was clear, and the intention was to cast an obligation upon a person
who neglects or refuses to maintain his wife or children to carry out his obligation towards his wife
or children. The obligation is separate and independent in relation to each one of the persons whom
he is bound in law to maintain. it is futile to suggest that in using the expression “in the whole”
the Legislature was limiting the jurisdiction of the Magistrate to passing an order in respect--Of all
the persons whom he is bound to maintain allowing them maintenance not exceeding a sum of one
hundred rupees.” Meeting the rival point of view Chief Justice Chagla held :
“. . . . we are unable to accept the view taken by the Division Bench that the jurisdiction of the Magistrate
is confined to making a compendious order allowing one hundred rupees in respect of all the persons
liable to be maintained.”
A recent ruling of the Calcutta High Court in Md. Bashir v. Noon Jahan Begum(1) has taken a similar
view reviewing the case law in India on the subject. We agree with Talukdar, J. who quotes Mr. Justice
Macardie:
“All law must progress or it must perish in the esteem of man.”
—| 217 |—
In short the decided cases have made a sociological approach to, conclude that each claimant for
maintenance, be he or she wife, child, father or mother, is independently entitled to maintenance up
to a maximum of Rs. 500/-. Indeed, an opposite conclusion may lead to absurdity. If a woman has a
dozen children and if the man neglects the whole lot and, in his addiction to a fresh mistress, neglects
even his parents and all these members of the family seek maintenance in one petition against the
delinquent respondent, can it be, that the Court cannot- (1) 1971 Crl.L.J. 547@553.
award more than Rs. 500/- for all of them together ? On the other hand if each filed a separate petition
there would be a maximum of Rs. 500/- each awarded by the Court. We cannot, therefore, agree to this
obvious jurisdictional inequity by reading a limitation of Rs. 500/- although what the section plainly
means is that the Court cannot grant more than Rs. 500/- for each one of the claimants. “In the whole”
in the context means taking all the items of maintenance together, not all the members of the family
put together. To our mind, this interpretation accords with social justice and semantics and, more than
all, is obvious :
“It is sometimes more important to emphasize the obvious than to elucidate the obscure.”
-Attributed to Oliver Wendell Holmes.
We admit the marginal obscurity in the diction, of the section but mind creativity in interpreting the
provision dispels all doubts. We own that Judges perform a creative function even in interpretation.
“All the cases in this book are examples, greater or smaller, of this function”.
writes Prof. Griffith in the Politics of the Judiciary.(1) The conclusion is inevitable, although the
argument to the contrary is ingenious, that the Magistrate did not exceed his powers while awarding
Rs. 1000/- for mother and children all together.
We have been told by Shri S. T. Desai that the divorce proceeding terminated adversely to his client
but an appeal is pending. If the appeal ends in divorce being decreed, the wife’s claim for maintenance
qua wife comes to an end and under section 127 of the Code the Magistrate has the power to make
alterations in the allowance order and cipherise it. We make the position clear lest confusion should
breed fresh litigation.
The special leave petition is dismissed.
ORDER (22-8-78) Noticing a patent error which has unfortunately crept in the above judgment in the
last paragraph thereof, counsel on both sides were given notice to appear and they were heard. Section
125(1), Explanation (b) of the Cr. P.C. reads “Wife” includes a woman who has been divorced by, or
has obtained a divorce from, her husband and has not remarried.” The last paragraph in the judgment
concludes with the statement “If the appeal ends in divorce being decreed, the wife’s claim for (1)
J.A.G. Griffith ‘The Politics of the Judiciary’ p. 175.
maintenance qua wife comes to an end and under section 127 of the Code, the Magistrate has the
power to make alterations in the allowance order and cipherise it.” The judgment would seem to
indicate that once divorce is decreed the wife ceases to have any right to, claim maintenance and
that such an impact can be brought about by an application u/S. 127 of the Code. It is clear that this
conclusion contradicts the express statutory provision. The advocates on both sides agree that this
is a patent error and further agree that the law may be correctly stated and the contradiction with
the statute eliminated. Therefore, we direct that in substitution of the last paragraph, the following
—| 218 |—
paragraph will be introduced. “We have been told by Shri S. T. Desai that the divorce proceeding has
terminated adversely to his client but that an appeal is pending: Whether the appeal ends in divorce
or no, the wife’s claim for maintenance qua wife under the definition contained in the Explanation (b)
to sec. 125 of the Code continues unless parties make adjustments and come to terms regarding the
quantum or the right to maintenance. We make the position clear that mere divorce does not end the
right to maintenance.”
We regret the error and pass this order under Art. 137 of the Constitution with the consent of both
sides so that the ends of justice and the law that this Court lays down may be vindicated.
S. R. Petition dismissed.
qqq
—| 219 |—
RAJNESH VERSUS NEHA AND ANOTHER

Bench : Hon’ble Mrs. Justice Indu Malhotra and Hon’ble Mr. Justice R. Subhash Reddy
Arising out of SLP (Cri.) No. 9503 of 2018. Arising from the Judgment and Order in Rajnesh v. Neha, 2018
SCC OnLine Bom 2181 [Bombay High Court, Nagpur Bench, WP (Cri.) No. 875 of 2015, dt. 14-8-2018]
Rajnesh . . Appellant
Vs.
Neha and Another . . Respondents
Decided on November 4, 2020
A. Constitution of India — Preamble and Arts. 39, 15(3} and 142 — Maintenance to wife, children
and parents — Overlapping statutes — Remedy of maintenance in both secular laws and personal
laws — Objective and manner of interpretation — Held, there is a need for framing guidelines under
Art. 142 of the Constitution laying down uniform and consistent standards and for ensuring timely
disposal of applications seeking maintenance under all the applicable statutes — Directions issued
accordingly (see Shortnotes B to I) — Rationale for, explained
— Conflicting orders resulting from overlapping jurisdiction — Simultaneous operation of
statutes would lead to multiplicity of proceedings and conflicting orders — This process requires to
be streamlined so that the respondent husband is not obligated to comply with successive orders of
maintenance passed under different enactments
— No inconsistency though different statutes have distinct objectives — There is no inconsistency
between CrPC and the Hindu Adoptions and Maintenance Act, 1956 (HAMA) and both can stand
together — Though there are different enactments providing for maintenance, each enactment
provides an independent and distinct remedy framed with a specific object and purpose — Provision
of maintenance in secular laws like the Special Marriage Act, 1954 (SMA), S. 125 CrPC and the
Protection of Women from Domestic Violence Act, 2005 (the DV Act), are irrespective of religious
community to which they belong and apart from other remedies provided in personal laws like
dissolution of marriage or restitution of conjugal rights, etc.
— Constitutional objective — Remedy of maintenance is a measure of social justice as envisaged
under the Constitution to prevent wives and children from falling into destitution and vagrancy —
Preamble and Arts. 39 and 15(3) of the Constitution envisage social justice and positive State action
for the empowerment of women and children
B. Family and Personal Laws — Maintenance proceedings — Overlapping jurisdictions under various
statutes — Rights and duties of litigants, and approach and duty of court while re-adjudicating and
varying previous orders passed under different statutes — Clarified, and necessary directions issued
— Simultaneous proceedings and re-adjudication of issue of maintenance considering distinct
scope of different statutes is permissible — A wife can make a claim for maintenance under different
statutes — There is no bar to seek maintenance both under the DV Act and S. 125 CrPC, or under
HMA — The mere fact that two proceedings were initiated by a party, would not imply that one
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would have to be adjourned sine die — There is a distinction in the scope and power exercised by
the Magistrate under S. 125 CrPC and the DV Act — An order passed in a maintenance proceedings
would not debar re-adjudication of the issue of maintenance in any other proceeding — Proceedings
under S. 125 CrPC are summary in nature, and are intended to provide a speedy remedy to the wife
— Any order passed under S. 125 CrPC by compromise or otherwise would not foreclose the remedy
under S. 18 of the HAMA — Maintenance granted to an aggrieved person under the DV Act, would
be in addition to an order of maintenance under S. 125 CrPC, or under the HMA
— Disclosure as to award of maintenance in any other proceeding mandatory — If maintenance
is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose
the same in a subsequent proceeding for maintenance, which may be filed under another enactment
— For instance while granting relief under DV Act, the Magistrate has to consider if any similar relief
has been obtained by aggrieved person — The applicant shall disclose the previous maintenance
proceeding, and the orders passed therein
— Modification or variation of previous order — If the order passed in the previous proceeding
requires any modification or variation, the party would be required to move the court concerned
in the previous proceeding — So, for instance once an order for permanent alimony under HMA is
passed, same could be modified by the same court by exercising its power under S. 25(2) of the HMA
and an application under S. 125 CrPC would be treated as an application under S. 25(2) of the HMA
and be disposed of accordingly
— Adjustment or set-off, permissible — Though the wife can simultaneously claim maintenance
under the different enactments, it would be inequitable to direct husband to pay the maintenance
awarded in each of the said proceedings, independent of the relief granted in a previous proceeding
— Adjustment is permissible and the adjustment can be allowed of the lower amount against the
higher amount — The court would take into consideration the maintenance already awarded in the
previous proceeding, and grant an adjustment or set-off of the said amount
— While deciding quantum of maintenance in subsequent proceeding, civil court/Family Court shall
take into account maintenance awarded in any previously instituted proceeding, and determine
the maintenance payable to the claimant — If Magistrate awards any further amount over and
above the maintenance already awarded in other proceedings, he has to record reasons in writing
for the same — Magistrate cannot ignore maintenance awarded in other legal proceedings — Hindu
Adoptions and Maintenance Act, 1956 — S. 18 — Criminal Procedure Code, 1973, S. 125
Held :
Issue of overlapping jurisdiction
The following directions are issued in exercise of powers under Article 142 of the Constitution : To
overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different
proceedings, it has become necessary to issue directions in this regard, so that there is uniformity in
the practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country.
It is directed that:
(i) Where successive claims for maintenance are made by a party under different statutes, the court
would consider an adjustment or set-off, of the amount awarded in the previous proceeding(s),
while determining whether any further amount is to be awarded in the subsequent proceeding.
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(ii) It is made mandatory for the applicant to disclose the previous proceeding and the orders passed
therein, in the subsequent proceeding.
(iii) If the order passed in the previous proceeding(s) requires any modification or variation, it would
be required to be done in the same proceeding.
C. Family and Personal Laws — Maintenance proceedings under various statutes, including interim
maintenance proceedings — Objective assessment and expeditious disposal of applications —
Directions and clarifications issued with respect to manner in which responsible pleadings are to
be made and particulars to be provided, including affidavits of disclosure of assets and liabilities as
per Enclosures I, II and III appended with this judgment; availability of marriage counsellors; for
expeditious disposal of the applications; and incidental and related issues
— Streamlining the procedure of pleadings during interim maintenance is necessary — Parties
often submit scanty materials, incorrect details, supress vital information and conceal actual income
— Applications for maintenance remain pending for several years because of docket pressure,
adjournments and enormous time taken for completion of pleadings at interim stage itself, etc.
— Marriage counsellors — Given the large and growing percentage of matrimonial litigation, a
professional Marriage Counsellor must be made available in every Family Court — If the endeavour
for settlement of disputes is unsuccessful, the Family Court would proceed with the matter on merits
— Concise application — Application claiming maintenance must be a concise application
accompanied with an affidavit of disclosure of assets as per annexed in Enclosures I, II and III of the
judgment — The court in its discretion may issue necessary directions for modification of format of
affidavit if exigencies require or more information is required
— Affidavit of disclosure of assets and liabilities — The Affidavit of Disclosure of Assets and
Liabilities annexed as Enclosures I, II and III of the judgment, as may be applicable, shall be filed
by both parties in all maintenance proceedings, including pending proceedings before the Family
Court/District Court/Magistrates Court concerned, as the case may be, throughout the country — It
must be filed to enable court to make an objective assessment of the quantum of interim maintenance
— Such affidavit should be filed within a maximum period of four weeks — The courts may not grant
more than two opportunities for submission of such affidavit
— Reply-affidavit — If the respondent delays in filing the reply with the affidavit, and seeks
more than two adjournments for this purpose, the court may consider exercising the power to strike
off the defence of the respondent, if the conduct is found to be wilful and contumacious in delaying
the proceedings — On the failure to file the affidavit within the prescribed time, the Family Court
may proceed to decide the application for maintenance on basis of the affidavit filed by the applicant
and the pleadings on record
— Disputes with regard to affidavit — Aggrieved party may seek permission of the court to
serve interrogatories, and seek production of relevant documents from the opposite party under Or.
11 CPC — On filing of the affidavit, the court may invoke the provisions of Or. 10 CPC or S. 165 or
S. 106 of the Evidence Act, 1872, if it considers it necessary to do so
— Amended/supplementary affidavit — If during the course of proceedings, there is a change
in the financial status of any party, or there is a change of any relevant circumstances, or if some
new information comes to light, the party may submit an amended/supplementary affidavit, which
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would be considered bv the court at the time of final determination

— Responsible pleadings should be filed — If false statements and misrepresentations are made, the
court may consider initiation of proceeding under S. 340 CrPC, and for contempt of court
— Exemption from filing affidavit — In case the parties belong to the economically weaker
sections (EWS), or are living below the poverty line (BPL), or are casual labourers, the requirement
of filing the affidavit would be dispensed with
— Reasoned order within six months of affidavit — Family Court/District Court/Magistrate’s
Court concerned must make an endeavour to decide the IA for interim maintenance by a reasoned
order, within a period of four to six months at the latest, after the Affidavits of Disclosure have been
filed before the court — Evidence Act, 1872 — Ss. 165 and 106 — Civil Procedure Code, 1908, S. 11
and Or. 10 — Criminal Procedure Code, 1973, S. 340
Held :
Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities to
be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in exercise
of our powers under Article 136 read with Article 142 of the Constitution:
(a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and III of this
judgment, as may be applicable, shall be filed by the parties in all maintenance proceedings,
including pending proceedings before the Family Court/District Court/Magistrate’s Court
concerned, as the case may be, throughout the country;
(b) The applicant making the claim for maintenance will be required to file a concise application
accompanied with the Affidavit of Disclosure of Assets;
(c) The respondent must submit the reply along with the Affidavit of Disclosure within a maximum
period of four weeks. The courts may not grant more than two opportunities for submission of
the Affidavit of Disclosure of Assets and Liabilities to the respondent. If the respondent delays
in filing the reply with the affidavit, and seeks more than two adjournments for this purpose,
the court may consider exercising the power to strike off the defence of the respondent, if the
conduct is found to be wilful and contumacious in delaying the proceedings. On the failure
to file the affidavit within the prescribed time, the Family Court may proceed to decide the
application for maintenance on basis of the affidavit filed by the applicant and the pleadings on
record;
(d) The above format may be modified by the court concerned, if the exigencies of a case require
the same. It would be left to the judicial discretion of the court concerned to issue necessary
directions in this regard.
(e) If apart from the information contained in the Affidavits of Disclosure, any further information
is required, the court concerned may pass appropriate orders in respect thereof.
(f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure, the
aggrieved party may seek permission of the court to serve interrogatories, and seek production
of relevant documents from the opposite party under Order 11 CPC. On filing of the affidavit,
the court may invoke the provisions of Order 10 CPC or Section 165 of the Evidence Act, 1872,
if it considers it necessary to do so. The income of one party is often not within the knowledge of
—| 223 |—
the other spouse. The court may invoke Section 106 of the Evidence Act, 1872 if necessary, since
the income, assets and liabilities of the spouse are within the personal knowledge of the party
concerned.
(g) If during the course of proceedings, there is a change in the financial status of any party, or there
is a change of any relevant circumstances, or if some new information comes to light, the party
may submit an amended/supplementary affidavit, which would be considered by the court at
the time of final determination.
(h) The pleadings made in the applications for maintenance and replies filed should be responsible
pleadings; if false statements and misrepresentations are made, the court may consider initiation
of proceeding under Section 340 CrPC, and for contempt of court.
(i) In case the parties belong to the economically weaker sections (“EWS”), or are living below the
poverty line (“BPL”), or are casual labourers, the requirement of filing the affidavit would be
dispensed with.
(j) The Family Court/District Court/Magistrate’s Court concerned must make an endeavour to
decide the IA for interim maintenance by a reasoned order, within a period of four to six months
at the latest, after the Affidavits of Disclosure have been filed before the court.
(k) A professional Marriage Counsellor must be made available in every Family Court.
The above directions are issued in exercise of powers under Article 142 of the Constitution : The
Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this judgment,
as may be applicable, shall be filed by both parties in all maintenance proceedings, including pending
proceedings before the Family Court/District Court/Magistrates Court concerned, as the case may
be, throughout the country.
D. Family and Personal Laws — Determination of permanent alimony — Factors to be considered,
including provision for adequate child support — Enumerated (non-exhaustively)
— Duration of marriage — Duration of the marriage is a relevant factor for determining whether
permanent alimony has to be paid or not — In contemporary society, where several marriages do
not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay
permanent alimony to the applicant for the rest of her life
— Parties may lead oral and documentary evidence with respect to income, expenditure, standard
of living, etc. before the court concerned, for fixing the permanent alimony payable to the spouse—
Marriage expenses of children — Provision for grant of reasonable expenses for the marriage of
children must be made at the time of determining permanent alimony, where the custody is with
the wife — The expenses would be determined by taking into account the financial position of the
husband and the customs of the family
— Trust funds/investments — If there are any trust funds/investments created by any spouse/
grandparents in favour of the children, this would also be taken into consideration while deciding
the final child support
Held :
Parties may lead oral and documentary evidence with respect to income, expenditure, standard of
living, etc. before the court concerned, for fixing the permanent alimony payable to the spouse.
—| 224 |—
In contemporary society, where several marriages do not last for a reasonable length of time, it may
be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest
of her life. The duration of the marriage would be a relevant factor to be taken into consideration for
determining the permanent alimony to be paid.
Provision for grant of reasonable expenses for the marriage of children must be made at the time
of determining permanent alimony, where the custody is with the wife. The expenses would be
determined by taking into account the financial position of the husband and the customs of the family.
If there are any trust funds/investments created by any spouse/grandparents in favour of the children,
this would also be taken into consideration while deciding the final child support.
E. Family and Personal Laws — Quantum of maintenance — Determination of — Factors and
criteria, enumerated — Clarified that factors and criteria enumerated are not exhaustive and the
court concerned may exercise its discretion to consider any other factor(s) which may be necessary
or of relevance in the facts and circumstances of a case
— Balance — There is no straitjacket formula for fixing quantum of maintenance — A careful and
just balance must be drawn between all relevant factors — The maintenance amount awarded must
be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the
wife should neither be so extravagant which becomes oppressive and unbearable for the respondent,
nor should it be so meagre that it drives the wife to penury — The sufficiency of the quantum has to
be adjudged so that the wife is able to maintain herself with reasonable comfort — Sustenance does
not mean, and cannot be allowed to mean mere survival — The object behind right to maintenance
is to ensure that the dependent spouse is not reduced to destitution or vagrancy on account of the
failure of the marriage, and not as a punishment to the other spouse — S. 23 of the HAMA provides
statutory guidance with respect to the criteria for determining the quantum of maintenance
— Financial status and reasonable needs of applicant — It is no answer to a claim of maintenance
that the wife is educated and could support herself — The court must take into consideration the
status of the parties and the capacity of the spouse to pay for her or his support — No doubt it is
relevant as to whether the applicant is educated and professionally qualified and has independent
source of income or not — But the court has to see whether the income is sufficient to enable her
to maintain the same standard of living as she was accustomed to in her matrimonial home [S.
20(2) of the DV Act] — The provisions for food, clothing, shelter, education, medical attendance and
treatment, etc. of the applicant are relevant factors for determining maintenance
— Age of parties and employability and reasons why wife sacrificed her employment
opportunities, are relevant — The court should find out whether the applicant was employed prior to
her marriage and/or was working during the subsistence of the marriage or was required to sacrifice
her employment opportunities for nurturing the family, child rearing, and looking after adult
members of the family — This is of particular relevance in contemporary society, given the highly
competitive industry standards, the separated wife would be required to undergo fresh training to
acquire marketable skills and retrain herself to secure a job in the paid workforce to rehabilitate
herself — With advancement of age, it would be difficult for a dependent wife to get an easy entry
into the workforce after a break of several years
— Duration of marriage — In a marriage of long duration, where parties have endured the
—| 225 |—
relationship for several years, it would be a relevant factor to be taken into consideration
— Reasonable costs of litigation for a non-working wife should be considered by the court —
The non-applicant has to defray the cost of litigation
— Financial status and liabilities of non-applicant and higher obligation of husband — The
obligation of the husband to provide maintenance stands on a higher pedestal than the wife — If the
wife is earning, it cannot operate as a bar from being awarded maintenance by the husband
— Plea that the husband does not possess any source of income ipso facto does not absolve him
of his moral duty to maintain his wife if he is able-bodied and has educational qualifications
— The onus is on the husband to establish with necessary material that there are sufficient
grounds to show that he is unable to maintain trie family, and discharge his legal obligations for
reasons beyond his control — If the husband does not disclose the exact amount of his income, an
adverse inference may be drawn by the court — The financial capacity of the husband, his actual
income, reasonable expenses for his own maintenance, and dependent family members whom he is
obliged to maintain under the law, liabilities if any, would be required to be taken into consideration,
to arrive at the appropriate quantum of maintenance to be paid — The court must have due regard
to the standard of living of the husband, as well as the spiralling inflation rates and high costs of
living
— Right to residence — The Magistrate may pass a residence order inter alia directing the
respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed
by her in the “shared household” — S. 2(s) r/w Ss. 17 and 19 of the DV Act entitles a woman to the
right of residence in a shared household, irrespective of her having any legal interest in the same (see
Shortnote M on meaning of “shared household”)
— Maintenance of minor children — Living expenses of the child would include expenses for
food, clothing, residence, medical expenses, education of children — Extra coaching classes or any
other vocational training courses to complement the basic education must be factored in, while
awarding child support — It should be a reasonable amount to be awarded for extracurricular/
coaching classes, and not an overly extravagant amount which may be claimed
— Educational expenses of children — Education expenses of the children must be normally
borne by the father — If the wife is working and earning sufficiently, the expenses may be shared
proportionately between the parties
— Serious disability or ill health — Serious disability or ill health of a spouse, child/children
from the marriage/dependent relative who require constant care and recurrent expenditure, would
also be a relevant consideration while quantifying maintenance
— What is not relevant — The financial position of parents of wife is not material for determining
the quantum of maintenance — Crimes Against Women and Children — Protection of Women from
Domestic Violence Act, 2005, Ss. 20(2) and 2(s) r/w Ss. 17 and 19
Held :
Criteria for determining quantum of maintenance — No straitjacket formula
The objective of granting interim/permanent alimony is to ensure that the dependent spouse is not
reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment
—| 226 |—
to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be
awarded.
The factors which would weigh with the court inter alia are the status of the parties; reasonable needs
of the wife and dependent children; whether the applicant is educated and professionally qualified;
whether the applicant has any independent source of income; whether the income is sufficient to
enable her to maintain the same standard of living as she was accustomed to in her matrimonial
home; whether the applicant was employed prior to her marriage; whether she was working during the
subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities
for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs
of litigation for a non -working wife.
Jasbir Kaur Sehgal v. District Judge, Dehradun, (1997) 7 SCC 7; Vinny Parmvir Parmar v. Parmvir
Parmar, (2011) 13 SCC 112 : (2012) 3 SCC (Civ) 290, relied on
The financial position of the parents of the applicant wife would not be material while determining the
quantum of maintenance. An order of interim maintenance is conditional on the circumstance that
the wife or husband who makes a claim has no independent income sufficient for her or his support. It
is no answer to a claim of maintenance that the wife is educated and could support herself. The court
must take into consideration the status of the parties and the capacity of the spouse to pay for her or
his support. Maintenance is dependent upon factual situations; the court should mould the claim for
maintenance based on various factors brought before it.
Manish Jain v. Akanksha Jain, (2017) 15 SCC 801 : (2018) 2 SCC (Civ) 712, relied on
On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for
his own maintenance, and dependent family members whom he is obliged to maintain under the law,
liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum
of maintenance to be paid. The court must have due regard to the standard of living of the husband, as
well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not
possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if
he is able-bodied and has educational qualifications.
Reema Saikan v. Sumer Singh Saikan, (2019) 12 SCC 303 : (2018) 5 SCC (Civ) 596 : (2019) 4 SCC (Cri)
339, relied on
A careful and just balance must be drawn between all relevant factors. The test for determination
of maintenance in matrimonial disputes depends on the financial status of the respondent, and the
standard of living that the applicant was accustomed to in her matrimonial home. The maintenance
amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance
awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for
the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the
quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.
Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356, relied on
Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining the
quantum of maintenance. Section 23(2) of the HAMA provides the following factors which may be
taken into consideration : (i) position and status of the parties, {ii) reasonable wants of the claimant,
(iii) if the petitioner/claimant is living separately, the justification for the same, (iv) value of the
—| 227 |—
claimant’s property and any income derived from such property, (v) income from claimant’s own
earning or from any other source.
Section 20(2) of the DV Act provides that the monetary relief granted to the aggrieved woman and/or
the children must be adequate, fair, reasonable, and consistent with the standard of living to which the
aggrieved woman was accustomed to in her matrimonial home.
Factors for determining maintenance
The following factors have been laid down for determining maintenance:
1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in the
matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and treatment, etc. of the
applicant.
8. Payment capacity of the non-applicant.
9. Some guesswork is not ruled out while estimating the income of the non-applicant when all the
sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded under Section 125 CrPC is adjustable against the amount awarded under
Section 24 of the Act.
Bharat Hegde v. Saroj Hegde, 2007 SCC OnLine Del 622, approved
Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also be
relevant for determining the quantum of maintenance payable:
(a) Age and employment of parties
In a marriage of long duration, where parties have endured the relationship for several years, it
would be a relevant factor to be taken into consideration. On termination of the relationship, if the
wife is educated and professionally qualified, but had to give up her employment opportunities
to look after the needs of the family being the primary caregiver to the minor children, and the
elder members of the family, this factor would be required to be given due importance. This is of
particular relevance in contemporary society, given the highly competitive industry standards,
the separated wife would be required to undergo fresh training to acquire marketable skills and
retrain herself to secure a job in the paid workforce to rehabilitate herself. With advancement of
age, it would be difficult for a dependent wife to get an easy entry into the workforce after a break
of several years.
(b) Right to residence — Shared household
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Section 19(l)(f) of the DV Act provides that the Magistrate may pass a residence order inter alia
directing the respondent to secure the same level of alternate accommodation for the aggrieved
woman as enjoyed by her in the shared household. While passing such an order, the Magistrate
may direct the respondent to pay the rent and other payments, having regard to the financial
needs and resources of the parties.
Section 2(s) read with Sections 17 and 19 of the DV Act entitles a woman to the right of
residence in a shared household, irrespective of her having any legal interest in the same. There
is no requirement of law that the husband should be a member of the joint family, or that the
household must belong to the joint family, in which he or the aggrieved woman has any right,
title or interest. The shared household may not necessarily be owned or tenanted by the husband
singly or jointly.
Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, relied on
(c) Where wife is earning some income — Obligation of husband to provide maintenance is higher
The obligation of the husband to provide maintenance stands on a higher pedestal than the
wife. Thus, the courts have held that if the wife is earning, it cannot operate as a bar from being
awarded maintenance by the husband. In fact, furthermore, merely because the wife is capable
of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family
Court. The court has to determine whether the income of the wife is sufficient to enable her
to maintain herself in accordance with the lifestyle of her husband in the matrimonial home.
Sustenance does not mean, and cannot be allowed to mean mere survival.
(d) Presumption — Adverse inference against husband when permissible
An able-bodied husband must be presumed to be capable of earning sufficient money to maintain
his wife and children, and cannot contend that he is not in a position to earn sufficiently to
maintain his family. The onus is on the husband to establish with necessary material that there
are sufficient grounds to show that he is unable to maintain the family, and discharge his legal
obligations for reasons beyond his control. If the husband does not disclose the exact amount of
his income, an adverse inference may be drawn by the court.
(e) Maintenance of minor children
The living expenses of the child would include expenses for food, clothing, residence, medical
expenses, education of children. Extra coaching classes or any other vocational training courses
to complement the basic education must be factored in, while awarding child support. Albeit, it
should be a reasonable amount to be awarded for extracurricular/coaching classes, and not an
overly extravagant amount which may be claimed.
Education expenses of the children must be normally borne by the father. If the wife is working
and earning sufficiently, the expenses may be shared proportionately between the parties.
(f) Serious disability or ill health
Serious disability or ill health of a spouse, child/children from the marriage/dependent relative
who require constant care and recurrent expenditure, would also be a relevant consideration
while quantifying maintenance.
—| 229 |—
The following directions are issued in exercise of powers under Article 142 of the Constitution
: For determining the quantum of maintenance payable to an applicant, the court shall take
into account the criteria enumerated in Part B-III (contained in paras 77 to 93, and also set out
above) of the judgment. The factors are however not exhaustive, and the court concerned may
exercise its discretion to consider any other factor(s) which may be necessary or of relevance in
the facts and circumstances of a case.
F. Family and Personal Laws — Date from which maintenance is to be awarded — Held, date of filing
of application must always be regarded as the starting point for grant of maintenance — Further,
held, even though a judicial discretion is conferred upon court to grant maintenance either from the
date of application or from the date of the order in S. 125(2) CrPC, it would be appropriate to grant
maintenance from the date of application in all cases, including S. 125 CrPC
— Rationale for, explained
— Significant delay in disposal in applications for interim maintenance — The period during
which the maintenance proceedings remained pending is not within the control of the applicant
— Therefore, it would be in the interest of justice and fair play that maintenance is awarded
from date of application — Where a litigation is prolonged, either on account of the conduct of the
opposite party, or due to the heavy docket in courts, or for unavoidable reasons, it would be unjust
and contrary to the object of the provision, to provide maintenance from the date of the order
— Social justice objective of maintenance should not be defeated — While dealing with the
application of a destitute wife or hapless children or parents, the court is dealing with the marginalised
sections of the society — Therefore, it becomes the bounden duty of the courts to advance the cause
of the social justice — Financial constraints of a dependent spouse hampers their capacity to be
effectively represented before the court — When legislature has provided summary, quick and
comparatively inexpensive remedy, maintenance should be awarded from date of application to
prevent a dependant from being reduced to destitution and vagrancy
— Absence of uniform regime — There is a vast variance in the practice adopted by the Family
Courts in the country, with respect to the date from which maintenance must be awarded — There
is no provision in the HMA or the DV Act as to date from which maintenance is to be awarded
— S. 125(2) CrPC is the only statutory provision which provides that the Magistrate may award
maintenance either from the date of the order, or from the date of application — It has therefore
become necessary to issue directions to bring about uniformity and consistency in the orders passed
by all courts, by directing that maintenance be awarded from the date on which the application was
made before the court concerned — Criminal Procedure Code, 1973, S. 125(2)
G. Criminal Procedure Code, 1973 — S. 125 — Date from which maintenance is to be awarded
— From date of filing application — Held, even though a judicial discretion is conferred upon the
court to grant maintenance either from the date of application or from the date of the order in S.
125(2) CrPC, it would be appropriate to grant maintenance from the date of application in all cases,
including S. 125 CrPC
Held :
Date from which maintenance to be awarded
—| 230 |—
There is no provision in the HMA with respect to the date from which an order of maintenance may
be made effective. Similarly, Section 12 of the DV Act does not provide the date from which the
maintenance is to be awarded. Section 125(2) CrPC is the only statutory provision which provides
that the Magistrate may award maintenance either from the date of the order, or from the date of
application.
K. Sivaram v. K. Mangaiamba, 1989 SCC OnLine AP 60 : (1989) 1 AP U 604, referred to
In the absence of a uniform regime, there is a vast variance in the practice adopted by the Family Courts
in the country, with respect to the date from which maintenance must be awarded. The divergent
views taken by the Family Courts are : first, from the date on which the application for maintenance
was filed; second, the date of the order granting maintenance; third, the date on which the summons
was served upon the respondent.
Maintenance has to be a warded from date of application
The view that maintenance ought to be granted from the date when the application was made, is based
on the rationale that the primary object of maintenance laws is to protect a deserted wife and dependent
children from destitution and vagrancy. If maintenance is not paid from the date of application, the
party seeking maintenance would be deprived of sustenance, owing to the time taken for disposal of
the application, which often runs into several years.
The legislature intended to provide a summary, quick and comparatively inexpensive remedy to the
neglected person. Where a litigation is prolonged, either on account of the conduct of the opposite
party, or due to the heavy docket in courts, or for unavoidable reasons, it would be unjust and contrary
to the object of the provision, to provide maintenance from the date of the order.
Susmita Mohantyv. Rabindra Nath Sahu, (1996) 1 OLR 361, approved
Even though the decision to award maintenance either from the date of application, or from the date
of order, was within the discretion of the court, it would be appropriate to grant maintenance from the
date of application.
Kanhu Charan Jena v. Nirmala Jena, 2000 SCC OnLine Ori 217 : 2001 Cri LJ 879; Arun Kumar Nayak
v. Urmila Jena, 2010 SCC OnLine Ori 30 : (2010) 93 AIC 726; Krishna v. Dharam Raj, 1991 SCC
OnLine MP 6, approved
The law governing payment of maintenance under Section 125 CrPC from the date of application,
was extended to HAMA. The Court held that the date of application should always be regarded as the
starting point for payment of maintenance.
(Para 100)
Ganga Prasad Srivastava v. Addt. District Judge, Gonda, 2019 SCC OnLine All 5428; Lavtesh Shukla
v. Rukmani, 2019 SCC OnLine Del 11709, approved
There are divergent views of different High Courts on the date from which maintenance must be
awarded. Even though a judicial discretion is conferred upon the court to grant maintenance either
from the date of application or from the date of the order in Section 125(2) CrPC, it would be
appropriate to grant maintenance
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from the date of application in all cases, including Section 125 CrPC. In the practical working of
the provisions relating to maintenance, there is significant delay in disposal of the applications for
interim maintenance for years on end. It would therefore be in the interests of justice and fair play that
maintenance is awarded from the date of the application.
The entitlement of maintenance should not be left to the uncertain date of disposal of the case.
The enormous delay in disposal of proceedings justifies the award of maintenance from the date of
application. The delay in adjudication was not only against human rights, but also against the basic
embodiment of dignity of an individual. The delay in the conduct of the proceedings would require
grant of maintenance to date back to the date of application.
Shall Kumari Devi v. Krlshan Bhagwan Pathak, (2008) 9 SCC 632 : (2008) 3 SCC (Cri) 839; Bhuwan
Mohan Singh v. Meena, (2015) 6 SCC 353 : (2015) 3 SCC (Civ) 321 : (2015) 4 SCC (Cri) 200, Folio wed
The rationale of granting maintenance from the date of application finds its roots in the object of
enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which
occurs on separation from the husband. Financial constraints of a dependent spouse hampers their
capacity to be effectively represented before the court. In order to prevent a dependant from being
reduced to destitution, it is necessary that maintenance is awarded from the date on which the
application for maintenance is filed before the court concerned.
While dealing with the application of a destitute wife or hapless children or parents under this
provision, the court is dealing with the marginalised sections of the society. The purpose is to achieve
“social justice” which is the constitutional vision, enshrined in the Preamble of the Constitution.
Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While
giving interpretation to a particular provision, the court is supposed to bridge the gap between the law
and society.
Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51, followed
It has therefore become necessary to issue directions to bring about uniformity and consistency in
the orders passed by all courts, by directing that maintenance be awarded from the date on which the
application was made before the court concerned. The right to claim maintenance must date back to
the date of filing the application, since the period during which the maintenance proceedings remained
pending is not within the control of the applicant.
Bina Devi v. Sfafe of U.P., 2010 SCC OnLine All 236 : (2010) 69 ACC 19; Amit Verma v. Sangeeta
Verma, 2020 SCC OnLine MP 2657; S. Radhakumari v. K.M.K. Nalr, 1982 SCC OnLine Ker 51 :
AIR 1983 Ker 139; Samir Kr. Banerjee v. Sujata Banerjee, 1965 SCC OnLine Cal 196; Gouri Das v.
Pradyumna Kumar Das, (1986) 2 OLR 44; Kalpana Das v. Sarat Kumar Das, 2009 SCC OnLine Ori 21
: AIR 2009 Ori 133, overruled
The following directions are issued in exercise of powers under Article 142 of the Constitution : It is
made clear that maintenance in all cases will be awarded from the date of filing the application for
maintenance, as held in Part B-IV of the judgment (contained in paras 94 to 113 of the judgment, and
set out above).
H. Family and Personal Laws — Enforcement of orders of maintenance — Object behind timely
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enforcement and manner of enforcement — Law clarified

— Object behind timely enforcement — Very object of social welfare legislation would be
defeated if orders of maintenance are not enforced in timely manner
— Manner of enforcement — An order or decree of maintenance may be enforced under S. 28
-A of the HMA, 1955; S. 20(6) of the DV Act; and S. 128 CrPC, as may be applicable — The order of
maintenance may be enforced as a money decree of a civil court as per the provisions of CPC, more
particularly Ss. 51, 55, 58 and 60 r/w Or. 21 — It can be recovered in the manner as provided for
fines and the Magistrate may award sentence of imprisonment for a term which may extend to one
month, or until payment, whichever is earlier [S. 125(3) CrPC]
— Criminal Procedure Code, 1973 — Ss. 125 to 128 — Civil Procedure Code, 1908 — Ss. 51,
55, 58 and 60 r/w Or. 21 — Hindu Marriage Act, 1955 — S. 28-A — Crimes Against Women and
Children — Protection of Women from Domestic Violence Act, 2005, S. 20(6)
Held :
Enforcement of orders of maintenance
Enforcement of the order of maintenance is the most challenging issue, which is encountered by the
applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare
legislation. Execution petitions usually remain pending for months, if not years, which completely
nullifies the object of the law.
Sushila Viresh Chhadva v. Viresh Nagshi Chhadva, 1995 SCC OnLine Bom 315 : AIR 1996 Bom 94,
approved
An application for execution of an order of maintenance can be filed under the following provisions:
(a) Section 28-A of the Hindu Marriage Act, 1955 read with Section 18 of the Family Courts Act, 1984
and Order 21 Rule 94 CPC for executing an order passed under Section 24 of the Hindu Marriage Act
(before the Family Court);
(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and
(c) Section 128 CrPC before the Magistrate’s Court.
Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall be
executable in accordance with CPC/CrPC.
Section 125(3) CrPC provides that if the party against whom the order of maintenance is passed fails
to comply with the order of maintenance, the same shall be recovered in the manner as provided for
fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one
month, or until payment, whichever is earlier.
Decree of maintenance may be enforced like a decree of a civil court
The order or decree of maintenance may be enforced like a decree of a civil court, through the
provisions which are available for enforcing a money decree, including civil detention, attachment of
property, etc. as provided by various provisions of CPC, more particularly Sections 51, 55, 58, 60 read
with Order 21 CPC.
The following directions are issued in exercise of powers under Article 142 of the Constitution : For
enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance
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may be enforced under Section 28-A of the HMA, 1955; Section 20(6) of the DV Act; and Section 128
CrPC, as may be applicable. The order of maintenance may be enforced as a money decree of a civil
court as per the provisions of CPC, more particularly Sections 51, 55, 58, 60 read with Order 21.
I. Family and Personal Laws — Maintenance and Financial Provision/Alimony/Palimony —
Striking off the defence — When permissible — Principles summarised — Held, striking off the
defence of the respondent is an order which ought to be passed in the last resort, if the courts find
default to be wilful and contumacious, particularly to a dependent unemployed wife, and minor
children — Contempt proceedings for wilful disobedience may be initiated before the appropriate
court — Criminal Procedure Code, 1973, S. 125
J. Criminal Procedure Code, 1973 — S. 125 — S. 125 CrPC vis-a-vis S. 3(b) of the HAMA -Distinction
of rights under — Purpose and object of S. 125 CrPC is to provide immediate relief to the wife and
children in a summary proceeding, whereas under S. 20 r/w S. 3(b) of the HAMA, a much larger
right is contemplated, which requires determination by a civil court — (see also Shortnote B on how
relief under overlapping jurisdictions for grant of maintenance under various statutes is to be given)
— Hindu Adoptions and Maintenance Act, 1956, S. 3(b)
K. Family and Personal Laws — Maintenance and Financial Provision/Alimony/Palimony — Live-
in relationship — Presumption of marriage — Strict proof of marriage should not be a precondition
for grant of maintenance under S. 125 CrPC — Evidence regarding a man and woman living together
for a reasonably long period should be sufficient to draw the presumption of marriage — Criminal
Procedure Code, 1973, S. 125
Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 : (2011) 1 SCC (Civ) 53 :
(2011) 2 SCC (Cri) 666; Kamaia v. M.R. Mohan Kumar, (2019) 11 SCC 491 : (2019) 4 SCC (Civ) 732
: (2019) 4 SCC (Cri) 242, relied on
Malimath Committee Report on Reforms of Criminal Justice System published in 2003, referred to
L. Crimes Against Women and Children — Protection of Women from Domestic Violence Act, 2005
— Ss. 2(a), (f), (q), 3 and 17(2) — “Domestic relationship” in S. 2(f) of the DV Act -Expression “a
relationship in the nature of marriage” or live-in relationship akin to de facto marriage or common
law marriage — When can a relationship fall within the expression “a relationship in the nature of
marriage” under S. 2(f) of the DV Act — Guidelines though not exhaustive, reiterated
M. Crimes Against Women and Children — Protection of Women from Domestic Violence Act, 2005
— S. 2(s) and Ss. 17, 19 and 12 — Definition of “shared household” in S. 2(s) — Meaning of — Law
summarised
— Legal interest in shared household not relevant — An aggrieved woman’s right to residence in a
“shared household” is irrespective of her having any legal interest in the same — A shared household
under S. 2(s) need not be owned singly by the husband — It may or may not be jointly owned or
taken on rent by the husband — The intention of the parties and the nature of living, including the
nature of the household, must be considered, to determine as to whether the parties intended to treat
the premises as a “shared household” or not
— The “shared household” is the household which is the dwelling place of the aggrieved person
in present time — It does not mean all the houses where the aggrieved person has lived in a domestic
relationship along with the relatives of the husband — There will be a number of shared households,
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which was never contemplated by the legislative scheme — Mere fleeting or casual living at different
places would not make it a shared household
— Balance required, especially when right is claimed against parents-in-law — The right to
residence under S. 19 is, not an indefeasible right, especially when a daughter-in-law is claiming a
right against aged parents-in-law — While granting relief under S. 12 of the DV Act, or in any civil
proceeding, the court has to balance the rights between the aggrieved woman and the parents-in-law
— Right of residence is in addition to maintenance under S. 125 CrPC
N. Crimes Against Women and Children — Protection of Women from Domestic Violence Act, 2005
— Ss. 2(a), (f) & (q) — Definitions of “aggrieved person” in S. 2(a), “domestic relationship” in S.
2(f) and “respondent” in S. 2(q) — Principles reiterated — Definition of “respondent” in S. 2(q) is
gender neutral
Crimes Against Women and Children — Protection of Women from Domestic Violence Act, 2005
— Ss. 22 and 23 — Claim for compensation and damages by aggrieved party for acts of domestic
violence perpetrated by respondent — Ex parte orders — Scope of — Held, such ex parte orders can
be granted by Magistrate if he is satisfied from the application and affidavit of aggrieved party that
such domestic violence was committed or continuing or is likely to be committed by the respondent
P. Family and Personal Laws — Maintenance Pendente Lite/Interim Maintenance — Expeditious
payment and adjudication — Expeditious payment of interim maintenance which was delayed by
more than seven years, directed — Expeditious adjudication of substantive application under S. 125
CrPC, directed as proceedings pending for more than seven years — Challenge to order of interim
maintenance by husband, rejected — Interim maintenance awarded by courts below for wife and
son, affirmed — Criminal Procedure Code, 1973, S. 125
Q. Family and Personal Laws — Maintenance Pendente Lite/Interim Maintenance — Appeal by
husband — In the appeal filed by the husband, prayer of wife for enhancement of interim maintenance
for son, held, not maintainable — Liberty, however, given to wife to agitate/move Family Court for
claiming said relief — Criminal Procedure Code, 1973, S. 125
R. Family and Personal Laws — Hindu Law — Adoption, Maintenance and Financial Provision —
Maintenance/Financial Provision — Generally — Right to maintenance under HAMA and HMA
— Distinctions and interplay — Explained — Hindu Marriage Act, 1955 — Ss. 24 and 25 — Hindu
Adoptions and Maintenance Act, 1956, Ss. 18 and 19
S. Family and Personal Laws — Maintenance and Financial Provision/Alimony/Palimony
— Maintenance to Wife, Children and Parents under Sections 125-128 CrPC — Quantum of
maintenance — There is no ceiling on maintenance amount under Section 125 CrPC after 2001
Amendment — Introduction of express powers to grant interim maintenance — Criminal Procedure
Code, 1973, S. 125
Judgement
Hon’ble Mrs. Justice INDU MALHOTRA
PART A Order passed in Criminal Appeal No. 730 of 2020 345
PART B General Guidelines and Directions 348
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I. Issue of overlapping jurisdictions 349

II. Payment of interim maintenance 367
III. Criteria for determining quantum of maintenance 371
IV. Date from which maintenance to be awarded 375
V. Enforcement of orders of maintenance 380
VI. Final directions 383
PART A
Order passed in Criminal Appeal No, 730 of 2020
1. Leave granted. The present criminal appeal arises out of an application for interim maintenance
filed in a petition under Section 125 CrPC by the respondent wife and minor son. Respondent 1
wife left the matrimonial home in January 2013, shortly after the birth of the son — Respondent
2. On 2-9-2013, the wife filed an application for interim maintenance under Section 125 CrPC
on behalf of herself and the minor son. The Family Court vide a detailed order dated 24-8-2015
awarded interim maintenance of Rs 15,000 per month to Respondent 1 wife from 1-9-2013; and
Rs 5000 per month as interim maintenance for Respondent 2 son from 1-9-2013 to 31-8-2015;
and @ Rs 10,000 per month from 1-9-2015 onwards till further orders were passed in the main
petition.
2. The appellant husband challenged the order of the Family Court vide Criminal Writ Petition
No. 875 of 2015 filed before the Bombay High Court, Nagpur Bench. The High Court dismissed
the writ petition vide order dated 14-8-20181, and affirmed the judgment passed by the Family
Court.
3. The present appeal has been filed to impugn the order dated 14-8-20181. This Court issued
notice2- to the wife and directed the appellant husband to file his income tax returns and
assessment orders for the period from 2005-2006 till date. He was also directed to place a
photocopy of his passport on record. By a further order dated 11 -9-20191, the appellant husband
was directed to make payment of the arrears of Rs 2,00,000 towards interim maintenance to
the wife; and a further amount of Rs 3,00,000, which was due and payable to the wife towards
arrears of maintenance, as per his own admission. By a subsequent order dated 14-10-20191, it
was recorded that only a part of the arrears had been paid. A final opportunity was granted to
the appellant husband to make payment of the balance amount by 30-11-2019, failing which, the
Court would proceed under the Contempt of Courts Act for wilful disobedience of the orders
passed by this Court.
4. In the backdrop of the facts of this case, we considered it fit to frame guidelines on certain
aspects pertaining to the payment of maintenance in matrimonial matters. There are different
statutes providing for making an application for grant of maintenance/interim maintenance,
if any person having sufficient means neglects, or refuses to maintain his wife, children,
parents. The different enactments provide an independent and distinct remedy framed with
a specific object and purpose. In spite of time-frames being prescribed by various statutes for
disposal of interim applications, we have noticed, in practice that in a vast majority of cases, the
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applications are not disposed of within the time-frame prescribed. To address various issues
which arise for consideration in applications for grant of maintenance/interim maintenance, it is
necessary to frame guidelines to ensure that there is uniformity and consistency in deciding the
same. To seek assistance on these issues, we have appointed Ms Anitha Shenoy and Mr Gopal
Sankaranarayanan, Senior Advocates as Amici Curiae, who have graciously accepted to assist
this Court.
5. By a further order dated 17-12-2019, the appellant was directed to pay an amount of Rs 1,45,000
to Respondent 1 wife within a period of 45 days. On the issue of framing guidelines, the National
Legal Services Authority was directed to elicit responses from the State Legal Services Authorities
of various States.
6. By a subsequent order dated 5-8-2020, it was recorded that an affidavit of compliance had been
filed on 4-8-2020 by the appellant husband, wherein it was stated that arrears of Rs 1,45,000 till
11-9-2019 had been paid by him in January 2020. However, he had made no further payment
to the wife thereafter. With respect to the amount of Rs 10,000 p.m. payable for the minor son,
the order had been complied with till July 2020. A statement was made by the counsel for the
appellant that he was not disputing the payment of maintenance for his son, and would continue
to pay the same. A direction was issued by this Court to pay the entire arrears of maintenance
to the wife @ Rs 15,000 p.m. as fixed by the Family Court, and continue to pay the said amount
during the pendency of proceedings.
7. By the order dated 25-8-2020z, it was noted that the appellant had filed an affidavit dated 23-8-
2020 wherein he had admitted and acknowledged that an amount of Rs 5,00,000 was pending
towards arrears of maintenance to Respondent 1 wife. The appellant was directed to pay 50% of
the arrears within a period of 4 weeks to Respondent 1, failing which, he was directed to remain
present before the Court on the next date of hearing. The counsel for the husband placed on
record a chart of various proceedings pending between the parties. Taking note of the aforesaid
facts, we considered it appropriate to refer the matter for mediation by Mr Shridhar Purohit,
Advocate, a well-known Mediator in Nagpur, to resolve all disputes pending between the parties,
and arrive at an overall settlement.
8. On 8-10-2020, we were informed that the mediation had failed. The husband appeared before
the Court, and made an oral statement that he did not have the financial means to comply
with the order of maintenance payable to Respondent 1 wife, and had to borrow loans from his
father to pay the same. He however stated that he had paid the maintenance awarded to the son,
and would continue to do so without demur. Both parties addressed arguments and filed their
written submissions.
9. We have heard the counsel for the parties, and perused the written submissions filed on their
behalf.
9.1. The husband has inter alia submitted that he was presently unemployed, and was not in
a position to pay maintenance to Respondent 1 wife. He stated that he did not own any
immovable property, and had only one operational bank account. The husband declined
to pay any further amount towards the maintenance of his wife. It was further submitted
that the Family Court had erroneously relied upon the income tax returns of 2006, while
determining the maintenance payable in 2013. He further submitted that he was exploring
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new business projects, which would enable him to be in a better position to sustain his
family.
9.2. The wife has inter alia submitted that the amount of Rs 10,000 awarded for the son was
granted when he was 21/2 years old in 2015. The said amount was now highly inadequate
to meet the expenses of a growing child, who is 7V2 years old, and is a school-going boy.
It was further submitted that the admission fee for the current academic year 2020-2021
had not yet been paid. If the fee was not paid within time, the school would discontinue
sending the link for online classes. She submitted that she was being overburdened by the
growing expenses, with no support from the husband.
9.3. With respect to the contention of the husband that he had no income, she submitted
that the husband had made investments in real estate projects, and other businesses,
which he was concealing from the Court, and diverting the income to his parents. It
has also been alleged that the appellant had retained illegal possession of her streedhan,
which he was refusing to return. Despite orders being passed by this Court, and in the
proceedings under the DV Act, he was deliberately not complying with the same. In these
circumstances, it was submitted that there was a major trust deficit, and there was no
prospect for reconciliation.
9.4. With respect to the issue of enhancement of maintenance for the son, the respondent is
at liberty to move the Family Court for the said relief. We cannot grant this relief in the
present appeal, as it has been filed by the husband.
10. In the facts and circumstances of the case, we order and direct that:
10.1. (a) The judgment and order dated 24-8-2015 passed by the Family Court, Nagpur, affirmed
by the Bombay High Court, Nagpur Bench vide order dated 14-8-2018 for payment
of interim maintenance @ Rs 15,000 p.m. to Respondent 1 wife, and Rs 10,000 p.m. to
Respondent 2 son, is hereby affirmed by this Court.
10.2. (b) The husband is directed to pay the entire arrears of maintenance @ Rs 15,000 p.m.,
within a period of 12 weeks from the date of this judgment, and continue to comply with
this order during the pendency of the proceedings under Section 125 CrPC before the
Family Court.
10.3. (c) If the appellant husband fails to comply with the aforesaid directions of this Court, it
would be open to the respondents to have the order enforced under Section 128 CrPC,
and take recourse to all other remedies which are available in accordance with law.
10.4. (d) The proceedings for payment of interim maintenance under Section 125 CrPC have
been pending between the parties for a period of over 7 years now. We deem it appropriate
that the Family Court decides the substantive application under Section 125 CrPC in
Petition No. E-443/2013 finally, in light of the directions/guidelines issued in the present
judgment, within a period of 6 months from the date of this judgment.
11. The Registry is directed to forward a complete copy of the pleadings, along with the written
submissions filed by the parties, and the record of the proceedings in the present criminal
appeal, to the Family Court, Nagpur. The present criminal appeal is disposed of accordingly.
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PART B
12. Given the backdrop of the facts of the present case, which reveal that the application for interim
maintenance under Section 125 CrPC has remained pending before the courts for seven years
now, and the difficulties encountered in the enforcement of orders passed by the courts, as
the wife was constrained to move successive applications for enforcement from time to time,
we deem it appropriate to frame guidelines on the issue of maintenance, which would cover
overlapping jurisdiction under different enactments for payment of maintenance, payment of
interim maintenance, the criteria for determining the quantum of maintenance, the date from
which maintenance is to be awarded, and enforcement of orders of maintenance. Guidelines/
Directions on maintenance
13. Maintenance laws have been enacted as a measure of social justice to provide recourse to
dependent wives and children for their financial support, so as to prevent them from falling into
destitution and vagrancy. Article 15(3) of the Constitution of India provides that:
“15. (3) Nothing in this article shall prevent the State from making any special provision
for women and children.” Article 15(3) reinforced by Article 39 of the Constitution
of India, which envisages a positive role for the State in fostering change towards the
empowerment of women, led to the enactment of various legislations from time to
time.
14. Krishna Iyer, J. in his judgment in Ramesh Chancier Kaushal v. Veena Kaushal held that the
object of maintenance laws is :
“9. This provision is a measure of social justice and specially enacted to protect women and
children and falls within the constitutional sweep of Article 15(3) reinforced by Article
39. We have no doubt that sections of statutes calling for construction by courts are not
petrified print but vibrant words with social functions to fulfil. The brooding presence
of the constitutional empathy for the weaker sections like women and children must
inform interpretation if it has to have social relevance. So viewed, it is possible to be
selective in picking out that interpretation out of two alternatives which advances the
cause — the cause of the derelicts.”
15. The legislations which have been framed on the issue of maintenance are the Special Marriage
Act, 1954 (“SMA”), Section 125 of the Criminal Procedure Code, 1973; and the Protection of
Women from Domestic Violence Act, 2005 (“the DV Act”) which provide a statutory remedy to
women, irrespective of the religious community to which they belong, apart from the personal
laws applicable to various religious communities.
I. Issue of Overlapping Jurisdiction
16. Maintenance may be claimed under one or more of the aforementioned statutes, since each of
these enactments provides an independent and distinct remedy framed with a specific object and
purpose. For instance, a Hindu wife may claim maintenance under the Hindu Adoptions and
Maintenance Act, 1956 (“HAMA”), and also in a substantive proceeding for either dissolution of
marriage, or restitution of conjugal rights, etc. under the Hindu Marriage Act, 1955 (“HMA”) by
invoking Sections 24 and 25 of the said Act.
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17. In Nanak Chand v. Chandra Kishore Aggarwal12-, the Supreme Court held that there was no
inconsistency between the CrPC and HAMA. Section 4(b) of the HAMA would not repeal or
affect the provisions of Section 488 of the old CrPC. It was held that : (SCC pp. 804-05, para 4)
“4. ... Both can stand together. The Maintenance Act is an act to amend and codify the
law relating to adoptions and maintenance among Hindus, The law was substantially
similar before and nobody ever suggested that Hindu Law, as in force immediately
before the commencement of this Act, insofar as it dealt with the maintenance of
children, was in any way inconsistent with Section 488 CrPC, The scope of the two laws
is different. Section 488 provides a summary remedy and is applicable to ail persons
belonging to all religions and has no relationship with the personal law of the parties.
Recently the question came before the Allahabad High Court in Ram Singh v. Stated,
before the Calcutta High Court in Mahabir Agarwalla v. Gita Roy12- and before the
Patna High Court in Naiini Ranjan Chakravarty v. Kir an Rani Chakravarty13-. The
three High Courts have, in our view, correctly come to the conclusion that Section
4(b) of the Maintenance Act does not repeal or affect in any manner the provisions
contained In Section 488 CrPC.” (emphasis supplied)
18. While it is true that a party is not precluded from approaching the Court under one or more
enactments, since the nature and purpose of the relief under each Act is distinct and independent,
it is equally true that the simultaneous operation of these Acts, would lead to multiplicity
of proceedings and conflicting orders. This would have the inevitable effect of overlapping
jurisdiction. This process requires to be streamlined, so that the respondent husband is not
obligated to comply with successive orders of maintenance passed under different enactments.
For instance, if in a previous proceeding under Section 125 CrPC, an amount is awarded towards
maintenance, in the subsequent proceeding filed for dissolution of marriage under the Hindu
Marriage Act, where an application for maintenance pendente lite is filed under Section 24 of
that Act, or for maintenance under Section 25, the payment awarded in the earlier proceeding
must be taken note of, while deciding the amount awarded under HMA.
1. Statutory provisions under various enactments
(a) The Special Marriage Act, 1954 (“SMA”)
19. Section 4 of the Special Marriage Act, 1954 provides that a marriage between any two persons
who are citizens of India may be solemnised under this Act, notwithstanding anything contained
in any other law for the time being in force. It is a secular legislation applicable to all persons
who solemnise their marriage in India.
20. Section 36 of the Special Marriage Act provides that a wife is entitled to claim pendente lite
maintenance, if she does not have sufficient independent income to support her and for legal
expenses. The maintenance may be granted on a weekly or monthly basis during the pendency
of the matrimonial proceedings. The court would determine the quantum of maintenance
depending on the income of the husband, and award such amount as may seem reasonable.
Section 36 reads as:
“36. Alimony pendente lite.— Where in any proceeding under Chapter V or Chapter VI it
appears to the District Court that the wife has no independent income sufficient for
her support and the necessary expenses of the proceeding, it may, on the application of
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the wife, order the husband to pay her the expenses of the proceeding, and weekly or
monthly during the proceeding such sum as, having regard to the husband’s income, it
may seem to the court to be reasonable:
Provided that the application for the payment of the expenses of the proceeding and
such weekly or monthly sum during the proceeding under Chapter V or Chapter VI,
shall, as far as possible, be disposed of within sixty days from the date of service of
notice on the husband.”
21. Section 37 provides for grant of permanent alimony at the time of passing of the decree, or
subsequent thereto. Permanent alimony is the consolidated payment made by the husband to
the wife towards her maintenance for life. Section 37 reads as:
“37. Permanent alimony and maintenance.—(1) Any court exercising jurisdiction under
Chapter V or Chapter VI may, at the time of passing any decree or at any time subsequent
to the decree, on application made to it for the purpose, order that the husband shall
secure to the wife for her maintenance and support, if necessary, by a charge on the
husband’s property, such gross sum or such monthly or periodical payment of money
for a term not exceeding her life, as, having regard to her own property, if any, her
husband’s property and ability, the conduct of the parties and other circumstances of
the case, as it may seem to the court to be just.
(2) If the District Court is satisfied that there is a change in the circumstances of
either party at any time after it has made an order under sub-section (1), it may,
at the instance of either party, vary, modify or rescind any such order in such
manner as it may seem to the court to be just.
(3) If the District Court is satisfied that the wife in whose favour an order has been
made under this section has remarried or is not leading a chaste life, it may, at
the instance of the husband, vary, modify or rescind any such order and in such
manner as the court may deem just.”
(b) The Hindu Marriage Act, 1955 (“HMA”)
22. The HMA is a complete code which provides for the rights, liabilities and obligations arising
from a marriage between two Hindus. Sections 24 and 25 make provision for maintenance to a
party who has no independent income sufficient for his or her support, and necessary expenses.
This is a gender-neutral provision, where either the wife or the husband may claim maintenance.
The prerequisite is that the applicant does not have independent income which is sufficient for
her or his support, during the pendency of the lis.
23. Section 24 of the HMA provides for maintenance pendente lite, where the court may direct the
respondent to pay the expenses of the proceeding, and pay such reasonable monthly amount,
which is considered to be reasonable, having regard to the income of both the parties. Section
24 reads as:
“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
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the respondent to pay to the petitioner the expenses of the proceeding, and monthly
during 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:
Provided that the application for the payment of the expenses of the proceeding and
such monthly sum during the proceeding, shall, as far as possible, be disposed of within
sixty days from the date of service of notice on the wife or the husband, as the case may
be.” (emphasis supplied)
The proviso to Section 24 providing a timeline of 60 days for disposal of the application was
inserted vide Act 49 of 2001 w.e.f. 24-9-2001.
24. Section 25 provides for grant of permanent alimony, which reads as:
“25. Permanent alimony and maintenance.—(1) Any court exercising jurisdiction under
this Act may, at the time of passing any decree or at any time subsequent thereto, on
application made to it for the purpose by either the wife or the husband, as the case
may be, order that the respondent shall pay to the applicant for her or his maintenance
and support such gross sum or such monthly or periodical sum for a term not exceeding
the life of the applicant as, having regard to the respondent’s own income and other
property, if any, the income and other property of the applicant, the conduct of the
parties and other circumstances of the case, it may seem to the court to be just, and any
such payment may be secured, if necessary, by a charge on the immovable property of
the respondent.
(2) If the court is satisfied that there is, a change in the circumstances of either party at
any time after it has made an order under sub-section (1), it may at the instance
of either party, vary, modify or rescind any such order in such manner as the
court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under
this section has remarried or, if such party is the wife, that she has not remained
chaste, or, if such party is the husband, that he has had sexual intercourse with
any woman outside wedlock, it may at the instance of the other party vary,
modify or rescind any such order in such manner as the court may deem just.”
(emphasis supplied)
25. Section 26 of the HMA provides that the court may from time to time pass interim orders with
respect to the custody, maintenance and education of the minor children.
(c) Hindu Adoptions & Maintenance Act, 1956 (“HAMA”)
26. HAMA is a special legislation which was enacted to amend and codify the laws relating to
adoption and maintenance amongst Hindus, during the subsistence of the marriage. Section
18 provides that a Hindu wife shall be entitled to be maintained by her husband during her
lifetime. She is entitled to make a claim for a separate residence, without forfeiting her right
to maintenance. Section 18 read in conjunction with Section 23 states the factors required to
be considered for deciding the quantum of maintenance to be paid. Under sub-section (2) of
Section 18, the husband has the obligation to maintain his wife, even though she may be living
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separately. The right of separate residence and maintenance would however not be available if
the wife has been unchaste, or has converted to another religion. Section 18 reads as follows:
“18. Maintenance of wife.—(1) Subject to the provisions of this section, a Hindu wife,
whether married before or after the commencement of this Act, shall be entitled to be
maintained by her husband during her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting
her claim to maintenance-
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable
cause and without her consent or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in
her mind that it will be harmful or injurious to live with her husband;
(c) [ * * * ]
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually
resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion; (<?) if there is
any other cause justifying living separately.
(3) A Hindu wife shall not be entitled to separate residence and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another religion.”
27. The distinction between maintenance under HMA and HAMA is that the right under Section
18 of the HAMA is available during the subsistence of a marriage, without any matrimonial
proceeding pending between the parties. Once there is a divorce, the wife has to seek relief
under Section 25 of the HMA.n Under HMA, either the wife, or the husband, may move for
judicial separation, restitution of conjugal rights, dissolution of marriage, payment of interim
maintenance under Section 24, and permanent alimony under Section 25 of the Act, whereas
under Section 18 of the HAMA, only a wife may seek maintenance.
28. The interplay between the claim for maintenance under HMA and HAMA came up for
consideration by the Supreme Court in Chand Dhawan v. Jawaharlal Dhawan. The Supreme
Court, while considering the various laws relating to marriage amongst Hindus, discussed the
scope of applications under the HMA and HAMA in the following words :
“23. ... Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a
Hindu wife to claim maintenance from her husband during her lifetime. Sub-section
(2) of Section 18 grants her the right to live separately, without forfeiting her claim
to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on
account of his being in one of objectionable conditions as mentioned therein. So while
sustaining her marriage and preserving her marital status, the wife is entitled to claim
maintenance from her husband. On the other hand, under the Hindu Marriage Act, In
contrast, her claim for maintenance pendente lite Is durated (sic) on the pendency of a
litigation of the kind envisaged under Sections 9 to 14 of the Hindu Marriage Act, and
her claim to permanent maintenance or alimony is based on the supposition that either
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her marital status has been strained or affected by passing a decree for restitution of
conjugal rights or judicial separation in favour or against her, or her marriage stands
dissolved by a decree of nullity or divorce, with or without her consent. Thus when her
marital status is to be affected or disrupted the court does so by passing a decree for or
against her. On or at the time of the happening of that event, the court being seized of
the matter, invokes its ancillary or incidental power to grant permanent alimony. Not
only that, the court retains the jurisdiction at subsequent stages to fulfil this incidental
or ancillary obligation when moved by an application on that behalf by a party entitled
to relief. The court further retains the power to change or alter the order in view of
the changed circumstances. Thus the whole exercise is within the gammit (sic gamut)
of a diseased or a broken marriage. And in order to avoid conflict of perceptions the
legislature while codifying the Hindu Marriage Act preserved the right of permanent
maintenance in favour of the husband or the wife, as the case may be, dependent on
the court passing a decree of the kind as envisaged under Sections 9 to 14 of the Act. In
other words without the marital status being affected or disrupted by the matrimonial
court under the Hindu Marriage Act the claim of permanent alimony was not to be
valid as ancillary or incidental to such affectation or disruption. The wife’s claim to
maintenance necessarily has then to be agitated under the Hindu Adoptions and
Maintenance Act, 1956 which is a legislative measure later In point of time than the
Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionising
the law applicable to Hindus.” (emphasis supplied)
29. Section 19 of the HAMA provides that a widowed daughter-in-law may claim maintenance
from her father-in-law if (/”) she is unable to maintain herself out of her own earnings or other
property; or, (//) where she has no property of her own, is unable to obtain maintenance; (a)
from the estate of her husband, or her father or mother, or (b) from her son or daughter, if any,
or his or her estate.
30. Section 20 of the HAMA provides for maintenance of children and aged parents. Section 20 casts
a statutory obligation on a Hindu male to maintain an unmarried daughter, who is unable to
maintain herself out of her own earnings, or other property. In Abhilasha v. Parkash1-, a three-
Judge Bench of this Court held that Section 20(3) is a recognition of the principles of Hindu
law, particularly the obligation of the father to maintain an unmarried daughter. The right is
absolute under Personal law. which has been aiven statutory recognition by this Act. The Court
noted the distinction between the award of maintenance to children under Section 125 CrPC,
which limits the claim of maintenance to a child, until he or she attains majority. However, if
an unmarried daughter is by reason of any physical or mental abnormality or injury, unable to
maintain herself, under Section 125(l)(c), the father would be obligated to maintain her even
after she has attained majority. The maintenance contemplated under HAMA is a wider concept.
Section 3(b) contains an inclusive definition of maintenance including marriage expenses. The
purpose and object of Section 125 CrPC is to provide immediate relief to the wife and children
in a summary proceeding, whereas under Section 20 read with Section 3(b) of the HAMA, a
much larger right is contemplated, which requires determination by a civil court.
31. Section 22 provides for maintenance of dependants. Section 23 provides that while awarding
maintenance, the court shall have due regard to the criteria mentioned therein:
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“23. Amount of maintenance.—(1) It shall be in the discretion of the court to determine

whether any, and if so what, maintenance shall be awarded under the provisions of
this Act, and in doing so, the court shall have due regard to the consideration set out
in sub-section (2) or sub-section (3), as the case may be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a wife,
children or aged or infirm parents under this Act, regard shall be had to—
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant’s property and any income derived from such property,
or from the claimant’s own earning or from any other source;
(e) the number of persons entitled to maintenance under this Act.
(3) In determining the amount of maintenance, if any, to be awarded to a dependant
under this Act, regard shall be had to—
(a) the net value of the estate of the deceased after providing for the payment of his
debts;
(b) the provision, if any, made under a will of the deceased in respect, of the
dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f) the value of the property of the dependant and any income derived from such
property, or from his or her earnings or from any other course;
(g) the number of dependants entitled to maintenance under this Act.”
(d) Section 125 CrPC

32. Chapter IX of the Code of Criminal Procedure, 1973 provides for maintenance of wife, children
and parents in a summary proceeding. Maintenance under Section 125 CrPC may be claimed
by a person irrespective of the religious community to which they belong. The purpose and
object of Section 125 CrPC is to provide immediate relief to an applicant. An application under
Section 125 CrPC is predicated on two conditions : (/”) the husband has sufficient means;
and (/’/’) “neglects” to maintain his wife, who is unable to maintain herself. In such a case, the
husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit.
Maintenance is awarded on the basis of the financial capacity of the husband and other relevant
factors.
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33. The remedy provided by Section 125 is summary in nature, and the substantive disputes with
respect to dissolution of marriage can be determined by a civil court/Family Court in an
appropriate proceeding, such as the Hindu Marriage Act, 1955.
34. In Bhagwan Dutt v. Kamla Devi- the Supreme Court held that under Section 125 (1) CrPC only
a wife who is “unable to maintain herself ” is entitled to seek maintenance. The Court held : (SCC
p. 392, para 19)
“19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate
has to find out as to what is required by the wife to maintain a standard of living which
is neither luxurious nor penurious, but is modestly consistent with the status of the
family. The needs and requirements of the wife for such moderate living can be fairly
determined, only if her separate income, also, is taken into account together with the
earnings of the husband and his commitments.” (emphasis supplied)
35. Prior to the amendment of Section 125 in 2001, there was a ceiling on the amount which could
be awarded as maintenance, being Rs 500 “in the whole”. In view of the rising costs of living
and inflation rates, the ceiling of Rs 500 was done away with by the 2001 Amendment Act. The
Statement of Objects and Reasons of the Amendment Act states that the wife had to wait for
several years before being granted maintenance. Consequently, the Amendment Act introduced
an express provision for grant of “interim maintenance”. The Magistrate was vested with the
power to order the respondent to make a monthly allowance towards interim maintenance
during the pendency of the petition. Under sub-section (2) of Section 125, the court is conferred
with the discretion to award payment of maintenance either from the date of the order, or from
the date of the application. Under the third proviso to the amended Section 125, the application
for grant of interim maintenance must be disposed of as far as possible within sixty days from
the date of service of notice on the respondent.
36. The amended Section 125 reads as under:
“125. Order for maintenance of wives, children and parents.—(
1) If any person having sufficient means neglects or refuses to maintain—
(b) his legitimate or illegitimate minor child, whether married or not, 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 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,
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if the Magistrate is satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding
regarding monthly allowance for the maintenance under this sub-section, order
such person to make a monthly allowance for the interim maintenance of his
wife or such child, father or mother, and the expenses of such proceeding which
the Magistrate considers reasonable, and to pay the same to such person as the
Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim
maintenance and expenses of proceeding under the second proviso shall, as far
as possible, be disposed of within sixty days from the date of the service of notice
of the application to such person.
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
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 part of each month’s 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 a just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or interim
maintenance and expenses of proceeding, as the case may be, from her husband under
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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.” (emphasis supplied)
37. In Chaturbhuj v. Sita Bai this Court held that the object of maintenance proceedings is not
to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted
wife by providing her food, clothing and shelter by a speedy remedy. Section 125 CrPC is a
measure of social justice especially enacted to protect women and children, and falls within the
constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution.
38. Proceedings under Section 125 CrPC are summary in nature. In Bhuwan Mohan Singh v. Meena-
this Court held that Section 125 CrPC was conceived to ameliorate the agony, anguish, financial
suffering of a woman who had left her matrimonial home, so that some suitable arrangements
could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty
of the husband to provide financial support to the wife and minor children, the husband was
required to earn money even by physical labour, if he is able-bodied, and could not avoid his
obligation, except on any legally permissible ground mentioned in the statute.
39. The issue whether presumption of marriage arises when parties are in a live-in relationship for
a long period of time, which would give rise to a claim under Section 125 CrPC came up for
consideration in Chanmuniya v. Virendra Kumar Singh Kushwaha before the Supreme Court.
It was held that where a man and a woman have cohabited for a long period of time, in the
absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance.
A man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a
de facto marriage, without undertaking the duties and obligations of such marriage. A broad
and expansive interpretation must be given to the term “wife”, to include even those cases
where a man and woman have been living together as husband and wife for a reasonably long
period of time. Strict proof of marriage should not be a precondition for grant of maintenance
under Section 125 CrPC. The Court relied on the Malimath Committee Report on Reforms
of Criminal Justice System published in 2003, which recommended that evidence regarding a
man and woman living together for a reasonably long period, should be sufficient to draw the
presumption of marriage.
40. The law presumes in favour of marriage, and against concubinage, when a man and woman
cohabit continuously for a number of years. Unlike matrimonial proceedings where strict proof
of marriage is essential, in proceedings under Section 125 CrPC such strict standard of proof is
not necessary.
(e) Protection of Women from Domestic Violence Act, 2005 (“the DV Act”)
41. The DV Act stands on a separate footing from the laws discussed hereinabove. The DV Act
provides relief to an aggrieved woman who is subjected to “domestic violence”. The “aggrieved
person” has been defined by Section 2(a) to mean any woman who is, or has been, in a domestic
relationship with the respondent, and alleges to have been subjected to any act of domestic
violence. Section 2(f) defines “domestic relationship” to include a relationship between two
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persons who live, or have at any point of time lived together in a shared household, when they
are related by consanguinity, marriage, or through a relationship in the nature of marriage,
adoption, or are family members living together as a joint family.
42. Section 2(q) of the Act defined “respondent” to mean an “adult male person” who is, or has been,
in a domestic relationship with the aggrieved woman. In Hiral P. Harsora v. Kusum Narottamdas
Harsora this Court held that the “respondent” could also be a female in a domestic relationship
with the aggrieved person. Section 3 of the DV Act gives a gender-neutral definition to “domestic
violence”. Physical abuse, verbal abuse, emotional abuse and economic abuse can also be inflicted
by women against other women. Even sexual abuse may, in a given fact circumstance, be by
one woman on another. Section 17 (2) provides that the aggrieved person cannot be evicted or
excluded from a “shared household”, or any part of it by the “respondent”, save in accordance
with the procedure established by law. If “respondent” is to be read as only an adult male person,
women who evict or exclude the aggrieved person would then not be covered by the ambit of the
Act, and defeat the very obiect, bv Duttinq forward female persons who can evict or exclude the
aggrieved woman from the shared household. The Court struck down the words “adult male”
before the word “person” in Section 2{q) of the 2005 Act, and deleted the proviso to Section 2{q),
as being contrary to the object of the Act.
43. The expression “relationship in the nature of marriage” as being akin to a common law or a de
facto marriage, came up for consideration in D. Velusamy v. D. Patchaiammal-. It was opined
that a common law marriage is one which requires that although a couple may not be formally
married : (a) the couple hold themselves out to society as being akin to spouses; (ft) the parties
must be of legal age to marry; (c) the parties must be otherwise qualified to enter into a legal
marriage, including being unmarried; and {d) the parties must have voluntarily cohabited,
and held themselves out to the world as being akin to spouses for a significant period of time.
However, not all live-in relationships would amount to a relationship in the nature of marriage
to avail the benefit of the DV Act. Merely spending weekends together, or a one-night stand,
would not make it a “domestic relationship”.
44. For a live-in relationship to fall within the expression “relationship in the nature of marriage”,
this Court in Indra Sarma v. V.K.V. Sarma2- laid down the following guidelines : (a) duration
of period of relationship; (ft) shared household; (c) domestic arrangements; {d) pooling of
resources and financial arrangements; (e) sexual relationship; {f) children; (g) socialisation in
public; and (ft) intention and conduct of the parties. The Court held that these guidelines were
only indicative, and not exhaustive.
45. “Domestic violence” has been defined in Section 3 of the Act, which includes economic abuse as
defined in Explanation 1(/V) to Section 3, as:
“Economic abuse which means deprivation of all or any economic or financial resources,
to which the aggrieved person is entitled under any law or custom, whether payable under
an order of a court or otherwise, or which the aggrieved person requires out of necessity,
including but not limited to household necessities for the aggrieved person, or her children.”
46. Section 17 by a non obstante clause provides that notwithstanding anything contained in any
other law for the time being in force, every woman in a domestic relationship shall have the right
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to reside in the “shared household”, irrespective of whether she has any right, title or beneficial
interest in the same. Section 17 reads as:
“17. Right to reside in a shared household.—(1) Notwithstanding anything contained in
any other law for the time being in force, every woman in a domestic relationship shall
have the right to reside in the shared household, whether or not she has any right, title
or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household
or any part of it by the respondent save in accordance with the procedure
established by law.”
Section 19 deals with residence orders, grant of injunctive reliefs, or for alternate accommodation/
payment of rent by the respondent.
47. A three-Judge Bench of this Court in Satish Chander Ahuja v. Sneha Ahuja has overruled the
judgment in S,R, Batra v. Taruna Batra- wherein a two-Judge Bench held that the wife is entitled
to claim a right of residence in a “shared household” under Section 17(1), which would only
mean the house belonging to, or taken on rent by the husband, or the house which belongs
to the joint family of which the husband is a member. In Satish Chander Ahuja, the Court
has held that although the judgment in S,R, Batra-noticed the definition of shared household
under Section 2(s), it did not advert to different parts of the definition, which makes it clear
that there was no requirement for the shared household to be owned singly or jointly by the
husband, or taken on rent by the husband. If the interpretation given in S.R. Batra- is accepted, it
would frustrate the object of the Act. The Court has taken the view that the definition of “shared
household” in Section 2(s) is an exhaustive definition. The “shared household” is the household
which is the dwelling place of the aggrieved person in present time. If the definition of “shared
household” in Section 2(s) is read to mean all the houses where the aggrieved person has lived in
a domestic relationship along with the relatives of the husband, there will be a number of shared
households, which was never contemplated by the legislative scheme. The entire scheme of the
legislation is to provide immediate relief to the aggrieved person with respect to the shared
household where the aggrieved woman lives or has lived. The use of the expression “at any
stage has lived”, is with the intent of not denying protection to an aggrieved woman merely on
the ground that she was not living there on the date of the application, or on the date when the
Magistrate passed the order under Section 19. The words “lives, or at any stage has lived in a
domestic relationship” has to be given its normal and purposeful meaning. Living of the woman
in a household must refer to a living which has some permanency. Mere fleeting or casual living
at different places would not make it a shared household. The intention of the parties and the
nature of living, including the nature of the household, must be considered, to determine as to
whether the parties intended to treat the premises as a “shared household” or not. Section 2(s)
read with Sections 17 and 19 grant an entitlement in favour of an aggrieved woman to the right
of residence in a “shared household”, irrespective of her having any legal interest in the same or
not. From the definition of “aggrieved person” and “respondent”, it was clear that:
(i) it is not the requirement of law that the aggrieved person may either own the premises
jointly or singly, or by tenanting it jointly or singly;
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(ii) the household may belong to a joint family of which the respondent is a member,
irrespective of whether the respondent or the aggrieved person has any right, title, or
interest in the shared household;
(iii) the shared household may either be owned, or tenanted by the respondent singly or jointly.
The right to residence under Section 19 is, however, not an indefeasible right, especially when
a daughter-in-law is claiming a right against aged parents-in-law. While granting relief under
Section 12 of the DV Act, or in any civil proceeding, the court has to balance the rights between
the aggrieved woman and the parents-in-law.
48. Section 20 provides for monetary relief to the aggrieved woman:
“20. Monetary reliefs.—
(1) While disposing of an application under sub-section (1) of Section 12, the
Magistrate may direct the respondent to pay monetary relief to meet the
expenses incurred and losses suffered by the aggrieved person and any child of
the aggrieved person as a result of domestic violence and such relief may include,
but is not limited to—
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to destruction, damage or removal of any property
from the control of the aggrieved person; and
(d) the maintenance for the aggrieved person as well as her children, if any,
including an order under or in addition to an order of maintenance under
Section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force,
(2) The monetary relief granted under this section shall be adequate, fair and
reasonable and consistent with the standard of living to which the aggrieved
person is accustomed,
(3) The Magistrate shall have the power to order an appropriate lump sum payment
or monthly payments of maintenance, as the nature and circumstances of the
case may require.” (emphasis supplied)
Section 20(l)(cf) provides that maintenance granted under the DV Act to an aggrieved woman
and children, would be given effect to, in addition to an order of maintenance awarded under
Section 125 CrPC, or any other law in force. Under sub-section (6) of Section 20, the Magistrate
may direct the employer or debtor of the respondent, to directly pay the aggrieved person, or
deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit
of the respondent, which amount may be adjusted towards the monetary relief payable by the
respondent.
49. Section 22 provides that the Magistrate may pass an order directing the respondent to pay
compensation and damages for the injuries, including mental torture and emotional distress,
caused by the acts of domestic violence perpetrated by the respondent. Section 23 provides that
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the Magistrate may grant an ex parte order, including an order under Section 20 for monetary
relief. The Magistrate must be satisfied that the application filed by the aggrieved woman
discloses that the respondent is committing, or has committed an act of domestic violence, or
that there is a likelihood that the respondent may commit an act of domestic violence. In such
a case, the Magistrate is empowered to pass an ex parte order on the basis of the affidavit of the
aggrieved woman.
50. Section 26 of the DV Act provides that any relief available under Sections 18, 19, 20, 21 and
22 may also be sought in any legal proceeding before a civil court, Family Court or criminal
court. Sub-section (2) of Section 26 provides that the relief mentioned in sub-section (1) may
be sought in addition to, and along with any other relief that the aggrieved person may seek in
a suit or legal proceeding before a civil or criminal court. Section 26(3) provides that in case
any relief has been obtained by the aggrieved person in any proceeding other than proceedings
under this Act, the aggrieved woman would be bound to inform the Magistrate of the grant of
such relief.
51. Section 36 provides that the DV Act shall be in addition to, and not in derogation of the provisions
of any other law for the time being in force.
2. Conflicting judgments on overlapping jurisdiction
52. Some High Courts have taken the view that since each proceeding is distinct and independent
of the other, maintenance granted in one proceeding cannot be adjusted or set off in the other.
For instance, in Ashok Singh Pal v. Manjulata- the Madhya Pradesh High Court held that
the remedies available to an aggrieved person under Section 24 of the HMA is independent
of Section 125 CrPC. In an application filed by the husband for adjustment of the amounts
awarded in the two proceedings, it was held that the question as to whether adjustment is to be
granted, is a matter of judicial discretion to be exercised by the court. There is nothing to suggest
as a thumb rule which lays down as a mandatory requirement that adjustment or deduction of
maintenance awarded under Section 125 CrPC must be off-set from the amount awarded under
Section 24 of the HMA, or vice versa. A similar view was taken by another Single Judge of the
Madhya Pradesh High Court in Mohan Swaroop Chauhan v. Mohini. Similarly, the Calcutta
High Court in Sujit Adhikari v. Tuiika Adhikari held that adjustment is not a rule. It was held
that the quantum of maintenance determined by the Court under HMA is required to be added
to the quantum of maintenance under Section 125 CrPC.
53. A similar view has been taken in Chandra Mohan Das v. Tapati Das-, wherein a challenge was
made on the point that the Court ought to have adjusted the amount awarded in a proceeding
under Section 125 CrPC, while determining the maintenance to be awarded under Section 24 of
the HMA, 1955. It was held that the quantum of maintenance determined under Section 24 of
the HMA was to be paid in addition to the maintenance awarded in a proceeding under Section
125 CrPC.
54. On the other hand, the Bombay and Delhi High Courts, have held that in case of parallel
proceedings, adjustment or set-off must take place. The Bombay High Court in a well-reasoned
judgment delivered in Vishal v. Aparna, has taken the correct view. The Court was considering
the issue whether interim monthly maintenance awarded under Section 23 read with Section
20(l)(Gf) of the DV Act could be adjusted against the maintenance awarded under Section 125
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CrPC. The Family Court held that the order passed under the DV Act and the CrPC were both
independent proceedings, and adjustment was not permissible. The Bombay High Court set aside
the judgment of the Family Court, and held that Section 20(1)(GQ of the DV Act makes it clear
that the maintenance granted under this Act, would be in addition to an order of maintenance
under Section 125 CrPC, and any other law for the time being in force. Sub¬section (3) of
Section 26 of the DV Act enjoins upon the aggrieved person to inform the Magistrate, if she has
obtained any relief available under Sections 18, 19, 20, 21 and 22, in any other legal proceeding
filed by her, whether before a civil court, Family Court, or criminal court. The object being that
while granting relief under the DV Act, the Magistrate shall take into account and consider if any
similar relief has been obtained by the aggrieved person. Even though proceedings under the DV
Act may be an independent proceeding, the Magistrate cannot ignore the maintenance awarded
in any other legal proceedings, while determining whether over and above the maintenance
already awarded, any further amount was required to be granted for reasons to be recorded in
writing. The Court observed : (Vishal caseL, SCC OnLine Bom para 18)
“18. What I intend to emphasise is the fact that the adjustment is permissible and the
adjustment can be allowed of the lower amount against the higher amount. Though
the wife can simultaneously claim maintenance under the different enactments, it does
not in any way mean that the husband can be made liable to pay the maintenance
awarded in each of the said proceedings.” (emphasis supplied)
It was held that while determining the quantum of maintenance awarded under Section 125
CrPC, the Magistrate would take into consideration the interim maintenance awarded to the
aggrieved woman under the DV Act.
55. The issue of overlapping jurisdictions under the HMA and the DV Act or CrPC came up for
consideration before a Division Bench of the Delhi High Court in R.D. v. B.D. wherein the Court
held that maintenance granted to an aggrieved person under the DV Act, would be in addition
to an order of maintenance under Section 125 CrPC, or under the HMA. The legislative mandate
envisages grant of maintenance to the wife under various statutes. It was not the intention of
the legislature that once an order is passed in either of the maintenance proceedings, the order
would debar re-adjudication of the issue of maintenance in anv other Droceedina. In Daras 16
and 17 of the iudament. it was observed that : (SCC OnLine Del)
“16. A conjoint reading of the aforesaid Sections 20, 26 and 36 of the DV Act would clearly
establish that the provisions of the DV Act dealing with maintenance are supplementary
to the provisions of other laws and therefore maintenance can be granted to the
aggrieved person(s) under the DV Act which would also be in addition to any order of
maintenance arising out of Section 125 CrPC.
17. On the converse, if any order is passed by the Family Court under Section 24 of the
HMA, the same would not debar the Court in the proceedings arising out of the DV
Act or proceedings under Section 125 CrPC instituted by the wife/aggrieved person
claiming maintenance. However, it cannot be laid down as a proposition of Saw that
once an order of maintenance has been passed by any court then the same cannot be
re-adjudicated upon by any other court. The legislative mandate envisages grant of
maintenance to the wife under various statutes such as HMA, Hindu Adoption and
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Maintenance Act, 1956 (hereinafter referred to as ‘HAMA’), Section 125 CrPC as well
as Section 20 of the DV Act. As such various statutes have been enacted to provide
for the maintenance to the wife and it is nowhere the intention of the legislature that
once any order is passed in either of the proceedings, the said order would debar re-
adjudication of the issue of maintenance in any other court.” (emphasis supplied)
The Court held that under Section 20(l)(tf) of the DV Act, maintenance awarded to the aggrieved
woman under the DV Act is in addition to an order of maintenance provided under Section 125
CrPC. The grant of maintenance under the DV Act would not be a bar to seek maintenance
under Section 24 of the HMA.
56. Similarly, in Tanushree v. A.S. Moorthyn the Delhi High Court was considering a case where
the Magistrate’s Court had sine die adjourned the proceedings under Section 125 CrPC on the
ground that parallel proceedings for maintenance under the DV Act were pending. In an appeal
filed by the wife before the High Court, it was held that a reading of Section 20(l)(cf) of the DV
Act indicates that while considering an application under Section 12 of the DV Act, the Court
would take into account an order of maintenance passed under Section 125 CrPC, or any other
law for the time being in force. The mere fact that two proceedings were initiated by a party,
would not imply that one would have to be adjourned sine die. There is a distinction in the scope
and power exercised by the Magistrate under Section 125 CrPC and the DV Act. With respect to
the overlap in both statutes, the Court held : (SCC OnLine Del para 5)
“5. Reading of Section 20(1 ){d) of the DV Act further shows that the two proceedings are
independent of each other and have different scope, though there is an overlap. Insofar
as the overlap is concerned, Saw has catered for that eventuality and laid down that
at the time of consideration of an application for grant of maintenance under Section
12 of the DV Act, the maintenance fixed under Section 125 CrPC shall be taken into
account.” (emphasis supplied)
57. The issue whether maintenance under Section 125 CrPC could be awarded by the Magistrate,
after permanent alimony was granted to the wife in the divorce proceedings, came up for
consideration before the Supreme Court in Rakesh Malhotra v. Krishna Maihotra—. The Court
held that once an order for permanent alimony was passed, the same could be modified by the
same court by exercising its power under Section 25(2) of the HMA. The Court held that : (SCC
OnLine SC para 16)
“16. Since Parliament has empowered the Court under Section 25(2) of the Act and kept
a remedy intact and made available to the party concerned seeking modification, the
logical sequitur would be that the remedy so prescribed ought to be exercised rather
than creating multiple channels of remedy seeking maintenance. One can understand
the situation where considering the exigencies of the situation and urgency in the
matter, a wife initially prefers an application under Section 125 of the Code to secure
maintenance in order to sustain herself. In such matters the wife would certainly be
entitled to have a full-fledged adjudication in the form of any challenge raised before
a competent court either under the Act or similar such enactments. But the reverse
cannot be the accepted norm.” The Court directed that the application under Section
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125 CrPC be treated as an application under Section 25(2) of the HMA and be disposed
of accordingly.
58. In Nagendrappa Natikar v. Neeiamma- this Court considered a case where the wife instituted a
suit under Section 18 of the HAMA, after signing a consent letter in proceedings under Section
125 CrPC, stating that she would not make any further claims for maintenance against the
husband. It was held that the proceedings under Section 125 CrPC were summary in nature,
and were intended to provide a speedy remedy to the wife. Any order passed under Section
125 CrPC by compromise or otherwise would not foreclose the remedy under Section 18 of the
HAMA.
59. In Sudeep Chaudhary v. Radha Chaudhary - the Supreme Court directed adjustment in a case
where the wife had filed an application under Section 125 CrPC, and under HMA. In the Section
125 proceedings, she had obtained an order of maintenance. Subsequently, in proceedings under
the HMA, the wife sought alimony. Since the husband failed to pay maintenance awarded, the
wife initiated recovery proceedings. The Supreme Court held that the maintenance awarded
under Section 125 CrPC must be adjusted against the amount awarded in the matrimonial
proceedings under HMA, and was not to be given over and above the same.
3. Directions on overlapping jurisdictions
60. It is well settled that a wife can make a claim for maintenance under different statutes. For
instance, there is no bar to seek maintenance both under the DV Act and Section 125 CrPC,
or under HMA. It would, however, be inequitable to direct the husband to pay maintenance
under each of the proceedings, independent of the relief granted in a previous proceeding. If
maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal
obligation to disclose the same in a subsequent proceeding for maintenance, which may be
filed under another enactment. While deciding the quantum of maintenance in the subsequent
proceeding, the civil court/Family Court shall take into account the maintenance awarded in
any previously instituted proceeding, and determine the maintenance payable to the claimant.
61. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in
different proceedings, we direct that in a subsequent maintenance proceeding, the applicant shall
disclose the previous maintenance proceeding, and the orders passed therein, so that the court
would take into consideration the maintenance already awarded in the previous proceeding, and
grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding
requires any modification or variation, the party would be required to move the court concerned
in the previous proceeding.
II. Payment of Interim Maintenance
62. The proviso to Section 24 of the HMA (inserted vide Act 49 of 2001 w.e.f. 24-9¬2001), and
the third proviso to Section 125 CrPC (inserted vide Act 50 of 2001 w.e.f. 24-9 -2001) provide
that the proceedings for interim maintenance, shall as far as possible, be disposed of within
60 days from the date of service of notice on the contesting spouse. Despite the statutory
provisions granting a time-bound period for disposal of proceedings for interim maintenance,
we find that applications remain pending for several years in most of the cases. The delays are
caused by various factors, such as tremendous docket pressure on the Family Courts, repetitive
adjournments sought by parties, enormous time taken for completion of pleadings at the interim
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stage itself, etc. Pendency of applications for maintenance at the interim stage for several years
defeats the very object of the legislation.
63. At present, the issue of interim maintenance is decided on the basis of pleadings, where some
amount of guesswork or rough estimation takes place, so as to make a prima facie assessment
of the amount to be awarded. It is often seen that both parties submit scanty material, do not
disclose the correct details, and suppress vital information, which makes it difficult for the
Family Courts to make an objective assessment for grant of interim maintenance. While there
is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency
by the husband to conceal his actual income. It has therefore become necessary to lay down a
procedure to streamline the proceedings, since a dependent wife, who has no other source of
income, has to take recourse to borrowings from her parents/relatives during the interregnum
to sustain herself and the minor children, till she begins receiving interim maintenance.
64. In the first instance, the Family Court in compliance with the mandate of Section 9 of the Family
Courts Act, 1984 must make an endeavour for settlement of the disputes. For this, Section 6
provides that the State Government shall, in consultation with the High Court, make provision
for counsellors to assist a Family Court in the discharge of its functions. Given the large and
growing percentage of matrimonial litigation, it has become necessary that the provisions of
Sections 5 and 6 of the Family Courts Act are given effect to, by providing for the appointment
of marriage counsellors in every Family Court, which would help in the process of settlement.
If the proceedings for settlement are unsuccessful, the Family Court would proceed with the
matter on merits.
65. The party claiming maintenance either as a spouse, or as a partner in a civil union, live-in
relationship, common law marriage, should be required to file a concise application for interim
maintenance with limited pleadings, along with an Affidavit of Disclosure of Assets and Liabilities
before the court concerned, as a mandatory requirement. On the basis of the pleadings filed
by both parties and the Affidavits of Disclosure, the court would be in a position to make an
objective assessment of the approximate amount to be awarded towards maintenance at the
interim stage.
66. The Delhi High Court in a series of judgments beginning with Puneet Kaur v. Inderjit Singh
Sawhney- and followed in Kusum Sharma v. Mahinder Kumar Sharma {“Kusum Sharma 1”)
directed that applications for maintenance under the HMA, HAMA, the DV Act, and the CrPC
be accompanied with an affidavit of assets, income and expenditure as prescribed. In Kusum
Sharma 2, the Court framed a format of affidavit of assets, income and expenditure to be filed
by both parties at the threshold of a matrimonial litigation. This procedure was extended to
maintenance proceedings under the Special Marriage Act and the Divorce Act, 1869. In Kusum
Sharma 3- the Delhi High Court modified the format of the affidavit, and extended it to
maintenance proceedings under the Guardians and Wards Act, 1890 and the Hindu Minority
and Guardianship Act, 1956. In Kusum Sharma 4 the Court took notice that the filing of affidavits
along with pleadings gave an unfair advantage to the party who files the affidavit subsequently. In
this judgment, it was clarified that the affidavit must be filed simultaneously by both parties. In
Kusum Sharma 5. the Court consolidated the format of the affidavits in the previous judgments,
and directed that the same be filed in maintenance proceedings.
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67. Given the vastly divergent demographic profile of our country, which comprises of metropolitan
cities, urban areas, rural areas, tribal areas, etc. it was considered appropriate to elicit responses
from the various State Legal Services Authorities (“SLSAs”). This Court vide its order dated 17-
12-2019 requested the National Legal Services Authority (“NALSA”) to submit a report of the
suggestions received from the SLSAs for framing guidelines on the Affidavit of Disclosure of the
Assets and Liabilities to be filed by the parties.
68. The NALSA submitted a comprehensive report dated 17-2-2020 containing suggestions from
all the State Legal Services Authorities throughout the country. We find the various suggestions
made by the SLSAs to be of great assistance in finalising the Affidavit of Disclosure which can be
used by the Family Courts for determining the quantum of maintenance to be paid.
69. Keeping in mind the varied landscape of the country, and the recommendations made by the
SLSAs, it was submitted that a simplified Affidavit of Disclosure may be framed to expedite the
process of determining the quantum of maintenance.
70. We feel that the affidavit to be filed by parties residing in urban areas, would require to be
entirely different from the one applicable to rural areas, or tribal areas. For this purpose, a
comprehensive Affidavit of Disclosure of Assets and Liabilities is being attached as Enclosures 1
and IF- to this judgment.
71. We have been informed by the Meghalaya State Legal Services Authority that the State of
Meghalaya has a predominantly tribal population, which follows a matrilineal system of society.
The population is comprised of three tribes viz. the Khasis, Jaintia and Garo tribes. In Meghalaya,
the youngest daughter is the custodian of the property, and takes important decisions relating
to family property in consultation with her maternal uncle. The majority of the population is
employed in the unorganised sector, such as agriculture. Under Section 10(26) of the Income
Tax Act, 1961, the tribals residing in this State are exempted from payment of income tax. The
Meghalaya State Legal Services Authority has suggested that the declaration in Meghalaya be
made in the format enclosed with this judgment as Enclosure III-.
72. Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and Liabilities
to be filed in maintenance proceedings, this Court considers it necessary to frame guidelines in
exercise of our powers under Article 136 read with Article 142 of the Constitution of India:
72.1. (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures I, II and
III of this judgment, as may be applicable, shall be filed by the parties in all maintenance
proceedings, including pending proceedings before the Family Court/District Court/
Magistrate’s Court concerned, as the case may be, throughout the country;
72.2. (b) The applicant making the claim for maintenance will be required to file a concise
application accompanied with the Affidavit of Disclosure of Assets;
72.3. (c) The respondent must submit the reply along with the Affidavit of Disclosure within a
maximum period of four weeks. The courts may not grant more than two opportunities
for submission of the Affidavit of Disclosure of Assets and Liabilities to the respondent.
If the respondent delays in filing the reply with the affidavit, and seeks more than two
adjournments for this purpose, the court may consider exercising the power to strike off
the defence of the respondent, if the conduct is found to be wilful and contumacious in
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delaying the proceedings.. On the failure to file the affidavit within the prescribed time,
the Family Court may proceed to decide the application for maintenance on the basis of
the affidavit filed by the applicant and the pleadings on record;
72.4. (d) The above format may be modified by the court concerned, if the exigencies of a case
require the same. It would be left to the judicial discretion of the court concerned to issue
necessary directions in this regard.
72.5. (e) If apart from the information contained in the Affidavits of Disclosure, any further
information is required, the court concerned may pass appropriate orders in respect
thereof.
72.6. {f) If there is any dispute with respect to the declaration made in the Affidavit of Disclosure,
the aggrieved party may seek permission of the court to serve interrogatories, and seek
production of relevant documents from the opposite party under Order 11 CPC. On filing
of the affidavit, the court may invoke the provisions of Order 10 CPC or Section 165 of the
Evidence Act, 1872, if it considers it necessary to do so. The income of one party is often
not within the knowledge of the other spouse. The court may invoke Section 106 of the
Evidence Act, 1872 if necessary, since the income, assets and liabilities of the spouse are
within the personal knowledge of the party concerned.
72.7. {g) If during the course of proceedings, there is a change in the financial status of any
party, or there is a change of any relevant circumstances, or if some new information
comes to light, the party may submit an amended/supplementary affidavit, which would
be considered by the court at the time of final determination.
72.8. (h) The pleadings made in the applications for maintenance and replies filed should be
responsible pleadings; if false statements and misrepresentations are made, the court may
consider initiation of proceeding under Section 340 CrPC, and for contempt of court.
72.9. (i) In case the parties belong to the economically weaker sections (“EWS”), or are living
below the poverty line (“BPL”), or are casual labourers, the requirement of filing the
affidavit would be dispensed with.
72.10. (J) The Family Court/District Court/Magistrate’s Court concerned must make an
endeavour to decide the IA for interim maintenance by a reasoned order, within a period
of four to six months at the latest, after the Affidavits of Disclosure have been filed before
the court.
72.11. (k) A professional Marriage Counsellor must be made available in every Family
Court.
Permanent alimony
73. Parties may lead oral and documentary evidence with respect to income, expenditure, standard
of living, etc. before the court concerned, for fixing the permanent alimony payable to the spouse.
74. In contemporary society, where several marriages do not last for a reasonable length of time, it
may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant
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for the rest of her life. The duration of the marriage would be a relevant factor to be taken into
consideration for determining the permanent alimony to be paid.
75. Provision for grant of reasonable expenses for the marriage of children must be made at the time
of determining permanent alimony, where the custody is with the wife. The expenses would be
determined by taking into account the financial position of the husband and the customs of the
family.
76. If there are any trust funds/investments created by any spouse/grandparents in favour of the
children, this would also be taken into consideration while deciding the final child support.
III. Criteria for determining quantum of maintenance
77. The objective of granting interim/permanent alimony is to ensure that the dependent spouse
is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as
a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of
maintenance to be awarded.
78. The factors which would weigh with the court inter alia are the status of the parties; reasonable
needs of the wife and dependent children; whether the applicant is educated and professionally
qualified; whether the applicant has any independent source of income; whether the income is
sufficient to enable her to maintain the same standard of living as she was accustomed to in her
matrimonial home; whether the applicant was employed prior to her marriage; whether she
was working during the subsistence of the marriage; whether the wife was required to sacrifice
her employment opportunities for nurturing the family, child rearing, and looking after adult
members of the family; reasonable costs of litigation for a non-working wife.41
79. In Manish Jain v. Akanksha Jain- this Court held that the financial position of the parents of
the applicant wife, would not be material while determining the quantum of maintenance. An
order of interim maintenance is conditional on the circumstance that the wife or husband who
makes a claim has no independent income, sufficient for her or his support. It is no answer to a
claim of maintenance that the wife is educated and could support herself. The court must take
into consideration the status of the parties and the capacity of the spouse to pay for her or his
support. Maintenance is dependent upon factual situations; the court should mould the claim
for maintenance based on various factors brought before it.
80. On the other hand, the financial capacity of the husband, his actual income, reasonable expenses
for his own maintenance, and dependent family members whom he is obliged to maintain
under the law, liabilities if any, would be required to be taken into consideration, to arrive at the
appropriate quantum of maintenance to be paid. The court must have due regard to the standard
of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea
of the husband that he does not possess any source of income ipso facto does not absolve him of
his moral duty to maintain his wife if he is able-bodied and has educational qualifications.
81. A careful and just balance must be drawn between all relevant factors. The test for determination
of maintenance in matrimonial disputes depends on the financial status of the respondent, and
the standard of living that the applicant was accustomed to in her matrimonial horned The
maintenance amount awarded must be reasonable and realistic, and avoid either of the two
extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes
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oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife
to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain
herself with reasonable comfort.
82. Section 23 of the HAMA provides statutory guidance with respect to the criteria for determining
the quantum of maintenance. Sub-section (2) of Section 23 of the HAMA provides the following
factors which may be taken into consideration : (/”) position and status of the parties, (/”/”)
reasonable wants of the claimant, (/”/”/) if the petitioner/claimant is living separately, the
justification for the same, (/V) value of the claimant’s property and any income derived from
such property, (v) income from claimant’s own earning or from any other source.
83. Section 20(2) of the DV Act provides that the monetary relief granted to the aggrieved woman
and/or the children must be adequate, fair, reasonable, and consistent with the standard of living
to which the aggrieved woman was accustomed to in her matrimonial home.
84. The Delhi High Court in Bharat Hegde v. Saroj Hegde- laid down the following factors to be
considered for determining maintenance : (SCC OnLine Del para 8)
“1. Status of the parties.
2. Reasonable wants of the claimant.
3. The independent income and property of the claimant.
4. The number of persons, the non-applicant has to maintain.
5. The amount should aid the applicant to live in a similar lifestyle as he/she enjoyed in
the matrimonial home.
6. Non-applicant’s liabilities, if any.
7. Provisions for food, clothing, shelter, education, medical attendance and
treatment, etc. of the applicant.
8. Payment capacity of the non-applicant.
9. Some guesswork is not ruled out while estimating the income of the non-applicant
when all the sources or correct sources are not disclosed.
10. The non-applicant to defray the cost of litigation.
11. The amount awarded under Section 125 CrPC is adjustable against the amount
awarded under Section 24 of the Act.”
85. Apart from the aforesaid factors enumerated hereinabove, certain additional factors would also
be relevant for determining the quantum of maintenance payable.
(a) Age and employment of parties
86. In a marriage of long duration, where parties have endured the relationship for several years, it
would be a relevant factor to be taken into consideration. On termination of the relationship, if the
wife is educated and professionally qualified, but had to give up her employment opportunities
to look after the needs of the family being the primary caregiver to the minor children, and the
elder members of the family, this factor would be required to be given due importance. This is of
particular relevance in contemporary society, given the highly competitive industry standards,
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the separated wife would be required to undergo fresh training to acquire marketable skills and
retrain herself to secure a job in the paid workforce to rehabilitate herself. With advancement of
age, it would be difficult for a dependent wife to get an easy entry into the workforce after a break
of several years.
(b) Right to residence
87. Section 17 of the DV Act grants an aggrieved woman the right to live in the “shared household”.
Section 2(s) defines “shared household” to include the household where the aggrieved woman
lived at any stage of the domestic relationship; or the household owned and rented jointly or
singly by both, or singly by either of the spouses; or a joint family house, of which the respondent
is a member.
88. The right of a woman to reside in a “shared household” defined under Section 2(s) entitles the
aggrieved woman for right of residence in the shared household, irrespective of her having any
legal interest in the same. This Court in Satish Chander Ahuja v. Sneha Ahuja held that “shared
household” referred to in Section 2(s) is the shared household of the aggrieved person where
she was living at the time when the application was filed, or at any stage lived in a domestic
relationship. The living of the aggrieved woman in the shared household must have a degree of
permanence. A mere fleeting or casual living at different places would not constitute a “shared
household”. It is important to consider the intention of the parties, nature of living, and nature
of the household, to determine whether the premises is a “shared household”. Section 2(s) read
with Sections 17 and 19 of the DV Act entitles a woman to the right of residence in a shared
household, irrespective of her having any legal interest in the same. There is no requirement of
law that the husband should be a member of the joint family, or that the household must belong
to the joint family, in which he or the aggrieved woman has any right, title or interest. The shared
household may not necessarily be owned or tenanted by the husband singly or jointly.
89. Section 19(1) (f) of the DV Act provides that the Magistrate may pass a residence order inter alia
directing the respondent to secure the same level of alternate accommodation for the aggrieved
woman as enjoyed by her in the shared household. While passing such an order, the Magistrate
may direct the respondent to pay the rent and other payments, having regard to the financial
needs and resources of the parties.
(c) Where wife is earning some income
90. The courts have held that if the wife is earning, it cannot operate as a bar from being awarded
maintenance by the husband. The courts have provided guidance on this issue in the following
judgments:
90.1. In Shailja v. Khobbanna-, this Court held that merely because the wife is capable of earning,
it would not be a sufficient ground to reduce the maintenance awarded by the Family
Court. The court has to determine whether the income of the wife is sufficient to enable
her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial
home. Sustenance does not mean, and cannot be allowed to mean mere survival.
90.2. In Sunita Kachwaha v. Anil Kachwaha- the wife had a postgraduate degree, and was
employed as a teacher in Jabalpur. The husband raised a contention that since the wife
had sufficient income, she would not require financial assistance from the husband. The
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Supreme Court repelled this contention, and held that merely because the wife was earning
some income, it could not be a ground to reject her claim for maintenance.
90.3. The Bombay High Court in Sanjay Damodar Kale v. Kalyani Sanjay Kale while relying
upon the judgment in Sunita Kachwaha, held that neither the mere potential to earn,
nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of
maintenance.
90.4. An able-bodied husband must be presumed to be capable of earning sufficient money to
maintain his wife and children, and cannot contend that he is not in a position to earn
sufficiently to maintain his family, as held by the Delhi High Court in Chander Parkash
v. Shila Rani. The onus is on the husband to establish with necessary material that there
are sufficient grounds to show that he is unable to maintain the family, and discharge his
legal obligations for reasons beyond his control. If the husband does not disclose the exact
amount of his income, an adverse inference may be drawn by the court.
90.5. This Court in Shamima Farooqui v. Shahid Khan- cited the judgment in Chander Parkash-
with approval, and held that the obligation of the husband to provide maintenance stands
on a higher pedestal than the wife.
(d) Maintenance of minor children
91. The living expenses of the child would include expenses for food, clothing, residence, medical
expenses, education of children. Extra coaching classes or any other vocational training courses
to complement the basic education must be factored in, while awarding child support. Albeit, it
should be a reasonable amount to be awarded for extracurricular/coaching classes, and not an
overly extravagant amount which may be claimed.
92. Education expenses of the children must be normally borne by the father. If the wife is working
and earning sufficiently, the expenses may be shared proportionately between the parties.
(e) Serious disability or ill health
93. Serious disability or ill health of a spouse, child/children from the marriage/dependent relative
who require constant care and recurrent expenditure, would also be a relevant consideration
while quantifying maintenance.
IV. Date from which Maintenance to be Awarded
94. There is no provision in the HMA with respect to the date from which an order of maintenance
may be made effective. Similarly, Section 12 of the DV Act, does not provide the date from
which the maintenance is to be awarded. Section 125(2) CrPC is the only statutory provision
which provides that the Magistrate may award maintenance either from the date of the order, or
from the date of application.
95. In the absence of a uniform regime, there is a vast variance in the practice adopted by the Family
Courts in the country, with respect to the date from which maintenance must be awarded. The
divergent views taken by the Family Courts are : first, from the date on which the application for
maintenance was filed; second, the date of the order granting maintenance; third, the date on
which the summons was served upon the respondent.
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(a) From date of application

96. The view that maintenance ought to be granted from the date when the application was made, is
based on the rationale that the primary object of maintenance laws is to protect a deserted wife
and dependent children from destitution and vagrancy. If maintenance is not paid from the date
of application, the party seeking maintenance would be deprived of sustenance, owing to the
time taken for disposal of the application, which often runs into several years.
97. The Orissa High Court in Susmita Mohanty v. Rabindra Nath Sahu held that the legislature
intended to provide a summary, quick and comparatively inexpensive remedy to the neglected
person. Where a litigation is prolonged, either on account of the conduct of the opposite party,
or due to the heavy docket in courts, or for unavoidable reasons, it would be unjust and contrary
to the object of the provision, to provide maintenance from the date of the order.
98. In Kanhu Charan Jena v. Nirmala Jena-, the Orissa High Court was considering an application
under Section 125 CrPC, wherein it was held that even though the decision to award maintenance
either from the date of application, or from the date of order, was within the discretion of the
court, it would be appropriate to grant maintenance from the date of application. This was
followed in Arun Kumar Nayak v. Urmila Jena-, wherein it was reiterated that dependants were
entitled to receive maintenance from the date of application.
99. The Madhya Pradesh High Court in Krishna v. Dharam Raj- held that a wife may set up a claim
for maintenance to be granted from the date of application, and the husband may deny it. In such
cases, the court may frame an issue, and decide the same based on evidence led by parties. The
view that the “normal rule” was to grant maintenance from the date of order, and the exception
was to grant maintenance from the date of application, would be to insert something more in
Section 125(2) CrPC, which the legislature did not intend. Reasons must be recorded in both
cases, i.e. when maintenance is awarded from the date of application, or when it is awarded from
the date of order.
100. The law governing payment of maintenance under Section 125 CrPC from the date of
application, was extended to HAMA by the Allahabad High Court in Ganga Prasad Srivastava
v. Addl. District Judge, Gonda.. The Court held that the date of application should always be
regarded as the starting point for payment of maintenance. The Court was considering a suit for
maintenance under Section 18 of the HAMA, wherein the Civil Judge directed that maintenance
be paid from the date of judgment. The High Court held that the normal inference should be
that the order of maintenance would be effective from the date of application. A party seeking
maintenance would otherwise be deprived of maintenance due to the delay in disposal of the
application, which may arise due to paucity of time of the court, or on account of the conduct of
one of the parties. In this case, there was a delay of seven years in disposing of the suit, and the
wife could not be made to starve till such time. The wife was held to be entitled to maintenance
from the date of application/suit.
101. The Delhi High Court in Lavlesh Shukla v. Rukmani- held that where the wife is unemployed
and is incurring expenses towards maintaining herself and the minor child/children, she is
entitled to receive maintenance from the date of application. Maintenance is awarded to a wife
to overcome the financial crunch, which occurs on account of her separation from her husband.
It is neither a matter of favour to the wife, nor any charity done by the husband.
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(b) From the date of order

102. The second view that maintenance ought to be awarded from the date of order is based on
the premise that the general rule is to award maintenance from the date of order, and grant of
maintenance from the date of application must be the exception. The foundation of this view is
based on the interpretation of Section 125(2) CrPC which provides:
“125. (2) Any such allowance for the maintenance or interim maintenance and expenses for
the application for maintenance or interim maintenance and expenses of proceeding,
as the case may be.” (emphasis supplied)
The words “or, if so ordered” in Section 125 have been interpreted to mean that where the court
is awarding maintenance from the date of application, special reasons ought to be recorded.
103. In Bina Devi v. State of U.P. the Allahabad High Court on an interpretation of Section 125(2)
CrPC held that when maintenance is directed to be paid from the date of application, the court
must record reasons. If the order is silent, it will be effective from the date of the order, for which
reasons need not be recorded. The Court held that Section 125(2) CrPC is prima facie clear that
maintenance shall be payable from the date of the order.
104. The Madhya Pradesh High Court in Amit Verma v. Sangeeta Verma- directed that maintenance
ought to be granted from the date of the order.
(c) From the date of service of summons
105. The third view followed by some courts is that maintenance ought to be granted from the date
of service of summons upon the respondent.
106. The Kerala High Court in S, Radhakumari v. K.M.K. Nairs± was considering an application
for interim maintenance preferred by the wife in divorce proceedings filed by the husband.
The High Court held that maintenance must be awarded to the wife from the date on which
summons were served in the main divorce petition. The Court relied upon the judgment of
the Calcutta High Court in Samir Kr. Banerjee v. Sujata Banerjee and held that Section 24 of
the HMA does not contain any provision that maintenance must be awarded from a specific
date. The court may, in exercise of its discretion, award maintenance from the date of service of
summons.
107. The Orissa High Court in Gouri Das v. Pradyumna Kumar Das§£. was considering an application
for interim maintenance filed under Section 24 HMA by the wife, in a divorce petition instituted
by the husband. The Court held that the ordinary rule is to award maintenance from the date of
service of summons. It was held that in cases where the applicant in the maintenance petition
is also the petitioner in the divorce petition, maintenance becomes payable from the date when
summons is served upon the respondent in the main proceeding.
108. In Kalpana Das v. Sarat Kumar Das2- the Orissa High Court held that the wife was entitled to
maintenance from the date when the husband entered appearance. The Court was considering
an application for interim maintenance under Section 24 HMA in a petition for restitution of
conjugal rights filed by the wife. The Family Court awarded interim maintenance to the wife and
minor child from the date of the order. In an appeal filed by the wife and minor child seeking
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maintenance from the date of application, the High Court held that the Family Court had failed
to assign any reasons in support of its order, and directed : (SCC On Line Ori para 8)
“8. ...The learned Judge, Family Court has not assigned any reason as to why he passed the
order of interim maintenance w.e.f. the date of order. When admittedly the parties are
living separately and prima facie it appears that the petitioners have no independent
source of income, therefore, in our view order should have been passed for payment
of interim maintenance from the date of appearance of the opposite party-husband.”
(emphasis supplied)
Discussion and Directions
109. The judgments hereinabove reveal the divergent views of different High Courts on the date from
which maintenance must be awarded. Even though a judicial discretion is conferred upon the
court to grant maintenance either from the date of application or from the date of the order in
Section 125(2) CrPC, it would be appropriate to grant maintenance from the date of application
in all cases, including Section 125 CrPC. In the practical working of the provisions relating to
maintenance, we find that there is significant delay in disposal of the applications for interim
maintenance for years on end. It would therefore be in the interests of justice and fair play that
maintenance is awarded from the date of the application.
110. In Shail Kumar! Devi v. Krishan Bhagwan Pathak-, this Court held that the entitlement of
maintenance should not be left to the uncertain date of disposal of the case. The enormous
delay in disposal of proceedings justifies the award of maintenance from the date of application.
In Bhuwan Mohan Singh v. Meena, this Court held that repetitive adjournments sought by
the husband in that case resulted in delay of 9 years in the adjudication of the case. The delay
in adjudication was not only against human rights, but also against the basic embodiment of
dignity of an individual. The delay in the conduct of the proceedings would require grant of
maintenance to date back to the date of application.
111. The rationale of granting maintenance from the date of application finds its roots in the object
of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch
which occurs on separation from the husband. Financial constraints of a dependent spouse
hamper their capacity to be effectively represented before the court. In order to prevent a
dependant from being reduced to destitution, it is necessary that maintenance is awarded from
the date on which the application for maintenance is filed before the court concerned.
112. In Badshah v. Urmila Badshah Godsem, the Supreme Court was considering the interpretation
of Section 125 CrPC. The Court held : (SCC p. 196, para 13)
“13.3. ... purposive interpretation needs to be given to the provisions of Section 125 CrPC.
While dealing with the application of a destitute wife or hapless children or parents
under this provision, the Court is dealing with the marginalised sections of the society.
The purpose is to achieve “social justice” which is the constitutional vision, enshrined
in the Preamble of the Constitution of India. The Preamble to the Constitution of
India clearly signals that we have chosen the democratic path under the rule of law to
achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It
specifically highlights achieving their social justice. Therefore, it becomes the bounden
duty of the courts to advance the cause of social justice. While giving interpretation
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to a particular provision, the court is supposed to bridge the gap between the law and
society.” (emphasis supplied)
113. It has therefore become necessary to issue directions to bring about uniformity and consistency
in the orders passed by all courts, by directing that maintenance be awarded from the date on
which the application was made before the court concerned. The right to claim maintenance must
date back to the date of filing the application, since the period during which the maintenance
proceedings remained pending is not within the control of the applicant.
V. Enforcement of orders of maintenance
114. Enforcement of the order of maintenance is the most challenging issue, which is encountered
by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the
social welfare legislation. Execution petitions usually remain pending for months, if not years,
which completely nullifies the object of the law. The Bombay High Court in Sushi la Viresh
Chhadva v. Viresh Nagshi Chhadva- held that : (SCC On Line Bom para 7)
“7. ... The direction of interim alimony and expenses of litigation under Section 24 is one of
urgency and it must be decided as soon as it is raised and ... the law takes care that
nobody is disabled from prosecuting or defending the matrimonial case by starvation
or lack of funds.”
115. An application for execution of an order of maintenance can be filed under the following
provisions:
(a) Section 28-A of the Hindu Marriage Act, 1955 read with Section 18 of the Family Courts
Act, 1984 and Order 21 Rule 94 CPC for executing an order passed under Section 24 of
the Hindu Marriage Act (before the Family Court);
(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and
(c) Section 128 CrPC before the Magistrate’s Court.
116. Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall
be executable in accordance with the CPC/CrPC.
117. Section 125(3) CrPC provides that if the party against whom the order of maintenance is passed
fails to comply with the order of maintenance, the same shall be recovered in the manner as
provided for fines, and the Magistrate may award sentence of imprisonment for a term which
may extend to one month, or until payment, whichever is earlier.
Striking off the Defence
118. Some Family Courts have passed orders for striking off the defence of the respondent in case of
non-payment of maintenance, so as to facilitate speedy disposal of the maintenance petition. In
Kaushalya v. Mukesh Jain., the Supreme Court allowed a Family Court to strike off the defence
of the respondent, in case of non-payment of maintenance in accordance with the interim order
passed.
119. The Punjab and Haryana High Court in Rani v. Parkash Singh, was considering a case where
the husband failed to comply with the maintenance order, despite several notices, for a period of
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over two years. The Court taking note of the power to strike off the defence of the respondent,
held that : (SCC OnLine P&.H para 7)
“7. ... Law is not that powerless as not to bring the husband to book. If the husband has failed
to make the payment of maintenance and litigation expenses to wife, his defence be
struck out.”
120. The Punjab and Haryana High Court in Mohinder Verma v. Sapna-, discussed the issue of
striking off the defence in the following words : (SCC OnLine P&.H para 8)
“8. Section 24 of the Act empowers the matrimonial court to award maintenance pendente
lite and also litigation expenses to a needy and indigent spouse so that the proceedings
can be conducted without any hardship on his or her part. The proceedings under this
section are summary in nature and confer a substantial right on the applicant during
the pendency of the proceedings. Where this amount is not paid to the applicant, then
the very object and purpose of this provision stands defeated. No doubt, remedy of
execution of decree or order passed by the matrimonial court is available under Section
28-A of the Act, but the same would not be a bar to striking off the defence of the spouse
who violates the interim order of maintenance and litigation expenses passed by the
said court. In other words, the striking off the defence of the spouse not honouring the
court’s interim order is the instant relief to the needy one instead of waiting endlessly
till its execution under Section 28-A of the Act. Where the spouse who is to pay
maintenance fails to discharge the liability, the other spouse cannot be forced to adopt
time consuming execution proceedings for realising the amount. Court cannot be a mute
spectator watching flagrant disobedience of the interim orders passed by it showing its
helplessness in its instant implementation. It would, thus, be appropriate even in the
absence of any specific provision to that effect in the Act, to strike off the defence of the
erring spouse in exercise of its inherent power under Section 151 of the Code of Civil
Procedure read with Section 21 of the Act rather than to leave the aggrieved party to
seek its enforcement through execution as execution is a long and arduous procedure.
Needless to say, the remedy under Section 28-A of the Act regarding execution of decree
or interim order does not stand obliterated or extinguished by striking off the defence of
the defaulting spouse. Thus, where the spouse who is directed to pay the maintenance
and litigation expenses, the legal consequences for its non-payment are that the defence
of the said spouse is liable to be struck off.” (emphasis supplied)
121. The Delhi High Court in Satish Kumar v. Meena- held that the Family Court had inherent
powers to strike off the defence of the respondent, to ensure that no abuse of process of the court
takes place.
122. The Delhi High Court in Santosh Sehgai v. Murari Lai Sehgai-, framed the following issue for
consideration : (SCC OnLine Del para 3)
“3. ... whether the appeal against the decree of divorce filed by the appellant wife can
be allowed straightaway without hearing the respondent husband in the event of his
failing to pay interim maintenance and litigation expenses granted to the wife during
the pendency of the appeal.”
The reference was answered as follows : (Santosh Sehgai casein, SCC OnLine Del para 5)
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“5. The reference to the portion of the judgment in Rani case21- extracted hereinabove
would show that the Punjab and Haryana High Court and the Orissa High Court
have taken a unanimous view that in case the husband commits default in payment of
interim maintenance to his wife and children then he is not entitled to any matrimonial
relief in proceedings by or against him. The view taken by the Punjab and Haryana
High Court in Rani case12* has been followed by a Single Judge of this Court in Satish
Kumar v. Meena1. We tend to agree with this view as it is in consonance with the first
principle of law. We are of the view that when a husband is negligent and does not pay
maintenance to his wife as awarded by the Court, then how such a person is entitled
to the relief claimed by him in the matrimonial proceedings. We have no hesitation
in holding that in case the husband fails to pay maintenance and litigation expenses
to his wife granted by the Court during the pendency of the appeal, then the appeal
filed by the wife against the decree of divorce granted by the trial court in favour of the
husband has to be allowed. Hence the question referred to us for decision is answered
in the affirmative.”
The Court concluded that if there was non-payment of interim maintenance, the defence of the
respondent is liable to be struck off, and the appeal filed by the appellant wife can be allowed,
without hearing the respondent.
123. The Punjab and Haryana High Court in Gurvinder Singh v. Murti was considering a case where
the trial court stuck off the defence of the husband for non-payment of ad interim maintenance.
The High Court set aside the order of the trial court, and held that instead of following the
correct procedure for recovery of interim maintenance as provided under Section 125(3) or
Section 421 CrPC the trial court erred in striking off the defence of the husband. The error of
the court did not assist in recovery of interim maintenance, but rather prolonged the litigation
between the parties.
124. The issue whether defence can be struck off in proceedings under Section 125 CrPC came up
before the Madhya Pradesh High Court in Venkateshwar Dwivedi v. Ruchi Dwivedi-. The Court
held that neither Section 125(3) CrPC nor Section 10 of the Family Courts Act either expressly
or by necessary implication empower the Magistrate or Family Court to strike off the defence. A
statutory remedy for recovery of maintenance was available, and the power to strike off defence
does not exist in a proceeding under Section 125 CrPC. Such power cannot be presumed to exist
as an inherent or implied power. The Court placed reliance on the judgment of the Kerala High
Court in Davis v. Thomas, and held that the Magistrate does not possess the power to strike off
the defence for failure to pay interim maintenance.
Discussion and Directions on Enforcement of orders of Maintenance
125. The order or decree of maintenance may be enforced like a decree of a civil court, through
the provisions which are available for enforcing a money decree, including civil detention,
attachment of property, etc. as provided by various provisions of the CPC, more particularly
Sections 51, 55, 58, 60 read with Order 21.
126. Striking off the defence of the respondent is an order which ought to be passed in the last resort,
if the courts find default to be wilful and contumacious, particularly to a dependent unemployed
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wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before
the appropriate court.
VI. Final Directions
127. In view of the foregoing discussion as contained in Part B — I to V of this judgment, we deem
it appropriate to pass the following directions in exercise of our powers under Article 142 of the
Constitution of India.
(a) Issue of overlapping jurisdiction
128. To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in
different proceedings, it has become necessary to issue directions in this regard, so that there
is uniformity in the practice followed by the Family Courts/District Courts/Magistrate Courts
throughout the country. We direct that:
128.1.(i) Where successive claims for maintenance are made by a party under different
statutes, the court would consider an adjustment or set-off, of the amount awarded in the
previous proceeding(s), while determining whether any further amount is to be awarded
in the subsequent proceeding.
128.2.(ii) It is made mandatory for the applicant to disclose the previous proceeding and the
orders passed therein, in the subsequent proceeding.
128.3.(iii) If the order passed in the previous proceeding(s) requires any modification or
variation, it would be required to be done in the same proceeding.
(b) Payment of Interim Maintenance
129. The Affidavit of Disclosure of Assets and Liabilities annexed as Enclosures I, II and III of this
judgment, as may be applicable, shall be filed by both parties in all maintenance proceedings,
including pending proceedings before the Family Court/District Court/Magistrates Court
concerned, as the case may be, throughout the country.
(c) Criteria for determining the quantum of maintenance
130. For determining the quantum of maintenance payable to an applicant, the court shall take
into account the criteria enumerated in Part B — III of the judgment. The aforesaid factors are
however not exhaustive, and the court concerned may exercise its discretion to consider any
other factor(s) which may be necessary or of relevance in the facts and circumstances of a case.
(d) Date from which maintenance is to be awarded
131. We make it clear that maintenance in all cases will be awarded from the date of filing the
application for maintenance, as held in Part B — IV above.
(e) Enforcement/Execution of orders of maintenance
132. For enforcement/execution of orders of maintenance, it is directed that an order or decree of
maintenance may be enforced under Section 28-A of the Hindu Marriage Act, 1955; Section
20(6) of the DV Act; and Section 128 of CrPC, as may be applicable. The order of maintenance
may be enforced as a money decree of a civil court as per the provisions of the CPC, more
particularly Sections 51, 55, 58, 60 read with Order 21.
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133. Before we part with this judgment, we note our appreciation of the valuable assistance provided
by the learned Amici Curiae Ms Anitha Shenoy and Mr Gopal Sankaranarayanan, Senior
Advocates in this case.
134. A copy of this judgment be communicated by the Secretary General of this Court, to the
Registrars of all High Courts, who would in turn circulate it to all the District Courts in the
States. It shall be displayed on the website of all District Courts/Family Courts/Courts of Judicial
Magistrates for awareness and implementation.
ENCLOSURE I
Affidavit of Assets and Liabilities for Non-Agrarian Deponents

I _______________,d/o _______________,or s/o _______________, aged about _______________,
years, resident _______________,of_______________, do hereby solemnly affirm and declare as
under:
A. Personal Information
1. Name:
2. Age/Sex:
3. Qualifications (Educational and Professional):
4. Whether the Applicant is staying in the matrimonial house/parental home/separate
residence. Please provide the current residential address of matrimonial home or place of
residence and details of ownership of residence, if owned by other family member.
5. Date of marriage:
6. Date of separation:
7. General monthly expenses of the Applicant (rent, household expenses, medical bills,
transportation, etc.):
B. Details of Legal Proceedings and Maintenance being paid
1. Particulars of any ongoing or past legal proceedings with respect to maintenance or child
support between the Applicant and Non-Applicant.
2. Whether any maintenance has been awarded in any proceeding arising under the DV Act,
CrPC, HMA, HAMA, etc.? If yes, provide details of the quantum of maintenance awarded
in the proceedings.
3. If so, provide particulars thereof, along with a copy of the order(s) passed.
4. Whether the order of maintenance passed in earlier proceedings has been complied with.
If not, arrears of maintenance.
5. Whether any voluntary contribution towards maintenance has been made/will be made in
the future? If yes, provide details of the same.
C. Details of dependent family members
1. Details of dependent family members, if any.
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(a) Relationship with dependants:

(b) Age and sex of dependant(s):
2. Disclose if any independent source(s) of income of the dependants, including interest
income, assets, pension, tax liability on any such income and any other relevant details.
3. The approximate expenses incurred on account of the dependant.
D. Medical details if any, of the deponent and/or dependent family members
1. Whether either party or child/children is suffering from any physical/mental disability, or
any other serious ailment. If yes, produce medical records.
2. Whether any dependent family member has serious disability, requiring continuous
medical expenditure. If yes, produce disability certificate and approximate medical
expenditure incurred on such medical treatment.
3. Whether either party or child/children or any other dependent family member is suffering
from life-threatening diseases, which would entail expensive and regular medical
expenditure? If yes, provide details of the same along with summary of previous details of
hospitalisation/medical expenses incurred.
E. Details of children of the parties
1. Number of children from the existing marriage/marital relationship/previous marriage.
2. Name and age of children.
3. Details of the parent who has the custody of the children.
4. Expenditure for maintenance of dependent children.
(a) Towards food, clothing and medical expenses.
(b) Towards expenses for education, and a summary of general expenses.
(c) Towards expenses, if any, of any extra educational, vocational or professional/
educational course, specialised training or special skills programme of dependent
children.
(d) Details of any loan, mortgage, charge incurred or instalment plan (being paid or
payable), if any, on account of any educational expenses of children.
5. Whether any voluntary contribution by either of the parties is being made towards these
educational expenses? If yes, provide details of the same. Also provide an estimate of any
additional contribution that may be required.
6. Whether any financial support is being provided by a third party for the educational
expenses of the children?
F. Details of Income of the Deponent
1. Name of employer:
2. Designation:
3. Monthly income:
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4. If engaged in government service, furnish latest salary certificates or current pay slips or
proof of deposit in bank account, if being remitted directly by employer.
5. If engaged in the private sector, furnish a certificate provided by the employer stating
the designation and gross monthly income of such person, and Form 16 for the relevant
period of current employment.
6. If any perquisites, benefits, house rent allowance, travel allowance, dearness allowance or
any other service benefit is being provided by the employer during the course of current
employment.
7. Whether assessed to income tax?
If yes, submit copies of the Income Tax Returns for the periods given below:
(i) One year prior to marriage
(ii) One year prior to separation
(iii) At the time when the application for maintenance is filed
8. Income from other sources, such as rent, interest, shares, dividends, capital gains, FDRs, Post
office deposits, mutual funds, stocks, debentures, agriculture, or business, if any, along with TDS
in respect of any such income.
9. Furnish copies of bank statement of all accounts for the last 3 years.
G. Assets (movable and immovable) owned by the Deponent
1. Self-acquired property, if any:
2. Properties jointly owned by the parties after marriage:
3. Share in any ancestral property:
4. Other joint properties of the parties (accounts/investments/FDR/mutual funds, stocks,
debentures, etc.), their value and status of possession:
5. Status of possession of immovable property and details of rent, if leased:
6. Details of loans taken or given by the Deponent:
7. Brief description of jewellery and ornaments of parties acquired during/after marriage:
8. Details of transfer deeds or transactions of alienation of properties previously owned by
the applicant, executed during the subsistence of the marriage. Also provide brief reasons
for such sale or transaction, if any.
H. Details of Liabilities of the Deponent
1. Loans, liabilities, mortgage, or charge outstanding against the Deponent, if any.
2. Details of any EMIs being paid.
3. Date and purpose of taking loan or incurring any such liability:
4. Actual amount borrowed, if any, and the amount paid up to date of filing the Affidavit:
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5. Any other information which would be relevant to describe current liabilities of the
Deponent.
I. Self-employed persons/Professionals/Business Persons/Entrepreneur
1. Brief description of nature of business/profession/vocation/self-employed/work activity.
2. Whether the business/profession/self-employment is carried on as an individual, sole
proprietorship concern, partnership concern, LLP, company or association of persons,
HUF, joint family business or any other form? Give particulars of Applicant’s share in the
partnership/business/professional association/self-employment. In case of partnership,
specify the share in the profit/losses of the partnership.
3. Net Income from the business/profession/partnership/self-employment.
4. Business/partnership/self-employment liabilities, if any, in case of such activity.
5. In case of business of company, provide brief details of last audited balance sheet to indicate
profit and loss of the company in which such party is in business in the company.
6. In case of a partnership firm, provide details of the filings of the last Income Tax Return of
partnership.
7. In case of self-employed individual, provide the filings of the last Income Tax Return from
any such professional/business/vocational activity.
J. Information provided by the Deponent with respect to the income, assets and liabilities of the
other Spouse
1. Educational and professional qualifications of the other spouse:
2. Whether spouse is earning? If so, give particulars of the occupation and income of the
spouse.
3. If not, whether he/she is staying in his/her own accommodation, or in a rented
accommodation or in accommodation provided by employer/business/partnership?
4. Particulars of assets and liabilities of spouse as known to the deponent, along with any
supporting documents.
K. Details of Applicant or the other Spouse, in case parties are Non-Resident Indians, Overseas
Citizens of India, Foreign Nationals or Persons living abroad outside India
1. Details of Citizenship, Nationality and current place of residence, if the Applicant or other
spouse is residing abroad outside India, temporarily or permanently.
2. Details of current employment and latest income in foreign currency of such applicant/
spouse, duly supported by relevant documentation of employment and income from such
foreign employer or overseas institution by way of employment letter or testimonial from
foreign employer or overseas institution or latest relevant bank statement.
3. Details of household and other expenditure of such applicant/spouse in foreign jurisdiction.
4. Details of tax liability of applicant/other spouse in foreign jurisdiction.
—| 273 |—
5. Details of income of applicant/other spouse from other sources in India/foreign

jurisdiction.
6. Details of expenses incurred or contribution made on account of spousal maintenance,
child support or any other educational expenses, medical treatment of spouse or children.
7. Any other relevant detail of expenses or liabilities, not covered under any of the above
headings and any other liabilities to any other dependent family members in India or
abroad.
Declaration
1. I declare that I have made a full and accurate disclosure of my income, expenditure, assets and
liabilities from all sources. I further declare that I have no assets, income, expenditure and
liabilities other than as stated in this affidavit.
2. I undertake to inform this Court immediately with respect to any material change in my
employment, assets, income, expenses or any other information included in this affidavit.
3. I understand that any false statement in this affidavit, apart from being contempt of court, may
also constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal
Code punishable with imprisonment up to seven years and fine, and Section 209 of the Indian
Penal Code punishable with imprisonment up to two years and fine. I have read and understood
Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860.
DEPONENT
Verification
Verified at_______________,on this_______________,day of_______________,that the contents of
the above affidavit are true to my personal knowledge, no part of it is false and nothing material has
been concealed therefrom, whereas the contents of the above affidavit relating to the assets, income
and expenditure of my spouse are based on information believed to be true on the basis of record.
I further verify that the copies of the documents filed along with the affidavit are the copies of the
originals.
DEPONENT
ENCLOSURE II
Details for Affidavit for Agrarian Deponents (Krishi)
1. Total extent of the rural land(s) owned, or the specific shareholding in the same land:
2. Jamabandis/Mutations to show ownership.
3. Location of the land owned by the party.
4. Nature of land : whether wet land or dry land.
5. Whether such land is agricultural land or non-agricultural land:
6. Nature of agriculture/horticulture:
7. Nature of crops cultivated during the year:
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8. If rural land is not cultivable, whether the same is being used for business, leasing or other
activity:
9. Income generated during the past 3 years from the land.
10. Whether any land is taken on lease/battai (or any other term used for a lease in the local area of
the jurisdiction concerned where rural/agricultural land is located.)
11. (a) Whether owner of any livestock, such as buffaloes, cows, goats, cattle, poultry, fishery, bee
keeping, piggery, etc. the number thereof and income generated therefrom?
(b) Whether engaged in dairy farming, poultry, fish farming or any other livestock activity.
12. Loans, if any obtained against the land. Furnish details of such loans.
13. Any other sources of income:
14. Liabilities, if any.
15. Any other relevant information:
Declaration
constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal
Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860.
DEPONENT
Verification
Verified at_______________,on this_______________,day of_______________,that the contents
of the above affidavit are true to my personal knowledge, no part of it is false and nothing material
has been concealed therefrom. I further verify that the copies of the documents filed along with the
affidavit are the copies of the originals.
DEPONENT
ENCLOSURE III
Affidavit for the State of Meghalaya
1. Whether the woman is the youngest daughter of the family.
2. Whether the woman is staying with her husband in her family property.
—| 275 |—
3. Whether she has any maternal uncle, who plays a very important role in their family matters,
which includes settlement of matrimonial disputes. The woman should also disclose her clan
and her lineage.
4. The woman should disclose if her children have adopted the surname of her mother, inasmuch
as Khasi has been defined as “a person who adopts the surname of his or her mother”.
5. The woman should disclose if she gets any financial assistance from her clan or family member.
6. The woman should disclose if her parents are alive more specifically, her mother, and how many
siblings she has.
7. In event of a woman not being the youngest daughter, she has to disclose who the youngest
daughter is.
8. The woman should disclose if she has any movable or any immovable property, self-acquired or
inherited from her clan.
9. The woman should disclose if she is married to tribal or non-tribal.
The above format may be modified or adapted by the court concerned, as may be considered
appropriate.
Declaration
also constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal
Sections 191, 193, 199, and 209 of the Indian Penal Code, 1860.
DEPONENT
Verification
Verified at_______________,on this_______________,day of _______________,that the contents of
the above affidavit are true to my personal knowledge, no part of it is false and nothing material has
been concealed therefrom, whereas the contents of the above affidavit relating to the assets, income
and expenditure of my spouse are based on information believed to be true on the basis of record.
I further verify that the copies of the documents filed along with the affidavit are the copies of the
originals.
DEPONENT
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ROSY JACOB VERSUS JACOB A. CHAKRAMAKKAL

1973 SCR (3) 918 1973 SCC (1) 840
Bench : Hon’ble Mr. Justice I.D. Dua, Hon’ble Mr. Justice A. Alagiriswami &
Hon’ble Mr. Justice C.A. Vaidyialingam
1973 AIR 2090
Petitioner: Rosy Jacob

Vs.
Respondent: Jacob A. Chakramakkal
DATE OF JUDGMENT 05/04/1973
In Rosy Jacob Vs. Jacob A. Chakramakkal, (1973) 1 SCC 840, a three-Judge Bench of the Supreme
Court in a rather curt language had observed that the children are not mere chattels; nor are they
mere play-things for their parents. Absolute right of parents over the destinies and the lives of their
children has, in the modern changed social conditions, yielded to the considerations of their welfare
as human beings so that they may grow up in a normal balanced manner to be useful members of the
society and the guardian court in case of a dispute between the mother and the father, is expected to
strike a just and proper balance between the requirements of welfare of the minor children and the
rights of their respective parents over them.
The requirement of indispensable tolerance and mental understanding in matrimonial life is its
basic foundation. The two spouses before us who are both educated and cultured and who come from
highly respectable families must realise that reasonable wear and tear and normal jars and shocks
of ordinary married life has to be put up with in the larger interests of their own happiness and
of the healthy, normal growth and development of their offspring, whom destiny has entrusted to
their joint parental care. Incompatibility of tamprament has to be endeavored to be disciplined into
compatibility and not to be magnified by abnormal impluses or impulsive desires and passions. The
husband is not disentitled to a house and a housewife, even though the wife has achieved the status
of an economically emancipated woman; similarly the wife is not a domestic slave, but a responsible
partner in discharging their joint, parental obligation in promoting the welfare of their children
and in sharing the pleasure of their children’s company. ‘Both parents have, therefore, to cooperate
and work harmoniously for their children who should feel proud of their parents and of their home,
bearing in mind that their children have a right to expect from their parents such a home.
Guardians and Wards. Act, 1890, Sec. 25-Husband’s application for the custody of children-Welfare
of the children is the dominant consideration.
On the wife’s application, judicial separation was granted under the Indian Divorce Act by the single
Judge of the High Court. The custody of the eldest son was maintained with the husband while that
of the daughter and the youngest son was given to the wife. In the Letters Patent Appeal preferred by
the husband, the Division Bench varied the order directing handing over the custody of the daughter
and the youngest son also to the husband. The principal question before the Court was whether the
husband’s application for the custody of the children u/s 25 of the Guardian and Wards Act, 1890,
was maintainable and, if so, what are the considerations which the Court should bear in mind in
—| 277 |—
exercising the discretion regarding custody of children.

Allowing the appeal,
HELD: (i) On the facts and circumstances of the case, namely, that the Court cannot make any
order under the Divorce Act, as the daughter had attained majority, and no guardian could be
appointed U/S. 19 of the Guardians and Wards Act, 1890 during the life time of the existing guardian,
husband’s application was competent. Welfare of the children is the primary consideration, and
hyper technicalities should not be allowed to deprive the guardian necessary assistance from the
Court in effectively discharging his duties and obligations towards his ward.
(ii) The controlling consideration governing the custody of the children is the welfare of the children
concerned and not the right of their parents. The Court while exercising the discretion should
consider all relevant facts and circumstances so as to ensure the welfare of the children.
The contention that if the husband is not unfit to be the guardian of his minor children, then the
question of their welfare does not at all arise, is misleading. If the custody of the father cannot
promote the children’s welfare, equally or better, than the custody of the mother, then, he cannot
claim indefeasible right to their custody u/s 25 merely because there is no defect in his personal
character and he has attachment for his children-which every normal parent has. As the daughter
has just attained puberty and the youngest son was of the tender age, in the interest of their welfare,
the mother should have the custody in preference to the father.
JUDGMENT
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1295 & 1296 of 1972.
Appeals by special leave from the judgment and order dated April 26, 1972 of the Madras High.Court
in O.S.A. Nos. 2 and 3 of 1971.
K. N. Balasubramanian and Lily Thomas, for the appellant.
The respondent appeared in person.
DUA, J.-The real controversy in these two appeals by special leave preferred by the wife against her
husband, lies in a narrow compass. These appeals are directed against the judgment and order of a
Division Bench of the Madras High Court allowing the appeals by the husband and dismissing the
cross-objections by the wife from the judgment and order of a learned single judge of the same High
Court dismissing about 25 applications seeking diverse kinds of reliefs, presented by one or the other
party. According to the learned single Judge (Maharajan J.) “these 25 applications represent but a
fraction of the bitterness and frustration of an accomplished Syrian Christian couple who after making
a mess of their married life have endeavoured to convert this Court into a machinery for wreaking
private vengeance’. This observation reflects the feelings of the husband and the wife towards each
other in the present litigation. The short question which we are called upon to decide relates to the
guardianship of the three children of the parties and the solution of this problem primarily requires
consideration of the welfare of the children.
The appellant, Rosy Chakramakkal (described herein as wife) was married to respondent Jacob A.
Chakramakkal (described herein as husband) sometime in 1952. Three children were born from this
—| 278 |—
wedlock. Ajit alias Andrews,, son, was born in 1955, Maya alias Mary was born in 1957 and Mahesh
alias Thomas was born in 1961. Sometime in 1962 the wife started proceedings for judicial separation
(O.M.S. 12 of 1962). on the ground that the husband had inflicted upon her several acts of physical,
mental and moral cruelty and obtained a decree on April 15, 1964. Sadasivam J., while granting the
decree directed that Ajit alias Andrews (son) the eldest child should be kept in the custody of the
husband and Mary alias Maya (daughter) and Thomas alias Mahesh (youngest son) should be kept in
the custody of the wife. The husband was directed to pay to the wife Rs.200/ per mensem towards the
expenses and maintenance of the wife and the two children.
The wife applied to Sadasivam J., sometime later for a direction that Ajit alias Andrews should also be
handed over to her or in the alternative for a direction ’that the boy should be admitted in a boarding
school. In this application (no. 2076 of 1964) it was alleged by the wife that the husband had beaten
Ajit on the ground that he had accepted from his mother’ (the wife) a fountain pen as a present. This
was denied by the husband but the learned Judge, after elaborate enquiry, held that he had no doubt
that the husband had caused injuries to the boy on account of his sudden out burst of temper on
learning that Ajit had received a fountain pen by way of present from his mother on his birth day. Ajit
was accordingly to be handed over to the mother subjected to certain conditions.
The husband preferred an appeal against the decree made in O.A4.S. 12 of 1962 (O.S.A. 65 of 1964)
and another appeal against the order made by Sadasivam J., (in application no. 2076 of 1964 in O.M.S.
12 of 1962) directing the custody of the eldest son Ajit to be handed over to the wife (O.S.A. 63 of
1964). On August 2, 1966 the appellate bench confirmed the decree for judicial separation granted
by Sadasivam J., and also issued certain, directions based on agreement of the parties with respect to
the custody of the children, as. also reduction of the monthly maintenance payable by the husband
to the wife from Rs. 200/to Rs. 15011- p.m., inclusive of maintenance payable for Mahesh. According
to this order the eldest boy Ajit alias Andrews directed to remain in the custody of the father and to
be educated ’by him at his expense : Mahesh alias Thomas was directed to be in the custody of the
mother to be educated at her expense: and the second child Maya alias Mary was directed to be put
in a boarding school, the expenses of her board and education to be met in equal shares by both the
parents.
The husband also undertook that ’he will arrange to have the presence of his mother or sister at his
residence to attend to the children whenever they are with him and never to leave the children alone at
his residence or to the care of his servants or others”. Later both the husband and wife presented a series
of applications in the appellate court seeking modifications of its directions. That court ultimately
made an order on February 2, 1967 modifying its earlier directions. The modified order directed Maya
to be left in the exclusive custody of the wife who was at liberaty to educate her in the manner she
thought best at her own cost. The appellate court also modified the direction regarding maintenance
and ordered that the husband should pay to the wife maintenance at the rate of Rs. 200/- p.m. as
awarded by the learned single judge. Subsequently the directions of the appellate, court regarding
access of the mother and the father to the children were also sought by the parties to be modified to the
prejudice of each other. The matters are stated to have been heard by most of the Judges of the Madras
High Court at one stage or the other and according to Maharajan J., ’,he parties even tried to secure
transfer of these proceedings by making wild allegations of partiality against some of the Judges. The
husband who is an advocate of the Madras High Court, had, according to the wife, been filing cases
systematically against her and the wife, who, in the opinion of Maharajan J., has the gift of the gab also
—| 279 |—
argued her own cases. The children for whose welfare the parents are supposed to have been fighting
as observed by Maharajan J., are given a secondary consideration and the quarrelling couple have lost
all sense of proportion. On account of these considerations the learned single Judge felt that it would
be a waste of public time to consider in detail the trivialities of the controversy pressed by both the
parties to this litigation.
According to the learned single Judge the following four points arose for his judicial determination’.
“(1) Whether by defaulting to pay the maintenance decreed, the husband must be held
guilty of contempt and shall not be allowed to prosecute his applications before he
purges himself of contempt?
(2) What is the proper order to pass as regards the custody of the three children of the
marriage in the light of the events that have occurred subsequent to the judgement of
the appellate court and under the Guardians and Wards Act ?
(3) What is the proper order to pass as to the access of either parent to the children in the
custody of the other?
(4) Whether in the light of the subsequent events, the order regarding maintenance
allowance should be reduced, enhanced or altered in any manner and if so, how?’
On the first point the learned single Judge came to the conclusion that the husband could
not be declined hearing merely because he had not paid the maintenance as directed by the
matrimonial court. The amount in respect of which the husband had defaulted payment
could be recovered through execution proceedings. On point no. 2 the learned single Judge
proceeded to consider the question of the custody of the three children with the preliminary
observation that the controlling factor governing their custody would be their welfare and not
the rights of their parents. The eldest child Ajit alias Andrews, according to the learned Judge,
was doing well at the school and was progressing satisfactorily both mentally and physically.
There was accordingly no reason ’to. transfer his custody from his father to his mother. As
regards the second child Maya alias Mary, as she was about to attain puberty and the wife
being anxious that till she got married she must be in the mother’s vigilant and affectionate
custody she was to remain with her mother. Mahesh alias Thomas, who was considered to
be of tender years and in the formative stage of life requiring sense of emotional security
which a mother alone could give, was also kept in the custody of his mother. With respect to
Maya and Mahesh it was further observed that from their educational. point of view the wife
was a more suitable custodian than the husband because she was running a primary school
from nursery to fifth standard with more than a hundred pupils and was also residing in a
portion or the school premises enjoying certain facilities in her capacity as the founder and
principal of that school. The husband, who was described as a grass widower without female
relatives to look after the children, was not preferred to the wife as, while being with her, the
children would be living in an academic atmosphere. With respect to the husband’s complaint
that from the moral point of view the wife was not fit to have the custody of the children,
Maharajan J., observed that earlier Sadasivam J., had dealt with the entire evidence relating
to this charge and had found no sufficient ground for such amputations and that they were
likely to cause mental pain to the wife and affect her health. The husband had even been held
guilty of mental and moral cruelty to the wife. The husband’s contention that his opinion was
—| 280 |—
reversed by the appellate bench was disposed of by Maharajan J., after quoting the following
passage from the appellate judgment dated August 2, 1966 “But it is to be clearly understood
that there should be no slur on the part of either the appellant or the respondent because
of the several proceedings in court and other happenings outside. The decree for judicial
separation which is confirmed does not cast any cloud on the reputation or character of the
husband or the wife. They have reached this settlement keeping in view all the circumstances
and particularly the welfare of their minor children.”
According to Maharajan 3., the appellate bench had felt satisfied that the charge of immorality levelled
by the husband against the wife was not established because had it not been so satisfied the bench would
not have entrusted two of the three children to the wife. The husband was in the circumstances held
by Maharajan J., disentitled to reopen the question of the wife’s immorality. In any event, Maharajan
J., also rejected the charge of immorality as unproved, for the same reasons which had weighed with
Sadasivam J. With respect to point no. 3 the learned single Judge gave the following directions :
“(1) On the first Sunday of every month, except during the school vacations, the husband
shall send Ajit alias Andrews to the wife by 8.00 a.m. and the wife shall send back the
child by 8. p.m. the same day.
(2) The wife shall send Maya alias Mary and Thomas alias Mahesh to the husband’s by 8
a.m. on the last Sunday of every month, except during the school vacations, and the
husband shall send them back by 8 p.m. the same day.
(3) Each party shall send the children by a conveyance taxi, rickshaw or bus, after prepaying
the fare thereof.
(4) The wife shall send Mary alias Maya and Thomas alias Mahesh to the husband, so hat
they might stay with him and Ajit alias Andrews for thirty days during the summer
vacation. The exact time and dates of departure and arrival will be fixed with reference
to the convenience of parties and after change, of letters between them at least one
months prior to the commencement of the vacation’ Likewise, the husband will send
Ajit to the wife to enable him to spend the whole Dasara and Christamas vacations in
the company of his mother, sister and brother.”
On the fourth point the learned single Judge, fater considering at length the wife’s allegations against
the husband with respect to his extravagance and inability, reduced the quantum of maintenance
payable by him to the wife to Rs. 100/- p.m., the reduced amount being payable with effect from
January 1, 1971. The husband was directed to pay the monthly maintenance on or before the 10th of
the succeeding month. This order was made with the observation that the earning capacity of the wife
was superior to that of the husband.
It is unnecessary to refer to the formal orders separately passed in the various applications. Suffice it to
say that the parties were left to bear to their own costs and hope was expressed in the coneluding para of
the judgment by Maharajan, J. that “the parties will refrain from rushing to this court with applications
of the kind that have been dismissed and will apply themselves assiduously to the improvement of
their status in their respective professions and to alleviation of the pain of material failure, which has
unfortunately been visited upon the three lovely and sprightly children that they have produced.”
—| 281 |—
Contrary to the hope expressed by learned Judge, the matter was taken to the appellate bench of
the High Court under cl. 15 of the Letters Patent (O S. Appeal Nos. 2 and 3 of 1971). The wife also
pressented cross-objections against the reduction of alimony and against directions as regards the
father’s access of Maya. A large number of applications were presented to the Court parties praying
for diverse reliefs including action for contempt of court for disobedience of the court’s orders. The
hearing of the appeals somewhat surprisingly lasted for more than a year (March 1971 to March 1972).
We find no justification for such prolonged hearing on a fairly simple matter like this. According to
the Letters Patent Bench the arguments on both sides “mainly rested upon the character of each”. The
husband is said to have repeatedly accused the wife with immorality. In the opinion of the Letters
Pantent Bench “the truth or otherwise of the matter may assume importance only for the purpose of
deciding upon the fitness of the person to ’be the guardian of the children”. Final orders were passed
on April 26, 1972 by means of which the husband was held to be better fitted to be the guardian of the
three children and to have their custody. This decision was stated to be based on evidence and in view
of ss. 17, 19 and 25 of the Guardians and Wards Act. This is what one of the Judges constituting the
Letters Patent Bench (Gokul Krishnan, J.,) said in this connection “In our opinion, the principles to
be applied to cases of this kind will be the same both under the Indian Divorce Act and the Guardians
and Wards Act, 1890. But since the father has specifically filed a petition, O.P. No. 270 of 1970, under
section 25 of the Guardians and Wards Act, and that being a special law for the purpose will certainly
apply, we shall concentrate on the Guardians and Wards Act, 1890”.
After quoting S. 19 of the Guardians and Wards Act the learned Judge proceeded :
“It is thus clear that the special enactment definitely states that the father is the guardian of
the minor until he is found unfit to be the guardian of the person of the minor. The welfare of
the minor is the paramount consideration in the matter of apointing guardian for the person
of minor, and cannot be said to be in conflict with the terms of section 19 of the Guardians
and Wards Act which recognize the father as the guardian. Bear ing this in mind, we proceed
to consider as to who is fit and proper to be the guardian for the person of the minor children
in this case.”
In his view the principle on which the Court should decide the fitness of the guardian mainly depends
on two factors :
(i) the father’s fitness or otherwise to be the guardian and
(ii) the interests of the minors. Considering these factors it was felt that both the parties in the
present case loved their children who were happy during their stay with both of their parents.
There was in his view, absolutely no proof as regards disqualification of the husband to be the
guardian of the minor children. It may here be pointed out that both the Judges constituting
the Letters Patent Bench wrote separate judgments. Gokulakrishnan J., commenting on the
Judgment of Maharajan J., observed thus :
“Maharajan J. in his judgment under appeal no doubt referred to section 19 of the Guardians and
Wards Act, but would observe that if the Court finds that the welfare of the minor children could be
protected only in the maternal custody, the Court has power to put the children in the care of custody
of the mother. The learned Judge clearly observed that Ajit, the eldest boy, who is in the custody of
the appellant, is quite healthy and cheerful, doing well at school and that his sojourn with the father
has not prejudicially affected him physically or mentally. But at the same breath, the learned Judge
—| 282 |—
says that Maya and Mahesh ’are of tender years and in the formative stage of their life and need a
sense of emotional security, which a mother alone can give.’In the case of Maya and Mahesh, the
learned Judge has applied a different standard in regard to their custody. Considering the present
age of both Maya and Mahesh and taking into consideration the upbringing of Ajit by the appellant
having him in his custody, we are of the view that the same amount of sense of emotional security can
be enjoyed by Maya and Mahesh at the hands of the appellant also. The learned Judge’s reasoning that
the mother is running a school and has also facilities to make these two children live in the academic
atmosphere rather than with their father, cannot have any force, in. view of the clear and categorical
principles laid down in the various decisions noticed (supra) and also in view of the clear intendment
and spirit of the Guardians and Wards Act, which prescribes that father is the guardian of his minor
child unless other wise found unfit. The academic qualification of the mother, her financial status
and the other standards cannot at all weigh in the matter when the appellant has not been rejected
as a person unfit to be the guardian of the minors. If they should weigh, the poorer and affectionate
father with moderate capacity to protect his children will be deprived of the custody of the minor
children on the flimsy ground of ’welfare of the minor children’. That is how and why ’,the welfare of
the minor children’ must be read with ’fitness or unfitness of the father to be guardian of the minors.
Once it is found that the father is the fit and proper person to be the guardian of his minor children,
unless it is otherwise found that he is not fit, it must be presumed that the children’s interests will be
properly protected by the father. As far as the present case is concerned, when the trial court itself
has found that Ajit has been properly looked after and brought up very well in his academic career by
the appellant, there cannot be any difficulty in coming to the conclusion that Maya and Mahesh will
also be looked after and protected and imparted with proper education by the affectionate father, the
appellants After reproducing certain observations from the judgment’, of (i) Sadasivam J., dated April
15, 1964, (ii) Veeraswamy 1.. (as he then was) and Krishnaswami Reddy J., dated February 1967 in
C.M.P. 415 in O.S.A. nos. 63 & 65 of 1969, Ramamurthy J., dated April 24, 1968 in application nos. 769
and 770 of 1968 in O.M.S. 12 of 1962 and after referring to the view of Maharajan J., that Ajit when
produced in Court was found quite healthy and cheerful and was doing well at school, Venkataraman
J. in his concurring judgment observed thus :-
“Regarding the other children, he gave their custody to the mother, because he thought that
they were of tender years and needed emotional security which a mother alone could give.
Here, with respect we must differ from the learned Judge. We find that the father is quite fit to
have the custody of the children, and. in law, custody of the minor children cannot be refused
to him. We are also satisfied from what we saw of the appellant and, heard from him during
the several hearings, that he is very deeply attached to his children and is quite competent to
have their custody. It wilt be enough if the mother is allowed a somewhat liberal access to the
three children.”
With respect to alimony the appellate bench concluded that the wife was managing her school very
successfully; she had purchased a mini-bus and also possessed wet lands in her village The husband on
the other hand was not getting on well in his profession which he attributed to the present litigation :
his house at Adyar was stated to be under mortgage and he had practically sold everything in his native
village with the exception of one, or one-and-half acres of land. In view of the financial position of the
wife and the husband and in view of the fact that all the three children were to be in the custody of the
husband the appellate bench considered it unnecessary for the’ husband to pay any maintenance to
—| 283 |—
the wife. The payment of the arrears of alimony was also suspended as the appellate bench considered
itself empowered to do so under the proviso to s. 37 of the Indian Divorce Act. In so far as access of the
wife to’ the children is concerned a detailed order was passed by the bench about the right of the wife
to take the daughter with her during the summer and Christmas vacations and also during several
days every month, particularly during the periods. We do not consider it necessary to state in full the
details of that order. With respect to Ajit and Mahesh also a detailed order was made fixing the precise
days and even time when the wife could bring the children from the father to stay with her. In the
event of any difficulty in getting custody of the children from the wife, it was ordered at the instance of
the husband, that he could take the police help on the strength of the High Court judgment. We find it
extremely difficult to appreciate this direction. Orders from the Court in execution would have ’been
more appropriate. Police intervention in such personal domestic differences in the present case, where
parties belong to educated respectable families should have been avoided.
In this Court a preliminary objection to the hearing of the wife’s appeal was raised by the husband,
who, being an advocate, personally addressed us in opposing these appeals. Indeed in June, 1972 he
had presented Civil Miscellaneous Petitions Nos. 4188 and 4189 of 1972 for revoking special leave,
and it was these applications which he pressed before us at the outset. These lengthy applications
covering nearly 50 pages mainly contain arguments on the merits and there is hardly any cogent
ground made out justifying revocation of the special leave. It is no, doubt open to this Court to revoke
special leave when it transpires that special leave had been secured by the appellant on deliberate
misrepresentation on a material point having a bearing on the question of granting such leave. The
extraordinary discretionary power vested in this Court by the Constitution under Act, 136 is in the
nature of a special residuary power exercisable in its judicial discretion outside the purview of ordinary
law in cases where the needs of justice demand interference. Being discretionary power intended only
to Promote the cause of justice when there is no other adequate remedy, this Court expects those
seeking resort to this reserve. of constitutional power for securing justice to be absolutely fair and
frank with this Court in correctly stating the relevant facts and circumstances of the case. In the event
of a party making a misrepresentation on a point having a bearing on the question of the exercise
of judicial discretion and thereby-trying to over-reach this Court the party forfeits the claim to the
discretionary relief : the same is the case when such misrepresentation is discovered by this Court and
brought to its notice after the grant of special leave and this Court is competent and indeed it considers
it proper to revoke the special-leave thus Obtained. But the misrepresentation must be deliberate
and on a point having such relevance to the question of special leave that if true facts were known
this Court would leave in all Probability declined special leave. Applying this test to the, present case
we arc unable to find any such deliberate misrepresentation by the, appellant indicating intention to
mislead or over-reach this Court. The points to which our attention was drawn seem to relate to the
merits of the controversies between the parties which would fall for determination on the hearing of
the appeal after considering the arguments pro and con. The preliminary objection thus fails and must
be disallowed.
Turning to the merits of these appeals, it may be pointed out that with the exception of O.P. No. 270
of 1970 filed by the husband under S. 25 of the Guardians and Wards Act all the other applications
presented by the parties and disposed of by Maharajan J., were off-shoots of O.M.S. 12 of 1962 in which
the wife had obtained a decree for judicial separation. The first contention raised on behalf of the
appellant was that O.P. No. 270 of 1970 did not lie. It was strenuously pressed by Shri Balasubaramania
lyer the counsel for the appellant wife that the husband’s application under s. 25, Guardians and Wards
—| 284 |—
Act was not competent because none of the children had been illegally removed from the lawful
custody of their father, the custody of the two children having been lawfully entrusted to the wife in
proceedings to which the husband was a party. It was emphasised in this connection that the custody
of the girl Maya and of the boy Mahesh had been lawfully entrusted to ,the wife by a competent Court
and unless there is actual physical removal of the children from the custody of the father, S. 25 would.
not be attracted.
Now the first thing to be notified is that this objection as to the competence of the application under
S. 25 is in the nature of a preliminary objection. But it was not raised either before the learned single
Judge or before the Letters Patent Bench in the manner in which it is pressed before us. In this Court
also in the special leave appeal the objection seems to be based on the argument that the Guardians and
Wards Act would be inapplicable to cases where orders have been made in. matrimonial proceedings,
and s. 19 of the Guardians and Wards Act cannot control the custody or children given by a consent
decree under the Indian Divorce Act. However, as the objection was stated to pertain to jurisdiction
we allowed the parties to address us on this point.
For determining the question of competence of the husband’s application under s. 25 of the Guardians
and Wards Act (18 of 1890) it is necessary to examine the scheme of that Act as also the relevant
provisions of the Indian Divorce Act.
The Guardians and Wards Act was enacted in order to consolidate and amend the law relating to
Guardian and Ward. But as provided by s.3, this Act is not to be construed, inter alia ,to take away any
Power possessed by any High Court. According to s.4, which is the definition section, a “minor’ is a
Person who, under the provisions of the Indian Majority Act, 1875 is to be deemed not to have attained
his majority. Under S. 3 of that Act this age is fixed at 18 years, except for those, for whose person or
property or both a guardian has already been appointed by a court of justice (other than a guardian
for a suit under Chapter XXXI, C.P.C.) and for whose property, superintendence has been assumed by
a Court of Wards, for whom it is fixed at 21 years. A “ward” under this Act means a minor for whose
person or property or both there is a guardian and “guardian” is a person having the care of the person
of a minor or of his property or both. Chapter 11 of this Act (18 of 1890), consisting of ss.5 to 19 (s.
5 applicable to European British subjects has since been repealed, deals with the Appointment and
Declaration of Guardians. Section 7 empowers the Court to make orders as to guardianship where it
is satisfied that it is for the welfare of the minor that an order should be made appointing his guardian
or declaring a person to be such guardian. Section 7(3) places certain restrictions with respect to cases
where guardians have been appointed by will or other instrument or appointed or declared by court.
Section 8 provides for persons entitled to apply under s. 7 : they include Collectors as specified in cls.
(c) and (d). Sections 9 to 11 provide for jurisdiction of. courts, form of applications and procedure on
admission of applications. Section 12 provides for interlocutory orders subject to certain restrictions.
Next important sections are ss. 17 and 19. Section 17 which provides for the matters to be considered
by the court in appointing or declaring guardian reads :
“17. Matters to be considered by the Court in appointing guardian.
(1) In appointing or declaring the, guardian of a minor, the Court shall, subject to
the provisions of this section, be guided by what consistently with the law to
which the minor is subject, appears in the circumstances to be for the welfare of
the minor.
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(2) In considering what will be the welfare of the minor, the Court shall have regard
to the age, sex and religion of the minor, character and capacity of the proposed
guardian and his nearness of kin to the minor, the wishes, if any, of the deceased
parent, and any existing or previous relations of the proposed guardian with the
minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may
consider that preference.”
Section 19, which prohibit the Court from appointing guardians in certain cases, reads :
“19. Guardians not to be appointed by the Court in certain cases Nothing in this Chapter shall
authorise the Court to appoint or declare a guardian of the property of a minor whose
property is under the superintendence of a Court of Wards, or to appoint or declare a
guardian of the property of a minor whose property is under the superintendence of a
Court of Wards, or to appoint or declare a guardian of the person.
(a) of a minor who is a married female and whose husband is not, in the opinion of
the Court, unfit to be guardian of her person, or
(b) of a minor whose father is living and is not, in the opinion of the Court. unfit to
be guardian of the person of the minor, or
(c) of a minor whose property is under the superintendence of a Court of Wards
competent to appoint a guardian of the person of the minor.”
Chapter III (ss. 2O to 42) prescribes duties, rights and liabilities of, guardians. Sections 20-23 (General
provisions) do not concern us. Section 20 provides for the fiduciary relationship of guardian towards
his wards and S. 22 provides for remuneration of guardians appointed or declared by the Court.
Sections 24 to 256 deal with “’Guardian of the person”. Under s. 24 the guardian is bound, inter alia, to
look to his ward’s support, health and education. Section 25 which is of importance for our purpose
provides for “Title of Guardian to custody of Ward” and reads
“25. Title of guardian to custody of ward :
(1) If a ward leaves or is removed from the custody of a guardian of his person, the
Court, if it is of opinion ,that it will be for the welfare of the ward to return to the
custody of his guardian, may make an order for his return, and for the purpose
of enforcing the order may cause the ward to be arrested and to be delivered into
the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power
conferred on a Magistrate of the first class by section 100 of the Code of Criminal
Procedure, 1882.
(3) The residence of a ward against the will of his guardian with a person who is not
his guardian does not of itself terminate the guardianship.”
Sections 27 to 37 deal with “Guardian’s Property” and Sections 38 to 48 deal with”’Termination of
Guardianship”. Chapter IV (ss. 43 to 51) is the last chapter dealing with supplementary provisions.
—| 286 |—
Now it is clear from the language of S. 25 that it is attracted only if a ward leaves or is removed from
the custody of a guardian of his person and the Count is empowered to make an order for,the return
of the ward to his guardian if it is of opinion that it will be for the, welfare of the, ward to return to the
custody of his guardian. The Court is entrusted with a judicial discretion to order return of the Ward
to the custody of his guardian, if it forms an opinion that such return is for the ward’s welfare. The use
of the words “ward” and “guardian” leave little doubt that it is the guardian who, having the care of the
person of his ward, has be-In deprived of the same and is in the capacity of guardian entitled to the
custody of such ward, that can seek the assistance of the Court for the return of his ward to his custody.
The guardian contemplated by this section includes every kind of guardian known to law. It is not
disputed that, as already noticed, the Court dealing with the proceedings for judicial separation under
the Indian Divorce Act, (4 of 1869) had made certain orders with respect to the custody, maintenance
and education of the three children of the parties. Section 41 of the Divorce Act empowers the Court
to make interim orders with respect to the minor children and also to make proper provision to that
effect in the decree : s. 42 empowers the Court to make similar orders upon application (by petition)
even after the decree. This section expressly embodies the legislative recognition of the ,fundamental
rule that the Court as representing the State is vested with the power as also the duty and responsibility
of making suitable orders for the custody, maintenance and education of the minor children to suit the
changed conditions and circumstances. It is, however, noteworthy that under Indian Divorce Act the
sons of Indian fathers cease to be; minors on attaining the age of 16 years and their daughters cease to
be minors on attaining the age of 13 years : s. 3(5).
The Court under the Divorce Act would thus be incompetent now to make any order under ss. 41 and
42 with respect to the elder son and the daughter in the present case. According to the respondent
husband under these circumstances he cannot approach the Court under the Divorce, Act for relief
with respect to the custody of these children and now that those children have ceased to be minors
under that Act, the orders made by that Court have also. lost their vitality On this reasoning the
husband claimed the right to invoke S. 25 of the Guardians and Wards Act : in case this section is not
applicable, then the husband contended, that his application (O.P. 270 of 1970) should be, treated to
be an application under S. 19 of the Guardians and Wards Act or under any other competent section
of that Act so that he could Let the custody of his children, denied to him by the wife. The label on
the application, he argued, should be treated as a matter of mere form and, therefore, immaterial. The
appellant’s counsel on the other hand contended that the proper procedure for the husband to adopt
was to apply under s.7 of the Guardians and Wards Act. Such an application, if made, would have been
tried in accordance with the provisions of that Act. The counsel added that ss. 7 and 17 of that Act also
postulate welfare of ,the minor in the circumstances of the case, as the basic and primary consideration
for the Court to keep in view when appointing or declaring a guardian. The welfare of the minors in
the present case, according to the wife, would be best served it they remain in her custody.
In our opinion, S. 25 of the Guardians and Wards Act contemplates not only actual physical custody
but also constructive custody of the guardian which term includes all categories of guardians. The
object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which
necessarily involves due protection of the right of his guardian ,to properly look after the ward’s health,
maintenance and ,education, this section demands reasonably liberal interpretation so as to effectuate
that object.
—| 287 |—
Hyper-technicalities should not be allowed to deprive the guardian the necessary assistance from
the Court in effectively discharging his duties and obligations towards his ward so as to promote the
latter’s welfare. If the ,Court under the Divorce Act cannot make any order with respect to the custody
of Ajit alias Andrew and Maya alias Mary and it is not open to the Court under the Guardians and
Wards Act to appoint or declare guardian of the person of his children under s. 19 during his life-time,
if the Court does not consider him unfit, then, the only provision to which the father can have resort
for his children’s custody is S. 25. Without, therefore, laying down exhaustively the circumstances in
which s. 25 can be invoked, ’in our opinion, on the facts and circumstances of this case the husband’s
application under S. 25 was competent with respect to the two elder children. The Court entitled
to consider all the disputed questions of fact or law properly raised before it relating to these two
children. With respect to Mahesh alias Thomas. however, the Court under the Divorce Act is at present
empowered to make suitable orders relating to his custody, maintenance and education. It is, herefore,
somewhat difficult to impute to the legislature an intention to set up, another parallel Court to deal
with the question of the custody of a minor which is within the power of a competent Court under
the Divorce Act. We are unable to accede to the respondent’s suggestion that his application should
be considered to have been preferred for appointing or declaring him as a guardian. But whether
the respondent’s prayer for custody of the minor children be, considered under the Guardians and
Wards Act or under the Indian Divorce Act, as observed by Maharajan J., with which observation we
entirely agree, “the controlling consideration governing the custody of the children is the welfare of
the children concerned and not the right of their parents” It was not disputed that under the Indian
Divorce Act this is the controlling consideration. The Court’s power under s.25 of the Guardians and
Wards Act is also, in our opinion, to be governed primarily by the consideration of the welfare of the
minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions
to be exercised judiciously in the background of all the relevant facts and circumstances. Each case
has to be decided on its own facts and other cases can hardly serve as binding precedents, the facts
of two cases in this respect being seldom-if ever-identical. The contention that if the husband is not
unfit to be the guardian of his minor children, then, the question of their welfare does not at all arise
is to state the proposition a bit too broadly may at times be somewhat misleading. It does not take full
notice of the real core of the statutory purpose. In our opinion, the dominant consideration in making
orders under s.25 is the welfare of the minor children and in considering this question due regard has
of course to be paid to the right of the father to be the guardian and also to all other relevant factors
having a bearing on the minor’s welfare. There is a presumption that a minor’s parents would do their
very best to promote their children’s welfare and, if necessary, would not grudge any sacrifice of their
own personal interest and pleasure. This presumption arises because of the natural, selfless affection
normally expected from the parents for their children. From this point of view, in case of conflict or
dispute between the mother and the father about the custody of (their children, the approach has to
be somewhat different from that adopted by the Letters Patent Bench of the High Court in this case.
There is no dichotomy between the fitness of the father to be entrusted with the custody of his minor
children and considerations of their welfare. The father’s fitness has to be considered, determined and
weighed predominantly in terms of the welfare of his minor children in the context of all the relevant
circumstances. If the custody of the father cannot promote their welfare equally or better than the
custody of the mother, then, he cannot claim indefeasible right to their custody under s.25 merely
because there is no defect in his personal character and he has attachment for his children which every
normal parent has. These are the only two aspects pressed before us, apart from the stress laid by the
—| 288 |—
husband on the allegations of immorality against the wife which, in our firm opinion, he was not at
all justified in contending. Such allegations, in view of earlier decisions, had to be completely ignored
in considering the question of custody of the children in the present case. The father’s fitness from the
point of view just mentioned cannot over-ride considerations of the welfare of the minor children.
No doubt, the father has been presumed by the statute ,generally to be better fitted to look after the
children-being normally the earning member and head of the family-but the Court has in each-case
to see primarily to the welfare of the children in determining the question of their custody, in the
background of .all the relevant facts having a bearing on their health, maintenance and education.
The family is normally the heart of our society and for a balanced and healthy growth of children it
is highly desirable that they got their due share of affection and care from both the parents in their
normal parental home.
Where, however, family dissolution due to some unavoidable circumstances becomes necessary
the Court has to come to a judicial decision on the question of the welfare of the children on a full
consideration of all the relevant circumstances. Merely because the father loves his children and is
not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of
the children would be better promoted by granting their custody to him as against the wife who may
also be equally affectionate towards her children and otherwise equally free from blemish, and who in
addition because of her profession and financial resources, may be in a posit-ion to guarantee better
health, education and maintenance for them. The children are not mere chattels; nor are they mere
playthings for their parents. Absolute right of parents over the destinies and the lives.of their children,
has, in the modern changed social conditions, yielded to the considerations of their welfare as human
beings so that they may grow up in a normal balanced manner to be useful members of the society
and the guardian court in case of a dispute ’between the mother and the father, is expected to strike a
just and proper balance between the requirements of welfare of the minor children and the rights of
their respective parents over them. The approach of the learned single Judge, in our view, was correct
and we agree with him. The Letters Patent Bench on appeal seems to us have erred in reversing him on
grounds which we are unable to appreciate.
At the bar reference was made to a number of decided cases on ’the question of the right of, father
to No appointed or declared as guardian and to be granted custody of his minor children under s.
25 read with S. 19 of the Guardians and Wards Act. Those decisions were mostly decided on their
own peculiar facts. We have, therefore not considered it necessary to deal with them. To the extent,
however, they go against the view we have taken of s. 25 ,of the Guardians and Wards Act, they must
be held to be wrongly, decided. The respondent’s contention that the Court under the Divorce Act had
granted custody of the two younger children to the wife on the ground of their being of tender age, no
longer holds good and that, therefore, their custody must be handed over to him appears to us to be
misconceived. The age of the daughter at present is such that she must need the constant company of ,I
grown-up female in the house genuinely interested in her welfare. Her mother is in the circumstances
the best company for her. The daughter would need her mother’s advice and guidance on several
matters of importance. It has not been suggested at the bar that any grown-up woman closely related
to Maya alias Mary would be available in the husband’s house for such motherly advice and guidance.
But this apart, even from the point of view of her education, in our opinion, her custody with the wife
would be far more beneficial than her custody with the husband. The youngest son would also’ in our
—| 289 |—
opinion, be much better looked after by his mother than by his father who will have to work hard to
take a mark in his profession.
He has quite clearly neglected his profession and we have no doubt that if he devotes himself ’
wholeheartedly to it he is sure to find his place fairly high tip in the legal profession.
The appellant’s argument based on estoppel and on the orders made by the court under the Indian
Divorce Act with respect to the custody of the children did not appeal to us. All orders relating to the
custody of the minor wards from their very nature must be considered to be temporary orders made
in the existing circumstances. With the changed conditions and Circumstances, including the passage
of time, the Court is entitled to vary such orders if such variation is considered to be in the interest
of the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel
based, on consent decrees cited at the bar. Orders relating to custody of wards even when based on
consent are liable to be varied by the Court, if the welfare of the wards demands variation.
We accordingly allow the appeal with respect to the custody of the two younger children and setting
aside the judgment of the Letters Patnet Bench in this respect, restore that of the learned single Judge
who, in our view, had correctly exercised his discretion under s. 25 of the Guardians and Wards Act,
The directions given by him with respect to access of the parties to their children are also restored. As
regards alimony, no doubt. the Letters Patent Bench was, in our opinion, not quite right in withholding
payment of the alimony already fallen due and in arrears. But in view of the fact that the financial
position of the wife is far superior to that of the husband who according to his own submission. has
yet to establish himself in his profession, we do not consider it just and proper to interfere with that
order under Art. 136 of the Constitution. With respect to the alimony, therefore, the appeal fails and
is dismissed. We also direct that the parties should bear their own costs throughout. ,
Before concluding we must also express our earnest hope, as was done by the learned single Judge, that
the two spouses would at least for the sake of happiness of their own offspring if for no other reason,
forget the past and turn a new leaf in their family life, so that they can provide to their children a happy,
domestic home, to which their children must be considered to be justly entitled. The requirement of
indispensable tolerance and mental understanding in matrimonial life is its basic foundation. The two
spouses before us who are both educated and cultured and who come from highly respectable families
must realise that reasonable wear and tear and normal jars and shocks of ordinary married life has to
be put up with in the larger interests of their own happiness and of the healthy, normal growth and
development of their offspring, whom destiny has entrusted to their joint parental care. Incompatibility
of tamprament has to be endeavored to be disciplined into compatibility and not to be magnified by
abnormal impluses or impulsive desires and passions. The husband is not disentitled to a house and
a housewife, even though the wife has achieved the status of an economically emancipated woman;
similarly the wife is not a domestic slave, but a responsible partner in discharging their joint, parental
obligation in promoting the welfare of their children and in sharing the pleasure of their children’s
company. ’Both parents have, therefore, to cooperate and work harmoniously for their children who
should feel proud of their parents and of their home, bearing in mind that their children have a right
to expect from their parents such a home.
Appeal allowed in part.
qqq
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ABHILASHA VERSUS PARKASH & ORS.

(arising out of SLP (Crl.) No.8260/2018)
Bench : Hon’ble Mr. Justice Ashok Bhushan, Hon’ble Mr. Justice R. Subhash Reddy &
Hon’ble Mr. Justice M.r. Shah
Abhilasha...Appellant(S)
Versus
Parkash & Ors....Respondent(S)
Decided on September 15, 2020.
JUDGMENT
ASHOK BHUSHAN.J.
Leave granted.
2. This appeal has been filed by the appellant, daughter of respondent Nos. 1 and 2, challenging
the order of the High Court of Punjab and Haryana at Chandigarh dated 16.08.2018 by which
order the High Court dismissed the application under Section 482 Cr.P.C. filed by the appellant
praying for setting aside the order of the Judicial Magistrate First Class, Rewari dated 16.02.2011
as well as the order dated 17.02.2014 passed by the Additional Sessions Judge, Rewari.
3. The brief facts necessary to be noticed for deciding this appeal are:-
3.1 The respondent No.2, mother of the appellant, on her behalf, as well as on behalf of her two
sons and the appellant daughter, filed an application under Section 125 Cr.P.C. against her
husband, the respondent No.1, Parkash, claiming maintenance for herself and her three
children. The learned Judicial Magistrate vide its judgment dated 16.02.2011 dismissed
the application under Section 125 Cr.P.C. of the applicant Nos. 1, 2 and 3 and allowed
the same for applicant No.4 (appellant before us) for grant of maintenance till she attains
majority.
3.2 Aggrieved against the judgment dated 16.02.2011, all the four applicants filed a criminal
revision before the Court of Sessions Judge, which criminal revision was dismissed by
learned Additional Sessions Judge by order dated 17.02.2014 with the only modification
that revisionist No.4 (appellant before us) shall be entitled to maintenance till 26.04.2005
when she attains majority. Learned Additional Sessions Judge held that as per provision of
Section 125 Cr.P.C, the children, who had attained majority are entitled to maintenance,
if by reason of any physical or mental abnormality or injury, they are unable to maintain
themselves. Learned Additional Sessions Judge also held that the revisionist No.4 (i.e.
appellant) is not suffering from any physical, mental abnormality or injury, therefore, she
is entitled to maintenance only till 26.04.2005 i.e., till she attains majority.
3.3 Challenging the order of Sessions Judge as well as the Judicial Magistrate, an application
under Section 482 Cr.P.C. was filed before the High court by all the applicants including
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the appellant. High Court by the impugned judgment dated 16.02.2018 dismissed the
application filed under Section 482 Cr.P.C. by making following observations:-
“Both the Courts are consistent with regard to declining maintenance to petitioners No.
1 to 3. As regards grant of maintenance to Abhilasha by the trial Court, the order regarding
it was modified by learned Additional Sessions Judge, Rewari observing that she was entitled
to get maintenance till attaining majority and not thereafter since she is not suffering from
any physical or mental abnormality or injury, in those eventualities a child, who though has
attained majority but is unable to maintain itself is entitled to get maintenance. I do not
find any illegality or infirmity in the judgment passed by learned Additional Sessions Judge,
Rewari, which might have called for interference by this Court while exercising jurisdiction
under Section 482 Cr.P.C. Therefore, the petition stands dismissed.”
3.4 This appeal has been filed challenging the judgment of the High Court.
4. Ms. Vibha Datta Makhija, learned senior counsel appearing for the appellant submits that
even though the appellant had attained majority on 26.04.2005 but since she is unmarried, she
is entitled to claim maintenance from her father. Learned senior counsel contends that High
Court committed error in dismissing the application filed under Section 482 Cr.P.C. of the
appellant on wrong premise that since appellant has attained majority and is not suffering from
any physical or mental abnormality, she is not entitled for any maintenance. Ms. Makhija has
relied on provisions of Section 20 of the Hindu Adoptions & Maintenance Act, 1956 (hereinafter
referred to as “Act, 1956”) and submits that as per Section 20 obligation of a person to maintain
his daughter, who is unmarried, extends till she is married. Ms. Makhija relies on judgment
of this Court in Jagdish Jugtawat Vs. Manju Lata and Others, (2002) 5 SCC 422 in support of
her submission. She submits that High Court committed error in taking a contrary view to the
above judgment of this Court. Ms. Makhija submits that appellant is still unemployed, hence,
h she is entitled to claim maintenance from her father.
5. Learned counsel for the respondent refuting the submission of the learned senior counsel for the
appellant contends that Courts below have rightly confined the claim of the maintenance of the
appellant till she attains majority on 26.04.2005. It is submitted that as per Section 125 Cr.P.C.
entitlement to claim maintenance by daughter, who has attained majority is confined to case
where the person by reason of any physical or mental abnormality or injury unable to maintain
herself. Revisional Court has returned a finding that there is no case that appellant is by reason
of any physical or mental abnormality or injury is unable to maintain herself. It is submitted that
High Court has rightly dismissed the application filed under Section 482 Cr.P.C. of the appellant
since no case was made out to interfere in orders passed by the Judicial Magistrate and learned
Revisional Court in exercise of jurisdiction under Section 482 Cr.P.C.
6. We have considered the submissions of the learned counsel for the parties and have perused the
records.
7. From the submissions of the learned counsel for the parties, following two questions arise for
consideration in this appeal:-
(i) Whether the appellant, who although had attained majority and is still unmarried is
entitled to claim maintenance from her father in proceedings under Section 125 Cr.P.C.
although she is not suffering from any physical or mental abnormality/injury? d
—| 292 |—
(ii) Whether the orders passed by learned Judicial Magistrate as well as learned Revisional
Court limiting the claim of the appellant to claim maintenance till she attains majority on
26.04.2005 deserves to be set aside with direction to the respondent No.1 to continue to
give maintenance even after 26.04.2005 till the appellant remains unmarried?
8. Both the questions being interconnected, we proceed to take them together. Application under
Section 125 Cr.P.C. was filed on 17.10.2002 by the applicants including the appellant as applicant
No.4 against Parkash, father of the appellant. The date of birth of the appellant being 26.04.1987,
she was minor at the time when the application was filed. Learned Judicial Magistrate allowed
the application of the appellant for maintenance till she attains majority. Learned Revisional
Court has also affirmed the judgment with modification that appellant was entitled to receive
maintenance till 26.04.2005 instead of 07.02.2005, which is date when she attains majority. In
support of application under Section 125 Cr.P.C, applicant had examined Surya Dev Pandey
as PW1, Chunni Lal Saini as PW2, Vikas Saini as PW3 and Dr. Raj Saini as PW4. The claim of
the applicant Nos. 1, 2 and 3 was rejected, which was also affirmed by Courts below and is not
subject matter of this appeal.
9. The question to be answered in the present case is as to whether a Hindu unmarried daughter
is entitled to claim maintenance from her father under Section 125 Cr.P.C. only till she attains
majority or h she can claim maintenance till she remains unmarried. Section 125(1) Cr.P.C,
which is relevant for the present case is as follows:-
“125. Order for maintenance of wives, children and parents.--(1) If any person having
sufficient means neglects or refuses to maintain-
(b) his legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
xxxxxxxxxxxxx
10. The claim of maintenance of applicant No.4 was filed at the time when she was minor. During
pendency of the application, she became major on 26.04.2005. The learned Judicial Magistrate,
for maintenance till she attains majority on 26.04.2005.
11. Learned counsel for the appellant contends that the appellant is entitled to receive maintenance
till she remains unmarried but said argument was rejected only on the ground that appellant is
not suffering from any physical or mental abnormality or injury, therefore, she is not entitled
for maintenance. The provision on which learned counsel for the appellant has placed reliance,
i.e., Section 20 of the Hindu Adoptions and Maintenance Act, 1956, needs to be noted, which
provides for maintenance of children and aged parents, which is as follows:-
“20. Maintenance of children and aged parents.-
—| 293 |—
(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime,
to maintain his or her legitimate or illegitimate children and his or her aged or infirm
parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother
so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or daughter who is
unmarried extends in so far as the parent or the unmarried daughter, as the case may be,
is unable to maintain himself or herself out of his or her own earnings or other property.
Explanation.- In this section “parent” includes a childless step-mother.”
12. The Act, 1956 was enacted to amend and codify the law relating to adoptions and maintenance
among Hindus. A bare perusal of Section 125(1) Cr.P.C. as well as Section 20 of Act, 1956
indicates that whereas Section 125 Cr.P.C. limits the claim of maintenance of a child until he
or she attains majority. By virtue of Section 125(1)(c), an unmarried daughter even though she
has attained majority is entitled for maintenance, where such unmarried daughter is by reason
of any physical or mental abnormality or injury is unable to maintain itself. The Scheme under
Section 125(1) Cr.P.C, thus, contemplate that claim of maintenance by a daughter, who has
attained majority is admissible only when by reason of any physical or mental abnormality or
injury, she is unable to maintain herself. In the present case, the Revisional Court has returned
a finding that appellant is not suffering from any physical or mental abnormality or g injury due
to which she is unable to maintain herself. The above findings are not even questioned before
us. What is contended that even if she is not suffering from any physical or mental abnormality
or injury, by virtue of Section 20 of Act, 1956, she is entitled to claim maintenance till she is
unmarried.
13. For answering the question as noted above, we need to examine the nature, extent and scope
of Section 125 Cr.P.C. In the Code of Criminal Procedure, 1898, Section 488 Cr.P.C. was the
provision governing the maintenance of wife or legitimate or illegitimate child of any person.
Section 488(1) Cr.P.C. provided:
“488(1). If any person having sufficient means neglects or refuses to maintain his wife or
his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a
Presidency Magistrate, a Sub-divisional Magistrate or 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, 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 from time to time directs.”
14. Section 488 Cr.P.C. sought to inhibit negligence of woman and children with intent to serve a
social purpose. The provision provided for summary proceeding to enable a deserted wife or
helpless child, legitimate or illegitimate, to get urgent relief. The laws are nothing but collective
consciousness of community. It is in the interest of the community and social order that woman
and child who are neglected be maintained and should be provided a forum to obtain urgent
relief to enable them to sustain.
—| 294 |—
15. This Court in Nanank Chand Vs. Chandra Kishore Aggarwal and Others, (1969) 3 SCC 802
had occasion to consider the provision of Section 488 Cr.P.C, 1898 The Court had occasion to
consider the nature of proceedings under Section 488 Cr.P.C. in reference to provisions of Hindu
Adoptions and Maintenance Act, 1956, which provided for overriding effect of Act. Section 4 of
the Act, 1956 is to the following effect:
“Section 4. Overriding effect of Act- Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that
law in force immediately before the commencement of this Act shall cease to have effect
with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to
apply to Hindus in so far as it is inconsistent with any of the provisions contained in
this Act.”
16. In Nanak Chanel’s case the question arose as to whether by virtue of Section 4 of Act, 1956, the
provision of Section 488 Cr.P.C. shall be overridden. In the above case this Court explained the
provisions of Section 488 Cr.P.C. as well as Section 20 of the Act, 1956. This Court held that there
is no inconsistency between Section 488 Cr.P.c. and the Hindu Adoptions and Maintenance Act
and both can stand together. This Court further held that Section 488 Cr.P.C. provides a summary
remedy and is applicable to all persons belonging to all religions and has no relationship with the
personal law of the parties. Following was laid down in paragraph 4:
“4 The learned Counsel says that Section 488 Cr.P.C, insofar as it provides for the grant
of maintenance to a g Hindu, is inconsistent with Chapter III of the Maintenance
Act, and in particular, Section 20, which provides for maintenance to children. We are
unable to see any inconsistency between the Maintenance Act and Section 488, Cr.P.C.
Both can stand together. The Maintenance Act is an act to amend and codify the law
relating to adoptions and maintenance among Hindus. The law was substantially
similar before and nobody ever suggested that Hindu Law, as in force immediately
before the commencement of this Act, insofar as it dealt with the maintenance of
children, was in any way inconsistent with Section 488, Cr.P.C. The scope of the two
laws is different. Section 488 provides a summary remedy and is applicable to all
persons belonging to all religions and has no relationship with the personal law of the
parties. Recently the question came before the Allahabad High Court in Ram Singh v.
State, AIR 1963 All 355 , before the Calcutta High Court in Mahabir Agarwalla v. Gita
Roy [1962] 2 Cr. L.J.528 and before the Patna High Court in Nalini Ranjan v. Kiran
Rani, AIR 1965 Pat 442. The three High Courts have, in our view, correctly come to
the conclusion that Section 4(b) of the Maintenance Act does not repeal or affect in any
manner the provisions contained in Section 488, Cr.P.C.”
17. In Nanak Chand (supra) this Court had approved the judgments of Allahabad High Court in
Ram Singh Vs. State, AIR 1963 All 355, judgment of Patna High Court in Nalini Ranjan Vs.
Kiran Rani, AIR 1965 Pat. 442 and judgment of Calcutta High Court in Mahabir Agarwalla
Vs. Gita Roy, [1962] 2 Cr. L.J.528. This Court in Mst. Zohara Khatoon Vs. Mohd. Ibrahim,
(1981) 2 SCC 509, after noticing the judgment of this Court in Nanak Chand’s case extracted
relevant portions of judgments of Ram Singh, Mahabir Agarwalla and Nalini Ranjan (supra)
—| 295 |—
which were approved by this Court in Nanak Chand. In Ram Singh’s case, Allahabad High
Court took the view that Section 18 of Act, 1956 cannot be substituted for Section 488 Cr.P.C. In
Nalini Ranjan, Patna High Court held that Section 488 Cr.P.C. provided a separate remedy and
Section 488 Cr.P.C. covered the civil liability of a husband under the personal law. It is useful to
extract paragraphs 8, 9 and 10 of the judgment of this Court in Zohara Khatoon which are to the
following effect:
“8. It would be seen that this Court approved of the decisions in the cases of Ram Singh,
Mahabir Agarwalla and Nalini Ranjan mentioned in the observations extracted above.
In order to understand the proper scope of Section 488 of the 1898 Code which is almost
the same as that of Section 125 of the 1973 Code, it may be necessary to examine the
decisions which were referred to with approval by this Court in Nanak Chand’s case
(supra). In Ram Singh v. State and Anr. Kailash Prasad, J. observed as follows :-
“There is nothing in the Hindu Adoptions and Maintenance Act to suggest
expressly or by necessary implication that the Act is intended to be a substitute
for the provisions of Section 488 Cr.P.C. In fact the provisions of Section 18 of
the Act cannot be a substitute for Section 488 Cr.P.C. The latter provision is
general and is applicable to a wife, irrespective of her religion, but the former is
applicable to the case of Hindus only. It could not, therefore, be intended to be a
substitute for Section 488 Cr.P.C.
To the same effect is the decision of the Patna High Court in Nalini Ranjan Chakravarty
v. Smt. Kiran Rani Chakravarty, AIR 1965 Pat 442 where the following observations
were made :-
Before the enactment of 1956, it was well settled that the right conferred by Section 488
Cr.P.C. was independent of the personal law of the parties. The right of maintenance
under Section 488 was irrespective of the nationality or creed of the parties, the
only condition precedent to the possession of that right being in the case of a wife
the acceptance of the conjugal relation. Further, Section 488 provided for only speedy
remedy and a summary procedure before a Magistrate e against starvation of a
deserted wife or child. This section did not cover the civil liability of a husband or a
father under his personal law to maintain his wife and children.
9. The Calcutta High Court also took the same view in Mahabir Agarwalla v. Gita Roy
[1962] 2 Cr. L.J. 528 where the following observations were made :-
An alternative but not inconsistent summary remedy was provided by Section 488 of
the CrPC not only to the Hindu wife but generally to wives irrespective of religion for
recovery of maintenance from the husband. The two remedies were, however, not co-
extensive.
10. Thus, on a consideration of the authorities mentioned above, it is clear that the 1898
Code by virtue of Section 488 provided a summary remedy for awarding maintenance
to neglected wives irrespective of caste, creed, community or religion to which they
belonged. It was in this context that the Courts referred to above considered the effect
of Hindu Adoption and Maintenance Act and other similar Acts.”
—| 296 |—
18. This Court in Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, (1988)
1 SCC 530, held that personal law applicable to the parties cannot altogether be excluded from
consideration in proceeding under Section 125 Cr.P.C.
19. In Yamunabai’s case (supra), the question involved was as to whether a Hindu woman who is
married after coming into force of Hindu Marriage Act, 1955 to a Hindu male having a living
lawfully wedded wife, can maintain an application for maintenance under Section 125 Cr.P.C.
This Court in the above case held the marriage of Yamunabai to be null and void from its very
inception. In the above h context, this Court referred to provision of Hindu Marriage Act, 1955
to find out marital status. In paragraphs 5 and 6, following was laid down:
“5. It has been contended on behalf of the appellant that the term ‘wife 1 in Section 125
of the Code should be given a wider and extended meaning so as to include therein
not only a lawfully wedded wife but also a woman married in fact by performance
of necessary rites or following the procedure laid down under the law. Relying upon
the decision of this Court in Mohd. Ahmed khan v. Shah Bano Beghum, 1985 Cri LJ
875 it was argued that the personal law of the parties to a proceeding under Section
125 of the Code should be completely excluded from consideration. The relationship
of husband and wife comes to an end on divorce, but a divorcee has been held to be
entitled to the benefits of the section, it was urged, and therefore applying this approach
a woman in the same position as the present appellant should be brought within the
sweep of the section. We are afraid, the argument is not well founded. A divorcee is
included within the section on account of Clause (b) of the Explanation. The position
under the corresponding Section 488 of the code of 1898 was different. A divorcee could
not avail of the summary remedy. The wife’s right to maintenance depended upon the
continuance of her married status. It was pointed out in Shah Bano’s case that since
that right could be defeated by the husband by divorcing her unilaterally under the
Muslim Personal Law or by obtaining a decree of divorce under any other system of
law, it was considered desirable to remove the hardship by extending the benefit of
the provisions of the section to a divorced woman so long as she did not remarry,
and that was achieved by including Clause (b) of the Explanation. Unfortunately for
the appellant no corresponding provision was brought in so as to apply to her. The
legislature decided to bestow the benefit of the Section even on an illegitimate child by
express words but none are found to apply to a de facto wife where the marriage is void
ab initio.
6. The attempt to exclude altogether the personal law applicable to the parties from
consideration also has to be repelled. The section has been enacted in the interest of a
wife, and one who intends to take benefit under Sub-section c (1)(a) has to establish
the necessary condition, namely, that she is the wife of the person concerned. This
issue can be decided only by a reference to the law applicable to the parties. It is only
where an applicant establishes her status on relationship with reference to the personal
law that an application for maintenance can be maintained. Once the right under the
section is established by proof of necessary conditions mentioned therein, it cannot
be defeated by further reference to the personal law. The issue whether the section is
attracted or not cannot be answered except by the reference to the appropriate law
—| 297 |—
governing the parties. In our view the judgment in Shah Bano’s case does not help the
appellant. It may be observed that for the purpose of extending the benefit of the section
to a divorced woman and an illegitimate child the Parliament considered it necessary
to include in the section specific provisions to that effect, but has not done so with
respect to women not lawfully married.”
20. It is to be noted that in the above case personal law was looked into to find out as to whether an
application filed by the appellant Yamunabai claiming to be his wife was maintainable or not.
Another judgment which needs to be noted is Kirtikant D. Vadodaria Vs. State of Gujarat and
Another, (1996) 4 SCC 479. The question which came for consideration before this Court was
as to whether expression “mother” used in clause (d) of sub-section (1) of Section 125 Cr.P.C.
includes stepmother. This Court referring to Section 125 Cr.P.C. as well as provision of Section
20 of Act, 1956 held that stepmother can claim maintenance from her stepson provided she is
widow of her husband, if living, and also incapable of maintaining and supporting her.
21. Now, we come to the Three Judge Bench judgment of this Court as relied by learned counsel for
the appellant, i.e., Jagdish Jugtawat (supra). In the above case, the respondent No.3 was a minor
unmarried girl of the petitioner. The wife of the petitioner, i.e., mother of respondent No.3 filed
an application under Section 125 Cr.P.C. claiming maintenance @ Rs.500/- per month to each
of the applicant, which was granted by the Family Court. A revision was filed before the High
Court assailing the order contending that the respondent No.3, Kumari Rakhi was entitled to
maintenance only till she attains majority and not thereafter. High Court although accepted the
legal position that under Section 125 Cr.P.C, a minor daughter is entitled to maintenance from
her parents only till she attains majority but declined to interfere with the orders passed by the
Family Court taking the cue from Section 20(3) of the Hindu Adoptions and Maintenance Act.
The facts of the case and observations of the High Court have been made in the paragraph 2 of
the judgment, which is to the following effect:-
“2. The Petitioner is the father of Kumari Rakhi, Respondent 3 herein, who is a minor
unmarried girl. Considering the application filed under Section 125 of the Criminal
Procedure Code by Respondent 1, wife of the Petitioner and mother of Respondent
3, claiming maintenance for herself and her two children, the Family Court by order
dated 22.7.2000 granted maintenance @ Rs.500 per month to each of the Applicants.
The Petitioner herein filed a revision petition before the High Court assailing the
order of the Family Court on the ground, inter alia, that Respondent 3 was entitled to
maintenance only till she attains majority and not thereafter. Considering the point
the learned Single Judge of the High Court accepted, the legal position that under
Section-125, CrPC, a minor daughter is entitled to maintenance from her parents only
till she attains majority, but declined to interfere with the order passed by the Family
Court taking the cue from Section 20(3) of the Hindu Adoptions and Maintenance Act
under which the right of maintenance is given to a minor daughter till her marriage.
The learned Single Judge was persuaded to maintain the order of the Family Court
with a view to avoid multiplicity of proceedings. The relevant portion of the judgment
of the High Court is quoted here:
“Thus, in view of the above, though it cannot be said that the order impugned
runs counter to the law laid down by the Hon’ble Supreme Court, the provisions
—| 298 |—
of Section 125 CrPC are applicable irrespective of the personal law and it does
not make any distinction whether the daughter claiming maintenance is a Hindu
or a Muslim. However, taking an overall view of the matter, I, with all respect
to the Hon’ble Court, am of the candid view that the provisions require literal
interpretation and a daughter would cease to have the benefit of the provisions
under Section 125 CrPC on attaining majority, though she would be entitled to
claim the benefits further under the statute/personal law. But the Court is not
inclined to interfere, as the order does not result in miscarriage of justice, rather
interfering with the order would create great inconvenience to Respondent 3 as
she would be forced to file another petition under sub-section (3) of Section 20 of
the Act of 1956 for further maintenance etc. Thus, in order to avoid multiplicity
of litigations, the order impugned does not warrant interference.” (underlined by
us)
22. The judgment of this Court in Jagdish Jugtawat (supra) is sheet anchor of learned counsel for
the appellant. The question which came for consideration before this Court in Jagdish Jugtawat’s
case has been noted in paragraph 3 of the judgment which is to the following effect:
“3. In view of the finding recorded and the observations made by the learned Single Judge
of the High Court, the only question that arises for consideration is whether the order
calls for interference...”
23. This Court answered the question noticed in paragraph 3 as above in paragraph 4 in the following
words:
“4. Applying the principle to the facts and circumstances of the case in hand, it is manifest
that the right of a minor girl for maintenance from parents after attaining majority till
her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance
Act. Therefore, no exception can be taken to the judgment/order passed by the learned
Single Judge for maintaining the order passed by the Family Court which is based on a
combined reading of Section 125, Code of Criminal Procedure and Section 20(3) of the
Hindu Adoptions and Maintenance Act. For the reasons aforestated we are of the view
that on facts and in the circumstances of the case no interference with the impugned
judgment order of the High Court is called for.”
24. In the above case, an order was passed by the Family Court by granting maintenance which was
based on combined reading of Section 125 Cr.P.C. and Section 20 of Act, 1956. Although, the
High Court and this Court had declined to interfere with the order of the Family Court taking
the cue from Section 20(3) of the Act, 1956 under which the right of maintenance is given to
a minor daughter till her marriage, but the judgment of this Court in Jagdish Jugtawat (supra)
cannot be read to laying down the ratio that in proceedings under Section 125 Cr.P.C. filed by
the daughter against her father, she is entitled to maintenance relying on the liability of the
father to maintain her unmarried daughter as contained in Section 20(3) of the Act, 1956. The
High Court in exercise of Criminal Revisional jurisdiction can very well refuse to interfere with
the judgment of Courts below by which maintenance was granted to unmarried daughter. This
Court while hearing criminal appeal against the above judgment of High Court was exercising
jurisdiction under Article 136 of the Constitution of India, and in the facts of that case, this
—| 299 |—
Court refused to interfere with the judgment of High Court but in refusal to interfere by this
Court, no ratio can be read in the judgment of Jagdish Jugtawat (supra) as contended by learned
counsel for the appellant.
25. In Classical Hindu Law prior to codification, a Hindu male was always held morally and
legally liable to maintain his aged parents, a virtuous wife and infant child. Hindu Law always
recognised the liability of father to maintain an unmarried daughter. In this context, we refer to
paragraph 539 and 543 of Mulla - Hindu Law - 22nd Edition, which is as follows:-
“539. Personal liability: liability of father, husband and son.-- A Hindu is under a legal
obligation to maintain his wife, his minor sons, his unmarried daughters, and his aged
parents whether he possesses any property or not. The obligation to maintain these
relations is personal in character and arises from the very existence of the relation
between the parties. Section 18 and 20 of the Hindu Adoptions and Maintenance
Act, 1956 deal with the question of maintenance of wife, children and aged parents.
Reference may be made to the notes under those sections.
543. Daughter. - (1) A father is bound to maintain his unmarried daughters. On the death
of the father, they are entitled to be maintained out of his estate.
XXXXXXXXXXXXXX”
26. Muslim Law also recognises the obligation of father to maintain his daughters until they are
married. Referring to Mulla’s Principle of Mohammedan Law, this Court in State of Haryana
and Others Vs. Santra (Smt.), (2000) 5 SCC 182 in paragraph 40 held:-
“40. Similarly, under the Mohammedan Law, a father is bound to maintain his sons until
they have attained the age of puberty. He is also bound to maintain his daughters
until they are married. [See: Mulla’s Principles of Mohammedan Law (l9th Edn.) page
300] “
27. Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 is nothing but recognition of
principles of Hindu Law regarding maintenance of children and aged parents. Section 20(3)
now makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried
and is unable to maintain herself out of her own earnings or other property.
28. Section 20 of Hindu Adoptions and Maintenance Act, 1956 cast a statutory obligation on a
Hindu to maintain his daughter who is unmarried and unable to maintain herself out of her
own earnings or other property. As noted above, Hindu Law prior to enactment of Act, 1956
always obliged a Hindu to maintain unmarried daughter, who is unable to maintain herself. The
obligation, which is cast on the father to maintain his unmarried daughter, can be enforced by
her against her father, if she is unable to maintain herself by enforcing her right under Section
20.
29. We may also notice another judgment of this Court in Noor Saba Khatoon Vs. Mohd. Quasim,
(1997) 6 SCC 233, which was a case under Section 125 Cr.P.C. A Muslim wife with her two
daughters and a son filed an application claiming maintenance under Section 125 Cr.P.C. The
trial court allowed the maintenance to the wife and children from her husband. The husband
after divorcing the wife filed application in the trial court seeking modification of the order
in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
—| 300 |—
The trial court modified the order insofar as the grant of maintenance of wife was concerned
but maintained the order of maintenance to each of the three minor children. The husband
challenged the order by means of revision, which was dismissed by the Revisional Court. An
application under Section 482 Cr.P.C. was filed in the High Court. The High Court accepted
the claim of husband and relying on provision of Section 3(1)(b) of the Act, 1986 held that a
Muslim wife is entitled to claim maintenance from her previous husband for her children only
for a period of two years from the date of birth of the child concerned. The High Court held that
minor children were not entitled for maintenance under Section 125, Cr.P.C. A special leave to
appeal was filed questioning the judgment. This Court dealing with Section 125 Cr.P.C. as well
as Act, 1986 held that effect of a beneficial legislation like Section 125 Cr.P.C. cannot be allowed
to be defeated except through clear provisions of a statute. This Court held that there is no
conflict between the two provisions.
30. This Court noticed the provisions of Section 3 of Muslim Women (Protection of Rights on
Divorce) Act, 1986 and Section 125 Cr.P.C. It is relevant to refer to the following observations
made by this Court in paragraph 7 of the above judgment:
“7. ...Under Section 125, CrPC the maintenance of the children is obligatory on the father
(irrespective of his religion) and as long as he is in a position to do so and the children
have no independent means of their own, it remains his absolute obligation to provide
for them. Insofar as children born of Muslim parents are concerned there is nothing
in Section 125 CrPC which exempts a Muslim father from his obligation to maintain
the children. These provisions are not affected by Clause (b) of Section 3(1) of the 1986
Act and indeed it would be unreasonable, unfair, inequitable and even preposterous
to deny the benefit of Section 125 CrPC to the children only on the ground that they
are born of Muslim parents. The effect of a beneficial legislation like Section 125 CrPC,
cannot be allowed to be defeated except through clear provisions of a statute. We do not
find manifestation of any such intention in the 1986 Act to take away the independent
rights of the children to claim maintenance under Section 125 CrPC where they are
minor and are unable to maintain themselves. A Muslim father’s obligation, like that
of a Hindu father, to maintain his minor children as contained in Section 125 CrPC is
absolute and is not at all affected by Section 3(1) (b) of the 1986 Act“
31. The provision of Section 20 of Act, 1956 cast clear statutory obligation on a Hindu to maintain
his unmarried daughter who is unable to maintain herself. The right of unmarried daughter
under Section 20 to claim maintenance from her father when she is unable to maintain herself
is absolute and the right given to unmarried daughter under Section 20 is right granted under
personal law, which can very well be enforced by her against her father. The judgment of this
Court in Jagdish Jugtawat (supra) laid down that Section 20(3) of Act, 1956 recognised the right
of a minor girl to claim maintenance after she attains majority till her marriage from her father.
Unmarried daughter is clearly entitled for maintenance from her father till she is married even
though she has become major, which is a statutory right recognised by Section 20(3) and can be
enforced by unmarried daughter in accordance with law.
32. After enactment of Family Courts Act, 1984, a Family Court shall also have the jurisdiction
exercisable by a Magistrate of the First Class under Chapter IX of Cr.P.C. relating to order for
maintenance of wife, children and parents. Family Courts shall have the jurisdiction only with
—| 301 |—
respect to city or town whose population exceeds one million, where there is no Family Courts,
proceedings under Section 125 Cr.P.C. shall have to be before the Magistrate of the First Class.
In an area where the Family Court is not established, a suit or proceedings for maintenance
including the proceedings under Section 20 of the Act, 1956 shall only be before the District
Court or any subordinate Civil Court.
33. There may be a case where the Family Court has jurisdiction to decide a case under Section
125 Cr.P.C. as well as the suit under Section 20 of Act, 1956, in such eventuality, Family Court
can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance
to unmarried daughter even though she has become major enforcing her right under Section
20 of Act, 1956 so as to avoid multiplicity of proceedings as observed by this Court in the case
of Jagdish Jugtawat (supra). However the Magistrate in exercise of powers under Section 125
Cr.P.C. cannot pass such order.
34. In the case before us, the application was filed under Section 125 Cr.P.C. before Judicial
Magistrate First Class, Rewari who passed the order dated 16.02.2011. The Magistrate while
deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under
Section 20(3) of Act, 1956 and the submission of the appellant cannot be accepted that the Court
below should have allowed the application for maintenance even though she has become major.
We do not find any infirmity in the order of the Judicial Magistrate First Class as well as learned
Additional Magistrate in not granting maintenance to appellant who had become major.
35. The maintenance as contemplated under Act, 1956 is a larger concept as compared to concept
of maintenance under Section 125 Cr.P.C. Section 3(b) while defining maintenance gives an
inclusive definition including marriage expenses in following words:-
“3. Definitions- In this Act unless the context otherwise requires-
XXXXXXXXXXXXXXX
(b) “Maintenance” includes-
(i) in all cases, provision for food, clothing, residence, education and medical
attendance and treatment;
(ii) in the case of an unmarried daughter also the reasonable expenses of and incident
to her marriage;
(c) “minor” means a person who has not completed his or her age of eighteen years.”
36. The purpose and object of Section 125 Cr.P.C. as noted above is to provide immediate relief to
applicant in a summary proceedings, whereas right under Section 20 read with Section 3(b)
of Act, 1956 contains larger right, which needs determination by a Civil Court, hence for the
larger claims as enshrined under Section 20, the proceedings need to be initiated under Section
20 of the Act and the legislature never contemplated to burden the Magistrate while exercising
jurisdiction under Section 125 Cr.P.C. to determine the claims contemplated by Act, 1956. a
37. There are three more reasons due to which we are satisfied that the orders passed by the learned
Judicial Magistrate as well as learned Additional Sessions Judge in the revision was not required
to be interfered with by the High Court in exercise of jurisdiction under Section 482 Cr.P.C. The
reasons are as follows:-
—| 302 |—
(i) The application was filed by the mother of the appellant in the year 2002 claiming
maintenance on her behalf as well as on behalf of her two sons and appellant, who was
minor at that time. The appellant being minor at that time when application was filed on
17.10.2002, there was no occasion for any pleading on behalf of the appellant that she
was not able to maintain herself even after attaining the majority. Section 20 of the Act,
1956 on which reliance has been placed by learned counsel for the appellant recognising
the right of maintenance of unmarried daughter by a person subject to the condition
when “the parents or the unmarried daughter, as the case may be, is unable to maintain
b themselves/herself out of their/her own earnings or other property”. The learned
Additional Sessions Judge noticed the submission of the respondent that appellant did not
come in the witness box even when she had attained majority to claim that she was unable
to maintain herself, which contention has been noted in paragraph 12 of the judgment of
the learned Additional Sessions Judge,
(ii) From the judgment of the learned Judicial Magistrate, another fact, which is relevant
to be noticed is that applicant Nos. 2 to 4, which included the appellant also had filed
the proceedings under Section 20 of the Act, 1956 being Suit No. 6 of 2001, which was
dismissed as withdrawn on 17.12.2012.
(iii) Another factor, which need to be noticed that in the counter affidavit filed in this appeal,
there was a specific pleading of the respondent that a plot of land was purchased in name
of the appellant admeasuring 214 sq. Yds. In the rejoinder affidavit filed by the appellant,
it has been admitted that the plot was purchased on 31.07.2000 from the joint income
earned by mother and father of the appellant, which had been agreed to be sold in the
year 2012 for a total sale consideration of Rs.11,77,000/-. In the rejoinder affidavit, an
affidavit of prospective purchaser has been filed by the appellant, where it is mentioned
that agreement to sell had taken place between appellant and Arjun on 31.07.2000 for a
sale consideration of Rs.11,77,000/-, out of which appellant had received Rs.10,89,000 as
earnest money. 38. We, thus, accept the submission of the learned counsel for the appellant
that as a preposition of law, an unmarried Hindu daughter can claim maintenance from
her father till she is married relying on Section 20(3) of the Act, 1956, provided she pleads
and proves that she is unable to maintain herself, for enforcement of which right her
application/suit has to be under Section 20 of Act, 1956.
39. In facts of the present case the ends of justice be served by giving liberty to the appellant to take
recourse to Section 20(3) of the Act, 1956, if so advised, for claiming any maintenance against
her father. Subject to liberty as above, the appeal is dismissed.
qqq
—| 303 |—
DR. SWAPAN KUMAR BANERJEE VS THE STATE OF WEST BENGAL

CRIMINAL APPEAL NO(S).232-233 OF 2015
Dr. Swapan Kumar Banerjee Appellant(S)
Versus
The State Of West Bengal & Anr. Respondent
Decided on 19 September, 2019
JUDGMENT
DEEPAK GUPTA, J.
The short question raised in these appeals is whether a wife, who has been divorced by the husband,
on the ground that the wife has deserted him, is entitled to claim maintenance under Section 125 of
the Code of Criminal Procedure, 1973 (Cr.P.C.).
We may refer to the relevant portion of Section 125 of the Code of Criminal Procedure:-
“125. Order for maintenance of wives, children and parents.- (1) If any person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or x x x x x x x x x x x x x x x x x x Signature Not Verified
Digitally signed by ARJUN BISHT x x x x x x x x x Date: 2019.09.26 17:33:46 IST Reason:
Explanation. For the purposes of this Chapter,-
xxxxxxxxx
(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband
and has not remarried.
(2) x x x x x x x x x
(3) x x x x x x x x x
(4) No Wife shall be entitled to receive an allowance for the maintenance or the interimmaintenance
and expenses of proceeding, as the case may be, from her husband under this section ifshe is living in
adultery, or if, without any sufficient reason, she refuses to live with her husband, orif they are living
separately by mutual consent.
xxxxxxxxx
It is the contention of Mr. Debal Banerjee that in terms of sub-section (4), no wife,who has deserted
her husband can claim maintenance under Section 125 of the Cr.P.C. His furthersubmission is that
since in terms of the explanation wife includes a divorced woman, therefore, evena wife who has been
divorced on the ground of desertion would not be entitled to maintenance inview of sub-section (4).
Mr. Debal Banerjee has very candidly placed before us three judgments ofthis Court which take a view
contrary to the one being canvassed by Mr. Banerjee before us.
In Vanamala Vs. H.M. Ranganatha Bhatta, this Court dealt with a similar issue and held as follows:
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“3. Section 125 of the Code makes provision for the grant of maintenance to wives,children and parents.
Sub-section (1) of Section 125 inter alia says that if any person having sufficient means neglects or
refuses to maintain his wife unable to maintain 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 not exceeding Rs 500 in the whole, as such Magistrate thinks fit, and to pay the same tosuch
person as the Magistrate may from time to time direct. Clause (i) of the Explanation to the sub-section
defines the expression ‘wife’ to include a woman who has been divorced by, or has obtained a divorce
from, her husband and has not remarried. In the instant case it is not contended by the respondent
that the appellant has remarried after the decree of divorce was obtained under Section 13-Bof the
Hindu Marriage Act. It is also not in dispute that the appellant was the legally wedded wife of the
respondent prior to the passing of the decree of divorce. By virtueo f the definition referred to above
she would, therefore, be entitled to maintenance if she could show that the respondent had neglected
or refused to maintain her. Counsel for the respondent, however,invited our attention to sub-section
(4) ofS ection 125, which reads as under:
125.(4) No wife shall be entitled to receive an allowance 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. On a plain reading of this Section it seems fairly clear that the
expression ‘wife’ in thesaid sub-section does not have the extended meaning of including a woman
who has been divorced. This is for the obvious reason that unless there is a relationship of husband
and wife there can be no question of a divorcee woman living in adultery or without sufficient reason
refusing to live with her husband. After divorce where is the occasion for the woman to live with her
husband? Similarly there would be no question of the husband and wife living separately by mutual
consent because after divorce there is no need for consent to live separately. In the context, therefore,
subsection(4) of Section 125 does not apply to the case of a woman who has been divorced or who has
obtained a decree for divorce. In our view, therefore, this contention is not well founded.”
Thereafter, in Rohtash Singh Vs. Ramendri & Ors. this Court took a similar view:“11. Learned counsel
for the petitioner then submitted that once a decree for divorce was passed against the respondent and
marital relations between the petitioner and the respondent came to an end, the mutual rights, duties
and obligations should also come to an end. He pleaded that in this situation, the obligation of the
petitioner to maintain a woman with whom all relations came to an end should also be treated to have
come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has
two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from
any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman,
she is again entitled to claim maintenance from the person of whom she was once the wife. A woman
after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who
was once her husband continues to be under a statutory duty and obligation to provide maintenance
to her.”
This view, which was taken by two-Judge Benches has been confirmed in Manoj Kumar Vs. Champa
Devi by a three judge bench, though, no specific reasons havebeen recorded in the judgment. Mr.
Debal Banerjee urged that the matter requires reconsideration. We are not in agreement with him
for two reasons. Firstly, the view taken in the first two judgments has been confirmed by a three-judges
Bench and, therefore, we cannot refer it to a larger Bench.
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Even otherwise, this view has been consistently taken by this Court and the said view is in line with
both the letter and spirit of the Cr.P.C.
No doubt, as urged by Mr. Debal Banerjee, explanation II to Section 125 of the Cr.P.C. by deeming
fiction includes a divorced woman to be a wife and, therefore, a woman who has been divorced by her
husband can still claim maintenance under Section 125 of the Cr.P.C. The question is how weshould
read the provisions of sub-section (4) in this regard, especially when we deal with those women,
against whom a decree for divorce has been obtained on the ground that they have deserted their
husband. Once the relationship of marriage comes to an end, the woman obviously is not under any
obligation to live with her former husband. The deeming fiction of the divorced wife be ingtreated
as a wife can only be read for the limited purpose for grant of maintenance and the deeming fiction
cannot be stretched to the illogical extent that the divorced wife is under a compulsion to live with the
ex-husband. The husband cannot urge that he can divorce his wife on the ground that she has deserted
him and then deny maintenance which should otherwise be payable to her on the ground that even
after divorce she is not willing to live with him. Therefore, we find no merit in the contention of Mr.
Debal Banerjee.
Coming to the merits of the case, the matrimonial dispute started with the husband filing a petition
of judicial separation in 1992, though, it was alleged that since 1987 the wife had deserted him. In
1997 a petition for divorce was filed and the divorce was granted in 2000. During this period from
1987 to 2000 when the wife was living separately from her husband she did not file any petition for
grant of maintenance. Even during the divorce proceedings though an application under Section 24
of the Hindu Marriage Act, 1955 was filed but it seems that the same was either dismissed for non-
prosecution or was not pressed. It was not decided on merits in any event.
After the divorce was granted, according to the appellant he got remarried after a year and it was only
thereafter that the wife filed a petition for grant of maintenance. That, according to us, will make no
difference because it is for the wife to decide when she wants to file a petition for maintenance. She
may have felt comfortable with whatever earnings she had upto that time or may be she did not want
to precipitate matters till she was contesting the divorce petition by filing a claim for maintenance.
Whatever be the reason, the mere fact that the wife did not file a petition for grant of maintenance
during the pendency of the matrimonial proceedings, is no ground to hold that she is not entitled to
file such a petition later on.
The next issue raised was that the wife being a qualified architect from a reputed university i.e. Jadavpur
University, Calcutta would be presumed to have sufficient income. It is pertinent to mention that as
far as the husband is concerned, his income through taxable returns has been brought on record
which shows that he was earning a substantial amount of Rs.13,16,585/- per year and on that basis
Rs.10,000/- per month has been awarded as monthly maintenance to the wife. No evidence has been
led to show what is the income of the wife or where the wife is working. It was for the husband to
lead such evidence. In the absence of any such evidence no presumption can be raised that the wife is
earning sufficient amount to support herself.
In this view of the matter, we find no merit in the appeals, which are accordingly dismissed.
Pending application(s), if any, stands disposed of.
qqq
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LANDMARK JUDGMENTS
ON
ADOPTION
RATANLAL ALIAS BABULAL CHUNILAL SAMSUKA VERSUS

SUNDARABAIGOVARDHANDAS SAMSUKA (DEAD) THROUGH LEGAL
REPRESENTATIVES AND OTHERS
Bench : Hon’ble Mr. Justice N.V. Ramana and Hon’ble Mr. Justice Amitava Roy
Ratanlal Alias Babulal Chunjlal Samsuka ... Appellant;
Versus
Sundarabaigovardhandas Samsuka (Dead) Through Legal Representatives And Others ... Respondents.
Decided on November 22, 2017
A. Family and Personal Laws — Hindu Law — Adoption, Maintenance and Financial Provision
— Requirements/Customary Adoption/Proof/ Validity — Customary adoption — Adoption
of married man in Jain community — Burden and nature of proof — Held, burden of proving
adoption is heavy and in absence of documentary evidence in support of adoption, court
should be cautious in relying upon oral evidence
— Only evidence adduced by appellant in instant case was his own testimony and word of priest alleged
to have performed that ceremony — General custom which appellant intends to prove requires greater
proof than that adduced — Besides, appellant had failed to plead in his written statement existence
of any custom as such and thus any amount of evidence produced in support of alleged adoption
inconsequential — Moreover, lots of contradictions were discernible in testimonies of witnesses on
material aspects of adoption — Appellant failed to plead and prove factum of adoption by adducing
evidence to satisfaction of court — Hindu Adoptions and Maintenance Act, 1956, Ss. 3(a), 3 and 10
(Paras 19 to 25)
Kishori Lai v. Chaltibai, AIR 1959 SC 504; Rahasa Pandiani v. Gokulananda Panda, (1987) 2 SCC 338
: AIR 1987 SC 962, relied on
B. Custom — Generally — Governance on basis of—Extent of—Nature and degree of proof —
Burden of proof — Principles summarised
— Held, custom commands legitimacy not by authority of law but from public acceptance and
acknowledgment — Further held, ingredients necessary for establishing valid custom are continuity,
certainty, long usage and reasonability — Presumption that law prevails and when claim of custom
is against such presumption, person setting up plea of existence of custom must discharge onus of
proving it with all its requisites to satisfaction of court in clear and unambiguous manner i.e. it must
be proved that it has characteristics of genuine custom inasmuch as it is plural, uniform and constant
— Custom evolves by conduct and hence its validity cannot be measured solely by element of express
sanction accorded by courts — Customs are essentially non-litigious in origin and arise not from
any conflict of rights but from practices prompted by convenience of society — Judicial decision
recognising custom may be relevant but is not indispensable for its establishment
—| 309 |—
LANDMARK JUDGMENTS ON ADOPTION
— On facts held, there was no pleading or proof which could justify that aforestated standards were met
which substantiated claim of valid adoption of appellant, a married man belonging to Jain community
— Custom on which appellant was relying being matter of proof, cannot be based on priori reasoning
or logical and analogical deduction — Appellant had failed to prove that such practice had attained
status of general custom prevalent in Jain community — Impugned judgment finding that appellant
was not adopted son, calls for no interference — Evidence Act, 1872, Ss. 48 and 56 (Paras 9 to 18)
Gokal Chand v. Parvin Kumari, AIR 1952 SC 231; Collector of Madura v. Moottoo Ramalinga
Sathupathy, 1868 SCC Online PC 3 : (1867-69) 12 Moo IA 397; Rup Chand v. Jambu Parshad, 1910
SCC OnLine PC 5: (1909-10) 37 IA 93: ILR (1910) 32 All 247; Sheokuarbai v. Jeoraj, 1920 SCC OnLine
PC 54 : AIR 1921 PC 77, relied on Sundarabai Govatdhandas Samsuka v. Ratanlal, 2006 SCC OnLine
Bom 1517, affirmed Bryan A. Garner, Black’s Law Dictionary (10th Edn.) p. 468, relied on
C. Civil Procedure Code, 1908 — Or. 6 Rr. 1 and 2 — Pleadings — Cardinality of— Held, parties
to suit are always governed by their pleadings — Any amount of evidence or proof adduced
without proper pleadings inconsequential and would not come to rescue of parties — Practice
and Procedure — Pleadings (Para 19)
D. Family and Personal Laws — Hindu Law — Adoption, Maintenance and Financial Provision
— Requirements/Customary Adoption/Proof/Validity — Customary adoption — Burden of
proof — On facts held, lay on appellant-defendant who alleged factum of adoption — Trial
court erred in placing same on respondent-plaintiff to prove that appellant was not adopted
son, which is contrary to law — Hindu Adoptions and Maintenance Act, 1956, Ss. 2(a), 3 and
10 (Para 25)
Kishori Lai v. Chaltibai, ADR 1959 SC 504; Rahasa Pandiani v. Gokulananda Panda, (1987) 2 SCC
338, relied on
Hon’ble Mr. Justice N.V. Ramana.— The appellant is before us aggrieved by the judgment and decree
passed by the High Court of Judicature at Bombay, in Sundarabai Govardhandas Samsuka v. Ratanlal1.
The High Court has partly allowed the appeal by setting aside the judgment of trial court and declared
that the first defendant, who is the appellant herein, was not the adopted son of late Govardhandas
Laxmichand Samsuka and consequently the appellant herein was permanently restrained from
representing himself as son of Govardhandas and further restrained him from naming himself as
Ratanlal Govardhandas Samsuka.
2. A brief reference to the factual matrix necessary for disposal of the case on hand are, late
Govardhandas has a brother by name Chunilal Laxmichand who is none other than the father
of the first defendant/appellant herein. Right from his childhood, the appellant used to reside
with his paternal uncle Govardhandas. During his life Govardhandas used to carry on business
of timber in the name of Defendant 5 initially and later he inducted into business the appellant
and Defendants 2 to 4 as partners. After the death of Govardhandas his wife Sundarabai who
is the original plaintiff in the suit was also taken as a partner. When the other partners failed to
give her share in the business, she issued notice to all the partners to give accounts of the fifth
defendant partnership firm and also to pay the amount of her share.
1 2006 SCC OnLine Bom 1517
—| 310 |—
3. In the year 1984, wife and children of Chunilal i.e. brother of Govardhandas issued notice, to
Sundarabai and the appellant, stating that the appellant is the adopted son of late Govardhandas
as such he cannot claim any share in his natural family and further sought for partition of the
joint family properties, for that Sundarabai issued a reply notice denying the factum of adoption
and thereafter filed the present suit i.e. Special Civil Suit No. 395 of 1987 for dissolution and
accounts of Defendant 5 partnership firm and also sought for a declaration that the appellant
is not the adopted son of late Govardhandas. During the pendency of the suit, Sundarabai died
and her daughters were brought on record.
4. The trial court, after a full-fledged trial, has partly decreed the suit declaring that the deceased
Sundarabai, original plaintiff had l/5th share in the assets and liabilities of the partnership firm
and passed preliminary decree for taking accounts. But the declaration claimed by the plaintiff
that the appellant is not the adopted son of late Govardhandas was rejected and the trial court
came to the conclusion that plaintiff failed to prove that the defendant is not the adopted son of
late Govardhandas. The reasoning of the trial court can be summed up as under:
(a) The plaintiff failed to prove that the appellant herein is not the adopted son of late
Govardhandas.
(b) Continuation of biological father’s name over adopted father’s name even after 1973 is
inconsequential in view of other evidences on record.
(c) That some letters and invitations were addressed to the appellant with his adoptive father’s
name.
(d) That the priest [Chaturbuj Sharma] who is alleged to have performed the adoption
ceremony has deposed in favour of the appellant.
(e) Photographs taken at the time of the adoption ceremony are self-explanatory. It is to be
noted that in one particular photograph the appellant is seen with a garland and absence
of Asha or her husband in the photographs clearly proves that adoption had taken place
one day prior to the marriage of Asha [daughter of Govardhandas and respondent].
5. Aggrieved by the judgment and decree passed by the trial court, the plaintiffs carried the matter
to the High Court in First Appeal No. 1662 of 1996. The appellant herein has not questioned
the preliminary decree passed for accounts and declaration that late Sundarabai is entitled to
l/5th share in the fifth defendant company as such those findings have become final. The High
Court, while partly allowing the appeal, concluded that the appellant herein is not the adopted
son as the conduct and circumstances surrounding the adoption are suspicious. The following
circumstances have weighed with by the High Court in coming to the conclusion that the factum
of adoption was not proved with cogent evidence—
(a) Non-production of negatives of alleged photographs taken during the adoption ceremony.
(b) That the photographs do not portray any ceremony being performed by the priest involving
the appellant and his adoptive parents.
(c) The alleged adoption took place one day before the marriage of Asha (daughter of
respondent), which casts shadow on the photographs taken during the ceremony.
—| 311 |—
(d) That there was no evidence on record other than the oral testimony of one Chaturbuj
Sharma that he performed the adoption ceremony as a priest.
(e) That appellant himself has contradicted the oral testimony of the alleged priest Chaturbuj
Sharma concerning the ceremony of taking the appellant into the lap of Govardhandas.
(f) That the letters exhibited to show the change of name does not cogently establish the
adoption.
(g) From the date of adoption up to filing the suit, the appellant continued to use his earlier
name without adopting the name of the adoptive father.
(h) The income tax returns of the appellant after 1973 indicates that he continued to use his
earlier name.
(i) No explanation forthcoming from the appellant concerning the above suspicious
circumstances.
(j) Moreover, the adoptive mother herself is contesting the factum of adoption.
6. The learned counsel appearing on behalf of the appellant has argued that—
(a) The custom of married men getting adopted is prevalent in Jain community, which has
been proved by the priest who performed the adoption ceremony.
(b) The custom of adoption of married men was judicially recognised in catena of cases.
(c) The appellant has been validly adopted in consonance with the accepted customs.
7. On the other hand, the learned counsel appearing on behalf of the respondents has contended
that—
(a) The appellant has not pleaded any custom in Jain community which allows adoption of
married men.
(b) That the adoption should be accepted only when it is established with cogent and consistent
proof, as it has the potential to alter the succession.
(c) The appellant retained his earlier name and acquired properties subsequently in his earlier
name itself.
8. In the light of the submissions advanced before us, we are called upon to answer two short
questions concerning the alleged adoption of the appellant herein by late Govardhandas in the
year 1973. Hence the following issues arise for consideration before this Court:
8.1. (i) Whether the person who alleges the existence of a custom need not prove the same
because it is judicially accepted?
8.2. (ii) Whether the appellant could plead and prove the factum of adoption?
9*. In response to Issue (i), first and foremost, we would like to deal with the submission of the
learned counsel for the appellant that the custom of giving married man in adoption in Jain
community is judicially accepted and hence the adoption need not be proved. It is an admitted
fact that the parties concerned in this case are Jains. There is no dispute that Jains are governed
by the Hindu Adoption and Maintenance Act, 1956 [hereinafter “the Act”, for brevity] and
—| 312 |—
therefore certain provisions which may throw some light on the question, have to be looked
into.
10. Section 3 of the Act deals with definitions. The term “custom” is defined as under:
“3. Definitions.—In this Act unless the context otherwise requires—
(a) the expressions “custom” and “usage” signify any rule which, having been
continuously and uniformly observed for a long time, has obtained the force of
law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that, in the case of a rule applicable only to a family, it has not been
discontinued by the family;”
11. Section 10 of the Act provides thus:
“10. Persons who may be adopted.—No person shall be capable of being taken in adoption
unless the following conditions are fulfilled, namely—
* * *
(iii) he or she has not been married, unless there is a custom or usage applicable to
the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or
usage applicable to the parties which permits persons who have completed the
age of fifteen years being taken in adoption.”
12. From the aforesaid provisions, it is clear that a person cannot be adopted if he or she is a married
person, unless there is a custom or usage, as defined under Section 3(a), applicable to the parties
which permits persons who are married being taken in adoption.
13. India has a strong tradition of respect for difference and diversity which is reflected under the
Hindu Family Laws as it is applicable to diverse communities living from the southern tip to
northern mountains, from western plains to eastern hills. Diversity in our country brings along
various customs which defines what India is. Law is not oblivious of this fact and sometimes
allows society to be governed by customs within the foundation of law. It is well known that a
custom commands legitimacy not by an authority of law formed by the State rather from the
public acceptance and acknowledgment. This Court in Gokal Chand v. Parvin Kumari2, has
explained the ingredients of a valid custom in the following manner: (AIR p. 234, para 14)
“14. ... (3) A custom, in order to be binding, must derive its force from the fact that by long,
usage it has obtained the force of law, but the English rule that “a custom, in order that
it may be legal and binding, must have been used so long that the memory of man
runneth not to the contrary” should not be strictly applied to Indian conditions. All
that is necessary to prove is that the usage has been acted upon in practice for such
a long period and with such invariability as to show that it has, by common consent,
been submitted to as the established governing rule of a particular locality.”
2 AIR 1952 SC 231
—| 313 |—
Black’s Law Dictionary defines customary law as:

“customs that are accepted as legal requirements or obligatory rules of conduct, practices and
beliefs that are so vital and intrinsic a part of a social and economic system that they are
treated as if they are laws”?3
The Privy Council in Collector of Madura v. Moottoo Ramalinga Sathupathy4, has observed
that:
“under the Hindu system of law, clear proof of usage will outweigh the written text of law”.
(SCC OnLine PC)
14*. As per the settled law under Section 3(a) of the Act, the following ingredients are necessary for
establishing a valid custom:
(a) Continuity
(b) Certainty
(c) Long usage
(d) Reasonability
As customs, when pleaded are mostly at variance with the general law, they should be strictly
proved. Generally, there is a presumption that law prevails and when the claim of custom is
against such general presumption, then, whoever sets up the plea of existence of any custom
has to discharge the onus of proving it, with all its requisites to the satisfaction of the court in a
most clear and unambiguous manner. It should be noted that, there are many types of customs
to name a few—general customs, local customs and tribal customs, etc. and the burden of proof
for establishing a type of custom depends on the type and the extent of usage. It must be shown
that the alleged custom has the characteristics of a genuine custom viz. that it is accepted wilfully
as having force of law, and is not a mere practice more or less common. The acts required for the
establishment of customary law ought to be plural, uniform and constant.
15. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the
element of express sanction accorded by courts of law. The characteristic of the great majority
of customs is that they are essentially non-litigious in origin. They arise not from any conflict of
rights adjusted, but from practices prompted by the convenience of society. A judicial decision
recognising a custom may be relevant, but these are not indispensable for its establishment.
When a custom is to be proved by judicial notice, the relevant test would be to see if the custom
has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction
to the extent that justifies the court, which is asked to apply it, in assuming that the persons
or the class of persons concerned in that area look upon the same as binding in relation to
circumstances similar to those under consideration. In this case at hand there was no pleading
or proof which could justify that the above standards were met.
16. It would not be out of context to observe certain judicial decisions which throw some light on
the issue raised in this case instant. In Rup Chand v. Jambu Parshad5, the Privy Council held
that: (SCC OnLine PC)
3 Bryan A. Garner, Black’s Law Dictionary (10th Edn.) p. 468.
4 1868 SCC OnLine PC 3 : (1867-69) 12 Moo IA 397
5 1910 SCC OnLine PC 5 : (1909-10) 37 IA 93 : ILR (1910) 32 All 247
—| 314 |—
“The custom alleged in the pleading was this: “Among the Jains adoption is no religious
ceremony, and under the law or custom there is no restriction of age or marriage among
them.” And that appears to be the custom found by the High Court to exist. But upon the
argument before their Lordships it was strenuously contended that the evidence in the present
case, limited as it is to a comparatively small number of centres of Jain population, was
insufficient to establish a custom so wide as this, and that no narrower custom was either
alleged or proved.
In their Lordships’ opinion there is great weight in these criticisms, enough to make the
present case an unsatisfactory precedent if in any future instance fuller evidence regarding
the alleged custom should be forthcoming.”
17. In Sheokuarbai v. Jeoraj6, the Privy Council observed that, among the Sitambari Jains the widow
of a sonless Jain can legally adopt to him a son without any express or implied authority from
her deceased husband to make an adoption, and the adopted son may at the time of his adoption
be a grown-up and married man. The only ceremony to the validity of such an adoption is the
giving and taking of the adopted son.
18. It is very much evident that the appellant in this case has failed to produce any evidence to prove
that such practice has attained the status of general custom prevalent among the community
concerned. Custom, on which the appellant is relying, is a matter of proof and cannot be based
on a priori reasoning or logical and analogical deductions, as sought to be canvassed by the
appellant herein. Hence the issue is answered against the appellant.
19. In response to Issue (li), we are concerned here with the custom of adopting married sons in the
community of the appellant. The only evidence, the appellant has adduced, is his own testimony
and a word of a priest who had performed the ceremony. A general custom which the appellant
intends to prove requires greater proof than the one the appellant adduced before the court.
Moreover, there is no dispute with regard to the fact that the appellant did not plead in his
written statement about existence of any custom as such. Parties to a suit are always governed by
their pleadings. Any amount of evidence or proof adduced without there being proper pleading
is of no consequence and will not come to the rescue of the parties.
20. At this juncture it would be necessary to observe the law laid down by this Court in numerous
cases that the burden of proving adoption is a heavy one and if there is no documentary evidence
in support of adoption, the Court should be very cautious in relying upon oral evidence. This
Court held so in Kishori Lai v. Chaltibai7. We can do no better than to quote the relevant passage
from the above judgment which reads as under: (AIR p. 508, para 7)
“7. As an adoption results in changing the course of succession, depriving wives and
daughters of their rights and transferring properties to comparative strangers or more
remote relations it is necessary that the evidence to support it should be such that
it is free from all suspicions of fraud and so consistent and probable as to leave no
occasion for doubting its truth. Failure to produce accounts, in circumstances such
as have been proved in the present case, would be a very suspicious circumstance.”
(emphasis supplied)
6 1920 SCC OnLine PC 54 : AIR 1921 PC 77

7 AIR 1959 SC 504
—| 315 |—
21. In Rahasa Pandiani v. Gokulananda Panda8, the aforesaid aspect was observed as under: (SCC
pp. 341-42, para 4)
“4. ... When the plaintiff relies on oral evidence in support of the claim that he was adopted
by the adoptive father in accordance with the Hindu rites, and it is not supported by any
registered document to establish that such an adoption had really and as a matter of fact
taken place, the court has to act with a great deal of caution and circumspection. Be it
realised that setting up a spurious adoption is not less frequent than concocting a spurious
will, and equally, if not more difficult to unmask. And the court has to be extremely alert
and vigilant to guard against being ensnared by schemers who indulge in unscrupulous
practices out of their lust for property. If there are any suspicious circumstances, just as
the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on
one who claims to have been adopted to dispel the same beyond reasonable doubt. In
the case of an adoption which is not supported by a registered document or any other
evidence of a clinching nature if there exist suspicious circumstances, the same must
be explained to the satisfaction of the conscience of the court by the party contending
that there was such an adoption. Such is the position as an adoption would divert the
normal and natural course of succession. Experience of life shows that just as there
have been spurious claims about execution of a will, there have been spurious claims
about adoption having taken place. And the court has therefore to be aware of the risk
involved in upholding the claim of adoption if there are circumstances which arouse the
suspicion of the court and the conscience of the court is not satisfied that the evidence
preferred to support such an adoption is beyond reproach.’’’’ (emphasis supplied)
22. In the light of the above precedents, it would be necessary to observe statements of certain
witnesses. The appellant, himself, got examined as a witness, which is marked as Ext. 121.
He stated that after death of his biological father in 1972, he came to Nasik to continue his
education while living with Govardhandas at his residence. As per his evidence, during the
marriage of Asha, Govardhandas decided to adopt the appellant and the ceremony was held
on 8-7-1973, one day before the marriage. The adoption ceremony was held at the residence
of Govardhandas. As the appellant and Govardhandas were from the Jain community, there
was no bar in their community either for adoption of a married son or concerning the age of
the adopted son. It is stated that there is no custom in their community to reduce the adoption
in writing. One Chaturbuj Maharaj was the priest who performed the said ceremony in the
presence of his biological mother, sisters and other relatives. His biological mother gave the
appellant in adoption to Govardhandas and Sundarabai i.e. the original plaintiff. Govardhandas
and Sundarabai performed the pooja of the said ceremony. The said ceremony was held with the
desire and consent of Sundarabai and Govardhandas. After the appellant was given in adoption
to Govardhandas, the appellant was instructed by the priest to sit on the lap of Govardhandas
and Sundarabai. After the ceremony, lunch was served to all persons, who had attended the
ceremony. It is to be noted that invitation cards were printed but the same were sent separately
and not with the marriage invitation card. In the cross-examination he states that even though
the marriage was held on 9-7-1973, certain marriage ceremonies were held as per community
traditions on 8-7-1973. That he was aged thirty-two when he was allegedly adopted and he does
not know of any examples of adoption of a thirty-two-year-old man. He admits that he did
8 (1987) 2 SCC 338 : AIR 1987 SC 962
—| 316 |—
not submit any document to show that he was using his adoptive father’s name after 1973. He
further states that he had filed an application before the municipal council for succession rights,
but the same was not produced in the suit. Moreover, he states that he was filing income tax
returns in his earlier name “Ratanlal Chunilal”.
23. One Chaturbuj Laxminarayan Sharma was examined as Witness 2 on behalf of the appellant.
His deposition was marked as Ext. No. 152. He stated that he knew Govardhandas for 30 years.
He used to perform ceremonies for his family including the adoption ceremony of the appellant
which had taken place at the residence of Govardhandas. He deposed that the ceremony was
attended by a gathering of 100 to 200 people. According to him he had performed Navgrah
pooja, Kuldevi pooja, Laxmi-narayan pooja, havan and sankalp as part of adoption. Thereafter,
name of the appellant was changed from Ratanlal Chunilal to Ratanlal Govardhandas. At the
time of the ceremony, mother of the appellant gave the hand of the appellant in the hands of
Govardhandas. Photographs were t^aken at the time of the ceremony. In the cross-examination
he stated that invitation card for the ceremony was published and distributed. He was unable
to tell who decided to perform adoption ceremony by giving the hand of the appellant. He
admits that in Jain community, person to be adopted has to be seated on the lap of the adopting
father. But he stated that Ratanlal was not asked to take a seat on the lap of Govardhandas as
he was weak and Defendant 1 (Ratanlal) was healthier; this is a glaring contradiction between
the evidence of appellant and the priest. One Harakchand Bhansali of Kapoorgaon was adopted
after he was married. He was not able to give particulars of such adoption. Further he states that
he does not know of any other example of adoption of a married person.
24. Girjappa Gangaram Kothule, who was examined as defence Witness 3, stated that he knew
Govardhandas for many years. He recollected that many years ago Govardhandas had discussed
the matter of adopting the appellant with him. He was present during the ceremony. He could
not recollect whether invitation cards were printed for the adoption ceremony. According to his
statement, the adoption ceremony was performed at the residence of Govardhandas wherein
200 to 300 persons attended that function. He further stated that no religious ceremony relating
to the marriage had taken place prior to the day of marriage. It is to be noted that Mohanlal and
Ajith have deposed on the same lines in favour of the appellant.
25. The evidence as discussed above makes it clear that there are lot of contradictions in the evidence
of witnesses on all material aspects of adoption. A thorough glance at the entire evidence makes
it clear that the appellant who asserts the fact that he is adopted by late Govardhandas failed to
plead and prove the factum of adoption. All the circumstances pleaded by the appellant are not
properly explained by adducing cogent evidence to the satisfaction of the Court. The trial court
placed burden on the plaintiff to prove the adoption which is contrary to law. The appellant
failed to satisfy the Court that any question of law much less substantial questions of law arise in
this appeal which warrant interference of this Court.
26. Having regard to the evidence available on record and the circumstances elucidated herein
above, the view taken by the High Court, being convincingly reasonable, we see no reason to
interfere with the judgment1 of the High Court. Accordingly, this appeal is dismissed. There
shall be no orders as to costs.
qqq
—| 317 |—
KARINA JANE CREED VERSUS UNION OF INDIA & ORS.

Bench: Hon’ble Ms. Justice Indira Banerjee Hon’ble Mr. Justice Ajay Rastogi
Karina Jane Creed……………………Petitioner(s)
Versus
Union of India & Ors…………………Respondent(s)
SPECIAL LEAVE TO APPEAL (C) NO(S).13627/2019
The special leave petition has been filed by the petitioner, an Australian citizen, challenging the final
Judgment and order dated 28.05.2019 passed by the Division Bench of the Delhi High Court. The
Supreme Court held that in view of the statutory provisions of the JJ Act and in particular Section
59(12) thereof the relief prayed for in the writ petition cannot be granted. The writ Court could not
have waived the statutory requirement of Section 59(12) of the JJ Act.
Decided on : 10th June 2019
This special leave petition has been filed by the petitioner, an Australian citizen, challenging the
final Judgment and order dated 28.05.2019 passed by the Division Bench of the Delhi High Court
dismissing the Appeal, being LPA No. 351/2019 of the petitioner, against an order dated 10.5.2019 of
the Single Judge dismissing the writ Petition being W.P. No. 3567 of 2019 filed by the petitioner for
order on the Central Adoption Resource Authority (hereinafter referred to as “CARA”) to issue a No
Objection Certificate to the petitioner for adoption of two children aged 5 and 6 respectively.
The petitioner says that she has been residing in India for the last four years. In 2016, the petitioner
applied to CARA for adoption of the two children. The application was registered and processed. The
petitioner thereafter started visiting the children.
From the averments in the petition as also pictures enclosed, it appears that the petitioner has built up
a bond with the children who have also become very fond of the petitioner. Learned counsel appearing
on behalf of the petitioner submits that the children know the petitioner as their mother. Admittedly,
however, the children are not in pre-adoption foster care of the petitioner.
Both India and Australia are signatories to the Convention on Protection of Children and Cooperation
in respect of Inter-Country Adoption held in Hague in 1993 (hereinafter referred to as “Hague
Convention”). Article 5 of the Hague Convention provides:-
“Article 5 An adoption within the scope of the Convention shall take place only if the competent
authorities of the receiving State
a) have determined that the prospective parents are eligible and suited to adopt:
b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and
c) have determined that the child is or will be authorized to enter and reside permanently in that State.”
Inter-country adoption requires a certification with regard to suitability of the adoptive parents to
adopt the child, counselling of the prospective adoptive parents and authorization of the child to enter
and reside in the receiving State.
—| 318 |—
In India all inter-country adoptions are governed by the provisions of Juvenile Justice (Care and
Protection of Children) Act, 2015 (hereinafter referred to as ‘JJ Act’). Section 56(4) of the JJ Act
provides:-
“56(4) All inter-country adoptions shall be done only as per the provisions of this Act and the adoption
regulations framed by the Authority.”
Inter-country adoption of an orphan or abandoned or surrendered child can only be effected in
accordance with Section 59 of the JJ Act. Section 59(3) of the JJ Act provides:-
“59(3) A non-resident Indian or overseas citizen of India, or person of Indian origin or a foreigner, who
are prospective adoptive parents living abroad, irrespective of their religion, if interested to adopt an
orphan or abandoned or surrendered child from India, may apply for the same to an authorized foreign
adoption agency, or Central Authority or a concerned Government department in their country of
habitual residence, as the case may be, in the manner as provided in the adoption regulations framed
by the Authority.”
A foreigner living abroad if interested to adopt an orphan or abandoned or surrendered child from
India might apply to an authorized foreign adoption agency, or Central Authority or a concerned
Government department in their country of habitual residence, in the manner as provided in the
adoption regulations framed by the CARA as provided in Section 59(3).
The authorized foreign adoption agency, or Central Authority, or concerned Government department,
of the foreign country has to prepare a home study report of the prospective adoptive parents and
upon finding them eligible sponsor their application to CARA for adoption of a child from India.
A foreigner or a person of Indian origin or an overseas citizen of India who has habitual residence in
India can apply for adoption of a child from India to CARA along with No Objection Certificate from
the diplomatic mission of his country in India.
Section 59(12) of the JJ Act is set out hereinbelow :-
“59(12) – A foreigner or a person of Indian Origin or an overseas citizen of India, who has habitual
residence in India, if interested to adopt a child from India, may apply to authority for the same
along with a no objection certificate from the diplomatic mission of his country in India, for further
necessary actions as provided in the adoption regulations framed by the Authority” .
In view of the statutory provisions of the JJ Act and in particular Section 59(12) thereof the relief
prayed for in the writ petition cannot be granted. The writ Court could not have waived the statutory
requirement of Section 59(12) of the JJ Act. As observed by learned Single Bench of Delhi High Court,
there is little doubt that the petitioner would have brought up the children well, with love and affection
and the children too would have been lucky to have the petitioner as an adoptive parent. We have
every sympathy for the petitioner but regret our inability to help her.
The special leave petition is accordingly dismissed. As a sequel to the above, pending interlocutory
application also stands disposed of.
qqq
—| 319 |—
STEPHANIE JOAN BECKER VERSUS STATE AND ORS.

Hon’ble Mr. Justice V. Gopala Gowda
(Arising out of SLP (Civil) No. 29505 of 2012)
Stephanie Joan Becker ... Appellant(s)
Versus
State and Ors. ... Respondent(s)
The rejection of the applications filed by the appellant under Sections 7 and 26 of the Guardians
and Wards Act, 1890 (hereinafter for short the “Guardians Act”) by the learned Trial Court vide its
order dated 17.09.2010 in Guardianship Case No. 2 of 2010 and the affirmation of the said order
made by the High Court of Delhi by its order dated 09.07.2012 in FAO No. 425 of 2010 has been put
to challenge in the present appeal. By the application filed under Section 7 of the Guardians Act,
the appellant had sought for an order of the Court appointing her as the guardian of one female
orphan child Tina aged about 10 years whereas by the second application filed under Section 26 of
the Guardians Act the appellant had sought permission of the Court to take the child Tina out of the
country for the purpose of adoption.
The rejection of the aforesaid two applications by the learned Trial Court as well as by the High
Court is on a sole and solitary ground, namely, that the appellant, being a single prospective adoptive
parent, was aged about 53 years at the relevant point of time whereas for a single adoptive parent
the maximum permissible age as prescribed by the Government of India Guidelines in force was 45.
If the foreign adoptive parent is otherwise suitable and willing, and consent of the child had also
been taken (as in the present case) and the expert bodies engaged in the field are of the view that in
the present case the adoption process would end in a successful blending of the child in the family of
the appellant in USA, we do not see as to how the appellant could be understood to be disqualified
or disentitled to the relief(s) sought by her in the proceedings in question. It is our considered view
that having regard to the totality of the facts of the case the proposed adoption would be beneficial
to the child apart from being consistent with the legal entitlement of the foreign adoptive parent. If
the above is the net result of the discussions that have preceded, the Court must lean in favour of
the proposed adoption. We, therefore, set aside the orders dated 17.09.2010 in Guardianship Case
No. 2 of 2010 passed by the learned Trial Court and the order dated 09.07.2012 in FAO No. 425 of
2010 passed by the High Court of Delhi and appoint the appellant as the legal guardian of the minor
female child Tina and grant permission to the appellant to take the child to USA.
JUDGMENT
Hon’ble Mr. Jusice Ranjan Gogoi.—
Leave granted.
—| 320 |—
2. The rejection of the applications filed by the appellant under Sections 7 and 26 of the Guardians
and Wards Act, 1890 (hereinafter for short the “Guardians Act”) by the learned Trial Court
vide its order dated 17.09.2010 in Guardianship Case No. 2 of 2010 and the affirmation of the
said order made by the High Court of Delhi by its order dated 09.07.2012 in FAO No. 425 of
2010 has been put to challenge in the present appeal. By the application filed under Section 7
of the Guardians Act, the appellant had sought for an order of the Court appointing her as the
guardian of one female orphan child Tina aged about 10 years whereas by the second application
filed under Section 26 of the Guardians Act the appellant had sought permission of the Court to
take the child Tina out of the country for the purpose of adoption.
3. The rejection of the aforesaid two applications by the learned Trial Court as well as by the High
Court is on a sole and solitary ground, namely, that the appellant, being a single prospective
adoptive parent, was aged about 53 years at the relevant point of time whereas for a single adoptive
parent the maximum permissible age as prescribed by the Government of India Guidelines in
force was 45. Though a no objection, which contained an implicit relaxation of the rigour of the
Guidelines with regard to age, has been granted by the Central Adoption Resource Authority
(CARA), the High Court did not consider it appropriate to take the said no objection/relaxation
into account inasmuch as the reasons for the relaxation granted were not evident on the face of
the document i.e. no objection certificate in question.
4. To understand and appreciate the contentious issues that have arisen in the present appeal,
particularly, the issues raised by a non-governmental organization that had sought impleadment
in the present proceedings (subsequently impleaded as respondent No. 4) it will be necessary to
take note of the principles of law governing inter-country adoption, a short resume of which is
being made hereinbelow. But before doing that it would be worthwhile to put on record that the
objections raised by the Respondent No.4, pertain to the legality of the practice of inter country
adoption itself, besides the bonafides of the appellant in seeking to adopt the child involved in
the present proceeding and the overzealous role of the different bodies involved in the process
in question resulting in side stepping of the laid down norms.
5. The law with regard to inter-country adoption, indeed, was in a state of flux until the principles
governing giving of Indian children in adoption to foreign parents and the procedure that should
be followed in this regard to ensure absence of any abuse, maltreatment or trafficking of children
came to be laid down by this Court in Lakshmi Kant Pandey v. Union of India9. The aforesaid
proceedings were instituted by this Court on the basis of a letter addressed by one Lakshmi Kant
Pandey, a practicing advocate of this Court with regard to alleged malpractices indulged in by
social and voluntary organizations engaged in the work of offering Indian children in adoption
to foreign parents. After an elaborate consideration of the various dimensions of the questions
that arose/were raised before the Court and the information laid before it by the Indian Council
of Social Welfare, Indian Council of Child Welfare, SOS Children’s Villages of India (respondent
No. 2 herein) and also certain voluntary organizations working in the foreign jurisdictions, this
Court, after holding in favour of inter country adoption, offered elaborate suggestions to ensure
that the process of such adoption is governed by strict norms, and a well laid down procedure to
eliminate the possibility of abuse or misuse in offering Indian children for adoption by foreign
parents is in place. This Court in Lakshmi Kant Pandey (supra) also laid down the approach that
is required to be adopted by the courts while dealing with applications under the Guardians and
9 (1984) 2 SCC 244
—| 321 |—
Wards Act seeking orders for appointment of foreign prospective parents as guardians of Indian
children for the eventual purpose of adoption. Such directions, it may be noticed, was not only
confined to hearing various organizations like the Indian Council for Child Welfare and Indian
Council of Social Welfare by issuance of appropriate notices but also the time period within
which the proceedings filed before the Court are to stand decided. Above all, it will be necessary
for us to notice that in Lakshmi Kant Pandey (supra) this Court had observed that :
“Of course, it would be desirable if a Central Adoption Resource Agency is set up by the
Government of India with regional branches at a few centres which are active in inter-
country adoptions. Such Central Adoption Resource Agency can act as a clearing house of
information in regard to children available for inter-country adoption and all applications
by foreigners for taking Indian children in adoption can then be forwarded by the social or
child welfare agency in the foreign country to such Central Adoption Resource Agency and
the latter can in its turn forward them to one or the other of the recognized social or child
welfare agencies in the country.”
6. Pursuant to the decision of this Court in Lakshmi Kant Pandey (supra) surely, though very
slowly, the principles governing adoption including the establishment of a central body, i.e.,
Central Adoption Resource Authority (CARA) took shape and found eventual manifestation
in a set of elaborate guidelines laid down by the Government of India commonly referred to
as the Guidelines For Adoption from India 2006 (hereinafter referred to as “the Guidelines of
2006”). A reading of the aforesaid Guidelines indicates that elaborate provisions had been made
to regulate the pre-adoption procedure which culminates in a declaration by the Child Welfare
Committee that the child is free for adoption. Once the child (abandoned or surrendered) is so
available for adoption the Guidelines of 2006 envisage distinct and separate steps in the process
of adoption which may be usefully noticed below :
(1) Enlisted Foreign Adoption Agency (EFAA)
• The applicants will have to contact or register with an Enlisted Foreign Adoption
Agency (EFAA)/Central Authority/Govt. Deptt. in their country, in which they are
resident, which will prepare the a Home Study Report (HSR) etc. The validity of
“Home Study Report” will be for a period of two years. HSR report prepared before
two years will be updated at referral.
• The applicants should obtain the permission of the competent authority for adopting
a child from India. Where such Central Authorities or Government departments are
not available, then the applications may be sent by the enlisted agency with requisite
documents including documentary proof that the applicant is permitted to adopt
from India
• The adoption application dossier should contain all documents prescribed in
Annexure-2. All documents are to be notarized. The signature of the notary is either
to be attested by the Indian Embassy/High Commission or the appropriate Govt.
Department of the receiving country. If the documents are in any language other
than English, then the originals must be accompanied by attested translations
—| 322 |—
• A copy of the application of the prospective adoptive parents along with the copies
of the HSR and other documents will have to be forwarded to RIPA by the Enlisted
Foreign Adoption Agency (EFAA) or Central Authority of that country.
(2) Role of Recognized Indian Placement Agency (RIPA)
• On receipt of the documents, the Indian Agency will make efforts to match a child
who is legally free for inter-country adoption with the applicant.
• In case no suitable match is possible within 3 months, the RIPA will inform the
EFAA and CARA with the reasons therefore.
(3) Child being declared free for intercountry adoption - Clearance by ACA
• Before a RIPA proposes to place a child in the Inter country adoption, it must apply
to the ACA for assistance for Indian placement.
• The child should be legally free for adoption.
• ACA will find a suitable Indian prospective adoptive parent within 30 days, failing
which it will issue clearance certificate for intercountry adoption.
• ACA will issue clearance for inter-country adoption within 10 days in case of older
children above 6 years, siblings or twins and Special Needs Children as per the
additional guidelines issued in this regard.
• In case the ACA cannot find suitable Indian parent/parents within 30 days, it will be
incumbent upon the ACA to issue a Clearance Certificate on the 31st day.
• If ACA Clearance is not given on 31st day, the clearance of ACA will be assumed
unless ACA has sought clarification within the stipulation period of 30 days.
• NRI parent(s) (at least one parent) HOLDING Indian Passport will be exempted
from ACA Clearance, but they have to follow all other procedures as per the
Guidelines.
(4) Matching of the Child Study Report with Home Study Report of FPAP by RIPA
• After a successful matching, the RIPA will forward the complete dossier as per
Annexure 3 to CARA for issuance of “No Objection Certificate”.
(5) Issue of No Objection Certificate (NOC) by CARA
• RIPA shall make application for CARA NOC in case of foreign/PIO parents only
after ACA Clearance Certificate is obtained.
• CARA will issue the ‘NOC’ within 15 days from the date of receipt of the adoption
dossier if complete in all respect.
• If any query or clarification is sought by CARA, it will be replied to by the RIPA
within 10 days.
• No Indian Placement Agency can file an application in the competent court for
intercountry adoption without a “No Objection Certificate” from CARA.
(6) Filing of Petition in the Court
—| 323 |—
• On receipt of the NOC from CARA, the RIPA shall file a petition for adoption/
guardianship in the competent court within 15 days.
• The competent court may issue an appropriate order for the placement of the child
with FPAP.
• As per the Hon’ble Supreme Court directions, the concerned Court may dispose the
case within 2 months.
(7) Passport and Visa
• RIPA has to apply in the Regional Passport Office for obtaining an Indian Passport
in favour of the child.
• The concerned Regional Passport Officer may issue the Passport within 10 days.
• Thereafter the VISA entry permit may be issued by the Consulate/Embassy/High
Commission of the concerned country for the child.
(8) Child travels to adoptive country
• The adoptive parent/parents will have to come to India and accompany the child
back to their country.
7. Even after the child leaves the country the Guidelines of 2006 contemplate a process of continuous
monitoring of the welfare of the child through the foreign placement agency until the process
of adoption in the country to which the child has been taken is completed, which process the
Guidelines contemplate completion within two years. The monitoring of the welfare of the child
after the process of adoption is complete and the steps that are to be taken in cases where the
adoption does not materialize is also contemplated under the Guidelines of 2006. As the said
aspects are not relevant for the purposes of the present adjudication the details in this regard
are not being noticed. What, however, would require emphasis, at this stage, is that by and
large the Guidelines of 2006 framed by the Ministry of Women and Child Development are in
implementation of the decision of this Court in the case of Lakshmi Kant Pandey (supra).
8. Two significant developments in the law governing adoptions may now be taken note of. Section
41 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter for short the
“JJ Act”) was amended by Act 33 of 2006 by substituting sub-Sections 2, 3 and 4 by the present
provisions contained in the aforesaid sub-Sections of Section 41. The aforesaid amendment which
was made effective from 22.8.2006 is significant inasmuch as under sub-Section 3 power has been
conferred in the Court to give a child in adoption upon satisfaction that the various guidelines
issued from time to time, either by the State Government or the CARA and notified by the
Central Government have been followed in the given case. The second significant development
in this regard is the enactment of the Juvenile Justice (Care and Protection of Children) Rules
2007 by repeal of the 2001 Rules in force. Rule 33 (2) makes it clear that “for all matters relating
to adoption, the guidelines issued by the Central Adoption Resource Agency and notified by the
Central Government under sub-section (3) of Section 41 of the Act, shall apply.” Rule 33 (3) in
the various sub-clauses (a) to (g) lays down an elaborate procedure for certifying an abandoned
child to be free for adoption. Similarly, sub-rule (4) of Rule 33 deals with the procedure to be
adopted for declaring a surrendered child to be legally free for adoption. Once such a declaration
—| 324 |—
is made, the various steps in the process of adoption spelt out by the Guidelines of 2006, details
of which have been extracted hereinabove, would apply finally leading to departure of the child
from the country to his/her new home for completion of the process of adoption in accordance
with the laws of the country to which the child had been taken. In this regard the order of
the courts in the country under Section 41(3) of the JJ Act would be a step in facilitating the
adoption of the child in the foreign country.
9. It will also be necessary at this stage to take note of the fact that the Guidelines of 2006 stand
repealed by a fresh set of Guidelines published by Notification dated 24.6.2011 of the Ministry
of Women and Child Development, Government of India under Section 41(3) of the JJ Act.
The time gap between the coming into effect of the provisions of Section 41(3) of the JJ Act
i.e. 22.08.2006 and the publication of the 2011 Guidelines by the Notification dated 24.6.2011
is on account of what appears to be various procedural steps that were undertaken including
consultation with various bodies and the different State Governments. A reading of the
Guidelines of 2011 squarely indicate that the procedural norms spelt out by the 2006 Guidelines
have been more elaborately reiterated and the requirements of the pre-adoption process under
Rules 33(3) and (4) have been incorporated in the said Guidelines of 2011. As a matter of fact,
by virtue of the provisions of Rule 33(2) it is the Guidelines of 2011 notified under Section 41(3)
of the JJ Act which will now govern all matters pertaining to inter-country adoptions virtually
conferring on the said Guidelines a statutory flavour and sanction. Though the above may not
have been the position on the date of the order of the learned trial court i.e. 17.9.2010, the full
vigour of Section 41(3) of the JJ Act read with Rule 33 (2) of the Rules and the Guidelines of
2011 were in operation on the date of the High Court order i.e. 9.7.2012. The Notification dated
24.06.2011 promulgating the Guidelines of 2011 would apply to all situations except such things
done or actions completed before the date of the Notification in question, i.e., 24.06.2011. The
said significant fact apparently escaped the notice of the High Court. Hence the claim of the
appellant along with consequential relief, if any, will have to be necessarily considered on the
basis of the law as in force today, namely, the provisions of the JJ Act and the Rules framed
thereunder and the Guidelines of 2011 notified on 24.6.2011. In other words, if the appellant is
found to be so entitled, apart from declaring her to be natural guardian and grant of permission
to take the child away from India a further order permitting the proposed adoption would also
be called for. Whether the order relating to adoption of the child should be passed by this Court
as the same was not dealt with in the erstwhile jurisdictions (trial court and the High Court) is
an incidental aspect of the matter which would require consideration.
10. The facts of the present case, as evident from the pleadings of the parties and the documents
brought on record, would go to show that the appellant’s case for adoption has been sponsored
by an agency (Journeys of the Heart, USA) rendering service in USA which is recognized by
CARA. The Home Study Report of the family of the appellant indicates that the appellant apart
from being gainfully employed and financially solvent is a person of amicable disposition who
has developed affinity for Indian culture and Indian children. The appellant, though unmarried,
has the support of her brother and other family members who have promised to look after the
child in the event such a situation becomes necessary for any reason whatsoever. The Child
Study Report alongwith medical examination Report prepared by the recognized agency in India
has been read and considered by the appellant and it is only thereafter that she had indicated
her willingness to adopt the child in question. Before permitting the present process of inter
—| 325 |—
country adoption to commence, all possibilities of adoption of the child by an Indian parent
were explored which however did not prove successful.
The matter was considered by the No Objection Committee of the CARA and as stated in the
affidavit of the said agency filed before this Court, the No Objection Certificate dated 03.02.2010
has been issued keeping in mind the various circumstances peculiar to the present case, details
of which are as hereunder :
• “Child Tina was an older female child (aged 7 years when the NOC was issued) and thus
relaxation was permissible as per the guidelines.
• The Prospective parent was 54 years of age, which is within the age up to which adoption
by foreign prospective parent is permissible after relaxation i.e. 55 years.
• The Prospective Adoptive Parent is otherwise also suitable as she is financially stable and
there are three reference letters supporting adoption of the child by her. The Home study
report of the prospective parent (Ms. Stephanie Becker) shows the child as kind, welcoming,
caring and responsible individual with physical, mental emotional and financial capability
to parent a female child up to age of seven years from India.
• Procedures such as declaration of the child as legally free for adoption by CWC Child
Welfare Committee (CWC); ensuring efforts for domestic adoption and clearance of
Adoption Coordinating Agency; and taking consent of older child had been followed.
• Follow-up of the welfare of the child was to be properly done through Journeys of the
Hearts, USA, the authorized agency which had also given an undertaking to ensure the
adoption of child Tina according to the laws in USA within a period not exceeding two
years from the date of arrival of the child in her new home. The agency has also committed
to send follow-up reports as required.
• The Biological brother of the prospective parent, Mr. Philip Becker Jr. and his wife Ms.
Linda Becker have given an undertaking on behalf of the single female applicant to act as
legal guardian of the child in case of any unforeseen event to the adoptive parent. This is
another important safeguard.
• Article 5 from the Office of Children’s Issues, US Department of State allowing child
Tina to enter and reside permanently in the United States and declaring suitability of the
prospective adoptive parent, was available.”
11. In view of the facts as stated above which would go to show that each and every norm of the
adoption process spelt out under the Guidelines of 2006, as well as the Guidelines of 2011, has
been adhered to, we find that the apprehension raised by the intervener, though may have been
founded on good reasons, have proved themselves wholly unsubstantiated in the present case. If
the foreign adoptive parent is otherwise suitable and willing, and consent of the child had also
been taken (as in the present case) and the expert bodies engaged in the field are of the view that
in the present case the adoption process would end in a successful blending of the child in the
family of the appellant in USA, we do not see as to how the appellant could be understood to be
disqualified or disentitled to the relief(s) sought by her in the proceedings in question. It is our
considered view that having regard to the totality of the facts of the case the proposed adoption
would be beneficial to the child apart from being consistent with the legal entitlement of the
—| 326 |—
foreign adoptive parent. If the above is the net result of the discussions that have preceded, the
Court must lean in favour of the proposed adoption. We, therefore, set aside the orders dated
17.09.2010 in Guardianship Case No. 2 of 2010 passed by the learned Trial Court and the order
dated 09.07.2012 in FAO No. 425 of 2010 passed by the High Court of Delhi and appoint the
appellant as the legal guardian of the minor female child Tina and grant permission to the
appellant to take the child to USA.
In view of the provisions of Section 41(3) of the JJ Act and to avoid any further delay in the matter
which would be caused if we were to remand the aforesaid aspect of the case to the learned Trial
Court, only on the ground that the same did not receive consideration of the learned Court, we
deem it appropriate to pass necessary orders giving the child Tina in adoption to the appellant.
The CARA will now issue the necessary conformity certificate as contemplated under clause
34(4) of the Guidelines of 2011. The appeal consequently shall stand allowed in the above terms.
qqq
—| 327 |—
SHABNAM HASHMI VERSUS UNION OF INDIA & ORS.

Hon’ble Mr. Justice Shiva Kirti Singh
WRIT PETITION (CIVIL) NO. 470 OF 2005
Shabnam Hashmi ... Petitioner(S)
Versus
Union of India & Ors. ... Respondent (S)
Recognition of the right to adopt and to be adopted as a fundamental right under Part-III of the
Constitution is the vision scripted by the public spirited individual who has moved this Court under
Article 32 of the Constitution.
There is an alternative prayer requesting the Court to lay down optional guidelines enabling
adoption of children by persons irrespective of religion, caste, creed etc. and further for a direction
to the respondent Union of India to enact an optional law the prime focus of which is the child with
considerations like religion etc. taking a hind seat.
The decision of this Court in Lakshmi Kant Pandey (supra) is a high watermark in the development
of the law relating to adoption. Dealing with inter-country adoptions, elaborate guidelines had been
laid by this Court to protect and further the interest of the child. A regulatory body, i.e., Central
Adoption Resource Agency (for short ‘CARA’) was recommended for creation and accordingly set up
by the Government of India in the year 1989. Since then, the said body has been playing a pivotal
role, laying down norms both substantive and procedural, in the matter of inter as well as in country
adoptions. The said norms have received statutory recognition on being notified by the Central Govt.
under Rule 33 (2) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and are today
in force throughout the country, having also been adopted and notified by several states under the
Rules framed by the states in exercise of the Rule making power under Section 68 of the JJ Act, 2000.
The legislature which is better equipped to comprehend the mental preparedness of the entire
citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment of
the JJ Act 2000 and the same must receive due respect. Conflicting view points prevailing between
different communities, as on date, on the subject makes the vision contemplated by Article 44 of the
Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the Court is reminded of
the anxiety expressed by it earlier with regard to the necessity to maintain restraint. All these impel
us to take the view that the present is not an appropriate time and stage where the right to adopt and
the right to be adopted can be raised to the status of a fundamental right and/or to understand such
a right to be encompassed by Article 21 of the Constitution
—| 328 |—
JUDGMENT
Hon’ble Mr. Justice Ranjan Gogoi.—
1. Recognition of the right to adopt and to be adopted as a fundamental right under Part-III of the
Constitution is the vision scripted by the public spirited individual who has moved this Court
under Article 32 of the Constitution. There is an alternative prayer requesting the Court to
lay down optional guidelines enabling adoption of children by persons irrespective of religion,
caste, creed etc. and further for a direction to the respondent Union of India to enact an optional
law the prime focus of which is the child with considerations like religion etc. taking a hind seat.
2. The aforesaid alternative prayer made in the writ petition appears to have been substantially
fructified by the march that has taken place in this sphere of law, gently nudged by the judicial
verdict in Lakshmi Kant Pandey Vs. Union of India10 and the supplemental, if not consequential,
legislative innovations in the shape of the Juvenile Justice (Care And Protection of Children)
Act, 2000 as amended in 2006 (hereinafter for short ‘the JJ Act, 2000) as also The Juvenile Justice
(Care and Protection of Children) Rules promulgated in the year 2007 (hereinafter for short ‘the
JJ Rules, 2007’).
3. The alternative prayer made in the writ petition may be conveniently dealt with at the outset. The
decision of this Court in Lakshmi Kant Pandey (supra) is a high watermark in the development
of the law relating to adoption. Dealing with inter-country adoptions, elaborate guidelines had
been laid by this Court to protect and further the interest of the child. A regulatory body, i.e.,
Central Adoption Resource Agency (for short ‘CARA’) was recommended for creation and
accordingly set up by the Government of India in the year 1989. Since then, the said body has
been playing a pivotal role, laying down norms both substantive and procedural, in the matter
of inter as well as in country adoptions. The said norms have received statutory recognition
on being notified by the Central Govt. under Rule 33 (2) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 and are today in force throughout the country, having also
been adopted and notified by several states under the Rules framed by the states in exercise of
the Rule making power under Section 68 of the JJ Act, 2000.
4. A brief outline of the statutory developments in the concerned sphere may now be sketched.
In stark contrast to the provisions of the JJ Act, 2000 in force as on date, the Juvenile Justice
Act, 1986 (hereinafter for short ‘the JJ Act, 1986’) dealt with only “neglected” and “delinquent
juveniles”. While the provisions of the 1986 Act dealing with delinquent juveniles are not relevant
for the present, all that was contemplated for a ‘neglected juvenile’ is custody in a juvenile home
or an order placing such a juvenile under the care of a parent, guardian or other person who
was willing to ensure his good behaviour during the period of observation as fixed by the
Juvenile Welfare Board. The JJ Act, 2000 introduced a separate chapter i.e. Chapter IV under
the head ‘Rehabilitation and Social Reintegration’ for a child in need of care and protection.
Such rehabilitation and social reintegration was to be carried out alternatively by adoption
or foster care or sponsorship or by sending the child to an after-care organization. Section 41
contemplates adoption though it makes it clear that the primary responsibility for providing
care and protection to a child is his immediate family. Sections 42, 43 and 44 of the JJ Act,
2000 deals with alternative methods of rehabilitation namely, foster care, sponsorship and being
looked after by an after-care organisation.
10 (1984) 2 SCC 244
—| 329 |—
5. The JJ Act, 2000, however did not define ‘adoption’ and it is only by the amendment of 2006 that
the meaning thereof came to be expressed in the following terms:
“2(aa)-“adoption” means the process through which the adopted child is permanently separated
from his biological parents and become the legitimate child of his adoptive parents with all the
rights, privileges and responsibilities that are attached to the relationship”
6. In fact, Section 41 of the JJ Act, 2000 was substantially amended in 2006 and for the first time
the responsibility of giving in adoption was cast upon the Court which was defined by the JJ
Rules, 2007 to mean a civil court having jurisdiction in matters of adoption and guardianship
including the court of the district judge, family courts and the city civil court. [Rule 33 (5)]
Substantial changes were made in the other sub-sections of Section 41 of the JJ Act, 2000. The
CARA, as an institution, received statutory recognition and so did the guidelines framed by it
and notified by the Central Govt. [Section 41(3)].
7. In exercise of the rule making power vested by Section 68 of the JJ Act, 2000, the JJ Rules, 2007
have been enacted. Chapter V of the said Rules deal with rehabilitation and social reintegration.
Under Rule 33(2) guidelines issued by the CARA, as notified by the Central Government under
Section 41 (3) of the JJ Act, 2000, were made applicable to all matters relating to adoption. It
appears that pursuant to the JJ Rules, 2007 and in exercise of the rule making power vested
by the JJ Act, 2000 most of the States have followed suit and adopted the guidelines issued by
CARA making the same applicable in the matter of adoption within the territorial boundaries
of the concerned State. Rules 33(3) and 33(4) of the JJ Rules, 2007 contain elaborate provisions
regulating pre-adoption procedure i.e. for declaring a child legally free for adoption. The Rules
also provide for foster care (including pre-adoption foster care) of such children who cannot be
placed in adoption & lays down criteria for selection of families for foster care, for sponsorship
and for being looked after by an aftercare organisation. Whatever the Rules do not provide for
are supplemented by the CARA guidelines of 2011 which additionally provide measures for post
adoption follow up and maintenance of data of adoptions.
8. It will now be relevant to take note of the stand of the Union of India. Way back on 15th May, 2006
the Union in its counter affidavit had informed the Court that prospective parents, irrespective
of their religious background, are free to access the provisions of the Act for adoption of children
after following the procedure prescribed. The progress on the ground as laid before the Court by
the Union of India through the Ministry of Women and Child Development (respondent No. 3
herein) may also be noticed at this stage. The Union in its written submission before the Court
has highlighted that at the end of the calendar year 2013 Child Welfare Committees (CWC) are
presently functioning in a total of 619 districts of the country whereas State Adoption Resource
Agencies (SARA) has been set up in 26 States/Union Territories; Adoption Recommendation
Committees (ARCs) have been constituted in 18 States/Union Territories whereas the number of
recognized adoption organisations in the country are 395. According to the Union the number
of reported adoptions in the country from January, 2013 to September, 2013 was 19884 out
of which 1712 cases are of inter-country adoption. The third respondent has also drawn the
attention of the Court that notwithstanding the time schedule specified in the guidelines of 2011
as well as in the JJ Rules, 2007 there is undue delay in processing of adoption cases at the level of
Child Welfare Committees (CWS), the Adoption Recommendation Committees (ARCs) as well
as the concerned courts.
—| 330 |—
9. In the light of the aforesaid developments, the petitioner in his written submission before the
Court, admits that the JJ Act, 2000 is a secular law enabling any person, irrespective of the
religion he professes, to take a child in adoption. It is akin to the Special Marriage Act 1954,
which enables any person living in India to get married under that Act, irrespective of the
religion he follows. JJA 2000 with regard to adoption is an enabling optional gender-just law,
it is submitted. In the written arguments filed on behalf of the petitioner it has also been stated
that in view of the enactment of the JJ Act, 2000 and the Amending Act of 2006 the prayers
made in the writ petition with regard to guidelines to enable and facilitate adoption of children
by persons irrespective of religion, caste, creed etc. stands satisfactorily answered and that a
direction be made by this Court to all States, Union Territories and authorities under the JJ Act,
2000 to implement the provisions of Section 41 of the Act and to follow the CARA guidelines as
notified.
10. The All India Muslim Personal Law Board (hereinafter referred to as ‘the Board’) which has
been allowed to intervene in the present proceeding has filed a detailed written submission
wherein it has been contended that under the JJ Act, 2000 adoption is only one of the methods
contemplated for taking care of a child in need of care and protection and that Section 41
explicitly recognizes foster care, sponsorship and being look after by after-care organizations as
other/ alternative modes of taking care of an abandoned/surrendered child. It is contended that
Islamic Law does not recognize an adopted child to be at par with a biological child. According
to the Board, Islamic Law professes what is known as the “Kafala” system under which the
child is placed under a ‘Kafil’ who provides for the well being of the child including financial
support and thus is legally allowed to take care of the child though the child remains the true
descendant of his biological parents and not that of the “adoptive” parents. The Board contends
that the “Kafala” system which is recognized by the United Nation’s Convention of the Rights of
the Child under Article 20(3) is one of the alternate system of child care contemplated by the JJ
Act, 2000 and therefore a direction should be issued to all the Child Welfare Committees to keep
in mind and follow the principles of Islamic Law before declaring a muslim child available for
adoption under Section 41(5) of the JJ Act, 2000.
11. The JJ Act, 2000, as amended, is an enabling legislation that gives a prospective parent the option
of adopting an eligible child by following the procedure prescribed by the Act, Rules and the
CARA guidelines, as notified under the Act. The Act does not mandate any compulsive action
by any prospective parent leaving such person with the liberty of accessing the provisions of the
Act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead,
follow what he comprehends to be the dictates of the personal law applicable to him. To us, the
Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal
beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of
an enabling statute. At the cost of repetition we would like to say that an optional legislation that
does not contain an unavoidable imperative cannot be stultified by principles of personal law
which, however, would always continue to govern any person who chooses to so submit himself
until such time that the vision of a uniform Civil Code is achieved. The same can only happen
by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that
are still active as on date.
—| 331 |—
12. The writ petitioner has also prayed for a declaration that the right of a child to be adopted
and that of the prospective parents to adopt be declared a fundamental right under Article 21
of the Constitution. Reliance is placed in this regard on the views of the Bombay and Kerala
High Courts in In re: Manuel Theodore D’souza11 and Philips Alfred Malvin Vs. Y.J.Gonsalvis &
Ors.12 respectively. The Board objects to such a declaration on the grounds already been noticed,
namely, that Muslim Personal Law does not recognize adoption though it does not prohibit a
childless couple from taking care and protecting a child with material and emotional support.
13. Even though no serious or substantial debate has been made on behalf of the petitioner on the
issue, abundant literature including the holy scripts have been placed before the Court by the
Board in support of its contention, noted above. Though enriched by the lengthy discourse laid
before us, we do not think it necessary to go into any of the issues raised. The Fundamental
Rights embodied in Part-III of the Constitution constitute the basic human rights which inhere
in every person and such other rights which are fundamental to the dignity and well being of
citizens. While it is correct that the dimensions and perspectives of the meaning and content
of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant
democracy where the mind is always free, elevation of the right to adopt or to be adopted to
the status of a Fundamental Right, in our considered view, will have to await a dissipation of
the conflicting thought processes in this sphere of practices and belief prevailing in the country.
The legislature which is better equipped to comprehend the mental preparedness of the entire
citizenry to think unitedly on the issue has expressed its view, for the present, by the enactment
of the JJ Act 2000 and the same must receive due respect. Conflicting view points prevailing
between different communities, as on date, on the subject makes the vision contemplated by
Article 44 of the Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the
Court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain
restraint. All these impel us to take the view that the present is not an appropriate time and stage
where the right to adopt and the right to be adopted can be raised to the status of a fundamental
right and/or to understand such a right to be encompassed by Article 21 of the Constitution. In
this regard we would like to observe that the decisions of the Bombay High Court in Manuel
Theodore D’souza (supra) and the Kerala High Court in Philips Alfred Malvin (supra) can be
best understood to have been rendered in the facts of the respective cases. While the larger
question i.e. qua Fundamental Rights was not directly in issue before the Kerala High Court,
in Manuel Theodore D’souza (supra) the right to adopt was consistent with the canonical law
applicable to the parties who were Christians by faith. We hardly need to reiterate the well settled
principles of judicial restraint, the fundamental of which requires the Court not to deal with
issues of Constitutional interpretation unless such an exercise is but unavoidable.
14. Consequently, the writ petition is disposed of in terms of our directions and observations made
above.
qqq
11 (2000) 3 BomCR 244

12 AIR 1999 Kerala 187
—| 332 |—
LANDMARK JUDGMENTS
ON
CUSTODY OF CHILD,
VISITATION RIGHTS &
SHARED PARENTING
TEJASWINI GAUD VERSUS SHEKHAR JAGDISH PRASAD TEWARI

In the Supreme Court of India
Bench : Hon’ble Mrs. Justice R. Banumathi and Hon’ble Mr. Justice R. Subhash Reddy
Tejaswini Gaud and Others ...Appellants;
Versus
Shekhar Jagdish Prasad Tewari and Others ...Respondents.
(Arising out of SLP (Crl.) No. 1675 of 2019) Decided on May 6, 2019
A. Constitution of India — Art. 226 — Particular Writs — Habeas Corpus — Minor, custody of
— Scope of jurisdiction of Writ Court — Held, Writ of habeas corpus is a prerogative process
for securing the liberty of the subject by affording an effective means of immediate release from
an illegal or improper detention — Writ also extends its influence to restore the custody of a
minor to his guardian when wrongfully deprived of it — Detention of a minor by a person who
is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose
of granting writ, directing custody of the minor child — For restoration of the custody of a
minor from a person who according to the personal law, is not his legal or natural guardian,
in appropriate cases, the Writ Court has jurisdiction CPara 13)
B. Family and Personal Laws — Hindu Law — Hindu Minority and Guardianship Act, 1956
— Ss. 13 and 6 — Welfare of minor child — Minor child lost mother at the age of 14
months —Maternal relatives battling over custody against father of the minor because of
father’s previous ailments — Held, merely because appellants being the relatives took care of
the child for some time, they cannot retain the custody of the child — It is not the case of the
appellants that the first respondent is unfit to take care of the child except contending that
he has no female support to take care of the child — First respondent is fully recovered from
his illness and is now healthy and having the support of his mother and is able to take care of
the child — Moreover, child Shikha lost her mother when she was just fourteen months and
is now being deprived from the love of her father for no valid reason — As pointed out by the
High Court, the father is a highly educated person and is working in a reputed position and
his economic condition is stable — Thus, welfare of the child has to be determined owing to the
facts and circumstances of each case and the court cannot take a pedantic approach (Paras 33
and 34)
Rosy Jacob v. Jacob A. Chakramakkat, (1973) 1 SCC 840, relied on
Hon’ble Mrs. Justice R. Banumathi : —
Leave granted.
2. This appeal arises out of the judgment dated 06.02.2019 passed by the High Court of Bombay in
Crl.W.P. No. 5214 of 2018 in and by which the High Court held that the first respondent-father
of the child being the surviving parent and in the interest of welfare of the child, the custody of
—| 335 |—
LANDMARK JUDGMENTS ON CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
the child must be handed over to the first respondent-father and issued writ of habeas corpus
directing the appellants to handover the custody of the minor child to respondent No. 1-father
of the child.
3. Brief facts of the case are that marriage of respondent No. 1 was solemnized with Zelam on
28-05-2006. During the fifth month of her pregnancy i.e. in May 2017, Zelam was detected
with breast cancer. Respondent No. 1 and Zelam were blessed with a girl child named Shikha
on 14-08-2017. While Zelam was undergoing treatment, child Shikha was with her father
respondent No. 1 till November, 2017. Unfortunately, on 29-11-2017, respondent No. 1 was
suddenly hospitalised and he was diagnosed with Tuberculosis Meningitis and Pulmonary
Tuberculosis. While he was undergoing treatment, appellant No. 1-Tejaswini Gaud - one of the
two sisters of Zelam and appellant No. 4-Dr. Pradeep Gaud who is the husband of Tejaswini,
took Zelam along with Shikha to their residence at Mahim, Mumbai for continuation of the
treatment. Later, in June 2018, Zelam was shifted to her paternal home along with Shikha in
Pune i.e. residence of appellant No. 3-Samir Pardeshi, brother of Zelam. In July 2018, they were
again shifted to the house of appellant No. 1 in Mumbai. On 17-10-2018, Zelam succumbed
to her illness. Child Shikha continued to be in the custody of the appellants in Pune at the
residence of appellant No. 3 till 17-11-2018. Respondent No. 1-father was denied the custody
of child and on 17-11-2018, he gave a complaint to Dattawadi Police Station, Pune. Thereafter,
respondent No. 1-father approached the High Court by filing a writ petition seeking custody of
minor child Shikha. Respondent No. 1-father is a post-graduate in Management and is working
as a Principal Consultant with Wipro Limited.
4. The High Court held that respondent No. 1-father, the only surviving parent of the child is
entitled to the custody of the child and the child needs love, care and affection of the father.
The High Court took into account that respondent No. 1 was hospitalised for a serious ailment
and in those circumstances, the appellants have looked after the child and in the interest and
welfare of the child, it is just and proper that the custody of the child is handed over back to the
first respondent. However, the High Court observed that the efforts put in by the appellants in
taking care of the child has to be recognized and so the High Court granted appellants No. 2 and
3 access to the child.
5. The appellants contend that the writ of habeas corpus cannot be issued when efficacious
alternative remedy is available to respondent No. 1 under Hindu Minority and Guardianship
Act, 1956. It was submitted that the child was handed over to the appellants by the ailing mother
of the child who has expressed her wish that they should take care of the child and therefore, it is
not a fit case for issuance of writ of habeas corpus which is issued only in cases of illegal detention.
It is also their contention that the question of custody of the minor child is to be decided not
on consideration of the legal rights of the parties; but on the sole and predominant criterion of
what would best serve the interest and welfare of the minor and, as such, the appellants who are
taking care of the child since more than a year, they alone would be entitled to have the custody
of the child in preference to respondent No. 1-father of the child.
6. Learned counsel appearing for the appellants submitted that though the first respondent-father
is a natural guardian of the minor child Shikha and has a preferential right to claim the custody
of the minor child, but in matters concerning the custody of a minor child, the paramount
consideration is the welfare of the minor and not the legal right of a particular party, in this case,
—| 336 |—
the father. It was further submitted that Section 6 of the Hindu Minority and Guardianship Act,
1956 cannot supersede the dominant consideration as to what is conducive to the welfare of the
minor child and the welfare of the minor child has to be the sole consideration. In support of his
contention, the learned counsel for the appellants has placed reliance upon: —
(i) Dr. Veena Kapoorv. Varinder Kumar Kapoor (1981) 3 SCC 92; Sarita Sharma v. Sushi!
Sharma (2000) 3 SCC 14;
G. Eva Mary Eiezabath v. Jayaraj, 2005 SCC OnLine Mad 472: AIR 2005 Mad 452;
L. Chandran v. Mrs. Venkatalakshml, 1980 SCC OnLine AP 80: AIR 1981 AP 1; Ravi Kant
Keshri v. Krishna Kumar Gupta, 1992 SCC OnLine All 548: AIR 1993 All 230;
Suriez v. M. Abdul Khader, 2017 SCC OnLine Kar 4935;
Murari Lai Sharma v. State of West Bengal, 2013 SCC OnLine Cal 23045: AIR 2013 Cal
213;
R. Suresh Kumar v. K.A. Kavathi Habeas Corpus Petition No. 40 of 2006, decided on 25-
1-2006 (Mad); Athar Hussain v. Syed Siraj Ahmed (2010) 2 SCC 654; Nil Ratan Kundu v.
Abhijit Kundu (2008) 9 SCC 413;
Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi (1992) 3 SCC 573;
Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42; Baby Sarojam v. S. Vijayakrishnan
Nair, AIR 1992 Ker 277;
Abhimanyu Poria v. Rajbir Singh, 2018 SCC OnLine Del 6661: AIR 2018 Del 127; A.V.
Venkatakrishnaiah v. S.A. Sathyakumar, 1978 SCC OnLine Kar 241: AIR 1978 Kar 220
7. Per contra, the learned counsel appearing for the first respondent has submitted that in view of
Section 6 of the Hindu Minority and Guardianship Act, 1956, father has the paramount right to
the custody of the children and he cannot be deprived of the custody of the minor child unless
it is shown that he is unfit to be her guardian. The learned counsel submitted that in view of his
illness and the illness of the mother Zelam, mother and child happened to be in Mumbai and
Pune and considering the welfare of the child, she had to be handed over to the first respondent.
It was further submitted that father being a natural guardian as per the provisions of Section 6
of the Hindu Minority and Guardianship Act, 1956, the appellants have no legal right for the
custody of the infant and the High Court rightly ordered the custody of the child to respondent
No. 1. In support of his contention, learned counsel for the respondents inter alia placed reliance
upon number of judgments: —
(i) Gohar Begam v. Suggi @ Nazma Begam, AIR 1960 SC 93;
(ii) Smt. Manju Maiini Sheshachaiam D/o Mr. R. Sheshachaiam v. Vijay Thirugnanam S/o
Thivugnanam, 2018 SCC OnLine Kar 621;
(iii) Amol Ramesh Pawar v. State of Maharashtra, 2014 SCC OnLine Bom 280;
(iv) Marggarate Maria Pulparampii Nee Feldman v. Dr. Chacko Pulparampil, AIR 1970 Ker 1
(FB);
(v) Thirumalai Kumaran v. Union Territory of Dadra and Nagar Haveii 2003 (2) Mh.L.J.;
—| 337 |—
(vi) Capt. Dushyant Soma! v. Smt. Sushma Soma! (1981) 2 SCC 277;
(vii) Syed Saleemuddin v. Dr. Rukhsana (2001) 5 SCC 247;
(viii) Nirmaijit Kaur (2) v. State of Punjab (2006) 9 SCC 364;
(ix) Surya Vadanan v. State of Tamil Nadu (2015) 5 SCC 450;
(x) Ruchika Abbi v. State (National Capital Territory of Delhi) (2016) 16 SCC 764;
(xi) Kanika Goei v. State of Delhi through Station House Officer (2018) 9 SCC 578.
8. We have carefully considered the rival contentions and perused the impugned judgment and
various judgments relied upon by the parties.
9. The question falling for consideration is whether in the writ of habeas corpus filed by respondent
No. 1 seeking custody of the minor child from the appellants, the High Court was right in ordering
that the custody of minor child be handed over to respondent No. 1-father. Further question
falling for consideration is whether handing over of the custody of the child to respondent No.
1-father is not conducive to the interest and welfare of the minor child.
10. Section 6 of the Hindu Minority and Guardianship Act, 1956 enacts as to who can be said to be
a natural guardian. As per Section 6 of the Act, natural guardian of a Hindu Minor in respect of
the minor’s person as well as in respect of the minor’s property (excluding his or her undivided
interest in joint family property) is the father, in the case of a boy or an unmarried girl and after
him, the mother. Father continues to be a natural guardian, unless he has ceased to be a Hindu
or renounced the world. Section 13 of the Act deals with the welfare of a minor. Section 13
stipulates that in the appointment or declaration of any person as guardian of a Hindu minor by
a court, the welfare of the minor shall be the paramount consideration. Section 13(2) stipulates
that no person shall be entitled to the guardianship by virtue of the provisions of the Act if the
court is of opinion that his or her guardianship will not be for the welfare of the minor.
11. Maintainability of the writ of habeas corpus:- The learned counsel for the appellants submitted
that the law is well-settled that in deciding the question of custody of minor, the welfare of the
minor is of paramount importance and that the custody of the minor child by the appellants
cannot be said to be illegal or improper detention so as to entertain the habeas corpus which is
an extraordinary remedy and the High Court erred in ordering the custody of the minor child
be handed over to the first respondent-father. Placing reliance on Veena Kapoor1 and Sarita
Sharma2 and few other cases, the learned counsel for the appellants contended that the welfare
of children requires a full and thorough inquiry and therefore, the High Court should instead of
allowing the habeas corpus petition, should have directed the respondent to initiate appropriate
proceedings in the civil court. The learned counsel further contended that though the father
being a natural guardian has a preferential right to the custody of the minor child, keeping in
view the welfare of the child and the facts and circumstances of the case, custody of the child by
the appellants cannot be said to be illegal or improper detention so as to justify invoking extra-
ordinary remedy by filing of the habeas corpus petition.
12. Countering this contention, the learned counsel for respondent No. 1 submitted that in the
given facts of the case, the High Court has the extraordinary power to exercise the jurisdiction
under Article 226 of the Constitution of India and the High Court was right in allowing the
—| 338 |—
habeas corpus petition. The learned counsel has placed reliance on Gohar Begum3 and. Manju
Malini Sheshachalam4. Contention of respondent No. 1 is that as per Section 6 of the Hindu
Minority and Guardianship Act, respondent No. 1, being the father, is the natural guardian and
the appellants have no authority to retain the custody of the child and the refusal to hand over
the custody amounts to illegal detention of the child and therefore, the writ of habeas corpus was
the proper remedy available to him to seek redressal.
13. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording
an effective means of immediate release from an illegal or improper detention. The writ also
extends its influence to restore the custody of a minor to his guardian when wrongfully deprived
of it. The detention of a minor by a person who is not entitled to his legal custody is treated as
equivalent to illegal detention for the purpose of granting writ, directing custody of the minor
child. For restoration of the custody of a minor from a person who according to the personal
law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction.
14. In Gohar Begum3 where the mother had, under the personal law, the legal right to the custody
of her illegitimate minor child, the writ was issued. In Gohar Begum^-, the Supreme Court dealt
with a petition for habeas corpus for recovery of an illegitimate female child. Gohar alleged
that Kaniz Begum, Gohar’s mother’s sister was allegedly detaining Gohar’s infant female child
illegally. The Supreme Court took note of the position under the Mohammedan Law that the
mother of an illegitimate female child is entitled to its custody and refusal to restore the custody
of the child to the mother would result in illegal custody of the child. The Supreme Court held
that Kaniz having no legal right to the custody of the child and her refusal to make over the child
to the mother resulted in an illegal detention of the child within the meaning of Section 491
Cr.P.C. of the old Code. The Supreme Court held that the fact that Gohar had a right under the
Guardians and Wards Act is no justification for denying her right under Section 491 Cr.P.C. The
Supreme Court observed that Gohar Begum, being the natural guardian, is entitled to maintain
the writ petition and held as under: —
“7. On these undisputed facts the position in law is perfectly clear. Under the Mohammedan
law which applies to this case, the appellant is entitled to the custody of Anjum who is
her illegitimate daughter, no matter who the father of Anjum is. The respondent has no
legal right whatsoever to the custody of the child. Her refusal to make over the child to
the appellant therefore resulted in an illegal detention of the child within the meaning
of Section 491. This position is clearly recognised in the English cases concerning writs
of habeas corpus for the production of infants.
In Queen v. Clarke, (1857) 7 EL & BL 186: 119, ER 1217 Lord Campbell, C.J., said at p. 193:
“But with respect to a child under guardianship for nurture, the child is supposed to be
unlawfully imprisoned when unlawfully detained from the custody of the guardian; and
when delivered to him, the child is supposed to be set at liberty.”
The courts in our country have consistently taken the same view. For this purpose the Indian
cases hereinafter cited may be referred to. The terms of Section 491 would clearly be applicable
to the case and the appellant entitled to the order she asked.
8. We therefore think that the learned Judges of the High Court were clearly wrong in
their view that the child Anjum was not being illegally or improperly detained. The
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learned Judges have not given any reason in support of their view and we are clear in
our mind that view is unsustainable in law.
10. We further see no reason why the appellant should have been asked to proceed under
the Guardian and Wards Act for recovering the custody of the child-She had of course
the right to do so. But she had also a clear right to an order for the custody of the child
under Section 491 of the Code. The fact that she had a right under the Guardians and
Wards Act is no justification for denying her the right under Section 491. That is well
established as will appear from the cases hereinafter cited.” (Underlining added)
15. In Veena Kapoor1, the issue of custody of child was between the natural guardians who were not
living together. Veena, the mother of the child, filed the habeas corpus petition seeking custody
of the child from her husband alleging that her husband was having illegal custody of the one
and a half year old child. The Supreme Court directed the District Judge concerned to take
down evidence, adduced by the parties, and send a report to the Supreme Court on the question
whether considering the interest of the minor child, its mother should be given its custody.
16. In Rajiv Bhatia5, the habeas corpus petition was filed by Priyanka, mother of the girl, alleging
that her daughter was in illegal custody of Rajiv, her husband’s elder brother. Rajiv relied on an
adoption deed. Priyanka took the plea that it was a fraudulent document. The Supreme Court
held that the High Court was not entitled to examine the legality of the deed of adoption and
then come to the conclusion one way or the other with regard to the custody of the child.
17. In Manju Malinfr where the mother filed a habeas corpus petition seeking custody of her minor
child Tanishka from her sister and brother-in-law who refused to hand over the child to the
mother, the Karnataka High Court held as under: —
“24. The moment respondents 1 and 2 refused to handover the custody of minor Tanishka
to the petitioner the natural and legal guardian, the continuation of her custody with
them becomes illegal detention. Such intentional act on the part of respondent Nos.
1 and 2 even amounts to the offence of kidnapping punishable under S.361 of IPC.
Therefore there is no merit in the contention that the writ petition is not maintainable
and respondent Nos. 1 and 2 are in legal custody of baby Tanishka.”
18. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus
proceedings is a medium through which the custody of the child is addressed to the discretion of
the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is
issued where in the circumstances of the particular case, ordinary remedy provided by the law is
either not available or is ineffective; otherwise a writ will not be issued. In child custody matters,
the power of the High Court in granting the writ is qualified only in cases where the detention
of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on
the issue in question by the Supreme Court and the High Courts, in our view, in child custody
matters, the writ of habeas corpus is maintainable where it is proved that the detention of a
minor child by a parent or others was illegal and without any authority of law.
19. In child custody matters, the ordinary remedy lies only under the Hindu Minority and
Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of
the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined
by whether the minor ordinarily resides within the area on which the court exercises such
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jurisdiction. There are significant differences between the enquiry under the Guardians and
Wards Act and the exercise of powers by a writ court which is of summary in nature. What is
important is the welfare of the child. In the writ court, rights are determined only on the basis
of affidavits. Where the court is of the view that a detailed enquiry is required, the court may
decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil
court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be
determined in exercise of extraordinary jurisdiction on a petition for habeas corpus.
20. In the present case, the appellants are the sisters and brother of the mother Zelam who do not
have any authority of law to have the custody of the minor child. Whereas as per Section 6 of
the Hindu Minority and Guardianship Act, the first respondent-father is a natural guardian of
the minor child and is having the legal right to claim the custody of the child. The entitlement of
father to the custody of child is not disputed and the child being a minor aged 1½ years cannot
express its intelligent preferences. Hence, in our considered view, in the facts and circumstances
of this case, the father, being the natural guardian, was justified in invoking the extraordinary
remedy seeking custody of the child under Article 226 of the Constitution of India.
21. Custody of the child - removed from foreign countries and brought to India:- In a number
of judgments, the Supreme Court considered the conduct of a summary or elaborate enquiry
on the question of custody by the court in the country to which the child has been removed. In
number of decisions, the Supreme Court dealt with habeas corpus petition filed either before it
under Article 32 of the Constitution of India or the correctness of the order passed by the High
Court in exercise of jurisdiction under Article 226 of the Constitution of India on the question
of custody of the child who had been removed from the foreign countries and brought to India
and the question of repatriation of the minor children to the country from where he/she may
have been removed by a parent or other person. In number of cases, the Supreme Court has
taken the view that the High Court may invoke the extraordinary jurisdiction to determine the
validity of the detention. However, the Court has taken view that the order of the foreign court
must yield to the welfare of the child. After referring to various judgments, in Ruchi Majoo6, it
was held as under: —
“58. Proceedings in the nature of habeas corpus are summary in nature, where the legality
of the detention of the alleged detenu is examined on the basis of affidavits placed by
the parties. Even so, nothing prevents the High Court from embarking upon a detailed
enquiry in cases where the welfare of a minor is in question, which is the paramount
consideration for the Court while exercising its parens patriae jurisdiction. A High
Court may, therefore, invoke its extraordinary jurisdiction to determine the validity of
the detention, in cases that fall within its jurisdiction and may also issue orders as to
custody of the minor depending upon how the Court views the rival claims, if any, to
such custody.
59. The Court may also direct repatriation of the minor child to the country from where
he/she may have been removed by a parent or other person; as was directed by this
Court in Ravi Chandran (2010) 1 SCC 174 and Shilpa Aggarwal (2010) 1 SCC 591
cases or refuse to do so as was the position in Sarita Sharma case (2000) 3 SCC 14.
What is important is that so long as the alleged detenu is within the jurisdiction of the
High Court no question of its competence to pass appropriate orders arises. The writ
—| 341 |—
court’s jurisdiction to make appropriate orders regarding custody arises no sooner it is

found that the alleged detenu is within its territorial jurisdiction.”
22. After referring to various judgments and considering the principles for issuance of writ of habeas
corpus concerning the minor child brought to India in violation of the order of the foreign 7
“46. The High Court while dealing with the petition for issuance of a writ of habeas corpus
concerning a minor child, in a given case, may direct return of the child or decline to
change the custody of the child keeping in mind all the attending facts and circumstances
including the settled legal position referred to above. Once again, we may hasten to add
that the decision of the court, in each case, must depend on the totality of the facts and
circumstances of the case brought before it whilst considering the welfare of the child
which is of paramount consideration. The order of the foreign court must yield to the
welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for
mere enforcement of the directions given by the foreign court against a person within its
jurisdiction and convert that jurisdiction into that of an executing court. Indubitably,
the writ petitioner can take recourse to such other remedy as may be permissible in
law for enforcement of the order passed by the foreign court or to resort to any other
proceedings as may be permissible in law before the Indian Court for the custody of the
child, if so advised.”
23. In Sarita Sharma2, the tussle over the custody of two minor children was between their separated
mother and father. The Family Court of USA while passing the decree of divorce gave custody
rights to the father. When the mother flew to India with the children, the father approached
the High Court by filing a habeas corpus petition. The High Court directed the mother to
handover the custody to the father. The Supreme Court in appeal observed that the High Court
should instead of allowing the habeas corpus petition should have directed the parties to initiate
appropriate proceedings wherein a thorough enquiry into the interest of children could be made.
24. In the recent decision in Lahari Sakhamuri8, this court referred to all the judgments regarding
the custody of the minor children when the parents are non-residents (NRI). We have referred to
the above judgments relating to custody of the child removed from foreign country and brought
to India for the sake of completion and to point out that there is a significant difference in so far
the children removed from foreign countries and brought into India.
25. Welfare of the minor child is the paramount consideration:- The court while deciding the
child custody cases is not bound by the mere legal right of the parent or guardian. Though the
provisions of the special statutes govern the rights of the parents or guardians, but the welfare
of the minor is the supreme consideration in cases concerning custody of the minor child. The
paramount consideration for the court ought to be child interest and welfare of the child.
26. After referring to number of judgments and observing that while dealing with child custody
cases, the paramount consideration should be the welfare of the child and due weight should be
given to child’s ordinary comfort, contentment, health, education, intellectual development and
favourable surroundings, in Nil Ratan Kundu9, it was held as under: —
“49. In Goverdhan Lai v. Gajendra Kumar, AIR 2002 Raj 148 the High Court observed
that it is true that the father is a natural guardian of a minor child and therefore
has a preferential right to claim the custody of his son, but in matters concerning the
—| 342 |—
custody of a minor child, the paramount consideration is the welfare of the minor and
not the legal right of a particular party. Section 6 of the 1956 Act cannot supersede the
dominant consideration as to what is conducive to the welfare of the minor child. It was
also observed that keeping in mind the welfare of the child as the sole consideration, it
would be proper to find out the wishes of the child as to with whom he or she wants to
live.
50. Again, in M.K. Hari Govindan v. A.R. Rajaram, AIR 2003 Mad 315 the Court held
that custody cases cannot be decided on documents, oral evidence or precedents without
reference to “human touch”. The human touch is the primary one for the welfare of the
minor since the other materials may be created either by the parties themselves or on
the advice of counsel to suit their convenience.
51. In Kamia Devi v. State of H.P., AIR 1987 HP 34 the Court observed:
“13. ... the Court while deciding child custody cases in its inherent and general
jurisdiction is not bound by the mere legal right of the parent or guardian. Though
the provisions of the special statutes which govern the rights of the parents or
guardians may be taken into consideration, there is nothing which can stand
in the way of the Court exercising its parens patriae jurisdiction arising in such
cases giving due weight to the circumstances such as a child’s ordinary comfort,
contentment, intellectual, moral and physical development, his health, education
and general maintenance and the favourable surroundings. These cases have to
be decided ultimately on the Court’s view of the best interests of the child whose
welfare requires that he be in custody of one parent or the other.”
52. In our judgment, the law relating to custody of a child is fairly well settled and it is this:
in deciding a difficult and complex question as to the custody of a minor, a court of law
should keep in mind the relevant statutes and the rights flowing therefrom. But such
cases cannot be decided solely by interpreting legal provisions. It is a human problem
and is required to be solved with human touch. A court while dealing with custody
cases, is neither bound by statutes nor by strict rules of evidence or procedure nor
by precedents. In selecting proper guardian of a minor, the paramount consideration
should be the welfare and well-being of the child. In selecting a guardian, the court is
exercising parens patriae jurisdiction and is expected, nay bound, to give due weight
to a child’s ordinary comfort, contentment, health, education, intellectual development
and favourable surroundings. But over and above physical comforts, moral and ethical
values cannot be ignored. They are equally, or we may say, even more important,
essential and indispensable considerations. If the minor is old enough to form an
intelligent preference or judgment, the court must consider such preference as well,
though the final decision should rest with the court as to what is conducive to the
welfare of the minor.”
27. Reliance was placed upon Gaurav Nagpal10, where the Supreme Court held as under: —
“32. In McGrath, (1893) 1 Ch 143, Lindley, L.J. observed: (Ch p. 148) The dominant matter
for the consideration of the court is the welfare of the child. But the welfare of the child
is not to be measured by money only nor merely physical comfort. The word ‘welfare’
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must be taken in its widest sense. The moral or religious welfare of the child must be
considered as well as its physical well-being. Nor can the tie of affection be disregarded.”
(emphasis supplied)
50. When the court is confronted with conflicting demands made by the parents, each time
it has to justify the demands. The court has not only to look at the issue on legalistic
basis, in such matters human angles are relevant for deciding those issues. The court
then does not give emphasis on what the parties say, it has to exercise a jurisdiction
which is aimed at the welfare of the minor. As observed recently in Mausami Moitra
Ganguii case (2008) 7 SCC 673, the court has to give due weightage to the child’s
ordinary contentment, health, education, intellectual development and favourable
surroundings but over and above physical comforts, the moral and ethical values have
also to be noted. They are equal if not more important than the others.
51. The word “welfare” used in Section 13 of the Act has to be construed literally and
must be taken in its widest sense. The moral and ethical welfare of the child must also
weigh with the court as well as its physical well-being. Though the provisions of the
special statutes which govern the rights of the parents or guardians may be taken into
consideration, there is nothing which can stand in the way of the court exercising its
parens patriae jurisdiction arising in such cases.
28. Contending that however legitimate the claims of the parties are, they are subject to the interest
and welfare of the child, in Rosy Jacobs11, this Court has observed that: —
“7 ..... the principle on which the court should decide the fitness of the guardian mainly
depends on two factors: (i) the father’s fitness or otherwise to be the guardian, and (ii)
the interests of the minors.”
“15 The children are not mere chattels: nor are they mere play-things for their parents.
Absolute right of parents over the destinies and the lives of their children has, in the
modern changed social conditions, yielded to the considerations of their welfare as
human beings so that they may grow up in a normal balanced manner to be useful
members of the society and the guardian court in case of a dispute between the mother
and the father, is expected to strike a just and proper balance between the requirements
of welfare of the minor children and the rights of their respective parents over them.
The approach of the learned Single Judge, in our view, was correct and we agree with
him. The Letters Patent Bench on appeal seems to us to have erred in reversing him on
grounds which we are unable to appreciate.”
29. The learned counsel for the appellants has placed reliance upon G. Eva Marv Elezabath12
where the custody of the minor child aged one month who had been abandoned by father in
church premises immediately on death of his wife was in question. The custody of the child was
accordingly handed over to the petitioner thereon who took care of the child for two and half
years by the Pastor of the Church. The father snatched the child after two and a half years from
the custody of the petitioner. The father of the child who has abandoned the child though a
natural guardian therefore was declined the custody.
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30. In Kirtikumar Maheshankar Joshi13, the father of the children was facing charge under Section
498-A IPC and the children expressed their willingness to remain with their maternal uncle who
was looking after them very well and the children expressed their desire not to go with their
father. The Supreme Court found the children intelligent enough to understand their well-being
and in the circumstances of the case, handed over the custody to the maternal uncle instead of
their father.
31. In the case at hand, the father is the only natural guardian alive and has neither abandoned nor
neglected the child. Only due to the peculiar circumstances of the case, the child was taken care
of by the appellants. Therefore, the cases cited by the appellants are distinguishable on facts and
cannot be applied to deny the custody of the child to the father.
32. The child Shikha went into the custody of the appellants in strange and unfortunate situation.
Appellants No. 1 and 2 are the sisters of deceased Zelam. Appellant No. 4 is the husband of
appellant No. 1. All three of them reside at Mahim, Mumbai. Appellant No. 3 is the married
brother of Zelam who resides in Pune. During the fifth month of her pregnancy, Zelam was
diagnosed with stage 3/4 breast cancer. Zelam gave birth to child Shikha on 14-08-2017. On
29-11-2017, respondent No. 1 collapsed with convulsions due to illness. Upon his collapse, he
was rushed to hospital where he was diagnosed with Tuberculosis Meningitis and Pulmonary
Tuberculosis. He was kept on ventilator for nearly eight days, during which period, appellants
took care of Zelam and the child. The first respondent had to undergo treatment in different
hospitals for a prolonged period. From 29-11-2017 to June 2018, Zelam and Shikha stayed
at the residence of appellant’s in Mumbai. During this period, Zelam underwent masectomy
surgery. Zelam later relapsed into cancer and decided to get treatment from a doctor in Pune
and therefore, shifted to appellant No. 3’s house at Pune with Shikha and Zelam passed away on
17-10-2018. After recovering from his illness, the respondent visited Pune to seek custody of the
child. But when they refused to hand over the custody, the father was constrained to file the writ
petition seeking custody of the child. The child Shikha thus went to the custody of the appellants
in unavoidable conditions. Only the circumstances involving his health prevented the father
from taking care of the child. Under Section 6 of the Act, the father is the natural guardian and
he is entitled to the custody of the child and the appellants have no legal right to the custody of
the child. In determining the question as to who should be given custody of a minor child, the
paramount consideration is the ‘welfare of the child’ and not rights of the parents under a statute
for the time being in force.
33. As observed in Rosy Jacobs11 earlier, the father’s fitness has to be considered, determined and
weighed predominantly in terms of the welfare of his minor children in the context of all
the relevant circumstances. The welfare of the child shall include various factors like ethical
upbringing, economic well-being of the guardian, child’s ordinary comfort, contentment,
health, education etc. The child Shikha lost her mother when she was just fourteen months and
is now being deprived from the love of her father for no valid reason. As pointed out by the High
Court, the father is a highly educated person and is working in a reputed position. His economic
condition is stable.
34. The welfare of the child has to be determined owing to the facts and circumstances of each case
and the court cannot take a pedantic approach. In the present case, the first respondent has
neither abandoned the child nor has deprived the child of a right to his love and affection. The
—| 345 |—
circumstances were such that due to illness of the parents, the appellants had to take care of the
child for some time. Merely because, the appellants being the relatives took care of the child for
some time, they cannot retain the custody of the child. It is not the case of the appellants that
the first respondent is unfit to take care of the child except contending that he has no female
support to take care of the child. The first respondent is fully recovered from his illness and is
now healthy and having the support of his mother and is able to take care of the child.
35. The appellants submit that handing over of the child to the first respondent would adversely
affect her and that the custody can be handed over after a few years. The child is only IV2
years old and the child was with the father for about four months after her birth. If no custody
is granted to the first respondent, the court would be depriving both the child and the father
of each other’s love and affection to which they are entitled. As the child is in tender age i.e.
IV2 years, her choice cannot be ascertained at this stage. With the passage of time, she might
develop more bonding with the appellants and after some time, she may be reluctant to go to her
father in which case, the first respondent might be completely deprived of her child’s love and
affection. Keeping in view the welfare of the child and the right of the father to have her custody
and after consideration of all the facts and circumstances of the case, we find that the High Court
was right in holding that the welfare of the child will be best served by handing over the custody
of the child to the first respondent.
36. Taking away the child from the custody of the appellants and handing over the custody of the
child to the first respondent might cause some problem initially; but, in our view, that will be
neutralized with the passage of time. However, till the child is settled down in the atmosphere
of the first respondent-father’s house, the appellants No. 2 and 3 shall have access to the child
initially for a period of three months for the entire day i.e. 08.00 AM to 06.00 PM at the residence
of the first respondent. The first respondent shall ensure the comfort of appellants No. 2 and 3
during such time of their stay in his house. After three months, the appellants No. 2 and 3 shall
visit the child at the first respondent’s house from 10.00 AM to 04.00 PM on Saturdays and
Sundays. After the child completes four years, the appellants No. 2 and 3 are permitted to take
the child on every Saturday and Sunday from the residence of the father from 11.00 AM to 05.00
PM and shall hand over the custody of the child back to the first respondent-father before 05.00
PM. For any further modification of the visitation rights, either parties are at liberty to approach
the High Court.
37. The impugned judgment of the High Court dated 06.02.2019 in Crl.W.P. No. 5214 of 2018 is
affirmed subject to the above directions and observations. The appellants shall hand over the
custody of the child to the first respondent-father on 10.05.2019 at 10.00 AM at the residence of
the first respondent. Keeping in view the interest of the child, both parties shall co-operate with
each other in complying with the directions of the Court. This appeal is accordingly disposed of.
Note :-
1 Dr. Veena Kapoorv. Varinder Kumar Kapoor [1981) 3 SCC 92
2 Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14
3 Gohar Begum v. Suggi @ Nazma Begam, AIR 1960 SC 93
—| 346 |—
4 Smt. Manju Malini Sheshachaiam D/o Mr. R. Sheshachaiam v. Vijay Thlrugnanam S/o
Thivugnanam, 2018 SCC OnLine Kar 621
5 Rajiv Bhatia v. Govt, of NCT of Delhi (1999) 8 SCC 525
6 Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479
7 Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454 s Lahari Sakhamuh v. Sobhan
Kodali, 2019 (5) SCALE 97
9 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413
10 Gaurav Nagpai v. Sumedha Nagpai (2009) 1 SCC 42
11 Rosy Jacob v. Jacob A. Chakramakkai, (1973) 1 SCC 840
12 G. Eva Mary Eiezabatb v. Jayaraj, 2005 SCC OnLine Mad 472
13 Kirtikumar Maheshankar Joshi v. Pradipkumar Karunashanker Joshi (1992) 3 SCC 573
qqq
—| 347 |—
PERRY KANSAGRA VERSUS SMRITI MADAN KANSAGRA

Bench: Hon’ble Justice Mr. Abhay Manohar Sapre and Hon’ble Justice Mr. Uday Umesh Lalit
Perry Kansagra.................................Appellate
Versus
Smriti Madan Kansagra................................Respondent
[@ Special Leave Petition (Civil) No.9267 of 2018]
Decided On: 15th February, 2019
Hon’ble Mr. Justice Uday Umesh Lalit, J.

1. Leave granted.
2. This appeal challenges the final Judgment and Order dated 11.12.2017 passed by the High
Court of Delhi allowing Review Petition No.221 of 2017 preferred by the respondent against the
judgment and order dated 17.02.2017 passed by the High Court of Delhi in MAT App. (F.C.)
No.67 of 2016.
3. The appellant (Kenyan and British Citizen) and Respondent (Indian Citizen) got married on
29.07.2007 at New Delhi. After marriage, the Respondent shifted to Nairobi, Kenya and settled
into her matrimonial home with the appellant. A son, named Aditya Vikram Kansagra was
born to the couple on 02.12.2019 at New Delhi. After delivery, the respondent returned back to
Nairobi along with Aditya. Thereafter, the Respondent and Aditya travelled from Kenya to India
on few occasions. Aditya holds Kenyan as well as British passport.
4. The appellant, Respondent and Aditya came from Nairobi to New Delhi on 10.03.2012. According
to the appellant, the return tickets for travel back to Nairobi were booked for 06.06.2012. While
in India, in May 2012, the Respondent filed a civil suit registered as CS (OS) No.1604 of 2012
before the High Court of Delhi praying inter alia for an injunction to restrain the appellant from
removing Aditya from the custody of the Respondent. Upon notice being issued, the appellant
contested the suit in which visitation orders were passed by the High Court from time to time.
The appellant thereafter filed Guardianship Petition praying inter alia that he be declared the
legal Guardian of Aditya and be given his permanent custody. The Guardianship Petition dated
06.11.2012 was registered as No.G-53 of 2012 before the Family Court, Saket, New Delhi.
5. In terms of visitation orders passed by the High Court, the appellant along with paternal
grandparents were permitted to meet Aditya for 2 hours on Friday, Saturday and Sunday in
the 2nd week of every month. According to the appellant he flew from Nairobi to New Delhi
every month to meet Aditya along with the paternal grandparents. In view of the pendency
of the guardianship petition, CS (OS) No.1604 of 2012 was disposed of by the High Court on
31.08.2015, leaving the parties to place their grievances before the Family Court. The arrangement
of visitation was thereafter modified by the Family Court by its orders dated 09.02.2016 and
09.03.2016.
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6. On 18.04.2016, an application was filed by the appellant praying that the Family Court may
direct the Court Counsellor to bring Aditya to the Court for an in-chamber meeting, which
prayer was objected to by the Respondent. After hearing both sides, the Family Court allowed
said application vide Order dated 04.05.2016, and directed that Aditya be produced before the
Court 07.05.2016. The relevant part of the Order was as under:-
“.....The court is parens patriae in such proceedings. Petitioner’s visitation with the child is
anyway scheduled for 07.05.2016. Let the child be produced before the court at 10 am on
07.05.2016 before he goes for meeting with his father and grand parents.”
7. The Respondent being aggrieved, filed MAT App. (FC) No.67 of 2016 before the High Court. On
06.05.2016, after hearing both sides, Division Bench of the High Court referred the parties to
mediation and also directed that Aditya be produced before the Court on 11.05.2016. Paragraphs
7 and 9 of said Order were :-
“7. During our interaction with the parties, a desire is expressed by the parties to make
one more attempt for a negotiated settlement of all disputes between the parties by
recourse to mediation. The parents of the respondent are also present and have joined
the proceedings before us. They have also submitted that they would like to make an
attempt for a negotiated settlement for all disputes between the parties. ... ... ... ... ...
9. With the consent of parties, it is directed as follows:
(i) The parties shall appear before Ms. Sadhana Ramchandran, learned Mediator
in SAMADHAN Delhi High Court Mediation and Conciliation Centre on 9th
May, 2016 at 2:30 pm.
(ii) It shall be open for the learned Mediator to join any other person or relative of
the parties, as may be deemed necessary, for a holistic and effective mediation.
(iii) In case, the respondent or any of his relative are not available in India, it
shall be open for the learned Mediator to join them by any electronic mode
of communication including Skype, Video Conferencing, etc. at the cost of the
respondent.
(iv) It shall also be open for the learned Mediator to meet the child at any place, as
may be deemed convenient to her, and to arrange any visitation or meetings with
the respondent of the child with the consent of the parties.”
8. Thereafter, the matter came up on 11.05.2016. The High Court interacted with Aditya and
following observations were made in paras 2 to 6 of its Order :-
“2. We are also informed that the child has today met with Ms. Sadhana Ramachandran,
learned Mediator as well as Ms. Swati Shah, Counsellor in SAMADHAN - Delhi
High court Mediation and Conciliation Centre and that the mediation efforts are still
underway.
3. The son of the parties - Master Aditya Vikram Kansagra has been produced before us
today. We have also had a long conversation with him and are deeply impressed with
the maturity of this intelligent 6½ year old child who displays self confidence and a
—| 349 |—
remarkable capacity of expressing himself with clarity. He exhibits no sign of confusion

or nervousness at all.
4. We also note that the child was comfortable in his interaction with his father and
grandparents in court. The child has expressed happiness at his visitations with his
father and grandparents. He unreservedly stated that he looks forward to the same.
Master Aditya Vikram Kansagra is also able to identify other relatives in Kenya and
enthusiastically refers to his experiences in that country. It is apparent that the child
has bonded well with them.
5. We must note that the child is at the same time deeply attached to his mother and
Nani. His bearing and personality clearly bear the stamp of the fine upbringing being
given to him by the appellant and her mother.
6. As of now, since 9th February, 2016, the child is meeting his father and grandparents
between 10:30 am and 05:00 pm on Saturday and Sunday in the second week of every
month and for two hours on Friday in the second week of every month. The visitation
is supervised as the court has appointed a Counsellor who has been directed to remain
present throughout the visitation.”
9. During the ensuing mediation sessions, the Mediator and the Counsellor interacted with
Aditya. The Counsellor interacted with Aditya on 08.07.2016 and 11.07.2016. Based upon her
interactions with him, the Counsellor submitted a report dated 21.07.2016 in a sealed cover.
Though, mediation was attempted on many occasions, the parties were unable to resolve their
disputes and differences and an interim report was submitted by the Mediator on 22.07.2016.
On 11.08.2016, the sealed cover containing the report of the Counsellor was opened and the
report was taken on record. Copies of the report of the Counsellor were given to the parties.
In an application moved the next day, i.e. on 12.08.2016, the appellant relied upon the report
of the Counsellor dated 21.07.2016 and prayed for permission to speak to Aditya on telephone.
While opposing the prayer, the respondent objected to such reliance on the ground of
confidentiality. The Mediator thereafter filed final report in November, 2016 reporting failure.
10. Thereafter the matter came up for final arguments before another Division Bench of the High
Court. The Respondent raised the issue of admissibility of the reports submitted by the Mediator
and Counsellor contending that the reports could not be relied upon in view of principle of
confidentiality. The High Court dealt with said submissions and while disposing of the appeal,
by its judgment dated 17.02.2017 observed as under:-
10. “The mediation has failed.
11. But we are called upon to decide an important question concerning confidentiality of the
mediation process for the reason on October 11, 2016 a report was received from the Mediator
which was taken on record and copy given to both parties. The report of the Mediator refers to a
child counsellor being involved who had also given an independent report which was also taken
on record. ... ... ... ... ... ... ...
“13. The report of the child counsellor is to the effect that the child was normal and in
spite of being happy with his mother he seems to idolize his father and affectionately
remembers his house in Kenya; about which house he loved talking with the counsellor.
—| 350 |—
The affection and the bond of the child with the father was commended as the positive
attitude of the appellant who, obviously was not torturing the child. The child showed
his love, affection and comfort for the appellant, evidenced by he fondly and happily
talking about a recent vacation in Kashmir with his mother. The child was not
uncomfortable with the idea of making a trip to Kenya.
... ... ... ... ... ... ...
17. There can be no quarrel with the proposition that mediation proceedings are
confidential proceedings and anything disclosed, discussed or proposed by the parties
before the mediator cannot be recorded, much less divulged. The reason being that
very often during mediations, offers, counter offers and proposals are made. The
ethos of mediation would bar disclosure of specified communications and writings
associated with mediation. Parties are encouraged during mediation to engage in
honest discussions as regards their problems and in matrimonial disputes these honest
discussions many a time give rise to a better understanding between the couple. Such
an approach encourages a forget and forgive attitude to be formed by the parties.
If either spouse is under an apprehension that the wellmeant deliberations might
subsequently be used against them it would hamper an unreserved consideration of
their problems. The atmosphere of mutual trust during mediation warrants complete
confidentiality.
18. But where the scope of mediation is the solution of a child parenting issue, report by a
mediator or a child counsellor concerning the behavior and attitude of the child would
not fall within the bar of confidentiality for the reason no information shared by the
couple is being brought on record. The mandate of Section 12 of the Family Courts Act,
1984 cannot be lost sight of.
19. In the instant case, what has been taken on record during mediation proceedings
is the report of the Child Counsellor and the mediator, which we find are reports
commending the good attitude of both parents who, unlike many other couples, are
not using the child as a tool to take revenge against the other. As noted above, the
interaction by the previous Division Bench with the child has been recorded in the
order dated May 11, 2016 i.e. the child being equally comfortable with both parents
and having a desire to spend quality time with not only his mother and relatives from
the maternal side but even with the father and relatives from the paternal side. Such
reports are a neutral evaluation of expert opinion to a Court to guide the Court as to
what orders need to be passed in the best interest of the child. These reports are not
confidential communications of the parties.
20. Having answered the issue which incidentally arose, and noting that otherwise the
appeal has been rendered infructuous, we terminate further proceedings in the appeal
inasmuch as no orders are now warranted to be passed in the appeal.
21. The learned Judge Family Court would consider granting over night interim custody to
the respondent when he is in India by imposing such terms and conditions which would
ensure that the child is not removed from the territory of India. The issue concerning
the appellant claiming that she has lost the Kenyan passport of the child and a fresh
—| 351 |—
passport being issued in the name of the child would also be looked into by the learned
Judge, Family Court.”
11. On 18.03.2017, the respondent filed Review Petition No.221 of 2017 questioning the judgment
dated 17.02.2017. The Review Petition was allowed by yet another Division Bench of High Court
by judgment and order dated 11.12.2017. After posing the question, “..whether the Counsellor’s
report furnished in the course of mediation proceedings or the Mediator’s report in case of
mediation, when the process fails, can be used by either of the parties during trial”, the High
Court concluded that the reports of the Mediator and the Counsellor “..shall be disregarded by
the family court, when it proceeds to decide the merits of the case”.
During the course of its discussion, the High Court noted Delhi High Court Mediation and
Conciliation Rules, 2004; Format of application of SAMADHAN (the Delhi High Court
Mediation and Conciliation Centre); Conciliation rules of UNCITRAL; Sections 75 and 81 of the
Arbitration and Conciliation Act, 1996; Mediation Training Manual issued by the Mediation and
Conciliation Project Committee, Supreme Court of India and Chartered Institute of Arbitrator’s
Rules mandating confidentiality in matters pertaining to mediation and observed as under:-
“21. There can, be no quarrel with the proposition that the mediation proceedings are
confidential and anything disclosed, discussed or proposed before the mediator need
not be recorded, much less divulged and that if it is done there would always be an
apprehension that the discussion may be used against the parties and it would hamper
the entire process. The atmosphere of mutual trust warrants complete confidentiality
and the same is in fact noted in the main judgment. The petitioner is aggrieved by
its later part which notes “but where the scope of the mediation is resolution of child
parenting issue, the report concerning the behavior and attitude of the child would
not fall within the bar of confidentiality”. To our mind, this is against the principle of
mediation and charts the course of a slippery slope, as this judgment would hereafter
discuss.
22. No exceptions are made in the mediation rules either in our laws or in various
jurisdictions mentioned above to the absolute rule of confidentiality. This Court held
the mandate of Section 12 of the Family Courts Act, 1984 cannot be lost sight of; yet
the issue is whether the order dated May 6, 2016 was passed purely under Section 12 of
the Family Courts Act, 1984 or it was simply to facilitate mediation of disputes between
the parents of the child.
... ... ... ... ... ... ... ...
25. Section 12 of the 1984 Act, empowers the Family Court with the discretion to refer
the parties to a counsellor, Undoubtedly, that power also extends to the appellate
court. However, this case has three rather unusual features: one that the Court never
authorized the mediator to exercise power that is vested statutorily with it. The
discretion to involve or not to involve a counsellor is the Court’s and is non delegable.
The respondent husband’s argument that the referral order permitted the mediator to
involve “others” cannot be meant to authorize the exercise of discretion that is solely
vested with the Court. Second, the issue of confidentiality is to be examined because the
mediator furnished two reports-to the Court, in this case.
—| 352 |—
A mediator’s position is unique; undoubtedly she (or he) has professional training and
competence to handle issues that involve intense and bitter struggle over matrimonial
issues, properties, shared household, custody, (temporary or permanent) and in
commercial matters, issues that have monetary and financial impacts. In all cases,
parties express their fears, their expectations and their dearly held positions on the
strength of the confidence that they repose in the mediator and the mediation process-
both of which are reinforced by the absolute cloak of confidentiality. Given these
imperatives, mediator’s reports, where the process has led to failure, should not record
anything at all. Having regard to this position the fact that a mediator in a given case,
proposes-for all the best and bona fide reasons, the involvement of a counsellor, does
not in any manner undermine or take away the Court’s sole power to exercise it. In the
eventuality of the parties’ agreeing, to such a course, they have to be asked to approach
the Court, for appropriate orders: the Court would then refer them to the counsellor.
The question of the kind of report to be submitted to the Court and whether it would
be a part of the record would be known during the course of the proceeding. In the
present case, the parties merely consented. There is nothing to show that the parties
were aware that the mediator’s report, with regard to not merely what transpired, but
with respect to her reflections, would be given to the court; nor was there anything to
show that they were aware - when they consented to the involvement of a counsellor
that her report would be given to the court. The third unusual feature is that in at least
two sittings with the counsellor, the mediator was present. This “joint” proceeding is,
in the opinion of the Court, unacceptable. It can lead to undesirable consequences,
especially if the mediator and counsellor proceed to furnish their reports (as they did
in this case). A reading of both reports in the present case, paints a definite picture to
the reader strongly suggestive of a plausible course of action or conclusion. It is this, the
power of suggestion, which parties are guaranteed protection from, when they agree
to mediation. Imagine if there were to be a possibility of divergence of opinion. Where
would that lead? Aside from adding to contentiousness, the Court too would be left
confounded.
... ... ... ... ... ... ... ...
29. The observations made in the main judgment dated February 17, 2017 in effect would
permit the mediators to exercise de facto, or in default, the exclusive powers of the
Court under Section 12 of the 1984 Act, which are non delegable. There is no question
of validation of such action, by a later order of the Court. The danger of this would
be that Courts can well draw upon such irregularly produced material, to arrive at
conclusions. The requirement of Section 12 also has to be understood as the mandate
of law that only the Court and no other body can refer the parties to counseling.
The proposition that something which the law mandates to be performed in one manner
and no other manner “where a power is given to do a certain thing in a certain way, the
thing must be done in that way or not at all”1 applies with full force. The order dated
May 06, 2016 in this case merely referred the parties to the mediator and carved out
the course and ambit of mediation. The report of the counsellor was never sought by
the Court, and yet was treated to be one under Section 12 of the Act of 1984. Had the
—| 353 |—
Court invoked Section 12 of the Family Courts Act, 1984 it would have clearly spelt
out and recorded that while doing so; and in that sense there ought to have been a clear
invocation of Section 12.
The absence of such reference necessarily meant that the reference to “others’ meant
only those connected with the dispute, such as family members of either the husband
or the wife, whose participation was to facilitate amicable dispute resolution, not
independent evaluation by a counsellor in an unguided manner to be incorporated or
annexed to a mediation report.
30. If such a position is allowed as in this case, mediation may then well be used as a forum
for gathering expert opinion which would then enter the main file of the case.
The mandate of Section 89 of the Civil Procedure Code, 1908, read with Rule 20 and
Rule 21 of the Delhi High Court Mediation and Conciliation Rules, 2004 provides
for confidentiality and non-disclosure of information shared with the mediator and
during the proceedings of mediation. In the present case, the help of the counsellor
sought by the mediator to get holistic settlement between the parties was not ordered
in the manner visualized by Section 12 of the Family Courts Act, 1984. Consequently,
neither the report of the mediator nor of the counsellor could have been allowed to be
exhibited. They are contrary to the mandate of principles governing the mediation -
they undermine party autonomy and choice; besides, they clearly violate Section 75 of
the Arbitration and Conciliation Act.
The observations in the judgment dated February 17, 2017 to the extent it notes that
“the reports of the mediator as also of the counsellor concerning the behavior and
attitude of the child, especially when the mediation process has failed would not fall
within the bar of confidentiality and hence cannot be used in any proceeding...... Such
reports are a neutral evaluation of expert opinion to a Court to guide the Court as to
what orders need to be passed in the best interest of the child.
These reports are not confidential communications of the parties” and carving a general
exception to mediation confidentiality in child custody matters and disputes for which
the Family Court can seek the assistance of the counsellor, under Section 12 of the
1984 Act, are hereby recalled. We hasten to add that this judgment is not a reflection
on the mediator whose unstinted track record is known to all, or the endeavor of the
counsellor, who too is very experienced in her field. Their commitment and sincerity
to secure a settlement satisfactory to all, and the mediation process in general, is not
doubted; this judgment should in no way dampen that zeal and determination that
they have displayed.”
12. The view taken by the High Court in allowing the review is presently under challenge. Mr.
Anunya Mehta, learned Advocate for the appellant submitted -
(a) the High Court exceeded the scope of review jurisdiction as if it was sitting in appeal over
the earlier judgment; that in terms of law laid down by this court an error which is not self-
evident and which is required to be detected by a process of reasoning cannot be termed
as error apparent on the face of the record;
—| 354 |—
b) the report of the Counsellor was not hit by confidentiality as it merely recorded the
interaction of the Counsellor with the child and did not record any information
or submission by parties to the lis; that there is a recognized exception to the rule of
confidentiality in child custody matters as the court, in such matters exercises parens
patriae jurisdiction. Mr. Saurabh Kirpal, learned Advocate for the respondent responded -
(i) mediation reports are part of confidential proceedings and cannot be permitted to
be used in court proceedings for which reliance was placed on various statutory
provisions;
(ii) the Counsellor was not appointed under Section 6 of the Family Courts Act;
(iii) exception under Rule 8
(viii) to
(xiv) of the Family Court Rules cannot be read as exception to Rules 20 and 23 of the
Mediation Rules;
(iv) the mediation reports given by the Counsellor-inmediation did not fall within the
exceptions provided in rule 8;
(v) there was no waiver of confidentiality and the respondent had objected to the use of
the reports at the first instance;
(vi) the earlier order being based on a misconception of law, the High Court was right in
exercising review jurisdiction.
13. The issues that arise for our consideration can broadly be put under two heads:
a) Whether the High Court was justified in exercising review jurisdiction and setting aside
the earlier judgment and
b) Whether the High Court was correct in holding that the reports of the Mediator and
the Counsellor in this case were part of confidential proceedings and no party could be
permitted to use the same in any court proceedings or could place any reliance on such
reports.
14. As regards the first issue, relying on the decisions of this Court in Inderchand Jain (dead) through
Lrs. vs. Motilal (dead) through Lrs., Ajit Kumar Rath vs. State of Orissa and others and Parsion
Devi and others vs. Sumitri Devi and others4, it was submitted by the appellant that the exercise
of review jurisdiction was not warranted at all. In Inderchand Jain it was observed in paras 10,
11 and 33 are as under:-
“10. It is beyond any doubt or dispute that the review court does not sit in appeal over its
own order. A rehearing of the matter is impermissible in law. It constitutes an exception
to the general rule that once a judgment is signed or pronounced, it should not be
altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing
any order.
11. Review is not appeal in disguise. In Lily Thomas v. Union of India this Court held:
(SCC p. 251, para 56)
—| 355 |—
“56. It follows, therefore, that the power of review can be exercised for correction of a
mistake but not to substitute a view. Such powers can be exercised within the limits
of the statute dealing with the exercise of power. The review cannot be treated like an
appeal in disguise.”
... ... ... ... ... ... ... ... ... ...
33. The High Court had rightly noticed the review jurisdiction of the court, which is as
under: “The law on the subject- exercise of power of review, as propounded by the Apex
Court and various other High Courts may be summarised as hereunder:
(i) Review proceedings are not by way of appeal and have to be strictly confined to
the scope and ambit of Order 47 Rule 1 CPC.
(ii) Power of review may be exercised when some mistake or error apparent on the
fact of record is found. But error on the face of record must be such an error
which must strike one on mere looking at the record and would not require any
long-drawn process of reasoning on the points where there may conceivably be
two opinions.
(iii) Power of review may not be exercised on the ground that the decision was
erroneous on merits.
(iv) Power of review can also be exercised for any sufficient reason which is wide
enough to include a misconception of fact or law by a court or even an advocate.
(v) An application for review may be necessitated by way of invoking the doctrine
actus curiae neminem gravabit.” In our opinion, the principles of law enumerated
by it, in the facts of this case, have wrongly been applied.”
In Ajit Kumar Rath3, it was observed:-
“29. In review proceedings, the Tribunal deviated from the principles laid down above
which, we must say, is wholly unjustified and exhibits a tendency to rewrite a judgment
by which the controversy had been finally decided. This, we are constrained to say, is
not the scope of review under Section 22(3)(f) of the Administrative Tribunals Act,
1985............” Similarly, in Parsion Devi4 the principles were summarized as under:
“9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is
a mistake or an error apparent on the face of the record. An error which is not self-
evident and has to be detected by a process of reasoning, can hardly be said to be an
error apparent on the face of the record justifying the court to exercise its power of
review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule
1 CPC it is not permissible for an erroneous decision to be “reheard and corrected”. A
review petition, it must be remembered has a limited purpose and cannot be allowed
to be “an appeal in disguise”.
15. On the other hand, reliance was placed by the respondent on the decision in Board of Control
for Cricket in India and another vs. Netaji Cricket Club and others6 to submit that exercise in
review would be justified if there be misconception of fact or law. Para 90 of said decision was to
the following effect:
—| 356 |—
“90. Thus, a mistake on the part of the court which would include a mistake in the nature
of the undertaking may also call for a review of the order. An application for review
would also be maintainable if there exists sufficient reason therefor. What would
constitute sufficient reason would depend on the facts and circumstances of the case.
The words “sufficient reason” in Order 47 Rule 1 of the Code are wide enough to
include a misconception of fact or law by a court or even an advocate. An application
for review may be necessitated by way of invoking the doctrine “actus curiae neminem
gravabit”.”
16. We have gone through both the judgments of the High Court in the instant case and considered
rival submissions on the point. It is well settled that an error which is required to be detected by
a process of reasoning can hardly be said to be an error apparent on the face of the record. To
justify exercise of review jurisdiction, the error must be self-evident. Tested on this parameter,
the exercise of jurisdiction in the present case was not correct. The exercise undertaken in the
present case, in our considered view, was as if the High Court was sitting in appeal over the
earlier decision dated 17.02.2017.
Even assuming that there was no correct appreciation of facts and law in the earlier judgment,
the parties could be left to challenge the decision in an appeal. But the review was not a proper
remedy at all. In our view, the High Court erred in entertaining the review petition and
setting aside the earlier view dated 17.02.2017. Having so concluded, the logical course in the
circumstances would be to set aside the judgment under appeal and permit the respondent to
challenge the judgment dated 17.02.2017. But such a course would entail further litigation and
therefore, we have considered the matter from the stand point of second issue as well.
17. At the outset, we must, therefore, consider various provisions on which reliance was placed by
either side.
18. The Family Courts Act, 1984 (hereinafter referred to as the Act) was enacted to provide for the
establishment of Family Courts with a view to promote conciliation and secure speedy settlement
of disputes relating to marriage and family affairs and for matters connected therewith. Section
4 deals with “appointment of Judges” and sub-section (4) states that while selecting persons
for appointment as Judges - every endeavor shall be made to ensure that persons committed
to the need inter alia to promote the welfare of children and to promote settlement of disputes
by conciliation and counselling, are selected. Under Section 6 Counsellors can be appointed by
the State Government in consultation with the High Court. Section 7 deals with “jurisdiction”
and under sub clause (g) of sub-section (1) the jurisdiction extends in relation to guardianship
issues, or the custody of, or access to, any minor.
Section 9 deals with “duty of Family Court to make efforts for settlement” and empowers the
Court, subject to any rules made by the High Court, to follow such procedure as may be deemed
fit. Section 10 deals with “procedure generally” and states inter alia that Family Court can lay
down its own procedure with a view to arrive at a settlement. Section 12 deals with “assistance
of medical and welfare experts” and Section 20 gives overriding effect to the Act. Section 21
enables the High Court to frame rules which may inter alia provide for “efforts which may
be made by, and the procedure which may be followed by, a Family Court for assisting and
—| 357 |—
persuading parties to arrive at a settlement”. The relevant Sections being Sections 6, 9 and 12 of
the Act are as under:-
“6. Counsellors, officers and other employees of Family Courts. -
(1) The State Government shall in consultation with the High Court, determine the
number and categories of counsellors, officers and other employees required to
assist a Family Court in the discharge of its functions and provide the Family
Court with such counsellors, officers and other employees as it may think fit.
(2) The terms and conditions of association of the counsellors and the terms and
conditions of service of the officers and other employees, referred to in subsection
(1), shall be such as may be specified by rules made by the State Government. 9.
Duty of Family Court to make efforts for settlement -
(1) In every suit or proceeding, endeavor shall be made by the Family Court
in the first instance, where it is possible to do so consistent with the nature
and circumstances of the case, to assist and persuade the parties in arriving
at a settlement in respect of the subject-matter of the suit or proceeding
and for this purpose a Family Court may, subject to any rules made by the
High Court, follow such procedure as it may deem fit.
(2). If, in any suit or proceeding, at any stage, it appears to the Family Court
that there is a reasonable possibility of a settlement between the parties,
the Family Court may adjourn the proceedings for such period as it think
fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not
in derogation of any other power of the Family Court to adjourn the
proceedings.
12. Assistance of medical and welfare experts.- In every suit or proceedings, it shall be open
to a Family Court to secure the services of a medical expert or such person (preferably
a woman where available), whether related to the parties or not, including a person
professionally engaged in promoting the welfare of the family as the court may think
fit, for the purposes of assisting the Family Court in discharging the functions imposed
by this Act.”
19. Pursuant to the rule making power, the High Court of Delhi notified the Family Courts
(Procedure) Rules, 1992 (hereinafter referred to as the Rules). Rule 5 deals with Institution of
Proceedings while Rule 8 deals with procedure to be followed to arrive at a settlement. Rule 8 is
to the following effect.
“8. Procedure to be followed to arrive at a settlement
(i) In every suit or proceeding the Judge may, at any stage, direct the parties to
attend a counsellor with a view to promote conciliation and to secure speedy
settlement of disputes.
(ii) The parties shall be bound to attend the counsellor on the date and time fixed by
the Judge.
—| 358 |—
(iii) The counsellor may require the parties or any one of them to appear on a date
and time fixed for further counselling. In case any of the parties fails to appear,
the counsellor may report the matter to the Judge and the Judge shall pass such
orders including awarding of costs, as the circumstances of the case may require.
The Judge may nevertheless require the counsellor to submit a report.
(iv) The counsellor, in the discharge of his duties may:-
(a) Pay visits to the homes of both or any of the parties.
(b) Interview, relatives, friends and acquaintances of the parties or any of
them.
(c) Seek such information from the employer of any of the parties, as may be
deemed necessary.
v) With the prior permission of the Judge the counsellor may:-
a) refer the parties to an expert in other areas, such as medicine or psychiatry.
b) seek assistance of any of the institutions, organizations or persons
mentioned in Section 5 of the Act.
vi) The counsellor shall maintain a diary in respect of every case giving in brief the
steps taken.
vii) Information gathered by the counsellor, any statement made before the counsellor
or any notes or report prepared by the counsellor will be treated as confidential.
The counsellor shall not be called upon to disclose such information, statements,
notes or report to any court except with the consent of both the parties.
viii) The counsellor shall not be asked to give evidence in any court in respect of such
information statements or notes. Provided, however, that the counsellor will
submit to the Judge a report relating to the home environment of the parties
concerned, their personalities and their relationship with their child and/or
children in order to assist the Judge in deciding the question of the custody or
guardianship of any child or children of the marriage. Provided further that the
counsellor will also submit to the Judge a report relating to the home environment,
income or standard of living of the party or parties concerned in order to assist
the Judge in determining the amount of maintenance and/or alimony to be
granted to one of the parties.
ix) The Judge may also request the counsellor to submit a report on any other matter,
the Judge consider necessary.
x) A copy of any report may be supplied to the parties, on such request being made
by the parties.
xi) The parties will be entitled to make their submissions on the report.
xii) The counsellor shall not be asked to give evidence in any court in respect of any
report made by him. xiii) Save as aforesaid, the counsellor will submit a brief
—| 359 |—
memorandum to the Judge informing the Judge of the outcome of the proceedings
within the time specified by the Judge.
xiv) When the parties arrive at a settlement before the counsellor relating to the
dispute or any part thereof, such settlement shall be reduced to writing and shall
be signed by the parties and countersigned by the counsellor. The Judge shall
pronounce a decree or order in terms thereof unless the Judge considers the terms
of the settlement unconscionable or unlawful.
xv) Cohabitation between the parties in the course of conciliation proceedings will
not be deemed to be condonation of the matrimonial offence.
xvi) Even after passing of the decree or order the Judge may require the counsellor
to supervise the placement of children in custody of a party and to pay surprise
visits to the home where the child resides. In case any alternation is required in
the arrangements the counsellor will make a report to the Judge. The Judge may
after notice to the parties pass such orders as Judge may deem fit.
xvii) The Judge may require the counsellor to supervise, guide and/or assist reconciled
couples, even after the disposal of the case for such further period as the court
may order.
xviii) On a request received from the counsellor the Judge may issue process to any
person to appear before the counsellor at such place, date and time as may be
desired by the counsellor.”
20. Since reliance has been placed on various other statutory provisions to bring home the issue
regarding confidentiality in mediation process, some of those provisions are also extracted
herein:-
A] Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 are to the following effect:-
“75. Confidentiality - Notwithstanding anything contained in any other law for the time
being in force, the conciliator and the parties shall keep confidential all matters relating
to the conciliation proceedings. Confidentiality shall extend also to the settlement
agreement, except where its disclosure is necessary for purposes of implementation and
enforcement.
81. Admissibility of evidence in other proceedings. - The parties shall not rely on or introduce
as evidence in arbitral or judicial proceedings, whether or not such proceedings relate
to the dispute that is the subject of the conciliation proceedings,-
(a) views expressed or suggestions made by the other party in respect of a possible
settlement of the dispute;
(b) admissions made by the other party in the course of the conciliation proceedings;
(c) proposals made by the conciliator;
(d) the fact that the other party had indicated his willingness to accept a proposal for
settlement made by the conciliator.”
—| 360 |—
B] Rule 20 of the Delhi High Court Mediation and Conciliation Centre (SAMADHAN) is to the
following effect:-
“Rule 20: Confidentiality, disclosure and inadmissibility of information.
(a) When a Mediator /Conciliator receives factual information concerning the dispute(s)
from any party, he shall disclose the substance of that information to the other party,
so that the other party may have an opportunity to present such explanation as it may
consider appropriate. Provided that, when a party gives information to the Mediator/
Conciliator subject to a specific condition that it be kept confidential, the Mediator/
Conciliator shall not disclose that information to the other party.
(b) Receipt or perusal, or preparation of records, reports or other documents by the
Mediator/Conciliator, while serving in that capacity shall be confidential and the
Mediator/Conciliator shall not be compelled to divulge information regarding those
documents nor as to what transpired during the Mediator/Conciliator before any
Court or tribunal or any other authority or any person or group of persons.
(c) Parties shall maintain confidentiality in respect of events that transpired during the
Mediation/ Conciliation and shall not rely on or introduce the said information in
other proceedings as to:
(i) views expressed by a party in the course of the mediation/conciliation proceedings;
(ii) documents obtained during the mediation/conciliation which were expressly
required to be treated as confidential or other notes, drafts or information given
by the parties or the Mediator/Conciliator;
(iii) proposals made or views expressed by the Mediator/Conciliator.
(iv) admission made by a party in the course of mediation/conciliation proceedings;
(v) The fact that a party had or had not indicated willingness to accept a proposal.
d) There shall be no audio or video recording of the mediation/conciliation proceedings.
e) No statement of parties or the witnesses shall be recorded by the Mediator/Conciliator.”
C] The format of the application which the Centre for Mediation and Conciliation (SAMADHAN)
requires every party to fill in is to the following effect :-
“I agree to attend all the Mediation Sessions at the time and place fixed by the Mediator.
Any party can withdraw from mediation if they so choose on finding that it is not helping
them or their case. Each party will bear its own lawyer’s fees. Each party will also share
the cost of the Mediator’s fees equally, unless the Court directs otherwise. The entire process
of mediation will be confidential and whatever is submitted to the Mediator will not be
divulged or produced or be admissible in any Court proceedings. The Mediator will not be
compelled to appear as a witness in any Court of law. The mediation process is voluntary and
not binding on the parties till they, on their own volition, reach a settlement agreement and
sign the same.”
D] Certain other provisions relied upon by the respondent are:-
—| 361 |—
“i) The UNICITRAL Conciliation Rules contain Article 14, which provides for
confidentiality of all matters relating to conciliation.
ii) That Section of the Uniform Mediation Act, USA, 2003, provides for privilege against
disclosure, admissibility and discovery of communication and information exchanged
during mediation process.
iii) That Rule of the Honk Kong International Arbitration Centre Rules mandates
mediation to be a private and a confidential process.
iv) The Code of Practice of Family Mediators followed by the Family Mediation Council,
England and Wales in paragraph 5.5 provides that the Mediator must not disclose any
information about, or obtained in the course of the mediation to anyone, including
a court appointed officer or court, without express consent of each participant, an
order of the court or where the law imposes an overriding obligation of disclosure on
Mediator to do so.
v) The Family Justice Courts, Singapore also mandates that all information and matters
discussed during the Family Dispute Resolution Conferences, counselling, mediation or
co-mediation are to be confidential.
vi) The Members Code of Professional Conduct of Family Mediation Canada in Article
7 extends the principle of confidentiality to the documents prepared specifically for or
resulting from mediation.
vii) The California Rules of Court, 2017 also provides for confidentiality to be maintained
in mediation relating to child custody matters.”
21. In Afcons Infrastructure Limited and another vs. Cherian Varkey Construction Company
Private Limited and others while dealing with issues concerning scope and width of Section 89
Civil Procedure Code and the modalities of Alternative Dispute Resolution mentioned therein,
this Court noted various kinds of disputes in respect of which process of Alternative Dispute
Resolution has normally been found to be suitable. Para 28 of the decision was as under:-
“28. All other suits and cases of civil nature in particular the following categories of cases
(whether pending in civil courts or other special tribunals/forums) are normally
suitable for ADR processes:
(i) All cases relating to trade, commerce and contracts, including
• disputes arising out of contracts (including all money claims);
• disputes relating to specific performance;
• disputes between suppliers and customers;
• disputes between bankers and customers;
• disputes between developers/builders and customers;
• disputes between landlords and tenants/licensor and licensees;
• disputes between insurer and insured;
(ii) All cases arising from strained or soured relationships, including
—| 362 |—
• disputes relating to matrimonial causes, maintenance, custody of children;

• disputes relating to partition/division among family members/coparceners/
co-owners; and
• disputes relating to partnership among partners.
(iii) All cases where there is a need for continuation of the pre-existing relationship in
spite of the disputes, including
• disputes between neighbours (relating to easementary rights,
encroachments, nuisance, etc.);
• disputes between employers and employees;
• disputes among members of societies/associations/apartment owners’
associations;
(iv) All cases relating to tortious liability, including
• claims for compensation in motor accidents/other accidents; and
(v) All consumer disputes, including
• disputes where a trader/supplier/manufacturer/service provider is keen to
maintain his business/professional reputation and credibility or product
popularity.
The above enumeration of “suitable” and “unsuitable” categorisation of cases is not
intended to be exhaustive or rigid. They are illustrative, which can be subjected to just
exceptions or additions by the court/tribunal exercising its jurisdiction/discretion in
referring a dispute/case to an ADR process.”
22. In Moti Ram (dead) through Lrs. and another vs. Ashok Kumar and another it was held that
mediation proceedings are totally confidential and in case the mediation is unsuccessful, the
Mediator should not write anything that was discussed, proposed or done during the mediation
proceedings. The observations in that behalf were:-
“2. In this connection, we would like to state that mediation proceedings are totally
confidential proceedings. This is unlike proceedings in court which are conducted
openly in the public gaze. If the mediation succeeds, then the mediator should send the
agreement signed by both the parties to the court without mentioning what transpired
during the mediation proceedings. If the mediation is unsuccessful, then the mediator
should only write one sentence in his report and send it to the court stating that
the “mediation has been unsuccessful”. Beyond that, the mediator should not write
anything which was discussed, proposed or done during the mediation proceedings.
This is because in mediation, very often, offers, counter offers and proposals are made
by the parties but until and unless the parties reach to an agreement signed by them,
it will not amount to any concluded contract. If the happenings in the mediation
proceedings are disclosed, it will destroy the confidentiality of the mediation process.”
Similarly, while dealing with a matter arising under the Arbitration and Conciliation
Act, 1996, it was held by this Court in Govind Prasad Sharma and others vs. Doon
—| 363 |—
Valley Officers Co-operative Housing Society Ltd. that “both the Conciliator and the
parties must keep as confidential all matters relating to conciliation proceedings”.
23. Reliance was placed by the respondent on the decisions mentioned above and some statutory
provisions including procedural norms in different jurisdictions to submit that there must be
absolute confidentiality in respect of any statements made during the course of mediation. The
appellant, however, relies upon Sub-Rule(viii) of Rule 8 of the Rules in support of the submission
that in relation to matters, inter alia, of custody or guardianship of any child or children, the
Counsellor could be asked to submit to the Judge a report relating to home environment of the
parties concerned, their personalities and their relationship with the child and or children in
order to assist the Judge in deciding the questions involved in the matter.
24. We, thus, have line of cases dealing with mediation/conciliation and other proceedings in
general and Rule 8 of the Rules dealing inter alia, with custody issues which is in the nature of an
exception to the norms of confidentiality. It is true that the process of mediation is founded on
the element of confidentiality. Qualitatively, Mediation or Conciliation stands on a completely
different footing as against regular adjudicatory processes.
Instead of an adversarial stand in adjudicatory proceedings, the idea of mediation is to resolve
the dispute at a level which is amicable rather than adversarial. In the process, the parties may
make statements which they otherwise they would not have made while the matter was pending
adjudication before a court of law. Such statements which are essentially made in order to see if
there could be a settlement, ought not to be used against the maker of such statements in case at
a later point the attempts at mediation completely fail.
If the statements are allowed to be used at subsequent stages, the element of confidence which
is essential for healthy mediation/conciliation would be completely lost. The element of
confidentiality and the assurance that the statements would not be relied upon helps the parties
bury the hatchet and move towards resolution of the disputes. The confidentiality is, thus, an
important element of mediation/conciliation.
25. Complete adherence to confidentiality would absolutely be correct in normal matters where
the role of the court is purely of an adjudicator. But such an approach may not essentially be
conducive when the court is called upon and expected to discharge its role in the capacity as
parens patriae and is concerned with the welfare of a child. All custody and guardianship issues
are resolved on the touchstone or parameter of “best interest of the child”.
In custody and guardianship disputes between two parties, a minor child is in a peculiar situation.
At times, both sides are busy fighting legal battles and the court is called upon in parens patriae
to decide what is in the best interest of the child. In order to reach correct conclusion, the court
may interview the child or may depend upon the analysis of an expert who may spend some
more time with the child and gauge the upbringing, personality, desires or mental frame of
the child and render assistance to the court. It is precisely for this reason that the element of
confidentiality which is otherwise the basic foundation of mediation/conciliation, to a certain
extent, is departed from in Sub-Rule (viii) of Rule 8 of the Rules.
26. If the reports of the Counsellor touching upon the home environment of the parties concerned,
their personalities and their relationship with their child or children would assist the court in
determining the custody or guardianship issues, any technicality ought not to stand in the way.
—| 364 |—
Sub-Rule (viii) of Rule 8 seeks to achieve that purpose and makes such material available for the
assessment of the court. The observations of this Court in Ashish Ranjan vs. Anupma Tandon
and another10 have crystalized the approach to be adopted in matters concerning custody or
guardianship issues. Paras 18 & 19 of the decision are as under:
“18. It is settled legal proposition that while determining the question as to which parent
the care and control of a child should be given, the paramount consideration remains
the welfare and interest of the child and not the rights of the parents under the statute.
Such an issue is required to be determined in the background of the relevant facts and
circumstances and each case has to be decided on its own facts as the application of
doctrine of stare decisis remains irrelevant insofar as the factual aspects of the case are
concerned. While considering the welfare of the child, the “moral and ethical welfare of
the child must also weigh with the court as well as his physical wellbeing”.
The child cannot be treated as a property or a commodity and, therefore, such issues have
to be handled by the court with care and caution, with love, affection and sentiments
applying human touch to the problem. Though, the provisions of the special statutes
which govern the rights of the parents or guardians may be taken into consideration,
there is nothing which can stand in the way of the court exercising its parens patriae
jurisdiction arising in such cases. (Vide Gaurav Nagpal v. Sumedha Nagpal.)
19. The statutory provisions dealing with the custody of the child under any personal law
cannot and must not supersede the paramount consideration as to what is conducive
to the welfare of the minor. In fact, no statute on the subject, can ignore, eschew or
obliterate the vital factor of the welfare of the minor. (Vide Elizabeth Dinshaw v.
Arvand M. Dinshaw12, Chandrakala Menon v. Vipin Menon13, Nil Ratan Kundu v.
Abhijit Kundu14, Shilpa Aggarwal v. Aviral Mittal15 and Athar Hussain v. Syed Siraj
Ahmed16.)”
27. Statements made by the parents during the course of mediation may not be relied upon on
the ground of confidentiality but natural responses and statements made by the minor to the
Counsellor would certainly afford a chance to decide what is in the best interest of the child.
A child may respond naturally and spontaneously in its interactions with the Counsellor, who is
professionally trained to make the child feel comfortable. Record of such interaction may afford
valuable inputs to the Court in discharge of its duties in parens patriae jurisdiction. If during
such interaction issues or aspects concerning welfare of a child are noticed, there is no reason
why the Court be deprived of access to such aspects. As held by this Court in various judgments,
the paramount consideration ought to be to see what is in the best interest of the child.
28. In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged to give report, inter alia, relating
to home environment of the parties concerned, their personalities and their relationship with
the child and/or children in order to assist the Judge in deciding the question of guardianship of
any child or children. The intention is clear that the normal principle of confidentiality will not
apply in matters concerning custody or guardianship issues and the Court, in the best interest
of the child, must be equipped with all the material touching upon relevant issues in order to
render complete justice.
—| 365 |—
This departure from confidentially is consistent with the underlined theme of the Act
in general and Section 12 in particular. Once there is a clear exception in favour of
categories stated therein, principles in any other forms of mediation/conciliation or
other modes of Alternative Dispute Resolution regarding confidentiality cannot be
imported. The effect of such exception cannot be diluted or nullified. In our view, the
High Court considered the matter in correct perspective in paragraphs 17 to 20 of its
judgment dated 07.02.2017.
29. There is, however, one aspect which must also be considered and that is who is the “Counsellor”
within the meaning of Rule 8 and whether the Counsellor who assisted the court in the present
matter comes within the four corners of said provision. It is true that under Section 6 the
Counsellors are appointed by the State Government in consultation with the High Court. It is
also true that the Counsellor in the present case was not the one who was appointed in terms
of Section 6 but was appointed by a committee of the High Court and her assistance had been
requested for in connection with many matters. The order passed on 06.05.2016 had indicated
that the Mediator could join “any other person” as may be deemed necessary for a holistic and
effective mediation.
The next order dated 11.05.2016 did mention the name of the Counsellor and the fact that the
Counsellor had a fruitful meeting with Aditya. The Counsellor, thereafter, interacted with him on
08.07.2016 and 11.07.2016, based on which interaction, a report was submitted on 21.07.2016.
The engagement of the Counsellor was thus in complete knowledge of the parties as well as with
express acceptance of the High Court. It may be that said Counsellor was not appointed under
Section 6 of the Act but if the paramount consideration is the welfare of the child, there cannot
be undue reliance on a technicality. As a matter of fact, the width of Section 12 of the Act would
admit no such restriction.
The report given by the Counsellor in the present case cannot, therefore, be eschewed from
consideration. It is noteworthy that there was absolutely nothing against the Counsellor and in
the judgment under appeal, the High Court went on to observe in para No.30 that the Counsellor
was well experienced and known for her commitment and sincerity to secure a settlement which
would be satisfactory to all.
30. We do not, therefore, see any reason why the reports in the present case, be kept out of
consideration.
31. We, therefore, allow this appeal, set aside the judgment dated 11.12.2017 passed by the High
Court and restore the earlier judgment dated 17.02.2017 passed by the High Court of Delhi.
There shall be no order as to costs.
qqq
—| 366 |—
SURYA VADANAN VERSUS STATE OF TAMIL NADU & ORS.

Bench : Hon’ble Mr. Justice Madan B. Lokur & Hon’ble Mr. Justice Uday Umesh Lalit
(Arising out of S.L.P. (Crl.) No.3634 of 2014)
Surya Vadanan …Appellant
Versus
State of Tamil Nadu & Ors. …Respondents
Surya filed a writ petition in the Madras High Court in February 2013 (being HCP No.522 of 2013)
for a writ of habeas corpus on the ground, inter alia, that Mayura had illegal custody of the two
daughters of the couple that is Sneha Lakshmi Vadanan and Kamini Lakshmi Vadanan and that
they may be produced in court and appropriate orders may be passed thereafter.
There are five comparatively recent and significant judgments delivered by this court on the issue of
child custody where a foreign country or foreign court is concerned on the one hand and India or an
Indian court (or domestic court) is concerned on the other. These decisions are:
(1) Sarita Sharma v. Sushil Sharma, (2) Shilpa Aggarwal v. Aviral Mittal & Anr., (3) V. Ravi
Chandran v. Union of India, (4) Ruchi Majoo v. Sanjeev Majoo, and (5) Arathi Bandi v. Bandi
Jagadrakshaka Rao. These decisions were extensively read out to us and we propose to deal with
them in seriatim. (1) Sarita Sharma v. Sushil Sharma.
The following principles were accepted and adopted by this court:
(1) The welfare of the child is the paramount consideration. Simply because a foreign court has
taken a particular view on any aspect concerning the welfare of a child is not enough for the courts
in this country to shut out an independent consideration of the matter. The principle of comity of
courts simply demands consideration of an order passed by a foreign court and not necessarily its
enforcement.
(2) One of the factors to be considered whether a domestic court should hold a summary inquiry or
an elaborate inquiry for repatriating the child to the jurisdiction of the foreign court is the time gap
in moving the domestic court for repatriation. The longer the time gap, the lesser the inclination of
the domestic courts to go in for a summary inquiry.
(3) An order of a foreign court is one of the factors to be considered for the repatriation of a child
to the jurisdiction of the foreign court. But that will not override the consideration of welfare of the
child. Therefore, even where the removal of a child from the jurisdiction of the foreign court goes
against the orders of that foreign court, giving custody of the child to the parent who approached the
foreign court would not be warranted if it were not in the welfare of the child.
(4) Where a child has been removed from the jurisdiction of a foreign court in contravention of
an order passed by that foreign court where the parties had set up their matrimonial home, the
domestic court must consider whether to conduct an elaborate or summary inquiry on the question
of custody of the child. If an elaborate inquiry is to be held, the domestic court may give due weight
—| 367 |—
to the order of the foreign court depending upon the facts and circumstances in which such an order
has been passed.
(5) A constitutional court exercising summary jurisdiction for the issuance of a writ of habeas
corpus may conduct an elaborate inquiry into the welfare of the child whose custody is claimed and
a Guardian Court (if it has jurisdiction) may conduct a summary inquiry into the welfare of the
child, depending upon the facts of the case.
(6) Since the interest and welfare of the child is paramount, a domestic court “is entitled and indeed
duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an
input for its final adjudication.”
This court took into consideration various principles laid down from time to time in different
decisions rendered by this court with regard to the custody of a minor child. It was held that:
(1) It is the duty of courts in all countries to see that a parent doing wrong by removing a child out of
the country does not gain any advantage of his or her wrong doing.
(2) In a given case relating to the custody of a child, it may be necessary to have an elaborate inquiry
with regard to the welfare of the child or a summary inquiry without investigating the merits of the
dispute relating to the care of the child on the ground that such an order is in the best interests of the
child.
(3) Merely because a child has been brought to India from a foreign country does not necessarily
mean that the domestic court should decide the custody issue. It would be in accord with the principle
of comity of courts to return the child to the jurisdiction of the foreign court from which he or she
has been removed.
JUDGMENT
Hon’ble Mr. Justice Madan B. Lokur.—
1. Leave granted.
2. The question before us relates to the refusal by the Madras High Court to issue a writ of habeas
corpus for the production of the children of Surya Vadanan and Mayura Vadanan. The appellant
sought their production to enable him to take the children with him to the U.K. since they were
wards of the court in the U.K. to enable the foreign court to decide the issue of their custody.
3. In our opinion, the High Court was in error in declining to issue the writ of habeas corpus.
The facts
4. The appellant (hereafter referred to as Surya) and respondent No.3 (hereafter referred to as
Mayura) were married in Chennai on 27th January, 2000. While both are of Indian origin, Surya
is a resident and citizen of U.K. and at the time of marriage Mayura was a resident and citizen of
India.
5. Soon after their marriage Mayura joined her husband Surya in U.K. sometime in March 2000.
Later she acquired British citizenship and a British passport sometime in February 2004. As
such, both Surya and Mayura are British citizens and were ordinarily resident in U.K. Both were
also working for gain in the U.K.
—| 368 |—
6. On 23rd September, 2004, a girl child Sneha Lakshmi Vadanan was born to the couple in U.K.
Sneha Lakshmi is a British citizen by birth. On 21st September, 2008 another girl child Kamini
Lakshmi Vadanan was born to the couple in U.K. and she too is a British citizen by birth. The
elder girl child is now a little over 10 years of age while the younger girl child is now a little over
6 years of age.
7. It appears that the couple was having some matrimonial problems and on 13th August, 2012
Mayura left U.K. and came to India along with her two daughters. Before leaving, she had
purchased return tickets for herself and her two daughters for 2nd September, 2012. She says
that the round-trip tickets were cheaper than one-way tickets and that is why she had purchased
them.
According to Surya, the reason for the purchase of roundtrip tickets was that the children’s
schools were reopening on 5th September, 2012 and she had intended to return to U.K. before
the school reopening date.
8. Be that as it may, on her arrival in India, Mayura and her daughters went to her parents house in
Coimbatore (Tamil Nadu) and have been staying there ever since.
9. On 21st August, 2012 Mayura prepared and signed a petition under Section 13(1)(i-a) of the
Hindu Marriage Act, 19551 seeking a divorce from Surya. The petition was filed in the Family
Court in Coimbatore on 23rd August, 2012. We are told that an application for the custody of
the two daughters was also filed by Mayura but no orders seem to have been passed on that
application one way or the other.
10. On or about 23rd August, 2012 Surya came to know that Mayura was intending to stay on
in India along with their two daughters. Therefore, he came to Coimbatore on or about 27th
August, 2012 with a view to amicably resolve all differences with Mayura. Interestingly while
in Coimbatore, Surya lived in the same house as Mayura and their two daughters, that is, with
Surya’s in-laws. According to Surya, he was unaware that Mayura had already filed a petition to
divorce him.
11. Since it appeared that the two daughters of the couple were not likely to return to U.K. in the
immediate future and perhaps with a view that their education should not be disrupted, the
children were admitted to a school in Coimbatore with Surya’s consent.
12. Since Surya and Mayura were unable to amicably (or otherwise) resolve their differences, Surya
returned to U.K. on or about 6th September, 2012. About a month later, on 16th October, 2012
he received a summons dated 6th October, 2012 from the Family Court in Coimbatore in the
divorce petition filed by Mayura requiring him to enter appearance and present his case on 29th
October, 2012. We are told that the divorce proceedings are still pending in the Family Court in
Coimbatore and no substantial or effective orders have been passed therein.
Proceedings in the U.K.
1 13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented
by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner for a
continuous period of not less than two years immediately preceding the presentation of the petition; or [rest of the provision is not
relevant]
—| 369 |—
13. Faced with this situation, Surya also seems to have decided to initiate legal action and on 8th
November, 2012 he petitioned the High Court of Justice in U.K. (hereinafter referred to as
‘the foreign court’) for making the children as wards of the court. It seems that along with this
petition, he also annexed documents to indicate (i) that he had paid the fees of the children for
a private school in U.K. with the intention that the children would continue their studies in U.K.
(ii) that the children had left the school without information that perhaps they would not be
returning to continue their studies.
14. On 13th November, 2012 the High Court of Justice passed an order making the children wards
of the court “during their minority or until such time as this provision of this order is varied or
alternatively discharged by the further order of the court” and requiring Mayura to return the
children to the jurisdiction of the foreign court. The relevant extract of the order passed by the
foreign court on 13th November, 2012 reads as under:-
“IT IS ORDERED THAT:
1. The children SNEHA LAKSHMI VADANAN AND KAMINI LAKSHMI VADANAN
shall be and remain wards of this Honourable Court during their minority or until
such time as this provision of this order is varied or alternatively discharged by the
further order of the court.
2. The Respondent mother shall :
a. By no later than 4 p.m. on 20th November 2012 inform the father, through his
solicitors (Messrs Dawson Cornwell, 15 Red Lion Square, London, WC1R 4QT.
Tel: 0207 242 2556 Ref: SJ/AMH), of the current care arrangements for the
children;
b. By no later than 4 p.m. on 20th November 2012 inform the father, through his
said solicitors, of the arrangements that will be made for the children’s return
pursuant to paragraph 2(c) herein;
c. Return the children to the jurisdiction of England and Wales by no later than
11.59 p.m. on 27th November 2012;
d. Attend at the hearing listed pursuant to paragraph 3 herein, together with
solicitors and/or counsel if so instructed. A penal notice is attached to this
paragraph.
3. The matter shall be adjourned and relisted for further directions or alternatively
determination before a High Court Judge of the Family Division sitting in chambers at
the Royal Court of Justice, Strand, London on 29th November 2012 at 2 p.m. with a
time estimate of 30 minutes.
4. The mother shall have leave, if so advised, to file and serve a statement in response to
the statement of the Applicant father. Such statement to be filed and served by no later
than 12 noon on 29th November 2012.
5. Immediately upon her and the children’s return to the jurisdiction of England and
Wales the mother shall lodge her and the children’s passports and any other travel
—| 370 |—
documents with the Tipstaff (Tipstaff ’s Office, Royal Courts of Justice, Strand, London)
to be held by him to the order of the court.
6. The solicitors for the Applicant shall have permission to serve these proceedings, together
with this order, upon the Respondent mother outside of the jurisdiction of England and
Wales, by facsimile or alternatively scanned and e-mailed copy if necessary.
7. The Applicant father shall have leave to disclose this order to:
a. The Foreign and Commonwealth Office;
b. The British High Commission, New Delhi;
c. The Indian High Commission, London
d. Into any proceedings as the mother may have issued of India, including any
divorce proceedings.
8. Costs reserved.
AND THIS HON’BLE COURT RESPECTFULLY REQUESTS THAT the administrative
authorities of the British Government operating in the jurisdiction of India and the judicial
and administrative authorities of India, including the Indian High Commission in England,
assist in any way within their power and control in ascertaining the current whereabouts
of the children herein, who have been made wards of court, and in assisting in repatriating
them to England and Wales, the country of their habitual residence.”
15. In response to the petition filed by Surya, a written statement was filed by Mayura on 20th
November, 2012. A rejoinder was filed by Surya on 13th December, 2012.
16. Apparently, after taking into consideration the written statement, the foreign court passed
another order on 29th November, 2012 virtually repeating its earlier order and renewing its
request to the administrative authorities of the British Government in India and the judicial
and administrative authorities in India for assistance for repatriation of the wards of the court
to England and Wales, the country of their habitual residence. The relevant extract of the order
dated 29th November, 2012 reads as under:-
“IT IS ORDERED THAT :
1. The children SNEHA LAKSHMI VADANAN AND KAMINI VADANAN shall be and
remain wards of this Hon’ble Court during their minority and until such time as this
provision of this Order is varied or alternatively discharged by the further Order of the
Court.
2. The 1st Respondent mother, 2nd Respondent maternal Grandfather and 3rd Respondent
maternal Grandmother shall:
a. Forthwith upon serve of this Order upon them inform the father, through his
said solicitors, of the arrangements that will be made for the children’s return
pursuant to paragraph 2(c) herein;2
b. Return the children to the jurisdiction of England and Wales forthwith upon
service of this Order upon them;
2 There is no paragraph 2(c) in the text of the order supplied to this court.
—| 371 |—
A penal notice is attached to this paragraph.

3. The matter shall be adjourned and relisted for further directions or alternatively
determination before a High Court Judge of the Family Division sitting in chambers at
the Royal Court of Justice, Strand, London within 72 hours of the return of the children
or alternatively upon application to the Court for a further hearing.
4. The father shall have leave, if so advised, to file and serve a statement of the mother.
Such statement to be filed and served by no later than 12 noon on 13th December
2012.
5. Immediately upon her and the children’s return to the jurisdiction of England and
Wales the mother shall lodge her and the children’s passports and any other travel
documents with the Tipstaff (Tipstaff ’s Office, Royal Courts of Justice, Strand, London)
to be held by him to the Order of the Court.
6. The solicitors for the Applicant shall have permission to serve these proceedings, together
with this Order, upon the Respondent mother outside of the jurisdiction of England
and Wales, by facsimile or alternatively scanned and e-mailed copy if necessary.
7. The Applicant father shall have leave to disclose this order to:
a. The Foreign and Commonwealth Office;
b. The British High Commission, New Delhi;
c. The Indian High Commission, London;
d. Into any proceedings as the mother may have issued in the jurisdiction of India,
including any divorce proceedings.
8. The maternal grandparents Dr. Srinivasan Muralidharan and Mrs. Rajkumari
Murlidharan shall be joined as Respondents to this application as the 2nd and 3rd
Respondents respectively.
9. The mother shall make the children available for skype or alternatively telephone
contact each Sunday and each Wednesday at 5.30 p.m. Indian time.
10. Liberty to the 1st Respondent mother, 2nd Respondent maternal Grandfather and 3rd
Respondent maternal grandmother to apply to vary and/or discharge this order (or
any part of it) upon reasonable notice to the Court and to the solicitors for the father.
11. Costs reserved.
AND THIS HON’BLE COURT RESPECTFULLY REQUESTS THAT the administrative
authorities of the British Government operating in the jurisdiction of India and the judicial
and administrative authorities of India, including the Indian High Commission in England,
assist in any way within their power and control in ascertaining the current whereabouts
of the children herein, who have been made wards of court, and in assisting in repatriating
them to England and Wales, the country of their habitual residence.”
17. We are told that no further effective or substantial orders have been passed by the foreign court
thereafter.
—| 372 |—
Proceedings in the High Court

18. Since Mayura was not complying with the orders passed by the foreign court, Surya filed a writ
petition in the Madras High Court in February 2013 (being HCP No.522 of 2013) for a writ of
habeas corpus on the ground, inter alia, that Mayura had illegal custody of the two daughters of
the couple that is Sneha Lakshmi Vadanan and Kamini Lakshmi Vadanan and that they may be
produced in court and appropriate orders may be passed thereafter.
19. After completion of pleadings, the petition filed by Surya was heard by the Madras High
Court and by a judgment and order dated 4th November, 2013 the writ petition was effectively
dismissed.
20. The Madras High Court, in its decision, took the view that the welfare of the children (and not
the legal right of either of the parties) was of paramount importance. On facts, the High Court
was of opinion that since the children were in the custody of Mayura and she was their legal
guardian, it could not be said that the custody was illegal in any manner. It was also noted that
Surya was permitted to take custody of the children every Friday, Saturday and Sunday during
the pendency of the proceedings in the Madras High Court; that the order passed by the foreign
court had been duly complied with and that Surya had also returned to the U.K. On these facts
and in view of the law, the Madras High Court “closed” the petition filed by Surya seeking a writ
of habeas corpus.
21. Feeling aggrieved, Surya has preferred the present appeal on or about 9th April, 2014.
Important decisions of this court
22. There are five comparatively recent and significant judgments delivered by this court on the
issue of child custody where a foreign country or foreign court is concerned on the one hand
and India or an Indian court (or domestic court) is concerned on the other. These decisions are:
(1) Sarita Sharma v. Sushil Sharma3, (2) Shilpa Aggarwal v. Aviral Mittal & Anr.4, (3) V. Ravi
Chandran v. Union of India5, (4) Ruchi Majoo v. Sanjeev Majoo6, and (5) Arathi Bandi v. Bandi
Jagadrakshaka Rao.7 These decisions were extensively read out to us and we propose to deal with
them in seriatim. (1) Sarita Sharma v. Sushil Sharma
23. As a result of matrimonial differences between Sarita Sharma and her husband Sushil Sharma
an order was passed by a District Court in Texas, USA regarding the care and custody of their
children (both American citizens) and their respective visiting rights. A subsequent order placed
the children in the care of Sushil Sharma and only visiting rights were given to Sarita Sharma.
Without informing the foreign court, Sarita Sharma brought the children to India on or about
7th May, 1997.
24. Subsequently on 12th June, 1997 Sushil Sharma obtained a divorce decree from the foreign
court and also an order that the sole custody of the children shall be with him. Armed with this,
he moved the Delhi High Court on 9th September, 1997 for a writ of habeas corpus seeking
custody of the children. The High Court allowed the writ petition and ordered that the passports
of the children be handed over to Sushil Sharma and it was declared that he could take the
3 (2000) 3 SCC 14
4 (2010) 1 SCC 591
5 (2010) 1 SCC 174
6 (2011) 6 SCC 479
7 (2013) 15 SCC 790
—| 373 |—
children to USA without any hindrance. Feeling aggrieved, Sarita Sharma preferred an appeal in
this court.
25. This court noted that Sushil Sharma was an alcoholic and had used violence against Sarita
Sharma. It also noted that Sarita Sharma’s conduct was not “very satisfactory” but that before
she came to India, she was in lawful custody of the children but “she had committed a breach of
the order of the American Court directing her not to remove the children from the jurisdiction
of that Court without its permission.”
26. This court noted the following principles regarding custody of the minor children of the couple:
(1) The modern theory of the conflict of laws recognizes or at least prefers the jurisdiction of
the State which has the most intimate contact with the issues arising in the case.8
(2) Even though Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes
the father as the natural guardian of a minor son, that provision cannot supersede the
paramount consideration as to what is conducive to the welfare of the minor.9
(3) The domestic court will consider the welfare of the child as of paramount importance and
the order of a foreign court is only a factor to be taken into consideration.10
On the merits of the case, this Court observed:
“Considering all the aspects relating to the welfare of the children, we are of the opinion that
in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to
have allowed the habeas corpus writ petition and directed the appellant to hand over custody
of the children to the respondent and permit him to take them away to U.S.A. What would
be in the interest of the children requires a full and thorough inquiry and, therefore, the High
Court should have directed the respondent to initiate appropriate proceedings in which such
an inquiry can be held.”
27. Notwithstanding this, neither was the matter remanded to the High Court for issuing such
a direction to Sushil Sharma to approach the appropriate court for conducting a “full and
thorough” inquiry nor was such a direction issued by this court. The order of the Delhi High
Court was simply set aside and the writ petition filed by Sushil Sharma was dismissed.
28. We may note that significantly, this court did not make any reference at all to the principle of
comity of courts nor give any importance (apart from its mention) to the passage quoted from
Surinder Kaur Sandhu to the effect that:
“The modern theory of Conflict of Laws recognizes and, in any event, prefers the jurisdiction of
the State which has the most intimate contact with the issues arising in the case. Jurisdiction is
not attracted by the operation or creation of fortuitous circumstances such as the circumstance
as to where the child, whose custody is in issue, is brought or for the time being lodged. To
allow the assumption of jurisdiction by another State in such circumstances will only result
in encouraging forum shopping. Ordinarily, jurisdiction must follow upon functional lines.
That is to say, for example, that in matters relating to matrimony and custody, the law of that
8 Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698

9 Surinder Kaur Sandhu v. Harbax Singh Sandhu
10 Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 which in turn referred to McKee v. McKee, 1951 AC 352: (1951) 1 All ER 942
(PC)
—| 374 |—
place must govern which has the closest concern with the well-being of the spouses and the
welfare of the offsprings of marriage.”
(2) Shilpa Aggarwal v. Aviral Mittal & Anr.
29. Shilpa Aggarwal and her husband Aviral Mittal were both British citizens of Indian origin.
They had a minor child (also a foreign national) from their marriage. They had matrimonial
differences and as a result, Shilpa Aggarwal came to India from the U.K. with their minor child.
She was expected to return to the U.K. but cancelled their return tickets and chose to stay on in
India. Aviral Mittal thereupon initiated proceedings before the High Court of Justice, Family
Division, U.K. and on 26th November, 2008 the foreign court directed Shilpa Aggarwal, inter
alia, to return the minor child to the jurisdiction of that foreign court. Incidentally, the order
passed by the foreign court is strikingly similar to the order passed by the foreign court subject
matter of the present appeal.
30. Soon thereafter, Shilpa Aggarwal’s father filed a writ petition in the Delhi High Court seeking
protection of the child and for a direction that the custody of the child be handed over to him.
The High Court effectively dismissed the writ petition and granted time to Shilpa Aggarwal to
take the child on her own to the U.K. and participate in the proceedings in the foreign court
failing which the child be handed over to Aviral Mittal to be taken to the U.K. as a measure of
interim custody, leaving it for the foreign court to determine which parent would be best suited
to have the custody of the child.
31. Feeling aggrieved, Shilpa Aggarwal preferred an appeal before this court which noted and
observed that the following principles were applicable for deciding a case of this nature:
(1) There are two contrasting principles of law, namely, comity of courts and welfare of the
child.
(2) In matters of custody of minor children, the sole and predominant criterion is the interest
and welfare of the minor child.11 Domestic courts cannot be guided entirely by the fact
that one of the parents violated an order passed by a foreign court.12
32. On these facts and applying the principles mentioned above, this court agreed with the view
of the High Court that the order dated 26th November, 2008 passed by the foreign court did
not intend to separate the child from Shilpa Aggarwal until a final decision was taken with
regard to the custody of the child. The child was a foreign national; both parents had worked for
gain in the U.K. and both had acquired permanent resident status in the U.K. Since the foreign
court had the most intimate contact13 with the child and the parents, the principle of “comity
of courts” required that the foreign court would be the most appropriate court to decide which
parent would be best suited to have custody of the child.
(3) V. Ravi Chandran v. Union of India
33. The mother (Vijayasree Voora) had removed her minor child (a foreign national) from the
U.S.A. in violation of a custody order dated 18th June, 2007 passed by the Family Court of the
11 Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42. Even though this court used the word “sole”, it is clear that it did not
reject or intend to reject the principle of comity of courts.
12 Sarita Sharma v. Sushil Sharma
—| 375 |—
State of New York. The custody order was passed with her consent and with the consent of the
child’s father (Ravi Chandran, also a foreign national).
34. On 8th August, 2007, Ravi Chandran applied for modification of the custody order and was
granted, the same day, temporary sole legal and physical custody of the minor child and
Vijayasree Voora was directed to immediately turn over the minor child and his passport to Ravi
Chandran and further, her custodial time with the child was suspended. The foreign court also
ordered that the issue of custody of the child shall be heard by the jurisdictional Family Court in
the USA.
35. On these broad facts, Ravi Chandran moved a petition for a writ of habeas corpus in this court
for the production of the child and for his custody. The child was produced in this court and
the question for consideration was: “What should be the order in the facts and circumstances
keeping in mind the interest of the child and the orders of the courts of the country of which the
child is a national.”
36. This court referred to a large number of decisions and accepted the following observations,
conclusions and principles:
(1) The comity of nations does not require a court to blindly follow an order made by a foreign
court.14
(2) Due weight should be given to the views formed by the courts of a foreign country of
which the child is a national. The comity of courts demands not the enforcement of an
order of a foreign court but its grave consideration.15 The weight and persuasive effect of a
foreign judgment must depend on the facts and circumstances of each case.16
(3) The welfare of the child is the first and paramount consideration,17 whatever orders may
have been passed by the foreign court.18
(4) The domestic court is bound to consider what is in the best interests of the child. Although
the order of a foreign court will be attended to as one of the circumstances to be taken into
account, it is not conclusive, one way or the other.19
(5) One of the considerations that a domestic court must keep in mind is that there is no danger
to the moral or physical health of the child in repatriating him or her to the jurisdiction of
the foreign country.20
(6) While considering whether a child should be removed to the jurisdiction of the foreign
court or not, the domestic court may either conduct a summary inquiry or an elaborate
inquiry in this regard. In the event the domestic court conducts a summary inquiry, it
would return the custody of the child to the country from which the child was removed
unless such return could be shown to be harmful to the child. In the event the domestic
court conducts an elaborate inquiry, the court could go into the merits as to where the
permanent welfare of the child lay and ignore the order of the foreign court or treat the
14 B’s Settlement, In re. B. v. B.,1940 Ch 54: (1951) 1 All ER 949 and McKee v. McKee
15 McKee v. McKee
16 McKee v. McKee
17 McKee v. McKee
18 B’s Settlement, In re
19 Kernot v. Kernot, 1965 Ch 217: (1964) 3 WLR 1210: (1964) 3 All ER 339
20 H. (Infants) , In re, (1966) 1 WLR 381 (Ch & CA) : (1966) 1 All ER 886 (CA)
—| 376 |—
fact of removal of the child from another country as only one of the circumstances.21 An
order that the child should be returned forthwith to the country from which he or she
has been removed in the expectation that any dispute about his or her custody will be
satisfactorily resolved in the courts of that country may well be regarded as being in the
best interests of the child.22
(7) The modern theory of conflict of laws recognizes and, in any event, prefers the jurisdiction
of the State which has the most intimate contact with the issues arising in the case.
Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such
as the circumstance as to where the child, whose custody is in issue, is brought or for the
time being lodged.23
37. On the facts of the case, it was held that an elaborate inquiry was not required to be conducted.
It was also observed that there was nothing on record which could remotely suggest that it
would be harmful for the child to return to his native country. Consequently, this court directed
the repatriation of the child to the jurisdiction of the foreign court subject to certain directions
given in the judgment.
38. This court also quoted a passage from Sarita Sharma to the effect that a decree passed by a
foreign court cannot override the consideration of welfare of a child.
(4) Ruchi Majoo v. Sanjeev Majoo
39. Ruchi Majoo (wife) had come to India with her child consequent to matrimonial differences
between her and her husband (Sanjeev Majoo). All three that is Ruchi Majoo, Sanjeev Majoo
and their child were foreign nationals.
40. Soon after Ruchi Majoo came to India, Sanjeev Majoo approached the Superior Court of
California, County of Ventura in the USA seeking a divorce from Ruchi Majoo and obtained a
protective custody warrant order on 9th September, 2008 which required Ruchi Majoo to appear
before the foreign court. She did not obey the order of the foreign court perhaps because she had
initiated proceedings before the Guardian Court at Delhi on 28th August, 2008. In any event,
the Guardian Court passed an ex-parte ad interim order on 16th September, 2008 (after the
protective custody warrant order passed by the foreign court) to the effect that Sanjeev Majoo
shall not interfere with the custody of her minor child till the next date of hearing.
41. Aggrieved by this order, Rajiv Majoo challenged it through a petition under Article 227 of the
Constitution filed in the Delhi High Court. The order of 16th September, 2008 was set aside
by the High Court on the ground that the Guardian Court had no jurisdiction to entertain the
proceedings since the child was not ordinarily resident in Delhi. It was also held that the issue
of the child’s custody ought to be decided by the foreign court for the reason that it had already
passed the protective custody warrant order and also because the child and his parents were
American citizens.
42. On these broad facts, this court framed three questions for determination. These questions are
as follows:-
21 L. (Minors), In re, (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)

22 L. (Minors), In re,
—| 377 |—
(i) Whether the High Court was justified in dismissing the petition for custody of the child
on the ground that the court at Delhi had no jurisdiction to entertain it;
(ii) Whether the High Court was right in declining exercise of jurisdiction on the principle of
comity of courts; and
(iii) Whether the order granting interim custody of the child to Ruchi Majoo calls for any
modification in terms of grant of visitation rights to the father pending disposal of the
petition by the trial court.
43. We are not concerned with the first and the third question. As far as the second question is
concerned, this court was of the view that there were four reasons for answering the question in
the negative. Be that as it may, the following principles were accepted and adopted by this court:
(1) The welfare of the child is the paramount consideration. Simply because a foreign court
has taken a particular view on any aspect concerning the welfare of a child is not enough
for the courts in this country to shut out an independent consideration of the matter.
The principle of comity of courts simply demands consideration of an order passed by a
foreign court and not necessarily its enforcement.24
(2) One of the factors to be considered whether a domestic court should hold a summary
inquiry or an elaborate inquiry for repatriating the child to the jurisdiction of the foreign
court is the time gap in moving the domestic court for repatriation. The longer the time
gap, the lesser the inclination of the domestic courts to go in for a summary inquiry.25
(3) An order of a foreign court is one of the factors to be considered for the repatriation of a
child to the jurisdiction of the foreign court. But that will not override the consideration of
welfare of the child. Therefore, even where the removal of a child from the jurisdiction of
the foreign court goes against the orders of that foreign court, giving custody of the child
to the parent who approached the foreign court would not be warranted if it were not in
the welfare of the child.26
(4) Where a child has been removed from the jurisdiction of a foreign court in contravention
of an order passed by that foreign court where the parties had set up their matrimonial
home, the domestic court must consider whether to conduct an elaborate or summary
inquiry on the question of custody of the child. If an elaborate inquiry is to be held, the
domestic court may give due weight to the order of the foreign court depending upon the
facts and circumstances in which such an order has been passed.27
(5) A constitutional court exercising summary jurisdiction for the issuance of a writ of habeas
corpus may conduct an elaborate inquiry into the welfare of the child whose custody is
claimed and a Guardian Court (if it has jurisdiction) may conduct a summary inquiry into
the welfare of the child, depending upon the facts of the case.28
(6) Since the interest and welfare of the child is paramount, a domestic court “is entitled and
indeed duty-bound to examine the matter independently, taking the foreign judgment, if
any, only as an input for its final adjudication.”
24 Dhanwanti Joshi v. Madhav Unde
25 Dhanwanti Joshi v. Madhav Unde
26 Sarita Sharma v. Sushil Sharma
27 V. Ravi Chandran and Aviral Mittal
28 Dhanwanti Joshi referring to Elizabeth Dinshaw v. Arvand M. Dinshaw
—| 378 |—
44. On the facts of the case, this court held that “repatriation of the minor to the United States, on
the principle of “comity of courts” does not appear to us to be an acceptable option worthy of
being exercised at that stage.” Accordingly, it was held that the “Interest of the minor shall be
better served if he continued to be in the custody of his mother [Ruchi Majoo].”
(5) Arathi Bandi v. Bandi Jagadrakshaka Rao
45. The facts in this case are a little complicated and it is not necessary to advert to them in any
detail. The sum and substance was that Arathi Bandi and her husband Bandi Rao were ordinarily
residents of USA and they had a minor child. There were some matrimonial differences between
the couple and proceedings in that regard were pending in a court in Seattle, USA.
46. In violation of an order passed by the foreign court, Arathi Bandi brought the child to India on
17th July, 2008. Since she did not return with the child to the jurisdiction of the foreign court
bailable warrants were issued for her arrest by the foreign court.
47. On or about 20th November, 2009 Bandi Rao initiated proceedings in the Andhra Pradesh High
Court for a writ of habeas corpus seeking production and custody of the child to enable him to
take the child to USA. The Andhra Pradesh High Court passed quite a few material orders in the
case but Arathi Bandi did not abide by some of them resulting in the High Court issuing non-
bailable warrants on 25th January, 2011 for her arrest. This order and two earlier orders passed
by the High Court were then challenged by her in this court.
48. This court observed that Arathi Bandi had come to India in defiance of the orders passed by the
foreign court and that she also ignored the orders passed by the High Court. Consequently, this
court was of the view that given her conduct, no relief could be granted to Arathi Bandi.
49. This court took into consideration various principles laid down from time to time in different
decisions rendered by this court with regard to the custody of a minor child. It was held that:
(1) It is the duty of courts in all countries to see that a parent doing wrong by removing a child
out of the country does not gain any advantage of his or her wrong doing.29
(2) In a given case relating to the custody of a child, it may be necessary to have an elaborate
inquiry with regard to the welfare of the child or a summary inquiry without investigating
the merits of the dispute relating to the care of the child on the ground that such an order
is in the best interests of the child.30
(3) Merely because a child has been brought to India from a foreign country does not
necessarily mean that the domestic court should decide the custody issue. It would be in
accord with the principle of comity of courts to return the child to the jurisdiction of the
foreign court from which he or she has been removed.31
Discussion of the law
50. The principle of the comity of courts is essentially a principle of self-restraint, applicable when
a foreign court is seized of the issue of the custody of a child prior to the domestic court. There
may be a situation where the foreign court though seized of the issue does not pass any effective
or substantial order or direction. In that event, if the domestic court were to pass an effective or
29 Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw
30 V. Ravi Chandran v. Union of India
31 V. Ravi Chandran v. Union of India
—| 379 |—
substantial order or direction prior in point of time then the foreign court ought to exercise self-
restraint and respect the direction or order of the domestic court (or vice versa), unless there are
very good reasons not to do so.
51. From a review of the above decisions, it is quite clear that there is complete unanimity that
the best interests and welfare of the child are of paramount importance. However, it should be
clearly understood that this is the final goal or the final objective to be achieved – it is not the
beginning of the exercise but the end.
52. Therefore, we are concerned with two principles in a case such as the present. They are (i) The
principle of comity of courts and (ii) The principle of the best interests and the welfare of the
child. These principles have been referred to “contrasting principles of law”32 but they are not
‘contrasting’ in the sense of one being the opposite of the other but they are contrasting in the
sense of being different principles that need to be applied in the facts of a given case.
53. What then are some of the key circumstances and factors to take into consideration for reaching
this final goal or final objective? First, it must be appreciated that the “most intimate contact”
doctrine and the “closest concern” doctrine of Surinder Kaur Sandhu are very much alive and
cannot be ignored only because their application might be uncomfortable in certain situations.
It is not appropriate that a domestic court having much less intimate contact with a child and
having much less close concern with a child and his or her parents (as against a foreign court in a
given case) should take upon itself the onerous task of determining the best interests and welfare
of the child. A foreign court having the most intimate contact and the closest concern with the
child would be better equipped and perhaps best suited to appreciate the social and cultural
milieu in which the child has been brought up rather than a domestic court. This is a factor that
must be kept in mind.
54. Second, there is no reason why the principle of “comity of courts” should be jettisoned, except
for special and compelling reasons. This is more so in a case where only an interim or an
interlocutory order has been passed by a foreign court (as in the present case). In McKee which
has been referred to in several decisions of this court, the Judicial Committee of the Privy Council
was not dealing with an interim or an interlocutory order but a final adjudication. The applicable
principles are entirely different in such cases. In this appeal, we are not concerned with a final
adjudication by a foreign court – the principles for dealing with a foreign judgment are laid down
in Section 13 of the Code of Civil Procedure.33 In passing an interim or an interlocutory order,
a foreign court is as capable of making a prima facie fair adjudication as any domestic court and
there is no reason to undermine its competence or capability. If the principle of comity of courts
is accepted, and it has been so accepted by this court, we must give due respect even to such
orders passed by a foreign court. The High Court misdirected itself by looking at the issue as a
32 Shilpa Aggarwal v. Aviral Mittal

33 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 recognise
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.
—| 380 |—
matter of legal rights of the parties. Actually, the issue is of the legal obligations of the parties, in
the context of the order passed by the foreign court.
55. If an interim or an interlocutory order passed by a foreign court has to be disregarded, there
must be some special reason for doing so. No doubt we expect foreign courts to respect the
orders passed by courts in India and so there is no justifiable reason why domestic courts should
not reciprocate and respect orders passed by foreign courts. This issue may be looked at from
another perspective. If the reluctance to grant respect to an interim or an interlocutory order is
extrapolated into the domestic sphere, there may well be situations where a Family Court in one
State declines to respect an interim or an interlocutory order of a Family Court in another State
on the ground of best interests and welfare of the child.
This may well happen in a case where a person ordinarily resident in one State gets married to
another person ordinarily resident in another State and they reside with their child in a third
State. In such a situation, the Family Court having the most intimate contact and the closest
concern with the child (the court in the third State) may find its orders not being given due
respect by a Family Court in the first or the second State. This would clearly be destructive of
the equivalent of the principle of comity of courts even within the country and, what is worse,
destructive of the rule of law.
56. What are the situations in which an interim or an interlocutory order of a foreign court may be
ignored? There are very few such situations. It is of primary importance to determine, prima facie,
that the foreign court has jurisdiction over the child whose custody is in dispute, based on the
fact of the child being ordinarily resident in the territory over which the foreign court exercises
jurisdiction. If the foreign court does have jurisdiction, the interim or interlocutory order of the
foreign court should be given due weight and respect. If the jurisdiction of the foreign court is
not in doubt, the “first strike” principle would be applicable. That is to say that due respect and
weight must be given to a substantive order prior in point of time to a substantive order passed
by another court (foreign or domestic).
57. There may be a case, as has happened in the present appeal, where one parent invokes the
jurisdiction of a court but does not obtain any substantive order in his or her favour and the
other parent invokes the jurisdiction of another court and obtains a substantive order in his
or her favour before the first court. In such an event, due respect and weight ought to be given
to the substantive order passed by the second court since that interim or interlocutory order
was passed prior in point of time. As mentioned above, this situation has arisen in the present
appeal – Mayura had initiated divorce proceedings in India before the custody proceedings
were initiated by Surya in the U.K. but the foreign court passed a substantive order on the
custody issue before the domestic court. This situation also arose in Ruchi Majoo where Ruchi
Majoo had invoked the jurisdiction of the domestic court before Rajiv Majoo but in fact Rajiv
Majoo obtained a substantive order from the foreign court before the domestic court. While the
substantive order of the foreign court in Ruchi Majoo was accorded due respect and weight but
for reasons not related to the principle of comity of courts and on merits, custody of the child
was handed over to Ruchi Majoo, notwithstanding the first strike principle.
58. As has been held in Arathi Bandi a violation of an interim or an interlocutory order passed by a
court of competent jurisdiction ought to be viewed strictly if the rule of law is to be maintained.
—| 381 |—
No litigant can be permitted to defy or decline adherence to an interim or an interlocutory

order of a court merely because he or she is of the opinion that that order is incorrect – that
has to be judged by a superior court or by another court having jurisdiction to do so. It is in
this context that the observations of this court in Sarita Sharma and Ruchi Majoo have to be
appreciated. If as a general principle, the violation of an interim or an interlocutory order is
not viewed seriously, it will have widespread deleterious effects on the authority of courts to
implement their interim or interlocutory orders or compel their adherence. Extrapolating this
to the courts in our country, it is common knowledge that in cases of matrimonial differences in
our country, quite often more than one Family Court has jurisdiction over the subject matter in
issue. In such a situation, can a litigant say that he or she will obey the interim or interlocutory
order of a particular Family Court and not that of another? Similarly, can one Family Court
hold that an interim or an interlocutory order of another Family Court on the same subject
matter may be ignored in the best interests and welfare of the child? We think not. An interim
or an interlocutory is precisely what it is - interim or interlocutory – and is always subject to
modification or vacation by the court that passes that interim or interlocutory order. There is no
finality attached to an interim or an interlocutory order. We may add a word of caution here –
merely because a parent has violated an order of a foreign court does not mean that that parent
should be penalized for it. The conduct of the parent may certainly be taken into account for
passing a final order, but that ought not to have a penalizing result.
59. Finally, this court has accepted the view34 that in a given case, it might be appropriate to have
an elaborate inquiry to decide whether a child should be repatriated to the foreign country and
to the jurisdiction of the foreign court or in a given case to have a summary inquiry without
going into the merits of the dispute relating to the best interests and welfare of the child and
repatriating the child to the foreign country and to the jurisdiction of the foreign court.
60. However, if there is a pre-existing order of a foreign court of competent jurisdiction and the
domestic court decides to conduct an elaborate inquiry (as against a summary inquiry), it must
have special reasons to do so. An elaborate inquiry should not be ordered as a matter of course.
While deciding whether a summary or an elaborate inquiry should be conducted, the domestic
court must take into consideration:
(a) The nature and effect of the interim or interlocutory order passed by the foreign court.
(b) The existence of special reasons for repatriating or not repatriating the child to the
jurisdiction of the foreign court.
(c) The repatriation of the child does not cause any moral or physical or social or cultural
or psychological harm to the child, nor should it cause any legal harm to the parent with
whom the child is in India. There are instances where the order of the foreign court may
result in the arrest of the parent on his or her return to the foreign country.35 In such cases,
the domestic court is also obliged to ensure the physical safety of the parent.
(d) The alacrity with which the parent moves the concerned foreign court or the concerned
domestic court is also relevant. If the time gap is unusually large and is not reasonably
explainable and the child has developed firm roots in India, the domestic court may be
well advised to conduct an elaborate inquiry.
34 L. (Minors), In re,
35 Arathi Bandi
—| 382 |—
Discussion on facts
61. The facts in this appeal reveal that Surya and Mayura are citizens of the U.K. and their children
are also citizens of the U.K.; they (the parents) have been residents of the U.K. for several years
and worked for gain over there; they also own immovable property (jointly) in the U.K.; their
children were born and brought up in the U.K. in a social and cultural milieu different from that
of India and they have grown up in that different milieu; their elder daughter was studying in
a school in the U.K. until she was brought to India and the younger daughter had also joined a
school in the U.K. meaning thereby that their exposure to the education system was different
from the education system in India.36 The mere fact that the children were admitted to a school
in India, with the consent of Surya is not conclusive of his consent to the permanent or long
term residence of the children in India. It is possible, as explained by his learned counsel, that
he did not want any disruption in the education of his children and that is why he consented to
the admission of the children in a school in India. This is a possible explanation and cannot be
rejected outright.
62. Mayura has not taken any steps to give up her foreign citizenship and to acquire Indian
citizenship. She has taken no such steps even with respect to her children. Clearly, she is desirous
of retaining her foreign citizenship at the cost of her Indian citizenship and would also like her
children to continue with their foreign citizenship, rather than take Indian citizenship. That
being the position, there is no reason why the courts in India should not encourage her and the
children to submit to the jurisdiction of the foreign court which has the most intimate contact
with them and closest concern apart from being located in the country of their citizenship. The
fact that Mayura is of Indian origin cannot be an overwhelming factor.
63. Though Mayura filed proceedings for divorce in India way back in August 2012, she made no
serious effort to obtain any interim order in her favour regarding the custody of the children,
nor did she persuade the trial court for more than two years to pass an interim order for the
custody of the children. On the other hand, the foreign court acted promptly on the asking of
Surya and passed an interim order regarding the custody of the children, thereby making the
first strike principle applicable.
64. It would have been another matter altogether if the Family Court had passed an effective or
substantial order or direction prior to 13th November, 2012 then, in our view, the foreign
court would have had to consider exercising self-restraint and abstaining from disregarding the
direction or order of the Family Court by applying the principle of comity of courts. However,
since the first effective order or direction was passed by the foreign court, in our opinion,
principle of comity of courts would tilt the balance in favour of that court rather than the Family
Court. We are assuming that the Family Court was a court of competent jurisdiction although
we must mention that according to Surya, the Family Court has no jurisdiction over the matter
of the custody of the two children of the couple since they are both British citizens and are
ordinarily residents of the U.K. However, it is not necessary for us to go into this issue to decide
this because even on first principles, we are of the view that the orders or directions passed by the
foreign court must have primacy on the facts of the case, over the Family Court in Coimbatore.
36 In our order dated 9th July, 2014 we have noted that according to Mayura the children are attending some extra classes. This is
perhaps to enable them to adjust to the education system and curriculum in India.
—| 383 |—
No specific or meaningful reason has been given to us to ignore or bypass the direction or order
of the foreign court.
65. We have gone through the orders and directions passed by the foreign court and find that there
is no final determination on the issue of custody and what the foreign court has required is for
Mayura to present herself before it along with the two children who are wards of the foreign
court and to make her submissions. The foreign court has not taken any final decision on the
custody of the children. It is quite possible that the foreign court may come to a conclusion,
after hearing both parties that the custody of the children should be with Mayura and that they
should be with her in India. The foreign court may also come to the conclusion that the best
interests and welfare of the children requires that they may remain in the U.K. either under the
custody of Surya or Mayura or their joint custody or as wards of the court during their minority.
In other words, there are several options before the foreign court and we cannot jump the gun
and conclude that the foreign court will not come to a just and equitable decision which would
be in the best interests and welfare of the two children of the couple.
66. The orders passed by the foreign court are only interim and interlocutory and no finality is
attached to them. Nothing prevents Mayura from contesting the correctness of the interim and
interlocutory orders and to have them vacated or modified or even set aside. She has taken no
such steps in this regard for over two years. Even the later order passed by the foreign court is
not final and there is no reason to believe that the foreign court will not take all relevant factors
and circumstances into consideration before taking a final view in the matter of the custody of
the children. The foreign court may well be inclined, if the facts so warrant, to pass an order that
the custody of the children should be with Mayura in India.
67. There is also nothing on the record to indicate that any prejudice will be caused to the children
of Mayura and Surya if they are taken to the U.K. and subjected to the jurisdiction of the foreign
court. There is nothing to suggest that they will be prejudiced in any manner either morally or
physically or socially or culturally or psychologically if they continue as wards of the court until
a final order is passed by the foreign court. There is nothing to suggest that the foreign court is
either incompetent or incapable of taking a reasonable, just and fair decision in the best interests
of the children and entirely for their welfare.
68. There is no doubt that the foreign court has the most intimate contact with Mayura and her
children and also the closest concern with the well being of Mayura, Surya and their children.
That being the position even though Mayura did not violate any order of the foreign court when
she brought her children to India, her continued refusal to abide by the interim and interlocutory
order of the foreign court is not justified and it would be certainly in the best interests and
welfare of the children if the foreign court, in view of the above, takes a final decision on the
custody of the children at the earliest. The foreign court undoubtedly has the capacity to do so.
69. We have considered the fact that the children have been in Coimbatore since August 2012 for
over two years. The question that arose in our minds was whether the children had adjusted
to life in India and had taken root in India and whether, under the circumstances, it would be
appropriate to direct their repatriation to the U.K. instead of conducting an elaborate inquiry
in India. It is always difficult to say whether any person has taken any root in a country other
than that of his or her nationality and in a country other than where he or she was born and
—| 384 |—
brought up. From the material on record, it cannot be said that life has changed so much for the
children that it would be better for them to remain in India than to be repatriated to the U.K.
The facts in this case do not suggest that because of their stay in India over the last two years the
children are not capable of continuing with their life in the U.K. should that become necessary.
However, this can more appropriately be decided by the foreign court after taking all factors into
consideration.
70. It must be noted at this stage that efforts were made by this court to have the matter of custody
settled in an amicable manner, including through mediation, as recorded in a couple of orders
that have been passed by this court. Surya had also agreed to and did temporarily shift his
residence to Coimbatore and apparently met the children. However, in spite of all efforts, it was
not possible to amicably settle the issue and the mediation centre attached to this court gave a
report that mediation between the parties had failed. This left us with no option but to hear the
appeal on merits.
71. Given these facts and the efforts made so far, in our opinion, there is no reason to hold any
elaborate inquiry as postulated in L. (Minors) - this elaborate inquiry is best left to be conducted
by the foreign court which has the most intimate contact and the closest concern with the
children. We have also noted that Surya did not waste any time in moving the foreign court for
the custody of the children. He moved the foreign court as soon as he became aware (prior to
the efforts made by this court) that no amicable solution was possible with regard to the custody
of the children.
72. We are conscious that it will not be financially easy for Mayura to contest the claim of her
husband Surya for the custody of the children. Therefore, we are of the opinion that some
directions need to be given in favour of Mayura to enable her to present an effective case before
the foreign court.
73. Accordingly, we direct as follows:-
(1) Since the children Sneha Lakshmi Vadanan and Kamini Lakshmi Vadanan are presently
studying in a school in Coimbatore and their summer vacations commence (we are told) in
May, 2015 Mayura Vadanan will take the children to the U.K. during the summer vacations
of the children and comply with the order dated 29th November, 2012 and participate (if
she so wishes) in the proceedings pending in the High Court of Justice. Surya Vadanan
will bear the cost of litigation expenses of Mayura Vadanan.
(2) Surya Vadanan will pay the air fare or purchase the tickets for the travel of Mayura Vadanan
and the children to the U.K. and later, if necessary, for their return to India. He shall also
make all arrangements for their comfortable stay in their matrimonial home, subject to
further orders of the High Court of Justice.
(3) Surya Vadanan will pay maintenance to Mayura Vadanan and the children at a reasonable
figure to be decided by the High Court of Justice or any other court having jurisdiction to
take a decision in the matter. Until then, and to meet immediate out of pocket expenses,
Surya Vadanan will give to Mayura Vadanan prior to her departure from India an amount
equivalent to £1000 (Pounds one thousand only).
—| 385 |—
(4) Surya Vadanan shall ensure that all coercive processes that may result in penal consequences
against Mayura Vadanan are dropped or are not pursued by him.
(5) In the event Mayura Vadanan does not comply with the directions given by us, Surya
Vadanan will be entitled to take the children with him to the U.K. for further proceedings
in the High Court of Justice. To enable this, Mayura Vadanan will deliver to Surya Vadanan
the passports of the children Sneha Lakshmi Vadanan and Kamini Lakshmi Vadanan.
74. The appeal is disposed of on the above terms.
qqq
—| 386 |—
NITHYA ANAND RAGHAVAN VERSUS

STATE (NCT OF DELHI) AND ANOTHER
Bench : Hon’ble Mr. Justice Dipak Misra, Hon’ble Mr. Justice A.M. Khanwilkar and
Hon’ble Mr. Justice Mohan M. Shantanagoudar
Nithya Anand Raghavan .. Appellant;
Versus
State (NCT of Delhi) and another .. Respondents.
Decided on July 3,2017
A. Constitution of India — Art. 226 — Habeas corpus — Custody of child — Inter-country

dispute — Power of Indian courts to decline the relief of return of the child brought within
its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it
would expose the child to physical or psychological harm or otherwise place the child in an
intolerable position or if the child is quite mature and objects to its return — Availability of
such power — Overriding consideration must be the interests and welfare of the child—No
primacy to order of foreign court which must yield to best interests and welfare of the child,
which is of paramount importance — Principles underlying S. 14 of 1890 Act and S. 10 CPC,
particularly S. 10 Expln. CPC can be invoked by Indian courts
— Child removed from foreign country (UK) by mother in violation of interim/interlocutory
order of foreign (UK) court which had directed mother to produce child before it where
issue of wardship of child was pending consideration — Law to be followed by Indian courts
when India is a non-signatory of international convention concerned viz. Civil Aspects of
International Child Abduction — Scope of jurisdiction and power of foreign court and Indian
court — Summary and elaborate enquiry by High Court in India — When and how to be
conducted — Principles summarised
— High Court should undertake elaborate enquiry by considering question on merits bearing
in mind welfare of child as of paramount importance and reckoning order of foreign court only
as a factor to be taken into consideration, unless it thinks it fit to exercise summary jurisdiction
— High Court in interest and for welfare of child not denuded of power to deny relief of return
of child to jurisdiction of UK court, on being satisfied that thereby child may be exposed
to grave harm, physical or psychological — In such case foreign court order must yield to
welfare of child — Principles of “forum convenience”, “comity of courts” and “first strike” (i.e.
substantive order passed by foreign court prior to that passed by domestic court) not significant
in this context, and must yield to best interests and welfare of the child, which is of paramount
importance — Surya Vadanan, (2015) 5 SCC 450 overruled on this point — Guardians and
Wards Act, 1890 — Ss. 7, 8, 12, 17, 26 — Hindu Minority and Guardianship Act, 1956 —
S. 6 — Human and Civil Rights — Children’s rights — Civil Aspects of International Child
Abduction, 1980 — Guardians and Wards Act, 1890 — S. 14 — Civil Procedure Code, 1908,
S. 10 and Expln. thereto
—| 387 |—
B. Constitution of India — Art. 226 — Habeas corpus — Custody of child — Girl child —
Guardianship of her mother of utmost significance for development of her personality,
especially when she is around seven years of age, unless circumstances indicate that it would
harmful for her — Hindu Minority and Guardianship Act, 1956, S. 6
C. Constitution of India — Arts. 226, 136 and 142 — Habeas corpus — Removal of child from
foreign country to India by mother in violation of interim/interlocutory order of foreign court
where wardship issue was pending — Habeas corpus petition filed before High Court in India
by father from whose custody child was removed — Even when it is held by High Court, or by
Supreme Court in appeal, that custody of child must remain with mother, order and directions
of foreign court are required to be complied with — Supreme Court would, therefore, to do
complete justice between parties, mould reliefs to facilitate mother to participate in proceedings
before foreign court
D. Constitution of India — Art. 226 — Habeas corpus — Custody of child — Child removed
from custody of father residing in foreign country and brought to India by mother — Habeas
corpus petition filed by father before High Court in India — Legality of custody of child to
be first ascertained in such petition — Presumption of legality — When child removed from
foreign country by biological mother herself, custody of child would be presumed to be legal —
Merely because of order of foreign court directing mother to produce child before it, custody
of child would not become unlawful per se — In such case, petitioner father can be asked to
resort to substantive prescribed remedy for getting custody of child — Hindu Minority and
Guardianship Act, 1956, S. 6
E. Constitution of India — Art 226 — Habeas corpus — Custody of child — Child removed from
custody of father residing in foreign country and brought to India by mother in violation of
interim/interlocutory order of foreign court for producing of child before it where issue of
wardship was pending consideration — Habeas corpus petition filed by father before High
Court in India — Held, remedy of writ of habeas corpus cannot be used for enforcement of
directions of foreign court and convert jurisdiction of High Court into an executing court —
Writ petitioner can take recourse to other remedy or proceedings for enforcement of foreign
court’s order
F. Constitution of India — Art. 226 — Habeas corpus — Custody of child — Welfare of child
prime consideration — For this, court must take into account all attending circumstances and
totality of situation
G. Constitution of India — Art. 226 — Habeas corpus — Nature and object — Principles
summarised
The father as well as mother of the child are of Indian origin. They were married in Chennai in India
according to Hindu rites and customs. The father, an
Indian citizen, had gone to the UK as a student in 2003 and was working there since 2005. After
the marriage, the couple shifted to the UK in early 2007 and stayed in Watford. The mother did get
an employment in London in 2008, but had to come to her parents’ house in Delhi in June 2009,
where she gave birth to a girl child Nethra. Thus Nethra is an Indian citizen by birth. She has not
given up her Indian citizenship. The mother, along with Nethra, returned to the UK in March 2010.
But from August 2010 till December 2011, because of matrimonial issues between the appellant and
—| 388 |—
Respondent 2, the appellant and her daughter remained in India. It was only after the intervention of
and mediation by the family members, the appellant and her daughter Nethra went back to England
in December 2011, more than a year after they had come to India. After returning to UK, Nethra was
admitted to a nursery school in January 2012. An application for grant of UK citizenship was made on
behalf of Nethra in September 2012 which was subsequently granted in December 2012. The father
(Respondent 2) then acquired the citizenship of UK in January 2013. After grant of citizenship of
UK, Nethra was admitted to a primary school in UK in September 2013 and studied there only till
July 2015. Since Nethra had acquired British citizenship, the UK Court could exercise jurisdiction in
respect of her custody issues.
On 16-12-2015, the appellant filed a complaint with the Crime Against Women Cell (C AWC), New
Delhi which then issued notice to Respondent 2 and his parents, asking them to appear before it. On the
date of hearing, neither Respondent 2 nor his parents appeared before the CAWC. As a counterblast,
Respondent 2 filed a custody/wardship petition on 8-1-2016 before the High Court of Justice, Family
Division, UK, seeking the return of his daughter to the jurisdiction of the UK Court. The UK Court
passed an ex parte order on 8-1-2016 against the mother after recording prima facie satisfaction that
the minor Nethra was as on 2-7-2015, habitually resident in the jurisdiction of England and Wales
and was wrongfully removed from England on 2-7-2015 and has been wrongfully retained in India
since then. The UK Court also recorded the father’s willingness to bear the expenses for the transport
and stay of the mother and the child to the UK. The UK Court held that it had the jurisdiction to hear
the matter and directed that the child would become a ward of the court during her minority or until
further orders and that the mother would have to return the child to England by 22-1-2016. This order
has not been challenged by the appellant so far nor has the appellant applied for modification thereof
before the court concerned (foreign court).
Then, on 23-1-2016, Respondent 2 filed a habeas corpus writ petition before the High Court of Delhi,
seeking to have his daughter produced before the Court. The High Court passed the impugned
judgment dated 8-7-2016, inter alia, directing the appellant to produce her daughter and comply with
the orders passed by the UK Court or handover her daughter to Respondent 2 within 3 weeks from
the date of the order.
The Delhi High Court concluded as follows: The foreign court having the most intimate contact with
the child would be better placed to appreciate the social and cultural milieu in which the child had
been brought up. The principle of comity of courts should not be discarded except for special and
compelling reasons, especially when interim or interlocutory orders have been passed by foreign
courts. If a foreign court has jurisdiction to hear the matter, then an interim/interlocutory order
passed by such court should be given due weightage and respect. If such jurisdiction is not in doubt,
then the “first strike” principle i.e. a substantive order passed by a foreign court prior to a substantive
order passed by another foreign or domestic court, becomes applicable. Due respect and weight ought
to be given to the earlier substantive order as compared to the latter order. A foreign court passing an
interim/interlocutory order can make prima facie adjudications, similar to a domestic court. Merely
because a parent has violated an order of a foreign court does not mean that the parent should be
penalised for the same. While the conduct of the parent may be taken into account while passing the
final order, the said conduct should not have a penalising result. A court may either hold an elaborate
inquiry to decide whether a child should be repatriated to a foreign country or a summary inquiry
without going into the merits of the dispute, relating to the best interests and welfare of the child. If,
—| 389 |—
however, there exists a pre-existing order of a foreign court of competent jurisdiction, then a domestic
court must have special reasons to hold an elaborate inquiry. It must consider various factors such as
the nature of the interim order passed by the foreign court, the likelihood of harm caused to the child,
if any, when repatriated, the alacrity with which the parent moves the foreign court, etc. There was no
special or compelling reason to ignore the interim order passed by the UK Court and the child was
accustomed to and well adapted to the culture in UK.
The High Court held that the child, having lived in UK since the time of her birth in 2009, had
developed roots there. Further, the child was a permanent citizen of UK and held a British passport.
The High Court also examined the wardship order passed ex parte by the High Court of Justice,
Family Division, London on 8-1-2016. The High Court opined that in the light of the order passed
by the UK Court, the mother would not face any financial hardship and further, the order of the UK
Court had attained finality due to lapse of time. The High Court held that since the mother had not
sought custody of the child by approaching any competent Indian Court prior to the passing of the
order by the UK Court, therefore, the first, effective order/direction had been passed by the UK/
foreign court and, applying the principle expounded in Surya Vadanan, (2015) 5 SCC 450 of comity
of courts, the balance of favour would lie with the UK Court. Since the child had spent most of her
life in UK and studied there, it would be in the best interests of the child that she be returned to UK.
Further, the High Court opined that there was no force in the mother’s allegation that she was a victim
of domestic abuse since she had not made a single complaint to the authorities while she was staying
with Respondent 2 in the UK. In addition, there was no documentary evidence to support such a
claim either. Finally, the High Court rejected the contention, that the child ought to be medically
treated only in Delhi for her heart ailment with which she was suffering and not in the UK, as baseless.
Allowing the appeal, the Supreme Court Held:
India is not yet a signatory to the Hague Convention of 1980 on Civil Aspects of International Child
Abduction. So far as non-Convention countries are concerned, the law is that the court in the country
to which the child is removed while considering the question must bear in mind the welfare of the
child as of paramount importance and consider the order of the foreign court as only a factor to be
taken into consideration. If the child has been brought within India, the courts in India may conduct:
(a) summary inquiry; or (b) an elaborate inquiry on the question of custody. The summary jurisdiction
to return the child be exercised in cases where the child had been removed from its native land and
removed to another country where, may be, his native language is not spoken, or the child gets divorced
from the social customs and contacts to which he has been accustomed, or if its education in his native
land is interrupted and the child is being subjected to a foreign system of education, for these are all
acts which could psychologically disturb the child. Again the summary jurisdiction be exercised
only if the court to which the child has been removed is moved promptly and quickly. The overriding
consideration must be the interests and welfare of the child. In such a case the court need not resort to
an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the
foreign court by directing return of the child. In the case of a summary inquiry, the court may deem
it fit to order return of the child to the country from where he/she was removed unless such return is
shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open
to the court to decline the relief of return of the child to the country from where he/she was removed
irrespective of a pre-existing order of return of the child by a foreign court. In an elaborate inquiry,
the court is obliged to examine the merits as to where the paramount interests and welfare of the child
—| 390 |—
lay and reckon the fact of a pre-existing order of the foreign court for return of the child as only one of
the circumstances. In exceptional cases the court can still refuse to issue direction to return the child
to the native state and more particularly in spite of a pre-existing order of the foreign court in that
behalf, if it is satisfied that the child’s return may expose him to a grave risk of harm. This means that
the courts in India, within whose jurisdiction the minor has been brought must “ordinarily” consider
the question on merits, bearing in mind the welfare of the child as of paramount importance whilst
reckoning the pre-existing order of the foreign court if any as only one of the factors and not get
fixated therewith. In either situation—be it a summary inquiry or an elaborate inquiry—the welfare of
the child is of paramount consideration. Thus, while examining the issue the courts in India are free
to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child
is now settled in its new environment or if it would expose the child to physical or psychological harm
or otherwise place the child in an intolerable position or if the child is quite mature and objects to its
return. (Paras 40, 42 and 69)
V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174: (2010) 1 SCC (Civ) 44, relied on, on this
point
Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, affirmed
Lozano v. Montoya Alvarez, 2014 SCC Online US SC 62:134 S Ct 1224:572 US _ (2014), referred to
In Surya Vadanan case the inquiry suggested inevitably recognises giving primacy to the order of the
foreign court on the issue of custody of the minor. That has been explicitly negated in Dhanwanti
Joshi, (1998) 1 SCC 112. In Surya Vadanan case the Court concluded: “The alacrity with which the
parent moves the foreign court concerned or the domestic court concerned, is also relevant. If the
time gap is unusually large and is not reasonably explainable and the child has developed firm roots
in India, the domestic court may be well advised to conduct an elaborate inquiry.” This also cannot be
accepted. (Paras 62 and 61)
Surya Vadanan v. State of T.N., (2015) 5 SCC 450 : (2015) 3 SCC (Civ) 94, overruled on this point
The concept of forum convenience has no place in wardship jurisdiction as applicable in India in
respect of child custody matters. The principle of comity of courts cannot be given primacy or more
weightage in non-Convention countries for deciding the matter of custody or for return of the child
to the native state. (Paras 39, 42 and 66)
V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44, relied on, on this
point
H. (Infants), In re, (1966) 1 WLR 381 : 1965 H. No. 2428 : (1966) 1 All ER 886 (CA); Elizabeth
Dinshaw v. ArvandM. Dinshaw, (1987) 1 SCC 42:1987 SCC (Cri) 13; McKee v. McKee, 1951 AC 352
(PC); J. v. C., 1970 AC 668: (1969) 2 WLR 540 (HL); E. (An Infant), In re, 1967 Ch 761 : (1967) 2
WLR 1370 (CA); L (Minors) (Wardship : Jurisdiction), In re, (1974) 1 WLR 250 (CA); R. (Minors)
(Wardship: Jurisdiction), In re, (1981) 2 Fam LR 416 (CA); R (A Minor) (Child Abduction: Non-
Convention Country), In re, 1947 Fam 45 : (1997) 2 WLR 223 (CA); A. (A Minor) (Abduction: Non-
—| 391 |—
Convention Country), In re, The Times, l-l-mi (CA); Khamis v. Khamis, (1978) 4 Fam LR 410 (Full
Court, Australia), cited
It is also not relevant as to which party first approached the court or so to say “first strike”. The analogy
regarding extrapolating that principle to the courts in India, if an order is passed by the Indian court is
inapposite. For, the Indian courts are strictly governed by the provisions of the Guardians and Wards
Act, 1890, as applicable to the issue of custody of the minor within its jurisdiction. The invocation of
first strike principle as a decisive factor would undermine and whittle down the wholesome principle
of the duty of the court having jurisdiction to consider the best interests and welfare of the child, which
is of paramount importance. If the Court is convinced in that regard, the fact that there is already an
order passed by a foreign court in existence may not be so significant as it must yield to the welfare of
the child. That is only one of the factors to be taken into consideration. The High Court was unjustly
and incorrectly impressed by the principle of comity of courts and the obligation of the Indian courts
to comply with a pre-existing order of the foreign court for return of the child and including the
“first strike” principle referred to in Surya Vadanan case. Section 14 of the 1890 Act and the principle
underlying Section 10 CPC, especially the one contained in Section 10 Explanation i.e. pendency of
a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same
cause of action, can be invoked in such situations. (Paras 63, 66 and 68)
Surya Vadanan v. State of T.N., (2015) 5 SCC 450 : (2015) 3 SCC (Civ) 94, overruled on this point
Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591: (2010) 1 SCC (Civ) 192, referred to
The present appeal emanates from a petition seeking a writ of habeas corpus for the production and
custody of a minor child. Habeas corpus is essentially a procedural writ dealing with machinery of
justice. The object underlying the writ is to secure the release of a person who is illegally deprived of
his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have
another in unlawful custody, requiring him to produce the body of such person before the court.
On production of the person before the court, the circumstances in which the custody of the person
concerned has been detained can be inquired into by the court and upon due inquiry into the alleged
unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court
in such proceedings conducts an inquiry for immediate determination of the right of the person’s
freedom and his release when the detention is found to be unlawful. (Para 44)
Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674 : 1973 SCC (Cri) 980, relied on
Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247:2001 SCC (Cri) 841; Elizabeth Dinshaw v.ArvandM.
Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13, affirmed
Paul Mohinder Gahun v. State (NCT of Delhi), 2004 SCC OnLine Del 699 : (2004) 113 DLT 823,
approved
The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning
a minor child, in a given case, may direct return of the child or decline to change the custody of the
child keeping in mind all the attending facts and circumstances including the settled legal position
referred to above. The decision of the court, in each case, must depend on the totality of the facts and
circumstances of the case brought before it whilst considering the welfare of the child which is of
paramount consideration. The order of the foreign court must yield to the welfare of the child. Further,
—| 392 |—
the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by
the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an
executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be
permissible in law for enforcement of the order passed by the foreign court or to resort to any other
proceedings as may be permissible in law before the Indian Court for the custody of the child, if so
advised. (Para 46)
For considering at the threshold whether the minor is in lawful or unlawful custody of another person
(private respondent named in the writ petition), in a case such as the present one, it is enough to note
that the private respondent was none other than the natural guardian of the minor being her biological
mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her
mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child)
may be ordered to be taken away from her mother for being given to any other person including the
husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to
resort to a substantive prescribed remedy for getting custody of the child. (Para 47)
Merely because an order passed by the foreign court, directing the mother to produce the child before
it, the custody of the minor would not become unlawful per se. In the present case, it is not possible
to hold that the custody of the minor with her mother has been declared to be unlawful. At best, the
appellant may have violated the direction to return the minor to England, who has been ordered to be
a ward of the court during her minority and further order. No finding has been rendered that till the
minor returns to England, the custody of the minor with the mother has become or will be treated as
unlawful including for the purposes of considering a petition for issuance of writ of habeas corpus.
The custody of the minor with the appellant, being her biological mother, will have to be presumed to
be lawful. (Paras 48 and 49)
The High Court in such a situation may then examine whether the return of the minor to his/her
native state would be in the interests of the minor or would be harmful. While doing so, the High
Court would be well within its jurisdiction if satisfied, that having regard to the totality of the facts
and circumstances, it would be in the interests and welfare of the minor child to decline return of
the child to the country from where he/she had been removed; then such an order must be passed
without being fixated with the factum of an order of the foreign court directing return of the child
within the stipulated time, since the order of the foreign court must yield to the welfare of the child.
The facts of the case may necessitate the court to issue direction to return the child to the native
State. That does not mean that in deserving cases the courts in India are denuded from declining
the relief to return the child to the native state merely because of a pre- existing order of the foreign
court of competent jurisdiction. That, however, will have to be considered on case to case basis — be
it in a summary inquiry or an elaborate inquiry. For answering this issue, there can be no straitjacket
formulae or mathematical exactitude. Nor can the fact that the other parent had already approached
the foreign court or was successful in getting an order from the foreign court for production of the
child, be a decisive factor. Similarly, the parent having custody of the minor who has not resorted to
any substantive proceeding for custody of the child, cannot whittle down the overarching principle
of the best interests and welfare of the child to be considered by the court. That ought to be the
paramount consideration. (Paras 50, 53 to 56, 67 and 68)
Significantly, till Nethra returned to India along with her mother on 2-7-2015, no proceeding of any
nature came to be filed in the UK Court, either in relation to the matrimonial dispute between the
—| 393 |—
appellant and Respondent 2 or for the custody of Nethra. Further, Nefhra is staying in India along with
the appellant, her grandparents and other family members and relatives, unlike in UK where she lived
in a nuclear family of the three with no extended family. She has been schooling here for the past over
one year and has spent equal time in both the countries out of the first six years. She would be more
comfortable and feel secured to live with her mother here, who can provide her love, understanding,
care and guidance for her complete development of character, personality and talents. Being a girl
child, the guardianship of the mother is of utmost significance. Ordinarily, the custody of a “girl” child
who is around seven years of age, must ideally be with her mother unless there are circumstances
to indicate that it would be harmful to the girl child to remain in custody of her mother. No such
material or evidence is forthcoming in the present case except the fact that the appellant (mother) has
violated the order of the UK Court directing her to return the child to UK before the stipulated date.
When Nethra was in UK, no restraint order was issued by any court or authority in UK in that behalf.
She had travelled along with her mother from UK to India on official documents. Nethra is suffering
from cardiac disorder and needs periodical medical reviews and proper care and attention. That can
be given only by her mother. Respondent 2 (father) is employed and may not be in a position to give
complete attention to his daughter. There is force in the stand taken by the appellant that if Nethra
returns to UK, she may not be able to get meaningful access to provide proper care and attention.
Further, she has no intention to visit UK. The appellant has acquired the status of only a permanent
resident of UK, as she was staying with Respondent 2 who is gainfully employed there. The appellant
has alleged and has produced material in support of her case that during her stay with Respondent 2
in UK, she was subjected to physical violence and mental torture. She has also alleged that if she goes
back to UK, she may suffer the same ignominy. Further, the proceeding in the UK Court instituted by
the husband is a counterblast to the complaint filed by her in Delhi about the violence inflicted on her
by the husband and his family members. Indeed, Respondent 2 has vehemently denied and rebutted
these allegations. It is not necessary for the Supreme Court to adjudicate these disputed questions of
facts. (Paras 50, 53 to 56, 67 and 68)
Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14 : 2000 SCC (Cri) 568, affirmed Taking the totality of
the facts and circumstances into account, it would be in the interests of Nethra to remain in custody of
her mother and it would cause harm to her if she returns to UK. That does not mean that the appellant
must disregard the proceedings pending in the UK Court against her or for custody of Nethra, as the
case may be. So long as that court has jurisdiction to adjudicate those matters, to do complete justice
between the parties the Supreme Court may prefer to mould the reliefs to facilitate the appellant to
participate in the proceedings before the UK Court which she can do through her solicitors to be
appointed to espouse her cause before that court. The present appeal arises from a writ petition filed by
Respondent 2 for issuance of a writ of habeas corpus and not to decide the issue of grant or non-grant
of custody of the minor as such. In a substantive proceeding for custody of the minor before the court
of competent jurisdiction including in India if permissible, all aspects will have to be considered on
their own merit without being influenced by any observations in this judgment. (Para 57)
V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44; Shilpa Aggarwalv.
Aviral Mittal, (2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192; Arathi Bandi v. Bandi Jagadrakshaka Rao,
(2013) 15 SCC 790 : (2014) 5 SCC (Civ) 475, explained and distinguished on facts
After the minor child (Nethra) attains the age of majority, she would be free to exercise her choice to
go to UK and stay with her father. But until she attains majority, she should remain in the custody of
—| 394 |—
her mother unless the court of competent jurisdiction trying the issue of custody of the child orders
to the contrary. However, the father must be given visitation rights, whenever he visits India. The
appellant cannot disregard the proceedings instituted before the UK Court. She must participate in
those proceedings by engaging solicitors of her choice to espouse her cause before the High Court
of Justice. For that, Respondent 2 will bear the costs of litigation and expenses to be incurred by the
appellant. If the appellant is required to appear in the said proceeding in person and for which she
is required to visit UK, Respondent 2 will bear the air fares or purchase the tickets for the travel of
appellant and Nethra to UK and including for their return journey to India as may be required. In
addition, Respondent 2 will make all arrangements for the comfortable stay of the appellant and her
companions at an independent place of her choice at reasonable costs. In the event, the appellant is
required to appear in the proceedings before the High Court of Justice in UK, Respondent 2 shall not
initiate any coercive process against her which may result in penal consequences for the appellant
and if any such proceeding is already pending, he must take steps to first withdraw the same and/or
undertake before the court concerned not to pursue it any further. That will be condition precedent to
pave way for the appellant to appear before the court concerned in UK. (Paras 70 and 71)
Hon’ble Mr. Justice A.M. Khanwilkar.— Leave granted. This appeal arises from the final judgment
and order37 (for short “the impugned judgment”) passed by the High Court of Delhi dated 8-7-2016
in a writ petition for issuance of a writ of habeas corpus for production of the minor daughter Nethra,
allegedly illegally removed by the appellant mother on 2-7-2015 from the custody of Respondent 2
father (writ petitioner) from the United Kingdom (UK), being Writ Petition (Criminal) No. 247 of
2016.
2. The High Court inter alia directed the mother to produce her daughter Nethra and to comply
with the order dated 8-1-2016 passed by the High Court of Justice, Family Division, Principal
Registry, United Kingdom (UK), within 3 (three) weeks from the date of the impugned order or
in the alternative to handover the custody of the daughter to the father within 3 (three) weeks
from the date of the order.
3. The appellant has assailed the aforesaid order, inter alia, on the ground that in the present scenario,
the paramount interests and welfare of the daughter Nethra, who is presently over seven years of
age, is to remain in custody of her mother, especially because she suffers from a cardiac disorder
and that she would face immense physical and psychological harm if repatriated to the custody
of the father in England in the light of the alleged physical, verbal and mental abuse meted out
by him.
4. The appellant has also contended that the UK Court does not have intimate contact with Nethra
merely because she has acquired the citizenship of the UK in December 2012. The daughter has
her deep roots in India as she was born here in Delhi and has retained her Indian citizenship.
She has been schooling here for the past 12 (twelve) months and has spent equal time in both
the countries out of her first six years. Further, Nethra has her grandparents, family and relatives
here in India, unlike in the UK where she lived in a nuclear family of the three (father, mother
and herself) with no extended family and friends. Thus, it is the Indian Courts which have the
intimate contact with the minor and including the jurisdiction to decide the matter in issue.
Furthermore, Respondent 2 did not initiate any action for initial six months even after knowing
37 Anand Raghavan v. State of Delhi, 2016 SCC OnLine Del 3804
—| 395 |—
that the appellant was unwilling to return along with her daughter and until he was slapped with
a notice regarding complaint filed by the appellant before the Women Cell at Delhi in December
2015, relating to violence inflicted by him. As a counterblast to that notice Respondent 2 rushed
to the UK Court and then filed writ petition in the Delhi High Court to pressurise the appellant
to withdraw the allegations regarding violence inflicted by him.
5. To be able to fully appreciate and analyse the issues raised before this Court, it would be expedient
to first set out the factual milieu from which the present case arises.
6. The appellant has a Masters’ degree in communication and had worked in India prior to her
marriage. Respondent 2 had gone to the United Kingdom as a student in 2003 and was working
there since 2005. Admittedly, both the appellant and Respondent 2 were Indian citizens when
they contracted marriage.
7. On 30-11 -2006, the appellant and Respondent 2 were married in Chennai according to Hindu
rites and customs and was registered before the SDM Court, Chennai under the Hindu Marriage
Act. Their traditional marriage ceremony was performed in Chennai on 22-1-2007. After
marriage, the parties shifted to the UK in early 20Q7 and began living in Respondent 2’s home
in Watford (UK).
8. After marriage, disputes and differences arose between the parties. The appellant contends
that these disputes were often violent and that she was physically, mentally and psychologically
abused, a claim strenuously denied by Respondent 2. The appellant eventually got a job with an
advertising agency in London in 2008, earning close to 25,000 pounds (GBP) per annum.
9. Having conceived in and around December 2008, the appellant left the UK for Delhi in June
2009 to be with her parents. On 7-8-2009, the appellant gave birth to a girl child—Nethra, in
Delhi. Respondent 2 soon joined them in India. After the birth of their daughter, they went back
to the UK in March 2010. Subsequently in August 2010, the appellant and her daughter returned
to India after several incidents with Respondent 2.
10. After an exchange of legal correspondence between the parties, setting out the numerous
differences which had arisen in the marriage, the appellant and her daughter eventually went
back to London in December 2011, more than a year after they had come to India.
11. In January 2012, the daughter was admitted to a nursery school in the UK and attended the
same till she was old enough to attend a primary school. In September 2012, an application was
filed on behalf of the daughter for grant of UK citizenship, purportedly with the consent of both
the appellant and Respondent 2. The appellant, however, denies that she gave consent for this
application.
12. In December 2012, the daughter was granted citizenship of the UK. Soon thereafter in January
2013, Respondent 2 was also granted citizenship of the UK. Subsequently, Respondent 2
purchased another house in the UK, purportedly with the consent of the appellant, and the
parties shifted there. The appellant had acquired a driving licence in the UK around the same
time.
13. In September 2013, the daughter who was around 4 (four) years old at the time, was admitted
to a primary school in the UK (and studied there till July 2015). Respondent 2 was paying the
annual fees for the school amounting to approximately 10,000 GBP per annum.
—| 396 |—
14. Subsequently, in July 2014, the appellant returned to India owing to certain purported health
problems, and also brought her daughter along with her. Both the appellant and her daughter
went back to the UK around a month later i.e. on 6-9-2014, purportedly at the insistence of
Respondent 2.
15. From late 2014 till early 2015, the daughter took ill and was eventually diagnosed with a cardiac
disorder for which she had to undergo periodical medical reviews. According to the appellant,
she was taking care of her daughter during this period while Respondent 2 did not even bother
about the daughter’s condition, a claim vehemently contested by Respondent 2.
16. On 2-7-2015, the appellant came back to India along with her daughter because of the alleged
violent behaviour of Respondent 2. Respondent 2 asserts that soon after the appellant left for
India with their daughter, she sent an email to the school in which the daughter was enrolled,
giving the reason for her departure as “family medical reasons”. The appellant then allegedly sent
further emails to the school, first informing it that her daughter would remain in India for an
extended duration and finally, informing it that her daughter would not be coming back to the
UK due to her own well-being and safety.
17. On 16-12-2015, the appellant filed a complaint with the Crime Against Women Cell (CAWC),
New Delhi which then issued notice to Respondent 2 and his parents, asking them to appear
before it. On the date of hearing, neither Respondent 2 nor his parents appeared before the
CAWC. As a counterblast, Respondent 2 filed a custody/wardship petition on 8-1-2016 before the
High Court of Justice, Family Division, UK, seeking the return of his daughter to the jurisdiction
of the UK Court. On this petition, the High Court of Justice passed an ex parte order inter alia
directing the appellant to return the daughter to the UK and to attend the hearing at the Royal
Courts of Justice.
18. Then, on 23-1-2016, Respondent 2 filed a habeas corpus writ petition before the High Court
of Delhi, seeking to have his daughter produced before the Court. The High Court passed the
impugned judgment dated 8-7-20161, inter alia, directing the appellant to produce her daughter
and comply with the orders passed by the UK Court or handover her daughter to Respondent 2
within 3 (three) weeks from the date of the order.
19. The High Court, while ordering that the appellant mother should return to the UK with the child
and produce her before the UK Court, set out and examined the factual aspects of the case. The
High Court held that the child, having lived in the UK since the time of her birth in 2009, had
developed roots there. Further, the child was a permanent citizen of the UK and held a British
passport. The High Court also examined the wardship order passed ex parte by the High Court
of Justice, Family Division, London on 8-1-2016. In the said order, the UK Court, inter alia,
recorded that the child had been wrongfully removed from England in July 2015 and wrongly
retained in India since then. The UK Court also recorded the father’s willingness to bear the
expenses for the transport and stay of the mother and the child to the UK. The UK Court held
that it had the jurisdiction to hear the matter and directed that the child would become a ward of
the court during her minority or until further orders and that the mother would have to return
the child to England by 22-1-2016.
20. The High Court opined that in the light of the order passed by the UK Court, the mother would
not face any financial hardship and further, the order of the UK Court had attained finality due
—| 397 |—
to lapse of time. The High Court then examined the law as propounded in several judgments,
including Arathi Bandi v. Bandi Jagadrakshaka Rao38, Surya Vadanan v. State of T.N.39, Surinder
Kaur Sandhu v. Harbax Singh Sandhu40, Elizabeth Dinshaw v. ArvandM. Dinshaw41, Marggarate
Maria Pulparampil Nee Feldman v. Chacko Pulparampil42, Kuldeep Sidhu v. Chanan Singh43,
H. (Infants), In res44 sa ARuchi Majoo v. Sanjeev Majoo45. The High Court held that since the
mother had not sought custody of the child by approaching any competent Indian Court prior
to the passing of the order by the UK Court, therefore, the first, effective order/ direction had
been passed by the UK/foreign court and, applying the principle expounded in Surya Vadanan3
of comity of courts, the balance of favour would he with the UK Court. Since the child had spent
most of her life in the UK and studied there, it would be in the best interests of the child that she
be returned to the UK.
21. After analysing the principles deduced from the aforesaid judgments, the High Court was of the
opinion that:
21.1. The foreign court having the most intimate contact with the child would be better placed
to appreciate the social and cultural milieu in which the child had been brought up;
21.2. The principle of comity of courts should not be discarded except for special and compelling
reasons. Especially when interim or interlocutory orders have been passed by foreign
courts;
21.3. If a foreign court has jurisdiction to hear the matter, then an interim/ interlocutory order
passed by such court should be given due weightage and respect. If such jurisdiction is
not in doubt, then the “first strike” principle i.e. a substantive order passed by a foreign
court prior to a substantive order passed by another foreign or domestic court, becomes
applicable. Due respect and weight ought to be given to the earlier substantive order as
compared to the latter order;
21.4. A foreign court passing an interim/interlocutory order can make prima facie adjudications,
similar to a domestic court;
21.5. Merely because a parent has violated an order of a foreign court does not mean that the
parent should be penalised for the same. While the conduct of the parent may be taken
into account while passing the final order, the said conduct should not have a penalising
result;
21.6. A court may either hold an elaborate inquiry to decide whether a child should be repatriated
to a foreign country or a summary inquiry without going into the merits of the dispute,
relating to the best interests and welfare of the child. If, however, there exists a pre-existing
order of a foreign court of competent jurisdiction, then a domestic court must have special
reasons to hold an elaborate inquiry. It must consider various factors such as the nature of
38 (2013) 15 SCC 790 : (2014) 5 SCC (Civ) 475

39 (2015) 5 SCC 450 : (2015) 3 SCC (Civ) 94
40 (1984) 3 SCC 698 : 1984 SCC (Cri) 464
41 (1987) 1 SCC 42 :1987 SCC (Cri) 13
42 1969 SCC Online Ker 86 : AIR 1970 Ker 1
43 1988 SCC Online P&H 98 : AIR 1989 P&H 103
44 (1966) 1 WLR 381 :1965 H. No. 2428 : (1966) 1 All ER 886 (CA)
45 (2011) 6 SCC 479 : (2011) 3 SCC (Civ) 396 : (2011) 2 SCC (Cri) 1033 : AIR 2011 SC 1952
—| 398 |—
the interim order passed by the foreign court, the likelihood of harm caused to the child,
if any, when repatriated, the alacrity with which the parent moves the foreign court, etc.
22. The High Court essentially applied the exposition in Surya Vadanan? and held that there was
no special or compelling reason to ignore the interim order passed by the UK Court and that
the child was accustomed to and well adapted to the culture in the UK. Further, the High Court
opined that there was no force in the mother’s allegation that she was a victim of domestic
abuse since she had not made a single complaint to the authorities while she was staying with
Respondent 2 in the UK. In addition, there was no documentary evidence to support such a
claim either. Finally, the High Court rejected the contention, that the child ought to be medically
treated only in Delhi for her heart condition and not in the UK, as baseless.
23. Advocate Malavika Rajkotia, learned counsel for the appellant, first submits that the High Court
has given undue emphasis to the principle of comity of courts in complete disregard to the
paramount interests and welfare of the child. She submits that the welfare of the child is of
paramount consideration and that such consideration ought to override the need to enforce the
principle of comity of courts. There is an obvious need to protect the interests of the child and
the mother, especially in light of the fact that Respondent 2 had been physically and verbally
abusive to the appellant in the past and even put the child at risk with his behaviour. She submits
that while India is a signatory to the United Nations Child Rights Convention (UNCRC), it is
not a signatory to the Hague Convention. The UNCRC mandates that in all actions concerning
children, the best interests of the child shall be of primary concern and the child shall be
provided the opportunity to be heard. The Hague Convention is intended to prevent parents
from abducting children across borders and is governed by the principle of comity of courts.
Upholding the principle of comity of courts while disregarding the welfare of the child would
thus go against the public policy in India and result in great harm being caused to the child and
the appellant.
24. Ms Rajkotia submits that parens patriae jurisdiction of the court within whose jurisdiction the
child is located as also the welfare of the child in question must be given greater weightage as
opposed to a mechanical interpretation of the principle of comity of courts. By giving effect to the
comity of courts, the High Court has eroded its own parens patriae jurisdiction and also ignored
the welfare of the child who is located within its jurisdiction. In fact, the evolving standard, at
least as far as the USA and the UK Courts are concerned, is to give greater importance to the
welfare of the child as opposed to giving primacy to the principle of comity of courts. She has
relied upon a judgment of the United States Supreme Court in Lozano v. Montoya Alvarez46
wherein the Court, inter alia, stated that while the Hague Convention was intended to discourage
child abduction, it was not supposed to do so at the cost of the child’s interest in choosing to
remain in the jurisdiction of the country or in settling the matter.
25. Ms Rajkotia then submits that the High Court has failed to follow the established judicial trail of
opinion as set out in several judgments of this Court while deciding custody matters. She submits
that this Court has expounded that the welfare of the child is of paramount consideration and
that the Court must rest its decision based on the best interests of the child. Even in instances
where a mother has submitted to the jurisdiction of a foreign court but has subsequently fled
that country with her child after an order of the foreign court, this Court has protected the
46 2014 SCC Online US SC 62 :134 S Ct 1224 : 572 US _ (2014)
—| 399 |—
welfare of the child. In the present case, the appellant left the UK prior to any proceedings being
initiated against her, let alone any judicial order being passed. Ms Rajkotia has relied upon the
following judgments to buttress her argument: Surinder Kaur Sandhu4, Elizabeth Dinshaw5,
Sarita Sharma v. Sushil Sharma47 and V. Ravi Chandran (2)\. Union of India48.
26. Ms Rajkotia further submits that in two cases viz. Shilpa Aggarwal v. Aviral Mittal49 and most
recently in Surya Vadanan3, this Court has deviated from the established principle of putting the
welfare of the child above all other considerations. In both these cases, the Court ordered that
the child and mother return to the jurisdiction of the foreign court, despite the fact that the two
had left the foreign jurisdiction before the court had passed any order. She has taken exception
to the reasoning given in these two judgments on the ground that the decisions overlook the
parens patriae jurisdiction of the Court as also misinterpreted the concept of “intimate contact”
with the child. The “intimate contact” principle only applies in an instance where the child has
been taken to a country with an alien language, social customs, etc. It cannot be applicable where
the child returns to a country where he/she has been born and brought up in, like in the present
case. Further, the judgment in Surya Vadanan3 has the chilling effect of giving dominance to
the principle of comity of courts over the welfare of the child. The judgment, in effect, rejects the
perspective of the child and may encourage multiplicity of proceedings. This, ultimately, leads
to a mechanical application of the principle of comity of courts. This is in direct conflict with the
binding decision in V. Ravi Chandran (2)12 where a three-Judge Bench categorically held that
under no circumstances can the principle of welfare of the child be eroded and that a child can
seek refuge under the parens patriae jurisdiction of the Court.
27. Ms Rajkotia then submits that the child has been born and brought up in India. While the child
now has British citizenship, she still retains her Indian citizenship. The child was forced to return
with the mother under compelling situation emanating from domestic violence inflicted by the
father. The appellant even informed Respondent 2 that she had no desire to return to the UK, to
which there was no reply.
28. Ms Rajkotia submits that the legal action taken by Respondent 2 was nothing but a counterblast
to the appellant’s allegations of abuse and violence levelled against him. This can be discerned
from the fact that Respondent 2 initiated action before the UK Court 6 (six) months after the
appellant had left the UK and only after he learned that she had filed a complaint with the
CAWC in December 2015. The Court also needs to consider that the order of the UK Court was
passed ex parte without giving the appellant an opportunity to present her case. The intention
of Respondent 2 can be ascertained by the fact that he filed a habeas corpus petition before
the High Court, which is meant for urgent and immediate relief whereas the appellant and the
child were staying in India for more than 6 months. Clearly, there was no immediate or urgent
need necessitating the production of the child and the petition was filed as an afterthought and
litigation stratagem. The High Court should have been loath to countenance such stratagem
adopted by Respondent 2, which is bordering on abuse of the process of court.
29. Ms Rajkotia finally submits that the High Court has failed to consider certain factual
circumstances and has committed manifest error in that regard.
47 (2000) 3 SCC 14 : 2000 SCC (Cri) 568

48 (2010) 1 SCC 174: (2010) 1 SCC (Civ) 44
49 (2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192
—| 400 |—
In that, Respondent 2 was offering the appellant a paltry monthly maintenance of just 1000
GBP whereas he himself was earning 10,000 GBP per month. Even after making such offer,
Respondent 2 has not paid for the welfare or education of the child in India. Further, the High
Court has not considered the serious health issues being faced by the child while ordering her to
go back to the UK. Ms Rajkotia submits that in India, the child has access to private, specialist
healthcare whereas in the UK, the child would be constrained by the National Health Service
(NHS) which is the publicly funded national healthcare system for England. Further, the High
Court has relied on incorrect facts while passing the impugned judgment1.
30. In addition to the aforementioned cases, Ms Rajkotia has also submitted a compendium of
judgments titled “List of judgments filed on behalf of appellant”. The judgments referred to
therein have been considered by us.
31. Per contra, Advocate Prabhjit Jauhar appearing for Respondent 2 first submits that the child
was a British citizen and had been brought up in the UK. The child had been residing in the
UK and the appellant was also a permanent resident of the UK. Respondent 2 has also acquired
citizenship of the UK. Both the appellant and Respondent 2 had every intention to permanently
settle in the UK along with their child. The appellant had even signed the application/ citizenship
form of the child for British citizenship. Thus, the appellant’s submission before the High Court
that she had not given permission to apply for their child’s British citizenship is patently false.
In the emails exchanged with the child’s school, the appellant mentioned that they would be
returning to the UK. It is only much later that Respondent 2 was made aware by the school that
the appellant would not be returning to the UK. The High Court even recorded that the parties
had every intention of making the UK their home and that the child had developed roots in
the UK. Hence, the UK Courts had the closest concern and intimate contact with the child as
regards welfare and custody and would have jurisdiction in the matter.
32. Further, Mr Jauhar submits that the High Court has duly considered the factum of welfare and
interests of the child while passing the impugned judgment. While citing the judgments in
Surinder Kaur Sandhu4 and Surya Vadanan5, the High Court noted that the UK Court would
have the most intimate contact with and closest concern for the child. The child had clearly
adapted to the social and cultural milieu of the UK and it was in the best interests of the child
that she return to the UK. There was neither any material to suggest that repatriation of the child
would result in psychological, physical or cultural harm nor anything to indicate that the UK
Court was incompetent to take a decision in the interests and welfare of the child. There was no
compelling reason for the High Court to ignore the principle of comity of courts. Further,
33. Mr Jauhar then submits that Respondent 2’s bona fides can be gleaned from the fact that the
High Court directed Respondent 2 to honour his commitment of paying for accommodation
near the child’s school as well as boarding and travelling expenses of the appellant and the child.
Respondent 2 made statements before the UK Court that he would vacate his family home for
use of the appellant’s family, pay for the child’s school expenses and pay 1000 GBP per month
for incidental expenses. In fact, Respondent 2 even made a statement before the High Court that
he would not pursue any criminal proceedings against the appellant for kidnapping the child
and only wished the family to be reunited in the UK so that the child could continue with her
education. In addition to the aforesaid payments, Respondent 2 was even ready to provide a
—| 401 |—
monthly payment of 1000 GBP to the appellant and is now willing to fund the cost of litigation
borne by the appellant for custody of the child in the UK.
34. Mr Jauhar then submits that only the UK Court would have jurisdiction with regard to the
alleged acts of domestic violence levelled against Respondent 2 as the acts complained against
allegedly occurred while the parties were staying in the UK.
35. Mr Jauhar submits that there has been no delay on the part of Respondent 2 in filing the writ
petition before the High Court of Delhi. Respondent 2 became aware that the appellant was not
inclined to bring the child back to the UK only on 23-11-2015 and thereafter came to India in
December 2015. He then moved the UK Court on 8-1-2016 and filed the writ petition before the
High Court of Delhi on 23-1-2016. Thus, it can be seen that Respondent 2 did not delay filing of
proceedings.
36. Mr Jauhar finally submits that legal notices were exchanged between the parties from 24-12-2010
till 7-6-2011, after which the appellant and the daughter came back to the UK on 11-12-2011
and the parties stayed together till 2-7-2015. Thus, on applying the principle of condonation all
the allegations made in the aforesaid legal notices stood condoned and the fact that these notices
were exchanged in 2010-2011 are of no relevance and do not take away the jurisdiction of the
foreign court.
37. In support of his arguments, Mr Jauhar has cited several cases which have been placed before
this Court in the form of a “List of judgments on habeas corpus”. The same have been taken on
record and duly considered.
38. We have cogitated over the submissions made by the counsel for both the sides and also the
judicial precedents pressed into service by them. The principal argument of the respondent
husband revolves around the necessity to comply with the direction issued by the foreign court
against the appellant wife to produce their daughter before the UK Court where the issue
regarding wardship is pending for consideration and which Court alone can adjudicate that
issue. The argument proceeds that the principle of comity of courts must be respected, as rightly
applied by the High Court in the present case.
39. We must remind ourselves of the settled legal position that the concept of forum convenience
has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as
applicable to India in respect of child custody matters has been succinctly delineated in several
decisions of this Court. We may usefully refer to the decision in Dhanwanti Joshi v. Madhav
Unde50. In paras 28 to 30,32 and 33 of the reported decision, the Court observed thus: (SCC pp.
124-27)
“28. The leading case in this behalf is the one rendered by the Privy Council in 1951,
in McKee v. McKee51. In that case, the parties, who were American citizens, were
married in USA in 1933 and lived there till December 1946. But they had separated
in December 1940. On 17-12-1941,a decree of divorce waspassedinUSA and custody
of the child was given to the father and later varied in favour of the mother. At that
stage, the father took away the child to Canada. In habeas corpus proceedings by the
mother, though initially the decisions of lower courts went against her, the Supreme
50 (1998)1 SCC 112
51 1951 AC 352 (PC)
—| 402 |—
Court of Canada gave her custody but the said Court held that the father could not
have the question of custody retried in Canada once the question was adjudicated in
favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds
held that in proceedings relating to custody before the Canadian Court, the welfare
and happiness of the infant was of paramount consideration and the order of a foreign
court in USA as to his custody can be given due weight in the circumstances of the
case, but such an order of a foreign court was only one of the facts which must be taken
into consideration. It was further held that it was the duty of the Canadian Court to
form an independent judgment on the merits of the matter in regard to the welfare of
the child. The order of the foreign court in US would yield to the welfare of the child.
“Comity of courts demanded not its enforcement, but its grave consideration.” This
case arising from Canada which lays down the law for Canada and UK has been
consistently followed in latter cases. This view was reiterated by the House of Lords in
/. v. C.52 This is the law also in USA (see 24 American Jurisprudence, para 1001) and
Australia. (See Khamis v. Khamis53.)
29. However, there is an apparent contradiction between the above view and the one
expressed in H. (Infants), In res8 and in E. (An Infant)54, to the effect that the court in
the country to which the child is removed will send back the child to the country from
which the child has been removed. This apparent conflict was explained and resolved
by the Court of Appeal in 1974 in L. (Minors) (Wardship : Jurisdiction)55 and in R.
(Minors) (Wardship : Jurisdiction)56. It was held by the Court of Appeal in L., In re19
that the view in McKee v. McKee15 is still the correct view and that the limited question
which arose in the latter decisions was whether the court in the country to which the
child was removed could conduct (a) a summary inquiry, or (b) an elaborate inquiry
on the question of custody. In the case of (a) a summary inquiry, the court would return
custody to the country from which the child was removed unless such return could be
shown to be harmful to the child. In the case of (b) an elaborate inquiry, the court could
go into the merits as to where the permanent welfare lay and ignore the order of the
foreign court or treat the fact of removal of the child from another country as only one
of the circumstances. The crucial question as to whether the Court (in the country to
which the child is removed) would exercise the summary or elaborate procedure is to be
determined according to the child’s welfare. The * summary jurisdiction* to return the
child is invoked, for example,.if the child had been removed from its native land and
removed to another country where, maybe, his native language is not spoken, or the child
gets divorced from the social customs and contacts to which he has been accustomed,
or if its education in his native land is interrupted and the child is being subjected to a
foreign system of. education —for these are all acts which could psychologically disturb
the child. Again the summary jurisdiction is exercised only if the court to which the
child has been removed is moved promptly and quickly, for in that event, the Judge
may well be persuaded that it would be better for the child that those merits should be
investigated in a court in his native country on the expectation that an eatly decision
52 1970 AC 668 : (1969) 2 WLR 540 (HL)
53 (1978) 4 Fam LR 410 (Full Court, Australia)
54 E. (An Infant), In re, 1967 Ch 761 : (1967) 2 WLR 1370 (CA)
55 L (Minors) (Wardship : Jurisdiction), In re, (1974) 1 WLR 250 (CA)
56 R. (Minors) (Wardship : Jurisdiction), In re, (1981) 2 Fam LR 416 (CA) 15 1951 AC 352 (PC)
—| 403 |—
in the native country could be in the interests of the child before the child could develop
roots in the country to which he had been removed. Alternatively, the said court might
think of conducting an *elaborate inquiry* on merits and have regard to the other facts
of the case and the time that has lapsed after the removal of the child and consider
if it would be in the interests of the child not to have it returned to the country from
which it had been removed. In that event, the unauthorised removal of the child from
the native country would not come in the way of the court in the country to which the
child has been removed, to ignore the removal and independently consider whether the
sending back of the child to its native country would be in the paramount interests of
the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family Law,
7th Edn., 1987.) In R. (Minors) (Wardship : Jurisdiction)20, it has been firmly held
that the concept of forum convenience has no place in wardship jurisdiction.
30. We may here state that this Court in Elizabeth Dinshaw v. Arvind M. Dinshaw5, while
dealing with a child removed by the father from USA contrary to the custody orders
of the US Court directed that the child be sent back to USA to the mother not only
because of the principle of comity but also because, on facts—which were independently
considered—it was in the interests of the child to be sent back to the native State. There
the removal of the child by the father and the mother’s application in India were within
six months. In that context, this Court referred to H. (Infants), In re* which case, as
pointed out by us above has been explained in L., In re19 as a case where the Court
thought it fit to exercise its summary jurisdiction in the interests of the child. Be that
as it may, the general principles laid down in McKee v. McKee15 and J. v. C.16 and the
distinction between summary and elaborate inquiries as stated in L (Minors), In re19,
are today well settled in UK, Canada, Australia and the USA. The same principles
apply in our country. Therefore nothing precludes the Indian courts from considering
the question on merits, having regard to the delay from 1984 —even assuming that the
earlier orders passed in India do not operate as constructive res judicata.
32. In this connection, it is necessary to refer to the Hague Convention of 1980 on “Civil
Aspects of International Child Abduction”. As of today, about 45 countries are parties
to this Convention. India is not yet a signatory. Under the Convention, any child below
16 years who had been “wrongfully” removed or retained in another contracting State,
could be returned back to the country from which the child had been removed, by
application to a central authority. Under Article 16 of the Convention, if in the process,
the issue goes before a court, the Convention prohibits the court from going into the
merits of the welfare of the child. Article 12 requires the child to be sent back, but if
a period of more than one year has lapsed from the date of removal to the date of
commencement of the proceedings before the court, the child would still be returned
unless it is demonstrated that the child is now settled in its new environment. Article
12 is subject to Article 13 and a return could be refused if it would expose the child to
physical or psychological harm or otherwise place the child in an intolerable position
or if the child is quite mature and objects to its return. In England, these aspects are
covered by the Child Abduction and Custody Act, 1985.
—| 404 |—
33. So far as non-Convention countries are concerned, or where the removal related to a
period before adopting the Convention, the law is that the court in the country to which
the child is removed will consider the question on merits bearing the welfare of the child
as of paramount importance and consider the order of the foreign court as only a factor
to be taken into consideration as stated in McKee v. McKee15 unless the Court thinks it
fit to exercise summary jurisdiction in the interests of the child and its prompt return is
for its welfare, as explained in L, In re19. As recently as 1996-1997, it has been held in
P. (A Minor) (Child Abduction: Non- Convention Country), In re57 by Ward, L.J. [1996
Current Law Year Book, pp. 165-166] that in deciding whether to order the return of a
child who has been abducted from his or her country of habitual residence—which was
not a party to the Hague Convention, 1980—the courts’ overriding consideration must
be the child’s welfare. There is no need for the Judge to attempt to apply the provisions
of Article 13 of the Convention by ordering the child’s return unless a grave risk of
harm was established. See also A. (A Minor) (Abduction: Non-Convention Country),
In re58 [by Ward, LJ. (quoted in Current Law, August 1997, p. 13]. This answers the
contention relating to removal of the child from USA.” (emphasis supplied)
40. The Court has noted that India is not yet a signatory to the Hague Convention of 1980 on “Civil
Aspects of International Child Abduction”. As regards the non-Convention countries, the law is
that the court in the country to which the child has been removed must consider the question
on merits bearing the welfare of the child as of paramount importance and reckon the order
of the foreign court as only a factor to be taken into consideration, unless the court thinks it
fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its
welfare. In exercise of summary jurisdiction, the court must be satisfied and of the opinion that
the proceeding instituted before it was in close proximity and filed promptly after the child was
removed from his/ her native state and brought within its territorial jurisdiction, the child has
not gained roots here and further that it will be in the child’s welfare to return to his native state
because of the difference in language spoken or social customs and contacts to which he/she has
been accustomed or such other tangible reasons. In such a case the court need not resort to an
elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to
the foreign court by directing return of the child. Be it noted that in exceptional cases the court
can still refuse to issue direction to return the child to the native state and more particularly in
spite of a pre-existing order of the foreign court in that behalf, if it is satisfied that the child’s
return may expose him to a grave risk of harm. This means that the courts in India, within
whose jurisdiction the minor has been brought must “ordinarily” consider the question on
merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning
the pre¬existing order of the foreign court if any as only one of the factors and not get fixated
therewith. In either situation—be it a summary inquiry or an elaborate inquiry—the welfare
of the child is of paramount consideration. Thus, while examining the issue the courts in India
are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied
that the child is now settled in its new environment or if it would expose the child to physical
or psychological harm or otherwise place the child in an intolerable position or if the child is
quite mature and objects to its return. We are in respectful agreement with the aforementioned
exposition.
57 1947 Fam 45 : (1997) 2 WLR 223 (CA)
58 The Times, 3-7-1997 (CA)
—| 405 |—
41. Notably, the aforementioned exposition has been quoted with approval by a three-Judge Bench
of this Court in V. Ravi Chandran (2)12 as can be discerned from para 27 of the reported
decision. In that case, after extracting paras 28 to 30 of the decision in Dhanwanti Joshi case14,
the three-Judge Bench observed thus: [V. Ravi Chandran (2) case12, SCC p. 194]
“27. ... However, in view of the fact that the child had lived with his mother in India for
nearly twelve years, this Court held that it would not exercise a summary jurisdiction
to return the child to the United States of America on the ground that its removal from
USA in 1984 was contrary to the rders of US courts. It was also held that whenever a
question arises before a court pertaining to the custody of a minor child, the matter is-
to be decided not on considerations of the legal rights of the parties but on the sole and
predominant criterion of what would best serve the interest of the minor.” ( e mphasi s
supplied)
Again in paras 29 and 30, the three-Judge Bench observed thus: (SCC pp. 195-96)
“29. While dealing with a case of custody of a child removed by a parent from one country
to another in contravention of the orders of the court where the parties had set up their
matrimonial home, the court in the country to which the child has been removed must
first consider the question whether the court could conduct an elaborate enquiry on the
question of custody or by dealing with the matter summarily order a parent to return
custody of the child to the country from which the child was removed and all aspects
relating to the child’s welfare be investigated in a court in his own country. Should the
court take a view that an elaborate enquiry is necessary, obviously the court is bound
to consider the welfare and happiness of the child as the paramount consideration and
go into all relevant aspects of welfare of the child including stability and security, loving
and understanding care and guidance and full development of the child’s character,
personality and talents. While doing so, the order of a foreign court as to his custody
may be given due weight; the weight and persuasive effect of a foreign judgment must
depend on the circumstances of each case.
30. However, in a case where the court decides to exercise its jurisdiction summarily to
return the child to his own country, keeping in view the jurisdiction of the court in the
native country which has the closest concern and the most intimate contact with the
issues arising in the case, the court may leave the aspects relating to the welfare of the
child to be investigated by the court in his own native country as that could be in the
best interests of the child. The indication given in McKee v. McKee15 that there may be
cases in which it is proper for a court in one jurisdiction to make an order directing
that a child be returned to a foreign jurisdiction without investigating the merits of
the dispute relating to the care of the child on the ground that such an order is in the
best interests of the child has been explained in L. (Minors), In re19 and the said view
has been approved by this Court in Dhanwanti Joshi14. Similar view taken by the
Court of Appeal in H. (Infants), In re* has been approved by this Court in Elizabeth
Dinshaw5.” (emphasis supplied)
42. The consistent view of this Court is that if the child has been brought within India, the courts
in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of
—| 406 |—
custody. In the case of a summary inquiry, the court may deem it fit to order return of the child
to the country from where he/she was removed unless such return is shown to be harmful to the
child. In other words, even in the matter of a summary inquiry, it is open to the court to decline
the relief of return of the child to the country from where he/she was removed irrespective of
a pre-existing order of return of the child by a foreign court. In an elaborate inquiry, the court
is obliged to examine the merits as to where the paramount interests and welfare of the child
lay and reckon the fact of a pre-existing order of the foreign court for return of the child as
only one of the circumstances. In either case, the crucial question to be considered by the court
(in the country to which the child is removed) is to answer the issue according to the child’s
welfare. That has to be done bearing in mind the totality of facts and circumstances of each case
independently. Even on close scrutiny of the several decisions pressed before us, we do not find
any contra view in this behalf. To put it differently, the principle of comity of courts cannot be
given primacy or more weightage for deciding the matter of custody or for return of the child to
the native State.
43. The respondent husband has placed emphasis on four decisions of this Court in V. Ravi Chandran
(2)12, Shilpa Aggarwal13, Arathi Bandi2 and Surya Vadanan3. We shall deal with those decisions
a little later.
44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production
and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling59,
has held that habeas corpus was essentially a procedural writ dealing with machinery of justice.
The object underlying the writ was to secure the release of a person who is illegally deprived of
his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to
have another in unlawful custody, requiring him to produce the body of such person before the
court. On production of the person before the court, the circumstances in which the custody of
the person concerned has been detained can be inquired into by the court and upon due inquiry
into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper.
The High Court in such proceedings conducts an inquiry for immediate determination of the
right of the person’s freedom and his release when the detention is found to be unlawful.
45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child,
this Court in Sayed Saleemuddin v. Rukhsana60, has held that the principal duty of the court is to
ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child
requires that his present custody should be changed and the child be handed over to the care
and custody of any other person. While doing so, the paramount consideration must be about
the welfare of the child. In Elizabeth5, it is held that in such cases the matter must be decided not
by reference to the legal rights of the parties but on the sole and predominant criterion of what
would best serve the interests and welfare of the minor. The role of the High Court in examining
the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction,
as the minor is within the jurisdiction of the Court [see Paul Mohinder Gahun v. State (NCT
of Delhi)61 relied upon by the appellant]. It is not necessary to multiply the authorities on this
proposition.
59 (1973) 2 SCC 674 :1973 SCC (Cri) 980

60 (2001) 5 SCC 247 : 2001 SCC (Cri) 841 -
61 2004 SCC OnLine Del 699 : (2004) 113 DLT 823
—| 407 |—
46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning
a minor child, in a given case, may direct return of the child or decline to change the custody of
the child keeping in mind all the attending facts and circumstances including the settled legal
position referred to above. Once again, we may hasten to add that the decision of the court, in
each case, must depend on the totality of the facts and circumstances of the case brought before
it whilst considering the welfare of the child which is of paramount consideration. The order of
the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas
corpus cannot be used for mere enforcement of the directions given by the foreign court against
a person within its jurisdiction and convert that jurisdiction into that of an executing court.
Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in
law for enforcement of the order passed by the foreign court or to resort to any other proceedings
as may be permissible in law before the Indian Court for the custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether
the minor is in lawful or unlawful custody of another person (private respondent named in
the writ petition). For considering that issue, in a case such as the present one, it is enough to
note that the private respondent was none other than the natural guardian of the minor being
her biological mother. Once that fact is ascertained, it can be presumed that the custody of the
minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody
of the minor (girl child) may be ordered to be taken away from her mother for being given to any
other person including the husband (father of the child), in exercise of writ jurisdiction. Instead,
the other parent can be asked to resort to a substantive prescribed remedy for getting custody of
the child.
48. The next question to be considered by the High Court would be whether an order passed by the
foreign court, directing the mother to produce the child before it, would render the custody of
the minor unlawful? Indubitably, merely because such an order is passed by the foreign court,
the custody of the minor would not become unlawful per se. As in the present case, the order
passed by the High Court of Justice, Family Division, London on 8-1 -2016 for obtaining a
wardship order, reads thus: (Anand Raghavan case1, SCC OnLine Del para 59)
“59 ‘Order made by His Honour Judge Richards sitting as a Deputy High Court Judge
sitting at the Royal Courts of Justice, Strand, London WC2A 2LL in Chambers on 8-1-
2016 IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF
THE SENIOR COURTS ACT, 1981 The child is Nethra Anand (a girl, born 7-8-2009)
AFTER HEARING Counsel Paul Hepher, on behalf of the applicant father. AFTER
consideration of the documents lodged by the applicant. IMPORTANT WARNING TO
NITHYA ANAND RAGHAVAN If you NITHYA ANAND RAGHAVAN disobey this
order you may be held to be in contempt of court and may be imprisoned, fined or have
your assets seized.
If any other person who knows of this order and does anything which helps or permits
you NITHYA ANAND RAGHAVAN to breach the terms of this order they may be held
to be in contempt of court and may be imprisoned, fined or have their assets seized.
You have the following legal rights:
—| 408 |—
(a) to seek legal advice. This right does not entitle you to disobey any part of this order
until you have sought legal advice;
(b) to require the applicant’s solicitors, namely, Dawson Cornwell, 15 Red Lion Square,
London WC1R 4QT, Tel. 020 7242 2556 to provide you with a copy of any application
form(s), statement(s), note of the hearing;
(c) to apply, whether by counsel or solicitor or in person, to Judge of the Family Court
assigned to hearing urgent applications at the Royal Courts of Justice, Strand, London,
if practicable after giving notice to the applicant’s solicitors and to the court, for an
order discharging or varying any part of this order. This right does not entitle you to
disobey any part of this order until your application has been heard;
d) if you do not speak or understand English adequately, to have an interpreter present in
court at public expense in order to assist you at the hearing of any application relating
to this order.
The parties
1. The applicant is ANAND RAGHAVAN represented by Dawson Cornwell, Solicitor.
The respondent is NITHYA ANAND RAGHAVAN.
Recitals
2. This order was made at a hearing without notice to the respondent. The reason why the
order was made without notice to the respondent is because she left England and Wales
on or about 2-7-2015 and notice may lead her to take steps to defeat the purpose of the
application and fail to return the child.
3. The Judge read the following documents:
(a) Position statement,
(b) C67 application and CIA form,
(c) Statement of Anand Raghavan with exhibits dated 8-1-2016.
4. The court was satisfied on a provisional basis of the evidence filed that
(a) NETHRA ANAND (a girl born on 7-8-2009) was on 2-7-2015 habitually
resident in the jurisdiction of England and Wales.
(b) NETHRA ANAND (a girl born on 7-8-2009) was wrongfully removed from
England on 2-7-2015 and been wrongfully retained in India since.
(c) The courts of England and Wales have jurisdiction in matters of parental
responsibility over the child pursuant to Articles 8 and 10 of BUR.
5. The father has agreed to pay for the cost of the flights for the mother and child in
returning from India to England. He will either purchase the tickets for the mother and
child himself, or put her in funds, or invite her to purchase the tickets on his credit card,
as she may wish, in order for her to purchase the tickets herself.
Undertakings to the court by the solicitor for the applicant
—| 409 |—
6. The solicitors for the applicant undertake:

(a) to issue these proceedings forthwith and in any event by no later than 4 p.m. 11-
1-2016;
(b) To pay the ex parte application fee forthwith and in any event by no later than 4
p.m. 11-1-2016;
AND NOW THEREFORE THIS HONOURABLE COURT RESPECTFULLY REQUESTS:
7. Any person not within the jurisdiction of this Court who is in a position to do so to
cooperate in assisting and securing the immediate return to England and Wales of the
ward NETHRA ANAND (a girl born on 7-8-2009) IT IS ORDERED THAT:
8. NETHRA ANAND (a girl born on 7-8-2009) is and shall remain a ward of this Court
during the minority or until further order.
9. The respondent mother shall return or cause the return of NETHRA ANAND (a girl
born on 7-8-2009) forthwith to England and Wales, and in any event no later than
23.59 on 22-1-2016.
10. Every person within the jurisdiction of this Honourable Court who is in a position to
do so shall cooperate in assisting and securing the immediate return to England and
Wales of NETHRA ANAND (a girl born on 7-8-2009) a ward of this Court.
11. The applicant’s solicitor shall fax copies of this order to the Office of the Head of
International, Family Justice at the Royal Courts of Justice, the Strand, London WC2A
2LL (DX4550 Strand RCJ: fax 02079476408); and (if appropriate) to the Head of the
Consular Division, Foreign and Commonwealth Office Spring Gardens London SW1A
2PA, Tel: 02070080212, Fax 02070080152.
12. The matter shall be listed for directions at 10:30 a.m. on 29-1-2016 at the Royal Courts
of Justice, the Strand, London WC2A 2LL, with a time estimate of 30 minutes, when
the Court shall consider what further orders shall be made. The Court may consider
making declarations in the terms of Para 4 above.
13. The respondent mother shall attend at the hearing listed pursuant to the preceding
paragraph, together with solicitors or counsel if so instructed.
She shall file and serve by 4 p.m. 27-1-2016 a short statement responding to the application.
14. This order may be served on the respondent, outside of the jurisdiction of England and
Wales as may be required, by way of fax, email or personally in order for the Court to
deem that it constitutes good service.
15. Costs reserved.
Dated 8-1-2016.”’
49. On a bare perusal of this order, it is noticed that it is an ex parte order passed against the
mother after recording prima facie satisfaction that the minor Nethra Anand (a girl born on
7-8-2009) was as on 2-7-2015, habitually resident in the jurisdiction of England and Wales and
was wrongfully removed from England on 2-7-2015 and has been wrongfully retained in India
—| 410 |—
since then. Further, the Courts of England and Wales have jurisdiction in the matters of parental
responsibility over the child pursuant to Articles 8 and 10 of BUR. For which reason, it has been
ordered that the minor shall remain a ward of that Court during her minority or until further
order; and the mother (appellant herein) shall return or cause the return of the minor forthwith
to England and Wales in any event not later than 22-1-2016. Indeed, this order has not been
challenged by the appellant so far nor has the appellant applied for modification thereof before
the court concerned (foreign court). Even on a fair reading of this order, it is not possible to hold
that the custody of the minor with her mother has been declared to be unlawful. At best, the
appellant may have violated the direction to return the minor to England, who has been ordered
to be a ward of the court during her minority and further order. No finding has been rendered
that till the minor returns to England, the custody of the minor with the mother has become or
will be treated as unlawful including for the purposes of considering a petition for issuance of
writ of habeas corpus. We may not be understood to have said that such a finding is permissible
in law. We hold that the custody of the minor with the appellant, being her biological mother,
will have to be presumed to be lawful.
50. The High Court in such a situation may then examine whether the return of the minor to his/
her native state would be in the interests of the minor or would be harmful. While doing so, the
High Court would be well within its jurisdiction if satisfied, that having regard to the totality
of the facts and circumstances, it would be in the interests and welfare of the minor child to
decline return of the child to the country from where he/she had been removed; then such an
order must be passed without being fixated with the factum of an order of the foreign court
directing return of the child within the stipulated time, since the order of the foreign court must
yield to the welfare of the child. For answering this issue, there can be no straitjacket formulae
or mathematical exactitude. Nor can the fact that the other parent had already approached the
foreign court or was successful in getting an order from the foreign court for production of the
child, be a decisive factor. Similarly, the parent having custody of the minor has not resorted
to any substantive proceeding for custody of the child, cannot whittle down the overarching
principle of the best interests and welfare of the child to be considered by the Court. That ought
to be the paramount consideration.
51. For considering the factum of interests of the child, the court must take into account all the
attending circumstances and totality of the situation. That will have to be decided on case to
case basis. In the present case, we find that the father as well as mother of the child are of Indian
origin. They were married in Chennai in India according to Hindu rites and customs. The father,
an Indian citizen, had gone to the UK as a student in 2003 and was working there since 2005.
After the marriage, the couple shifted to the UK in early 2007 and stayed in Watford. The mother
did get an employment in London in 2008, but had to come to her parents’ house in Delhi in
June 2009, where she gave birth to Nethra. Thus, Nethra is an Indian citizen by birth. She has not
given up her Indian citizenship. Indeed, the mother, along with Nethra, returned to the UK in
March 2010. But from August 2010 till December 2011, because of matrimonial issues between
the appellant and Respondent 2, the appellant and her daughter remained in India. It is only
after the intervention of and mediation by the family members, the appellant and her daughter
Nethra went back to England in December 2011, more than a year after they had come to India.
After returning to the UK, Nethra was admitted to a nursery school in January 2012.
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52. An application for grant of UK citizenship was made on behalf of Nethra in September 2012
which was subsequently granted in December 2012. The father (Respondent 2) then acquired
the citizenship of the UK in January 2013. After grant of citizenship of the UK, Nethra was
admitted to a primary school in the UK in September 2013 and studied there only till July
2015. Since Nethra had acquired British citizenship, the UK Court could exercise jurisdiction in
respect of her custody issues.
53. Significantly, till Nethra returned to India along with her mother on 2-7-2015, no proceeding
of any nature came to be filed in the UK Court, either in relation to the matrimonial dispute
between the appellant and Respondent 2 or for the custody of Nethra. Further, Nethra is staying
in India along with the appellant, her grandparents and other family members and relatives,
unlike in the UK where she lived in a nuclear family of the three with no extended family.
She has been schooling here for the past over one year and has spent equal time in both the
countries out of the first six years. She would be more comfortable and feel secured to live with
her mother here, who can provide her love, understanding, care and guidance for her complete
development of character, personality and talents. Being a girl child, the guardianship of the
mother is of utmost significance. Ordinarily, the custody of a “girl” child who is around seven
years of age, must ideally be with her mother unless there are circumstances to indicate that it
would be harmful to the girl child to remain in custody of her mother [see Sarita Sharma11,
para 6]. No such material or evidence is forthcoming in the present case except the fact that the
appellant (mother) has violated the order of the UK Court directing her to return the child to
the UK before the stipulated date.
54. Admittedly, when Nethra was in the UK, no restraint order was issued by any court or authority
in the UK in that behalf. She had travelled along with her mother from the UK to India on
official documents. It is a different matter that Respondent 2 alleges that he was not informed
before Nethra was removed from the UK and brought to India by his wife (appellant herein).
55. It is common ground that Nethra is suffering from cardiac disorder and needs periodical medical
reviews and proper care and attention. That can be given only by her mother. Respondent 2
(father) is employed and may not be in a position to give complete attention to his daughter.
There is force in the stand taken by the appellant that if Nethra returns to the UK, she may not be
able to get meaningful access to provide proper care and attention. Further, she has no intention
to visit the UK.
56. Admittedly, the appellant has acquired the status of only a permanent resident of the UK, as
she was staying with Respondent 2 who is gainfully employed there. The appellant has alleged
and has produced material in support of her case that during her stay with Respondent 2 in
the UK, she was subjected to physical violence and mental torture. She has also alleged that if
she goes back to the UK, she may suffer the same ignominy. Further, the proceeding in the UK
Court instituted by the husband is a counterblast to the complaint filed by her in Delhi about
the violence inflicted on her by the husband and bis family members. Indeed, Respondent 2 has
vehemently denied and rebutted these allegations. It is not necessary for us to adjudicate these
disputed questions of facts.
57. Suffice it to observe that taking the totality of the facts and circumstances into account, it would
be in the interests of Nethra to remain in custody of her mother and it would cause harm to her
—| 412 |—
if she returns to the UK. That does not mean that the appellant must disregard the proceedings
pending in the UK Court against her or for custody of Nethra, as the case may be. So long as that
court has jurisdiction to adjudicate those matters, to do complete justice between the parties we
may prefer to mould the reliefs to facilitate the appellant to participate in the proceedings before
the UK Court which she can do through her solicitors to be appointed to espouse her cause before
that court. In the concluding part of this judgment, we will indicate the modalities to enable
the appellant to take recourse to such an option or any other remedy as may be permissible in
law. We say so because the present appeal arises from a writ petition filed by Respondent 2 for
issuance of a writ of habeas corpus and not to decide the issue of grant or non-grant of custody
of the minor as such. In a substantive proceeding for custody of the minor before the court of
competent jurisdiction including in India if permissible, all aspects will have to be considered
on their own merit without being influenced by any observations in this judgment.
58. As aforesaid, Respondent 2 has heavily relied on four decisions of this Court. The case of V.
Ravi Chandran (2)12 also arose from a writ of habeas corpus for production of minor son and
not from the substantive proceedings for custody of the minor by the father. The minor was in
custody of his mother. It was a case of custody of a “male” child born in the US and an American
citizen by birth, who was around 8 years of age when he was removed by the mother from the
United States of America (USA) in spite of a consent order governing the issue of custody and
guardianship of the minor passed by the competent court, namely, the New York State Supreme
Court. The minor was given in joint custody to the parents and a restraint order was operating
against the mother when the child was removed from the USA surreptitiously and brought to
India. Before being removed from the USA, the minor had spent his initial years there. These
factors weighed against the mother, as can be discerned from the discussion in paras 32 to 38
of the reported judgment. This Court, therefore, chose to exercise summary jurisdiction in the
interests of the child. The Court directed the mother to return the child “Aditiya” on her own
to the USA within the stipulated time. In the present case, the minor is a “girl” child who was
born in India and is a citizen of India by birth. She has not given up her citizenship of India. It
is a different matter that she later acquired citizenship of the UK. We have already indicated the
reasons in the preceding paragraph, which would distinguish the facts from the case relied upon
by Respondent 2 and under consideration.
59. As regards the case of Shilpa Aggarwal13, the minor (girl child) was born in England having
British citizenship, who was only three-and-a-half years of age. The parents had also acquired the
status of permanent residents of the UK. The UK Court had not passed any order to separate the
child from the mother until the final decision was taken with regard to the custody of the child,
as in this case. This Court recorded its satisfaction on the basis of the facts and circumstances
of the case before it that in the interests of the minor child, it would be proper to return the
child to the UK and then applied the doctrine of comity of courts. Further, the Court was of
the opinion that the issue regarding custody of the child should be decided by the foreign court
from whose jurisdiction the child was removed and brought to India. This decision has been
rendered after a summary inquiry on the facts of that case. It will be of no avail to Respondent 2.
It does not whittle down the principle expounded in Dhanwanti Joshi14, the duty of the court to
consider the overarching welfare of the child. Be it noted, the predominant criterion of the best
interests and welfare of the minor outweighs or offsets the principle of comity of courts. In the
present case, the minor is born in India and is an Indian citizen by birth. When she was removed
—| 413 |—
from the UK, no doubt she had, by then, acquired UK citizenship, yet for the reasons indicated
hitherto dissuade us to direct return of the child to the country from where she was removed.
60. In Arathi Bandi2 also, the male child was born in the USA and had acquired citizenship by birth
there. The child was removed from the USA by the mother in spite of a restraint order and a red
corner notice operating against her issued by the court of competent jurisdiction in the USA.
The Court, therefore, held that the matter on hand was squarely covered by facts as in V. Ravi
Chandran (2)12. More importantly, as noted in para 42 of the reported decision the mother (the
wife of the writ petitioner) had expressed her intention to return to the USA and live with the
husband. However, the husband was not prepared to cohabit with her. In the present case, the
situation is distinguishable as alluded to earlier.
61. In Surya Vadanan3, the minor girls were again British citizens by birth. The elder daughter
was 10 years of age and the younger daughter was around 6 years of age. They lived in the
UK throughout their lives. In a petition for issuance of a writ of habeas corpus, the Court
directed return of the girls to the UK also because of the order passed by the court of competent
jurisdiction in the UK to produce the girls before that Court. The husband had succeeded in
getting that order even before any formal order could be passed on the petition filed by the wife
in Coimbatore Court seeking a divorce from the appellant husband. That order was followed
by another order of the UK Court giving peremptory direction to the wife to produce the two
daughters before the UK Court. A penal notice was also issued to the wife. The husband then
invoked the jurisdiction of the Madras High Court for issuance of a writ of habeas corpus on the
ground that the wife had illegal custody of the two daughters of the couple and that they may be
ordered to be produced in the Court and to pass appropriate direction thereafter. The said relief
was granted by this Court. After the discussion of law in paras 46 to 56 of the reported decision,
on the basis of precedents adverted to in the earlier part of the judgment, in para 56 the Court
opined as under: (Surya case3, SCC p. 474)
“56. However, if there is a pre-existing order of a foreign court of competent jurisdiction
and the domestic court decides to conduct an elaborate inquiry (as against a summary
inquiry), it must have special reasons to do so. An elaborate inquiry should not be
ordered as a matter of course. While deciding whether a summary or an elaborate
inquiry should be conducted, the domestic court must take into consideration:
(a) The nature and effect of the interim or interlocutory order passed by the foreign
court.
(b) The existence of special reasons for repatriating or not repatriating the child to
the jurisdiction of the foreign court.
(c) The repatriation of the child does not cause any moral or physical or social or
cultural or psychological harm to the child, nor should it cause any legal harm to
the parent with whom the child is in India. There are instances where the order
of the foreign court may result in the arrest of the parent on his or her return to
the foreign country.2 In such cases, the domestic court is also obliged to ensure
the physical safety of the parent.
(d) The alacrity with which the parent moves the foreign court concerned or the
domestic court concerned, is also relevant. If the time gap is unusually large and
—| 414 |—
is not reasonably explainable and the child has developed firm roots in India, the
domestic court may be well advised to conduct an elaborate inquiry.”
62. As regards clauses (a) to (c) above, the same, in our view, with due respect, tend to drift away
from the exposition in Dhanwanti Joshi case14, which has been quoted with approval by a three-
Judge Bench of this Court in V. Ravi Chandran (2)12. In that, the nature of inquiry suggested
therein inevitably recognises giving primacy to the order of the foreign court on the issue of
custody of the minor. That has been explicitly negated in Dhanwanti Joshi case14. For, whether
it is a case of a summary inquiry or an elaborate inquiry, the paramount consideration is the
interests and welfare of the child. Further, a pre-existing order of a foreign court can be reckoned
only as one of the factor to be taken into consideration. We have elaborated on this aspect in the
earlier part of this judgment.
63. As regards the fourth factor noted in clause (d) of para 56, Surya Vadanan case3, we respectfully
disagree with the same. The first part gives weightage to the “first strike” principle. As noted
earlier, it is not relevant as to which party first approached the court or so to say “first strike”
referred to in para 52 of the judgment. Even the analogy given in para 54 regarding extrapolating
that principle to the courts in India, if an order is passed by the Indian Court is inapposite. For,
the Indian Courts are strictly governed by the provisions of the Guardians and Wards Act, 1890,
as applicable to the issue of custody of the minor within its jurisdiction.
64. Section 14 of the said Act plainly deals with that aspect. The same reads thus:
“14. Simultaneous proceedings in different courts.—(1) If proceedings for the appointment
or declaration of a guardian of a minor are taken in more courts than one, each of
those courts shall, on being apprised of the proceedings in the other court or courts, stay
the proceedings before itself.
(2) If the courts are both or all subordinate to the same High Court, they shall report
the case to the High Court, and the High Court shall determine in which of
the courts the proceedings with respect to the appointment or declaration of a
guardian of the minor shall be had.
(3) In any other case in which proceedings are stayed under sub-section (1), the
courts shall report the case to, and be guided by such orders as they may receive
from, their respective State Governments.”
65. Similarly, the principle underlying Section 10 of the Code of Civil Procedure, 1908 can be
invoked to govern that situation. The Explanation clarifies the position even better. The same
reads thus:
“10. Stay of suit.—No court shall proceed with the trial of any suit in which the matter in
issue is also directly and substantially in issue in a previously instituted suit between
the same parties, or between parties under whom they or any of them claim litigating
under the same title where such suit is pending in the same or any other court in India
having jurisdiction to grant the relief claimed, or in any court beyond the limits of India
established or continued by the Central Government and having like jurisdiction, or
before the Supreme Court.
—| 415 |—
Explanation.—The pendency of a suit in a foreign court does not preclude the courts in
India from trying a suit founded on the same cause of action.” (emphasi s
supplied)
66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine
and whittle down the wholesome principle of the duty of the court having jurisdiction to
consider the best interests and welfare of the child, which is of paramount importance. If the
Court is convinced in that regard, the fact that there is already an order passed by a foreign
court in existence may not be so significant as it must yield to the welfare of the child. That is
only one of the factors to be taken into consideration. The interests and welfare of the child
are of paramount consideration. The principle of comity of courts as observed in Dhanwanti
Joshi case14, in relation to non-Convention countries is that the court in the country to which
the child is removed will consider the question on merits bearing the welfare of the child as
of paramount importance and consider the order of the foreign court as only a factor to be
taken into consideration. While considering that aspect, the court may reckon the fact that
the child was abducted from his or her country of habitual residence but the court’s overriding
consideration must be the child’s welfare.
67. The facts in ail the four cases primarily relied upon by Respondent 2, in our opinion, necessitated
the Court to issue direction to return the child to the native state. That does not mean that in
deserving cases the courts in India are « denuded from declining the relief to return the child
to the native state merely because of a pre-existing order of the foreign court of competent
jurisdiction. That, however, will have to be considered on case to case basis — be it in a summary
inquiry or an elaborate inquiry. We do not wish to dilate on other reported judgments, as it
would result in repetition of similar position and only burden this judgment. J
68. In the present case, we are of the considered opinion that taking the totality of the facts and
circumstances of the case into account, it would be in the best interests of the minor (Nethra)
to remain in custody of her mother (appellant) else she would be exposed to harm if separated
from the mother. We have, therefore, no hesitation in overturning the conclusion reached by
the High Court. Further, we find that the High Court was unjustly impressed by the principle of
comity of courts and the obligation of the Indian courts to comply with a pre-existing order of
the foreign court for return of the child and including the “first strike’.’ principle referred to in
Surya Vadanan case3.
69. We once again reiterate that the exposition in Dhanwanti Joshi14 is a good law and has been quoted
with approval by a three-Judge Bench of this Court in V. Ravi Chandran (2)12. We approve the
view taken in Dhanwanti Joshi14, inter alia, in para 33 that so far as non-Convention countries are
concerned, the law is that the court in the country to which the child is removed while considering
the question must bear in mind the welfare of the child as of paramount importance and consider
the order of the foreign court as only a factor to be taken into consideration. The summary
jurisdiction to return the child be exercised in cases where the child had been removed from its
native land and removed to another country where, may be, his native language is not spoken, or
the child gets divorced from the social customs and contacts to which he has been accustomed,
or if its education in his native land is interrupted and the child is being subjected to a foreign
system of education, for these are all acts which could psychologically disturb the child. Again the
—| 416 |—
summary jurisdiction be exercised only if the court to which the child has been removed is moved
promptly and quickly. The overriding consideration must be the interests. and welfare of the child.
70. Needless to observe that after the minor child (Nethra) attains the age of majority, she would be
free to exercise her choice to go to the UK and stay with her father. But until she attains majority,
she should remain in the custody of her mother unless the court of competent jurisdiction
trying the issue of custody of the child orders to the contrary. However, the father must be given
visitation rights, whenever he visits India. He can do so by giving notice of at least two weeks in
advance intimating in writing to the appellant and if such request is received, the appellant must
positively respond in writing to grant visitation rights to Respondent 2 Mr Anand Raghavan
(father) for two hours per day twice a week at the mentioned venue in Delhi or as may be agreed
by the appellant, where the appellant or her representatives are necessarily present at or near the
venue. Respondent 2 shall not be entitled to, nor make any attempt to take the child (Nethra) out
from the said venue. The appellant shall take all such steps to comply with the visitation rights
of Respondent 2, in its letter and spirit. Besides, the appellant will permit Respondent 2 Mr
Anand Raghavan to interact with Nethra on telephone/mobile or video conferencing, on school
holidays between 5 p.m. to 7.30 p.m. 1ST.
71. As mentioned earlier, the appellant cannot disregard the proceedings instituted before the UK
Court. She must participate in those proceedings by engaging solicitors of her choice to espouse
her cause before the High Court of Justice. For that, Respondent 2 Anand Raghavan will bear
the costs of litigation and expenses to be incurred by the appellant. If the appellant is required to
appear in the said proceeding in person and for which she is required to visit the UK, Respondent
2 Anand Raghavan will bear the air fares or purchase the tickets for the travel of appellant
and Nethra to the UK and including for their return journey to India as may be required. In
addition, Respondent 2 Anand Raghavan will make all arrangements for the comfortable stay of
the appellant and her companions at an independent place of her choice at reasonable costs. In
the event, the appellant is required to appear in the proceedings before the High Court of Justice
in the UK, Respondent 2 shall not initiate any coercive process against her which may result in
penal consequences for the appellant and if any such proceeding is already pending, he must
take steps to first withdraw the same and/or undertake before the court concerned not to pursue
it any further. That will be condition precedent to pave way for the appellant to appear before the
court concerned in the UK.
72. Accordingly, this appeal is allowed in the above terms. The impugned judgment and order passed
by the High Court of Delhi dated 8-7-2016 in Anand Raghavan v. State of Delhi1 is set aside.
Resultantly, the writ petition for issuance of writ of habeas corpus filed by Respondent 2 stands
dismissed subject however, to the arrangement indicated above in paras 70 and 71 respectively.
73. No order as to costs.
qqq
—| 417 |—
SHEILA B. DAS VERSUS P.R. SUGASREE

Bench : Hon’ble Mr. Justice B.P. Singh & Hon’ble Mr. Justice Altamas Kabir
APPEAL (CIVIL) 6626 OF 2004
Petitioner: Sheila B. Das
Vs.
Respondent: P.r. Sugasree
DATE OF JUDGMENT: 17/02/2006
The appellant, who appeared in person, urged that both the Family Court and the High Court had
erred in law in removing the minor child from the custody of the mother to the father’s custody,
having particular regard to the fact that the minor girl was still of tender age and had attained
the age when a mother’s care and counseling was paramount for the health and well-being of the
minor girl child. The appellant submitted that the minor child would soon attain puberty when she
would need the guidance and instructions of a woman to enable her to deal with both physical and
emotional changes which take place during such period. Apart from the above, the appellant, who,
as stated hereinbefore, is a doctor by profession, claimed to be in a better position to take care of the
needs of the minor in comparison to the respondent who, it was alleged, had little time at his disposal
to look after the needs of the minor child.
We, therefore, feel that the interest of the minor will be best served if she remains with the respondent
but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to
disturb and disrupt her normal studies and other activities.
Ordered :
1. The respondent shall make arrangements for Ritwika to continue her studies in her present school
and to ensure that she is able to take part in extra-curricular activities as well.
2. The respondent shall meet all the expenses of the minor towards her education, health, care, food
and clothing and in the event the appellant also wishes to contribute towards the upbringing of the
child, the respondent shall not create any obstruction to and/or prevent the appellant from also
making such contribution.
3. The appellant will be at liberty to visit the minor child either in the respondent’s house or in the
premises of a mutual friend as may be agreed upon on every second Sunday of the month. To enable
the appellant to meet the child, the respondent shall ensure the child’s presence either in his house or
in the house of the mutual friend agreed upon at 10.00 A.M. The appellant will be entitled to take
the child out with her for the day, and to bring her back to the respondent’s house or the premises of
the mutual friend within 7.00 P.M. in the evening.
4. In the event the appellant shifts her residence to the same city where the minor child will be staying,
the appellant will, in addition to the above, be entitled to meet the minor on every second Saturday
of the month, and, if the child is willing, the appellant will also be entitled to keep the child with
her overnight on such Saturday and return her to the respondent’s custody by the following Sunday
evening at 7.00 P.M.
5. The appellant, upon prior intimation to the respondent, will also be entitled to meet the minor at
—| 418 |—
her school once a week after school hours for about an hour.
6. The appellant will also be entitled to the custody of the minor for 10 consecutive days during the
summer vacation on dates to be mutually settled between the parties.
7. The aforesaid arrangement will continue for the present, but the parties will be at liberty to
approach the Family Court at Thrissur for fresh directions should the same become necessary on
account of changed circumstances.
JUDGMENT
Hon’ble Mr. Justice Altamas Kabir.—
The appellant, who is a paediatrician by profession, was married to the respondent, who is a lawyer by
profession, on 29th March, 1989, at Thrissur in Kerala under the provisions of the Special Marriage
Act. A girl child, Ritwika, was born of the said marriage on 20th June, 1993.
As will appear from the materials on record, the appellant, for whatever reason, left her matrimonial
home at Thrissur on 26th February, 2000, alongwith the child and went to Calicut without informing
the respondent.
Subsequently, on coming to learn that the appellant was staying at Calicut, the respondent moved an
application in the High Court at Kerala for a writ in the nature of Habeas Corpus, which appears to
have been disposed of on 24th March, 2000 upon an undertaking given by the appellant to bring the
child to Thrissur.
On 24th March, 2000, the respondent, alleging that the minor child had been wrongfully removed
from his custody by the appellant, filed an application before the Family Court at Thrissur under
Sections 7 and 25 of the Guardians and Wards Act, 1890, and also Section 6 of the Hindu Minority and
Guardianship Act, 1956, which came to be numbered as OP 193 of 2000 and OP 239 of 2000.
Before taking up the said two applications for disposal, the learned Judge of the Family Court at
Thrissur took up the respondent’s application for interim custody of the minor child and on 27th
April, 2000 interviewed the minor child in order to elucidate her views with regard to the respondent’s
prayer for interim custody. No order was made at that time on the respondent’s application for interim
custody. On 20th March, 2001, the learned Judge of the Family Court at Thrissur took up the two
applications filed by the respondent under Sections 7 and 25 of the Guardians and Wards Act and
under Section 6 of the Hindu Minority and Guardianship Act for final disposal. While disposing of
the matter the learned Judge had occasion to interview the minor child once again before delivering
judgment and ultimately by his order of even date the learned Judge of the Family Court at Thrissur
allowed the applicati16ons filed by the respondent by passing the following order:-
“1. The respondent is directed to give custody of the child to the petitioner the father of the
child, the natural guardian immediately after closing of the schools for summer vacation.
2. The father shall take steps to continue the study of the minor child in CSM Central
School Edaserry and steps to restore all the facilities to the minor child to enjoy her
extra curricular activities and studies also.
3. The respondent mother is at liberty to visit the child either at the home of the petitioner
or at school at any time.
—| 419 |—
4. If the mother respondent shifts her residence to a place within 10 kms. radius of the
school where the child is studying the child can reside with the mother for not less than
three days in a week. The petitioner father shall not, object to taking of the child by the
mother to her own house in such condition.
5. The father the petitioner shall meet all the expenses for the education, food and cloths
etc. of the minor child and the mother of her own accord contribute to the same
anything for the child and the father should not prohibit the mother from giving the
child anything for her comfort and pleasant living.
6. If the mother the respondent fails to stay within 10 kms. radius of the CSM central
School, Edasserry however she is entitled to get custody of the child for 2 days in any of
the weekend in a month and 10 days during the Summer vacation and 2 days during
the Onam hoilidays excluding the Thiruvonam day.
7. This arrangement for custody is made on the basis of the prime consideration for
the welfare of the minor child and in case there is any change in the situation or
circumstance affecting the welfare of the minor child, both of the parties are at liberty
to approach this court for fresh directions on the basis of the changed circumstance.
OP 239/2000 is partly allowed prohibiting the respondent husband by a permanent injunction
from removing or taking forcefully the “B” schedule articles mentioned in the plant. The
parties in both these cases are to suffer their costs.”
Being dissatisfied with the order of the Family Court, the appellant herein filed an appeal in the High
Court of Kerala, being M.F.A.No.365/01, wherein by an order dated 21st May, 2001, the order of the
Family Court was stayed. The respondent thereupon filed an application before the High Court for
review of the said order and in the pending proceedings, a direction was given by the High Court to
the Family Court at Calicut to interview the minor child. The report of the Family Court was duly filed
before the High Court on 5th July, 2001.
From the said report, a copy of which has been included in the paperbook, it is evident that the minor
child preferred to stay with her father and ultimately by its order dated 25th July, 2001 the High Court
vacated the stay granted by it on 21st May, 2001.
On the application of the appellant herein, one Dr. S.D. Singh, Psychiatrist, was also appointed by the
High Court on 14th September, 2001, to interview the appellant and the respondent in order to make
a psychological evaluation and to submit a report. On such report being filed, the High Court by its
order dated 31st May, 2002, granted custody of the minor child to the respondent till the disposal of
the appeal.
Soon thereafter, in June 2002, the respondent filed an application for divorce before the Family Court
at Thrissur. While the same was pending, the appellant filed a Special Leave Petition being S.L.P.(
C)\005 C.C.No.6954/2002 against the order of the High Court granting custody of the minor child
to the respondent till the disposal of the appeal. The said Special Leave Petition was dismissed on
9th September, 2002. The appeal filed by the appellant before the High Court against the order of
the learned Judge of the Family Court allowing the respondent’s application under Sections 7 and
25 of the Guardians and Wards Act, being M.F.A. No.365/01, was also dismissed on 16th June, 2003.
Immediately, thereafter, on 28th June, 2003, the Family Court granted divorce to the parties. Being
—| 420 |—
aggrieved by the dismissal of her appeal, being M.F.A.No.365/01, the appellant herein filed the instant
Special Leave Petition, being SLP ) No.18961/2003, which after admission was renumbered as Civil
Appeal No.6626/2004. On 20th July, 2004, the appellant herein filed a petition in the pending Special
Leave Petition for interim visitation rights in respect of her minor child for the months of August and
September, 2004. After considering the submissions made by the appellant, who was appearing in
person, and the learned counsel for the respondent, this Court passed the following order:-
“This petition has been filed by the mother of minor girl-Ritwika, aged about 12 years,
challenging the impugned order of the High Court dated 16th June, 2003. By the impugned
order the High Court confirmed the order of the Family Court holding that it is in the best
interest of the child that she be in the custody of the father. The High Court, however, permitted
the petitioner to visit the child at the house of the father once in a month, that is, first Sunday
of every month and spend the whole day with the child there with a further stipulation that
she will not be removed from the father’s house. The petitioner and the respondent have not
been living together since February, 2000. The divorce between them took place by order
dated 26th June, 2003. On question of interim custody, in terms of the order dated 30th April,
2003, the Family Court Trichur, was directed to make an order regarding the visitation rights
of the petitioner for the months of May, June and July, 2004 so that the petitioner may meet
her daughter at the place of some neutral person and, if necessary, in the presence of a family
counsellor or such other person deemed just, fit and proper by the Family Court. The Family
Court was directed to fix any two days, in months of May, June and July of 2004, considering
the convenience of the parties, when the petitioner may be in a position to spend entire day
with her child. Pursuant to the above said order the Family Court had fixed two days in
the months of May, June and July, 2004 so that the petitioner could meet her daughter on
those days. The Family Court directed that the said meeting shall take place in the room of
family counsellor in Court precincts. According to the petitioner the said arrangement was
not satisfactory, so much so that ultimately she made a request to the Family Court that
instead of meeting her daughter in the room of the family counsellor, the earlier arrangement
of meeting her at father’s house was may be restored. The Family Court, however, did not
modify the order having regard to the orders passed by this Court on 30th April, 2004. It is,
however, not necessary at this stage to delve any further on this aspect.
Ritwika is studying in 7th class in a school in Trichur. Having heard petitioner-in-person and
learned counsel for the respondent and on perusal of record, we are of the view that without
prejudice to parties’ rights and contentions in Special Leave Petition, some interim order for
visitation rights of the petitioner for the months of August and September, 2004 deserves to
be passed. Accordingly, we direct as under:
(1) The petitioner can visit the house of the respondent at Trichur on every Sunday
commencing from 1st August, 2004 and be with Ritwika from 10.00 a.m. to 5.00 p.m.
During the stay of the petitioner at the house of the respondent, only the widowed
sister of the respondent can remain present. The respondent shall not remain present
in the house during the said period. It would be open to the petitioner to take Ritwika
for outing, subject to the condition that Ritwika readily agrees for it. We also hope that
when at the house of the respondent, the petitioner would be properly looked after,
insofar as, normal facilities and courtesies are concerned;
—| 421 |—
(2) We are informed that the school in which Ritwika is studying shall be closed for 7 days
in the month of August, 2004 during Onam festival. It would be open to the petitioner
to take the child for outing during those holidays for a period of three days. After the
expiry of three days, it will be the responsibility of the petitioner to leave the child at the
house of the respondent.
The arrangement about meeting on every Sunday would also continue in the month of
September, 2004.
List the matter on 5th October, 2004”
The question relating to the appellant’s visitation rights pending decision of the Special Leave Petition
came up for consideration before this Court again on 5th October, 2004, when on a reference to its
earlier order dated 20th July, 2004, this Court further directed that the appellant would be at liberty
to move appropriate applications in M.F.A.No.365/01, which had been decided by the High Court on
16th June, 2003, and the High Court on hearing the parties or their counsel would pass such orders as
it considered appropriate in respect of the interim custody of Ritwika during the Christmas Holidays.
It was also clarified that till the matter was finally decided by this Court, it would be open to the
appellant to make similar applications before the High Court which would have to be considered on
its own merits, since it was felt that the High Court would be in a better position to consider the local
conditions and pass interim orders including conditions, if any, required to be placed on the parties.
As mentioned hereinbefore, on leave being granted, the Special Leave Petition was renumbered as
Civil Appeal No.6626/04, which has been taken up by us for final hearing and disposal.
The appellant, who appeared in person, urged that both the Family Court and the High Court had
erred in law in removing the minor child from the custody of the mother to the father’s custody,
having particular regard to the fact that the minor girl was still of tender age and had attained the age
when a mother’s care and counseling was paramount for the health and well-being of the minor girl
child. The appellant submitted that the minor child would soon attain puberty when she would need
the guidance and instructions of a woman to enable her to deal with both physical and emotional
changes which take place during such period.
Apart from the above, the appellant, who, as stated hereinbefore, is a doctor by profession, claimed to
be in a better position to take care of the needs of the minor in comparison to the respondent who, it
was alleged, had little time at his disposal to look after the needs of the minor child.
From the evidence adduced on behalf of the parties, the appellant tried to point out that from morning
till late at night, the respondent was busy in court with his own work and activities which left the
minor child completely alone and uncared for. According to the appellant, the respondent who had
a farm house some distance away from Thrissur, spent his weekends and even a major part of the
week days in the said farm house. The appellant urged, that as a mother, she knew what was best for
the child and being a professional person herself she was in a position to provide the minor not only
with all such comforts as were necessary for her proper and complete upbringing, but also with a good
education and to create in her an interest in extracurricular activities such as music and dancing. The
appellant strongly urged that the respondent had never had any concern for the minor child since her
birth and till the time when the appellant left with her for Calicut. The appellant contended that for 7
years after the birth of the minor child, the appellant had single-handedly brought up the minor since
the respondent was too preoccupied with other activities to even notice her.
—| 422 |—
According to the appellant, the minor child was extremely happy to be with her till the respondent
began to claim custody of the minor and soon after obtaining such custody, he was able to influence
the minor to such an extent that she even went to the extent of informing the learned Judge of the
Family Court that she preferred to stay with her father.
On this aspect of the matter, the appellant urged that the minor had been exposed by the respondent
to what she termed as “Parental Alienation Syndrome”. She urged that such a phenomenon was
noticeable in parents who had been separated and who are bent upon poisoning the mind of their
minor children against the other party. According to the appellant, there could otherwise be no other
explanation as to why even after being with the appellant for 7 years, the minor child had expressed
a preference to be with her father after she was placed in his custody. The appellant laid stress on her
submissions that not only till the age of 8 years, when custody of the minor child was given to him, but
even thereafter the respondent had all along been an absentee father taking little or no interest in the
affairs and upbringing of the minor child. According to the appellant, in view of the peculiar habits of
the respondent, the minor child was left on her own much of the time, which was neither desirable nor
healthy for a growing adolescent girl child.
Urging that she had the best interest of the minor child at heart, the appellant submitted that although
under the provisions of Hindu Law by which the parties were governed, the father is accepted as the
natural guardian of a minor, there were several instances where the courts had accepted the mother
as the natural guardian of a minor in preference to the father even when he was available. Referring
to Section 6 of the Hindu Minority and Guardianship Act, 1956, which provides that the natural
guardian of a Hindu minor in the case of a boy or an unmarried girl is the father and after him the
mother; provided that the custody of a minor who has not completed the age of 5 years shall ordinarily
be with the mother, the appellant submitted that the aforesaid provision had recognized the mother
also as the natural guardian of a minor. It was urged that in various cases the Courts had considered
the said provision and had opined that there could be cases where in spite of the father being available,
the mother should be treated to be the natural guardian of a minor having regard to the incapacity of
the father to act as the natural guardian of such minor.
In support of her aforesaid submission, the appellant referred to and relied on the decision of this
Court in Hoshie Shavaksha Dolikuka vs. Thirty Hoshie Dolikuka, reported in AIR 1984 SC 410,
wherein having found the father of the minor to be disinterested in the child’s welfare this Court held
that the father was not entitled to the custody of the child.
The appellant also referred to and relied on a Division Bench decision of the Kerala High Court in the
case of Kurian C. Jose vs. Meena Jose, reported in 1992 (1) KLT 818, wherein having regard to the fact
that the father was living with a concubine who was none else than the youngest sister of the mother,
it was held that the father was not entitled to act as the guardian of the minor. On a consideration of
the provisions of Section 17 (3) of the Guardians and Wards Act, 1890, it was also held that a minor’s
preference need not necessarily be decisive but is only one of the factors to be taken into consideration
by the court while considering the question of custody.
Reference was also made to another decision of this Court in the case of Kumar V. Jahgirdar vs.
Chethana Ramatheertha, (2004) 2 SCC 688, wherein in consideration of the interest of the minor
child, the mother, who had re-married, was given custody of the female child who was on the advent
of puberty, on the ground that at such an age a female child primarily requires a mother’s care and
—| 423 |—
attention. The Court was of the view that the absence of female company in the house of the father
was a relevant factor in deciding the grant of custody of the minor female child. The appellant urged
that the courts in the aforesaid cases had considered the welfare of the minor to be of paramount
importance in deciding the question of grant of custody. The appellant urged that notwithstanding
the fact that the minor child had expressed before the learned Judge of the Family Court that she
preferred to be with the father, keeping in mind the fact that the welfare of the minor was of paramount
importance, the court should seriously consider whether the minor child should be deprived of her
mother’s company during her period of adolescence when she requires her mother’s counselling and
guidance. The appellant submitted that while the respondent had indulged Ritwika so as to win over
her affection, the appellant had tried to instill in her mind a sense of discipline which had obviously
caused a certain amount of resentment in Ritwika. The appellant submitted that the court should
look behind the curtain to see what was best for the minor girl child at this very crucial period of her
growing up In support of her aforesaid submission, the appellant referred to and relied on a decision
of the Bombay High Court in the case of Saraswatibai Shripad Ved vs. Shripad Vasanji Ved, AIR 1941
Bombay 103, wherein in a similar application under the Guardians and Wards Act, it was held that
since the minor’s interest is the paramount consideration, the mother was preferable to the father as
a guardian. The appellant emphasized the observation made in the judgment that if the mother is a
suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her
for the custody of a child of tender years notwithstanding the fact that the father remains as the natural
guardian of the minor.
A similar view was expressed by this Court in the case of Rosy Jacob vs. Jacob A. Chakramakkal, AIR
1973 SC 2090, wherein in the facts and circumstance of the case, the custody of the daughter (even
though she was more than 13 years of age ) and that of the youngest minor son, was considered to be
more beneficial with the wife rather than with the husband. The appellant submitted that during the
child’s growing years, she had from out of her own professional income, provided her with amenities
which a growing child needs, including admission and tuition fees for the child’s schooling in a good
school and for extracurricular activities. The appellant submitted that she had made fixed deposits for
the benefit of the minor and had even taken out life insurance policies where the minor child had been
made the nominee. The appellant submitted that apart from the above, she had also made various
financial investments for the benefit of the minor so that the minor child would not be wanting in
anything if she was allowed to remain with the appellant. The appellant submitted that although she
had been granted visitation rights by the different interim orders, since she was residing in Calicut
and the respondent was residing in Thrissur, she was unable to remain in contact with her minor
daughter on account of the distance between Calicut and Thrissur. In fact, the appellant complained
of the fact that on several occasions when she had gone to meet her minor child at the residence of
the respondent, she had not been allowed to meet the child or to spend sufficient time with her. The
appellant submitted that the interest of the minor child would be best served if her custody was given
to the appellant.
The claim of custody of the minor child made by the appellant was very strongly resisted by the
respondent who denied all the various allegations levelled against him regarding his alleged apathy
towards the minor and her development. It was submitted on his behalf that till the age of 7 years,
the child had been living with both the parents, and was well cared for and looked after during this
period. The minor child was suddenly and surreptitiously removed from the respondent’s custody by
the appellant who left her matrimonial home on 26th February, 2000 without informing the appellant
—| 424 |—
who had gone out of Thrissur on his professional work. It was submitted that only after coming to learn
that the appellant had removed the child to Calicut that the respondent was compelled to file a Habeas
Corpus Petition in the Kerala High Court which ended upon an undertaking given by the appellant to
bring the minor child to Thrissur. It was only thereafter that the respondent was compelled to file the
application under Sections 7 and 25 of the Guardians and Wards Act and under Section 6 of the Hindu
Minority and Guardianship Act,1956.
According to the respondent, even though the appellant had forcibly removed the minor to Calicut,
thereby depriving the respondent of the minor child’s company, the said minor during her interview
by the learned Judge of the Family Court at Thrissur made her preference to be with the father known
to the learned Judge.
On behalf of the respondent, it was also submitted that keeping in mind the fact that the girl child
was attaining the age of puberty, the respondent had arranged with his elder sister, who was a retired
headmistress of a school, to come and stay with him and to attend to the minor’s needs during her
growing years when she required the guidance and counselling of a woman. It was submitted that
the said aspect of the matter was duly considered by the Family Court as well as by the High Court
on the basis of an affidavit filed by the respondent’s sister expressing her willingness to stay with the
respondent to look after the minor child. In addition to the above, it was submitted on behalf of the
respondent that the Court had found on evidence that he had sufficient finances to look after and
provide for all the needs of the minor child. In any event, what was of paramount importance was the
welfare of the minor and the court had also taken into consideration the preference expressed by the
minor in terms of Section 17 (3) of the Guardians and Wards Act, 1890. On behalf of the respondent
it was submitted that the respondent was quite alive to the fact that the minor child should not be
deprived of her mother’s company and that for the said purpose, the appellant was welcome to visit
the minor child either at the respondent’s house or in some neutral place and to even keep the child
with her on specified days if she was ready and willing to stay with the appellant. What was sought to
be emphasized on behalf of the respondent was that in the interest of the child she should be allowed
to remain with him since he was better equipped to look after the minor, besides being her natural
guardian and also having regard to the wishes of the minor herself.
Having regard to the complexities of the situation in which we have been called upon to balance
the emotional confrontation of the parents of the minor child and the welfare of the minor, we have
given anxious thought to what would be in the best interest of the minor. We have ourselves spoken
to the minor girl, without either of the parents being present, in order to ascertain her preference in
the matter. The child who is a little more than 12 years of age is highly intelligent, having consistently
done extremely well in her studies in school, and we were convinced that despite the tussle between
her parents, she would be in a position to make an intelligent choice with regard to her custody. From
our discussion with the minor, we have been able to gather that though she has no animosity as such
towards her mother, she would prefer to be with the father with whom she felt more comfortable.
The minor child also informed us that she had established a very good relationship with her paternal
aunt who was now staying in her father’s house and she was able to relate to her aunt in matters which
would concern a growing girl during her period of adolescence.
We have also considered the various decisions cited by the appellant which were all rendered in the
special facts of each case. In the said cases the father on account of specific considerations was not
considered to be suitable to act as the guardian of the minor. The said decisions were rendered by the
—| 425 |—
Courts keeping in view the fact that the paramount consideration in such cases was the interest and
well-being of the minor. In this case, we see no reason to consider the respondent ineligible to look
after the minor. In fact, after having obtained custody of the minor child, the respondent does not
appear to have neglected the minor or to look after all her needs. The child appears to be happy in the
respondent’s company and has also been doing consistently well in school. The respondent appears
to be financially stable and is not also disqualified in any way from being the guardian of the minor
child. No allegation, other than his purported apathy towards the minor, has been levelled against the
respondent by the appellant. Such an allegation is not borne out from the materials before us and is
not sufficient to make the respondent ineligible to act as the guardian of the minor.
We, therefore, feel that the interest of the minor will be best served if she remains with the respondent
but with sufficient access to the appellant to visit the minor at frequent intervals but so as not to
disturb and disrupt her normal studies and other activities. We, accordingly dispose of this appeal by
retaining the order passed by the learned Judge of the Family Court at Thrissur on 20.3.2001 while
disposing of O.P.No.193/2000 filed by the respondent herein under Sections 7 and 25 of the Guardians
and Wards Act, 1890 with the following modifications:-
1. The respondent shall make arrangements for Ritwika to continue her studies in her present
school and to ensure that she is able to take part in extra-curricular activities as well.
2. The respondent shall meet all the expenses of the minor towards her education, health, care, food
and clothing and in the event the appellant also wishes to contribute towards the upbringing of
the child, the respondent shall not create any obstruction to and/or prevent the appellant from
also making such contribution.
3. The appellant will be at liberty to visit the minor child either in the respondent’s house or in the
premises of a mutual friend as may be agreed upon on every second Sunday of the month. To
enable the appellant to meet the child, the respondent shall ensure the child’s presence either in
his house or in the house of the mutual friend agreed upon at 10.00 A.M. The appellant will be
entitled to take the child out with her for the day, and to bring her back to the respondent’s house
or the premises of the mutual friend within 7.00 P.M. in the evening.
4. In the event the appellant shifts her residence to the same city where the minor child will be
staying, the appellant will, in addition to the above, be entitled to meet the minor on every
second Saturday of the month, and, if the child is willing, the appellant will also be entitled to
keep the child with her overnight on such Saturday and return her to the respondent’s custody
by the following Sunday evening at 7.00 P.M.
5. The appellant, upon prior intimation to the respondent, will also be entitled to meet the minor
at her school once a week after school hours for about an hour.
6. The appellant will also be entitled to the custody of the minor for 10 consecutive days during the
summer vacation on dates to be mutually settled between the parties.
7. The aforesaid arrangement will continue for the present, but the parties will be at liberty to
approach the Family Court at Thrissur for fresh directions should the same become necessary
on account of changed circumstances.
The parties will each bear their own costs.
qqq
—| 426 |—
LANDMARK JUDGMENTS
ON
DUTY OF FAMILY COURTS
SMRUTI PAHARIYA VERSUS SANJAY PAHARIYA

Bench: Hon’ble Mr. Justice K.G. Balakrishnan, CJI, Hon’ble Mr. Justice P. Sathasivam &
Hon’ble Mr. Justice Asok Kumar Ganguly
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 17402 OF 2008)
Smruti Pahariya .....Appellant(s)
- Versus -
Sanjay Pahariya ....Respondent(s)
This Court strongly disapproves the manner in which the proceeding was conducted in this case. A
Court’s proceeding must have a sanctity and fairness. It cannot be conducted for the convenience of
one party alone. In any event, when the Court fixed the matter for 10.12.2007, it could not pre-pone
the matter on an ex-parte prayer made by the appellant-wife on 5.12.2007 and grant the decree of
divorce on that day itself by treating the matter on the board in the absence of the husband. This, in
our opinion, is a flagrant abuse of the judicial process and on this ground alone, the decree dated
5.12.2007 has to be set aside.
On this aspect, this Court endorses the dissatisfaction expressed by the Bombay High Court in its
judgment under appeal about the manner in which the date of final hearing was pre-poned and an
ex-parte decree was passed.
While dealing with the second question it appears that the Family Court has not acted in a manner
which is required of it having regard to the jurisdiction vested on it under the Family Courts Act.
The Family Courts Act, 1984 (hereinafter, Act 66 of 1984) was enacted for adopting a human
approach to the settlement of family disputes and achieving socially desirable results. The need for
such a law was felt as early as in 1974 and Chief Justice P.B. Gajendragadhkar, as the Chairman of
Law Commission, in the 59th report on Hindu Marriage Act, 1955 and Special Marriage Act, 1954,
opined:-
“In our Report on the Code of Civil Procedure, we have had occasion to emphasis that in dealing
with disputes concerning the family, the court ought to adopt a human approach - an approach
radically different from that adopted in ordinary civil proceedings, and that the court should make
reasonable efforts at settlement before commencement of the trial. In our view, it is essential that
such an approach should be adopted in dealing with matrimonial disputes. We would suggest that in
due course, States should think of establishing family courts, with presiding officers who will be well
qualified in law, no doubt, but who will be trained to deal with such dispute in a human way, and to
such courts all disputes concerning the family should be referred.”
Almost 10 years thereafter when the said Act 66 of 1984 was enacted, the words of the Chief Justice
were virtually quoted in its statement of objects and reasons. Consistent with the said human
approach which is expected to be taken by a Family Court Judge, Section 9 of the Act casts a duty
upon the Family Court Judge to assist and persuade the parties to come to a settlement.
—| 429 |—
LANDMARK JUDGMENTS ON DUTY OF FAMILY COURTS
JUDGMENT
Hon’ble Mr. Justice Ashok Kumar Ganguly :—
1. Leave granted.
2. The wife, who is the appellant before this Court, filed this appeal seeking to impugn the
judgment and order dated 5.6.2008 passed by the High Court of judicature at Bombay, which in
a detailed judgment, was pleased to set aside the judgment and decree dated 5.12.2007 passed
by the Family Court, Mumbai, in which the Family Court, dissolved the marriage between the
appellant and the respondent by a decree of divorce on mutual consent under Section 13B of the
Hindu Marriage Act, 1955 (hereinafter “the said Act”).
3. Admittedly, the parties are Hindu and governed by the provisions of the said Act and they were
married on 5.3.1993 at Mumbai following the Hindu Vedic rites. Marriage was also registered.
After marriage, the parties resided together in Flat No. 601, 2nd Floor, Dinath Court, Sir
Pochkhanwala Road, Worli, Mumbai. Two sons were born to them, one on 1.2.1995 and the
other one on 3.4.1997. A few years after that, serious differences and incompatibility surfaced
between them and all attempts of settlement failed. The parties stopped living together from
January 2005 and decided to file a petition seeking divorce by mutual consent under Section
13B of the said Act. A joint petition to that effect was filed before the Family Court at Bandra,
Mumbai and the same was registered on 19.5.2007. It was averred therein that incompatibility
with each other made it difficult for them to co-exist and they stopped cohabiting as husband
and wife from January 2005 (para 6). In paragraph 13, it was stated that there was no collusion
between the parties in filing the petition for divorce by mutual consent and in paragraph 17
it was pointed out that there is no force or coercion between the parties in filing the petition.
Along with the said petition, certain consent terms were also filed but with those terms we are
not concerned in this proceeding.
4. Under the provisions of Section 13B (2) of the said Act, a minimum period of six month has
to elapse before such petition can be taken up for hearing. In the instant case, the said period
expired on or about 19.11.2007. In between, two dates were given, namely, 14.6.2007 and
23.8.2007 when the parties were given a chance for counselling but on both the days parties
were absent and no counselling took place.
5. On 19.11.2007, after the mandatory period of six months, the matter came up before the Family
Court. It appears from the affidavit filed by the wife in this proceeding before the Bombay High
Court that on 3.11.2007, advocate of the parties informed the husband that the matter will be
listed on 19.11.2007 and a draft affidavit of deposition was sent to him through E-mail. It is not
in dispute that both the parties had the same advocate. It also appears from the affidavit of the
wife that on 18.11.2007 the advocate received a text SMS in his mobile from the respondent-
husband that he is unable to attend the court on 19.11.2007.
Therefore, on 19.11.2007, when the matter appeared for the first time before the Court, the
husband was absent and the Family Court asked the advocate to inform the husband of the next
date of hearing of the matter, which was fixed on 1.12.2007.
—| 430 |—
6. On 19.11.2007 itself, an application was made by the wife to summon the husband directing him
to be present in the Family court on the next date. Accordingly, summons were sent by the Court
on 23.11.2007 by courier and the courier returned with the remark “not accepting”.
In this connection, the order which was passed by the Family Court, on 1.12.2007, on perusal of
the service report is of some importance. The following order was passed on the service return:
“Perused the first summons and subsequent orders thereto. I have seen service affidavit also,
states that servant was present. Hence I am not able to accept it as a proper one. The courier
endorsement is also vague. Considering the contents in affidavit, I allow petitioner No.1
to serve the notice by pasting on the address given in cause title to petitioner No.2. EPSB
allowed. It is made returnable on 4.12.2007.”
7. The petition was thus made returnable on 4.12.2007. It appears that the bailiff pasted the
summons on 3.12.2007 outside the door of the husband’s residence and the matter came up
before the Family Court on 4.12.2007 and on that day the husband was absent. The Family
Court adjourned the matter to 10.12.2007. But on 5.12.2007, the wife, filed a petition before the
Family Court with a prayer that the hearing of the matter may be pre-poned and be taken up
on the very same day i.e. 5.12.2007. On the aforesaid prayer of the wife, though the matter was
not on the board, it was taken on the board by the Family Court on 5.12.2007 and the decree of
divorce was passed ex-parte on that date itself.
8. It may be mentioned in this connection that the Family Court pre-poned the hearing on wife’s
application and in the absence of the husband. Admittedly, the pre-ponement was done ex-
parte.
9. In the background of these facts, basically four questions fall for our consideration:
I. Whether impugned decree of divorce passed by the Family Court on 5.12.2007 is vitiated
by procedural irregularity?
II. Whether by conducting the proceeding, in the manner it did, the Family Court acted
contrary to the avowed object of the Family Courts Act, 1984?
III. Whether from the absence of the husband before the Family Court on 19.11.2007, 1.12.2007
and 4.12.2007 it can be inferred that his consent for grant of divorce on a petition on
mutual consent subsists, even though he has not withdrawn the petition for divorce on
mutual consent?
IV. Whether on a proper construction of Section 13B (2) of the said Act, which speaks of
‘the motion of both the parties’, this Court can hold that the Family Court can dissolve a
marriage and grant a decree of divorce in the absence of one of the parties and without
actually ascertaining the consent of that party who filed the petition for divorce on mutual
consent jointly with the other party?
10. This fourth question assumes general importance since it turns on the interpretation of the
section. Apart from that, this question is relevant here in view of various recitals in the judgment
and decree of the learned Judge of the Family Court. It appears that the Family Court granted
the decree of divorce by proceeding on the presumption of continuing consent of the husband.
—| 431 |—
11. While dealing with the first question about procedural irregularity in the matter, this Court
finds that the Family Court did not act properly even if it is held that it was correct in presuming
the continuing consent of the respondent-husband.
12. From the sequence of events, it appears that on 19.11.2007 when the matter came up before
the Court, the first day after the mandatory period of six months, the husband was absent.
The Court directed service of summons on the husband on the request of the wife. The service
return was before the Court on 1.12.2007. Looking at the service return, the Court found that
service was not a proper one and the Court was also not satisfied with the endorsement of
the courier. Under such circumstances, the Court’s direction on the prayer of the appellant-
wife, for substituted service under Order 5 Rule 20 of the Civil Procedure Code is not a proper
one. Direction for substituted service under Order 5 Rule 20 can be passed only when Court
is satisfied “that there is reason to believe that the defendant is keeping out of the way for the
purpose of evading service, or that for any other reason the summons cannot be served in the
ordinary way”.
13. In the facts of this case, the Court did not, and rather could not, have any such satisfaction as
the Court found that the service was not proper. If the service is not proper, the Court should
have directed another service in the normal manner and should not have accepted the plea of
the appellant-wife for effecting substituted service. From wife’s affidavit asking for substituted
service, it is clear that the servant of the respondent-husband intimated her advocate’s clerk
that respondent-husband was out of Bombay and will be away for about two weeks. However,
the appellant-wife asserted that the respondent-husband was in town and was evading. But
the Court on seeing the service return did not come to the conclusion that the husband was
evading service. Therefore, the Court cannot, in absence of its own satisfaction that the husband
is evading service, direct substituted service under Order 5 Rule 20 of the Code.
14. Apart from the aforesaid irregularity, the Court, after ordering substituted service and perusing
service return on 4.12.2007, fixed the matter for 10.12.2007. Then, on the application of the wife
on 5.12.2007, pre-poned the proceeding to 5.12.2007 and on that very day granted the decree of
divorce even though the matter was not on the list.
15. This Court strongly disapproves of the aforesaid manner in which the proceeding was conducted
in this case. A Court’s proceeding must have a sanctity and fairness. It cannot be conducted for
the convenience of one party alone. In any event, when the Court fixed the matter for 10.12.2007,
it could not pre-pone the matter on an ex-parte prayer made by the appellant-wife on 5.12.2007
and grant the decree of divorce on that day itself by treating the matter on the board in the
absence of the husband. This, in our opinion, is a flagrant abuse of the judicial process and on
this ground alone, the decree dated 5.12.2007 has to be set aside.
16. On this aspect, this Court endorses the dissatisfaction expressed by the Bombay High Court in
paragraph 34 of its judgment under appeal about the manner in which the date of final hearing
was pre-poned and an ex-parte decree was passed.
17. While dealing with the second question it appears that the Family Court has not acted in a
manner which is required of it having regard to the jurisdiction vested on it under the Family
Courts Act.
—| 432 |—
18. The Family Courts Act, 1984 (hereinafter, Act 66 of 1984) was enacted for adopting a human
approach to the settlement of family disputes and achieving socially desirable results. The need
for such a law was felt as early as in 1974 and Chief Justice P.B. Gajendragadhkar, as the Chairman
of Law Commission, in the 59th report on Hindu Marriage Act, 1955 and Special Marriage Act,
1954, opined:-
“In our Report on the Code of Civil Procedure, we have had occasion to emphasis that in
dealing with disputes concerning the family, the court ought to adopt a human approach –
an approach radically different from that adopted in ordinary civil proceedings, and that the
court should make reasonable efforts at settlement before commencement of the trial. In our
view, it is essential that such an approach should be adopted in dealing with matrimonial
disputes. We would suggest that in due course, States should think of establishing family
courts, with presiding officers who will be well qualified in law, no doubt, but who will be
trained to deal with such dispute in a human way, and to such courts all disputes concerning
the family should be referred.”
19. Almost 10 years thereafter when the said Act 66 of 1984 was enacted, the words of the Chief
Justice were virtually quoted in its statement of objects and reasons. Consistent with the said
human approach which is expected to be taken by a Family Court Judge, Section 9 of the Act casts
a duty upon the Family Court Judge to assist and persuade the parties to come to a settlement.
20. In the instant case by responding to the illegal and unjust demand of the wife of pre-poning
the proceeding ex-parte and granting an ex-parte decree of divorce, the Family Court did not
discharge its statutory obligation under Section 13B (2) of the said Act of hearing the parties.
When a proceeding is pre-poned in the absence of a party and a final order is passed immediately,
the statutory duty cast on the Court to hear the party, who is absent, is not discharged. Therefore,
the Family Court has not at all shown a human and a radically different approach which it is
expected to have while dealing with cases of divorce on mutual consent.
21. Marriage is an institution of great social relevance and with social changes, this institution has
also changed correspondingly. However, the institution of marriage is subject to human frailty
and error. Marriage is certainly not a mere “reciprocal possession” of the sexual organs as was
philosophized by I. Kant [The Philosophy of Law page 110, W. Hastie translation 1887] nor can
it be romanticized as a relationship which Tennyson fancied as “made in Heaven” [Alymer’s
Field, in Complete Works 191, 193 (1878)].
22. In many cases, marriages simply fail for no fault of the parties but as a result of discord and
disharmony between them. In such situations, putting an end to this relationship is the only
way out of this social bondage. But unfortunately, initially the marriage laws in every country
were ‘fault oriented’. Under such laws marriage can be dissolved only by a Court’s decree within
certain limited grounds which are to be proved in an adversarial proceeding. Such ‘fault’ oriented
divorce laws have been criticized as ‘obsolete, unrealistic, discriminatory and sometimes
immoral’ (Foster, Divorce Law Reform; the choices before State page 112).
23. As early as in 1920 possibly for the first time in New Zealand, Section 4 of the Divorce and
Matrimonial Causes Amendment Act, 1920 gave the Court the discretion to grant a decree of
divorce to parties when they had separated for three years under a decree of judicial separation
—| 433 |—
or separation order by the Magistrate or under a deed of separation or “even by mutual consent”.
Till such amendment, divorce after separation by parties on “mutual consent” was unknown.
24. Considering the said amendment of 1920 and exercising the discretion the amended law
conferred on the Judge, Justice Salmond in Lodder Vs. Lodder, [1921, New Zealand Law Reports,
876], came to the conclusion that it is not necessary to enquire into the merits of the disputes
between the parties since the man and the wife had put an end to their relationship 13 years ago
and the learned Judge found that their alienation is “permanent and irredeemable”. The learned
Judge also felt that in the circumstances of the case “no public or private interest is to be served
by the further continuance of the marriage bond” and a decree for its dissolution was passed.
(See page 881).
25. This seems to be the first decision of a Court granting divorce on a ‘no-fault’ basis and because
of the fact that a marriage had broken down for all practical purposes as parties were staying
separately for a very long time.
26. The British society was very conservative as not to accept divorce on such a ground but in 1943,
Viscount Simon, Lord Chancellor, in the case of Blunt Vs. Blunt, [1943, 2 All ER 76], speaking
for the House of Lords, while categorizing the heads of discretion which should weigh with the
courts in granting the decree of divorce, summed up four categories but at page 78 of the Report,
the Lord Chancellor added a fifth one and the views of His Lordship were expressed in such
matchless words as they deserve to be extracted herein below:-
“To these four considerations I would add a fifth of a more general character, which must
indeed be regarded as of primary importance, viz., the interest of the community at large, to
be judged by maintaining a true balance between respect for the binding sanctity of marriage
and the social considerations which make it contrary to public policy to insist on the
maintenance of a union which has utterly broken down. It is noteworthy that in recent years
this last consideration has operated to induce the court to exercise a favourable discretion in
many instances where in an earlier time a decree would certainly have been refused”.
27. In India also, prior to the amendment in our laws by insertion of Section 13B in the said Act, the
Courts felt the necessity for an amendment in the divorce law. The Full Bench of the Delhi High
Court in the judgment of Ram Kali Vs. Gopal Dass – ILR (1971) 1 Delhi 6, felt the inadequacy of
the existing divorce law. Chief Justice Khanna (as His Lordship then was) speaking for the Full
Bench came to the following conclusion:-
“...It would not be a practical and realistic approach, indeed it would be unreasonable and
inhuman, to compel the parties to keep up the façade of marriage even though the rift between
them is complete and there are no prospects of their ever living together as husband and wife.”
[See page 12].
28. In coming to the aforesaid conclusion, the learned Chief Justice relied on the observation of the
Viscount Simon, Lord Chancellor, in the case of Blunt Vs. Blunt (Supra).
29. Within a year thereafter, Hon’ble Justice Krishna Iyer, in the case of Aboobacker Haji Vs. Mamu
Koya - 1971 K.L.T. 663, while dealing with Mohammedan Law relating to divorce correctly
traced the modern trend in legal system on the principle of breakdown of marriage in the
following words:-
—| 434 |—
“When an intolerable situation has been reached, the partners living separate and apart for a
substantial time, an inference may be drawn that the marriage has broken down in fact and
so should be ended by law. This trend in the field of matrimonial law is manifesting itself in
the Commonwealth countries these days.”(See page 668)
30. In coming to the said finding the learned Judge relied on the principles laid down by Justice
Salmond in Lodder Vs. Lodder (supra).
31. After the said amendment in 1976 by way of insertion of Section 13B in the said Act in the 74th
Report of the Law Commission of India ( April, 1978), Justice H.R. Khanna, as its Chairman,
expressed the following views on the newly amended Section 13B:
“Marriage is viewed in a number of countries as a contractual relationship between freely
consenting individuals. A modified version of the basis of consent is to be found in the theory
of divorce by mutual consent. The basis in this case is also consent, but the revocation of the
relationship itself must be consensual, as was the original formation of the relationship. The
Hindu Marriage Act, as amended in 1976, recognizes this theory in section 13B.”
32. On the question of how to ascertain continuing consent in a proceeding under Section 13B of
the said Act, the decision in the case of Smt. Sureshta Devi Vs. Om Prakash – (1991) 2 SCC 25,
gives considerable guidance.
33. In Paragraph 8 of the said judgment, this Court summed up the requirement of Section 13B (1)
as follows:
“8. There are three other requirements in sub-section (1). They are:-
(i) They have been living separately for a period of one year.
(ii) They have not been able to live together, and
(iii) They have mutually agreed that marriage should be dissolved.”
34. In paragraph 10, the learned Judges dealt with sub-section (2) of Section 13B. In paragraphs 11
and 12, the learned Judges recorded the divergent views of the Bombay High Court [Jayashree
Ramesh Londhe v. Ramesh Bhikaji Londhe – AIR 1982 Bom 302: 86 Bom LR 184], Delhi High
Court [Chander Kanta v. Hans Kumar – AIR 1989 Del 73], Madhya Pradesh High Court [Meena
Dutta v. Anirudh Dutta – (1984) 2 DMC 388 (MP)], and the views of the Kerala High Court
[K.I. Mohanan v. Jeejabai – AIR 1988 Ker 28: (1986) 2 HLR 467: 1986 KLT 990], Punjab and
Haryana High Court [Harcharan Kaur v. Nachhattar Singh – AIR 1988 P & H 27: (1987) 2 HLR
184: (1987) 92 Punj LR 321] and Rajasthan High Court [Santosh Kumari v. Virendra Kumar –
AIR 1986 Raj 128: (1986) 1 HLR 620: 1986 Raj LR 441] respectively on Section 13B.
35. In paragraphs 13 and 14 of the Sureshta Devi (supra), the learned Judges gave an interpretation
to Section 13B (2) and in doing so the learned Judges made it clear that the reasons given by the
High Court of Bombay and Delhi are untenable inasmuch as both the High Courts held that
once the consent is given by the parties at the time of filing the petition, it is impossible for them
to withdraw the same to nullify the petition.
36. We also find that the interpretation given by Delhi and Bombay High Courts is contrary to the
very wording of Section 13B (2) which recognizes the possibility of withdrawing the petition
filed on consent during the time when such petition has to be kept pending.
—| 435 |—
37. In paragraph 13 of Sureshta Devi (supra), the learned Judges made the position clear by holding
as follows:
“At the time of the petition by mutual consent, the parties are not unaware that their petition
does not by itself snap marital ties. They know that they have to take a further step to snap
marital ties. Sub-Section (2) of Section 13-B is clear on this point. It provides that “on the
motion of both the parties,…. if the petition is not withdrawn in the meantime, the court
shall….pass a decree of divorce…”. What is significant in this provision is that there should
also be mutual consent when they move the court with a request to pass a decree of divorce.
Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If
there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make
a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a
divorce decree even at the instance of one of the parties and against the consent of the other.
Such a decree cannot be regarded as decree by mutual consent.”
38. Therefore, it was made clear in Sureshta Devi (supra) that under Section 13B (2), the requirement
is the ‘motion of both the parties’ and interpreting the same, the learned Judges made it clear
that there should be mutual consent when they move the Court with a request to pass a decree
of divorce and there should be consent also at the time when the Court is called upon to make
an enquiry, if the petition is not withdrawn and then pass the final decree.
39. Interpreting the said Section, it was held in Sureshta Devi (supra) that if the petition is not
withdrawn in the meantime, the Court, at the time of making the enquiry, does not have any
jurisdiction to pass a decree, unless there is mutual consent.
40. Learned Judges made it further clear that if the Court makes an enquiry and passes a divorce
decree even at the instance of one of the parties and against the consent of the other, such a
decree cannot be regarded as a decree by mutual consent.
41. In paragraph 14 of the said judgment, learned Judges made it further clear as follows:-
“If the Court is held to have the power to make a decree solely based on the initial petition,
it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce
is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should
continue till the divorce decree is passed. It is a positive requirement for the court to pass a
decree of divorce.
“The consent must continue to decree nisi and must be valid subsisting consent when the
case is heard.” {See (i) Halsbury’s Laws of England, 4th edn. Vol. 13 para 645; (ii) Rayden on
Divorce, 12th edn., Vol. 1, P. 291; and (iii) Beales V. Beales}.”
42. In paragraph 15 of the judgment, this Court held that the decisions of the High Courts of
Bombay, Delhi and Madhya Pradesh cannot be said to have laid down the law correctly and
those judgments were overruled. We also hold accordingly.
43. The decision in Sureshta Devi (supra) was rendered by a Bench of two learned Judges of this
Court. In a subsequent decision of two learned Judges of this Court in the case of Ashok Hurra
Vs. Rupa Bipin Zaveri – (1997) 4 SCC 226, the judgment in Sureshta Devi (supra) was doubted
as according to the learned Judges some of the observations in Sureshta Devi (supra) appear to
be too wide and require reconsideration in an appropriate case.
—| 436 |—
44. Learned Judges in Ashok Hurra (supra) made it clear that they were passing the order in that
case on the peculiar fact situation. This Court also held that in exercise of its jurisdiction under
Article 142 of the Constitution, a decree of divorce by mutual consent under Section 13B of the
Act was granted between the parties. (See paragraph 16 and 22 of the report).
45. It appears that those observations were made by the learned Judges without considering the
provisions of the Family Courts Act. In any event, the decision in Ashok Hurra (supra) was
considered by a larger Bench of this Court in Rupa Ashok Hurra Vs. Ashok Hurra and Anr.
– (2002) 4 SCC 388. No doubt was expressed by the larger Bench on the principles laid down
in Sureshta Devi (supra). It appears that a petition for review was filed against the two judge
decision in Ashok Hurra (supra) and the same was dismissed.
Thereafter, the question before the Constitution Bench in Rupa Ashok Hurra (supra) was as
follows:-
“Whether the judgment of this Court dated 10.3.1997 in Civil Appeal No.1843 of 1997 [1997
(4) SCC 226] can be regarded as a nullity and whether a writ petition under Article 32 of
the Constitution can be maintained to question the validity of a judgment of this Court after
the petition for review of the said judgment has been dismissed are, in our opinion, questions
which need to be considered by a Constitution Bench of this Court.”
46. In the Constitution Bench decision of this Court in Rupa Ashok Hurra (supra), this Court did
not express any view contrary to the views of this Court in Sureshta Devi (supra).
47. We endorse the views taken by this Court in Sureshta Devi (supra) as we find that on a proper
construction of the provision in Section 13B (1) and 13B (2), there is no scope of doubting the
views taken in Shreshta Devi (supra). In fact the decision which was rendered by the two learned
Judges of this Court in Ashok Hurra (supra) has to be treated to be one rendered in the facts of
that case and it is also clear by the observations of the learned Judges in that case.
48. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi
(supra).
49. We are of the view that it is only on the continued mutual consent of the parties that decree for
divorce under Section 13B of the said Act can be passed by the Court. If petition for divorce is
not formally withdrawn and is kept pending then on the date when the Court grants the decree,
the Court has a statutory obligation to hear the parties to ascertain their consent. From the
absence of one of the parties for two to three days, the Court cannot presume his/her consent as
has been done by the learned Family Court Judge in the instant case and especially in its facts
situation, discussed above.
50. In our view it is only the mutual consent of the parties which gives the Court the jurisdiction to
pass a decree for divorce under Section 13B. So in cases under Section 13B, mutual consent of
the parties is a jurisdictional fact. The Court while passing its decree under Section 13B would
be slow and circumspect before it can infer the existence of such jurisdictional fact. The Court
has to be satisfied about the existence of mutual consent between the parties on some tangible
materials which demonstrably disclose such consent. In the facts of the case, the impugned
decree was passed within about three weeks from the expiry of the mandatory period of six
months without actually ascertaining the consent of the husband, the respondent herein.
—| 437 |—
51. It is nobody’s case that a long period has elapsed between the expiry of period of six months and
the date of final decree.
52. For the reasons aforesaid, we affirm the view taken by the learned Judges of the Bombay High
Court in the order under appeal.
53. The appeal is disposed of as follows:-
(i) On receipt of the copy of this judgment, the Family Court is directed to issue notice to
both the parties to appear in the Court on a particular day for taking further steps in the
case.
(ii) On that day, the parties are at liberty to engage their own counsel and they may be personally
present before the Court and inform the Court as to whether they have consent to the
passing of the decree under Section 13B of the Act. If both the parties give their consent
for passing of the decree under Section 13B, the Court may pass appropriate orders.
(iii) If any of the parties makes a representation that he/she does not have consent to the passing
of the decree, the Court may dispose of the proceedings in the light of the observations
made by us. There shall be no order as to costs.
qqq
—| 438 |—
SANTHINI VERSUS VIJAYA VENKETESH

TRANSFER PETITION (CIVIL) NO. 1278 OF 2016
Santhini Petitioner(S)
Versus
Vijaya Venketesh Respondent(S)
WITH
The Family Courts Act expects the duty-holders like the court, counsellors, welfare experts and any
other collaborators to make efforts for reconciliation. Reconciliation is not always the restoration of
status quo ante; it can as well be a solution as acceptable to both parties. The principal thrust of the
law in family matters is to make an attempt for reconciliation before processing the disputes in the
legal framework. The child is of both parents and the child has a right to get the love and affection of
both the parents and also has a duty to love and respect both the parents.
ORDER
1. The petitioner has approached this Court seeking for transfer of O.P.(HMA) No.580 of 2015
filed for dissolution of marriage of the respondent and petitioner and O.P. No.1282 of 2012 filed
for custody of minor child, from the Court of Family Court, Alappuzha, Kerala to Family Court,
Chennai, Tamil Nadu.
2. When the matter came up for consideration before this Court, learned counsel appearing for
the respondent brought to our notice a decision rendered by a coordinate Bench of this Court in
Krishna Veni Nagam v. Harish Nagam1 and requested that there is no need to transfer the cases;
instead parties can be directed to avail the facility of video conferencing, as suggested by this
Court in the case referred to above.
3. In Krishna Veni Nagam (supra) a coordinate Bench of this Court went into the issue of
preventing the backlog of transfer petitions before the Courts. It appears that the Court also had
the assistance of an amicus. Having heard the learned Counsel on both the sides and learned
amicus, the Court finally, at paragraph-18, issued the following directions:-
“18. We, therefore, direct that in matrimonial or custody matters or in proceedings between
parties to a marriage or arising out of disputes between parties to a marriage, wherever
the defendants/respondents are located outside the jurisdiction of the court, the court where
proceedings are instituted, may examine whether it is in the interest of justice to incorporate
any safeguards for ensuring that summoning of defendant/respondent does not result in
denial of justice. Order incorporating such safeguards may be sent along with the summons.
The safeguards can be:-
i) Availability of video conferencing facility.
ii) Availability of legal aid service.
1 (2017) 4 SCC 150
—| 439 |—
iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.
iv) E-mail address/phone number, if any, at which litigant from out station may
communicate.”
4. We are informed that not only this Court but the High Courts and even the District Courts
are passing orders in the light of the judgment referred to above, relegating the parties to video
conferencing even where such facilities are not available. Thus, it is a situation not only of inter
State appeal or intra State appeal but also of intra District appeal.
5. Having due regard to the nature of family disputes sought to be addressed by the Parliament, we
are afraid, the Court in Krishna Veni Nagam (supra) has not been furnished with the required
information, before passing the order.
6. The Family Courts Act, 1984 was introduced with the following purpose:-
“INTRODUCTION
From time to time, it had been urged by several organisations of women, other organisations
and individuals that Family Courts be set-up for the settlement of family disputes. The Law
Commission in its 59th Report had also stressed that in dealing with disputes concerning
the family the court ought to adopt an approach radically different from that adopted in
ordinary civil proceedings and that it should make reasonable efforts at settlement before the
commencement of the trial. In 1976 the Code of Civil Procedure was also amended to provide
for a special procedure to be adopted in suits or proceedings relating to matters concerning
the family, but not much change in the attitude of the courts was noticed. Therefore, the need
was felt to establish Family Courts for speedy settlement of family disputes. Accordingly the
Family Courts Bill was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASONS
Several associations of women, other organisations and individuals have urged, from time
to time, that Family Courts be set up for the settlement of family disputes, where emphasis
should be laid on conciliation and achieving socially desirable results and adherence to rigid
rules of procedure and evidence should be eliminated. The Law Commission in its 59th report
(1974) had also stressed that in dealing with disputes concerning the family the court ought
to adopt an approach radically different from that adopted in ordinary civil proceedings
and that it should make reasonable efforts at settlement before the commencement of the
trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure
to be adopted in suits or proceedings relating to matters concerning the family. However, not
much use has been made by the courts in adopting this conciliatory procedure and the courts
continue to deal with family disputes in the same manner as other civil matters and the same
adversary approach prevails. The need was, therefore, felt, in the public interest, to establish
Family Courts for speedy settlement of family disputes.
2. The Bill, inter alia, seeks to-
(a) provide for establishment of Family Courts by the State Government;
(b) make it obligatory on the State Governments to set up a Family Court in every
city or town with a population exceeding one million;
—| 440 |—
(c) enable the State Governments to set up, such courts, in areas other than those
specified in (b) above;
(d) exclusively provide within the jurisdication of the Family Courts the matters
relating to-
(i) matrimonal relief, including nullity of marriage, judicial separation,
divorce, restitution of conjugal rights, or declaration as to the validity of
marriage or as to the matrimonial status of any person;
(ii) the property of the spouses or of either of them;
(iii) declaration as to the legitimacy of any person;
(iv) guardianship of a person or the custody of any minor;
(v) maintenance, including proceedings under Chapter IX of the Code of
Criminal Procedure;
(e) make it obligatory on the part of the Family Court to endeavour, in the first
instance to effect a reconciliation or a settlement between the parties to a family
dispute. During this stage, the proceedings will be informal and rigid rules of
procedure shall not apply;
(f) provide for the association of social welfare agencies, counsellors, etc., during
conciliation stage and also to secure the service of medical and welfare experts;
(g) provide that the parties to a dispute before a Family Court shall not be entitled,
as of right, to be represented by legal practitioner. However, the court may, in the
interest of justice, seek assistance of a legal expert as amicus curiae;
(h) simplify the rules of evidence and procedure so as to enable a Family Court to
deal effectively with a dispute;
(i) provide for only one right of appeal which shall lie to the High Court.
3. The Bill seeks to achieve the above objects.” (Emphasis supplied)
7. Section 9 of the Family Courts Act, 1984 makes it a mandatory duty of the Family Court to make
efforts for settlement. The said provision reads as follows:-
“9. Duty of Family Court to make efforts for settlement. (1) In every suit or proceeding,
endeavor shall be made by the Family Court in the first instance, where it is possible to do so
consistent with the nature and circumstances of the case, to assist and persuade the parties
in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for
this purpose a Family Court may, subject to any rules made by the High Court, follow such
procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there
is a reasonable possibility of a settlement between the parties, the Family Court may
adjourn the proceedings for such period as it thinks fit to enable attempts to be made
to effect such a settlement.
—| 441 |—
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of
any other power of the Family Court to adjourn the proceedings.” (Emphasis supplied)
8. In order to assist the Family Court, the Act has provided for association of social welfare agencies.
In Section 6 provision regarding counsellors, officers and other employees of Family Courts is
mentioned, which reads as follows:-
“6. Counsellors, officers and other employees of Family Courts. (1)The State Government shall
in consultation with the High Court, determine the number and categories of counsellors,
officers and other employees required to assist a Family Court in the discharge of its functions
and provide the Family Court with such counsellors, officers and other employees as it may
think fit.
(2) The terms and conditions of association of the counsellors and the terms and conditions
of service of the officers and other employees, referred to in sub-section (1), shall be
such as may be specified by rules made by the State Government.”
9. Section 12 provides for the assistance of medical and welfare experts, which reads as under:-
“12. Assistance of medical and welfare experts.-In every suit or proceedings, it shall be open to
a Family Court to secure the services of a medical expert or such person (preferably a woman
where available), whether related to the parties or not, including a person professionally
engaged in promoting the welfare of the family as the court may think fit, for the purposes of
assisting the Family Court in discharging the functions imposed by this Act.”
10. Section 11 provides that “in every suit or proceedings to which this Act applies, the proceedings
may be held in camera if the Family Court so desires and shall be so held if either party so
desires”.
11. Under the Hindu Marriage Act, 1955 also, in respect of the family matters, the Parliament has
made several provisions for reconciliation. Under Section 23(2) “before proceeding to grant any
relief under this Act, it shall be the duty of the court in the first instance, in every case where it
is possible so to do consistently with the nature and circumstances of the case, to make every
endeavour to bring about a reconciliation between the parties”.
12. Sub-section (3) of Section 23 of the Hindu Marriage Act further provides for methods to facilitate
the process, which reads as follows:-
“23 (3) For the purpose of aiding the court in bringing about such reconciliation, the court
may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the
proceedings for a reasonable period not exceeding fifteen days and refer the matter to
any person named by the parties in this behalf or to any person nominated by the court
if the parties fail to name any person, with directions to report to the court as to whether
reconciliation can be and has been effected and the court shall in disposing of the proceeding
have due regard to the report.” (Emphasis supplied)
13. Section 22 of the Hindu Marriage Act has given a very important safeguard for protecting the privacy
of the proceedings or prohibiting the printing and publishing of any proceedings before the Court,
except the printed judgment of the High Court or the Supreme Court. The section also provides for
the situation where the proceedings are to be held in camera. Section 22 reads as follows:-
—| 442 |—
“22 Proceedings to be in camera and may not be printed or published.(1) Every proceeding
under this Act shall be conducted in camera and it shall not be lawful for any person to print
or publish any matter in relation to any such proceeding except a judgment of the High Court
or of the Supreme Court printed or published with the previous permission of the Court.
(2) If any person prints or publishes any matter in contravention of the provisions contained
in sub-section (1), he shall be punishable with fine which may extend to one thousand
rupees.” (Emphasis supplied)
14. Section 26 of the Hindu Marriage Act deals with the custody of children, wherein it is mandatory
for the Court to ascertain the wish of the children as well before taking a decision on the custody.
The said section reads as follows:-
“26 Custody of children.- In any proceeding under this Act, the court may, from time to
time, pass such interim orders and make such provisions in the decree as it may deem just
and proper with respect to the custody, maintenance and education of minor children,
consistently with their wishes, wherever possible, and may, after the decree, upon application
by petition for the purpose, make from time to time, all such orders and provisions with
respect to the custody, maintenance and education of such children as might have been made
by such decree or interim orders in case the proceeding for obtaining such decree were still
pending, and the court may also from time to time revoke, suspend or vary any such orders
and provisions previously made:
Provided that the application with respect to the maintenance and education of the minor
children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed
of within sixty days from the date of service of notice on the respondent.” (Emphasis supplied)
15. Order XXXIIA of the Code of Civil Procedure was introduced in the year 1976. The same
pertains to “suits relating to matters concerning the family”. Rule 3 casts a duty on the Court to
make every effort for settlement in family matters, the said provision reads as follows:-
“3. Duty of court to make efforts for settlement.-
(1) In every suit or proceeding to which this Order applies, an endeavour shall be made by
the court in the first instance, where it is possible to do so consistent with the nature
and circumstances of the case, to assist the parties in arriving at a settlement in respect
of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage it appears to the court that there is a
reasonable possibility of a settlement between the parties, the court may adjourn the
proceeding for such period as it thinks fit to enable attempts to be made to effect such a
settlement.
(3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of,
any other power of the court to adjourn the proceedings.”
16. Rule 2 deals with in camera proceedings. Rule 4 provides for the assistance of a welfare expert
and Rule 5 casts a duty on the Court to “inquire, so far as it reasonably can, into the facts alleged
by the plaintiff and into any facts alleged by the defendant”.
—| 443 |—
17. Unfortunately, it seems, none of these mandatory procedures as laid down by the Parliament
have been brought to the notice of the Court while considering the case of Krishna Veni Nagam
(supra). The principal thrust of the law in family matters is to make an attempt for reconciliation
before processing the disputes in the legal framework. Reconciliation is not mediation. Neither
is it conciliation. No doubt, there is conciliation in reconciliation. But the concepts are totally
different. Similarly, there is mediation in conciliation but there is no conciliation in mediation.
In mediation, the role of the mediator is only to evolve solutions whereas in reconciliation, the
duty-holders have to take a proactive role to assist the parties to reach an amicable solution. In
conciliation, the conciliator persuades the parties to arrive at a solution as suggested by him in
the course of the discussions. In reconciliation, as already noted above, the duty-holders remind
the parties of the essential family values, the need to maintain a cordial relationship, both in the
interest of the husband and wife or the children, as the case may be, and also make a persuasive
effort to make the parties reconcile to the reality and restore the relationship, if possible. The
Family Courts Act expects the duty-holders like the court, counsellors, welfare experts and any
other collaborators to make efforts for reconciliation. However, reconciliation is not always the
restoration of status quo ante; it can as well be a solution as acceptable to both parties. In all
these matters, the approaches are different.
18. The role of a counsellor in Family Court is basically to find out what is the area of incompatibility
between the spouses, whether the parties are under the influence of anybody or for that matter
addicted to anything which affects the normal family life, whether they are taking free and
independent decisions, whether the incompatibility can be rectified by any psychological or
psychiatric assistance etc. The counsellor also assists the parties to resume free communication.
In custody matters also the counsellor assists the child, if he/she is of such age, to accept the
reality of incompatibility between the parents and yet make the child understand that the child
is of both parents and the child has a right to get the love and affection of both the parents and
also has a duty to love and respect both the parents etc. Essentially, the counsellor assists the
parents to shed their ego and take a decision in the best interest of the child.
19. To what extent the confidence and confidentiality will be safeguarded and protected in video
conferencing, particularly when efforts are taken by the counsellors, welfare experts, and for
that matter, the court itself for reconciliation, restitution of conjugal rights or dissolution of
marriage, ascertainment of the wishes of the child in custody matters, etc., is a serious issue
to be considered. It is certainly difficult in video conferencing, if not impossible, to maintain
confidentiality. It has also to be noted that the footage in video conferencing becomes part of
the record whereas the reconciliatory efforts taken by the duty-holders referred to above are
not meant to be part of the record. All that apart, in reconciliatory efforts, physical presence
of the parties would make a significant difference. Having regard to the very object behind the
establishment of Family Courts Act, 1984, to Order XXXIIA of the Code of Civil Procedure and
to the special provisions introduced in the Hindu Marriage Act under Sections 22, 23 and 26,
we are of the view that the directions issued by this Court in Krishna Veni Nagam (supra) need
reconsideration on the aspect of video conferencing in matrimonial disputes.
20. Therefore, we are of the view that the matter requires consideration by a larger Bench. The
Registry is directed to place the papers before Hon’ble the Chief Justice of India. We request
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Hon’ble the Chief Justice of India to expeditiously constitute a Bench havingregard to the
urgency of the matter.
.........................J.
[KURIAN JOSEPH]
........................J.
[R. BANUMATHI]
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO.1278 OF 2016
Bench : Hon’ble CJI, Hon’ble Mr. Justice Dipak Misra & Hon’ble Mr. Justice A.M. Khanwilkar
Santhini Petitioner(s)
Versus
Vijaya Venketesh Respondent(s)
WITH
Decided on 9 October, 2017
JUDGMENT
Hon’ble Mr. Justice Dipak Misra, CJI. [For himself and Khanwilkar, J.] A two-Judge Bench in Krishna
Veni Nagam v. Harish Nagam1, while dealing with transfer petition seeking transfer of a case instituted
under Section 13 of the Hindu Marriage Act, 1955 (for brevity, the 1955 Act) pending on the file of
IInd Signature Not Verified Presiding Judge, Family Court, Digitally signed by CHETAN KUMAR
Jabalpur, Madhya Pradesh to the Family Court, Hyderabad, Andhra Date: 2017.10.09 16:22:15 IST
Reason:
Pradesh, took note of the grounds of transfer and keeping in view the 1 (2017) 4 SCC 150 approach
of the Court to normally allow the transfer of the proceedings having regard to the convenience of
the wife, felt disturbed expressing its concern to the difficulties faced by the litigants travelling to this
Court and, accordingly, posed the question whether there was any possibility to avoid the same. It also
took note of the fact that in the process of hearing of the transfer petition, the matrimonial matters
which are required to be dealt with expeditiously are delayed. That impelled the Court to pass an order
on 09.01.2017 which enumerated the facts including the plight asserted by the wife, the concept of
territorial jurisdiction under Section 19 of the 1955 Act, and reflected on the issues whether transfer
of a case could be avoided and alternative mode could be thought of. Dwelling upon the said aspects,
the Court articulated:-
In these circumstances, we are prima facie of the view that we need to consider whether we could
pass a general order to the effect that in case where husband files matrimonial proceedings at
place where wife does not reside, the court concerned should entertain such petition only on the
condition that the husband makes appropriate deposit to bear the expenses of the wife as may be
determined by the Court. The Court may also pass orders from time to time for further deposit
to ensure that the wife is not handicapped to defend the proceedings. In other cases, the husband
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may take proceedings before the Court in whose jurisdiction the wife resides which may lessen
inconvenience to the parties and avoid delay. Any other option to remedy the situation can also
be considered. As the narration would exposit, the pivotal concern of the Court was whether an
order could be passed so as to provide a better alternative to each individual who is compelled
to move this Court.
2. The observation made in Anindita Das v. Srijit Das to the effect that on an average at least 10
to 15 transfer petitions are on board of each Court on each admission day was noticed. The
learned Judges apprised themselves about the observations made in Mona Aresh Goel v. Aresh
Satya Goel, Lalita A. Ranga v. Ajay Champalal Ranga, Deepa v. Anil Panicker, Archana Rastogi
v. Rakesh Rastogi, Leena Mukherjee v. Rabi Shankar Mukherjee, Neelam Bhatia v. Satbir Singh
Bhatia, Soma Choudhury v. Gourab Choudhaury, Rajesh Rani v. Tej Pal, Vandana Sharma v.
Rakesh Kumar Sharma and Anju Ohri v. Varinder Ohri which rest on the principle of expedient
for ends of justice to transfer the proceedings. It also adverted to Premlata Singh v. Rita Singh
wherein this Court 2 (2006) 9 SCC 197 3 (2000) 9 SCC 255 4 (2000) 9 SCC 355 5 (2000) 9 SCC
441 6 (2000) 10SCC 350 7 (2002) 10 SCC 480 8 (2004) 13 SCC 436 : (2006) 1 SCC (Cri) 323
9 (2004) 13 SCC 462 : (2006) 1 SCC (Cri) 341 10 (2007) 15 SCC 597 11 (2008) 11 SCC 768 12
(2007) 15 SCC 556 13 (2005) 12 SCC 277 had not transferred the proceedings but directed
the husband to pay for travelling, lodging and boarding expenses of the wife and/or person
accompanying her for each hearing. The said principle was also followed in Gana Saraswathi v.
H. Raghu Prasad.
3. The two-Judge Bench, after hearing the learned counsel for the parties, the learned Additional
Solicitor General and the learned Senior Counsel who was requested to assist the Court, made
certain references to the doctrine of forum non conveniens and held that it can be applied to
matrimonial proceedings for advancing the interest of justice. The learned Additional Solicitor
General assisting the Court suggested about conducting the proceedings by videoconferencing.
In that context, it has been held:-
14. One cannot ignore the problem faced by a husband if proceedings are transferred on
account of genuine difficulties faced by the wife. The husband may find it difficult to
contest proceedings at a place which is convenient to the wife. Thus, transfer is not always
a solution acceptable to both the parties. It may be appropriate that available technology
of videoconferencing is used where both the parties have equal difficulty and there is
no place which is convenient to both the parties. We understand that in every district
in the country videoconferencing is now available. In any case, wherever such facility is
available, it ought to be fully utilised and all the High Courts ought to issue appropriate
administrative instructions to regulate the use of videoconferencing for certain category of
cases. Matrimonial cases where one of the parties resides outside courts jurisdiction is one
of such 14 (2000) 10 SCC 277 categories. Wherever one or both the parties make a request
for use of videoconferencing, proceedings may be conducted on videoconferencing,
obviating the needs of the party to appear in person. In several cases, this Court has
directed recording of evidence by video conferencing.
xxxx
—| 446 |—
16. The advancement of technology ought to be utilised also for service on parties or receiving
communication from the parties. Every District Court must have at least one e-mail ID.
Administrative instructions for directions can be issued to permit the litigants to access
the court, especially when litigant is located outside the local jurisdiction of the Court. A
designated officer/manager of a District Court may suitably respond to such e-mail in the
manner permitted as per the administrative instructions. Similarly, a manager/information
officer in every District Court may be accessible on a notified telephone during notified
hours as per the instructions. These steps may, to some extent, take care of the problems of
the litigants. These suggestions may need attention of the High Courts. [Emphasis added]
4. After so stating, the two-Judge Bench felt the need to issue directions which may provide
alternative to seeking transfer of proceedings on account of inability of a party to contest
proceedings at a place away from their ordinary residence which will eventually result in denial
of justice. The safeguards laid down in the said judgment are:-
(i) Availability of videoconferencing facility.
(ii) Availability of legal aid service.
State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601 : 2003 SCC (Cri) 815; Kalyan
Chandra Sarkar v. Rajesh Ranjan, (2005) 3 SCC 284 : 2005 SCC (Cri) 705; Budhadev
Karmaskar (4) v. State of W.B., (2011) 10 SCC 283 : (2012) 1 SCC (Cri) 285; Malthesh
Gudda Pooja v. State of Karnataka, (2011) 15 SCC 330 : (2014) 2 SCC (Civ)
(iii) Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC.
(iv) E-mail address/phone number, if any, at which litigant from outstation may communicate.
Be it stated, the Court took note of the spirit behind the orders of this Court allowing the
transfer petitions filed by wives and opined that the Court almost mechanically allows the
petitions so that they are not denied justice on account of their inability to participate in
proceedings instituted at a different place. It laid stress on financial or physical hardship. It
referred to the authorities in the constitutional scheme that provide for guaranteeing equal
access to justice, power of the State to make special provisions for women and children,
duty to uphold the dignity of women and various steps that have been taken in the said
direction.
5. In the said case, the Court transferred the case as prayed for and further observed that it will be
open to the transferee court to conduct the proceedings or record the evidence of the witnesses
who are unable to appear in court by way of videoconferencing. The aforesaid decision was
brought to the notice of the two-Judge Bench in the instant case by the learned counsel appearing
for the respondent who advanced his submission that there is no need to transfer the case and
the parties can be directed to avail the facility of videoconferencing. The two-Judge Bench, after
referring to the Statement of Objects and Reasons of the Family Courts Act, 1984 (for brevity,
the 1984 Act), various provisions of the said Act, Sections 22, 23 and 26 of the 1955 Act, Rules
2, 3 and 4 of Order XXXIIA which were inserted by the 1976 amendment to the Code of Civil
Procedure (for short, the CPC), the concept of reconciliation, the role of the counsellors in the
Family Court and the principle of confidence and confidentiality, held:-
—| 447 |—
19. To what extent the confidence and confidentiality will be safeguarded and protected in
video conferencing, particularly when efforts are taken by the counsellors, welfare experts,
and for that matter, the court itself for reconciliation, restitution of conjugal rights or
dissolution of marriage, ascertainment of the wishes of the child in custody matters, etc.,
is a serious issue to be considered. It is certainly difficult in video conferencing, if not
impossible, to maintain confidentiality. It has also to be noted that the footage in video
conferencing becomes part of the record whereas the reconciliatory efforts taken by the
duty-holders referred to above are not meant to be part of the record. All that apart, in
reconciliatory efforts, physical presence of the parties would make a significant difference.
Having regard to the very object behind the establishment of Family Courts Act, 1984, to
Order XXXIIA of the Code of Civil Procedure and to the special provisions introduced
in the Hindu Marriage Act under Sections 22, 23 and 26, we are of the view that the
directions issued by this Court in Krishna Veni Nagam (supra) need reconsideration on
the aspect of video conferencing in 12 matrimonial disputes. Being of this view, it has
referred the matter to be considered by a larger Bench. That is how the matter has been
placed before us.
6. We have heard Mr. V.K. Sidharthan, learned counsel for the petitioner and Mr. Rishi Malhotra,
learned counsel for the respondent. We have also heard Mr. Ajit Kumar Sinha, learned senior
counsel who has been requested to assist the Court.
7. Before we refer to the scheme under the 1984 Act and the 1955 Act, we think it apt to refer to
the decisions that have been noted in Krishna Veni Nagam (supra). In Mona Aresh Goel (supra),
the three-Judge Bench was dealing with the transfer of the matrimonial proceedings for divorce
that was instituted by the husband in Bombay. The prayer of the wife was to transfer the case
from Bombay to Delhi. The averment was made that the wife had no independent income and
her parents were not in a position to bear the expenses of her travel from Delhi to Bombay
to contest the divorce proceedings. That apart, various inconveniences were set forth and the
husband chose not to appear in the Transfer Petition. The Court, considering the difficulties
of the wife, transferred the case from Bombay to Delhi. In Lalita A. Ranga (supra), the Court,
taking note of the fact that the husband had not appeared and further appreciating the facts and
circumstances of the case, thought it appropriate to transfer the petition so that the wife could
contest the proceedings. Be it noted, the wife had a small child and she was at Jaipur and it was
thought that it would be difficult for her to go to Bombay to contest the proceedings from time
to time. In Deepas case, the stand of the wife was that she was unemployed and had no source
of income and, on that basis, the prayer of transfer was allowed. In Archana Rastogi (supra),
the Court entertained the plea of transfer and held that the prayer for transfer of matrimonial
proceedings taken by the husband in the Court of District Judge, Chandigarh to the Court of
District Judge, Delhi deserved acceptance and, accordingly, transferred the case. Similarly, in
Leena Mukherjee (supra), the prayer for transfer was allowed. In Neelam Bhatia (supra), the
Court declined to transfer the case and directed the husband to bear the to-and-fro travelling
expenses of the wife and one person accompanying her by train whenever she actually appeared
before the Court. In Soma Choudhury (supra), taking into consideration the difficulties of
the wife, the proceedings for divorce were transferred from the Court of District Judge, South
Tripura, Udaipur (Tripura) to the Family Court at Alipore (West Bengal). In Anju Ohri (supra),
the Court, on the foundation of the convenience of the parties and the interest of justice, allowed
—| 448 |—
the transfer petition preferred by the wife. In Vandana Sharma (supra), the Court, taking note
of the fact that the wife had two minor daughters and appreciating the difficulty on the said
bedrock, thought it appropriate to transfer the case and, accordingly, so directed.
8. Presently, we think it condign to advert in detail as to what has been stated in Anindita Das
(supra). The stand of the wife in the transfer petition was that she had a small child of six
years and had no source of income and it was difficult to attend the court at Delhi where the
matrimonial proceedings were pending. The two-Judge Bench referred to some of the decisions
which we have already referred to and also adverted to Ram Gulam Pandit v. Umesh J. Prasad
and Rajwinder Kaur v. Balwinder Singh and opined that all the authorities are based on the
facts of the respective cases and they do not lay down any particular law which operates as a
precedent. Thereafter, it noted that taking advantage of the leniency shown to the ladies by this
Court, number of transfer petitions are filed by women and, therefore, it is required to consider
each petition on merit. Then, the Court dwelled upon the fact situation and directed that the
husband shall pay all travel and stay expenses to the wife and her companion for each and every
occasion whenever she was required to attend the Court at Delhi. From the aforesaid decision,
it is quite vivid that the Court felt that the transfer petitions are to be considered on their own
merits and not to be disposed of in a routine manner.
9. Having noted the authorities relating to transfer of matrimonial disputes, we may refer to Section
25 of the CPC which reads as follows:-
Section 25. Power of Supreme Court to transfer suits, etc.- (1) On the application of a party, and
after notice to the parties, and after hearing such of them as desire to be heard, the Supreme
Court may, at any stage, if satisfied that an order under this section is expedient for the ends of
justice, direct that any suit, appeal or other proceedings be transferred from a High Court or
other Civil Court in one State to a High Court or other Civil Court in any other State.
(2) Every application under this section shall be made by motion which shall be supported by
an affidavit.
(3) The court to which such suit, appeal or other proceeding is transferred shall, subject to
any special directions in the order of transfer, either re-try it or proceed from the stage at
which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is of
opinion that the application was frivolous or vexatious, order the applicant to pay by way
of compensation to any person who has opposed the application such sum, not exceeding
two thousand rupees, as it considers appropriate in the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under this section
shall be the law which the court in which the suit, appeal or other proceeding was originally
instituted ought to have applied to such Suit, appeal or proceeding.
10. Order XLI Rule 2 of the Supreme Court Rules, 2013 which deals with the application for transfer
under Article 139A(2) of the Constitution and Section 25 of the CPC is as follows:-
1. Every petition under article 139A(2) of the Constitution or Section 25 of the Code of Civil
Procedure, 1908, shall be in writing. It shall state succinctly and clearly all relevant facts
and particulars of the case, the name of the High Court or other Civil Court in which the
—| 449 |—
case is pending and the grounds on which the transfer is sought. The petition shall be
supported by an affidavit.
2. The petition shall be posted before the Court for preliminary hearing and orders as to issue
of notice. Upon such hearing the Court, if satisfied that no prima facie case for transfer has
been made out, shall dismiss the petition and if upon such hearing the Court is satisfied
that a prima facie case for granting the petition is made out, it shall direct that notice be
issued to the parties in the case concerned to show cause why the case be not transferred.
A copy of the Order shall be transmitted to the High Court concerned.
3. The notice shall be served not less than four weeks before the date fixed for the final
hearing of the petition. Affidavits in opposition shall be filed in the Registry not later than
one week before the date appointed for hearing and the affidavit in reply shall be filed not
later than two days preceding the day of the hearing of the petition. Copies of affidavits in
opposition and in reply shall be served on the opposite party or parties and the affidavits
shall not be accepted in the Registry unless they contain an endorsement of service signed
by such party or parties.
4. The petition shall thereafter be listed for final hearing before the Court.
5. Save as otherwise provided by the rules contained in this Order the provisions of other
orders (including Order LI) shall, so far as may be, apply to petition under this Order. The
purpose of referring to the same is that this Court has been conferred with the power by
the Constitution under Article 139A(2) to transfer the cases and has also been conferred
statutory jurisdiction to transfer the cases. The Rules have been framed accordingly. The
Court has the power to allow the petition seeking transfer or to decline the prayer and
indubitably, it is on consideration of the merits of the case and satisfaction of the Court on
that score.
11. Having stated thus, it is necessary to appreciate the legistative purpose behind the 1984 Act. The
Family Courts have been established for speedy settlement of family disputes. The Statement of
Objects and Reasons reads thus:-
Statement of Objects and Reasons Several associations of women, other organizations and
individuals have urged, from time to time, that Family Courts be set up for the settlement of
family disputes, where emphasis should be laid on conciliation and achieving socially desirable
results and adherence to rigid rules of procedure and evidence should be eliminated. The Law
Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning
the family the court ought to adopt an approach radically different from that adopted in
ordinary civil proceedings and that it should make reasonable efforts at settlement before the
commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a
special family.
However, not much use has been made by the courts in adopting this conciliatory procedure
and the courts continue to deal with family disputes in the same manner as other civil matters
and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to
establish Family Courts for speedy settlement of family disputes.
2. The Bill inter alia, seeks to
—| 450 |—
(a) provide for establishment of Family Courts by the State Governments;

(b) make it obligatory on the State Governments to set up a Family Court in every city
or town with a population exceeding one million;
(c) enable the State Governments to set up, such courts, in areas other than those
specified in (b) above.
(d) exclusively provide within the jurisdiction of the Family Courts the matters relating
to
(i) matrimonial relief, including nullity of marriage, judicial separation, divorce,
restitution of conjugal rights, or declaration as to the validity of marriage or as
to the matrimonial status of any person;
(ii) the property of the spouses or of either of them;
(iii) declaration as to the legitimacy of any person;
(iv) guardianship of a person or the custody of any minor;
(v) maintenance, including proceedings under Chapter IX of the Code of Criminal
Procedure;
(e) Make it obligatory on the part of the Family Court to endeavour, in the first instance
to effect a reconciliation or a settlement between the parties to a family dispute.
During this stage, the proceedings will be informal and rigid rules of procedure
shall not apply;
(f) provide for the association of social welfare agencies, counselors, etc., during
conciliation stage and also to secure the service of medical and welfare experts;
(g) provide that the parties to a dispute before a Family Court shall not be entitled, as of
right, to be represented by legal practitioner. However, the court may, in the interest
of justice, seek assistance of a legal expert as amicus curiae,
(h) simplify the rules of evidence and procedure so as to enable a Family Court to deal
effectively with a dispute;
(i) provide for only one right of appeal which shall lie to the High Court.
3. The Bill seeks to achieve the above objects.
12. The preamble of the 1984 Act provides for the 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.
13. Presently, we may recapitulate how this Court has dealt with the duty and responsibility of the
Family Court or a Family Court Judge. In Bhuwan Mohan Singh v. Meena and others, the three-
Judge Bench referred to the decision in K.A. Abdul Jaleel v. T.A. Shahida and laid stress on
securing speedy settlement of disputes relating to marriage and family affairs. Emphasizing on
the role of the Family Court Judge, the Court in Bhuwan Mohan Singh (supra) expressed its
anguish as the proceedings before the family court had continued for a considerable length
—| 451 |—
of time in respect of application filed under Section 125 of the Code of Criminal Procedure
(CrPC). The Court observed:-
It has come to the notice of the Court that on certain occasions the Family Courts have been
granting adjournments in a routine manner as a consequence of which both the parties suffer
or, on certain occasions, the wife becomes the worst victim.
When such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge
is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive
issues pertaining to the marriage and issues ancillary thereto.
When we say this, we do not mean that the Family Courts should show undue haste or
impatience, but there is a distinction between impatience and to be wisely anxious and conscious
about dealing with a situation. A Family Court Judge should remember that the procrastination
is the greatest assassin of the lis before it. It not only gives rise to more family problems but
also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration
of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the
awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for
the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional
fragmentation and delay can feed it to grow.
And again:
We hope and trust that the Family Court Judges shall remain alert to this and decide the matters
as expeditiously as possible keeping in view the Objects and Reasons of the Act and the scheme
of various provisions pertaining to grant of maintenance, divorce, custody of child, property
disputes, etc.
14. The said passage makes it quite clear that a Family Court Judge has to be very sensitive to the
cause before it and he/she should be conscious about timely delineation and not procrastinate
the matter as delay has the potentiality to breed bitterness that eventually corrodes the emotions.
The Court has been extremely cautious while stating about patience as a needed quality for
arriving at a settlement and the need for speedy settlement and, if not possible, proceeding with
meaningful adjudication. There must be efforts for reconciliation, but the time spent in the said
process has to have its own limitation.
15. In Shamima Farooqui v. Shahid Khan, after referring to the earlier decisions, especially the
above quoted passages, the Court expressed:-
When the aforesaid anguish was expressed, the predicament was not expected to be removed
with any kind of magic. However, the fact remains, these litigations can really corrode the
human relationship not only today but will also have the impact for years to come and has the
potentiality to take a toll on the society. It occurs either due to the uncontrolled design of the
parties or the lethargy and apathy shown by the Judges who man the Family Courts. As far as
the first aspect is concerned, it is the duty of the courts to curtail them. There need not be hurry
but procrastination should not be manifest, reflecting the attitude of the court. As regards the
second facet, it is the duty of the court to have the complete control over the proceeding and not
permit the lis to swim the unpredictable grand river of time without knowing when shall it land
on the shores or take shelter in a corner tree that stands still on some unknown bank of the river.
—| 452 |—
It cannot allow it to sing the song of the brook. Men may come and men may go, but I go on
forever. This would be the greatest tragedy that can happen to the adjudicating system which is
required to deal with most sensitive matters between the man and wife or other family members
relating to matrimonial and domestic affairs. There has to be a proactive approach in this regard
and the said approach should be instilled in the Family Court Judges by the Judicial Academies
functioning under the High Courts. For the present, we say no more. [Underlining is ours]
16. The object of stating this is that the legislative intent, the schematic purpose and the role
attributed to the Family Court have to be perceived with a sense of sanctity. The Family Court
Judge should neither be a slave to the concept of speedy settlement nor should he be a serf to
the proclivity of hurried disposal abandoning the inherent purity of justice dispensation system.
The balanced perception is the warrant and that is how the scheme of the 1984 Act has to be
understood and appreciated.
17. Let us now proceed to analyse the fundamental intent of the scheme of the 1984 Act. Section 4
of the 1984 Act deals with the appointment of the judges. Section 5 provides for association of
social welfare agencies, etc. It engrafts that the State Government may, in consultation with the
High Court, provide, by rules, for the association in such manner and for such purposes and
subject to such conditions as may be specified in the rules, with a Family Court of institutions
or organisations engaged in social welfare or the representatives thereof; persons professionally
engaged in promoting the welfare of the family; persons working in the field of social welfare;
and any other person whose association with a Family Court would enable it to exercise its
jurisdiction more effectively in accordance with the purposes of the 1984 Act. The aforesaid
provision, as is evident, conceives involvement of institutions or organizations engaged in social
welfare or their representatives and professionals engaged in promoting the welfare of the family
for the purpose of effective functioning of the Family Court to sub-serve the purposes of the
Act. Thus, the 1984 Act, to achieve its purpose, conceives of involvement of certain categories
so that, if required, the Family Court can take their assistance to exercise its jurisdiction in an
effective manner.
18. Section 6 provides for counselors, officers and other employees of Family Courts. Section 7
deals with the jurisdiction of the Family Court. The jurisdiction conferred on the Family Court,
as we perceive, is quite extensive. It confers power in a Family Court to exercise jurisdiction
exercisable by any district court or any subordinate civil court under any law relating to a suit
or a proceeding between the parties to a marriage or a decree of a nullity of marriage declaring
the marriage to be null and void or annulling the marriage, as the case may be, or restitution of
conjugal rights or judicial separation or dissolution of marriage. It has the authority to declare
as to the validity of a marriage so as to annul the matrimonial status of any person and also the
power to entertain a proceeding with respect to the property of the parties to a marriage or either
of them. The Family Court has the jurisdiction to pass an order or injunction in circumstances
arising out of a marital relationship, declare legitimacy of any person and deal with proceedings
for grant of maintenance, guardianship of the person or the custody of or access to any minor.
That apart, it has also been conferred the authority to deal with the applications for grant of
maintenance for wife and children and parents as provided under the CrPC.
19. Section 9 prescribes the duty of the Family Court to make efforts for settlement by rendering
assistance and persuading the parties for arriving at a settlement in respect of the subject matter
—| 453 |—
of the suit or proceeding. For the said purpose, it may follow the procedure laid down by the
High Court. If in any suit or proceeding, at any stage, it appears to the Family Court that there is
a reasonable opportunity of settlement between the parties, it may adjourn the proceedings for
such period as it thinks fit to enable attempts to be made to effect such a settlement.
20. Section 11 provides for proceedings to be held in camera. The provision, being significant, is
reproduced below:-
Section 11. Proceedings to be held in camera.In every suit or proceedings to which this Act
applies, the proceedings may be held in camera if the Family Court so desires and shall be so
held if either party so desires. On a plain reading of the aforesaid provision, it is limpid that if the
Family Court desires, the proceedings should be held in camera and it shall be so held if either
of the parties so desires. A reading of the said provision, as it seems to us, indicates that, once
one party makes a prayer for holding the proceedings in camera, it is obligatory on the part of
the Family Court to do so.
21. Section 12 stipulates for assistance of medical and welfare experts for assisting the Family Court
in discharging the functions imposed by the Act.
22. At this juncture, it is profitable to refer to certain provisions of the 1955 Act. Section 22 of the
said Act provides for proceedings to be in camera and stipulates that the proceeding may not
be printed or published. Section 23(2) of the 1955 Act enjoins that before proceeding to grant
any relief under this Act, it shall be the duty of the court in the first instance, in every case
where it is possible to do so consistently with the nature and circumstances of the case, to make
every endeavour to bring about a reconciliation between the parties. The said provision is not
applicable to any proceeding wherein relief is sought on any of the grounds specified in clause
(ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of Section 13.
Sub-section (3) of Section 23 permits the Court to take aid of a person named by the parties
or of any person nominated by the Court to bring out a resolution. It enables the Court, if it so
thinks, to adjourn the proceedings for a reasonable period not exceeding fifteen days and refer
the matter to any person named by the parties in this behalf or to any person nominated by the
court if the parties fail to name any person, with directions to report to the court as to whether
reconciliation can be and has been effected and the court shall, in disposing of the proceeding,
have due regard to the report.
23. It is worthy to note here that the reconciliatory measures are to be taken at the first instance and
emphasis is on efforts for reconciliation failing which the court should proceed for adjudication
and the command on the Family Court is to hold it in camera if either party so desires.
24. Section 26 of the 1955 Act deals with custody of children. It empowers the court, from time to
time, to pass such interim orders and make such provisions in the decree as it may deem just and
proper with respect to the custody, maintenance and education of minor children consistently
with their wishes, wherever possible, and the Government may, after the decree, upon application
by petition for the purpose, make from time to time, all such orders and provisions with respect
to the custody, maintenance and education of such children as might have been made by such
decree or interim orders in case the proceedings for obtaining such decree were still pending, and
the court may also, from time to time, revoke, suspend or vary any such orders and provisions
previously made. The proviso appended thereto postulates that the application with respect to
—| 454 |—
the maintenance and education of the minor children, pending the proceeding for obtaining
such decree, shall, as far as possible, be disposed of within sixty days from the date of service of
notice on the respondent.
25. It is to be borne in mind that in a matter relating to the custody of the child, the welfare of
the child is paramount and seminal. It is inconceivable to ignore its importance and treat it as
secondary. The interest of the child in all circumstances remains vital and the Court has a very
affirmative role in that regard. Having regard to the nature of the interest of the child, the role
of the Court is extremely sensitive and it is expected of the Court to be pro-active and sensibly
objective.
26. In Mausami Moitra Ganguli v. Jayant Ganguli, it has been held that the principles of law in
relation to the custody of a minor child are well settled. While determining the question as to
which parent the care and control of a child should be committed, the first and the paramount
consideration is the welfare and interest of the child and not the rights of the parents under a
statute. The provisions contained in the Guardians and Wards Act, 1890 and the Hindu Minority
and Guardianship Act, 1956 hold out the welfare of the child as a predominant consideration
because no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare
of the minor.
27. In the said case, a passage from Halsburys Laws of England (4 th Edn., Vol. 13) was reproduced
which reads thus:-
809. Principles as to custody and upbringing of minors. Where in any proceedings before any
court, the custody or upbringing of a minor is in question, the court, in deciding that question,
must regard the welfare of the minor as the first and paramount consideration, and must not
take into consideration whether from any other point of view the claim of the father in respect
of such custody or upbringing is superior to that of the mother, or the claim of the mother is
superior to that of the father. In relation to the custody or upbringing of a minor, a mother has
the same rights and authority as the law allows to a father, and the rights and authority of mother
and father are equal and are exercisable by either without the other.
28. In Rosy Jacob v. Jacob A. Chakramakkal, the Court ruled that the children are not mere chattels,
nor are they mere playthings for their parents. Absolute right of parents over the destinies and the
lives of their children has, in the modern changed social conditions, yielded to the considerations
of their welfare as human beings so that they may grow up in a normal balanced manner to be
useful members of the society and the guardian court in case of a dispute between the mother
and the father is expected to strike a just and proper balance between the requirements of welfare
of the minor children and the rights of their respective parents over them.
29. In Vikram Vir Vohra v. Shalini Bhalla, the Court took note of the fact that the learned Judge
of the High Court had personally interviewed the child who was seven years old to ascertain
his wishes. The two Judges of this Court also interacted with the child in the chambers in the
absence of his parents to find out about his wish and took note of the fact that the child was aged
about 10 years and was at an informative and impressionable stage and eventually opined that
the order passed by the High Court affirming the order of the trial Court pertaining to visitation
rights of the father had been so structured that it was compatible with the educational career
of the child and the rights of the father and the mother had been well balanced. It is common
—| 455 |—
knowledge that in most of the cases relating to guardianship and custody, the Courts interact
with the child to know her/his desire keeping in view the concept that the welfare of the child is
paramount.
30. It is essential to reflect on the reasoning ascribed in Krishna Veni Nagam (supra). As we understand,
the two-Judge Bench has taken into consideration the number of cases filed before this Court
and the different approaches adopted by this Court, the facet of territorial jurisdiction, doctrine
of forum non-conveniens which can be applicable to matrimonial proceedings for advancing
the interest of justice, the problems faced by the husband, the recourse taken by this Court to
videoconferencing in certain cases and on certain occasions, the advancement of technology,
the role of the High Courts to issue appropriate administrative instructions to regulate the use
of videoconferencing for certain categories of cases and ruled that the matrimonial cases where
one of the parties resides outside the courts jurisdiction do fall in one of such categories.
31. Before we proceed to analyse further, we would like to cogitate on the principles applied in the
decisions rendered in the context of videoconferencing. In State of Maharashtra v. Dr. Praful
B. Desai, the proceedings related to recording of evidence where the witness was in a foreign
country. In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr., the controversy
pertained to a criminal trial under Section 302 IPC wherein the Court, in exercise of power
under Article 142 of the Constitution, directed shifting of the accused from a jail in Patna to
Tihar Jail at Delhi. In that context, the Court permitted conducting of the trial with the aid of
videoconferencing.
In Budhadev Karmaskar (4) v. State of West Bengal, the issue of videoconferencing had arisen as
the lis related to rehabilitation of sex workers keeping in view the interpretation of this Court of
life to mean life of dignity.
32. In Malthesh Gudda Pooja v. State of Karnataka & Ors., the question that fell for consideration
was whether a Division Bench of the High Court, while considering a memo for listing an appeal
restored for fresh hearing, on grant of application for review by a co-ordinate Bench, could refuse
to act upon the order of review on the ground that the said order made by a Bench different from
the Bench which passed the original order granting review is a nullity. We need not dilate upon
what ultimately the Court said. What is necessary to observe is what arrangement should be
made in case of a High Court where there are Principal Seat and Circuit Benches and Judges
move from one Bench to another for some time and decide the matters and review is filed. In
that context, the Court opined:-
when two Judges heard the matter at a Circuit Bench, the chances of both Judges sitting again
at that place at the same time, may not arise. But the question is in considering the applications
for review, whether the wholesome principle behind Order 47 Rule 5 of the Code and Chapter
3 Rule 5 of the High Court Rules providing that the same Judges should hear it, should be
dispensed with merely because of the fact that the Judges in question, though continue to be
attached to the Court are sitting at the main Bench, or temporarily at another Bench. In the
interests of justice, in the interests of consistency in judicial pronouncements and maintaining
the good judicial traditions, an effort should always be made for the review application to be
heard by the same Judges, if they are in the same Court. Any attempt to too readily provide for
—| 456 |—
review applications to be heard by any available Judge or Judges should be discouraged. And
further:-
With the technological innovations available now, we do not see why the review petitions should
not be heard by using the medium of video conferencing.
33. The aforesaid pronouncements, as we find, are absolutely different from a controversy which
is involved in matrimonial proceedings which relate to various aspects, namely, declaration
of marriage as a nullity, dissolution of marriage, restitution of marriage, custody of children,
guardianship, maintenance, adjudication of claim of stridhan, etc. The decisions that have been
rendered cannot be regarded as precedents for the proposition that videoconferencing can be
one of the modes to regulate matrimonial proceedings.
34. The two-Judge Bench has also noted the constitutional scheme that provides for guaranteeing
equal access to justice and the power of the State to make special provisions for women and
children as enshrined under Article 15(3) of the Constitution and the duty to uphold the dignity
of women and the various steps taken in the said direction. The Court has also referred to Articles
243-D and 243-T of the Constitution under which provisions have been made for reservation for
women in Panchayats and Municipalities by the 1973 and 1974 amendments. It has also taken
note of the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) that underlines the awareness of the international commitments on the subject.
There is also reference to various authorities of the Court that have referred to the international
conventions and affirmative facet enshrined under Article 15(3) of the Constitution. We must
immediately clarify that these provisions of the Articles of the Constitution and the decisions
find place in the footnote of the judgment to highlight the factum that various steps have been
taken to uphold the dignity of women.
35. The two-Judge Bench has referred to certain judgments to highlight the affirmative rights conferred
on women under the Constitution. We shall refer to them and explain how they are rendered
in a different context and how conducting of matrimonial disputes through videoconferencing
would scuttle the rights of women and not expand the rights. In Mackinnon Mackenzie & Co.
Ltd v. Audrey Dcosta and another, the Court dealt with the principle of applicability of equal pay
for equal work to lady stenographers in the same manner as male stenographers. A contention
was advanced by the employer that this discrimination between the two categories had been
brought out not merely on the ground of sex but the Court found it difficult to agree with the
contention and referred to various aspects and, eventually, did not interfere with the judgment
of the High Court that had granted equal remuneration to both male and female stenographers.
In Vishaka and others v. State of Rajasthan and others, the three-Judge Bench, taking note of
Articles 14, 15, 19(1)(g), 21 and 51-A and further highlighting the concept of gender equality
and the recommendations of CEDAW and the absence of domestic law, laid down guidelines
and norms for observation at work places and other institutions for the purpose of effective
enforcement of the basic human right of gender equality and sexual harassment and abuse,
more particularly, sexual harassment at work places.
36. In Arun Kumar Agrawal and another v. National Insurance Company Limited and others, the lis
arose pertaining to the criteria for determination of compensation payable to the dependants of
a woman who died in a road accident and who did not have regular source of income. Singhvi,
—| 457 |—
J. opined that it is highly unfair, unjust and inappropriate to compute the compensation payable
to the dependants of a deceased wife/mother who does not have a regular income by comparing
her services with that of a housekeeper or a servant or an employee who works for a fixed period.
The gratuitous services rendered by the wife/mother to the husband and children cannot be
equated with the services of an employee and no evidence or data can possibly be produced for
estimating the value of such services. Ganguly, J., in his concurring opinion, said that women
make a significant contribution at various levels. He referred to numerous authorities and ruled:-
63. Household work performed by women throughout India is more than US $612.8 billion per
year (Evangelical Social Action Forum and Health Bridge, p. 17). We often forget that the time
spent by women in doing household work as homemakers is the time which they can devote to
paid work or to their education. This lack of sensitiveness and recognition of their work mainly
contributes to womens high rate of poverty and their consequential oppression in society, as
well as various physical, social and psychological problems. The courts and tribunals should do
well to factor these considerations in assessing compensation for housewives who are victims of
road accidents and quantifying the amount in the name of fixing just compensation.
64. In this context the Australian Family Property Law has adopted a very gender sensitive
approach. It provides that while distributing properties in matrimonial matters, for instance,
one has to factor in the contribution made by a party to the marriage to the welfare of the
family constituted by the parties to the marriage and any children of the marriage, including any
contribution made in the capacity of a homemaker or parent.
37. In Voluntary Health Association of Punjab v. Union of India and others, the two-Judge Bench
which was dealing with the sharp decline in female sex ratio and mushrooming of various
sonography centers, issued certain directions keeping in view the provisions of the Medical
Termination of Pregnancy Act, 1971 and the Pre-Conception and Pre-Natal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996. The concurring opinion adverted to the
direction contained in point 9.8 of the main judgment which related to the steps taken by the State
Government and the Union Territory to educate the people of the necessity of implementing the
provisions of the said Act by conducting workshops as well as awareness camps at the State and
district levels. In the concurring opinion, reference was made to the authority in State of H.P. v.
Nikku Ram and M.C. Mehta v. State of T.N. and it was stated:-
A woman has to be regarded as an equal partner in the life of a man. It has to be borne in
mind that she has also the equal role in the society i.e. thinking, participating and leadership.
The legislature has brought the present piece of legislation with an intention to provide for
prohibition of sex selection before or after conception and for regulation of pre-natal diagnostic
techniques for the purposes of detecting genetic abnormalities or metabolic disorders or
chromosomal abnormalities or certain congenital malformations or sex-linked disorders and
for the prevention of their misuse for sex determination leading to female foeticide. The purpose
of the enactment can only be actualised and its object fruitfully realised when the authorities
under the Act carry out their functions with devotion, dedication and commitment and further
there is awakened awareness with regard to the role of women in a society.
38. In Charu Khurana and others v. Union of India and others, the controversy arose about the
prevalence of discrimination of gender equality in the film industry where women were not
—| 458 |—
allowed to become make-up artists and only allowed to work as hair-dressers. Referring to
various earlier judgments and Article 51-A(e), the Court observed:-
On a condign understanding of clause (e), it is clear as a cloudless sky that all practices derogatory
to the dignity of women are to be renounced. Be it stated, dignity is the quintessential quality of
a personality and a human frame always desires to live in the mansion of dignity, for it is a highly
cherished value. And again: The sustenance of gender justice is the cultivated achievement of
intrinsic human rights. Equality cannot be achieved unless there are equal opportunities and if a
woman is debarred at the threshold to enter into the sphere of profession for which she is eligible
and qualified, it is well-nigh impossible to conceive of equality. It also clips her capacity to earn
her livelihood which affects her individual dignity.
39. Eventually, directions were issued that women were eligible to become make-up artists. The
aforesaid decisions unequivocally lay stress and emphasis on gender equality and dignity of
women.
40. In Voluntary Health Association of Punjab v. Union of India and Ors, while dealing with female
foeticide, it has been observed:-
It needs no special emphasis that a female child is entitled to enjoy equal right that a male child
is allowed to have. The constitutional identity of a female child cannot be mortgaged to any kind
of social or other concept that has developed or is thought of. It does not allow any room for any
kind of compromise. It only permits affirmative steps that are constitutionally postulated. Be it
clearly stated that when rights are conferred by the Constitution, it has to be understood that
such rights are recognised regard being had to their naturalness and universalism. No one, let
it be repeated, no one, endows any right to a female child or, for that matter, to a woman. The
question of any kind of condescension or patronisation does not arise.
41. Emphasizing on the equality and dignity of women, it has been stated:-
... let it be stated with certitude and without allowing any room for any kind of equivocation
or ambiguity, the perception of any individual or group or organisation or system treating a
woman with inequity, indignity, inequality or any kind of discrimination is constitutionally
impermissible. The historical perception has to be given a prompt burial. Female foeticide is
conceived by the society that definitely includes the parents because of unethical perception
of life and nonchalant attitude towards law. The society that treats man and woman with equal
dignity shows the reflections of a progressive and civilised society. To think that a woman should
think what a man or a society wants her to think tantamounts to slaughtering her choice, and
definitely a humiliating act. When freedom of free choice is allowed within constitutional and
statutory parameters, others cannot determine the norms as that would amount to acting in
derogation of law.
42. In Vikas Yadav v. State of Uttar Pradesh and others, condemning honour killing, the Court after
referring to Lata Singh v. State of U.P. and Maya Kaur Baldevsingh Sardar v. State of Maharashtra,
has opined:-
One may feel My honour is my life but that does not mean sustaining ones honour at the cost of
another.
—| 459 |—
Freedom, independence, constitutional identity, individual choice and thought of a woman,

be a wife or sister or daughter or mother, cannot be allowed to be curtailed definitely not by
application of physical force or threat or mental cruelty in the name of his self-assumed honour.
That apart, neither the family members nor the members of the collective has any right to assault
the boy chosen by the girl. Her individual choice is her self-respect and creating dent in it is
destroying her honour. And to impose so-called brotherly or fatherly honour or class honour by
eliminating her choice is a crime of extreme brutality, more so, when it is done under a guise. It
is a vice, condemnable and deplorable perception of honour, comparable to medieval obsessive
assertions.
43. The aforesaid enunciation of law makes it graphically clear that the constitutional identity,
freedom of choice, dignity of a woman and affirmative rights conferred on her by the Constitution
cannot be allowed to be abrogated even for a moment. In this context, we have to scan and
appreciate the provision contained in Section 11 of the 1984 Act. The provision, as has been
stated earlier, mandates the proceedings to be held in camera if one of the parties so desires.
Equality of choice has been conferred by the statute. That apart, Section 22 of the 1955 Act lays
down the proceedings to be held in camera and any matter in relation to any such proceeding
may not be printed or published except a judgment of the High Court or of the Supreme Court
with the previous permission of the Court.
44. We, as advised at present, constrict our analysis to the provisions of the 1984 Act. First, as we
notice, the expression of desire by the wife or the husband is whittled down and smothered if
the Court directs that the proceedings shall be conducted through the use of videoconferencing.
As is demonstrable from the analysis of paragraph 14 of the decision, the Court observed
that wherever one or both the parties make a request for the use of videoconferencing, the
proceedings may be conducted by way of videoconferencing obviating the need of the parties
to appear in person. The cases where videoconferencing has been directed by this Court are
distinguishable. They are either in criminal cases or where the Court found it necessary that the
witness should be examined through videoconferencing. In a case where the wife does not give
consent for videoconferencing, it would be contrary to Section 11 of the 1984 Act. To say that
if one party makes the request, the proceedings may be conducted by videoconferencing mode
or system would be contrary to the language employed under Section 11 of the 1984 Act. The
said provision, as is evincible to us, is in consonance with the constitutional provision which
confer affirmative rights on women that cannot be negatived by the Court. The Family Court
also has the jurisdiction to direct that the proceedings shall be held in camera if it so desires and,
needless to say, the desire has to be expressed keeping in view the provisions of the 1984 Act.
45. The language employed in Section 11 of the 1984 Act is absolutely clear. It provides that if one of
the parties desires that the proceedings should be held in camera, the Family Court has no option
but to so direct. This Court, in exercise of its jurisdiction, cannot take away such a sanctified
right that law recognizes either for the wife or the husband. That apart, the Family Court has the
duty to make efforts for settlement. Section 23(2) of the 1955 Act mandates for reconciliation.
The language used under Section 23(2) makes it an obligatory duty on the part of the court
at the first instance in every case where it is possible, to make every endeavour to bring about
reconciliation between the parties where it is possible to do so consistent with the nature and
circumstances of the case. There are certain exceptions as has been enumerated in the proviso
—| 460 |—
which pertain to incurably of unsound mind or suffering from a virulent and incurable form of
leprosy or suffering from venereal disease in a communicable form or has renounced the world
by entering any religious order or has not been heard of as being alive for a period of seven years,
etc. These are the exceptions carved out by the legislature. The Court has to play a diligent and
effective role in this regard.
46. The reconciliation requires presence of both the parties at the same place and the same time so
as to be effectively conducted. The spatial distance will distant the possibility of reconciliation
because the Family Court Judge would not be in a position to interact with the parties in the
manner as the law commands. By virtue of the nature of the controversy, it has its inherent
sensitivity. The Judge is expected to deal with care, caution and with immense sense of worldly
experience absolutely being conscious of social sensibility. Needless to emphasise, this commands
a sense of trust and maintaining an atmosphere of confidence and also requirement of assurance
that the confidentiality is in no way averted or done away with. There can be no denial of this
fact. It is sanguinely private. Recently, in Justice K.S. Puttaswamy (Retd) v. Union of India &
others, this Court, speaking through one of us (Chandrachud, J.), has ruled thus:-
The intersection between ones mental integrity and privacy entitles the individual freedom of
thought, the freedom to believe in what is right, and the freedom of self-determination. When
these guarantees intersect with gender, they create a private space which protects all those
elements which are crucial to gender identity.
The family, marriage, procreation and sexual orientation are all integral to the dignity of the
individual. And again:
Privacy represents the core of the human personality and recognizes the ability of each individual
to make choices and to take decisions governing matters intimate and personal.
47. Frankfurter Felix in Schulte Co. v. Gangi, has stated that the policy of a statute should be drawn
out of its terms as nourished by their proper environment and not like nitrogen out of the air.
Benjamin N. Cardozo, in Hopkins Savings Assn. v. Cleary, has opined that when a statute is
reasonably susceptible of two interpretations, the Court has to prefer the meaning that preserves
to the meaning that destroys.
48. The command under Section 11 of the 1984 Act confers a right on both the parties. It is statutory
in nature. The Family Court Judge who is expected to be absolutely sensitive has to take stock
of the situation and can suo motu hold the proceedings in camera. The Family Court Judge is
only meant to deal with the controversies and disputes as provided under the 1984 Act. He is
not to be given any other assignment by the High Court. The in camera proceedings stand in
contradistinction to a proceeding which is tried in court. When a case is tried or heard in court,
there is absolute transparency. Having regard to the nature of the controversy and the sensitivity
of the matter, it is desirable to hear in court various types of issues that crop up in these types
of litigations. The Act commands that there has to be an effort for settlement. The legislative
intendment is for speedy settlement. The counsellors can be assigned the responsibility by the
court to counsel the parties. That is the schematic purpose of the law. The confidentiality of the
proceedings is imperative for these proceedings.
—| 461 |—
49. The procedure of videoconferencing which is to be adopted when one party gives consent is
contrary to Section 11 of the 1984 Act. There is no provision that the matter can be dealt with
by the Family Court Judge by taking recourse to videoconferencing. When a matter is not
transferred and settlement proceedings take place which is in the nature of reconciliation, it will
be well nigh impossible to bridge the gap. What one party can communicate with other, if they
are left alone for sometime, is not possible in videoconferencing and if possible, it is very doubtful
whether the emotional bond can be established in a virtual meeting during videoconferencing.
Videoconferencing may create a dent in the process of settlement.
50. The two-Judge Bench had referred to the decisions where the affirmative rights meant for women
have been highlighted in various judgments. We have adverted to some of them to show the
dignity of woman and her rights and the sanctity of her choice. When most of the time, a case is
filed for transfer relating to matrimonial disputes governed by the 1984 Act, the statutory right
of a woman cannot be nullified by taking route to technological advancement and destroying
her right under a law, more so, when it relates to family matters. In our considered opinion,
dignity of women is sustained and put on a higher pedestal if her choice is respected. That will
be in consonance with Article 15(3) of the Constitution.
51. In this context, we may refer to the fundamental principle of necessity of doing justice and trial
in camera. The nine-Judge Bench in Naresh Shridhar Mirajkar and Ors v. State of Maharashtra
and Anr.46, after enunciating the universally accepted proposition in favour of open trials,
expressed:-
While emphasising the importance of public trial, we cannot overlook the fact that the primary
function of the Judiciary is to do justice between the parties who bring their causes before it.
If a Judge trying a cause is satisfied that the very purpose of finding truth in the case would be
retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is
it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully?
If the primary function of the court is to do justice in causes brought before it, then on principle, it is
difficult to accede to the proposition that there can be no exception to the rule that all causes must be
tried in open court. If the principle that all trials before courts must be held in public was treated as
inflexible and universal and it is held that it admits of no exceptions whatever, cases may arise where
by following the principle, justice itself may be defeated. That is why we feel no hesitation in holding
that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly
and necessarily require the adoption of such a course. It is hardly necessary to emphasise that this
inherent power must be exercised with great caution and it is only if the court is satisfied beyond a
doubt that the ends of justice themselves would be defeated if a case is tried in open court that it can
pass an order to hold the trial in camera; but to deny the existence of such inherent power to the court
would be to ignore the primary object of adjudication itself. The principle underlying the insistence
on hearing causes in open court is to protect and assist fair, impartial and objective administration
of justice; but if the requirement of justice itself sometimes dictates the necessity of trying the case in
camera, it cannot be said that the said requirement should be sacrificed because of the principle that
every trial must be held in open court.
52. The principle of exception that the larger Bench enunciated is founded on the centripodal
necessity of doing justice to the cause and not to defeat it. In matrimonial disputes that are
covered under Section 7 of the 1984 Act where the Family Court exercises its jurisdiction, there
—| 462 |—
is a statutory protection to both the parties and conferment of power on the court with a duty
to persuade the parties to reconcile. If the proceedings are directed to be conducted through
videoconferencing, the command of the Section as well as the spirit of the 1984 Act will be in
peril and further the cause of justice would be defeated.
53. A cogent reflection is also needed as regards the perception when both the parties concur to have the
proceedings to be held through videoconferencing. In this context, the thought and the perception
are to be viewed through the lens of the textual context, legislative intent and schematic canvas.
The principle may had to be tested on the bedrock that courts must have progressive outlook
and broader interpretation with the existing employed language in the statute so as to expand the
horizon and the connotative expanse and not adopt a pedantic approach.
54. We have already discussed at length with regard to the complexity and the sensitive nature of
the controversies. The statement of law made in Krishna Veni Nagam (supra) that if either of
the parties gives consent, the case can be transferred, is absolutely unacceptable. However, an
exception can be carved out to the same. We may repeat at the cost of repetition that though
the principle does not flow from statutory silence, yet as we find from the scheme of the Act,
the Family Court has been given ample power to modulate its procedure. The Evidence Act is
not strictly applicable. Affidavits of formal witnesses are acceptable. It will be permissible for the
other party to cross-examine the deponent. We are absolutely conscious that the enactment gives
emphasis on speedy settlement. As has been held in Bhuwan Mohan Singh (supra), the concept
of speedy settlement does not allow room for lingering the proceedings. A genuine endeavour
has to be made by the Family Court Judge, but in the name of efforts to bring in a settlement or
to arrive at a solution of the lis, the Family Court should not be chained by the tentacles by either
parties. Perhaps, one of the parties may be interested in procrastinating the litigation. Therefore,
we are disposed to think that once a settlement fails and if both the parties give consent that a
witness can be examined in video conferencing, that can be allowed. That apart, when they give
consent that it is necessary in a specific factual matrix having regard to the convenience of the
parties, the Family Court may allow the prayer for videoconferencing. That much of discretion,
we are inclined to think can be conferred on the Family Court. Such a limited discretion will
not run counter to the legislative intention that permeates the 1984 Act. However, we would like
to add a safeguard. A joint application should be filed before the Family Court Judge, who shall
take a decision. However, we make it clear that in a transfer petition, no direction can be issued
for video conferencing. We reiterate that the discretion has to rest with the Family Court to be
exercised after the court arrives at a definite conclusion that the settlement is not possible and
both parties file a joint application or each party filing his/her consent memorandum seeking
hearing by videoconferencing.
55. Be it noted, sometimes, transfer petitions are filed seeking transfer of cases instituted under the
Protection of Women from Domestic Violence Act, 2005 and cases registered under the IPC.
As the cases under the said Act and the IPC have not been adverted to in Krishna Veni Nagam
(supra) or in the order of reference in these cases, we do intend to advert to the same.
56. In view of the aforesaid analysis, we sum up our conclusion as follows :-
(i) In view of the scheme of the 1984 Act and in particular Section 11, the hearing of
matrimonial disputes may have to be conducted in camera.
—| 463 |—
(ii) After the settlement fails and when a joint application is filed or both the parties file their
respective consent memorandum for hearing of the case through videoconferencing
before the concerned Family Court, it may exercise the discretion to allow the said prayer.
(iii) After the settlement fails, if the Family Court feels it appropriate having regard to the facts
and circumstances of the case that videoconferencing will sub-serve the cause of justice, it
may so direct.
(iv) In a transfer petition, video conferencing cannot be directed.
(v) Our directions shall apply prospectively.
(vi) The decision in Krishna Veni Nagam (supra) is overruled to the aforesaid extent
57. We place on record our appreciation for the assistance rendered by Mr. Ajit Kumar Sinha,
learned senior counsel.
58. The matters be placed before the appropriate Bench for consideration of the transfer petitions on
their own merits.
.CJI.
(Dipak Misra) ..J.
(A.M. Khanwilkar)
New Delhi.
October 9, 2017.

CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) No. 1278 OF 2016
(Before Hon’ble Dr. Justice D.Y. Chandrachud)
Santhini ..... Petitioner
Versus
Vijaya Venketesh ..... Respondent
WITH T.P. (C ) NO.422 OF 2017
JUDGMENT
Hon’ble Dr. Justice D.Y. Chandrachud :—

The judgment proposed by the learned Chief Justice has been circulated and deliberated upon. The
reasons why I am unable to adopt the view propounded in the judgment of the learned Chief Justice
will be delivered separately. I record below my conclusions:
1. The Family Courts Act, 1984 has been enacted at a point in time when modern technology (at
least as we know it today ) which enables persons separated by spatial distances to communicate
with each other face to face was not the order of the day or, in any case, was not as fully developed.
—| 464 |—
That is no reason for any court - especially for this court which sets precedent for the nation - to
exclude the application of technology to facilitate the judicial process.
2. Appropriate deployment of technology facilitates access to justice. Litigation under the Family
Courts Act 1984 is not an exception to this principle. This court must be averse to judicially
laying down a restraint on such use of technology which facilitates access to justice to persons in
conflict, including those involved in conflicts within the family. Modern technology is above all
a facilitator, enabler and leveler.
3. Video conferencing is a technology which allows users in different locations to hold face to face
meetings. Video conferencing is being used extensively the world over (India being no exception)
in on line teaching, administration, meetings, negotiation, mediation and telemedicine among
a myriad other uses. Video conferencing reduces cost, time, carbon footprint and the like.
4. An in-camera trial is contemplated under Section 11 in two situations: the first where the
Family Court so desires; and the second if either of the parties so desires. There is a fallacy
in the hypothesis that an in-camera trial is inconsistent with the usage of video conferencing
techniques. A trial in-camera postulates the exclusion of the public from the courtroom and
allows for restraints on public reporting. Video conferencing does not have to be recorded nor
is it accessible to the press or the public. The proper adoption of video conferencing does not
negate the postulates of an in-camera trial even if such a trial is required by the court or by one
of the parties under Section 11.
5. The Family Courts Act 1984 envisages an active role for the Family Court to foster settlements.
Under the provisions of Section 11, the Family Court has to endeavour to “assist and persuade”
parties to arrive at a settlement. Section 9 clearly recognises a discretion in the Family Court to
determine how to structure the process. It does so by adopting the words “where it is possible to
do so consistent with the nature and circumstances of the case”. Moreover, the High Courts can
frame rules under Section 9(1) and the Family Court may, subject to those rules, “follow such
procedure as it deems fit”. In the process of settlement, Section 10(3) enables the Family Court
to lay down its own procedure. The Family Court is entitled to take the benefit of counsellors,
medical experts and persons professionally engaged in promoting the welfare of the family.
6. The above provisions - far from excluding the use of video conferencing - are sufficiently enabling
to allow the Family Court to utilise technological advances to facilitate the purpose of achieving
justice in resolving family conflicts. There may arise a variety of situations where in today’s age
and time parties are unable to come face to face for counselling or can do so only at such expense,
delay or hardship which will defeat justice. One or both spouses may face genuine difficulties
arising from the compulsions of employment, family circumstances (including the needs of
young children), disability and social or economic handicaps in accessing a court situated in
a location distant from where either or both parties reside or work. It would be inappropriate
to deprive the Family Court which is vested with such wide powers and procedural flexibility
to adopt video conferencing as a facilitative tool, where it is convenient and readily available.
Whether video conferencing should be allowed must be determined on a case to case analysis to
best effectuate the concern of providing just solutions. Far from such a procedure being excluded
by the law, it will sub serve the purpose of the law.
—| 465 |—
7. Conceivably there may be situations where parties (or one of the spouses) do not want to be in
the same room as the other. This is especially true when there are serious allegations of marital
abuse. Video conferencing allows things to be resolved from the safety of a place which is not
accessible to the other spouse against whom there is a serious allegation of misbehaviour of a
psychiatric nature or in a case of substance abuse.
8. Video conferencing is gender neutral. In fact it ensures that one of the spouses cannot
procrastinate and delay the conclusion of the trial. Delay, it must be remembered, generally
defeats the cause of a party which is not the dominant partner in a relationship. Asymmetries
of power have a profound consequence in marital ties. Imposing an unwavering requirement of
personal and physical presence (and exclusion of facilitative technological tools such as video
conferencing) will result in a denial of justice.
9. The High Courts have allowed for video conferencing in resolving family conflicts. A body of
precedent has grown around the subject in the Indian context. The judges of the High Court
should have a keen sense of awareness of prevailing social reality in their states and of the
federal structure. Video conferencing has been adopted internationally in resolving conflicts
within the family. There is a robust body of authoritative opinion on the subject which supports
video conferencing, of course with adequate safeguards. Whether video conferencing should
be allowed in a particular family dispute before the Family Court, the stage at which it should
be allowed and the safeguards which should be followed should best be left to the High Courts
while framing rules on the subject. Subject to such rules, the use of video conferencing must be
left to the careful exercise of discretion of the Family Court in each case.
10. The proposition that video conferencing can be permitted only after the conclusion of settlement
proceedings (resultantly excluding it in the settlement process), and thereafter only when both
parties agree to it does not accord either with the purpose or the provisions of the Family Courts
Act 1984. Exclusion of video conferencing in the settlement process is not mandated either
expressly or by necessary implication by the legislation. On the contrary the legislation has
enabling provisions which are sufficiently broad to allow video conferencing. Confining it to the
stage after the settlement process and in a situation where both parties have agreed will seriously
impede access to justice. It will render the Family Court helpless to deal with human situations
which merit flexible solutions. Worse still, it will enable one spouse to cause interminable delays
thereby defeating the purpose for which a specialised court has been set up.
II The reference should in my opinion be answered in the above terms.
qqq
—| 466 |—
LATEST JUDGMENTS
OF
LATEST JUDGMENTS OF HIGH COURT OF JHARKHAND ON FAMILY MATTERS
BAGA TIRKEY VERSUS PINKI LINDA

IN THE HIGH COURT OF JHARKHAND AT RANCHI
2021 SUPREME (JHK) 125
Baga Tirkey ...Appellant
Versus
Pinki Linda ...Respondents
Decided on 08 April, 2021
Constitution of India, 1950 - Article-366 - Family Courts Act, 1984 Section 7(1)(a) – Divorce -
Statutory framework of the Family - Amicus Curiae has submitted a report after interaction with Tribal
Research Institute (TRI) and elderly persons Community convened by TRI - Some valuable inputs
have also been provided by National university of Studies and Research in law - Judicial Academy
Jharkhand also submitted are port prepared by Research Scholars containing statutory framework
of Family Courts’ Act and decisions rendered by different courts on matter concerning matrimonial
dispute between members of Schedule Tribe -Counsel for parties have also rendered assistance to
Court - Since suit was dismissed on ground of maintainability court are not entering into merits of
case of parties except taking note of foundational facts that they belong to Tribal Community and are
governed by Customary Laws – Held, Therefore on a detailed consideration of submissions of learned
counsel for parties and valuable assistance rendered by Amicus Curiae court are of considered opinion
that Family Court committed an error of jurisdiction in holding that suit instituted by petitioner/
appellant herein was not maintainable as there was no codified substantive law applicable to parties
to marriage like Hindu Marriage Act Special Marriage Act and Divorce Act - It also committed an
error in holding that petitioner is seeking relief of divorce on basis of customs and usage applicable to
parties which can be exercised only by Community Panchayat and not by Court of Law -Legislature
having consciously conferred jurisdiction upon Family Court to adjudicate on matters enumerating
under Clauses of Explanation to Section including suit or proceeding between parties marriage for
decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution
of marriage Family Court could not have held suit to be not maintainable as there is absence of a
substantive codified law governing parties - In view of aforesaid discussions and for reasons recorded
herein above impugned judgment cannot be upheld in eye of law - Matter is remanded to Family
Court for adjudication in accordance with law by framing proper issues as borne out from pleadings
of parties - Court made it clear that observations made herein above should not be treated as comment
upon merits of case of parties and are limited to answering only issue whether learned Family Court
was right in holding suit as not maintainable in absence of substantive codified law between parties -
Appeal allowed
Acts Referred:
CONSTITUTION OF INDIA : Art.366, Art.246(2), Art.21, Art.14
—| 469 |—
FAMILY COURTS ACT : S.7(1)(a), S.8, S.7, S.8(a)

HINDU MARRIAGE ACT : S.2(2), S.13
SPECIFIC RELIEF ACT : S.34, S.38
Cases Referred:
Bhanwar Lal & Anr. Versus Rajasthan Board of Muslim Wakf & Ors., reported in (2014) 16 SCC 51
R. Versus Secretary of State for Home Department, ex p Leech 1993 (4) All E.R. 539 (CA)
K.A. Abdul Jaleel Versus T.A. Shahida, reported in (2003) 4 SCC 166
Balram Yadav Versus Fulmaniya Yadav, reported in (2016) 13 SCC 308
Samar Kumar Roy Versus Jharna Bera, reported in (2017) 9 SCC 591
Rajendra Kumar Singh Munda Versus Smt. Mamta Devi in F.A. No. 186 of 2008, vide judgment dated
20th August,2015
Bharat Bhushan Versus Tej Ram & Ors., reported in (2016) 15 SCC 655
T. Ravi & Anr. Versus B. Chinna Narasimha & Ors., reported in (2017) 7 SCC 342
Narayanan Rajendran Versus Lekshmi Sarojini, reported in (2009) 5 SCC 264.
Jagmittar Sain Bhagat & Ors. Versus Director, Health Services, Haryana & Ors., reported in (2013) 10
SCC 136
Farquharson Versus Morgan, reported in (1894) 1 QB 552
Carona Ltd. Versus Parathy Swaminathan & Sons, reported in (2007) 8 SCC 559
Yamanaji H. Jadhav Versus Nirmala, reported in (2002) 2 SCC 637
Subramani Versus M. Chadralekha, reported in (2005) 9 SCC 407
Salekh Chand Versus Satya Gupta & ors., reported in (2008) 13 SCC 119
Rathnamma Versus Sujathamma, reported in (2019) 19 SCC 714
Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad 299]
Dr. Surajmani Stella Kujur Versus Durga Charan Hansdah, reported in (2001) 3 SCC 13
Advocate Appeared :
For the Appellant : Mr. Ashutosh Anand, Advocate.
For the Respondent : M/s K.K. Singh &Sanjay Kumar, Mr. Alok Lal, Mr. Kumar Vaibhav, Subhashis
Rashil Soren, Advocates.
JUDGMENT
Heard learned counsel for the parties and learned Amicus Curiae.
2. Learned Principal Judge, Family Court, Ranchi by the impugned judgment dated 16.3.2018, has
dismissed Original Suit No. 583 of 2017, on the ground of maintainability.
—| 470 |—
3. The suit was instituted under Section 7(1)(a) of the Family Courts Act, 1984 read with Para-5.2
of the ‘Customary Laws of Munda and Oraons’ as delineated in the book “The Customary Laws
of the Munda and the Oraon” by Dr. J. P.Gupta.
4. The parties belonged to Oraon Tribal Community and their marriage was performed on 27th
April, 2015 at Ranchi as per the customs of the said community. On the ground of adultery, the
appellant wanted divorce.
5. Learned Family Court referred to the book “The Customary Laws of the Munda and the Oraon”
and held that there is no substantive codified law, applicable to the parties like the Hindu
Marriage Act, 1955, Special Marriage Act, 1954and Divorce Act, 1869. Section 2(2) of Hindu
Marriage Act, 1955 makes the Act inapplicable to the members of any Schedule Tribe within the
meaning of Article-366 of the Constitution of India, unless notified by the Central Government.
Therefore, they were not governed by the Hindu Marriage Act. Learned Family Court was of the
view that since the petitioner/appellant is seeking divorce on the basis of the customs and usage
applicable to the parties,which can be exercised only by the Community Panchayat and not by a
Court of Law, the petition is not maintainable.
6. During the pendency of this appeal considering the importance of the issues, affecting the rights
of the persons,belonging to Tribal Community, Mr. Kumar Vaibhav along with Shubhash is
Rasik Soren, learned Advocate wereappointed as Amicus Curiae to assist the Court. The Tribal
Research Institute, Government of Jharkhand, Ranchi,Director, Judicial Academy, Jharkhand
and the Vice-Chancellor, National University of Study and Research in Law(NUSRL) were
requested to provide necessary assistance in the matter to this Court.
7. Learned Amicus Curiae has submitted a report after interaction with the Tribal Research Institute
(TRI) and elderly persons of Oraon Community, convened by the TRI. Some valuable inputs
have also been provided by the National university of Studies and Research in law. The Judicial
Academy, Jharkhand also submitted a report, prepared by the Research Scholars containing the
statutory framework of the Family Courts’ Act, 1984 and decisions rendered by different courts
on matter concerning matrimonial dispute between the members of Schedule Tribe. Learned
counsel for the parties have also rendered assistance to the Court. Since the suit was dismissed
on the ground of maintainability, we are not entering into the merits of the case of the parties
except taking note of the foundational facts that they belong to the Oraon Tribal Community
and are governed by the Customary Laws.
8. From the inputs provided by learned Amicus Curiae, it is evident that the Oraon community
is governed by the Customary Laws, there is a hierarchy of Panchayats in the community such
as ‘Padha Panchayat’, where the parties approach in case of divorce / dissolution of marriage.
If the matters remained unresolved, it can also be taken up to the body called ‘Bisusendra’, a
congregation of ‘Padha Panchayat’. The parties are summoned by the Panchayat and after hearing
both the sides, decision is taken. Non-adherence to the summons or its verdict leads to social
ostracization, which is described as ‘Hucca Pani Bandh’, ‘Kutumb Chilan’ and ‘Chuna tika’. The
chances of non-adherence to thes ummons of the Panchayat are rare.
9. We are, however, in the present facts of the case, required to test whether the finding of the
learned Family Court that the suit was not maintainable since there is no codified substantive
law applicable to the parties, is correct or not. In this regard, it is pertinent to refer to the scheme
—| 471 |—
and object of the Family Courts Act, 1984. The Family Courts Act,1984[in short FCA] was
enacted in public interest for the establishment of the Family Court for speedy settlement ofthe
family dispute. The legislative power exercised by the Parliament can be traced to Article-246(2)
of the Constitution of India. The field of legislation is referable to Entry-11-A under List-III of
Seventh Schedule was inserted by 42nd Amendment Act, 1976 i.e. “Administration of justice,
constitution and organization of all courts,except the Supreme Court and the High Court”.
10. The preamble to the FCA states that it is an Act to provide for the establishment of Family
Courts with a view to promote conciliation and to secure speedy settlement of the disputes
relating to marriage and family affairs and formatters connected therewith. The FCA is a secular
law applying to all religions. Section 7(1)(A) of the FCA confers“all the jurisdiction” hitherto
exercised by any District Court or any Subordinate Civil Court in suits or proceedings relating
to matters mentioned in Clauses-(a) to (g) of the Explanation. Clause-(a) of the Explanation
reads as ‘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’. Use of the
words ‘all the jurisdiction’ makes the legislative intent clear that all the enumerate matters in the
explanation to section 7 would be the exclusive domain of the Family Courts established under
the FCA.
In other words, the FCA created a forum for adjudication of matrimonial matters of the nature
enumerated in the explanation to Section 7 of the FCA, which forum can be resorted to by one
and all, be it a member of scheduled tribeor a person of any religion.
11. It is useful to refer to the opinion of the Apex Court rendered in the case of K.A. Abdul Jaleel
Versus T.A. Shahida,reported in (2003) 4 SCC 166 , in this regard, Paras-11 and 14 thereof are
quoted hereunder:-
“11. ...The wordings ‘disputes relating to marriage and family affairs and for matters
connected therewith’ inthe view of this Court must be given a broad construction.
The Statement of Objects and Reasons, as referred to here-in-before, would clearly
go to show that the jurisdiction of the Family Court extends, inter-alia, in relation to
properties of spouses or of either of them which would clearly mean that the properties
claimed by the parties there to as a spouse of other; irrespective of the claim whether
property is claimed during the subsistence of a marriage or otherwise.
14. It is now a well-settled principle of law that the jurisdiction of a court created specially
for resolution of disputes of certain kinds should be construed liberally. The restricted
meaning if ascribed to Explanation (c)appended to Section 7 of the Act, in our opinion,
would frustrate the object where for the Family Courts were setup.”
12. Further in the case of Balram Yadav Versus Fulmaniya Yadav, reported in (2016) 13 SCC 308,
the Apex Court has explained the scope of jurisdiction under Section 7(1) Explanation (b) of the
FCA as under:-
“…Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to
the validity of both marriage and matrimonial status of a person is within the exclusive
jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under
Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there
—| 472 |—
is a dispute on the matrimonial status of any person, a declaration in that regard has to be
sought only before the Family Court. It makes no difference as to whether it is an affirmative
relief ora negative relief. What is important is the declaration regarding the matrimonial
status. Section 20 also endorses the view which we have taken, since the Family Courts Act,
1984, has an overriding effect on other laws.”
13. The illuminating opinion of the Apex Court leaves no room of doubt on an expansive and liberal
interpretation ofthe jurisdiction of the family courts under the FCA.
14. It is pertinent to make reference to the decision of the Hon’ble Apex Court in the case of Samar
Kumar Roy Versus Jharna Bera, reported in (2017) 9 SCC 591, wherein the Apex Court was
seized with the issue, whether a suit under
Sections 34 and 38 of the Specific Relief Act, 1963 would be excluded from the jurisdiction of the
family courts in thelight of the provision contained in Section 8 of the FCA. The Hon’ble Apex
Court held as under:-
“...It is obvious that a suit or proceeding between parties to a marriage for a decree of nullity
or restitution of conjugal rights or judicial separation or dissolution of marriage, all have
reference to suits or petitions that are filed under the Hindu Marriage Act and/or Special
Marriage Act for the aforesaid reliefs. There is no reference whatsoever to suits that are filed
for declaration of a legal character under Section 34 of the Specific Relief Act…..
Section 8(a) of the Family Courts Act excludes the Civil Court’s jurisdiction in respect of a
suit or proceeding which is between the parties and filed under the Hindu Marriage Act or
Special Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of
conjugal rights or judicial separation. It does not purport to bar the jurisdiction of the Civil
Court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the
legal character of an alleged marriage….”
15. There is no precedent which bars members of the Scheduled Tribe to approach the Family
Court by filing any suitor proceedings relating to matters mentioned in Clauses-(a) to (g) of
the Explanation to Section 7 of the FCA. If at all,such matter is filed, seeking adjudication
under the law, applicable to them i.e. Customary Laws, they cannot resort tothe provisions of
Hindu Marriage Act, 1955, if the parties are not governed by the Hindu Marriage Act, 1955.
Reference is made to the decision of this Court in the case of Rajendra Kumar Singh Munda
Versus Smt. Mamta Deviin F.A. No. 186 of 2008, vide judgment dated 20th August, 2015. This
Court affirmed the order of the Family Court,dismissing the suit for divorce, filed by a member
of Schedule Tribe, under Section 13 of the Hindu Marriage Act,1955, on the ground that the
Hindu Marriage Act does not apply. Customary Laws are applicable in the matters of succession,
where parties are governed by Customary Laws.[ See Bharat Bhushan Versus Tej Ram & Ors.,
reported in(2016) 15 SCC 655; T. Ravi & Anr. Versus B. Chinna Narasimha & Ors., reported in
(2017) 7 SCC 342 as also in thecase of Narayanan Rajendran Versus Lekshmi Sarojini, reported
in(2009) 5 SCC 264.]
16. Learned Amicus Curiae has also reiterated the well settled principle that the conferment of
jurisdiction (or in other words - establishment of courts) is essentially a legislative function.
He has relied upon the opinion rendered in the case of Jagmittar Sain Bhagat & Ors. Versus
—| 473 |—
Director, Health Services, Haryana & Ors., reported in (2013) 10 SCC 136 ,Para-9 thereof reads
as under:-
“9. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a
legislative function and it can neither be conferred with the consent of the parties
nor by a superior Court, and if the Court passes a decree having no jurisdiction over
the matter, it would amount to nullity as the matter goes to the roots of the cause.
Such an issue can be raised at any stage of the proceedings. The finding of a Court or
Tribunal becomes irrelevant and unenforceable/ in-executable once the forum is found
to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction,
acquiescence of party equally should not be permitted to perpetuate and perpetrate,
defeating the legislative animation. The Court cannot derive jurisdiction apart from
the Statute. In such eventuality the doctrine of waiver also does not apply.”
17. Further, it is also a settled legal proposition that ouster of jurisdiction should not be readily
inferred and the courts always lean in favour of such an interpretation. This view has been
upheld in the case of Bhanwar Lal & Anr. Versus Rajasthan Board of Muslim Wakf & Ors.,
reported in (2014) 16 SCC 51 [ Para-26].
18. Learned Amicus Curiae has also submitted that even customs and usage cannot impede rights
of a citizen to approach the court of law, i.e. a family court seeking divorce. Relying upon the
observation of Lord Steyn in the case of R. Versus Secretary of State for Home Department, ex
p Leech 1993 (4) All E.R. 539 (CA), it is submitted that “it isa principle of law that every citizen
has a right of unimpeded access to a court…” The Apex Court has also held that access to justice
is a facet of Article 21 and 14 of the Constitution of India. [see (2016) 8 SCC 509 para-31].
Therefore, it is submitted that if at all a custom forbids access to family court and relegates a
person seeking divorce to Panchayat/Community court, the same will be violative of right to
access to justice and any sanctification of customs,resulting in violation of fundamental rights
ought not be resorted to.
19. Learned Amicus Curiae has submitted that patent lack of jurisdiction and latent lack of
jurisdiction are different concepts, which ought to have been kept in mind by the learned
Family Court while passing the impugned order. Learned Amicus has relied upon a decision
in Farquharson Versus Morgan, reported in (1894) 1 QB 552. Even as perthe observations
made in the impugned Judgment, the Family Court has procedural jurisdiction to entertain
a suit for dissolution of marriage and there was no patent lack of jurisdiction. It is submitted
that the learned Family Court posedunto itself a wrong question and answered it incorrectly,
thereby, committing grave error of jurisdiction. ‘AdjudicatoryFacts’ and ‘Jurisdictional Facts’ are
different. The law in this regard is well settled by now. The opinion of the Apex Court in the case
of Carona Ltd. Versus Parathy Swaminathan & Sons, reported in (2007) 8 SCC 559 , Paras-27,29
and36 are quoted hereunder:-
“27. Stated simply, the fact or facts upon which the jurisdiction of a Court, a Tribunal or
an Authority depends can be said to be a ‘jurisdictional fact’. If the jurisdictional fact
exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such
fact does not exist, a Court, Tribunal or Authority cannot act. It is also well settled
that a Court or a Tribunal cannot wrongly assume existence of jurisdictional fact and
—| 474 |—
proceed todecide a matter. The underlying principle is that by erroneously assuming

existence of a jurisdictional fact, asubordinate Court or an inferior Tribunal cannot
confer upon itself jurisdiction which it otherwise does notposses. ……….
29. But there is distinction between ‘jurisdictional fact’ and ‘adjudicatory fact’ which
cannot be ignored. An’adjudicatory fact’ is a ‘fact in issue’ and can be determined by
a Court, Tribunal or Authority on ‘merits’, on thebasis of evidence adduced by the
parties. It is no doubt true that it is very difficult to distinguish ‘jurisdictionalfact’ and
‘fact in issue’ or ‘adjudicatory fact’. Nonetheless the difference between the two cannot
beoverlooked……. ………
36. It is thus clear that for assumption of jurisdiction by a Court or a Tribunal, existence of
jurisdictional fact is acondition precedent. But once such jurisdictional fact is found to
exist, the Court or Tribunal has power todecide adjudicatory facts or facts in issue……”
20. The above exposition makes the distinction absolutely clear. As per opinion of the Apex Court,
extractedhereinabove, the facts or facts upon which the jurisdiction of a Court, a Tribunal or
an Authority depends can be saidto be ‘Jurisdictional Fact’. If the ‘Jurisdictional Fact’ exists, a
Court, Tribunal or Authority has jurisdiction to decideother issues. If such fact does not exist,
a Court, Tribunal or Authority cannot act. It cannot wrongly assume existenceof jurisdictional
fact and proceed to decide a matter by erroneously assuming existence of a jurisdictional fact,
asubordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it
otherwise does not possess.
21. In the present case, the underlying jurisdictional fact as pleaded before the Family Court, is that
both the partiesbelonged to Oraon Community and their marriage was solemnized as per the
Customary Law of Oraon. The FamilyCourt Act, being a secular law, applying to all religions
and communities and conferred with the power to adjudicateon matters mentioned in Clauses
(a) to (g) of the Explanation to Section 7 of the FCA, could not have held that the suitis not
maintainable in the absence of a codified Customary Law of the parties. As per the opinion of
the Apex Courtextracted hereinabove the Corona Ltd. (Supra), there is a distinction between the
‘Jurisdictional Facts’ and‘Adjudicatory Facts’. An ‘Adjudicatory Fact’ is a ‘fact in issue’ and can be
determined by a Court, Tribunal orAuthority on merits, on the basis of the evidence, adduced
by the parties. It is no doubt that it is very difficult todistinguish ‘Jurisdictional Facts’ and ‘fact in
issue’ or ‘Adjudicatory Fact’. Nonetheless the difference between thetwo cannot be overlooked.
22. It is thus clear that for assumption of jurisdiction by a Court or a Tribunal, existence of
jurisdictional fact is acondition precedent. But once such jurisdictional fact is found to exist,
the Court or Tribunal has power to decideadjudicatory facts or facts in issue, based upon the
pleadings of the parties. The learned Family Court, therefore, fell inerror in holding that the suit
is not maintainable in absence of codified substantive law as are applicable to the parties,such
as Hindu Marriage Act, 1955, Special Marriage Act, 1954 and Divorce Act, 1869, whether
the parties are able toplead and prove the custom governing the matters of divorce between
them for seeking relief was an issue to bedecided on merits after considering the pleadings
and evidence on record. Learned Family Court would not havestraightaway dismissed the suit
as not maintainable holding that there is no codified substantive law, governing theparties. In
such a case, where parties claimed to be governed by Customary Law, the learned Family Court
—| 475 |—
ought tohave framed an issue to that effect. Once it is found that the parties are governed by
the Customary Law, the parties arerequired to plead and prove the customs, by which, they are
governed in matters concerning, marriage and divorce.The judgment of the Apex Court in the
case of Yamanaji H. Jadhav Versus Nirmala, reported in (2002) 2 SCC 637 ,para-7 enunciates
the course to be followed by the Family Court in a matter of divorce involving customary law. It
hasbeen held as under:-
“…As per the Hindu Law administered by courts in India divorce was not recognised as a
means to put an end to marriage, which was always considered to be a sacrament, with only
exception where it is recognised by custom. Public policy, good morals and the interests of
society were considered to require and ensure that, if at all, severance should be allowed only
in the manner and for the reason or cause specified in law. Thus such a custom being an
exception to the general law of divorce ought to have been specially pleaded and established
by the party propounding such custom since said custom of divorce is contrary to the law
of the land and which, if not proved, will be a practice opposed to public policy. Therefore,
there was an obligation on the trial court to have framed an issue whether there was proper
pleadings by the party contending the existence of a customary divorce in the community to
which the parties belonged and whether such customary divorce and compliance with the
manner or formalities attendant thereto was in fact established in the case on hand to the
satisfaction of the court….”
23. It was further observed in case of Subramani Versus M. Chadralekha, reported in (2005) 9 SCC
407 in para-10:-
“it is well established by long chain of authorities that prevalence of customary divorce in the
community to which parties belong, contrary to general law of divorce must be specifically
pleaded and established by the person propounding such custom….”
24. It was thus necessary for the Family Court to call upon the party, seeking divorce under the
customary law to plead and establish such custom by leading evidence. In any event, learned
Family Court would not have dismissed the suit as not maintainable, since the parties belonged
to Tribal Community and are governed by Customary Law, which is not a codified substantive
law, like the Hindu Marriage Act, 1955, Special Marriage Act, 1954 and Divorce Act, 1869.
25. As observed at the outset, we have consciously refrained from referring to one or the other
custom, said to be operating in the Oraon Community regarding divorce, since it is for the party
to plead and prove such customs for seeking relief before the Family Court. The illuminating
opinion of the Apex Court rendered in the case of Salekh Chand Versus Satya Gupta & ors.,
reported in (2008) 13 SCC 119, followed in the recent decision in the case of Rathnamma Versus
Sujathamma, reported in (2019) 19 SCC 714, para-16 is quoted hereunder:-
16. This Court in a judgment reported as Salekh Chand (Dead) by LRs v. Satya Gupta
& Ors., (2008) 13 SCC119 while dealing with the claim of adoption under the Hindu
Adoption and Maintenance Act, 1966, held asunder:
“21. In Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad 299] it was held that
where custom is set up toprove that it is at variance with the ordinary law, it
has to be proved that it is not opposed to public policy and that it is ancient,
invariable, continuous, notorious, not expressly forbidden by the legislature and
—| 476 |—
not opposed to morality or public policy. It is not disputed that even under the
old Hindu Law, adoption during the lifetime of a male issue was specifically
prohibited. In addition, I have observed that such an adoption even if made
would be contrary to the concept of adoption and the purpose thereof, and
unreasonable. Without entering into the arena of controversy whether there was
such a custom, it can be said that even if there was such a custom, the same was
not a valid custom.
26. In the case of Dr. Surajmani Stella Kujur Versus Durga Charan Hansdah, reported in (2001) 3
SCC 13 , para-10 also it has been held as under:-
“For custom to have the colour of a rule or law, it is necessary for the party claiming it to
plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being
in derogation of the general rule is required to be construed strictly. The party relying upon a
custom is obliged to establish it by clear andunambiguous evidence.”
27. Therefore, on a detailed consideration of the submissions of learned counsel for the parties and
valuable assistance rendered by the learned Amicus Curiae, we are of the considered opinion that
the learned Family Court committed an error of jurisdiction in holding that the suit instituted
by the petitioner/appellant herein was not maintainable, as there was no codified substantive law
applicable to the parties to marriage, like Hindu Marriage Act, 1955, Special Marriage Act, 1954
and Divorce Act, 1869. It also committed an error in holding that the petitioner is seeking relief
of divorce on the basis of customs and usage, applicable to the parties, which can be exercised
only by the Community Panchayat and not by Court of Law. The legislature having consciously
conferred jurisdiction upon the Family Court to adjudicate on matters, enumerating under
Clauses-(a) to (g) of the Explanation to Section 7(1) including a suit or proceeding between
the parties to the marriage for decree of nullity of marriage or restitution of conjugal rights or
judicial separation or dissolution of marriage, the learned Family Court could not have held
the suit to be not maintainable, as there is absence of a substantive codified law, governing the
parties.
28. In view of the aforesaid discussions and for the reasons recorded hereinabove, the impugned
judgment cannot be upheld in the eye of law. The matter is remanded to the learned Family
Court for adjudication in accordance with law by framing proper issues, as borne out from the
pleadings of the parties. We made it clear that the observations made hereinabove should not be
treated as comment upon the merits of the case of the parties and are limited to answering the
only issue whether the learned Family Court was right in holding the suit as not maintainable in
the absence of substantive codified law between the parties.
29. We, accordingly, set aside the judgment dated 16.3.2018, passed in Original Suit No. 583 of
2017 by the Principal Judge, Family Court, Ranchi, and remand the matter to the Family Court
to frame an appropriate issue in regard to existence of provision of customary divorce in the
community of the parties to these proceedings to get the marriag edissolved. We permit the
parties to amend the pleadings, if they so desire and also to lead evidence to prove the existence
of a provision of customary divorce in their community. The Family Court will consider the
matter afreshwithout being influenced by the observations made by this Court hereinabove
expeditiously.
—| 477 |—
30. In order to expedite the proceedings the parties themselves or through their counsel should
appear before the learned Family Court, Ranchi on 5th of May, 2021. If the proceedings are held
in virtual mode, the parties and / or their counsels would join the proceedings online.
31. The appeal is allowed.
32. Let a copy of the judgment be communicated to the court concerned without any delay.
33. Let the Lower Court Records be also sent back to the Court concerned.
34. Before parting we record the appreciation for the valuable assistance rendered by the learned
Amicus Curiae on such a vital legal issue concerning the jurisdiction of the Family Courts.
35. Let a copy of this order be sent to the Judicial Academy, Jharkhand, Ranchi.
qqq
—| 478 |—
JETHU SAW VERSUS BHAWANI DEVI

Hon’ble Mr. Justice Kailash Prasad Deo
FIRST APPEAL NO. 196 OF 2017
Jethu Saw ...Appellant
Versus
Bhawani Devi ...Respondent
Decided on 03 March, 2021
Hindu Marriage Act, 1955 - Section 13 - Divorce - Grounds of desertion by wife are not made out
since mandatory period of living separately for 2 years immediately before presentation of suit in
terms of Section13(1) (i-b) are not made out - Factum of separation of more than 2 years before
presentation of petition was not made out neither was animus deserendi made out from conduct of
respondent - If appellant has given reasonable cause for respondent to stay away, he cannot be allowed
to take advantage of his own wrong in view of prescription of law under Section 23 of Hindu Marriage
Act - Cruelty as defined under Section 13(1) (i-a) of Hindu Marriage Act should be of such a nature
that it creates a reasonable apprehension in minds of other spouse that it is not possible and safe to
live with him/her - So far as allegations of illicit relationship is concerned that would depend upon
outcome of criminal case, but in present appeal, it cannot be taken as aground against respondent to
decree suit - Trial court has weighed circumstances after proper appreciation of evidence and rightly
refused to grant relief in his favour - Appeal dismissed.
Acts Referred:
HINDU MARRIAGE ACT : S.23, S.13(1)(i)(a)
INDIAN PENAL CODE : S.494, S.321, S.323, S.504, S.506, S.34
Advocates Appeared :
For the Appellant : Mr. Sanjay Prasad, Adv.
For the Respondent : Mr. Nehru Mahto, Adv.
JUDGMENT
1. Heard learned counsel for the parties.
2. Appellant-husband is aggrieved by dismissal of Title Matrimonial Suit No. 13 of 2015 instituted
on grounds of cruelty and desertion for dissolution of his marriage with the respondent vide
judgment dated 14th June 2017 and decree dated 24th June, 2017 passed by learned Additional
Principal Judge, Additional Family Court, Dhanbad.
The case of the parties:
3. Plaintiff pleaded that from his marriage with the respondent on 10.03.1985 as per Hindu custom
and rites, three children were born, who are as follows:
—| 479 |—
(1) Julee aged 24 years,

(2) Tinku Kumari aged 22 years and
(3) Gouri Devi aged 18 years.
4. He alleged that respondent had treated him with cruelty and their marriage has irretrievably
broken down. Shedenied sexual relationship with him which amounts to cruelty. Accordingly,
he pleaded for dissolution of marriage.
5. Defendant contested the suit by filing written statement. She accepted the factum of marriage
and the three children were born out of the wedlock. According to her, plaintiff works in Bank of
India, Lodna Branch and had good marital life but plaintiff got entangled with another woman,
Moni Goswami, whom he wanted to marry. Then he started neglecting the respondent and
their daughter. For maintenance, a Maintenance Case No. 374 of 2011 was filed, where he was
directed to pay Rs. 3000/- per month, which is being paid. They entered into a compromise on
9th July, 2013,where under he undertook to live with the defendant and paid the maintenance
also. There was another agreement on22nd September, 2013 i.e., not to torture her. However,
on 20th November, 2013 she filed M.P Case No. 374 of 2011for maintenance, but the same was
not being paid regularly. Respondent also lodged a case against her husband under Sections
494/321/323/307/504/506/34 of I.P.C being G.R. Case No. 1728 of 2015 relating to illicit
relationship with Moni Goswami. She contended that the suit for divorce was filed to save skin.
Mediation failed during pendency of the suit.
6. The following issues were framed for adjudication on the basis of rival pleadings of the parties:
(i) Whether the suit as framed is maintainable?
(ii) Whether the plaintiff has got a valid cause of action for the suit?
(iii) Whether the marriage between the plaintiff and the defendant is fit to be dissolved on the
grounds of cruelty and desertion?
(iv) What other relief or relief ’s the plaintiff is entitled?
7. During trial, plaintiff examined himself as P.W.1, but did not adduce any documentary evidence,
whereas respondent-wife examined herself as D.W-1 and adduced the following documents in
her support:
(i) Exhibit- A is paper cutting of news articles in Prabhat Khabar,
(ii) Exhibit-B is photocopy of Joint agreement dtd. 02/07/2013 along with Letter dtd.
28/09/2012 addressed to the Dy. Commissioner, Dhanbad,
(iii) Exhibit-C is photocopy of Letter dtd. 16/09/2013 addressed to the S.P., Dhanbad along
with bond dtd.22/09/2013 executed by plaintiff,
(iv) Exhibit-D is copy of plaint of M.P. Case No. 374/2011,
(v) Exhibit-D/1 is photocopy of joint compromise petition dtd. 20/11/2013,
(vi) Exhibit-D/2 is photocopy of CC of order dt. 20/11/2013 passed in M.P. Case No. 374/2011,
(vii) Exhibit-E is CC of F.I.R of Saraidhela P.S. Case No. 114/2015 and order dtd. 13/06/2015
passed in B.P. No.1029/2015,
—| 480 |—
(viii) Exhibit-F is photographs of plaintiff and defendant.

8. Learned trial court examined the case of the parties on the basis of the pleadings and evidence
on record and decided the Issue No. III, which related to cruelty and desertion against the
plaintiff. Rest of the two formal issues were decided accordingly against him holding that there
was no valid cause of action to bring the suit and the suit was not maintainable. The matrimonial
suit was accordingly dismissed as the plaintiff had not been able to prove his case on the test of
preponderance of probabilities.
9. Learned counsel for the appellant submits that the marriage has irretrievably broken down since
the parties are living in separation for about 9 years since 16th March, 2011. Respondent has
filed criminal cases against him being Saraidhela P. S. Case No. 114/2015 and Jorapokhar P. S.
Case No. 140 of 2015. Besides that, she has also prosecuted maintenance cases against him.
Respondent is not inclined to resume conjugal life with him. She is living in desertion without
any reasonable cause and by denying sexual relationship has also inflicted mental cruelty upon
her. There is no love and affection left between the parties. As such, it would be futile to maintain
a legal tie of matrimonial relationship. Therefore, the impugned judgment may be set aside by
decreeing the suit and the appeal by dissolution of marriage.
10. Learned counsel for the respondent submits that marital relationship between the parties
started from 10th March,1985 and had been good as it would appear from the birth of three
children, one son and two daughters, all of whom are now major. However, appellant started
neglecting her and got entangled with another woman, Moni Goswami,whom he wanted to
marry her. She also filed M.P. Case No. 374 of 2011 for her maintenance in which Rs. 3,000/- was
allowed. Despite compromise entered into between the parties on more than one occasion, the
appellant has failed to live with her and denied conjugal life. Appellant should not be entitled
to take advantage of his own wrong in view of Section 23 of Hindu Marriage Act, 1955. Besides
that, criminal cases have been instituted by the respondent against him on allegations of illicit
relationship. Therefore, respondent had reasonable cause to stay away from him. There are no
ostensible grounds made out under the Hindu Marriage Act for dissolution of their marriage.
Respondent has always been willing to resume conjugal tie. It is submitted that irretrievable
break down of marriage is not a recognized ground for divorce under the Hindu Marriage Act.
As such, the appeal is fit to be dismissed.
11. We have considered the submission of learned counsel for the parties, gone through the impugned
judgment and also taken into the account the rival pleadings of the parties and evidence adduced
on their behalf. As the factual matrix of the case noted above shows the marriage is now 35 years
old and there are three children born out of the wedlock. The suit for dissolution of marriage
has been instituted in 2011 alleging that parties are living separately since 16th March, 2011.
Grounds of desertion therefore are not made out since the mandatory period of living separately
for 2 years immediately before presentation of the suit in terms of Section 13(1) (i-b) are not
made out. Learned trial court has also considered the evidence on record and especially Ext.-B &
C dated 2th July, 2013 and 16thSeptember, 2013, i.e., the bond, which the plaintiff had executed
to keep the defendant acknowledging his guilt. Therefore, the factum of separation of more than
2 years before presentation of the petition was not made out neither was animus deserendi made
out from the conduct of the respondent.
—| 481 |—
12. On the ground of cruelty plaintiff alleged that she had filed criminal cases against him which has
caused pain and suffering and amounts to mental cruelty. She has also filed maintenance case
being M.P. Case No. 374 of 2011 inwhich compromise was arrived at on 20th November, 2013
and the plaintiff undertook to pay Rs. 3,000/- per month. Respondent however in her evidence
has spoken about the illicit relationship of the appellant with one Moni Goswami, where after he
had become traceless. She got a news article published on 27.07.2011 in Prabhat Khabar. Later
on, he appeared in his house but again started his activity, which led to filing of a complaint
before Deputy Commissioner, Dhanbad on 22nd July, 2013. This was followed by execution
of a compromise, where appellant undertook to live together and pay Rs. 3,500/- per month.
She, however, filed a complaint on 11/09/2013 before Superintendent of Police, Dhanbad for
execution of the bond and thereafter before Mahila Police Station, Dhanbad. Again, the appellant
undertook to keep her and her children and at the same time paid Rs. 5,00/- per month in the
hand to the defendant. However, plaintiff again neglected her. Plaintiff started living in a rented
house at Digwadih No. 10.She has stated that when she went there she found Moni Goswami
and lodged a protest. However, she was brutally assaulted by both which resulted in filing of C.P.
Case No. 515 of 2015. The complaint case was converted into Jorapokhar P.S. Case No. 140 of
2015. She also stated that all her children have got married and are living happy conjugal life. She
further stated that after institution of divorce suit, he had abstained from visiting her place and
she was compelled to live separately. He has neglected to maintain her. He did not contribute in
marriage of their younger daughter Gouri Devi.
13. From the evidence of the parties as discussed above, it can be safely inferred that the grounds of
cruelty are not made out against the respondent. Rather, because of the conduct of the appellant,
he is facing criminal case. The outcome of the criminal case is not yet known. If the appellant has
given reasonable cause for the respondent to stay away, he cannot be allowed to take advantage
of his own wrong in view of the prescription of law under Section 23 of the Hindu Marriage
Act. Cruelty as defined under Section 13(1) (i-a) of the Hindu Marriage Act should be of such
a nature that it creates a reasonable apprehension in the minds of the other spouse that it is not
possible and safe to live with him/her.
14. In the facts of the present case, appellant has failed to establish such a serious charge of cruelty
upon the respondent wife after living together for 26 years of their marriage. Moreover, the couple
were blessed with three children, all of whom have become major and have been married. So far
as the allegations of illicit relationship is concerned that would depend upon the outcome of the
criminal case, but in the present appeal, it cannot be taken as aground against the respondent
to decree the suit. Leaned trial court has weighed the circumstances after proper appreciation
of the evidence and rightly refused to grant relief in his favour. We do not find any error in
appreciation of evidence or application of law to hold otherwise. The appeal being devoid of
merit is accordingly dismissed.
qqq
—| 482 |—
SUNIL YADAV VERSUS THE STATE OF JHARKHAND AND ORS

Bench : Hon’ble Mr. Justice Shree Chandrashekhar
CR. REV. NO. 1603 OF 2016
Sunil Yadav, S/o Ganesh Yadav ...Petitioner
Versus
The State of Jharkhand and ors. ...Opposite Parties
Decided on 25 August, 2020
Criminal Procedure Code, 1973 - Section 125 - Maintenance - Object behind Section 125 is to
ensurethat they do not suffer in destitution - Proceeding under Section 125 Cr.P.C is a summary
proceedingand primarily civil in nature - In such a proceeding normally strict rules of evidence are not
applied byCourt and a minute examination of evidence is not permissible while exercising revisional
jurisdiction- Section 125 Cr.P.C provides speedy remedy and serves a social purpose - Amount of
maintenance awarded by Family Court Judge for wife and minor child upheld. (Paras 5, 6, 8, 9 and 10)
Acts Referred:
CONSTITUTION OF INDIA : Art.15(3), Art.39
CRIMINAL PROCEDURE CODE : S.125
Cases Referred:
Capt. Ramesh Chander Kaushal Vs. Veena Kaushal, (1978) 4 SCC 70
Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288
Shamima Farooqui Vs. Shahid Khan, (2015) 5 SCC 705
Advocate Appeared :
For the Petitioner : Mr. Binit Chandra, Adv.
For the Opposite Party : Mr. Bishwambhar Shastri, A.P.P., Mr. Ram Lakhan Yadav, Adv.
JUDGMENT :
1. Mr. Binit Chandra, the learned counsel appears for the petitioner, Mr. Ram Lakhan Yadav , the
learnedcounsel appears for O.P. No.2 and Mr. Bishwambhar Shastri, the learned APP appears for
the State.
2. The petitioner has challenged the judgment dated 29.11.2016 passed in Maintenance Case No.79
of 2014.
3. The application under section 125 Cr.P.C filed by the wife of the petitioner was allowed and
maintenance of Rs.4,000/-per month for her and Rs.2,000/-per month for the minor child were
awarded; the applicants have claimed Rs.5,000/-per month for each of them.
4. The opposite party no.2 (hereinafter referred as applicant) was married to the petitioner on
11.05.2011 andfrom the wedlock applicant no.2 was born. She has claimed in her application for
—| 483 |—
maintenance that her husband is running a kutti (straw) shop, owns 40-50 cows and buffaloes
and engaged in dairy business from which he is earning Rs.3-4 Lacs per month. The petitioner
has however denied her claim and stated that he is working as a daily wager in a cloth shop.
In the proceeding of the maintenance case the parties have laid oral evidence; the wife of the
petitioner has examined three witnesses and the petitioner has examined four witnesses. The
learned Family Court Judge, on a consideration of the materials laid before him, has held asunder
:
9. “After having heard the learned counsel for the petitioner and upon considering the
evidence available on record, I am satisfied to find and hold that admittedly the
petitioner no.1 Nitu Kumari is the legally wedded wife of the opposite party Sunil Yadav
and their marriage was solemnized on 4/28/22, 12:44 PM Sunil Yadav, S/o Ganesh
Yadav VS State of Jharkhand 2/3 11.05.2011 as per Hindu rites & customs. It is also
admitted that out of their wedlock a daughter was born out, who is disabled from her
birth. Admittedly the petitioner is not living with the opposite party-her husband in
her matrimonial house since 17.06.2014. It has been alleged that the petitioner herself
left the house of O.P. but nothing has been brought on record to show that in fact she
had voluntarily left her matrimonial house. The opposite party has although averred in
his show-cause that he is ready and willing to keep his wife and daughter with him but
his conduct has exposed him. Several efforts were made for the amicable settlement of
the matrimonial discord but it went in vain and therefore, the plea raised on behalf of
the O.P. that he is ready to keep his wife and daughter with him is fallacious. Thus, it is
crystal clear that the opposite party has refused and neglected to maintain the petitioner,
his wife and children. In view of the provisions of law it is the moral and legal duty of
the opposite party to fulfill his social obligation by providing for the maintenance of the
petitioner-wife and the minor daughter. It can also be presumed that in the facts and
circumstances of the case now there is no scope for restitution of their conjugal rights
and therefore, the petitioners are held entitled for maintenance from the O.P.
10. So far the quantum of maintenance allowance is concerned, there is no any document
to show that what is the vocation of the opposite party at present and what is the exact
income there from. Similarly,there is no document to show that the O.P. owns a Khatal
and a shop of Kutti (straw) from which he has substantial income as averred in the
application. But from the oral evidence examined on behalf of the petitioner which
remained unchallenged, it can be said that the opposite party has substantial income
from the business of milk and also from cultivation. It has been admitted that the entire
family of the O.P. is still joint and his family is engaged in the business of milk and
thus, it can be safely inferred that he has substantial income from the said business.
There is no concrete evidence to prove his contention that he is a labourer in a cloth
shop and is earning only a sum of Rs.4,000/-per month there from. Whereas at present
even an unskilled labourer earns a sum of Rs.300/-or more per day. Apart from that
nowadays it is almost well settled that “an able bodied young man has to be presumed
to be capable of earning sufficient money so as to be able to maintain his wife and
child and he can not be heard to say that he is not in a position to earn enough to be
able to maintain them.... It is for such able bodied person to show to the court cogent
—| 484 |—
grounds for holding that he is unable to, due to reasons beyond control, to earn enough
to discharge his legal obligation of maintaining his wife and child.....”
Keeping in view the aforesaid settled principles of law and the discussions made above,
it is amply clear that the opposite party is an able bodied person and has sufficient
means to provide for the maintenance to the petitioner-wife as per the mandate of
law. Be that as it may, the O.P. can not shirk his legal and moral responsibility to
provide support by paying the maintenance amount to the petitioner-wife. In view of
the provisions of law it is the moral and legal duty of the opposite party to fulfill his
social obligation by providing for the maintenance of petitioner-wife and his child.”
5. Under section 125 of the Code of Criminal Procedure, a wife, minor child and parents who are
unable to maintain themselves are entitled for maintenance. The object behind section 125 of
the Code of Criminal Procedure is to ensure that they do not suffer in destitution. The necessary
conditions under section 125 of the Code of Criminal Procedure are that: (i) the husband has
sufficient means still he has neglected to maintain his wife and/or minor child, and (ii) the wife
is unable to maintain herself. In “Capt. Ramesh Chander Kaushal Vs. Veena Kaushal” reported
in (1978) 4 SCC 70, the Hon’ble Supreme Court has held asunder:
petrified print but vibrant words with social functions to fulfill. The brooding presence
inform interpretation if it has to have social 4 relevance. So viewed, it is possible to be
selective in picking out that interpretation out of two alternatives which advance the
cause — the cause of the derelicts”.
6. The proceeding under section 125 Cr.P.C is a summary proceeding and primarily civil in nature.
In such a proceeding normally the strict rules of evidence are not applied by the Court and it is
also true that a minute 4/28/22, 12:44 PM Sunil Yadav, S/o Ganesh Yadav VS State of Jharkhand
examination of the evidence is not permissible while exercising revisional jurisdiction [refer,
SheonandanPaswan v. State of Bihar, (1987) 1 SCC 288].
7. Keeping in mind the aforesaid principles, I find that the order passed by the learned Family
Court Judge does not warrant interference of this Court. The order of maintenance passed by
the learned Family Court Judge is based on the materials produced before him and the view
taken by him is in consonance with the law on the subject.
8. Section 125 Cr.P.C provides speedy remedy and serves a social purpose. On quantum of
maintenance,what has been observed by Hon’ble Supreme Court in “Shamima Farooqui Vs.
Shahid Khan” reported in (2015) 5 SCC 705 has to be kept in mind:
14. “…It can never be forgotten that the inherent and fundamental principle behind Section
125CrPC is for amelioration of the financial state of affairs as well as mental agony and
anguish that a woman suffers when she is compelled to leave her matrimonial home.
The statute commands that there have to be some acceptable arrangements so that she
can sustain herself. The principle of sustenance gets more heightened when the children
are with her. Be it clarified that sustenance does not mean and can never allow to mean
—| 485 |—
a mere survival. A woman, who is constrained to leave the marital home,should not be
allowed to feel that she has fallen from grace and move hither and thither arranging for
sustenance. As per law, she is entitled to lead a life in the similar manner as she would
have lived in the house of her husband. And that is where the status and strata of the
husband comes into play and that is where the legal obligation of the husband becomes
a prominent one. As long as the wife is held entitled to grant of maintenance within the
parameters of Section 125 CrPC, it has to be adequate so that she can live with dignity
as she would have lived in her matrimonial home. She cannot be compelled to become
a destitute or a beggar. There can be no shadow of doubt that an order under Section
125 CrPC can be passed if a person despite having sufficient means neglects or refuses
to maintain the wife. Sometimes, a plea is advanced by the husband that he does not
have the means to pay, for he does not have a job or his business is not doing well. These
are only bald excuses and, in fact, they have no acceptability in law. If the husband
is healthy, able-bodied and is in a position to support himself, he is under the legal
obligation to support his wife, for wife’s right to receive maintenance under Section 125
CrPC, unless disqualified, is an absolute right.”
9. Having considered the aforesaid facts and circumstances of the case, I am of the opinion that the
quantum of maintenance awarded by the learned Family Court Judge for the wife and the minor
child of the petitioner is not excessive and, therefore, I am not inclined to interfere in this matter.
10. Accordingly, Cr. Revision No.1603 of 2016 is dismissed.
qqq
—| 486 |—
SUSHAN MANDAL VERSUS THE STATE OF JHARKHAND AND ORS.

Bench : Hon’ble Mr. Justice Shree Chandrashekhar
CR. REV. NO. 1554 OF 2016
Sushan Mandal, S/o Late Mahabir Mandal ...Petitioner
Versus
The State of Jharkhand and ors. ...Opposite Parties
Criminal Procedure Code, 1973 - Section 125 - Maintenance - Quantum - Under section 125 of Code
of Criminal Procedure, wife, minor child and parents who are unable to maintain themselves are
entitled for maintenance - Object behind Section 125 of Code of Criminal Procedure is to ensure that
sey do not suffer in destitution - Family Court Judge has recorded that considering social and financial
background of parties, paying capacity of husband and requirements to lead a comfortably reasonable
life husband is liable to payRs.2,000/- per month to his wife and Rs.1,000/- per month to his minor
child for their monthly maintenance - Impugned order upheld.
(Paras 2 to 5)
Acts Referred:
CRIMINAL PROCEDURE CODE : S.125
Cases Referred:
Capt. Ramesh Chander Kaushal Vs. Veena Kaushal, (1978) 4 SCC 70
Shamima Farooqui Vs. Shahid Khan, (2015) 5 SCC 705
Deb Narayan Halder Vs. Anushree Halder (SMT), (2003) 11 SCC 303
Advocate Appeared :
For the Petitioner : Mr. Ranjit Kumar, Adv.
For the Opposite Party : Mr. D.C. Mishra,Adv.
JUDGMENT
1. The petitioner is aggrieved of the judgment dated 03.09.2016 passed in Original Maintenance
Petition No.19 of 2013 by which he has been directed to pay Rs.2,000/- per month to his wife
and Rs.1,000/- to his minor son.
2. The petitioner and his wife both are handicapped persons. They are getting Rs.600/- monthly
allowance under a government scheme. The wife of the petitioner has alleged that her husband
is running a grocery shop and he has substantial income from the landed properties. In the
proceeding of maintenance case the wife of the petitioner has examined four witnesses and the
petitioner has also examined five witnesses, in support of their case. The learned Family Court
—| 487 |—
Judge has held that the petitioner has sufficient income whilehis wife has no income to sustain
herself and therefore the petitioner is liable to maintain his wife.
3. Under section 125 of the Code of Criminal Procedure, a wife, minor child and parents who are
unable to maintain themselves are entitled for maintenance. The object behind section 125 of
the Code of Criminal Procedure is to ensure that they do not suffer in destitution. The necessary
conditions under section 125 of the Code of Criminal Procedure are that: (i) the husband has
sufficient means still he has neglected to maintain his wife and/or minor child, and (ii) the wife
is unable to maintain herself. In “Capt. Ramesh Chander Kaushal Vs. Veena Kaushal” reported
in (1978) 4 SCC 70, the Hon’ble Supreme Court has held asunder: 4/28/22, 12:42 PM Sushan
Mandal, S/o Late Mahabir Mandal VS State of Jharkhand
“9. This provision is a measure of social justice and specially enacted to protect women and children
and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no
doubt that sections of statutes calling for construction by courts are not petrified print but vibrant
words with social functions to fulfill. The brooding presence of the constitutional empathy for
the weaker sections like women and children must inform interpretation if it has to have social
4 relevance. So viewed, it is possible to be selective in picking out that interpretation out of two
alternatives which advance the cause — the cause of the derelicts”.
4. In paragraph no.33 of the judgment under challenge the learned Family Court Judge has recorded
that considering the social and financial background of the parties, the paying capacity of the
husband and the requirements to lead a comfortably reasonable life the husband is liable to pay
Rs.2,000/-per month to his wife and Rs.1,000/-per month to his minor child for their monthly
maintenance. In “Shamima Farooqui Vs. Shahid Khan”, (2015) 5 SCC 705, the Hon’ble Supreme
Court has observed as under:
14. “……….. It can never be forgotten that the inherent and fundamental principle behind
Section 125CrPC is for amelioration of the financial state of affairs as well as mental
agony and anguish that a woman suffers when she is compelled to leave her matrimonial
home. The statute commands that there have to be some acceptable arrangements so
that she can sustain herself. The principle of sustenance gets more heightened when
the children are with her. Be it clarified that sustenance does not mean and can never
allow to mean a mere survival. A woman, who is constrained to leave the marital
home,should not be allowed to feel that she has fallen from grace and move hither and
thither arranging for sustenance. As per law, she is entitled to lead a life in the similar
manner as she would have lived in the house of her husband. And that is where the
status and strata of the husband comes into play and that is where the legal obligation
of the husband becomes a prominent one. As long as the wife is held entitled to grant of
maintenance within the parameters of Section 125 CrPC, it has to be adequate so that
she can live with dignity as she would have lived in her matrimonial home. She cannot
be compelled to become a destitute or a beggar. There can be no shadow of doubt that an
order under Section 125 CrPC can be passed if a person despite having sufficient means
neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband
that he does not have the means to pay, for he does not have a job or his business is not
doing well. These are only bald excuses and, in fact, they have no acceptability in law. If
the husband is healthy, able-bodied and is in a position to support himself, he is under
—| 488 |—
the legal obligation to support his wife, for wife’s right to receive maintenance under
Section 125 CrPC, unless disqualified, is an absolute right.”
5. In view of the aforesaid facts and the position in law, as it stands today, and keeping in mind
thelimitations of the revisional jurisdiction [refer, “Deb Narayan Halder Vs. Anushree Halder
(SMT)” reported in (2003) 11 SCC 303], I am not inclined to interfere in this matter and,
accordingly, Cr. Revision No.1554 of2016 is dismissed.
qqq
—| 489 |—
JITENDRA KUMAR VERSUS ANKITA SHARMA @ THAKUR

Jitendra Kumar ...Appellant
Versus
Ankita Sharma @ Thakur ...Respondent
Hindu Marriage Act, 1955 - Section 13 - Divorce - Husband for restitution of conjugal rights- By
impugned Judgment passed by Additional Principal Judge Family Court in Title Matrimonial Suit -
Family Court has dismissed suit instituted by petitioner appellant thus band for dissolution of marriage
with respondent wife on ground of cruelty and desertion and also for not obeying Judgment decree
of restitution of conjugal right passed against defendant earlier in Title Matrimonial Suit Principal
Judge Family Court - Respondent despite valid service of notice and substituted service of notice
by publication did not appear before Family Court and was debarred from filing written statement
in Title Matrimonial Suit which was decreed ex-parte in favor of plaintiff husband for restitution of
conjugal rights – Held, In terms of Section Hindu Marriage Act party can be allowed to take advantage
of his own wrong - Section further provides that before proceeding to grant any relief this Act it shall
be duty of Court first instance in every case where it is possible so to do consistently with nature
and circumstances of case to make every Endeavour to bring about reconciliation between parties
- Respondent by refusing to appear in instant appeal has precluded Court from making any such
Endeavour to bring about reconciliation between parties - As matter of fact by not only refusing to
resume conjugal ties in obedience decree of restitution of conjugal rights and further by not contesting
instant present appeal respondent has created an impression that she is not interested in maintaining
conjugal ties with plaintiff husband - In absence of any contest by respondent it is not proper to draw
an inference that plaintiff is taking advantage of his own wrong - What wrong could it be in itself
is matter of question and speculation - Plaintiff on other hand appears to be pursuing his remedies
lawfully while respondent has chosen not to appear and contest – However court are not in position to
render any finding on ground of cruelty and desertion on basis materials on record - As submitted by
counsel for appellant CP case is pending since complainant respondent is not appearing for evidence
- However on ground of non-compliance of decree of restitution of conjugal rights in terms of Section
Hindu Marriage Act light of facts and circumstances discussed above there is no reason why decree of
dissolution of marriage should not be granted in his favor – Court do not find any disentitling grounds
to deny relief to appellant Section of Hindu Marriage Act – Appeal allowed
Acts Referred:
HINDU MARRIAGE ACT : S.13(1)(i)(a), S.13(1)(i)(b), S.13(1)(a)(ii), S.9, S.23(1) INDIAN PENAL
CODE : S.498(a)
Cases Referred:
—| 490 |—
Smt. Saroj Rani V ersus Sudarshan Kumar Chadha, (1984) 4 SCC 90 Samar Ghosh v. Jaya Ghosh,
(2007) 4 SCC 511 Advocate Appeared : For the Appellant : Mr. Shailesh Kumar Singh, Advocate
JUDGMENT :
1. Heard learned counsel for the appellant. The respondent-wife has not entered appearance,
despite valid service of notice pre-admission and post-admission in this appeal.
2. By the impugned Judgment dated 25.5.2017 and decree dated 2.6.2017, passed by the learned
Additional Principal Judge, Family Court, Dhanbad, in Title Matrimonial Suit No. 413 of 2016,
the learned Addl. Family Court, Dhanbad has dismissed the suit, instituted by the petitioner/
appellant-husband for dissolution of marriage with the respondent- wife on the ground of
cruelty and desertion and also for not obeying the Judgment dated 18.6.2014 and the decree
of restitution of conjugal right dated 25.6.2014, passed against the defendant earlier in Title
Matrimonial Suit No. 177 of 2011 by the learned Principal Judge, Family Court, Dhanbad.
3. The respondent, despite valid service of notice and substituted service of notice by publication
did not appear before the Family Court and was debarred from filing the written statement in
Title Matrimonial Suit No. 177 of 2011, which was decreed ex-parte in favour of the plaintiff-
husband for restitution of conjugal rights.
4. The parties had entered into marriage as per Hindu rites and ceremonies on 28.6.2009, as per
the case pleaded by the plaintiff-husband. They were leading happy married life at their marital
home, but the parents of the defendant wanted him to reside as gharjamai. On 22.3.2011, the
defendant left his house with all the belongings and flatly refused to lead a conjugal life with
him.
Title Matrimonial Suit No. 177 of 2011 was then preferred by the husband for restitution of
conjugal right. The plaintiff had filed two affidavits in T.M.S. No. 177/2011 in examination-in-
chief. One by his father and the other by himself as P.W.-1 and P.W.-2. Apparently, no appeal was
preferred by the defendant wife against the decree of restitution of conjugal rights. The instant
O.S. No. 413 of 2016 was instituted against the respondent-wife on the ground of cruelty and
desertion and also for not obeying the decree of restitution of conjugal rights, passed against her,
in terms of Section 13(1) (i-a)(i-b), (1-A) (ii) of the Hindu Marriage Act, 1955.
5. In the instant suit, plaintiff examined two witnesses. P.W.-1 Kisto Thakur, an independent
witness and P.W.-2 the plaintiff himself. He adduced the certified copy of the judgment passed
in Title Matrimonial Suit No. 177 of 2011 as Exhibit-1; Postal receipt, by which, legal notice
dated 9th February, 2016 for restitution of conjugal rights was served upon the defendant as
Exhibit-2; Photo copy of Railway reservation tickets sent along with legal notice as Exhibit-3;
Photo copy of letter dated 21.12.2015, issued by the Additional Principal Judge, Family Court,
Patna upon the plaintiff to file show cause regarding deduction of maintenance was adduced as
Exhibit-4; Photo copy of the order dated 7.10.2013 passed in Cr. Misc. Case No. 42507 of 2013
was marked as Exhibit-5; Xerox copy of the statement of account of plaintiff was marked as
Exhibit-6 and photo copy of the letter bearing Memo No. 82/1(4)/ASN dated 10.2.2017, issued
by the Additional District Inspector of School (S.E.), Asansol Sub-Division, Burdwan (WB) was
marked Exhibit-7.
—| 491 |—
6. During the proceedings of the instant suit also the defendant did not appear, despite valid
service of notice and the suit was heard ex-parte. Upon consideration of the pleadings on record,
learned Additional Principal Judge, Family Court, Dhanbad framed the following issues for
consideration:
(a) Whether the plaintiff was subjected to cruelty and desertion by the defendant ?
(b) Whether the marriage between the plaintiff and the defendant is liable to be dissolved on the
ground of cruelty and desertion and also for noncompliance of the order passed by the Court
under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights by defendant?
7. Both the plaintiff witnesses stated common facts in their examination-in-chief regarding the
date of solemnization of marriage on 28.6.2009. That during her stay at the matrimonial home,
she always behaved in a cruel manner with the plaintiff and his family members and ultimately
on 21.3.2011, she left her matrimonial home without the consent and knowledge of the plaintiff
and his family members. Since then she is residing at her Maika and despite their best efforts, she
refused to come back to the matrimonial home. The pleadings relating to a decree of restitution
of conjugal rights and service of notice upon the defendant were supported in their evidence
in examination-in-chief. During Court question, the plaintiff disclosed that the defendant wife
had filed C.P. Case No. 3039(C)/2011, under Section 498-A of the I.P.C. against the petitioner-
husband, in which, Patna High Court had granted stay in Criminal Miscellaneous No. 42507
of 2013, vide order dated 7.10.2013. The plaintiff also disclosed the fact that the maintenance
of Rs. 7,000/-per month has been allowed by the learned Family Court, Patna, in M.P. Case No.
176 of 2012 in favour of wife. Upon consideration of the rival pleadings of the parties, learned
Additional Family Court, Dhanbad arrived at a finding that the plaintiff had obtained a decree of
restitution of conjugal rights in his favour by not pleading or bringing on record the institution
of C.P. Case No. 3039(C)/2011 and M.P. Case No. 176 of 2012 and the order passed therein in
favour of the defendant-wife. However, the plaintiff had not gone to bring the defendant to the
matrimonial him. He had only sent notices upon her. This showed that the plaintiff had not
come with clean hands, rather by suppressing the aforesaid fact had got a decree of restitution
of conjugal rights in his favour. Learned Addl. Family Court also held that the plaintiff is guilty
of suppression of fact. The living of the defendant separately is justified in M.P. Case No. 176 of
2012. Therefore, the learned Court held that though the decree of restitution of conjugal rights,
passed in T.M.S. Case No. 177 of 2011 was not complied, but plaintiff was guilty of matrimonial
wrong and desertion leveled against the defendant, so he was not entitled to divorce and the suit
was accordingly dismissed ex-parte against the defendant.
8. Learned counsel for the appellant submits that the learned Additional Family Court, Dhanbad
has arrived at a presumptuous finding of fact even though the defendant was not appearing
to contest the suit or filing a written statement taking any such ground. As a matter of fact the
complaint case was instituted by the defendant after institution of the matrimonial suit in the
Family Court at Dhanbad for restitution of conjugal rights and after refusal to accept notice.
The complaint case was filed making frivolous allegation against the petitioner-husband. The
defendant despite valid service of notice and even substituted service of notice failed to contest
the Title Matrimonial Suit No. 177 of 2011. The plaintiff had duly served legal notice and sent
Railway reservation tickets to her for resumption of matrimonial life in obedience to the decree
of restitution of conjugal rights, which she failed to respond to. She never came back to the
—| 492 |—
matrimonial home. Mere pendency of the C.P. Case No. 3039(C)/2011 could not be taken
as a reasonable excuse for the defendant not to resume conjugal ties. More so, when she has
consciously refused to appear and contest the proceedings in Title Matrimonial Suit No. 177
of 2011 and also in the instant O.S. No. 413 of 2016. Though, the Criminal Miscellaneous No.
42507 of 2013 has been dismissed, vide order dated 8th April, 2017, by the Hon’ble Patna High
Court, as nobody had appeared for the petitioner and the opposite party, the C.P. Case continues
to linger since the defendant/plaintiff is not coming up for giving evidence. The petitioner has
not obtained the decree of restitution of conjugal rights by indulging in connivance with the
defendant-wife, which could be a reason to deny the relief in the instant suit on account of
taking advantage of his own wrong. However, the other two material facts relating to pendency
of C.P. Case No. 3039(C)/2011 and the order passed in M.P. Case No. 176 of 2012, without being
pleaded as a ground by the respondent-wife, could not be made a basis to deny the relief to the
petitioner, despite non- compliance of decree of restitution of conjugal rights by the defendant,
in view of Section 13(1) (1-A) (ii) of the Hindu Marriage Act, 1955. Even if the charge of cruelty
and desertion may not be taken as proved on the part of the plaintiff assumingly, the plaintiff is
entitled to a decree of divorce on the sole ground available under Section 13(1) (1-A) (ii) of the
Hindu Marriage Act, 1955.
9. In the above circumstances, learned counsel for the appellant has placed reliance upon the
decision of the Hon’ble Supreme Court in the case of Smt. Saroj Rani Versus Sudarshan Kumar
Chadha, reported in (1984) 4 SCC 90 . Relying upon the aforesaid decision he submits that
in the absence of any facts pleaded and the allegation made by the wife before the Trial Court
or before this Court, the learned Additional Family Court, Dhanbad could not have denied
the relief to the plaintiff-husband on the ground that the plaintiff is taking advantage of his
own wrong, as per Section 23(1) of the Act of 1955. He submits that the manner in which the
respondent has refused to appear and contest the proceedings in Title Matrimonial Suit No. 177
of 2011 and in the instant O.S. No. 413 of 2016 as also in the present appeal is indicative of her
complete indifference and disinterest to the matrimonial relationship.
10. Relying upon the decision of the Hon’ble Apex Court in the case of Samar Ghosh v. Jaya Ghosh,
reported in (2007) 4 SCC 511 (Para-101), he submits that such a continuous and persistent
negligence of matrimonial relationship on her part without any basis, for a period of ten years
by now, would in itself amount to mental cruelty.
11. In such circumstances, considering the long period of continuous separation, it may fairly be
concluded that the matrimonial bond is beyond repair; the marriage becomes a fiction though
supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the
sanctity of the marriage; on the contrary it shows scant regard for the feelings and emotions
of the parties. It is not necessary that mental cruelty can only be inflicted if the spouses live
together. Merely by filing of frivolous cases and not prosecuting it for 10 long years and on
the other hand refusing to contest the matrimonial suit for restitution of conjugal rights and,
thereafter, the instant suit for a decree of divorce are enough reasons to hold that the respondent
is no longer interested in maintaining matrimonial ties with the appellant.
12. Based on these submissions and pleadings and materials on record, learned counsel for the
appellant has prayed that the instant appeal may be allowed by a decree of dissolution of marriage
on the specific ground, available under Section 13(1) (1-A) (ii) of the Hindu Marriage Act, 1955.
—| 493 |—
13. We have considered the submissions of learned counsel for the appellant and taken into account
the relevant material pleadings and evidence, available from the Lower Court Records. We
have also perused the impugned judgment and the judgment dated 18th June, 2014, passed in
Title Matrimonial Suit No. 177 of 2011, whereby the decree of restitution of conjugal rights was
granted in favour of the appellant ex-parte against the respondent. On a careful analysis of the
materials available on record, it appears that the plaintiff-husband instituted Title Matrimonial
Suit No. 177 of 2011, under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal
rights, on the plea that the respondent left the matrimonial home on 21st March, 2011 without
his consent and without any reasonable cause. Title Matrimonial Suit No. 177 of 2011 was
allowed and decreed in his favour without any contest, despite valid service of notice and even
substituted service of notice upon the respondent. The respondent despite service of legal notice
did not resume conjugal ties. It does not appear that the judgment and decree passed in Title
Matrimonial Suit No. 177 of 2011 was subjected to any challenge by her. Plaintiff-husband,
thereafter instituted the instant O.S. No. 413 of 2016 seeking divorce on multiple grounds of
cruelty and desertion and also for not obeying the decree of restitution of conjugal rights passed
against her earlier, under Section 13(1) (i-a)(i-b), (1-A) (ii) of the Hindu Marriage Act, 1955.
The defendant again did not contest the suit, despite valid service of notice. Admittedly, she did
not take any plea based upon institution of C.P. Case No. 3039(C)/2011 or institution of M.P.
Case No. 176 of 2012 for living separately from the petitioner-husband as a reasonable excuse
for leaving the matrimonial home.
14. The learned Additional Family Court, Dhanbad, however, took these two factors against the
plaintiff-husband to hold that he had obtained the decree of restitution of conjugal rights by
suppression of facts. As it appears from the submission of learned counsel for the appellant, the
C.P. Case No. 3039(C)/2011 was instituted after the institution of Title Matrimonial Suit No.
177 of 2011 by the plaintiff-husband. The C.P. Case No. 3039(C)/2011 instituted with allegation
under Section 498-A of the IPC, is said to be pending. There was no finding of the competent
court of criminal jurisdiction before the learned Addl. Family Court, Dhanbad to the effect that
the allegations of cruelty in marriage made in the C.P. Case No. 3039(C)/2011 were found to be
true against the plaintiff-husband. Mere institution of a criminal case under Section 498-A of
the IPC could or could not be a reasonable ground for leaving the matrimonial home depending
upon the facts and circumstances of each case. The respondent had not chosen to raise any such
plea based upon the pendency of C.P. Case No. 3039(C)/2011 against the plaintiff-husband. On
the other hand respondent by refusing to contest the Title Matrimonial Suit No. 177 of 2011
or the instant O.S. No. 413 of 2016 consciously waived her right to take any such plea. In the
instant appeal, the respondent has chosen not to appear and contest despite valid service of
notice twice. In terms of Section 23 of the Hindu Marriage Act, 1955, no party can be allowed to
take advantage of his own wrong. Section 23(2) further provides that before proceeding to grant
any relief under this Act, it shall be duty of the Court in the first instance, in every case where
it is possible so to do consistently with the nature and circumstances of the case, to make every
endeavour to bring about a reconciliation between the parties. The respondent by refusing to
appear in the instant appeal has precluded the Court from making any such endeavour to bring
about reconciliation between the parties. As a matter of fact by not only refusing to resume
conjugal ties in obedience of the decree of restitution of conjugal rights and further by not
contesting the instant O.S. No. 413 of 2016 and the present appeal, respondent has created an
—| 494 |—
impression that she is not interested in maintaining the conjugal ties with the plaintiff-husband.
In the absence of any contest by the respondent, it is not proper to draw an inference that the
plaintiff is taking advantage of his own wrong. What wrong could it be, in itself, is a matter of
question and speculation. The plaintiff, on the other hand appears to be pursuing his remedies
lawfully, while the respondent has chosen not to appear and contest.
15. However, we are not in a position to render any finding on the ground of cruelty and desertion
on the basis of the materials on record. As submitted by learned counsel for the appellant, CP
case is pending since the complainant/respondent is not appearing for evidence. However, on
the ground of non-compliance of the decree of restitution of conjugal rights in terms of Section
13(1-A) (ii) of the Hindu Marriage Act, 1955, in the light of the facts and circumstances discussed
above, there is no reason why a decree of dissolution of marriage should not be granted in his
favour. We do not find any disentitling grounds to deny the relief to the appellant, under Section
13(1-A) (ii) of the Hindu Marriage Act, 1955.
16. Accordingly, the appeal is allowed. The impugned Judgment dated 25.5.2017 and decree dated
2.6.2017, passed by the learned Additional Principal Judge, Family Court, Dhanbad, in Title
Matrimonial Suit No. 413 of 2016 are, hereby, set aside. The marriage between the parties
stands dissolved on the ground of failure on the part of the respondent to comply the decree
of restitution of conjugal rights by the respondent-wife, in terms of Section 13 (1-A) (ii) of the
Hindu Marriage Act, 1955.
17. Decree accordingly.
18. Let the lower court records be returned to the court concerned.
qqq
—| 495 |—
MUKUL PRASAD VERSUS SANGITA KUMARI

Hon’ble Mr. Justice Kailash Prasad Deo
Mukul Prasad ...Appellant
Versus
Sangita Kumari ...Respondent
Decided on 19 February, 2020
Hindu Marriage Act, 1955 - Section 13(1)(i-a)(i-b) - Divorce - Cruelty by wife - Law does not permit
solemnity of Hindu Marriage Act to be dissolved on deliberate act and conduct of one of spouses
- Series of litigations have been fought between parties - Marriage under Hindu Law is considered
to be sacrosanct, not to be easily dissolved - Sufferer may be both parties - Irretrievable breakdown
of marriage is not a recognized ground of divorce under Section13 of Hindu Marriage Act, though
it is considered as a weighty ground if other grounds available under Section13 of Hindu Marriage
Act are established - Petitioner has always made things difficult for respondent to lead a conjugal life
- Impugned findings are well reasoned and based upon proper appreciation of evidence of parties -
Appeal dismissed. (Paras 10, 12 to 16)
Acts Referred:
DOWRY PROHIBITION ACT : S.3, S.4
HINDU MARRIAGE ACT : S.13(1)(i)(a)(i)(b), S.13(1)(i)(b), S.23, S.9, S.13, S.23, S.13
INDIAN PENAL CODE : S.494, S.498(a)
Cases Referred:
A. Jayachandra Vs. Aneel Kaur, AIR 2005 (SC) 534
Durga Prasanna Tripathy Vs. Arundhati Tripathy, (2005) 7 SCC 353
K. Srinivas Rao Vs. D.A. Deepa, (2013) 5 SCC 226
Mira Singh Vs. Ranvijay Singh, F.A. No. 68 of 2014, dated 21st January, 2020
Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558
Nisha Rashmi Vs. Kamlesh Pandey), 2018, F.A. No. 11 of 2017, dated 16th July
Ravinder Kaur Vs. Manjeet Singh, (2019) 8 SCC 308
Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511
Viswanath Sitaram Agrawal Vs. San Sarle Vishwanath Agrawal, (2012) 7 SCC 288
Advocate Appeared :
For the Appellant : Mr. Rahul Kumar, Adv., Miss. Apoorva Singh, Adv.
—| 496 |—
JUDGMENT :
1. Heard learned counsel for the appellant and respondent in person.
2. Appellant-husband is aggrieved by dismissal of the Original Suit (MTS) No. 12 of 2011 seeking
dissolution of marriage on the grounds of cruelty and desertion under Section 13(1)(i-a)(i-b) of
the Hindu Marriage Act, 1955 vide judgment dated 24th February, 2018 and decree dated 7th
March, 2018 rendered by learned Principal Judge, Family Court, Ranchi.
3. As per the case of the parties, after entering into the nuptial knot on 6th June, 2009 at Ranchi
as per Hindu custom and rites, the spouses lived only for 4 days and respondent left for her
parental house in the company of her brother on 12th June, 2009. Since then, there is no marital
reunion, on the contrary, there are spate of litigations between them. Whether in those facts and
circumstances, the husband is entitled to a decree of divorce on the ground of fault theory is
the seminal question to be answered to the present appeal. Learned Family Court, Ranchi in its
detailed judgment, did not found either of the grounds of cruelty or desertion made out.
4. Facts pleaded by the parties are briefly set out hereunder:
Appellant husband pleaded before the Family Court that beyond four days of their togetherness
in the matrimonial home after solemnization of marriage on 6th June, 2009 at Ranchi there
has been no union of thought. During the short period of four days, he was not allowed to
consummate the marriage as she did not look happy. Thereafter, she went to her parental house
at Ranchi and from there to her work place at Delhi, whereas plaintiff was working at Aligarh.
During telephonic talks, he was conveyed by her that it is not possible for her to lead happy
conjugal life with him. Despite his persuasion she declined to come back to the matrimonial
home. His father also wrote letter to the father of the defendant to persuade her to come back,
but all went in vain. Effort for settlement through mediation was made on 1st November,
2010 at Delhi High Court Mediation and Conciliation Center, but it did not fructify because
defendant wife did not join him on their train journey to Delhi from Dhanbad. Therefore, the
marriage remains only a legal relationship. Husband has been a victim of cruelty as she has
not permitted him to consummate the marriage. She deserted him continuously for 19 months
before presentation of petition for divorce.
5. Defendant wife in her written statement accepted the factum of marriage and her stay for four
days at village Karai in the matrimonial house. However, she alleged taunt and humiliation for
not bringing sufficient dowry during her brief stay. She was also taunted for not bringing a Car.
In these circumstances, she left the matrimonial home along with her brother. She categorically
denied the assertion of the petitioner- husband that the marriage between the parties was not
consummated. She had not left the matrimonial home on her own volition. The petitioner and
his family members never tried to bring her back instead they only wanted to extract dowry
from her father. She accepted that petitioner had come to see her ailing mother at Delhi but
she denied that she had refused to go back to her conjugal life. She has averred that petitioner
never wanted to keep her unless and until the demand of dowry of Rs. 5 Lakhs was fulfilled. She
also denied any misbehaviour by her parents with the petitioner. She contended that she had
to leave her job because she was denied leave for joining her matrimonial home. Still she was
not taken to the matrimonial home by the petitioner. As per the respondent, she had packed
up and reached from Delhi to Ranchi. Her brother was also humiliated when he had gone to
—| 497 |—
the matrimonial home for demand of an Innova Car as dowry. According to the defendant, the
petitioner has only tried to create false allegations to seek divorce.
6. On the rival pleadings of the parties, the following issues were framed for adjudication:
(I) Is the suit maintainable as framed?
(II) Whether the marriage took place between petitioner and respondent on 6th of June, 2009?
(III) Has the petitioner got any valid cause of action for the suit?
(IV) Whether the respondent has treated the petitioner with cruelty?
(V) Whether the respondent has deserted the petitioner without any reason?
(VI) Whether the respondent has left the petitioner’s house without any rhyme and reason?
(VII) Whether the petitioner is taking advantage of his own wrong?
(VIII) Whether the respondent has refused to reside with the petitioner?
(IX) Is the petitioner entitled to the relief(s) as prayed for?
Mediation failed and the case was adjudicated on contest. During trial, petitioner examined
himself as P.W.-2 and his friend, Anil Kumar as P.W.1. The following documents were adduced
on his behalf:
1. Ext. 1 is Postal Receipt,
II. Ext. 2 is Speed Post Receipt,
III. Ext. 3 is Copy of Rail E-ticket, IV. Ext. 3/1 is Rail E-ticket,
V. Ext. 4 & 4/a are Hotel Yatri Niwas Receipt,
VI. Ext.5 is Notice dated 29.09.2019 issued by Mediation Center, Delhi High Court, VII. Ext. 6
is Letter dated 28.10.2010 and
VIII. Ext. 7 is Postal Receipt dated 28.10.2010
Defendant wife examined herself as DW-1, her brother Sanjeev Kumar as DW-2 and one distant
relative Sanjeev Kumar @ Santu as DW-3. Defendant adduced the following documentary
evidence in support of her:
I. Ext. A is P.C of Mukul Computer Engineering Certificate,
II. Ext. B is P.C. of Mukul’s Bio-data,
III. Ext. C is Original Envelope,
IV. Ext. D is Marriage Card,
V. Ext. E is Original Bill of Magadh Tent House,
VI. Ext. F is Original Bill of Hotel Crown Plaza,
VII. Ext. G to G/11 are Twelve Photographs,
VIII. Ext. H is P.C of Cr.M.P. 2389/2012,
IX. Ext. I is Five Envelopes,
—| 498 |—
X. Ext. J is P.C of Cr.M.P. 1381/2012

XI. Ext. K to K/10 are C.C of Envelope,
XII. Ext. L is Speed Post Envelope,
XIII. Ext. M is P.C of Letter of Janak Deo Prasad,
XIV. Ext. N is C.C of Registration Acceptance,
XV. Ext. O is P.C of Experience Certificate,
XVI. Ext. P to P/3 are C.C of four train Tickets,
XVII. Ext. Q is Salary Slip,
XVIII. Ext. R is Transcribed Copy of Mobile Conversation,
XIX. Ext. S is P.C of MTS 12/2011 deposition,
XX. Ext. T is Transcribed SMS,
XXI. Ext. U is C.C of Bus Ticket,
XXII. Ext. V is C.C of Bill given by I.G Packers & Movers,
XXIII. Ext. W is P.C of A.B.A No. 3824/2011,
XXIV. Ext. X is C.C of Charge framed on petitioner and his parents
XXV. Ext. Y is C.C of SA and order-sheet passed in 1381/2012,
XXVI. Ext. Z to Z/1 are the C.C of order-sheet in Cr.M.P. No. 572/2012
XXVII. Ext. aa is C.C of Slp. (Cri.) 5769/2012,
XXVIII. Ext. bb is P.C of Land Revenue Bill,
XXIX. Ext. cc is P.C of Judgment-SLP (Cri.) 7907/2016
XXX. Ext. dd is P.C of CA in SLP (cri.)-7907/2016,
XXXI. Ext. ee is CC of order-sheet in 1329©/2016
XXXII. Ext. ff is CC of Bail petition & Bail granted in 1329©/2016 dated 16.12.2017
XXXIII. Ext. gg is P.C of Cri. Rev-208/2017 petition
XXXIV. Ext. hh is CC of passed in Cri.Rev. No. 208/2-17,
XXXV. Ext. ii is one C.D with five recording
Some documents were also marked for identification. Learned Family Court took up the Issue
nos. I, II, and III first and decided it in favour of the petitioner. Issue nos. V, VI and VII were also
taken up together as being interconnected being one issues of desertion under Section 13 (1)
(i-b) of Hindu Marriage Act, 1955. However, since alleged desertion was not for a continuous
period of not less than 2 years immediately preceding the presentation of the petition, such
ground was not made out. Petitioner failed on the point of desertion.
7. The vital issue left for adjudication was whether respondent has treated the petitioner with
cruelty under Issue no. IV. Learned Family Court discussed the evidence of the parties in
—| 499 |—
detail and also the law on the subject by citing the decisions in the case of Viswanath Sitaram
Agrawal Vs. San Sarle Vishwanath Agrawal reported in (2012) 7 SCC 288 and in the case of
A. Jayachandra Vs. Aneel Kaur reported in AIR 2005 (SC) 534 and concluded that from the
evidence of the parties allegation of non-consummation of marriage is not made out since there
is a clear denial about refusal in cohabitation by the defendant-wife. Further no specific instance
of any cruelty as stated by the petitioner of such nature as would create an apprehension in the
mind of the husband that he cannot reasonably be accepted to live with the defendant could be
made out on the part of the petitioner. Learned Family Court also noted that petitioner never
resorted to restitution of conjugal right if his intentions were bonafide. Instances of cruelty cited
by the petitioner were not found to be weighty enough to decree divorce. Accordingly, this issue
was decided against him. Finding on the issue no. VII was rather ambiguous since according
to learned Family Court defendant could not establish that petitioner had indulged in bigamy
except an institution of Criminal Complaint Case no. 1329 of 2016 under Section 494 of I.P.C
with such allegation. Based on these findings, the suit was dismissed.
8. Appellant during the course of submission has primarily tried to canvass before us that
the marriage is beyond repair with no emotional bond left. Maintaining a legal tie, in such
circumstances, amounts to mental cruelty upon the husband. Marriage has irretrievably broken
down. Therefore, it would be in the interest of both the parties to lead their own independent life.
Several instances have been cited on behalf of the appellant to impress that respondent has never
shown any inclination to join conjugal life. She instead inflicted cruelty by institution of criminal
cases under Section 498A of I.P.C and other allied Sections, in which, of course, the appellant
has been convicted. She also alleged bigamy on his part and had lodged another criminal case,
which is still pending trial. There is no union of thought amongst them. Appellant has lost his
job. He was an engineer and now stays at his village in Bihar. He has become a mental wreck
because of the estranged relationship and several rounds of litigation. It is contended by learned
counsel for the appellant that efforts for reunion have failed. Respondents did not participate in
the mediation exercise held at Delhi High Court Mediation and Conciliation Centre in the year
2010. Learned counsel for the appellant however does not dispute that the grounds of desertion
were technically not made out since the suit was filed on 12th January, 2011 without completing
the mandatory period of 2 years as stipulated under Section 13 (1) (1-a) under the Act of 1955.
However, he submitted that the sequence of facts and circumstances and the spate of litigation
between the parties do lead to an inescapable conclusion that the appellant has been a victim of
mental cruelty. Mental cruelty is a recognized ground to decree divorce. In support, reliance has
been placed upon the decision of the Apex Court in the case of Samar Ghosh –Vs.- Jaya Ghosh
reported in (2007) 4 SCC 511 , para-101. Learned counsel for the appellant has also relied upon
a decision of this Court rendered in F.A. No. 11 of 2017 (Nisha Rashmi Vs. Kamlesh Pandey)
vide judgment dated 16th July, 2018. In that case also the spouses had lived only for 3-4 days
after marriage in the year 2010 and a criminal case was instituted in July, 2015 with an intention
to embarrass and harass the husband and his family members. This Court relying upon the
decision of Samar Ghosh (supra) felt that the judgment of learned Family Court granting divorce
did not suffer from any perversity in appreciation of evidence or any such errors of law or on
facts, which required interference in appeal. Learned counsel for the appellant has also placed
reliance on a decision of this Bench in F.A. No. 68 of 2014 (Mira Singh Vs. Ranvijay Singh) vide
judgment dated 21st January, 2020. In the said decision also, this Court felt that there were no
—| 500 |—
emotional ties left between the parties as admittedly they have been living in separation since
2008 and there are no offspring born out of the marriage. In such circumstances, keeping alive a
legal tie of matrimonial relationship would neither be in the interest of the appellant-wife nor the
respondent husband. It would amount to unnecessarily keeping the marriage alive when there
are no love or affection left between the parties. It is submitted that in the present case also the
evidence on record; the statement of the respondent wife and the spate of litigations pursued by
her clearly indicates that there is no emotional bond or love left towards the appellant. However,
by refusing to part with the marriage on agreed terms, she intends to wreck vengeance on the
husband for no ostensible reason. In such circumstances, appellant should not be allowed to
suffer a relationship in name when the very emotional bond to keep a marital tie alive cannot be
resurrected. Learned counsel for the appellant has also placed reliance upon a decision of Apex
Court rendered in the case of Durga Prasanna Tripathy Vs. Arundhati Tripathy reported in
(2005) 7 SCC 353. In the said case, the Apex Court found that parties were living separately for
almost 14 years and endeavors to effect reconciliation had failed. Thus, it was held that marriage
had irretrievably broken down. The order of the Family Court granting divorce was accordingly
confirmed.
9. Respondent in person has strongly contested the case. She has taken the Court through the
evidence of the appellant and the respondent’ witnesses as well and a series of documentary
evidence adduced by her numbering I to XXXII. In substance, her plea is two folds (i) that
she has never forsaken the relationship on her part and has always been willing to reunite (ii)
husband being the male protagonist in the society, did not make any serious endeavour to bring
her back to the matrimonial home. After four days of togetherness during Honeymoon period
when she went back to her parents, no effort was made by the husband and his family members
to bring her back. She was employed in a Bank at Noida and had to rejoin her job after about
15 days of the marriage. Never thereafter, the appellant showed any intention to bring her back
to the matrimonial home or to maintain conjugal ties. She had to ultimately leave her job on
3rd March, 2010. She succumbed to the constant pressures of the appellant and his family as
a precondition of resuming matrimonial ties. Her family was not in a position to honour the
demands of dowry. She had to leave her job in tragic circumstances on 3rd March, 2010. All along
the appellant and his family members kept pressuring her on their demand of dowry including
an Innova Car. During conversation through messages appellant used to insist upon her to ask
for share in her paternal property as she had left the job. Such transcripts of SMS have been
adduced as Ext.-T during trial. She being a victim of constant mental torture on non- fulfillment
of demand of dowry, was compelled to institute a case under Section 498A of IPC and Section
3/4 of Dowry of Prohibition Act, 1961. There is total absence of any intention on the part of the
husband to restitute the marriage, since he never sought such a relief before the Family Court.
The suit for divorce was instituted within 2 years of marriage on 12th January, 2011 on totally
misconceived grounds of desertion and cruelty when the ingredients of desertion i.e., animus
deserendi and physical desertion for a period of 2 years were not made out. On the contrary,
it was the respondent, who was the victim of mental cruelty on account of non-fulfillment of
demand of dowry.
10. Respondent has adverted to the various documentary evidence adduced during trial to show
that on each occasion she has been dragged into litigations up to the High Court and also to
the Supreme Court in connection with the case under Section 498A of Cr.P.C instituted by
—| 501 |—
her. Appellant has not been able to get any relief up to the Apex Court even in maintenance
matter. The allegations of cruelty in marriage, on non- fulfillment of demand of dowry, now
stands vindicated on the conviction of the appellant in Complaint Case no. 1948 of 2010 vide
judgment dated 16.9.2019. The conviction has been recorded for the offence under Section 498A
of I.P.C, only against the husband. It has been alleged that appellant has indulged in second
marriage during subsistence of the first marriage with the respondent, for which he is facing
a case under Section 494 of I.P.C being Complaint Case no. 1329(C) of 2016. Learned Court
has taken cognizance against the appellant for the offence under Section 494 of IPC, though
cognizance was not taken against the other family members. However, trial in the said case is
still pending. It is contended by the respondent that she has suffered immensely on account of
the conduct of the appellant for more than 10 years by now. Hindu Marriage Act does not allow
a party who is responsible for inflicting cruelty upon the other spouse to take advantage of his
wrongs. Section 23 of the Hindu Marriage Act is referred in support. It is submitted that the
appellant has hurled unwarranted allegations that the marriage was not consummated. There
is a clear denial on the part of the respondents at paragraph-31 of her written statement in
response to para-17 of the plaint. During trial also she has categorically denied this assertion.
This kind of assertion diminishes the personality of the respondent, who has also been willing to
resume conjugal ties, but not under coercion or undue terms. Based on the aforesaid pleadings
on record and the evidence adduced during trial, respondent has submitted that the appellant
should not be allowed to succeed on grounds of irretrievable broken down of marriage when he
has been found responsible for inflicting cruelty upon her and forcing her to live away from the
matrimonial home for so long. Law does not permit the solemnity of Hindu Marriage Act to be
dissolved on such deliberate act and conduct of one of the spouses. As such, the appeal being
devoid of merit is fit to be dismissed.
11. We now proceed to deal with the rival submissions of the parties and the grounds of challenge.
At the outset, be it noted that even the appellant has not challenged the findings on desertion
since the mandatory period of 2 years was not completed before presentation of the plaint as
stipulated under Section 13(1)(i-b) of the Act of 1955. Appeal has primarily been pressed on
the grounds of mental cruelty and irretrievable break down of marriage. Learned counsel for
the appellant has relied upon the illustrative instances of cruelty in the case of Samar Ghosh-Vs.
Jaya Ghosh reported in (2007) 4 SCC 511 , Para-101. At this stage, we may usefully refer to the
decision of the Apex Court in the case of K. Srinivas Rao Vs. D.A. Deepa reported in (2013) 5
SCC 226 . In the case of K. Srinivas Rao, the Apex Court decreed the suit for divorce holding
the wife responsible for mental cruelty. At the same time it was observed that the wife by her
conduct had caused mental cruelty to the appellant husband and the marriage had irretrievably
broken down. The Apex Court also observed at para-29 of the report that staying together
under the same roof is not a precondition for mental cruelty. Spouse can cause mental cruelty
by his or her conduct even while he or she is not staying under the same roof. In a given case,
while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and
defamatory letters or notices or filing complaints containing indecent allegations or by initiating
number of judicial proceedings making the other spouse’s life miserable. It was found that the
same had happened in the said case. The Apex Court had taken note of these scurrilous, vulgar
and defamatory statements made by the wife in her complaint addressed to the Superintendent
of Police, Women Protection Cell alleging that the mother of the appellant husband had asked
—| 502 |—
her to sleep with his father. It was that kind of humiliation which had caused great anguish to the
husband. His family was pressurized by false and indecent statement made in the complaint. It
was therefore observed that such statement can cause mental cruelty. The Apex Court also took
into consideration the factum of irretrievable break down of marriage but also observed that
irretrievable break down of marriage as a ground of divorce is not available under the Hindu
Marriage Act, 1955 though a recommendation has been made to the Union in the case of Naveen
Kohli Vs. Neelu Kohli reported in (2006) 4 SCC 558 . The observations of the Apex Court in this
background rendered in the case of K. Srinivas Rao (supra) at Para-38 is to be borne in mind
while deciding a case of this nature. Para-38 of the report is quoted hereunder:
“38. Before parting, we wish to touch upon an issue which needs to be discussed in the
interest of victims of the matrimonial disputes. Though in this case, we have recorded
a finding that by her conduct, the respondent wife has caused mental cruelty to the
appellant husband, we may not be understood, however, to have said that the fault
lies only with the respondent wife. In matrimonial disputes there is hardly any case
where one spouse is entirely at fault. But, then, before the dispute assumes alarming
proportions, someone must make efforts to make parties see reason. In this case, if
at the earliest stage, before the respondent wife filed the complaint making indecent
allegations against her mother-in-law, she were to be counselled by an independent
and sensible elder or if the parties were sent to a mediation centre or if they had access
to a pre-litigation clinic, perhaps the bitterness would not have escalated. Things would
not have come to such a pass if, at the earliest, somebody had mediated between the
two. It is possible that the respondent wife was desperate to save the marriage. Perhaps,
in desperation, she lost balance and went on filing complaints. It is possible that she
was misguided. Perhaps, the appellant husband should have forgiven her indiscretion
in filing complaints in the larger interest of matrimony. But, the way the respondent
wife approached the problem was wrong. It portrays a vindictive mind. She caused
extreme mental cruelty to the appellant husband. Now the marriage is beyond repair.”
The Apex Court has poignantly observed that in the matrimonial dispute there is hardly any case
where one spouse is entirely at fault. But, then, before the dispute assumes alarming proportions,
someone must make effort to make the party see reason. The Apex Court also observed that
though in this case a finding of mental cruelty was recorded against the wife but they may
not be understood to have said that the fault lies only with the respondent wife. Quite often
misunderstanding results due to a trivial dispute which can be sorted out through Alternative
Dispute Resolution Mechanism.
12. Here is a case, where the parties have lived for four days after their marriage and since then
they are living separately. However, it is also beyond dispute that the appellant herein has been
convicted for a charge of cruelty in marriage under Section 498A of IPC under Complaint Case
No. 1948 of 2010 instituted on 28th November, 2010 vide judgment dated 16th September, 2019.
The suit for divorce was instituted by him on 12th January, 2011 after institution of the criminal
case. If the appellant was serious in restoring conjugal ties, he did not show true intent any
time before by seeking restitution of conjugal right under Section 9 of the Hindu Marriage Act,
1955. Respondent has complained of mental cruelty, as a result of non-fulfillment of demand of
dowry and the competent court of criminal jurisdiction has found the charges proved. She had a
—| 503 |—
reasonable cause to stay away from the matrimonial home. Therefore, any animus to desert the
petitioner husband cannot be made out though there has been physical separation since 12th
June, 2009 till date between the parties. Respondent has categorically denied the assertions of
non-consummation of marriage within that four days period of their conjugal life and appellant
has miserably failed to substantiate it. On the other hand, the allegations of cruelty due to non-
fulfillment of demand of dowry have been established on conviction of the appellant for the
charge under Section 498A of I.P.C. A series of litigations have been fought between the parties.
(i) the complaint case under Section 498A of IPC, in which conviction has already been recorded;
(ii) the complaint case relating to charge of bigamy where appellant is facing trial and (iii) in
relation to grant of maintenance. Offshoots of these three litigations have journeyed up to the
Apex Court in one or the other case. There is documentary evidence adduced by the respondent
in support of the contentions. These prosecutions at the behest of the respondent, in furtherance
of seeking lawful remedies available to her, cannot be held against the respondent as an instance
of mental cruelty. This has also been held in a recent decision rendered by the Apex Court in the
case of Ravinder Kaur Vs. Manjeet Singh reported in (2019) 8 SCC 308 , appellant cannot take
advantage of the prosecutions launched by the respondent to make out a case of mental cruelty
if the charges of cruelty in marriage stands established after a proper trial. Moreover, a wife has
a rightful claim to maintenance if she is made to live in separation due to reasonable cause.
As such, prosecution of a case of maintenance ultimately decided in her favour with grant of
monthly maintenance at the rate of Rs. 8,000/- also cannot be taken to be against her. We need
not make any comments on the allegations of bigamy as the trial of the said complaint case is
still pending.
13. It is however apparent that both the spouses are victims of circumstances. In a matrimonial
dispute, it is often difficult to find as to where the fault lies. However, a petition for divorce on
grounds of cruelty or desertion can only be decreed if the petitioner spouse is able to establish
the ingredients thereof on the basis of cogent and convincing evidence. A marriage under Hindu
Law is considered to be sacrosanct, not to be easily dissolved. Sufferer may be both the parties.
Irretrievable break down of marriage is not a recognized ground of divorce under Section 13 of
the Hindu Marriage Act, though it is considered as a weighty ground if other grounds available
under Section 13 of the Hindu Marriage Act are established.
14. From the discussions made hereinabove, we are not persuaded to hold that respondent has
been guilty of inflicting mental cruelty upon the appellant over all these years. The matrimonial
tie indeed has suffered due to estranged relationship over a period of more than 10 years but if
cruelty in marriage has been established upon the respondent due to the acts of the appellant, he
cannot be allowed to take advantage of his own wrong. This principle is embodied in Section 23
of the Hindu Marriage Act, 1955.
Reliance has been placed by the appellant on a decision of the Apex Court in the case of
Durga Prasanna Tripathy (Supra) on the plea of irretrievable break down of marriage. We are
afraid this Court cannot decree the suit on such grounds as it is not recognizd under Section
13 of the Act, 1955. The illustrations of mental cruelty cited at Para-101 of the case of Samar
Ghosh are also hedged with the condition that the concept of mental cruelty is impossible of a
comprehensive definition and no Court should even attempt to do that. It differs from person
to person depending upon his upbringing, level of sensitivity, educational, family and cultural
—| 504 |—
background, financial position, social status, customs, traditions, religious believes, human
values and their value system. No uniform standard can ever be laid down for guidance but
there are certain illustrative instances enumerated by the Apex Court at Para-101 of the report.
15. In the present case, there has been strong resistance on the part of the wife to any thought of
divorce by the appellant husband. The chronology of facts do not suggest a deliberate neglect or
indifference on the part of the respondent of the appellant to the normal standards of conjugal
kindness. The petitioner has been unable to establish cruelty of such an extent that he bears a
reasonable apprehension that it is impossible to live with her. On the contrary it can be inferred
that the petitioner has always made things difficult for the respondent to lead a conjugal life.
Therefore, though the ultimate victim is the conjugal relationship, but we are not in a position
to hold that the marriage has irretrievably broken down, moreover such a ground is not a
recognized under the Hindu Marriage Act, 1955.
The case of Nisha Rashmi relied upon by the petitioner-appellant had distinguishable features
and cannot fit in the facts of the present case. Though, in that case the wife had stayed for 4-5
days only, after the marriage but neither had she made any overtures to resume conjugal life
nor alleged any acts of cruelty in marriage over a period of 5 years there from till she instituted
a case under Section 498A of IPC in July, 2015. Learned Family Court in the facts of that case
was persuaded to hold that such a criminal allegation was intended to harass and embarrass the
petitioner and his family members. In the present case, the complaint case under Section 498A
of IPC was lodged in November, 2010 after 1 year and five months of the marriage only and the
charges stand established. Therefore, resemblance to one fact of the decision does not make it
a binding ratio in the facts of the present case. We are therefore not convinced of the argument
advanced on behalf of the appellant.
16. Having perused the impugned judgment, we find that the findings are well reasoned and based
upon proper appreciation of the evidence of the parties. They do not suffer from any perversity or
errors of law or facts which deserves interference in the appellate jurisdiction. Having considered
the rival submission of the parties in the light of the discussions made and the reasons recorded
hereinabove, we do not find any ground made out on the part of the appellant to dislodge the
findings of learned Family Court. Accordingly, the appeal has to fail. It is dismissed. Decree
accordingly. IAs are closed.3
qqq
—| 505 |—
LEENA SINHA VERSUS DR SIDDHARTH SINHA

Hon’ble Mr. Justice Ratnaker Bhengra
APPEAL FROM ORIGINAL DECREE NO. 107 OF 2017
Leena Sinha ... Appellant
Versus
Dr Siddharth Sinha ...Respondent
Advocate Appeared :
For the Appellant : Mr. Vishal Kumar Tiwary, Advocate; Ms. Kirti Saboo, Advocate.
For the Respondent : Mr. Sumir Prasad, Advocate; Mr. J.S. Tiwary, Advocate.
By Court:
1. Heard learned counsel for the parties.
2. Appellant is the wife aggrieved by the judgment dated 27.03.2017 rendered by the learned
Family Court, Hazaribagh, whereunder the Matrimonial Title Suit No. 18 of 2015 instituted by
the petitioner- husband/ respondent herein for decree of divorce, has been allowed.
3. Petitioner/ respondent pleaded before the Family Court, inter alia, as under:
Marriage between the parties were solemnized on 24.06.2011 as per Hindu rites and customs
at Ramgarh. The spouses lived at Pune till 07.07.2011 from where she came to Ranchi by air
and went to Patratu on the pretext of illness of her mother. Since then she was living at Patratu
with her parents. Petitioner took several steps to bring her back but she refused on one pretext
or the other. Finally, he instituted a suit for restitution of conjugal rights bearing M.T.S. No. 38
of 2013. She appeared and filed a written statement after several adjournments and made false
allegations against his conduct. She, however, undertook to live with the petitioner if he kept her
with dignity.
Matter was referred to the mediation centre but respondent did not appear before the mediation
centre on a number of dates i.e. 17.09.2013, 24.09.2013 though the petitioner was present. As a
result, mediation failed. This showed her intention not to consummate the marriage. However,
due to the insistence of the Family Court, petitioner went to her house on 18.04.2014 whereafter
she came with him. The M.T.S. No. 38 of 2013 was accordingly permitted to be withdrawn by
order dated 24.04.2014. According to the petitioner, after withdrawal of the matrimonial suit,
she again insisted of going back to her parents’ house and when the petitioner objected, she
threatened that she would never come back to the matrimonial house. Petitioner had to filed a suit
for divorce being M.T.S. No. 98 of 2014. However, on intervention of dignified and respectable
persons, the matter was resolved and on 26.06.2014, she came to the petitioner’s house and
started residing at Matwari undertaking to abide by the terms of compromise. She however
went to her parental house without consent of the petitioner and her in-laws and without any
—| 506 |—
reason on 04.12.2014. While going back, she threatened to implicate them in false case of dowry.
During her stay from 26.06.2014 to 03.12.2014, she never consummated the marriage. She went
to Mahila Police Station, Hazaribagh and gave a written complaint containing false allegations
against him. Petitioner alleged that she used to remain regularly in contact with one Umakant,
which could be evident from her call details. She had relationship with him before marriage
with the petitioner. She used to have long hours of phone calls with him having Mobile No.
9418050246 and 7054846977. Respondent has throughout subjected the petitioner to mental
cruelty by making false allegations of wrongful behaviour and refused to live with him. She
has made wild allegations which were far from truth. She also filed Maintenance Case No. 191
of 2013 against him with inflated claims on false and frivolous allegations but the same got
dismissed. Petitioner was convinced that she is not going to live with him and there was no point
continuing with the marriage. The cause of the action for the suit arose on 24.06.2011, the date
of marriage and thereafter day to day till 04.12.2014 when she left for her parental house.
4. Respondent appeared on notice and filed her written statement. She denied the averment
made in the plaint, save and except, those which were specifically admitted. She accepted the
factum of marriage on 24.06.2011 and having lived as spouses at Hazaribagh. She stated that
during marriage, her father had given Rs.10,00,000/- as dowry to the petitioner. She had lived
with the petitioner from 25.06.2011 to 29.06.2011. On 30.06.2011 they had gone to Darjeeling
for honeymoon and stayed there till 06.07.2011, during which period she consummated the
marriage by having sexual relationship, on number of occasions. She went to Pune from
Darjeeling on 07.07.2011 and stayed with him for more than 20 days till 27.07.2011. She came
to Ranchi by air but no one came to receive her from the matrimonial side. She had to go to
her parental house after waiting for 3-4 hours at the airport. According to her, the marriage was
consummated on number of occasions during their honeymoon and at Pune also. Petitioner
had made false statements without any evidence about the steps, he allegedly made to bring
her back. She had never refused to come back to the matrimonial home. Her in-laws did not
want to keep her and subjected her to cruelty and torture on phone, which she complained to
her husband but he failed to pay any heed. Rather, he assaulted her and threatened with dire
consequences. Suit for restitution of conjugal rights was instituted only to save his skin. She was
suffering from very high fever, therefore, she could not attend the mediation on few occasions.
She had conveyed her intention in the said suit to live with her husband if he keeps her with
full dignity. On 11.04.2014, pursuant to the Court’s intervention, petitioner came to take her
back from her parental home and she accompanied him. M.T.S. No. 38 of 2013 was accordingly
withdrawn. However, petitioner violated the order passed by Family Court instead of keeping
her at the matrimonial house insisted her to go her parental home. When she objected she was
brutally assaulted. The matter was again resolved with the intervention of dignified persons and
on 26.06.2014, she came back to her matrimonial home. She further alleged that the divorce
case being M.T.S. No. 98 of 2014 was filed on 28.04.2014 without any cogent reasons only for the
purpose of harassing her. Further grounds of desertion taken in M.T.S. No. 98 of 2014 were not
sustainable in the eye of law because according to the petitioner himself, they had lived together
from 18.04.2014 to 23.04.2014. She again came back to the matrimonial home and lived for the
period 26.06.2014 to 04.12.2014 when their marriage was consummated. They had physical
relationship a number of times. However, on 04.12.2014, she was thrown out forcefully without
assigning any reason. After one and half month only the instant suit was filed on 19.01.2015
—| 507 |—
on the ground of desertion which is not maintainable in the facts of the case. She filed a case at
Mahila Police Station alleging brutal assault by him on 03.12.2014 and being thrown out of the
matrimonial house. According to her, the instant suit was filed by the petitioner only to save
the skin. Petitioner had never complained of any contact with one Umakant in the Matrimonial
Title Suit No. 98 of 2014 filed earlier. These allegations made in the instant suit were false and
fabricated. He was only a family friend and close to her family. She further alleged that the
petitioner always used unparliamentarily language and abusive words against her. She had not
been maintained by him after she came back from Pune, which was the reason for filing of
maintenance case. Based on these facts and grounds, she prayed for rejection of the suit in
limine.
5. The following issues were framed by the learned Family Court for adjudication on the basis of
the pleadings of the parties:
(i) Whether the suit of petitioner as framed is maintainable ? (ii) Whether petitioner has
valid cause of action for the suit?
(iii) Whether the respondent has after solemnization of marriage treated the petitioner with
cruelty?
(iv) Whether the respondent has deserted the petitioner for a continuous period of not less
than two years immediately preceding the presentation of this petition for divorce?
(v) Whether the petitioner is entitled for a decree of divorce dissolving his marriage with
respondent?
(vi) To what relief or reliefs the petitioner is entitled?
6. Petitioner examined three witnesses, namely, PW-1, Dr. S.K. Sinha; PW-2, Niranjan Rukhaiyar;
PW-3, Dr. Siddhartha Sinha, petitioner himself.
7. Respondent examined herself as RW-1.
8. Petitioner also exhibited the following documents in support of his case:
“Ext.1: Letter of Dr. S.K. Sinha dated 23.11.2011. Ext.2: Carbon copy of notice dated
14.02.2012 sent through Abhaya Shankar Prasad, Advocate Ext.3: Certified copy of letter dated
02.08.2012 written by Dr. S.K. Sinha to Dilip Singh, Mukhiya.
Ext.4: Certified copy of order sheet dated 16.02.2013 to 24.04.2014 of MTS No. 38/2013.
Ext.5: Certified copy of order sheet dated 28.04.2014 to 22.07.2014 of MTS no. 98/2014.
Ext.6: Certified copy of order sheets dated 19.11.2013 to 07.12.2014 of Maintenance Case No.
191/2013. Ext.7: Certified copy of order sheets dated 22.04.2015 to 09.06.2015 of Maintenance
Case No. 89/2015. Ext.8: Certified copy of order sheets dated 15.10.2015 and 20.05.2016 of G.R.
No. 4399/2015.
Ext.9: Certified copy of order dated 20.06.2016 passed in G.R. No. 4399/2015. Ext.10: Certified
copy of Final Form in G.R. No. 4399/2015.”
9. Issue Nos. iii & iv were taken together for adjudication. PW-3, petitioner, supported his case
through examination-in-chief. He made reference to the factum of marriage, their stay at
—| 508 |—
Darjeeling and Pune till 12.07.2011 whereafter she came to Ranchi by Air and went to Patratu
on pretext of illness of her mother. He referred to the institution of suit for restitution of conjugal
rights, M.T.S. No. 38 of 2013 and her non- appearance on a number of dates, during mediation,
which ultimately failed. He also made reference to the order of the learned Family Court
whereafter he went to her house to bring her back on 18.04.2014. However, after withdrawal
of the suit, she refused to go back to her matrimonial house. Thereafter, M.T.S. No. 98 of 2014
was filed which was again resolved on intervention of the respected persons of the locality.
She came back to her matrimonial house on 26.06.2014 and lived there till 04.12.2014. She left
on that date and threatened to implicate him along with his parents in false criminal case of
dowry. A case alleging false allegation of dowry was instituted before Mahila Police Station,
Hazaribagh. He made reference to the contact of the respondent with one Umakant. Reference
was also made to the Maintenance Case No. 191 of 2013 which was dismissed. Thereafter she
again filed Maintenance Case No. 89 of 2015. She also had filed a Complaint Case No. 808
of 2015 under Section 498A of the IPC before the learned CJM, Hazaribagh also containing
allegations under Dowry Prohibition Act against him and his relatives. These allegations were
false. He denied having received Rs.10,00,000/- as dowry during marriage. He denied having
physical relationship between 26.06.2014 to 03.12.2014, during her stay at the matrimonial
house. In his cross- examination, he accepted filing two divorce cases, first on 24.04.2014 and
second on 19.01.2015. He further stated about going in depression and unable to come for
cross-examination. He underwent treatment under Dr. Hiralal Sah and produced the fitness
certificate before the Court. He was appointed as Medical Officer, at Sadar Hospital, Hazaribagh
in October, 2012 but had gone in depression and was not able to attend official duties.
He denied having ousted her on 03.12.2014. According to him, he always fulfilled his marital
obligation but the respondent was not interested to live from very beginning.
Father of the petitioner, PW-1, supported the case made out by him. So did the PW-2, a relative
of the petitioner.
10. Respondent examined herself as the only witness RW-1. She narrated about the marriage on
24.06.2011 at Patratu, payment of dowry of Rs.10,00,000/- at the time of marriage by her father
and their stay for honeymoon at Darjeeling and thereafter at Pune till 27.07.2011. She also knew
about the suit, M.T.S. No. 38 of 2013 and that she had filed written statement on 06.08.2013.
According to her, she could not attend mediation due to illness. She had stated in her written
report that she is willing to live with her husband with full dignity. Pursuant to the conciliation
held by the Family Court, the suit was withdrawn on 24.04.2014. However, her husband was
not ready to bring her, then she returned to her paternal house. The petitioner again filed the
Divorce Suit No. 98 of 2014, in which, she appeared and the matter was resolved. She stayed
between 26.06.2014 to 03.12.2014 when she was thrown out of the matrimonial house after
assaulting her. She filed a complaint at Mahila Police Station, Hazaribagh and only thereafter
the instant suit was filed for divorce. She again had filed a Maintenance Case No. 89 of 2014,
which was pending in the Ramgarh Family Court. She had also filed a Complaint Case No. 808
of 2015 before the CJM, Hazaribagh against the petitioner and her parents-in-law. In her cross-
examination, she accepted that they had no issue. She alleged torture at Pune also. She further
stated that in the year 2013 she lived at Patna where she had gone for study from Patratu. The
maintenance case was dismissed for default. She denied talking with Umakant as alleged by the
—| 509 |—
petitioner whom she admitted was a friend from before her marriage. She denied that during
pendency of the cases between the parties the conjugal life was ruined and her husband was
deprived from conjugal relations. She had no knowledge of the depression that her husband
complained of.
11. Learned Family Court proceeded to analyze the evidence on record and decided the issue of
desertion against the petitioner and in favour of the respondent, primarily on the ground that
as per the case of the petitioner, the respondent had come on 26.6.2014 and lived for six months
till 4.12.2014, whereas the suit was filed on 19.1.2015 without waiting for the mandatory period
of two years before its presentation in terms of section 13(1)(i-b) of the Hindu Marriage Act.
Learned Family Court however proceeded to answer the issue of cruelty in favour of the husband
for the following reasons:
(i) As per the case of the respondent, she stayed from the date of her marriage on 24.6.2011 till
27th July 2011 at Pune with the petitioner but thereafter did not return to her matrimonial
home despite steps taken by him.
(ii) Petitioner had to take steps for restitution of conjugal rights being MTS No. 38 of 2013
which was amicably resolved. Only thereafter she returned to matrimonial home on
18.4.2014, but she left for her paternal house alone at her own will and did not come back
again.
(iii) This compelled the petitioner to institute divorce suit bearing MTS No. 98 of 2014 on
28.4.2014 which ended in compromise ( Ext. 5) on 22.7.2014.
(iv) The respondent filed criminal case before Mahila Police Station against her husband and
his parents alleging assault on 3.12.2014 and her being thrown out of the matrimonial
house.
(v) She again filed a case under section 498A of the IPC bearing Complaint Case No. 808
of 2015 before learned CJM, Hazaribagh. Both the cases were found to be false and final
form was submitted by the police which was accepted by the court. Exts.-9 & 10 were
adduced in support thereof.
(vi) Except the respondent, no other witness including her parents came to support her case
during trial.
(vii) The respondent in her evidence also accepted that their matrimonial life was not peaceful
and happy. She had not denied that time to time she left her matrimonial house and
remained away from her husband for maximum time from the date of her marriage to the
date of filing of the petition.
12. It was an admitted position that marriage of solemnized on 24.6.2011 but after 12.7.2011 till
18.4.2014 she lived separately from her husband. Therefore, strict onus lied upon her to prove
the validity of such long separation just after the marriage. Respondent had not assigned any
cogent reason for that.
13. Learned family court was persuaded to come to an opinion that if the other party of the marriage
leaves away without any reasonable cause for three years just after the marriage, it is painful and
rather cruel upon the suffering spouse. Though she had deposed at para 29 of her statement
—| 510 |—
that she was tortured at Pune by her husband but no date, time and manner was indicated.
No complaint was either made about such torture at Pune or Patratu thereafter. Though the
respondent alleged that after reconciliation when the suit for restitution of conjugal rights was
withdrawn on 24.4.2014, petitioner threw her articles in the court premises and compelled
her to go to her parental house, but no one turned up to support this allegation including the
family members of the respondent or any other person who would be witness to the incidence
in a public place like a court. Respondent had not made any complaint before the court on
that date regarding the alleged conduct of the petitioner. No such corroboration from any
side or information to the court was either made. The learned court relied upon the judgment
rendered by the Apex Court in the case of K. Srinivas Rao vs. D.A. Deepa reported in (2013)5
SCC 226 and observed that repeated filing of false complaints and cases in court against the
spouse would, in the facts of a case, amount to mental cruelty to the other spouse. In the instant
case, the respondent had filed false criminal cases against the petitioner and his relatives, which
amounted to mental cruelty. Filing of such false cases would have entailed suffering and loss
of mental peace upon the petitioner, who became a patient of depression and was confined to
a Room. Learned Family court ultimately came to the opinion that the relationship between
the parties had become so sour that peaceful matrimonial life was ruled out. The respondent
was found responsible for cruelty in marriage. As such the suit was decreed in favour of the
petitioner on grounds of cruelty.
14. Learned counsel for the appellant after placing this statement of respondent /appellant herein
made during trial, submitted that the leaned Family Court did not consider the evidence of the
wife in proper perspective at all. The appellant had explained through her statement that the
petitioner was responsible for keeping her away from the matrimonial home for all these three
years. He had made no efforts to bring her back to the Matrimonial Home. She was compelled
to file a maintenance case, as she was unable to meet her ends. However, because of her financial
condition, she could not prosecute the maintenance case which was dismissed for default.
Petitioner created conditions so as to keep the appellant/wife away from the Matrimonial Home.
It was a case of forced desertion on account of the conduct of the petitioner. The conduct of the
petitioner to get rid of the wife is more evident from the number of divorce cases, filed by him,
one after the other. He also made false allegations about her character and relationship with one
Uma Kant, which remained unsubstantiated. This would amount to causing pain and mental
cruelty upon the appellant-wife. No such allegation was made in the previous divorce case being
MTS No. 98 of 2014 by him. She submits that the entire case of the parties have been considered
from the perspective of the petitioner only without due regard to the case of the respondent-
appellant/ wife herein. As such the findings suffer from mis-appreciation of the evidence on
record and errors of law which need to be interfered in appeal. The learned family court has also
failed to grant any alimony to the wife after decreeing the suit pursuant to the dissolution of the
marriage.
15. Learned counsel for the petitioner-respondent/ husband herein had supported the findings
rendered by the Family Court. He submits that institution of false cases repeatedly by the
appellant /wife which were proved through Ext.-9 & 10, fully support the findings of mental
cruelty rendered by the Family Court. The petitioner made efforts to restitute the conjugal rights
by filing Matrimonial Suit No. 38 of 2013 as well. Despite resolution of the suit by the efforts of the
Family Court, she did not stay for long in the matrimonial home and left without any reasonable
—| 511 |—
cause. Petitioner again tried to bring her back even after institution of a suit for divorce (MTS 98
of 2014) but she did not consummate the marriage during the period of her stay from 26.6.2014
to 4.12.2014. In fact, she had no reason to stay away from the matrimonial home. These facts
have been duly considered by the learned court, while decreeing the suit. Reliance has also been
placed upon a judgment rendered by learned Division Bench of this Court in the case of Manju
Kumari Singh @ Smt. Manju Singh vs. Avinash Kumar Singh reported in 2017 (3) JBCJ 169.
The parents of the husband and the petitioner have suffered due to such irresponsible conduct
of the appellant. The marriage has become dead and has therefore been rightly dissolved by the
learned family court. The instant appeal is without merit and deserves to be dismissed.
16. We have considered the submission of learned counsel for the parties at length; gone through the
relevant material evidence on record as relied upon by them and also the impugned judgment.
We have also taken note of the judgments of the Apex Court and this Court cited by learned
counsel for the parties. We have elaborately discussed the pleadings of the parties and the
evidence brought on record by them. Culled out therefrom, it is apparent that immediately after
the solemnization of marriage on 24.6.2011, parties lived together during their Honeymoon
period at Darjeeling and at Pune till 12.7.2011 or 27.7.2011, when the appellant came from Pune
to stay with her parents at Patratu. According to her statement, she went to Patna to undertake
study and did not show any overt act on her part to return to her matrimonial home for three
years till 18.4.2014. For a newly wedded wife, to remain away from the matrimonial home, for
such a long period without any basis or reasonable cause in itself is worth explanation on her
part which she has failed to justify. On the contrary, the husband took steps for restitution of the
marriage by filing Matrimonial Suit No. 38 of 2013. Mediation failed perhaps, also because of
non-appearance of the appellant on few dates which she has tried to explain on account of her
illness. However, at the instance of the learned Family Court, the parties united on 18.4.2014
when the husband went to bring her back from her paternal house. The suit was withdrawn
on 24.4.2014 in happy circumstances but it further appears that she went back to her parents’
house which compelled the husband to institute a suit for divorce being MTS No. 98 of 2014 on
28.4.2014. This suit was again compromised on the initiatives of the respectable members of the
locality on 22.7.2014 (Ext.-5). This resolution led to the return of the appellant to the matrimonial
home on 24.6.2014 but the stay remained short till 4.12.2014 only. Parties are on contest on the
issue whether the marriage was consummated during that period or not. Be that as it may, the
appellant left the matrimonial home on 4.12.2014 and instituted a criminal case before Mahila
Police Station, Hazaribagh against the husband and his parents. She again instituted a complaint
case bearing no. 808 of 2015 alleging demand of dowry and cruelty in marriage under section
498A of the IPC and also the provisions of the Dowry Prohibition Act. However, both the cases
were found false as final form was submitted and accepted by the learned court. Ext.-9 &10
have been adduced in support thereof. Institution of such false cases have been treated as acts of
mental cruelty in the judgments rendered by the Apex Court such as in the case of K. Srinivas
Rao Versus D.A. Deepa reported in (2013)5 SCC 226 para- 16 and in the case of K. Srinivas
Versus K. Sunita reported in (2014)16 SCC 34, para-3.
It is profitable to extract the opinion of the Apex Court in the case of K. Srinivas Rao Versus D.A.
Deepa, reported in (2013)5 SCC 226 at para 16, which reads as under:
—| 512 |—
“16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could
add a few more. Making unfounded indecent defamatory allegations against the spouse
or his or her relatives in the pleadings, filing of complaints or issuing notices or news
items which may have adverse impact on the business prospect or the job of the spouse
and filing repeated false complaints and cases in the court against the spouse would, in
the facts of a case, amount to causing mental cruelty to the other spouse.”
Reliance may also be placed in the case of K. Srinivas Versus K. Sunita reported in (2014)16 SCC
34.
17. Institution of such vexatious false cases on false allegation definitely has an effect of entailing
mental cruelty upon the other spouse. In the present case, evidence on record also shows that the
petitioner-husband had gone into depression and was unable to attend his duties as a doctor for
some period of time. The relationship between the parties, therefore, appears to have become so
sour that it was unlikely to be revived. All emotional bounds between the parties have also dried
up on account of such broken relationship. The learned Family Court found these instances
as acts of mental cruelty, which we do not find any reason to disturb. The parties are not in a
position to lead a happy married life in such circumstances. The learned Family Court, however,
rightly answered the issue of desertion against the petitioner as the minimum mandatory period
of two years separation in terms of Section13 (1) (i-b) of the Hindu Marriage Act, was not
satisfied. The discussion on the material evidence on record, in the light of the pleadings of the
parties, does not make out any grounds to interfere with the findings of cruelty rendered by the
learned Family Court.
18. On the totality of facts and circumstances and for the reasons recorded herein above, we do
not find any merit in the appeal. It is accordingly, dismissed. As prayed by the learned counsel
for the appellant we leave it to the appellant to invoke the provision of Section 25 of the Hindu
Marriage Act, 1955 to approach the Family Court for grant of alimony as there are no such
sufficient material pleadings or evidence on record to render any finding thereupon. Decree
Accordingly.
qqq
—| 513 |—
TINKU PRASAD SAHA VERSUS SUMAN SAH

Hon’ble Mr. Justice Deepak Roshan
Tinku Prasad Saha ...Appellant
Versus
Suman Sah ...Respondent
Decided on 16 December, 2020
Advocate Appeared :
For the Appellant : : Mr. Soumitra Baroi, Advocate .
For the Amicus Curiae : Mr. Indrajit Sinha, Advocate; Ms. Anjali Sinha, Advocate
1. Whether maintenance pendente lite and litigation cost awarded under Section 24 of the
Hindu Marriage Act, 1955 during pendency of the matrimonial suit would fall in the nature
of interlocutory order or intermediate order and whether an appeal would lie therefrom is the
question require to be answered in the instant appeal.
2. An objection has also been raised by the Registry of this Court regarding maintainability of
an appeal under Section 19(1) of Family Courts Act, 1984 (“F.C.A” for short) against an order
passed under Section 24 of Hindu Marriage Act (“H.M.A” for short).
3. This appeal has been filed under Section 19(1) of the Family Courts Act, 1984 (“FCA”)
impugning the order passed under section 24 of the Hindu Marriage Act, 1955 (“HMA”). The
appellant-husband seeks to challenge the order dated 03.10.2020 passed by learned Additional
Principal Judge, Additional Family Court, Jamshedpur in Original Suit No. 194/2018 by which
the appellant-husband has been ordered to pay a sum of Rs. 3,000/- per month as interim
maintenance and Rs. 2000/- as the litigation cost and in addition to the above a sum of Rs. 500
per day when the wife-respondent appears before the Court in person or Rs. 200 on such date
when she does not appear in person or appears through video conferencing.
4. Considering the seminal issue to be decided at hand and the line of decision on each side of
fence rendered by different High Courts including this Court, we have sought assistance from
learned counsel, Mr. Indrajit Sinha, as Amicus Curiae.
5. We have heard learned counsel for the appellant, Mr. Soumitra Baroi also. Since the appeal is at
the threshold of maintainability respondent has not been noticed.
6. At the outset, it would be pertinent to note that a Coordinate Bench of this Court in the case
of Rachana Pandey -Vs.-Sanjeev Singh [F.A. No. 567 of 2014] (reported in 2015 SCC Online
Jhar 2267), had by order dated 18.05.2015 rejected similar objection and held an appeal to be
maintainable under Section 19(1) of F.C.A against an order passed under Section 24 of HMA.
The opinion of the learned Coordinate Bench is extracted hereinbelow:
—| 514 |—
“At the very outset learned counsel for the respondent-husband joined issue with regard to
maintainability of the instant appeal relying upon a judgment of Rajasthan High Court in
case of Mahesh Bhardwaj v. Smt. Sunita Bhardwaj reported in AIR 1995 Raj 47. Mr. Ram
Kishore Prasad, learned counsel for the appellant-wife, sought time to assist the Court on this
and has relied upon a Division Bench judgment of Uttarakhand High Court in case titled
Rahul Samrat Tandon v. Smt. Neeru Tandon reported in AIR 2010 Uttarakhand 67, wherein
the same objection raised after passing of an order under section 24 of the Hindu Marriage
Act vis-a-vis the maintainability of the appeal was turned down relying upon Full Bench
judgment of Allahabad High Court in Smt. Kiran Bala Srivastava v. Jai Prakash Srivastava
(2005 (23) LCD 1).
2. In view of the above, we hold that the instant appeal is maintainable.”
Therefore, we are faced with the question as to whether the order dated 18th May, 2015 passed
by Coordinate Bench of this Court in the case of Rachana Pandey (Supra) can be reconsidered
by this Division Bench without referring to a Larger Bench.
7. Learned Amicus Curiae has during course of submission fairly submitted that an order of
previous Division Bench would be binding on a Coordinate Bench, however, only if it decides a
question of law or lays down any principles of law. The only thing binding upon the subsequent
Coordinate Bench is the principles, on which the case has been decided (see (2003) 7 SCC 197
[Divisional Controller, KSRTC v. Mahadeva Shetty and Another, Para-23]). In the case of State
of Punjab and others Vs. Surinder Kumar and others reported in (1992) 1 SCC 489 Para-6, it
has been held “A decision is available as a precedent only if it decides a question of law “. The
observations of the Apex Court in the case of State of Gujrat Vs. Mirzapur Moti Kureshi Kassab
Jamat and others reported in (2005) 8 SCC 534 at Para-112 have also been placed before us inter
alia as follows:
“The trend of judicial opinion is that stare decisis is not a dogmatic rule allergic to logic and
reason: it is a flexible principle of law operating in the province of precedence providing room
to collaborate with the demands of change in times dictated by social needs, State Policy and
judicial Conscience.”
8. Learned Amicus Curiae has also drawn attention of this Court to the views of the other High
Courts which can be divided into two broad categories one which hold that such an appeal is
maintainable and the other which holds that the appeal is not maintainable. The High Courts
which had taken the view in favour of an appeal being maintainable under Section 19(1) of FCA
from an order passed under Section 24 of HMA including this Court are as under:
i. Kiran Bala Srivastava v. Jai Prakash Srivastava [2005 (23) LCD 1 = MANU/UP/2771/2004
- Allahabad High Court, Full Bench].
ii. Subash Gupta v. Kabita Gupta [2006 SCC Online All 1321: (2007) 2 All LJ 84 - Allahabad
High Court, Division Bench].
iii. Rahul Samrat Tandon v. Neeru Tandon [AIR 2010 Uttarakhand 67 = MANU/UC/0781/2010
- Uttarakhand High Court, Division Bench].
iv. Manish Aggarwal v. Seema Aggarwal [2012 SCC Online Del 4816 - Delhi High Court -
Division Bench].
—| 515 |—
v. P.T. Lakshman Kumar v. Mrs. Bhavani [2013 SCC Online Mad 1468 - Madras High Court-
Single Bench].
vi. Prafull Kumar v. Smt. Asha [F.A. No. 764/2015 vide a Judgment and order dated 26
October, 2016 - Madhya Pradesh High Court, Division Bench].
vii. Rachana Pandey v. Sanjeev Singh [2015 SCC Online Jhar 2267 - Jharkhand High Court,
Division Bench].
viii. Kavita Vyas v. Deepak Dave [2018 SCC Online Raj 1601 = MANU/RH/OO15/2018 = AIR
2018 Raj 72(FB) - Rajasthan High Court, Full Bench].
The judgments and orders passed by some High Courts, which have taken the contrary view i.e.,
an appeal is not maintainable against an order passed under Section 24 of HMA are as under:
i. Sunil Hansraj Gupta v. Payal Sunil Gupta [AIR 1991 Bom 423 - Bombay High Court,
Division Bench].
ii. Mahesh Bhardwaj v. Smt. Smita Bhardwaj [AIR 1995 Raj 47 - Rajasthan High Court,
Division Bench]
iii. Swarna Prava Tripathy and Ors. v. Dibyasingha Tripathy and Ors. [1998 SCC Online Ori
56 = AIR 1998 Ori 173 - Orissa High Court, Full Bench].
iv. Neelam Kumari Sinha v. Shree Prashant Kumar [2010 SCC Online Pat 687 =AIR 2010 Pat
184(FB) - Patna High Court, Full Bench].
v. Anil Mishra v. Sakshi Mishra [AIR 2017 Chhattisgarh 108 - Chhattisgarh High Court -
Division Bench]
vi. Monica Sahu v. Puranlal Sarwa [MANU/CG/1012/2019 = 2020(2) CGLJ 276 - Chhattisgarh
High Court, Division Bench]
9. Leaned counsel for the appellant has argued in favour of maintainability of appeal and while
doing so relied upon the set of decisions which hold so. He has submitted written notes along
with compilation of decision. The said judgments are already part of the compilation submitted
by learned amicus curiae.
10. We find from perusal of the judgment passed in the case of Rachana Pandey (supra) that it has
relied upon the Full Bench judgment of Allahabad High Court in the case of Smt. Kiran Bala
Srivastava-Vs.- Jay Prakash Srivastava and the judgment of Uttarakhand High Court in the case
of Rahul Samrat Tandon-Vs.- Smt. Neeru Tandon following it, wherein the appeal was held to
be maintainable. Learned Coordinate Bench of this Court has also taken note of judgement of
Rajasthan High Court in the case of Mahesh Bhardwaj Vs. Smt. Sunita Bhardwaj, where the
appeal has been held to be not maintainable. However, the learned Court has not taken into
consideration the Full Bench judgment of the Orissa High Court in the case of Swarna Prava
Tripathy and Ors. Vs. Dibyasingha Tripathy and Ors., wherein the appeal was held to be not
maintainable. As such, we can take note of that the judgment of co-equal Bench in the case
of Swarna Prava Tripathy rendered by Full Bench of Orissa High Court were not placed for
consideration before it. The learned Coordinate Bench of this Court, therefore, was precluded
—| 516 |—
from authoritatively deciding the question regarding the maintainability of an appeal under
Section 19(1) of F.C.A against an order passed under Section 24 of H.M.A.
11. The judgment of Coordinate Bench of this Court can therefore be said to be per incuriam. The
rival judgments on opposite sides of fence as to the maintainability of an appeal have time and
again raised this legal conundrum before this Court. Therefore, it is necessary that the recurrent
question of maintainability of an appeal under Section 19(1) of FCA against an order passed
under Section 24 of HMA is authoritatively decided. The contrary decisions on this point from
various jurisdictional High Courts have also been able placed before us by learned Amicus
Curiae.
12. In order to appreciate the controversy at hand, it is proper to quote Section 19 of FCA hereunder.
CHAPTER V
[APPEALS AND REVISIONS]
“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 (59 of 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 the 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.”
13. We have taken note of the divergent views of different High Courts above. As would appear from
perusal of two sets of judgments, it appears that the rival views of the different High Courts are
founded on two leading judgments both by Full Bench of respective High Courts i.e., Allahabad
High Court and Orissa High Court in the case of Kiran Bala Srivastava (supra) and Swarna
—| 517 |—
Prava Tripathy (supra). It would thus be appropriate to discuss the ratio of the above two Full
Bench decisions.
In the case of Kiran Bala Srivastava (supra), a Division Bench of Allahabad High Court made
a reference to a Full Bench on account of the divergence of views of Division Benches of the
said High Court regarding the maintainability of appeal under section 19 of FCA from an order
passed under section 24 of HMA. The judgment in the case of Avadhesh Narain Srivastava v.
Archna Srivastava [1990 (8) LCD 66] which held that an appeal was maintainable was found to
be in conflict with two subsequent Division Bench decisions in Smt. Pratima Sen Gupta v. Sajal
Sen Gupta [1998 (16) LCD 66] and Ravi Saran Prasad alias Kishore v. Smt. Rashmi Sinha [AIR
2001 All 227], whereby it was held that an appeal was not maintainable.
14. The Full Bench after noticing the relevant statutory provisions and considering the definitions of
the term “decree”, “judgement”, “order” and placing heavy reliance on the celebrated judgement of
the Hon’ble Supreme Court in the case of Shah Babu Lal Khimji v. Jayabein D. Kania & Another
[(1981) 4 SCC 8] observed that an order or interlocutory orders possessing the characteristics
and trappings of finality or affecting valuable rights of the parties or deciding important aspects
of the trial in the main or in the ancillary proceedings, will be a “judgment”. The Full Bench also
took into note the decisions of the Apex Court rendered in the case of Amar Nath v. State of
Haryana [(1977) 4 SCC 137] and Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551] to
discuss the meaning of “interlocutory order”. The Full Bench was of the view that section 24 of
HMA is gender neutral but in practice the provision is invoked by the wife and is important from
the point of view of the wife, as not only her survival during the pendency of the proceedings but
her right to prosecute or defend the proceedings also depends on the outcome of the proceedings
under section 24. It further went on to observe that refusal of maintenance under section 24 is
serious to the wife so much so that she may even give up the idea of defending herself for want
of sufficient means. The argument that an appeal against such an order will delay the disposal of
the main petition was not accepted by rejecting the contention to give the limited meaning to
the word “judgment”. It appears that the Full Bench of the Allahabad High Court did not take
notice of the Full Bench decision of the Orissa High Court rendered in the case of Swarna Prava
Tripathy and Ors (supra), though the earlier decisions of Sunil Hansraj Gupta v. Payal Sunil
Gupta [AIR 1991 Bom 423] and Mahesh Bhardwaj v. Smt. Smita Bhardwaj [AIR 1995 Raj 47]
were taken note of.
15. The conclusion arrived at by Allahabad High Court in the case of Kiran Bala Srivastava at
paragraph 28-30 of Manupatra report is quoted hereunder:
“28. The learned counsel for the respondents has referred to the definition of “interlocutory
orders” in Vol. 22 of the third edition of Halsbury’s Law of England and also to Central
Bank of India v. Gokul Chand, AIR 1967 SC 799 and also to Amar Nath’s case and
Madhu Limaye’s case (supra), so as to say that order under Section 24 of the Act of
1955 are just steps in aid of the main proceedings and have no existence independent
of the main proceedings, so will not fall within the definition of the judgment and will
be only an interlocutory order. We are of the view that in view of the discussion made
above order of pendent lite maintenance has all the characteristics and trappings of the
judgment as it decides the valuable rights and liabilities of the parties to the proceedings.
In so far as those rights and liabilities are concerned the order is final. The fact that
—| 518 |—
the considerations that matter in granting or refusing pendent lite maintenance under
Section 24, have no connection with issues in the main proceedings or the question that
even after disposal of application under Section 24, the main petition remains alive for
disposal, do not prevent the order under Section 24 from falling within the definition
of the “judgment”. We are also of the view that the expression “interlocutory order”
appearing in sub-section (1) of Section 19 of the Act 1984 qualify the word “order” only
and does not qualify the word “judgment” appearing before the word “order”. In other
words, if order ofpendent lite maintenance is a “judgment” for all legal and practical
purposes, it matters, little whether the same is interlocutory or final.
29. With due respect to the Hon’ble Judges deciding cases of Smt. Pratima Sen Gupta and
Ravi Saran Prasad @ Kishore (supra), we find ourselves unable to subscribe to the
view taken therein. The reasoning that since the Bill intended to provide only one
right of appeal against the judgment and order of the family court, so right of appeal
was not permissible against order under Section 24, was not sound one. To our mind,
declaration in the Bill introducing the Act of 1984 that only one right of appeal was to be
provided did not mean that order under Section 24 granting pendent lite maintenance
was not a “judgment” for purposes of subsection (1) of Section 19. As observed earlier
and as held in Full Bench decision of this case in Prem Lata’s case (supra), second
appeal also lay against decrees and orders initially appealable under sub- section (1)
or sub-section (2) of Section 28 of the Act of 1955. Similar right of second appeal could
have also been against orders to be passed in such matters under other enactments. We
think the Parliament made it clear that there shall be only one right of appeal against
the judgments and orders of the family court. In other words, the right of second appeal
which could have earlier been available under the respective enactments its, was taken
away. Parliament wanted to provide only one appeal, against a particular adjudication
or decision of a family court. In other words, against the same decision or adjudication,
there could not be two appeals.
30. We agree with the view taken by the Division Bench in Avadhesh Narain Srivastava’s
case. Since orders under Section 24, granting pendent lite maintenance is a judgment,
so appeal will lie under sub- section (1) of Section 19 of the Act of1984.”
16. We now advert to Full Bench decision of Orissa High Court in the case of Swarn Prabha Tripathy
and others (supra). In the said case, the Hon’ble Full Bench was called upon to decide the
correctness of a Division Bench judgement of the Orissa High Court passed in Civil Appeal No.
17 of 1996 (decided on 08.10.1996), which held an appeal to be maintainable against an order
passed under section 24 of the HMA. The Full Bench after noticing the divergent views taken
by various High Courts focused its attention on the issue as to whether an order passed under
section 24 of the HMA is an interlocutory order or not and after taking note of the judgments
of the Supreme Court rendered in the case of Central Bank of India v. Gokul Chand [AIR 1967
SC 799] and more particularly in the case of Ramesh Chandra Kaushal v. Mrs. Veena Kaushal
[ (1978) 4 SCC 70], held that an order passed under section 24 of the HMA is an interlocutory
order and as such no appeal would lie in terms of section 19(1) of the Family Courts Act rather
such orders would be amenable to Article 227 of the Constitution of India. The operative part of
the judgment of Swarna Prava Tripathy and Ors. (supra) is quoted hereunder:
—| 519 |—
“6. At this juncture it is necessary to pigeonhole which can be called interlocutory orders
and final orders. Interlocutory orders are of various kinds; some like orders of stay,
injunction, or receiver, are designed to preserve the status quo pending the litigation
and to ensure that the parties might not be prejudiced by the normal delay which the
proceedings before the Court usually take. They do not, in that sense, decide in any
manner the merits of the controversy in issue in the suit and do not, of course, put
an end to it even in part. Such orders are certainly capable of being altered or varied
by subsequent applications for the same relief, though normally only on proof of new
facts or new situations which subsequently emerge. As they do not impinge upon the
legal rights of parties to the litigation, the principle of res judicata does not apply to the
findings on which these orders are based, though if application were made for relief on
the same basis after the same has once been disposed of, the Court would be justified
in rejecting the same as an abuse of the process of Court. An order may be final for one
purpose and interlocutory for another. The expression ‘interlocutory order’ as used in
restricted and not in any broad or artistic sense, denotes orders of a purely interim or
temporary nature which do not decide or touch the important rights or liabilities of
the parties, in Webster’s Third International Dictionary, the expression ‘interlocutory’
has been defined as, ‘not final or definite, made or done during the progress of an
action; intermediate, provisional’. The emphasis is, therefore, at the stage when the
order is passed. Interlocutory stage is decidedly the state between the cognisance taken
by the Court and the judgment pronounced. The interlocutory order is supplemental
proceeding which is a means to an end and not an end itself. The word ‘interlocutory’
means according to the import of the dictionary ‘intermediate’ and the interlocutory
order is one passed during the progress of the proceeding that is to say interlocutory
order must be an order passed after the initiation of the proceedings and before the
final order disposing of the matter. In New Webster’s Dictionary, College Edition,
the meaning given is ‘of the nature of, pertaining to, or occurring in, conversation or
dialogue; spoken intermediately, as interlocutory conversation interjected into the main
speech. Law, pronounced during the course of an action, as a decision or order, not
finally decisive of a case, pertaining to a provisional decision.’ Interlocutory orders are
steps taken towards the final adjudication for assisting the parties in the prosecution of
their case in the pending proceedings. See Central Bank of India v. Gokul Chand, AIR
1967 SC 799. Interlocutory inter alia means not that which decides the case, but that
which only settles some intervening matter relating to the cause. As interlocutory order
is one which is made pending the cause and before a final hearing on the merits. An
interlocutory order is made to secure some end and purpose necessary and essential to
the progress of the suit, and generally collateral to the issues formed by the pleadings
and not connected with the final judgment.
7. The position in law relating to the controversy at hand has been indicated in Ramesh
Chander Kaushal v. Mrs. Veena Kaushal, AIR 1978 SC 1807 as follows (Para 6):
“Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai
did, that a final determination of a civil right by a civil Court must prevail against
a like decision by a criminal Court. But here two factors make the principle
inapplicable. Firstly, the direction by the Civil Court is not a final determination
—| 520 |—
under the Hindu Adoptions and Maintenance Act but an order pendente lite,
under S. 24 of the Hindu Marriage Act to pay the expenses of the proceeding,
and monthly during 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. Secondly, this amount does not include the claim for maintenance of
the children although the order does advert to the fact that the respondent has
their custody. This incidental direction is no comprehensive adjudication.”
8. In view of the law as laid by the Apex Court, the inevitable conclusion is that an order
passed under Section 24 or 26 of Marriage Act is an interlocutory order and as such, no
appeal would lie in terms of Section 19(1) of the Act. The question is whether revision
would lie. In view of what has been stated in sub-section (5), revision would not lie.
9. The residual question is remedy available to affected parties in respect of interlocutory
orders. In appropriate cases, writ application would lie, to be dealt with under Article
227 of the Constitution of India, as observed by the Apex Court in Mahadeo Savlaram
Shelke v. Pune Municipal Corporation, (1995) 3 SCC 33: (1995 AIR SCW 1439 at p.
1441). Same reads as follows:
“Shri Rajinder Sachar learned Senior Counsel for the appellants contended that
under Section 115, C.P.C. High Court has power of revision where the appeal
is not provided for either to it or subordinate Court. Since the Joint Judge had
exercised the appellate power, by operation of Section 115(2), the High Court
was devoid of jurisdiction to exercise the revisional power. When statutory
prohibition was imposed by CPC which is a more expeditious and efficacious
remedy, the exercise of jurisdiction by the High Court under Article 226 was
not warranted. At this juncture it is necessary to point out that the High Court
exercised its power under Article 227 and not either under Article 226 or under
Section 115, CPC. Even otherwise the bar under Section 115(2) is to exercise
revisional power where the party is provided with right of appeal to the High
Court or the subordinate Court against the impugned order. It is not a bar to
exercise revisional power under Section 115(1) against appellate order. The ratio
in Aundal Ammal v. Sadasivan Pillai, (1987) 1 SCC 183 : (AIR 1987 SC 203) is
that no second revision under Section 115(1) would lie against revisional order
of the subordinate Court.” It is, however, to be noted that power under Article
227 of the Constitution was held as not to be exercised in a routine manner.
Power under Article 227 is intended to be used sparingly and only in appropriate
cases for the purpose of keeping the subordinate Courts and Tribunals within
bounds of their authority, and not for correcting mere errors. A mere wrong
decision without anything more is to attract jurisdiction of High Court under
Article 227. The supervisory jurisdiction conferred under the said Article is
limited to seeing that an inferior Court or Tribunal functions within the limits
of its authority. In exercising the supervisory power, the High Court does not
act as an appellate Court or Tribunal. It will not review or reweigh the evidence
upon which the determination of the inferior Court or Tribunal purports to be
based or to correct errors in the decision. The power of superintendence being
—| 521 |—
extraordinary is to be exercised most sparingly and only in appropriate cases.

The power of superintendence is not intended to confer in the High Court an
unlimited prerogative to interfere in every case where a wrong decision has been
arrived at by a judicial or quasi-judicial Court or Tribunal, either on fact or in
law. The High Court will refuse to issue any writ in the event it is found that
substantial justice has been done to the parties or in larger interest it would not
be prudent to issue such a writ.”
17. It may further be taken note that the Full Bench decision of Patna High Court in the case of
Neelam Kumari Sinha Vs. Prashat Kumar reported in AIR 2010 Pat 184 (FB) followed the view
of the Orissa High Court in the case of Swarna Prava Tripathy and Ors. (supra) and held that
an appeal is not maintainable. It appears that the Full Bench judgment of Allahabad High Court
delivered in the case of Kiran Bala Srivastava (supra) was not brought to the notice of the Patna
High Court, rather the Division Bench judgment of Allahabad High Court in the case Ravi
Saran Prasad alias Kishore v. Smt. Rashmi Sinah [AIR 2001 All 227] was cited and followed,
which stood overruled by the Full Bench in Kiran Bala Srivastava (supra). Likewise, the Division
Bench of the Chhattisgarh High Court in the case of Anil Mishra v. Sakshi Mishra [AIR 2017
Chh 108], did not notice and consider the Full Bench decision of the Allahabad High Court in
the case of Kiran Bala Srivastava (supra) and chose to follow the Full Bench decisions of Orissa
and Patna High Courts. A subsequent judgment of Chhattisgarh High Court in the case of
Monica Sahu v. Puranlal Sarwa [MANU/CG/1012/2019] though noticed the judgment of the
Full Bench of the Allahabad High Court in the case of Kiran Bala Srivastava (supra), but did
not assign any reason whatsoever to disagree with it rather chose to follow the earlier Division
Bench of Chhattisgarh High Court in the case of Anil Mishra (supra).
18. An analysis of judgments of the Full Bench of Allahabad in the case of Kiran Bala Srivastava
(supra) and the decisions of High Courts following it indicates that they have approached the
issue from the angle that an order passed under section 24 of HMA is a “judgment” and have
referred to and relied upon the decision of the Hon’ble Supreme Court rendered in the case of
Shah Babu Lal Khimji (supra) whereas the Full Bench of the Orissa High Court in the case of
Swarna Prava Tripathy and Ors. (supra) and the judgments and orders of High Courts following
it have placed reliance on the decision of the Supreme Court in the case of Ramesh Chandra
Kaushal v. Mrs Veena Kaushal [(1978) 4 SCC 70. We may, therefore, proceed to deal with the
ratio of two judgments of the Apex Court in some detail to understand their applicability in the
context of the issue at hand.
19. In the case of Shah Babu Lal Khimji (supra), the Supreme Court of India was deciding a
substantial question of law relating to the scope, ambit and meaning of the word ‘judgement’
appearing in Clause 15 of the Letters Patent of the Bombay High Court and the corresponding
clauses in the Letters Patent of other High Courts and as to when an interlocutory order will be
covered by the term “judgment” under the Letters Patent so as to make them appealable. In Shah
Babu Lal Khimji (supra) the Apex Court decided as to what kind of “interlocutory orders” can
be considered as “judgment” within the meaning of Letters Patent so as to maintain an appeal
there against to the Division Bench of the concerned High Court.
20. Learned Amicus Curiae has submitted that the said decision is on a different proposition of law
and does not apply, specifically to the question raised in this appeal. So far as FCA is concerned
—| 522 |—
even an order, not being an interlocutory order, has been made appealable and hence it is not at
all necessary that an order to be appealable has to be a “judgment” or brought within the ambit
of word “judgment”. It may be pertinent to note that the Letters Patent does not define the word
“judgment” and hence the Supreme Court and various High Courts have taken the pains to
define the same on case to case basis and after administering the test propounded by Shah Babu
Lal Khimji (supra).
21. We now advert to the judgment of the Apex Court in the case of Ramesh Chandra Kaushal
(supra) relied upon by Full Bench of Orissa High Court. The Apex Court was considering an
appeal questioning an order of maintenance granted under section 125 CrPC on two grounds,
viz. (a) that in a divorce proceeding the Civil Court had passed an order of interim maintenance
quantified at ? 400 (which was affirmed by the High Court) and hence the determination of
quantum by Civil Court should prevail over a like decision of a Criminal Court, and (b) the
awardable maximum under section 125 Cr.P.C was at that time ?500 whereas the Criminal
Court’s order directed payment of maintenance of ?1000 to the wife and her two children as
affirmed by the High Court which was not correct. On both counts the appeal was dismissed.
While considering the first issue the Apex Court observed that the general principle of civil
court’s order prevailing over a criminal court was inapplicable as the direction by the civil court
is not a final determination under the Hindu Adoption and Maintenance Act but an order
pendent lite, under section 24 of the Hindu Marriage Act to pay the expenses of the proceeding,
and monthly expenses during the proceedings. Paragraph 6 of the Supreme Court Cases Report
is reproduced hereunder:
“6. Broadly stated and as an abstract proposition, it is valid to assert, as Sri Desai did, that
a final determination of a civil right by a civil court must prevail against a like decision
by a criminal court. But here two factors make the principle inapplicable. Firstly, the
direction by the civil court is not a final determination under the Hindu Adoptions and
Maintenance Act but an order pendente life, under Section 24 of the Hindu Marriage
Act to pay the expenses of the proceeding, and monthly during 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. Secondly, this amount does not include
the claim for maintenance of the children although the order does advert to the fact
that the respondent has their custody. This incidental direction is no comprehensive
adjudication.”
In respect of the second issue concerning Section 125 Cr.P.C which also deals with maintenance
of a wife and minor children, the Supreme Court at Para- 9 of the report held as under:
petrified print but vibrant words with social functions to fulfil. The brooding presence
inform interpretation if it has to have social relevance. So viewed, it is possible to be
selective in picking out that interpretation out of two alternatives which advance the
cause — the cause of the derelicts.”
—| 523 |—
22. It has been submitted by learned Amicus Curiae that though Section 24 is gender neutral, but
the provision is mostly invoked by and for the benefit of wife in a matrimonial proceeding
and hence the observations will mutatis mutandis apply to section 24 HMA as well and can be
applied to find out an answer to the issue at hand.
23. Learned Amicus Curiae has submitted that in order to interpret the provision under Section
19(1) relating to appeal, it is necessary to examine the object and purpose of the FCA. It is trite
that while construing a provision relating to appeal/ jurisdiction of the court/ tribunal the object
of the statute can be an aid to construction of the said provision. In this regard, learned Amicus
Curiae has placed the decision of Division Bench of this Court [of which one of us Aparesh
Kumar Singh, J was a member] in the case of Baga Tirkey v. Pinki Linda [First Appeal No. 124 of
2018]. This Court after taking note of scheme and object of FCA and the decisions of the Apex
Court in the case of K.A. Abdul Jaleel Vs. T.A. Shahida reported in (2003) 4 SCC 166 and in the
case of Balram Yadav Vs. Fulmaniya Yadav reported in (2016) 13 SCC 308 held as under:
“9 In this regard, it is pertinent to refer to the scheme and object of the Family Courts
Act, 1984. The Family Courts Act, 1984[in short FCA] was enacted in public interest
for the establishment of the Family Court for speedy settlement of the family dispute.
The legislative power exercised by the Parliament can be traced to Article-246(2) of the
Constitution of India. The field of legislation is referable to Entry-11-A under List-III
of Seventh Schedule was inserted by 42nd Amendment Act, 1976 i.e. “Administration
of justice, constitution and organization of all courts, except the Supreme Court and
the High Court”
10. The preamble to the FCA states that it is an Act to provide for the establishment of
Family Courts with a view to promote conciliation and to secure speedy settlement of
the disputes relating to marriage and family affairs and for matters connected therewith.
The FCA is a secular law applying to all religions. Section 7(1)(A) of the FCA confers
“all the jurisdiction” hitherto exercised by any District Court or any Subordinate Civil
Court in suits or proceedings relating to matters mentioned in Clauses-(a) to (g) of
the Explanation. Clause-(a) of the Explanation reads as ‘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’. Use of the words
‘all the jurisdiction’ makes the legislative intent clear that all the enumerate matters
in the explanation to section 7 would be the exclusive domain of the Family Courts
established under the FCA. In other words, the FCA created a forum for adjudication
of matrimonial matters of the nature enumerated in the explanation to Section 7 of the
FCA, which forum can be resorted to by one and all, be it a member of scheduled tribe
or a person of any religion.
11. It is useful to refer to the opinion of the Apex Court rendered in the case of K.A. Abdul
Jaleel Versus T.A. Shahida, reported in (2003) 4 SCC 166, in this regard, Paras-11 and
14 thereof are quoted hereunder:-
“11 The wordings ‘disputes relating to marriage and family affairs and for
matters connected therewith’ in the view of this Court must be given a broad
—| 524 |—
construction. The Statement of Objects and Reasons, as referred to hereinbefore,

would clearly go to show that the jurisdiction of the Family Court extends, inter
alia, in relation to properties of spouses or of either of them which would clearly
mean that the properties claimed by the parties thereto as a spouse of other;
irrespective of the claim whether property is claimed during the subsistence of
a marriage or otherwise. 14. It is now a well-settled principle of law that the
jurisdiction of a court created specially for resolution of disputes of certain kinds
should be construed liberally. The restricted meaning if ascribed to Explanation
(c) appended to Section 7 of the Act, in our opinion, would frustrate the object
wherefor the Family Courts were set up.”
12. Further in the case of Balram Yadav Versus Fulmaniya Yadav, reported in (2016) 13
SCC 308, the Apex Court has explained the scope of jurisdiction under Section 7(1)
Explanation (b) of the FCA as under:-
“ Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as
to the validity of both marriage and matrimonial status of a person is within
the exclusive jurisdiction of the Family Court, since under Section 8, all those
jurisdictions covered under Section 7 are excluded from the purview of the
jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial
status of any person, a declaration in that regard has to be sought only before the
Family Court. It makes no difference as to whether it is an affirmative relief or a
negative relief. What is important is the declaration regarding the matrimonial
status. Section 20 also endorses the view which we have taken, since the Family
Courts Act, 1984, has an overriding effect on other laws.”
13. The illuminating opinion of the Apex Court leaves no room of doubt on an expansive
and liberal interpretation of the jurisdiction of the family courts under the FCA.”
24. Learned Amicus Curiae has, however, pointed out that an expansive interpretation to the
jurisdiction clause of the FCA does not ipso facto mean that the appellate provision also has to
be liberally and expansively construed. Appellate provisions have to be interpreted in a manner
which would further the object of the Statute and not run contrary to the legislative intent. In
this regard, he has taken aid of the doctrine of purposive construction which is a well settled
principle of interpretation now being increasingly relied upon by this Court. It is submitted that
the courts are entitled to look into the object and purpose of the enactment and in this regard,
one may refer to the decision of the Supreme Court of India in the case of New India Assurance
Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd. [(2020) 5 SCC 757 (paras-20 & 21] and
in the case of Municipal Corporation of Greater Mumbai v. Ankita Sinha & Ors. [2021 SCC
OnLine SC 897].
In New India Assurance Co. Ltd. (supra), the Apex took note of the object of the Consumer
Protection Act, 1986 (hereinafter referred to as “CPA”), to interpret the provisions of Section
13 of the CPA. It took note that the CPA was enacted to provide speedy disposal of consumer
disputes and, hence, preferred an interpretation which was in tune of such object. It accordingly
held that the district forums have no power to extend the time to file response to a complaint
—| 525 |—
beyond the period of 15 days in addition to 30 days, as is envisaged under Section 13 of the
C.P.A.
25. Likewise in Municipal Corporation of Greater Mumbai (supra), the Supreme Court observed that
the National Green Tribunal (hereinafter referred to as “NGT”) is a Forum created specifically
to address environmental concerns and was expected to move with expediency. It went on to
hold that the NGT has the power to initiate a suo moto proceedings. According to learned
Amicus Curiae, Section 19 of the FCA therefore has to be interpreted in a manner, which is in
consonance with the object of FCA and HMA and does not run contrary thereto. Hence, it has
to be ascertained as to whether by holding that an appeal is maintainable, the object of speedy
redressal is in any manner being frustrated or not.
26. It is pertinent to take note of the aims and objects of the Family Courts Act, 1984, which reads
as under.
“An Act to provide for the 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”
It is also pertinent to quote Section 21(B) of the Hindu Marriage Act, 1955 also hereunder,
which provides that every petition under HMA shall be tried as expeditiously as possible and
endeavour shall be made to conclude the trial within six months from the date of service of notice
of the petition on the respondent. It also stipulates that an every appeal under the Act should be
heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within
three months from the date of service of notice of appeal on the respondent. Section 21(B) is
quoted hereunder:
“21(B). Special provision relating to trial and disposal of petitions under the Act.-
(1) The trial of a petition under this Act shall, so far as is practicable consistently with
the interests of justice in respect of the trial, be continued from day to day until its
conclusion unless the Court finds the adjournment of the trial beyond the following
day to be necessary for reasons to be record.
(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour
shall be made to conclude the trial within six months from the date of service of notice
of the petition on the respondent.
(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour
shall be made to conclude the hearing within three months from the date of service of
notice of appeal on the respondent.”
We may also quote Section 24 of HMA, the proviso whereof also stipulates that an application
for payment of expenses of the proceeding and such monthly sum during the proceeding, shall,
as far as possible, be disposed of within 60 days from the date of service of notice on the wife
or husband, as the case may be. The aims and objects of the FCA read together with relevant
provisions of HMA both go to show that the object of both the enactments are to ensure speedy
adjudication of matrimonial disputes and also claims relating to maintenance pendente lite and
cost of proceedings.
—| 526 |—
“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 to the petitioner the expenses of the proceeding, and monthly
during 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.
Provided that the application for the payment of the expenses of the proceeding and such
monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days
from the date of service of notice on the wife or the husband, as the case may be.”
27. From a plain reading of Section 19 of FCA, it is clear that no appeal lies thereunder against an
interlocutory order. Therefore, in order to answer the issue at hand one must pose the following
questions: Whether an order passed under Section 24 of HMA is an “interlocutory order” or
not? What are interlocutory orders?
The principles of statutory interpretation provide that in ordinarily the meaning of word is not
to be taken in abstract, but regard must be had to the setting in which the word occurs as
also to the subject matter and object of the enactment. However, in case of doubt these factors
gain prominence in selecting the true meaning out of the rival interpretations which may be
reasonably open. [see Principles of Statutory Interpretation; 13th Edition, 2012 Justice G.P.
Singh, Chapter 2, page 124.]
28. The same expression used in two different enactments in similar context may have different
meanings having regard to the object of each enactment. The expression ‘interlocutory order’
has also been used in Section 397 (2) of the Code of Criminal Procedure, 1974 and section 11 of
the Special Courts Act, 1979. In the former, it has been understood in the wider sense but in the
latter in its natural sense having regard to the object of speedy trial.
29. The Apex Court in the case of V.C. Shukla v. State through CBI reported in [1980 Supp SCC
92] had occasion to interpret the term “interlocutory order” in reference to Section 11(1) of the
Special Courts Act, 1979. For better understanding we intend to quote both Section 19 of FCA
and Section 11(1) and (2) of Special Courts Act hereunder:
CHAPTER V
[APPEALS AND REVISIONS]
“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):
—| 527 |—
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 (59 of 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 the 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 Benchconsisting of two
or more Judges.......“
Special Courts Act, 1979
[APPEAL]
11.(1)Notwithstanding anything in the Code, an appeal shall lie as of right from any
judgment, sentence or order, not being interlocutory order, of a Special Court to
the Supreme Court both on facts and onlaw.
(2) Except as aforesaid, no appeal or revision shall lie to any court from any
judgment, sentence or order of a Special Court.
30. In the case of V.C.Shukla, the appeal was directed against an order framing charge by a Special
Judge under the Special Courts Act, 1979. The Apex Court refrained from interpreting the term
“interlocutory order” in a special or wider sense as used in section 397(2) of Cr.P.C. It preferred
to interpret the term in its natural sense and therefore by a majority of 3:1 held that an appeal was
not maintainable. The Apex Court considered the scheme of Special Courts Act, 1979 which had
the object of expeditious trial and quick dispatch of cases. The Apex Court referred to the case of
Amar Nath v. State of Haryana [(1977) 4 SCC 137] and Madhu Limaye v. State of Maharashtra
[(1977) 4 SCC 551] and the non-obstante clause in Section 11 of Special Courts Act, 1979 and
held that the judgments in the said cases were given in the context of the Code, particularly
Section 397(2) and were correctly decided, but would have no application to the interpretation
of Section 11(1) of SCA which expressly excludes the Code. The relevant opinion of Apex Court
in the case of V.C.Shukla (supra) are as follows:
“34. There is yet another aspect of the matter which has to be considered so far as this
decision is concerned, to which we shall advert when we deal with the last plank of the
argument of the learned counsel for the appellant. Suffice it to say at the moment that
the case referred to also fully endorses the view taken by the Federal Court and the
English decisions viz. that an order is not a final but an interlocutory one if it does not
—| 528 |—
determine or decide the rights of parties once for all. Thus, on a consideration of the
authorities, mentioned above, the following propositions emerge:
(1) that an order which does not determine the right of the parties but only one
aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained in contradistinction
to a final order. In other words, if an order is not a final order, it would be an
interlocutory order;
(3) that one of the tests generally accepted by the English courts and the Federal
Court is to see if the order is decided in one way, it may terminate the proceedings
but if decided in another way, then the proceedings would continue, because, in
our opinion, the term ‘interlocutory order’ in the Criminal Procedure Code has
been used in a much wider sense so as to include even intermediate or quasi-
final orders;
(4) that an order passed by the Special Court discharging the accused would
undoubtedly be a final order inasmuch as it finally decides the rights of the parties
and puts an end to the controversy and thereby terminates the entire proceedings
before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the
accused is not left without any remedy because in suitable cases, the accused can
always move this Court in its jurisdiction under Article 136 of the Constitution
even against an order framing charges against the accused. Thus, it cannot be
said that by not allowing an appeal against an order framing charges, the Act
works serious injustice to the accused.
35. Applying these tests to the order impugned we find that the order framing of the charges
is purely an interlocutory order as it does not terminate the proceedings but the trial
goes on until it culminates in acquittal or conviction. It is true that if the Special Court
would have refused to frame charges and discharged the accused, the proceedings
would have terminated but that is only one side of the picture. The other side of the
picture is that if the Special Court refused to discharge the accused and framed charges
against him, then the order would be interlocutory because the trial would still be
alive. Mr Mridul tried to repel the argument of the Solicitor-General and explained
the decisions, referred to above, on the ground that the English decisions as also the
Federal Court’s decisions made the observations while interpreting the provisions of the
Government of India Act or the provisions of the Constitution where the word “final”
order was expressly used. It was urged that the same construction would not apply to
the present case where the word “order’ is not qualified by the word “final”. With due
respect to the learned counsel, in our opinion, the distinction sought to be drawn is a
distinction without any difference. This Court as also the Federal Court have clearly
pointed out that so far as the tests to be applied to determine whether an order is final
or interlocutory, apply as much to a civil case as to a criminal case. Furthermore, as
already indicated, it is impossible to spell out the concept of an interlocutory order
unless it is understood in contradistinction to or in contrast with a final order. This was
—| 529 |—
held in a number of cases referred to, including Madhu Limaye case [(1977) 4 SCC 551
: 1978 SCC (Cri) 10 : (1978) 1 SCR 749] which has been expressly stressed by us in an
earlier part of the judgment. For these reasons, therefore, the contention of the learned
counsel for the appellant on this aspect of the matter fails and is hereby overruled.
42. The learned counsel for the appellant then finally submitted that the present statute
which gives a right of appeal, should be liberally construed in favour of the accused so as
not to deprive him of the right of appeal. The counts counsel relied on the observations
of Crawford: THE CONSTRUCTION OF STATUTES (pp. 692-93) which may be
extracted thus:
S. 336. Appeals.—.... Moreover, statutes pertaining to the right of appeal should
be given a liberal construction in favour of the right, since they are remedial.
Accordingly, the right will not be restricted or denied unless such a construction
is unavoidable.
43. There can be no dispute regarding the correctness of the proposition mentioned in the
statement extracted above, but here as the right of appeal is expressly excluded by
providing that no appeal shall lie against an interlocutory order, it is not possible for us
to stretch the language of the section to give a right of appeal when no such right has
been conferred. Even the statement extracted above clearly says that “the right will not
be restricted unless such a construction is unavoidable”. In the instant case, in view of
the non obstante clause Section 11(1) of the Act cannot be construed to contain a right
of appeal even against an interlocutory order and, therefore, the present clause falls
within the last part of the statement of Crawford, extracted above. Thus, this argument
of the learned counsel also is wholly devoid of any substance.
45. On a true construction of Section 11(1) of the Act and taking into consideration the
natural meaning of the expression “interlocutory order”, there can be no doubt that the
order framing charges against the appellant under the Act was merely an interlocutory
order which neither terminated the proceedings nor finally decided the rights of the
parties. According to the test laid down in Kuppuswami case [1947 FCR 180 : AIR
1949 FC 1 : 49 Cri LJ 625] the order impugned was undoubtedly an interlocutory
order. Taking into consideration, therefore, the natural meaning of interlocutory order
and applying the non obstante clause, the position is that the provisions of the Code
of Criminal Procedure are expressly excluded by the non obstante clause and therefore
Section 397(2) of the Code cannot be called into aid in order to hold that the order
impugned is not an interlocutory order. As the decisions of this Court in the cases
of Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551 : 1978 SCC (Cri) 10 :
(1978) 1 SCR 749] and Amar Nath v. State of Haryana [(1977) 4 SCC 137: 1977 SCC
(Cri) 585 : (1978) 1 SCR 222] were given with respect to the provisions of the Code,
particularly Section 397(2), they were correctly decided and would have no application
to the interpretation of Section 11(1) of the Act, which expressly excludes the provisions
of the Code of Criminal Procedure by virtue of the non obstante clause.
46. We feel that one reason why no appeal was provided against an interlocutory order
like framing of the charges, as construed by us so far as the Act is concerned, may have
—| 530 |—
been that it would be against the dignity and decorum of the very high status which
the Special Judge under the Act enjoys in trying the case against an accused in that the
Judge is a Sitting Judge of a High Court and therefore must be presumed to frame the
charges only after considering the various principles and guidelines laid down by other
High Courts and this Court in some of the cases referred to above.
47. Thus, summing up the entire position the inescapable conclusion that we reach is that
giving the expression “interlocutory order” its natural meaning according to the tests
laid down, as discussed above, particularly in Kuppuswami case [1947 FCR 180 : AIR
1949 FC 1 : 49 Cri LJ 625] and applying the non obstante clause, we are satisfied that
so far as the expression “interlocutory order” appearing in Section 11(1) of the Act is
concerned, it has been used in the natural sense and not in a special or a wider sense
as used by the Code in Section 397(2). The view taken by us appears to be in complete
consonance with the avowed object of the Act to provide for a most expeditious trial
and quick dispatch of the case tried by the Special Court, which appears to be the
paramount intention in passing the Act.
48. In these circumstances, therefore, we hold that the order passed by the Special Judge
was an interlocutory order and the appeal filed against that order in this Court is
clearly not maintainable. We, therefore, uphold the preliminary objection taken by the
Solicitor-General and dismiss the appeal as being not maintainable.”
31. In view of the above proposition of law, learned Amicus Curiae has submitted that the opinion
of the Apex Court in the case of V.C.Shukla should apply with equal force to section 19 of FCA.
Section 19 FCA has a non obstante provision [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] and thereby expressly excludes the CPC and the Cr.P.C. The term “interlocutory
order” must be construed in its natural sense and having regard to the purpose and object of the
Act, which necessitates that the expression “interlocutory order” be interpreted in a wider sense
so as to bring within its fold all such orders which are not final. The concept of “intermediate
order” or a “case decided” which are revisable under the provisions of CrPC and CPC cannot be
invoked in respect of section 19 of the FCA. Therefore, reference to various case laws rendered in
the context of CrPC, CPC or any other law would not be appropriate as it would be unnecessary
and out of context.
32. Learned Amicus Curiae has also addressed the issue from a different angle i.e. whether an order
passed under section 24 HMA affects any substantial right and has the trappings of finality.
Relying upon the case of Shyam Sel and Power Limited and Another v. Shyam Steel Industries
Limited, 2022 SCC OnLine SC 313 (paragraphs 17-20), it is submitted that in the said case the
Apex Court has held that an order passed by a Single Judge in a suit postponing the hearing of a
temporary injunction matter was not appealable. It was also held that an order vitally affecting a
valuable right of the defendants, will undoubtedly be treated as a ‘judgment’ within the meaning
of Letters Patent so as to be appealable to a Larger Bench and an order to be construed as a
‘judgment’, it must have the traits and trappings of finality. It was further held that each and every
order passed by the Court during the course of the trial, though may cause some inconvenience
to one of the parties or, to some extent, prejudice to one of the parties, cannot be treated as a
‘judgment’.
—| 531 |—
33. We may now advert to a recent path breaking decision rendered by the Apex Court in the case
of Rajnesh Vs. Neha & Anr. reported in (2021) 2 SCC 324, wherein for the first time the Apex
Court held that the party claiming maintenance should be required to file concise application
for interim maintenance with limited pleadings, along with an affidavit of disclosure of assets
and liabilities before the court concerned, as a mandatory requirement. It was further held
that on the basis of the pleadings filed by both the parties and the affidavits of disclosure, the
court would be in a position to make an objective assessment of the approximate amount to be
awarded towards maintenance at the interim stage. The Hon’ble Supreme Court prescribed the
formats in which the affidavits of assets and liabilities were to be filed. A separate format was
provided for non-agrarian deponents and agrarian deponents for the State of Meghalaya.
34. The primary reason for providing for the above procedure appears to be that the Apex Court
was cognizant of the fact that despite the time frame provided for by the statutes in the form of
the proviso to section 24 of the HMA (60 days from the date of service of notice) and the third
proviso to section 125 CrPC (60 days from the date of service of notice), the applications for
grant of interim maintenance remained pending for several years. The Court further noticed
that at present the issues related to interim maintenance are decided on the basis of pleadings,
with some amount of guesswork or rough estimation so as to make a prima facie assessment
of the amount to be awarded. Such practices according to the Apex Court made it difficult
for Family Courts to make an objective assessment for grant of interim maintenance. The
Apex Court was of the view that maintenance taking wife has a tendency to exaggerate her
needs while it is a corresponding tendency by the husband to conceal his actual income and
therefore it has become necessary to lay down a procedure to streamline the proceedings. A
dependent wife, who has no other sources of income, has to take recourse to borrowings from
her parents / relatives during the interregnum to sustain herself and her minor children till she
begins receiving interim maintenance. The Apex Court, therefore, laid down the procedure and
guidelines for deciding a claim of maintenance in a matrimonial proceeding or in a proceeding
under Section 125 of Cr.P.C. Paragraph 72 of the judgement is profitably quoted hereunder:
“12. Keeping in mind the need for a uniform format of Affidavit of Disclosure of Assets and
Liabilities to be filed in maintenance proceedings, this Court considers it necessary to
frame guidelines in exercise of our powers under Article 136 read with Article 142 of
the Constitution of India:
72.1. (a) The Affidavit of Disclosure of Assets and Liabilities annexed at Enclosures
I, II and III of this judgment, as may be applicable, shall be filed by the parties
in all maintenance proceedings, including pending proceedings before the
Family Court/District Court/Magistrate’s Court concerned, as the case may be,
throughout the country;
72.2. (b) The applicant making the claim for maintenance will be required to file a
concise application accompanied with the Affidavit of Disclosure of Assets;
72.3. (c) The respondent must submit the reply along with the Affidavit of Disclosure
within a maximum period of four weeks. The courts may not grant more than
two opportunities for submission of the Affidavit of Disclosure of Assets and
Liabilities to the respondent. If the respondent delays in filing the reply with the
—| 532 |—
affidavit, and seeks more than two adjournments for this purpose, the court
may consider exercising the power to strike off the defence of the respondent, if
the conduct is found to be wilful and contumacious in delaying the proceedings
[Kaushalya v. Mukesh Jain, (2020) 17 SCC 822 : 2019 SCC OnLine SC 1915]. On
the failure to file the affidavit within the prescribed time, the Family Court may
proceed to decide the application for maintenance on the basis of the affidavit
filed by the applicant and the pleadings on record;
72.4. (d) The above format may be modified by the court concerned, if the exigencies
of a case require the same. It would be left to the judicial discretion of the court
concerned to issue necessary directions in this regard.
72.5. (e) If apart from the information contained in the Affidavits of Disclosure, any
further information is required, the court concerned may pass appropriate orders
in respect thereof.
72.6. (f) If there is any dispute with respect to the declaration made in the Affidavit
of Disclosure, the aggrieved party may seek permission of the court to serve
interrogatories and seek production of relevant documents from the opposite
party under Order 11 CPC. On filing of the affidavit, the court may invoke
the provisions of Order 10 CPC or Section 165 of the Evidence Act, 1872, if it
considers it necessary to do so. The income of one party is often not within the
knowledge of the other spouse. The court may invoke Section 106 of the Evidence
Act, 1872 if necessary, since the income, assets and liabilities of the spouse are
within the personal knowledge of the party concerned.
72.7. (g) If during the course of proceedings, there is a change in the financial status
of any party, or there is a change of any relevant circumstances, or if some new
information comes to light, the party may submit an amended/supplementary
affidavit, which would be considered by the court at the time of final determination.
72.8. (h) The pleadings made in the applications for maintenance and replies filed
should be responsible pleadings; if false statements and misrepresentations are
made, the court may consider initiation of proceeding under Section 340 CrPC,
and for contempt of court.
72.9. (i) In case the parties belong to the economically weaker sections (“EWS”), or are
living below the poverty line (“BPL”), or are casual labourers, the requirement of
filing the affidavit would be dispensed with.
72.10. (j) The Family Court/District Court/Magistrate’s Court concerned must make an
endeavour to decide the IA for interim maintenance by a reasoned order, within
a period of four to six months at the latest, after the Affidavits of Disclosure have
been filed before the court.
72.11. (k) A professional Marriage Counsellor must be made available in every Family
Court.”
35. At paragraph 77 of the judgement, it was observed that the objective of granting interim/
permanent alimony is to ensure that the dependent spouse is not reduced to destitution or
—| 533 |—
vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse.
Therefore, no straightjacket formula for fixing the quantum of maintenance to be awarded can
be laid down.
36. From a cumulative reading of the guidelines and observations of the Supreme Court of India, it
is clear that an application for grant of interim maintenance has to be decided in an expeditious
manner and to facilitate the early disposal of cases only, the new guidelines were issued. The
nature of a proceeding for grant of interim maintenance certainly is summary in nature and
after the judgment of Apex Court in Rajnesh (supra) there is no doubt that the Family Courts
have to decide the matters objectively based on the disclosures made by the parties on affidavit.
37. Since the interpretation of a provision relating to appeals is under consideration before this
Court it would also be proper to delve on this issue at this stage. An appeal is a right of entering
in a Superior Court and invoking its aid and interposition to redress an error of the Court below.
[ see A.G. v. H J Sillem (1864) 11 ER 1200, Page-1209 (HL) (Lord Westberry, L.C.) referred to in
Dayawanti v. Inderjit AIR 1966 SC 1423, (para 10). In the case of Super Cassettes Industries Ltd.
v. State of U.P reported in [(2009)10 SCC 531, Para-23], the Apex Court held that appeal is not
a natural or inherent right and cannot be assumed to exist unless provided by a statue.
38. In Competition Commission of India v. Steel Authority of India Ltd. (2010) 10 SCC 744 (para
45, 48) the Apex Court while dealing with Section 53A of the Competition Act, by which the
Competition Appellate Tribunal has been established and which provides for appeals against
orders passed by the Competition Commission against “any direction issued, decision made or
order passed by the Commission under Sub-section (2) and (6) of section 26” but not against
any direction under sub-section (1) of section 26 to the Director General to investigate a case
when it finds a prima facie case has held that no right of appeal can be impliedly inferred. It is
trite that the right of appeal is a statutory right and it can be circumscribed by the conditions
of the statutes granting it (see (2008) 4 SCC 720 paras 23 to 25). It is also equally well settled
that where the statue does not place any limitation and restriction to the scope and width of the
appeal it shall be construed that the appeal will provide the right of rehearing on law as well as
on facts. There is no dispute that an appeal is a creature of statute, and a litigant does not have an
inherent right to prefer an appeal in respect of any order under a statue. These principles ought
to be kept in mind in order to answer the issue at hand.
39. We have quoted the provisions of Section 19 FCA in the foregoing paragraphs. Section 19 (1)
of the FCA provides forum of appeal against every judgment or order passed by Family Court
except when the appeal is directed against the following:
(i) An Interlocutory Order; or
(ii) From a decree or order passed with the consent of the parties; or
(iii) From an order passed under Chapter IX of the Code of Criminal Procedure, 1973.
It is explicit that an Interlocutory Order stands specifically excluded from the category of
judgment or order appealable under Section 19 of the FCA.
40. We have profusely discussed the rival opinions of different High Courts on the question of
maintainability of such an appeal under Section 19 (1) of the FCA against an order passed under
Section 24 of the HMA.
—| 534 |—
41. Learned Amicus Curiae has placed certain decision of Superior Courts of other jurisdictions. He
has also relied on an Article by Willis P. Whichard. In the article titled as Appealability in North
Carolina: Common Law Definition of the Statutory Substantial Rights Doctrine by Willis P.
Whichard [Law and Contemporary Problems, 47, no. 3(1984):123-55], the author after referring
to various case laws noted that an interlocutory order or judgement under North Carolina law
is one which does not determine the issues but directs some further proceedings preliminary
to final decree. It was further stated that as a general rule, there is no right of immediate appeal
from interlocutory orders or judgements and they may be reviewed only upon appeal from a final
judgement. The exceptional circumstances under which interlocutory orders are immediately
appealable, as a matter of right are determined by statute. It was further noted that appeals
of right may be taken from interlocutory orders or judgments which (1) in effect determine
the action and prevent a judgment from which an appeal might be taken; (2) discontinue the
action;(3) grant or refuse a new trial; (4) adversely rule on the jurisdiction of the court over
the person or property of the defendant; (5) are final judgements as to fewer than all claims or
parties, and in which it is determined in the judgment that there is no just reason for delay or
(6) affects a substantial right. After noticing a few more judgements and propositions the author
was of the view that in this context the basic rule for guidance in North Carolina is that appeal
is available whenever an interlocutory order affects a substantial right. As to what constitutes
a substantial right, the author took note of the observation of the Supreme Court in the case
of Waters v. Qualified Personnel Inc., 294 N.C. 200, 208,240 S.E.2d 338, 343 (1978), which is
extracted and reads thus:
“Admittedly the “substantial right” test for appealability of interlocutory orders is more easily
stated than applied. It is usually necessary to resolve the question in each case by considering
the particular facts of that case and the procedural context in which the order from which
appeal is sought to be entered.”
In the said article it was further recorded as follows:-
One consideration repeatedly emphasised by the appellate courts is that the order affecting a
substantial right must be such that it will work injury to the appellant if not corrected before
appeal from final judgement. In addition, the right must be intrinsically substantial, irrespective
of whether it will be lost or prejudiced absent immediate appeal.
Rarely have the North Carolina courts addressed this requirement expressly. Usually the Courts
merely state that a right is or is not substantial. The Supreme Court has, however, quoted with
approval the following definition of a substantial right “substantial right” : “a legal right affecting
or involving a matter of substance as distinguished from matters of form: right materially
affecting those interests which a man is entitled to have preserved and protected by law: a
material right.”[Oestreicher v. American Nat’l Stores, 290 N.C. 118, 130, 225 S.E. 2d797, 805
(1976).
In a survey by the author of the case laws for enhanced understanding of when interlocutory
order affects a substantial right, the author under the heading “Family Law” took note of some
case laws which held that maintenance pendente lite was an interlocutory order hence not
appealable. Reference was made to the judgment of Stephenson v. Stephenson [55 N.C. App 250
285 S.E 2d 281 (1981)] wherein the Court of Appeals in North Carolina held that the orders and
—| 535 |—
awards pendente lite, although previously occasionally held to involve a substantial right, would
no longer be appealable on that basis and this change was brought about in the prior practice to
avoid delays which the depriving parties has to face because of the appeal preferred. The relevant
part of the judgement, as quoted in the article reads as follows:
“Orders and awards pendente lite are interlocutory decrees which necessarily do not affect a
substantial right from which lies an immediate appeal pursuant to G.S. 7A-27(d).”
The learned Author has further gone to quote the observation as stated by the Supreme Court
in Veazey vs City of Durham, 231 N.C. 357, 57, S.E.2d 377 (1949), “[t]here is no more effective
way to procrastinate the administration of justice than that of bringing cases to an appellate
court piecemeal through the medium of successive appeals from intermediate orders.” Learned
Amicus Curiae has thus submitted that the avoidance of deprivation due to delay could be one
for the purposes of the rule that interlocutory orders have not made appealable under Section
19(1) of the F.C.A.
42. The above opinion relying upon the quoted therein, authorities clearly indicate that an order
which does not affect the substantial rights of parties and does not have the traits and trappings
of finality have to be treated as an interlocutory order.
43. We have in the body of our judgment referred to at length the aims and objects of FCA and
the appeal provisions under Section 19(1) therein in the context of the provision of the HMA
also quoted hereinabove. We also had the benefit of analyzing the line of reasoning rendered
by different High Courts on the question of maintainability of such an appeal. While decisions
of different High Courts following the Full Bench judgment of Allahabad High Court in the
case of Smt. Kiran Bala Srivastava(supra) have taken a view that an appeal against an order
under Section 24 of the HMA would be maintainable under Section 19(1) of the FCA, the other
line of decisions have held on to the same view as rendered in the Full Bench judgment of
the Orissa High Court in Swarna Prava Tripathy(supra), wherein the appeal was held as not
maintainable. We have also gone into the reasoning as to why the contrary points of view have
been held by the rival set of decisions. Some decisions of the other High Courts have also taken
into consideration the appeal provision under Section 28 of HMA wherein sub-Section (1)
provides for appeal against decrees while sub-Section (2) provides for appeal against orders
passed under Section 25 or Section 26 of the HMA. The fundamental question that stems out of
such discussion is whether an order under Section 24 could be treated as a judgment or order
but not an ‘Interlocutory Order’ excluded under Section 19(1) of the FCA. We have also gone
through the decision of the Apex Court relied upon by both the Full Benches of Allahabad High
Court and Orissa High Court to hold either way on the maintainability of an appeal under
Section 19(1) of the FCA against an order passed under Section 24 of the HMA.
44. We find that the expression “Interlocutory Order” as interpreted in the case of V. C. Shukla
(supra) takes into consideration not only the scheme and object of the Special Court Act, 1979
which had the objective of expeditious trial and quick dispatch of cases but also the view that the
judgments rendered by the Apex Court in the case of Amar Nath (Supra) and Madhu Limaye
(Supra) on interpretation of the expression “interlocutory order” used in Section 397(2) of
Cr.P.C, pursuant whereto the Apex Court held that it would have no application to interpretation
of Section 11(1) of Special Courts Act, which expressly excluded the Code. The wordings of Sub-
—| 536 |—
Section 19(1) of the FCA are much nearer and in fact more limiting when compared to Section
11(1) and (2) of the Special Courts Act, 1979. Section 19 (1) of the FCA, as a matter of fact,
has a non-obstante clause which excludes anything contained in the Code of Civil Procedure,
1908 or in the Code of Criminal Procedure, 1973 or in any other law while providing for a
forum of appeal against every judgment or order, not being an “Interlocutory Order” of a Family
Court to the High Court both on facts and law. Therefore, it can be safely said that the decisions
rendered in the context of provisions under the Code of Civil Procedure or the Code of Criminal
Procedure, 1973 or in any other law would not be applicable while interpreting the provisions of
Section 19(1) of FCA given the scheme and object of the FCA and HMA both for expeditious
disposal of matrimonial disputes. The opinion of the Author Willis P. Whichard in the Virginia
Law Register relying on the decision of the foreign jurisdictions also unequivocally indicate that
an order which does not affect the substantial rights of parties and does not have the traits and
trappings of finality had to be treated as interlocutory order.
45. In the case of V.C. Shukla (supra), the Apex Court at Para- 34 of the report quoted above culled
out the proposition which emerge upon review of the decisions rendered by the Federal Court
and English Courts that an order is not a final order but an interlocutory order if it does not
determine or decide the rights of parties once for all. An order which does not determine the
right of the parties but only one aspect of the suit or the trial is an interlocutory order. The concept
of interlocutory order has to be explained in contradistinction to a final order. In other words,
if an order is not a final order, it would be an interlocutory order. One of the test generated by
the English Courts and the Federal Court is to see that if the order is decided in one way, it may
terminate the proceedings but if it decided in another way, then the proceedings would continue.
Such an opinion in respect of interlocutory order in Cr.P.C could be used in a much wider sense,
so as to include even intermediate or quasi final orders. The Apex Court also observed that
even if the Special Courts Act does not permit an appeal against an interlocutory order the
accused is not left without any remedy, because in suitable cases, the accused can always move
the Apex Court in its jurisdiction under Article 136 of the Constitution even against an order
framing charges against the accused. It therefore could not be said that not allowing an appeal
against an order framing charges would work serious injustice to the accused. Similar opinion
can be rendered while interpreting the expression ‘interlocutory order’ under Section 91(1) of
the FCA. If the forum of appeal is denied to a party under Section 19 of the FCA, it is not that he
is left without any remedy. The aggrieved party can approach this court under Article 227 of the
Constitution of India. It cannot be gainsaid that considering the pendency of cases and appeals
in particular, whether on the criminal side or on the civil side in various High Courts including
this Court, an appeal against an order under Section 24 of the HMA would take an indefinite
length of time to be finally decided. Such an appeal would mean a decision by the appellate
court both on facts and in law. A situation may arise for example, where a spouse, who has got
the benefit of an order of maintenance pendente lite in her favour would have to wait even after
the final disposal of the matrimonial suit itself on the outcome of the appeal preferred by the
aggrieved spouse/husband against such an order granting maintenance pendente lite and cost
of proceedings. The whole aim and purpose of FCA and HMA for expeditious disposal of the
matrimonial proceedings and also the petition relating to maintenance pendent lite and cost of
proceedings would get indefinitely delayed thus causing disservice to the cause of justice.
—| 537 |—
46. In view of the judgment rendered by the Apex Court in the case of Rajnesh Vs. Neha & Anr. now
the Family Courts are obliged to decide petitions for interim maintenance in a summary nature
objectively based on the disclosure made by the parties on affidavit. An Appellate Court while
finally adjudicating an appeal against such an order may ultimately substitute its views to that
of the family Court rendered on objective factors based on the disclosure made by the parties
on affidavit. This lengthy long drawn proceedings before the appellate court would render the
whole aim and object of the FCA and the HMA otiose and frustrated.
47. We have taken note of the decisions rendered by the Apex Court on the principles of purposive
construction while interpreting a statute. The courts are entitled to look into the object and
purpose of the enactment. The provisions relating to grant of maintenance pendent lite and
litigation expenses are founded on principles akin to Art. 39A of the Constitution of India and
the right to access to justice and hence must receive the importance attached to the rights flowing
therefrom. The provisions of Section 19 of the FCA, therefore, cannot be interpreted in such an
expansive manner, rather the interpretation has to be done in a purposive manner keeping into
mind the object and purpose of the enactment for speedy disposal of matrimonial disputes and
proceedings relating to maintenance. Applying the above tests to an order passed under section
24 of the HMA it can be safely inferred that an order granting or refusing to grant maintenance
pendente lite to a spouse does not have any effect on any substantial right of the aggrieved party
nor does have the traits and trappings of finality. In fact, an order under section 24 HMA does
not have any effect on the final decision of the lis sought to be decided by the Family Court.
48. Having regard to object and purpose of the FCA and HMA i.e. speedy settlement of matrimonial
disputes, which is also reflected in the proviso to section 24 of the HMA, section 19 of the
FCA must receive an interpretation which furthers the above intent of the legislation. Therefore,
providing for an appeal or interpreting that an appeal is maintainable against an order passed
under section 24 of the HMA would frustrate the purpose for which it was enacted and
might unnecessarily delay the main proceedings before the Family Court. Grant or refusal of
maintenance pendente lite can at best be an order which causes inconvenience to some extent
to the aggrieved party but in no way causes any serious prejudice to the aggrieved party. The
HMA or the FCA does not provide for any consequences for non-compliance of an order under
section 24 HMA on the merit of the main matter except that it can be enforced in accordance
with law.
49. The order on an application for grant of interim maintenance certainly is an order which does not
in any manner crystallize the rights of any party. It’s a temporary arrangement. Pronouncement
of the final judgment and decree terminates the operation of the order granting the interim
maintenance. The life of an order granting interim maintenance is till the pendency of the
proceedings, just like any other interim or interlocutory order. As observed hereinabove, in
view of the judgment of Apex Court in the case of Rajnesh (supra), it cannot be said that the
Family Court while deciding an application for interim maintenance has to arrive at a subjective
satisfaction regarding the matter, rather now the order is to be based on objective assessment
and hence the scope of the High Court to interfere with such an order is limited. The High Court
is not required to re-evaluate the entire matter and an order granting / refusing to grant interim
maintenance is not to be tested by an appellate court either on law or facts or both. It can be
—| 538 |—
reviewed by the Superior Court on jurisdictional issues or on grounds of perversity which can
be done under Article 227 of the Constitution of India.
50. An expansive interpretation of section 19 of the FCA by which it is held that an appeal has
been provided against an order granting / refusing to grant interim maintenance, will defeat
the object of the Act i.e., speedy disposal of disputes. The appellate court would be under a duty
to reappraise the pleadings and the affidavit and return an independent finding which would
reopen the issue again and, in all probability, delay the entire exercise. Such an interpretation
runs contrary to the object of the FCA and section 24 of the HMA and thus needs to be avoided.
51. The right of an appeal has been circumscribed by section 19 FCA expressly prohibiting an
appeal from an interlocutory order and the said term “interlocutory order” has to be construed
in its natural sense so as to be in conformity with the object and purpose of the FCA. We are
not oblivious or unmindful of the legal position that the provisions relating to jurisdiction of
the Family Courts must receive liberal and expansive interpretation but at the same time the
provisions relating to appeal must not be interpreted in a manner which would run contrary
to the scheme of the enactment more so in view of the fact that the provisions of section 19
FCA has put restrictions on the scope of appeal against interlocutory orders and expressly
excludes the applicability of the CPC, CrPC and all other laws. Thus, the provision requires to
be interpreted by using the principles of harmonious construction. By applying the same it can
safely be deduced that an order on an application for grant of interim maintenance, being an
interlocutory order, is not appealable.
52. In view of what has been held hereinabove with due respect, in our humble opinion, the decision
of this Court in the case of “Rachana Pandey v. Sanjeev Singh” can be said to be per incuriam.
We accordingly, hold and declare that an order passed by a Family Court under section 24 HMA
being an interlocutory order is not amenable to the appellate jurisdiction of this Court under
section 19 of the FMA. Hence, the present appeal is held to be not maintainable.
However, the appellant is at liberty to raise his grievances in an appropriate proceeding under
Article 227 of the Constitution of India.
53. Before parting, we record our deep appreciation for the valuable assistance rendered by learned
Amicus Curiae, Mr. Indrajit Sinha in deciding such an important question of law. We also record
of our appreciation for the valuable assistance rendered by learned counsel for the appellant, Mr.
Soumitra Baroi and Mr Ashutosh Anand, learned Advocates.
54. Learned Registrar General is required to circulate the judgement to the concerned officials of
the Registry. Let a copy of the judgment be also sent to the Director, Judicial Academy.
qqq
—| 539 |—
MS. SHEOLIHATI VERSUS SOMNATH DAS

Hon’ble Mr. Justice RatnakerBhengra
Ms. SheoliHati ...Appellant
Versus
Somnath Das ...Respondent
With
Somnath Das ...Appellant
Versus
Ms. SheoliHati ...Respondent
Advocate Appeared :
For the Appellant : M/s. Prashant Pallav, Devendra Choudhary, Advocates (F.A. 68/16) ;
M/s Ritu Kumar,Tapas Kabiraj, Advocates (F.A. 59/16)
For the Respondent: M/s. Prashant Pallav, Devendra Choudhary, Advocates(F.A. 59/2016)
M/s Ritu Kumar,TapasKabiraj, Advocates (F.A. 68/16)
1. In these appeals, a decision has to be made, whether the girl child Aditi Bisakha Das now aged
eleven years, is to be sent to a Boarding School for her education and better future career or
not? In order to take a call on this sensitive issue, we may briefly touch upon the background in
which this stage has come. 2. The marriage between the spouses solemnized in the year 2003,
stood dissolved in the year 2010. During the conciliation proceeding, at JHALSA Respondent
agreed not to file any objection against the ex-parte decree of divorce passed by the Court of
Principal Judge, Family Court, Bengaluru in Matrimonial Case No. 3358/2008. Matter was
referred to JHALSA by the Learned Single Judge during the course of proceeding in A.B.A. No.
518/2008 arising out of the criminal prosecution launched by the wife under section498-A of
the Indian Penal Code. A girl child was born out of the wedlock on 09.04.2007. She has been
throughout in the custody of the mother at Jamshedpur since then. The father sometime after the
divorce,approached the Learned Principal Judge, Family Court, East Singhbhum, Jamshedpur,
seeking custody of the minor child Aditi Bisakha Das in Guardianship Case No. 11/2012 under
sections 7 and 12 of Guardian and Wards Act, 1890. During the course of the proceeding,
an amendment was also incorporated by order dated 16.05.2013 for an alternative relief for
directing the child to be admitted in any reputed Residential or Boarding School in India at the
—| 540 |—
expense of the petitioner in the interest of the child and justice. It may be mentioned here that
the Guardianship case stood transferred from the Learned Family Court at Bengalura to the
Learned Family Court, East Singhbhum, Jamshedpur by order of the Apex Court. Respondent
contested the case.
3. Six issues were framed on recast inter-alia for adjudication which are as under:
I. Whether the case as framed and filed is maintainable in its present form?
II. Whether the applicant has valid cause of action for filing the case?
III. Whether the petitioner has sufficient means to maintain his minor daughter AditiBishakha
Das properly and also provide her all facilities with regard to education, marriage, medical
and other welfare of the said minor child?
IV. Whether the petitioner is entitled to get the custody of the said minor daughter namely
AditiBishakha Das?
V. In alternative whether the child is required to be admitted and educated in a reputed
residential/boarding school in India for her welfare and appropriate upbringing at the
expense of the petitioner?
VI. Whether the applicant is entitled to get the relief or reliefs as sought for?
5. During the proceedings of the Family Court, father agreed to surrender his claim for custody
of the child for the sake of joint parenting. The Respondent also agreed to the concept of joint
parenting. Both the parties were interested in the welfare of the child. The question before the
Learned Family Court was, whether the child should be sent to a reputed Boarding School
or should be allowed to continue with her mother in the school at Jamshedpur where she is
presently studying?
6. It is also pertinent to mention here that the father had volunteered to bear all expenses for the
education of the child with an objective of ensuring her overall personality development. The
financial competence of the father was not disputed. The Respondent is also a school teacher in
a school at Jamshedpur. Learned Family Court took into account the voluminous pleadings and
evidences adduced on behalf of the rival parties. However, it steered clear of all the allegations
and counter-allegations between the parties and the evidences with regard to cruelty and torture
by the petitioner upon the Respondent and the evidence in regard to the cruelty and desertion
by the Respondent on the petitioner in the factual parameters of the case. According to it, the
only aspect that was required to be decided was, what should be good for the future of the child
and her welfare? The girl had attained the age of nine years in the month of April 2016.
7. Considering the entire aspects including the personal qualities of the child i.e her sex, age,
background, Learned Family Court was of the considered view that it is too early for the child,
at the age of nine years, to be sent to the Boarding School, more so when since the last nine
years she has been living continuously with her mother. However, Learned Court was also
conscious of the fact that since the petitioner / father was ready to bear the expenses of her
education in better school and particularly in Boarding School, the same could not be rejected
out rightly, but she was required to be prepared for being sent to the Boarding School. Learned
Court was also of the opinion that the minimum age for admission to such reputed schools
—| 541 |—
are somewhere around twelve years by which time, normally a student reaches Class-VI and is
considered mature enough to live in the Boarding School. It accordingly opined that the child
should remain with the mother for the time being and study in the school at Jamshedpur, but
to ensure better future of the child, the custodial parent i.e. mother in the present case, shall be
under duty to groom the child and prepare her so that she may be comfortably shifted to any
Boarding School by the time she completes eleven years of age and is about to reach twelve years
in the year 2019 for the academic session 2019-20. After holding thus, Learned Court modified
the visitation rights of the father. It allowed the father to visit the child even when she might
be ill and might be hospitalized, as in case of joint parenting, it is not that one of the parents is
excluded on account of illness. Apart from that, it held that since the child has to be pampered for
the purpose of putting her in hostel or good Boarding School, so for each of the annual vacation
particularly two annual vacation, Summer and Winter, half of the time period shall be utilized
by the petitioner i.e. the child shall be in the custody, care and guardianship for the first half of
each of the annual vacation with her father and remaining half she shall spent with her mother.
Such utilization of the vacation by each of the parents in taking care and custody of the minor
child would help the child in understanding the situation and things outside the world she is
presently living and finally will help in preparing for being shifted to a hostel in some excellent
Boarding School and develop a sense of belongingness with her father and mother both. While
imposing responsibility on the father for her future higher studies and other expenses including
marriage, Learned Court also held the Respondent mother, who is the custodial guardian, to
ensure that the child pays proper attention to her studies and that, she also prepares her to
be moved to a Boarding School besides inculcating thought to remove bias against her father.
Learned court held that the entire cost of her education in such Boarding School shall be borne
by the father and once the child gets into the Boarding School, then the mother shall have the
right to visit her daughter, as permitted by the school calendar, but at the cost of the petitioner.
The petitioner shall pay such cost which shall include the trevelling air fare and other expenses
in advance. This is how the Guardianship case was decided.
8. Both the father and the mother for their own reasons, laid challenge to the judgment of Learned
Family Court in the present appeals.
9. When the matter was taken up before a Coordinate Bench of this court on 17.11.2016, Learned
Court upon consideration of the facts of the case and also coming to know that the child was
not doing well in the school where she was presently studying, proposed that the child should
be admitted to Sacred Heart Convent School, Jamshedpur for the period of two years and upon
getting report from the school about the capabilities of the child, further schooling of the child
in the Boarding School of repute in India would be considered. The girl was admitted to the
Sacred Heart Convent School, Jamshedpur thereafter. On 28.11.2016 when the matter was taken
up, the father proposed to the court that looking to the welfare of the child, it would not be
appropriate to wait for two more years as the child is going to complete the age of ten years on
09.04.2017 and upon attaining the age of eleven years, she must be admitted in class-V in any
reputed Boarding Schools, preference of which was also made on his part. It was suggested
on behalf of the father that the education of the child at Sacred Heart School, Jamshedpur be
reduced to the period of one year, so that registration for admission of the child may be made in
one of the schools in December 2016 or in early January 2017 and she may be admitted in Class-
Vupon attaining the age of eleven years from the session 2018. Learned Division Bench found the
—| 542 |—
suggestion of the learned Senior Counsel, representing the father to be very fair, though learned
counsel representing the mother had some reservation. The court observed that welfare of the
child lies in her education in one of the best schools in India and the father is eager and ready to
bear the entire cost of the same. Welfare of the child demands that she should not be deprived
of the same. By the said order, the matter was kept pending for one year for watching the overall
development of the child in the meantime and to decide the future action upon getting report
from the Sacred Heart School, Jamshedpur. In the meantime, it was observed that father may get
the registration done for admission of the child at La Martiniere Girls School, Kolkata situated
in the State of West Bengal which is nearer to Jamshedpur than all other Boarding Schools
suggested by the father. This school shall also be convenient for the mother to visit her daughter
from Jamshedpur, as and when required. Other directions relating to the strict enforcement
of visitation rights of the father were also allowed. The matter was posted on the 1st working
Monday in the month of March 2018 as a first case, subject to part heard. On that date, both
parties were directed to be present in Court in person along with the child and also to bring on
record the educational report of the child from the Sacred Heart School, Jamshedpur.
10. The matter was taken up on 13.03.2018 before this Bench thereafter. On the request of the
learned counsel for the parties, in the light of the order dated 28.11.2016, appeals were posted for
02.04.2018 to enable the Court to have overview of overall development of the child also on the
basis of Educational Report given by Sacred Heart School, Jamshedpur. Upon considerationof
the submissions of Learned Senior Counsel representing the husband and learned counsel
representing the wife and the observation made in the order dated 28.11.2016, this Court on 2nd
April 2018 acceded to the prayer of learned Senior Counsel for the Appellant and permitted the
father to carry out the process of registration of the child at La Martiniere Girls School, Kolkata,
which was scheduled to be closed by 09.04.2018. This Court was informed that the process of
registration at La Martiniere Girls School, Kolkata was scheduled to be closed by 26.03.2018,
but on fervent request made to the School authorities, they had agreed to permit registration
of the child on or before 09.04.2018 when the school reopens. We also made it clear that the
registration for admission in the said school would, in no way, create equity in favour of the
appellant/ father and would obviously not influence the final decision to be taken by this Court.
In the meantime, the child would be allowed to continue in the Sacred Heart Convent School,
Jamshedpur. The Respondent wife was also asked to cooperate in the matter by taking the child
to the La Martiniere Girls School,Kolkata, if so required by the school authorities for registration
and admission at the expenses of the father. After going through the School Performance Report
of Sacred Heart School, Jamshedpur, we also directed the District Probation Officer to report
about the wellbeing of the child at the place where she is residing with her mother.
11. It was brought to our notice on the next date i.e. 18.04.2018, that La Martiniere Girls School,
Kolkata had not responded to the request for registration and admission as earlier agreed, after
passing of the order dated 02.04.2018. The mother had filed I.A. No. 3149 of 2018 on 09.04.2018
indicating that she had not received any request from the father for attending La Martiniere
School, Kolkata. Through supplementary affidavit filed by the father, it was stated that since
no response was received from La Martiniere Girls School, Kolkata by 09.04.2018, he had
approached other reputed Boarding Schools such as Good Shepherd International School, Ooty,
KIIT International School, Bhubaneswar and Loreto Convent Entally, Kolkata for registration
and admission of his daughter. However, the details thereof were not enclosed to the affidavit.
—| 543 |—
Learned counsel for the father fervently prayed for short time to produce the relevant details in
the light of the fact that the academic session 2018-19 may have started or would start in near
future in such schools and decision to admit her to the Boarding school had to be taken without
further loss of time. In this background, the matter was posted for 25.04.2018. The mother was
asked to bring the child so that, if necessary, the Court may interact with the child to arrive at
an opinion in this regard. It is in this factual background that we had the occasion to interact
with the girl child independently in the chambers and also with the mother and father separately
yesterday.
12. Learned counsel for the father has primarily conveyed the pious intention of the father to ensure
the future studies of his only daughter in a reputed boarding school anywhere in India, expenses
of which would entirely be borne by him. It is also sought to be impressed that the environment
where the child is presently residing with her mother is not ideal, rather not conducive for proper
upbringing of the child. He has also sought to refer to the cases lodged against the father and
his lawyer in connection with the incidences which were alleged to have happened during the
visitation period. He submits that the report of the police authorities enclosed to F.A. No. 68 of
2016 would clearly show that allegations were wholly unfounded and intended to deny visitation
rights to the father. He has also submitted that grooming of the child is not being done in proper
manner. Certain allegations have also been made about the mother, which, we do not propose to
mention in any detail in course of deciding the present issue. In substance, his submission is that
the paramount interest of welfare of the child would be best served in furtherance of the concept
of joint parenting by sending the child to a reputed boarding school.
13. Through the supplementary counter affidavit filed in F.A. No. 59 of 2016, the father stated that
after La Martiniere Girls School, Kolkata refused to respond to his request for registration
and admission of his daughter, he has been running to one or the other reputed schools in the
country with the only objective to ensure that admission in any of these schools may be accepted
before the academic session 2018-19 starts. He has approached Good Shephard International
School, Ooty where the girl has been allowed provisional registration in class V- (ICSE) for
academic session 2018-19. He has deposited the registration fee. Aptitude test and personal
interview is proposed to be completed on or before 10.05.2018. The academic session 2018-
19 would start from 21.07.2018. Letter issued by the Principal of the school dated 09.04.2018
and 20.04.2018 are enclosed as Annexure-C & E respectively. The prospectus of the school for
Class-V for the sessions 2018-19 show that about Rs. 10.90 lakhs would be the annual expense
towards fees, etc. It is stated by the father that if admission is permitted in the said school, the
girl would not suffer any loss on academic front. It is also pointed out that Good Shephard
International School, Ooty is ranked No. 2 in the category of Residential International School.
He has also approached the KIIT International School, Bhubaneshwar. It is stated that KIIT
International School is also a reputed international school and is ranked No. 8 in the September
edition of the magazine ‘Education World’. KIIT International School authorities have also been
kind enough to provisionally admit the daughter in class-V with admission no. 3128 for the
academic session 2018-19. They have requested him to come with his daughter at the earliest
for final interview as the session has already started from 22.03.2018. Letter dated 09.04.2018
is enclosed as Annexure-I. He has also deposited money towards provisional admission as per
money receipt dated 06.04.2018 (Annexure-J). The annual fee of the school would be about
—| 544 |—
Rs. 5.53 lakhs for the academic sessions 2018-19. The brochure of the school is enclosed as
Annexure-K and L.
14. It is sought to be impressed on behalf of the father that the aforesaid Boarding Schools have
the competence and expertise to nurture similar cases and support such children to blossom
as good human beings and be successful in life. Learned counsel for the father submits that it
would be in the best interest of child to allow her an environment which is neutral in such a
reputed Boarding School.
15. Learned counsel for the wife in both the appeals has made the following submissions.
It is stated on instruction, that it is the feeling of the wife that the entire exercise on the part of the
father is an attempt to wean away the child from the mother and cause emotional detachment
from her with whom she has spent eleven years of life since her birth. The girl is in perfect health
and doing well in the reputed Sacred Heart Convent School, Jamshedpur, which is one of the
best schools in the city. She has developed friends in the school and the mother is taking care of
her interest. She resides with her maternal grandparents who also devote lot of time to her. She
is undergoing a phase of development of a girl reaching puberty where it would be in the interest
of the child to remain in close proximity of the mother. The mother is equally conscious of her
future career and education and would like her to go to a good Educational Institution after she
completes her Class -XII and attains the age of eighteen years. It is not that students who study
in day schools, do not fare well in life. Learned counsel has also countered the allegations related
to the person of the mother. At the end, both the learned counsel representing the parents have
left this difficult choice to the Court.
16. We understand the responsibilities under our Parens Patriae Jurisdiction in such a matter.
We understand the sensitivity of the matter and difficult choice that is to be made whenever
a child especially a girl child at such an age is to be sent to a Boarding School. At this stage,
in the chronology of facts, it is important to refer to the two reports, one by the Sacred Heart
Convent School, Jamshedpur dated 21.03.2018 and the other by the District Probation Officer,
Jamshedpur, enclosed to the record. This is what the Principal of the Sacred Heart Convent
School, Jamshedpur had to say about the performance of the child and her well being:
“Sub:- School Performance Report of AditiBishakha Das.
Sir,
With reference to CASE No.-Cont.(Cr.)-08/2017 dated 4600/17.03.2018,
AditiBishakaha Das, who is presently studying is Std V, having Admission No.16510,
is trying her best to come up to the average level.
In the year 2017 when Aditi was admitted in Sacred Heard Convent School she was
below average in her studies. Whenever her mother was called by the class teacher her
health was not permitting to visit the class teacher and the co-ordinator of the Primary
School. It seems home atmosphere is not contusive for the child to perform well in her
studies.
The child is in the school only for six hours and the rest of the time the child is at
home. Aditi is an intelligent girl. Parents co-operation is very important. It is up to the
parents to help the child and to co-operate with the school authorities. Environment is
—| 545 |—
very important for the child’s performance and to do well in her studies. It is up to the
parents to decide her further. Residential school might help her to do well in her future
studies.
Sister Mridula Ac.
Principal,
Sacred Heart Convent School, Jamshedpur”
The report sent by the District Probation Officer, East Singhbhum, Jamshedpur through letter
dated 10.04.2018 is also extracted hereunder:
“Report Related to the “Well Being” of the girl child/ AditiBishakha Das D/o Mr.
Somnath Das and Ms. SheoliHati.
AditiBishakha Das (11 Years old) is the daughter of Mr. Somnath Das and Ms.
SheoliHati. She (Aditi) lives with his mother Ms. SheoliHatiAt ‘VijayaHaritage’ (flate
no. 1711), Kamet, P.O.-Kadma, P.S.-Kadma, Dist. East Singhbhum, Jamshedpur,
Jharkhand. Her maternal Grandfather and mother are also living with this girl child
AditiBishakha Das.
Presently,
1. Physical Condition:-Aditi is an 11 years old fair complexioned girl having good
health and corresponding heights. She is vocal and appears to be conscious.
Before oct.2016 she had Chalazion disease related with eyes but after successful
operation of this disease in oct.2016 now she is well.
2. Mental condition:-Aditi commands robust mental health and her behavioural
condition is satisfactory. But she looks tensed and worried from her parental
cases.
3. Interest and attitude:-She (Aditi) is said to be sincere, obedient, disciplined and
diligent. She is sincere to her study as well as other extracurricular activities. She
shares active participation in house hold activities too.
4. Care and protection:-In this investigation the investigator got the care and
protection of Aditi is satisfactory.
5. Educational condition:- Now Aditi is in Std.5 in Sacred Heart school in
Jamshedpur. Acceding to her School progress report card, she is an average student
but talking with Aditi, this investigator founded that she is an intelligent girl. In
the better educational atmosphere and without any type of stress or tension she
will do better for her future.
6. Atmosphere of this residence:- where Aditi is residing in that place, the living
atmosphere of the residence is satisfactory. People around the locality are from
medium class. Anything having negative spell wasn’t found around. But the
educational atmosphere should be better for her study because the investigator
founded in this investigation that, with tension and stress regarding parental
cases, her study is being affected. She is not having concentration in her study.”
—| 546 |—
17. The District Probation Officer, upon appraisal of her performance and well-being, indicated that
tension and stress regarding parental cases is affecting her studies. She is not having concentration
in her study. But the educational atmosphere should be better for her. It also indicates that she
is having good health and corresponding height; she appears to be conscious; she has robust
mental health and her behavioural condition is satisfactory, but she looks tensed and worried
because of her parental case. As per the report of the school also, environment is very important
for the child’s performance. Residential school might help her to do well in her future studies.
18. On our interaction with the girl independently, we also found her to be vibrant and an intelligent
child having good health and open to interaction. She is also interested in sports and has come
out successful in sprinting. However, it also appear to us that she wants to continue in the Sacred
Heart Convent School, Jamshedpur in the company of her mother and is reluctant to go to a
Boarding School. Apparently, she has never been away from her mother since her birth. This
state of mind is true and same with any child who is to be sent to the Boarding School. There
would rarely be a child who would volunteer to go to the Boarding School at this age.
During our interaction with the mother, we naturally found her to be emotionally bonded with
the child being a mother with whom the child has grown up since birth. She had reservations
about the intention of the father who, according to her, is trying to wean the child away from her
custody to sever the emotional ties between the mother and the child. Our interaction with the
father separately gave a picture that though, there are various unpleasant memories in his mind
with regard to his relationship with his ex-wife, mother of the child and subsequent accusation
from her, but he is only concerned with the better future of his only child. He is financially well
placed. He had surrendered the claim for physical custody being satisfied with the visitation
rights only, in the concept of joint parenting to ensure that the child gets love and affection of
custodial parent i.e. mother and also has regular interaction with the father. He stated that he
has always been ready to bear the entire expenses of her education at school and also higher
education, only with intent to see his daughter blossom into a well-bred person. Father appeared
to be ready to forsake even some of the visitation rights, if the court so considers proper, in the
larger interest of the child.
This entire background of the facts and circumstances were necessary to be adverted to, to find
an answer to the question at hand as the issue is not a legal issue alone, but a humanitarian one
involving many facets of human behaviour and sensitivity. The approach of the court is to reach
to a decision on consideration of all the relevant factors in an objective manner as to what is
right and in the paramount interest of the welfare of the child. 19. In a case of this nature, welfare
of the minor child is the first and paramount consideration and the jurisdiction exercised by
the Court vest on its own inherent equality powers where the Court acts in “Parens Patriae
Jurisdiction. The minor child ideally needs the company of both the parents, however strained
relationship between the parents has the effect of stress and tension on the upbringing of the
child. In the the case of Gaurav Nagpal Vrs. Sumedha Nagpal reported in (2009) 1 SCC 42, the
Apex Court has explained the expression “Welfare” which occurs in Section 13 of the Hindu
Minorities and Guardianship Act, 1956 and observed that it is to be construed literally and must
be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the
Court as well as its physical-being. Though the provisions of the special statutes which govern
—| 547 |—
the rights of the parents or guardians may be taken into consideration, there is nothing which
can stand in the way of the Court exercising its Parens Patriae Jurisdiction arising in such cases.
The Apex Court has also relied upon the case of Rosy Jacob Vrs Jacob A. Chakramakkal reported
in (1973) 1 SCC 840. In the aforesaid case, the Apex Court held that the object and purpose of
the Guardianship and Wards Act of 1890 is not merely physical custody of the minor but due
protection of the right of his guardian , to properly look after the ward’s health, maintenance
and education. The power and duty of the Court under the Act is the welfare of the minor. It
has further observed that the children are not mere chattels; nor are they mere playthings for
their parents. Absolute right of parents over the destinies and the lives of their children, has, in
the modern changed social conditions, yielded to the considerations of their welfare as human
beings so that they may grow up in a normal balanced manner to be useful members of the
society. The guardian court in case of a dispute ‘between the mother and the father, is expected
to strike a just and proper balance between the requirements of welfare of the minor children
and the rights of their respective parents over them.
In a recent judgment rendered in the case of Vivek Singh Vrs. Romani Singh reported in (2017)
3 SCC 231), the Apex Court had the occasion to deal with the dilemma of the Court in such
cases. The Apex Court also took note of the law on the subject. The Court held that there are
twin objectives to be served in furtherance of the principles that the welfare of the minor child is
the first and paramount consideration in such cases. Para 12, 13 and 15 containing the opinion
of the Court in the aforesaid judgment is quoted hereunder:-
“12. In the first instance, it is to ensure that the child grows and develops in the best
environment. The best interest of the child has been placed at the vanguard of family/
custody disputes according the optimal growth and development of the child primacy
over other considerations. The child is often left to grapple with the breakdown of an
adult institution. While the parents aim to ensure that the child is least affected by the
outcome, the inevitability of the uncertainty that follows regarding the child’s growth
lingers on till the new routine sinks in. The effect of separation of spouses, on children,
psychologically, emotionally and even to some extent physically, spans from negligible
to serious, which could be insignificant to noticeably critical. It could also have effects
that are more immediate and transitory to long lasting thereby having a significantly
negative repercussion in the advancement of the child. While these effects do not
apply to every child of a separated or divorced couple, nor has any child experienced
all these effects, the deleterious risks of maladjustment remains the objective of the
parents to evade and the court’s intent to circumvent. This right of the child is also
based on individual dignity. 13. Secondjustification behind the “welfare” principle is
the public interest that stands served with the optimal growth of the children. It is
well recognised that children are the supreme asset of the nation. Rightful place of
the child in the sizeable fabric has been recognised in many international covenants,
which are adopted in this country as well. Child-centric human rights jurisprudence
that has been evolved over a period of time is founded on the principle that public
good demands proper growth of the child, who are the future of the nation. It has been
emphasised by this Court also, time and again, following observations in Bandhua
Mukti Morcha v. Union of India7: (SCC p. 553, para 4)
—| 548 |—
“4. The child of today cannot develop to be a responsible and productive member of
tomorrow’s society unless an environment which is conducive to his social and physical
health is assured to him. Every nation, developed or developing, links its future with
the status of the child. Childhood holds the potential and also sets the limit to the future
development of the society. Children are the greatest gift to humanity. Mankind has the
best hold of itself. The parents themselves live for them. They embody the joy of life in
them and in the innocence relieving the fatigue and drudgery in their struggle of daily
life. Parents regain peace and happiness in the company of the children. The children
signify eternal optimism in the human being and always provide the potential for
human development. If the children are better equipped with a broader human output,
the society will feel happy with them. Neglecting the children means loss to the society as
a whole. If children are deprived of their childhood — socially, economically, physically
and mentally — the nation gets deprived of the potential human resources for social
progress, economic empowerment and peace and order, the social stability and good
citizenry. The Founding Fathers of the Constitution, therefore, have emphasised the
importance of the role of the child and the need of its best development.” 15. It hardly
needs to be emphasised that a proper education encompassing skill development,
recreation and cultural activities has a positive impact on the child. The children are
the most important human resources whose development has a direct impact on the
development of the nation, for the child of today with suitable health, sound education
and constructive environment is the productive key member of the society. The present
of the child links to the future of the nation, and while the children are the treasures of
their parents, they are the assets who will be responsible for governing the nation. The
tools of education, environment, skill and health shape the child thereby moulding the
nation with the child equipped to play his part in the different spheres aiding the public
and contributing to economic progression. The growth and advancement of the child
with the personal interest is accompanied by a significant public interest, which arises
because of the crucial role they play in nation building.”
20. From the aforesaid pronouncement of the Hon’ble Apex Court, it is thus clear that welfare of the
minor child is the first and paramount consideration for the Court exercising the ‘ Parens Patriae’
jurisdiction. Howver as observed in the case of Vivek Singh (Supra), at times the prevailing
circumstances are so puzzling that it becomes difficult to weigh the conflicting parameters and
decide on which side the balance tilts. In our considered opinion, the girl is at the right age where
such a decision whether to send her to the Boarding School is to be taken. The whole object of
sending the child to the Boarding School is to provide her a neutral environment conducive
for her upbringing and good education. Father in this case is in a good financial condition to
bear the expenses of rearing up the child in any reputed school in the country. Learned Family
Court, while dealing with the subject at length, also favoured that after the child, who was nine
years of age at the relevant point of time, studies for two years in a day school at Jamshedpur,
she should be sent to a reputed Boarding School considering her better future and education.
She was to be groomed by her mother to be sent to the Boarding School finally. The Coordinate
Bench of this Court about more than a year back had, upon consideration of this very issue,
arrived at an opinion that she could be sent to a reputed Boarding School such as La Martiniere
Girls School, Kolkata which is situated near Jamshedpur after completing one year in Sacred
—| 549 |—
Heart Convent School, Jamshedpur as admission to Class-V upon attaining the age of eleven
years from the session starting from 2018 would be the right age for the child to be sent to the
Boarding school. The reluctance of the child at this stage, who has always been in the custody of
her mother for the last eleven years since her birth, is understandable, so is the reluctance on the
part of the mother who also does not want to leave the child for all reasons which a doting and
loving mother would explain. But we have to be guided by objective considerations in order to
see that the child gets a neutral environment to grow up with the best of education affordable in
the country where the effect of these inter se litigations and tense atmosphere in the family do
not leave an everlasting impact on her psyche at such an impressionable age. The Principal of
Sacred Heart Convent School, Jamshedpur and District Probation Officer, Jamshedpur more or
less also hold the same opinion.
21. Considered thus, in the totality of the facts and circumstances, we are inclined to accede
to the request of the father to allow the child to be admitted to a reputed school i.e. Good
Shepherd International School, Ooty in Class-V which is affiliated to ICSE. The session 2018-
19 commences from 21.07.2018. In that way, the girl would not lose any valuable period of the
session as it is yet to commence. As informed by the father, aptitude test and personal interview
is to be held before 10.05.2018. Good Shepherd International School, Ooty as its brochure
shows was established in 1977 and has the facilities of best teaching and learning practices,
services and opportunities provided by a team of committed mentors and facilitators. It has a
knowledge village, a reputed Finishing Schools for girls along with 9-hole golf course, hospital,
bank, vegetable farms, dairy and poultry. It is spread over 150 acres of verdant land in Nilgiris
in Tamil Nadu, India. Avowedly, it has a state of art infrastructure for academic and boarding
talent to deliver world class education. There are houses for the students from Class VI to XII.
The Institution is a Member of the Council of International Schools, a benchmark of world class
school education. It has a distinguished faculty who are exposed to global developments and
reside within the Global Village to devote complete time to make the learning experience for the
students an enriching one.
22. In such environment, we are hopeful that the gild child would get the best of the education and
upbringing. The mother should therefore cooperatein the interview and admission process and
appear on the scheduled date, as per the request of the school authorities to be conveyed through
the father with prior intimation. On admission being granted by the school, transfer certificate
from the erstwhile school would also be produced on the part of the mother within the time
stipulated by the Residential school The father, as promised, would bear all the expenses towards
their travelling by flight, stay and other incidental expenses. Upon admission being granted, the
mother would cooperate in putting the child in the school when session starts from 21.07.2018.
The mother would have the freedom to visit the school and meet the child, not too often as it
may counterproductive to her adjustment in new environment, but at least once in two months
as per the calendar and terms of the school, preferably on weekend holidays . The entire cost
of her visits on such occasion by air including her stay and other incidental expenses would be
borne by the father to be paid in advance on prior intimation to the father. The father would
also have the freedom to visit the school and meet the child in similar fashion, once in two
months preferably on weekend holidays as per the calendar and terms of the school. As far as
practicable, the father would visit the school to meet the child in the alternate month when the
mother has visited the school.
—| 550 |—
23. We would like to be apprised about the progress made in this regard after the child is admitted
to the school in the month of July 2018 on completion of admission formalities as noted above.
Matter should come up in the first week of August 2018 for this purpose. Both parties, however,
shall file a compliance affidavit in the matter within a week after completing the formalities for
her admission in Good Shepherd International School, Ooty by 09.05.2018.
qqq
—| 551 |—
DR. PANKAJ KUMAR VERSUS PRERNA

Dr. Pankaj Kumar ...Appellant
Versus
Prerna ...Respondent
Decided on 16 December, 2020
Through : Video Conferencing
Advocate Appeared :
For the Appellant : Mr. Indrajit Sinha, Advocate
For the Respondent: M/s. Prashant Pallav, Devendra Choudhary, Advocates(F.A. 59/2016)
Mr. Kaushik Sarkhel, Advocate
1. Heard Mr. Indrajit Sinha, learned counsel for the appellant and Mr. Kaushik Sarkhel, learned
counsel representing the Respondent on the question of limitation involved in the present
appeal.
2. Appellant has preferred I.A. No. 539/2020 under section 5 of Limitation Act for condonation of
delay of 30 days in preferring the instant Memo of Appeal.
3. In order to appreciate the legal issues involved herein, some relevant facts and dates are being
briefly indicated hereunder.
Appellant instituted Matrimonial Title Suit No. 300/2011 before the learned Family Court,
Ranchi under section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage with
the Respondent on the ground of cruelty. By an order dated 14.03.2012, learned Family Court
allowed interim maintenance and litigation cost to the Respondent. Since the appellant failed to
comply with the order dated 14.03.2012, the suit was dismissed on 05.08.2015 on the ground that
the petitioner had not paid ad interim maintenance of Rs. 7,000/- per month and Rs. 10,000/-
lump sum as litigation cost to the Respondent. As such, he is not entitled to get relief on his own
fault. The Respondent facing hardship was not able to contest the case. The case was accordingly
dropped.
4. Being aggrieved, appellant preferred writ petition WPC No. 4989/2015 under Article 227
of Constitution of India instituted on 12.10.2015. By order dated 03.12.2018, petitioner was
allowed to convert the writ petition into an appeal under section 19 of Family Courts’ Act, 1984.
The present appeal was instituted on 04.02.2019 thereafter. Office pointed out a delay of 30 days
in preferring the instant Memo of Appeal, for condonation of which, the instant I.A has been
preferred.
—| 552 |—
5. Two important questions arose on the point of condonation of delay which have been indicated
in the previous order dated 09.12.2020 and are as follows.
(i) What is the manner of computation of the period of limitation when a petition under
Article 227 of the Constitution of India or any other petition/application/appeal is
permitted by an order of this Court to be converted into an appeal under Section 19 of
the Family Courts Act, 1984?
(ii) What is the period of limitation for filing an appeal under Section 19 of the Family
Courts Act from a judgment and order passed by the Family Court in a suit instituted
under the provisions of Hindu Marriage Act, 1955 i.e., 30 days in terms of Section
19(3) of the Act of 1984 or 90 days in terms of amended Section 28 of Hindu Marriage
Act, 1955 by the Marriage Laws (Amendment Act), 2003?
6. Learned counsel for the appellant has addressed the Court on both issues. We proceed to address
the legal issues involved, hereinafter. Learned counsel for the appellant has placed reliance upon
the decision of the Apex Court in the case of Nawab Shaqafath Ali Khan & others versus Nawab
Imdad Jah Bahadur & others, (2009) 5 SCC 162 on the proposition that a petition under Article
226 and / or 227 of the Constitution of India or a revision under section 115 of Code of Civil
Procedure can be permitted to be converted into an appeal which lies before the High Court.
However, the Court must also be satisfied that the initial petition / application was not filed mala
fide. Para-48 of the Report is quoted hereunder for better appreciation:
“48. If the High Court had the jurisdiction to entertain either an appeal or a revision
application or a writ petition under Articles 226 and 227 of the Constitution of India,
in a given case it, subject to fulfillment of other conditions, could even convert a revision
application or a writ petition into an appeal or vice versa in exercise of its inherent
power. Indisputably, however, for the said purpose, an appropriate case for exercise of
such jurisdiction must be made out.”
Reliance has further been placed on the decision of Bombay High Court in the case of Vinod
Kumar versus Kailash Kumar reported in [2011 (1) Mh. L.J.] 269 on the identical question
involved therein. There was a delay of 46 days up to the date of filing of the writ petition or 384
days up to the date of conversion of writ petition into an appeal against the order impugned.
Learned Single Judge of Bombay High Court considered the issue and held as under:
18. However, when the Court permits the petitioner to convert writ petition into an appeal,
it is only upon reaching the satisfaction that the prosecution of writ petition was in good
faith and the applicant is entitled to get the benefit of exclusion of such period. Once
the conversion is permitted by the Court, the same relates back to the date of filing of
writ petition. Such conversion is permissible, when the proceedings are prosecuted in
the same Court, but in different jurisdiction. It is not necessary either to file separate
application for condonation of delay or to explain the delay from the date of filing writ
petition till the date of its conversion. The reason is obvious that proceedings of writ
petition are before the Court. In such a situation, the period for condonation of delay
needs to be counted up to the date of filing of writ petition and not up to the date of
the order of conversion of writ petition into an appeal. In the present case, this Court
has permitted conversion of writ petition into an appeal against order on 10-7-2009,
—| 553 |—
and hence the delay was required to be explained only up to the stage of filing of writ
petition on 22-9-2008. In view of this, the contention of Shri Sadavarte that the delay
was required to be explained till the order of conversion, i.e. 10-7-2009, is rejected.”
7. An important question incidental to this issue is, whether the principles contained in section 14
of the Limitation Act apply in such a situation for condonation of delay, though this provision
is not applicable to an appeal. In this regard, it is pertinent to refer to the opinion of the Hon’ble
Supreme Court in the case of Consolidated Engineering Enterprises versus Principal Secretary,
Irrigation Department & others. [(2008) 7 SCC 169] which lays down the conditions upon
fulfillment of which, the benefit of section 14 of the Limitation Act, 1963 can be extended. Para-
21 of the Report is reproduced hereunder:
“21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide
in a court without jurisdiction. On analysis of the said section, it becomes evident that
the following conditions must be satisfied before Section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by
the same party;
(2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause
of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same matter
in issue and;
(5) Both the proceedings are in a court.”
In the case of Mohinder Singh (Dead) through Legal Representatives versus Paramjit Singh &
others, [(2018) 5 SCC 698], the Apex Court restated the purpose of section 14 of the Limitation
Act, 1963 and observed that the provision is intended to provide relief against bar of limitation
in cases where remedy is mistakenly taken recourse to or selection of a wrong forum. It was also
reiterated that section 14 of the Act is of wide ambit and must receive liberal interpretation. It
was further held that the expanse of section 14 of the Act is not limited to mere jurisdictional
issue but also other issue of like nature. Learned counsel for the appellant has also placed reliance
upon the decision of the Apex Court in the case of M.P. Steel Corporation versus Commissioner
of Central Excise [(2015) 7 SCC 58] and in the case of J. Kumaradasan Nair and another versus.
Iric Sohan and others [(2009) 12 SCC 175] to advance the proposition that benefit of exclusion
in terms of section 14 will apply to a quasi-judicial appeal under section 128 of the Customs Act
and to revision application filed before the High Court. Reliance has also been placed upon a
decision of the Apex Court in the case of India Electric Works Ltd versus James Mantosh [AIR
1971 SC 2313], wherein it was observed that the expression “or other cause of a like nature”
was to be construed liberally. Learned counsel for the appellant has submitted that exclusion
of this period from the date of filing of the initial petition till the date of its conversion is also
supported by the legal maxim actus curiae neminem gravabit which means that the act of the
Court shall prejudice no man. It is further submitted that pendency of an application or appeal
before a Court of Law and the time consumed in disposal of such a petition or application is
not entirely in the hands of a litigating party. In this regard, he has further placed reliance upon
—| 554 |—
the Constitution Bench decision of the Supreme Court in the case of Sarah Mathew v. Institute
of Cardio Vascular Diseases by its Director Dr K.M. Cherian and others [(2014) 2 SCC 62],
wherein the Apex Court concluded that for the purpose of computing the period of limitation
under section 468 of the Cr. P.C, the relevant date is the date of filing of the complaint or the date
of institution of prosecution and not the date on which the Magistrate takes cognizance. Based
on these submissions, learned counsel for the appellant has prayed that the period of limitation
should be considered only up to the date of filing of the original petition and the time consumed
thereafter i.e. the period during which original petition was pending before this Court till its
conversion, should be excluded for the purpose of computation of the period of limitation on
principles akin to section 14 of the Limitation Act, 1963.
8. Learned counsel for the Respondent has supported the view advanced by the learned counsel for
the appellant, based on these decisions and legal propositions laid down thereunder.
9. On consideration of the salient principles laid down in this regard, we are inclined to agree with
the proposition that in a case of such nature, instituted under Article 226 or 227 of Constitution
of India, if permission is granted by the Court to convert the petition into an appeal under
section 19 of the Family Courts’ Act, 1984, the period of limitation must be computed only up
to the date of filing of the original petition and time consumed thereafter i.e. during pendency of
the petition before this Court, till its conversion, should be excluded for the following reasons.
(i) When the Court permits the petitioner to convert a writ petition into an appeal, it is only
upon reaching the satisfaction that prosecution of the writ petition is in good faith;
(ii) Such conversion is permissible when the proceedings are prosecuted in the same court but
in different jurisdiction;
(iii) Borrowing the principles enshrined under section 14 of the Limitation Act, though the
same does not apply to an appeal, if the conditions prescribed under section 14 of the
Limitation Act, 1963 appear to be satisfied, in the sense that the proceedings have been
bonafide prosecuted and with due diligence and the failure of the prior proceeding was
due to defect of jurisdiction or other cause of like nature, the benefit of exclusion of time
after filing of the initial petition till its conversion should be extended for the purposes of
computation of the period of limitation in such a matter.
10. Learned counsel for the appellant is right that such an approach also derives from the legal
maxim actus curiae neminem gravabit which means that the act of the court shall prejudice
no man. It is true that the time consumed in taking up the matter and passing an order of
conversion is not entirely in the hands of a litigating party. Taking all these factors into account,
and the principles of law referred to hereinabove, as laid down by the decisions of Hon’ble
Supreme Court and High courts, we answer the first legal question posed at the outset in the
affirmative. In a case where a petition under Article 227 of the Constitution of India or any other
petition / application is permitted by an order of this Court to be converted into an appeal under
section 19 of the Family Courts’ Act, the computation of the period of limitation should be till
the date of initial filing of the petition excluding the time spent after filing of the petition, till its
conversion to an appeal under section 19 of the Family Courts’ Act, 1984.
11. We now proceed to answer the second question, as to what should be the period of limitation for
filing an appeal under section 19 of the Family Courts’ Act from a judgment and order passed
—| 555 |—
by the Family Court in a suit instituted under the provisions of Hindu Marriage Act, 1955 i.e. 30
days in terms of Section 19(3) of the Act of 1984 or 90 days in terms of amended Section 28 of
the Hindu Marriage Act, 1955, as per the Marriage Laws (Amendment Act), 2003?
12. Learned counsel for the appellant has, in support of his proposition that in such matters, the
period of limitation should be 90 days, as per the amended section 28 of the Hindu Marriage
Act, 1955, made the following submissions:
It is submitted that the Family Courts’ Act, 1984 was enacted in public interest for establishment
of Family Courts for the speedy settlement of family disputes and it came into force on 14.09.1984.
Section 7(1)(a) of the Family Courts’ Act confers the entire jurisdiction hitherto exercised by
any District Court or any Subordinate Civil Court in suits or proceedings relating to matters
mentioned in clauses (a) to (g) of the Explanation. Section 7(2)(a) confers jurisdiction upon the
Family Court hitherto exercisable by a First-Class Magistrate under Chapter IX (relating to order
of maintenance of wife, children and parents) of the Criminal Procedure Code. It confers limited
jurisdiction upon the Family Court relating to those matters only as are covered under Chapter
IX of Criminal Procedure Code. However, section 7(2)(b) of the Act relates to conferment of any
additional jurisdiction on the Family Courts by other enactments. This provision is an enabling
provision by which legislature can enlarge the Court’s jurisdiction by conferring additional
jurisdiction [See: Rana Nahid alias Reshma alias Sana and Another v. Sahidul Haq Chisti, (2020
SCC OnLine SC 522)].
Section 19 under Chapter V of the Family Courts’ Act provides for appeal and revisions. Under
section 19(3) of the Family Courts’ Act, an appeal against a judgment or order not being an
interlocutory order, passed by the Family Court must be filed within a period of 30 days from
the date of judgment or order. Section 20 gives overriding effect to the Family Courts’ Act.
Learned counsel for the appellant Mr. Indrajit Sinha has then referred to the provisions of Hindu
Marriage Act, 1955, which according to him, is an amendment to codify the law relating to
marriages among Hindus. It is a special Act setting out the provisions relating to marriage,
restitution of conjugal rights and judicial separation, as also nullity of marriage and divorce.
Chapter V containing (section 19 to 28) deals with jurisdiction and procedure of courts in
petitions for restitution of conjugal rights, judicial separation or divorce and appeals. [See: Jagraj
Singh Versus Birpal Kaur, (AIR 2007 SC 2083, Para-12)]. Section 28 of the Act of 1955 provides
for appeals from decrees and orders. Prior to Marriage Laws (Amendment) Act, 2003, section
28(4) provided a period of 30 days only for filing an appeal. The Apex Court taking note of
inadequacy of time in preferring an appeal of such nature in the case of Savitri Pandey Versus
Prem Chandra Pandey [(2002) 2 SCC 73], observed at Para-19, as under.
“19. 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
—| 556 |—
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 and Justice for such action as it may deem fit to take in this behalf.
13. Parliament thereafter enacted the Marriage Law (Amendment) Act, 2003 to amend certain
provisions in the Special Marriage Act, 1954 and Hindu Marriage Act, 1955. The statement
of objects and reasons recorded therein indicates that it proposed to amend Section 39 of
the Special Marriage Act, 1954 and Section 28 of the Hindu Marriage Act, 1955 to provide
respectively that the parties to a matrimonial suit can prefer appeal within a period of 90 days
instead of 30 days. The amendment was based upon the observations made by the Supreme
Court in a judgment delivered i.e in the case of Savitri Pandey (supra). These amendments were
made so that unscrupulous litigant spouses are not facilitated to frustrate the marriages, taking
advantage of the inadequate period provided in law. Learned counsel for the appellant submits
that the Parliament being conscious of the period of limitation of 30 days prescribed under
section 19(3) of the Family Courts’ Act, however consciously chose to enlarge the period of
limitation under section 28 of the Hindu Marriage Act, 1955 to 90 days and similar amendment
was also made in the Special Marriage Act, 1954 which is a secular law applicable to all religions.
14. Learned counsel for the appellant has also referred to the provisions of section 55 of the Divorce
Act, 1869. He submitted that though, no period of limitation has been provided to prefer an
appeal, but under Article 116 of the Limitation Act, 1963, a period of 90 days for preferring an
appeal from decrees and orders of the Court made in exercise of its original civil jurisdiction
to the High Court has been provided, which applies for an appeal under the Divorce Act, 1869.
Under section 47 of the Parsi Marriage and Divorce Act, 1936 also, a period of limitation of
three months has been provided to prefer an appeal to the High Court from the decision of any
court established under the said Act. Learned counsel for the appellant has also fairly placed the
decision of a Coordinate Bench of this Court in the case of Vinod Kumar Mishra versus Mamta
Devi,[(2008) 4 JLJR 277 (HC)], which though took note of the discrepancy and inconsistency
between the two provisions i.e. Section 28(4) of the Hindu Marriage Act, 1955 and Section 19(3)
of the Family Courts’ Act, 1984, but did not lay down a law as to what should be the period of
limitation in preferring such an appeal. Instead, it directed a copy of the judgment to be sent to
the Ministry of Law and Justice for such action as it may deem fit in the matter of prescribing
limitation for preferring an appeal of such nature. Learned counsel for the appellant submits that
since this issue was left unanswered, in the face of an inconsistency between the two provisions
of the law applicable to the remedy of appeal against an order of a Family Court and under the
Hindu Marriage Act, the question is res-integra.
15. Learned counsel for the appellant has placed copious reliance upon the Full Bench decision
of Bombay High Court in the case of Shivram Dodanna v. Sharmila Shivram Shetty [2017 (1)
Mh.L.J. 281], wherein a similar question was posed for answer, 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
—| 557 |—
period of limitation provided under sub-section (4) of section 28 of the Hindu Marriage Act,
1955 will apply to such Appeal?”
16. Learned counsel for the appellant submits that the judgment of the Full Bench of High Court of
Bombay has been followed by a Division Bench of the High Court of Judicature at Allahabad in
the case of Smt. Gunjan v. Praveen vide order dated 08.02.2017 passed in First Appeal Defective
No. 374 of 2016 and also by High Court of Rajasthan in the case of Kuldeep Yadav versus Anita
Yadav [2019 SCC On-Line Raj 4016]. He submits that the High Court of Delhi has also followed
the decision in the cases of R.R.D. v. R.S. [2019 SCC On-Line Del 7446] and DC v. BC [2019
SCC On-Line Del 7032].
17. Learned counsel for the appellant has further submitted that while Hindu Marriage Act is a
special Act and the substantive law governing the field, the Act of 1984 providing forum of appeal
is procedural in nature. Therefore, the period of limitation as provided under the substantive law
for filing appeal, should prevail upon the limitation prescribed under the procedural law. It is
further submitted that amendment to section 28 (4) of the Hindu Marriage Act was subsequent
to enactment of the Family Courts’ Act, 1984 and therefore, the same should prevail over the
provisions of limitation prescribed under section 19(3) of the Act of 1984. According to him, the
opinion of the Hon’ble Full Bench of Bombay High Court is the correct view which has decided
the issue authoritatively and followed by other courts.
18. Learned counsel for the appellant has, in support of the proposition that a special law will prevail
over the general law, placed reliance on the decision of the Apex Court rendered in the case of
Pharmacy Council of India Versus Dr. S.K.Toshniwal Education Trust, [2020 SCC Online SC
296], wherein the Hon’ble Supreme Court was called upon to resolve the conflict between two
Parliamentary Statutes i.e. the Pharmacy Act, 1948 and the All India Council For Technical
Education Act, 1987. It was held that the Pharmacy Act, 1947 being a special legislation will
prevail over the provisions of the AICTE Act, 1987. Para-26 to 31 of the Report has been placed
in support of the proposition.
Learned counsel further submits that the same reason which propelled the Hon’ble Supreme
Court in the case of Savitri Pandey (supra) should provide the rationale for answer to this legal
conundrum. If limitation period of 30 days as prescribed under section 19(3) of the Family
Courts’ Act, 1984 is adhered to, it would be completely inadequate for preferring an appeal for
the aggrieved parties considering the geographical conditions, financial position of the parties
and time required for filing a regular appeal. The purpose behind enlargement of limitation
period under section 28(4) of Hindu Marriage Act by the Amendment Act, 2003, Marriage
Laws (Amendment) Act, 2003 would be defeated. This Court should therefore not shirk from
laying down the law in this regard. He submits that in those circumstances, it is the duty of the
Court to resolve the impasse by applying the principles of interpretation, one of them being
harmonious construction. In this regard, reliance has been placed in the case of Gujarat Urja
Vikas Nigam Ltd. versus. Essar Power Ltd, [(2008) 4 SCC 755]; Talchar Municipality Versus
Talchar Regulated Market Committee & another, [(2004) 6 SCC 178]; Iridium India telecom
Ltd. Versus Motorola Inc, [(2005) 2 SCC 145] and also a decision of the House of Lords in the
case of Eastbourne Corporation versus Fortes Ltd., [(1959) 2 All E R 102], at page 107.
—| 558 |—
19. Learned counsel for the Respondent has supported the legal proposition advanced on this issue
as well by the learned counsel for the appellant.
20. We have given considerable thought to this lingering issue being faced before this Court on
account of different periods of limitation prescribed i.e. 90 days under section 28 of the Hindu
Marriage Act, as amended by the Marriage Laws (Amendment) Act, 2003 and 30 days under
section 19(3) of the Act of 1984. It is true that this issue had cropped up before the Coordinate
Bench of this Court in the case of Vinod Kumar Mishra (Supra). However, the learned Division
Bench chose to refer the matter to the Legislature to make appropriate amendments in the law.
The issue was left unanswered. The legal issue is still left open for decision. It has been said long
time ago that a case is only an authority for what it actually decides and not what logically follows
from it. In this regard, we may profitably rely upon the opinion of the Court of Appeals rendered
in the case of QUINN Versus LEATHEM [1901] AC 495] followed in the case of Ambica Quarry
Works Versus State of Gujarat and others [(1987) 1 SCC 213]. Para-18 is quoted hereunder:
“18. The aforesaid observations have been set out in detail in order to understand the true
ratio of the said decision in the background of the facts of that case. It is true that this
Court held that if the permission had been granted before the coming into operation of
the 1980 Act and the forest land has been broken up or cleared, clause (ii) of Section
2 of 1980 Act would not apply in such a case. But that decision was rendered in the
background of the facts of that case. The ratio of any decision must be understood in
the background of the facts of that case. It has been said long time ago that a case is only
an authority for what it actually decides, and not what logically follows from it. (See
Lord Halsbury in Quinn v. Leathem). But in view of the mandate of Article 141 that
the ratio of the decision of this Court is a law of the land, Shri Gobind Das submitted
that the ratio of a decision must be found out from finding out if the converse was not
correct. But this Court, however, was cautious in expressing the reasons for the said
decision in State of Bihar v. Banshi Ram Modi. This Court observed in that decision
that the result of taking the contrary view would be (SCC p. 648, para 10) that while
the digging for purposes of winning mica can go on, the lessee would be deprived of
collecting felspar or quartz which he may come across while he is carrying on mining
operations for winning mica. That would lead to an unreasonable result which would
not in any way subserve the object of the Act. There was an existing lease where mining
operation was being carried on and what was due by incorporation of a new term
was that while mining operations were being carried on some other minerals were
available, he was giving right to collect those. The new lease only permitted utilisation
or collection of the said other minerals.”
21. We, therefore, proceed to answer this question as this issue has not yet been decided by this
Court. We may not have to labour hard in this regard since the Full Bench of Bombay High
Court has squarely dealt with the same issue concerning applicability of section 19(3) of the
Family Courts’ Act, 1984 and section 28(4) of the Hindu Marriage Ac, 1955 on the period of
limitation governing the filing of an appeal before the High Court from the suits instituted
under Hindu Marriage Act concerning the rights of the parties such as, dissolution of marriage,
restitution of conjugal right, declaration of a marriage as null and void, judicial separation, etc.
—| 559 |—
The illuminating opinion of the Bombay High Court on this issue contained at Para 14 to 28 is
extracted hereunder:
“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 of1984. 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.
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
—| 560 |—
made certain observations in the case of Savitri Pandey which 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 of1955, 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.
This view has been further followed by the Allahabad High Court in the case of Smt. Gunjan v.
Praveen (Supra), Rajasthan High Court in the case of Kuldeep Yadav v. Anita Yadav (Supra) and
Delhi High Court in the cases of R.R.D. (Supra) and DC (Supra) cited by the learned counsel
for the appellant. The rationale behind taking such a view is that the Act of 1984 provides for a
special forum relating to matrimonial dispute and for that, special procedure was devised for
expeditious adjudication of the case. Provisions of section 20 thereof containing the obstante
clause has to be construed in that context, whereas Parliament being conscious of the period
of limitation of 30 days prescribed under section 19(3) of Family Courts’ Act, 1984 chose to
make suitable amendment in section 39(4) of the Special Marriage Act, 1954 and section 28(4)
of the Hindu Marriage Act, 1955 by enlarging the period of limitation from 30 days to 90 days
keeping into account the observations made by the Apex Court in the case of Savitri Pandey
(supra) and the rationale behind it. It is true that in a country like us where millions of people
face financial hardship for litigating a matter and considerable time, money and energy have
to be spent in pursuing the appeal given the difficult geographical condition, access to justice
may become illusory in approaching the Court of Appeal within a small period of 30 day and
—| 561 |—
amendment to section 28(4) introduced in 2003 to the Hindu Marriage Act, 1955 being the
later enactment in point of time compared to the provisions of section 19(3) under the Family
Courts’ Act, 1984, the intention of the Legislature to provide a larger time period for preferring
an appeal needs to be furthered in order to resolve this inconsistency by adopting the principles
of harmonious construction. We are, therefore, inclined to follow the principles laid down by
the Full Bench decision of Bombay High Court in this regard. The Hindu Marriage Act being
a special legislation, the provisions governing the period of limitation for preferring an appeal
arising out of the decisions of the Family Court under the Hindu Marriage Act, 1955 should be
governed by larger period of limitation of 90 days prescribed under section 28(4) thereof. The
second question posed for determination at the outset is also answered in the aforesaid manner
in the affirmative. Having held so, the instant appeal does not suffer from any delay since the
original petition was filed within a period of 90 days from the date of the impugned order i.e.
05.08.2015. As such, there is no delay in preferring the instant appeal. I.A. No. 539/2020 is
disposed of.
22. Registry is directed to compute the period of limitation in such appeal, as per the law declared
by this court. Let the judgment be translated in to the vernacular language like Hindi and if
possible, in other regional language spoken in the State. Registry to undertake the exercise.
Copy of the order be also transmitted to the Jharkhand State Legal Services Authority, High
Court Legal Services Committee, Judicial Academy, Jharkhand and the District Legal Services
Authorities for wide dissemination through its website and other modes for the benefit of larger
section of the society in the State. Let the copy of the order be also circulated to the Family
Courts in the State. Let the appeal be listed under the heading for admission.
23. Before parting, we must record our appreciation to the valuable assistance rendered by the
learned counsel for the appellant Mr. Indrajit Sinha to this Court.
qqq
—| 562 |—
THE FAMILY COURTS
(JHARKHAND HIGH COURT)
RULES, 2004
—| 564 |—
THE FAMILY COURTS (JHARKHAND HIGH COURT) RULES, 2004

Published vide Jharkhand Gazette, Extraordinary No. 226 dated 21.7.2004 and issued by Hon’ble Jharkhand
High Court on 14.7.2004
jhr225
[Notification. No. 1.A./Court Gathan 102/2003-2060/J, dated the 20th July 2004, No. 6543, dated the
15th July, 2004. - In exercise of the powers conferred by Section 21 of the Family Courts Act, 1984
(Central Act No. 66 of 1984), and all enabling provisions, in that behalf, the High Court of Jharkhand
hereby make and prescribe the following Rules to regulate the proceedings for the Family Courts in
the State of Jharkhand. In exercise of the powers conferred by Section 21 of the Family Courts Act,
1984, the High Court of Jharkhand are pleased to prescribe the following Rules for Family Courts in
the State of Jharkhand.
1. Short title. -
(a) These rules may be called the Family Courts (Jharkhand High Court) Rules, 2004.
(b) Commencement.-These rules shall come into force from 15th August, 2004.
(c) Application.-These rules shall apply to the Family Courts established in the State of
Jharkhand under Section 3 of the Family Courts Act, 1984.
2. Definitions. - In these rules, unless the context otherwise requires- (a) “Act” means the Family
Courts Act, 1984;
(b) “Centre” means a counselling centre;
(c) “Counsellor” means a person referred to in Section 6 of the Act;
(d) “Court” means the Family Court established under Section 3 of the Act; (e) “High Court”
means the High Court of Jharkhand;
(f) “Institution” means any institution or organisation engaged in social welfare;
(g) “Petition” shall include an application under Chapter IX of the Criminal Procedure Code,
unless the subject matter or context requires otherwise;
(h) All other words and expressions used but not defined in these rules and defined in the Act,
or in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973, shall
have the meaning respectively assigned to them in the Act, or, as the case may be, in the
Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973.
3. Working hours. -
(i) The office of the Family Court shall be open daily except authorised holidays for transaction
of office work between 10.00 a.m. and 5.00 p.m.
(ii) The Judges of the Family Court shall ordinarily sit in the Court between 10.30 a.m. - 4.30
p.m. on working days of the Family Court with recess between 1.00 p.m. -1.30 p.m.
(iii) The Judges may, for expedience, hold proceedings of the Court beyond the working hours
as prescribed in sub-rule (ii) above, and even on holidays:
—| 565 |—
Provided no such proceedings shall be held under sub-rule (iii) except with the consent of
the parties to the proceeding.
(iv) The Family Court shall hold its sitting in open or in camera as determined by it in each
case, but shall hold the proceedings in camera if either party so desires.
(v) No act of the Family Court shall be invalid by reason of holding or continuing its sitting
at any place of its choice or on any holiday or outside normal working hours/when such
sitting is informed to the parties in advance.
4. Place of sitting. - The Judge of the Family Court may hold sitting at places other than the ordinary
place of sitting in consultation with the parties to the proceedings; the provision of the Legal Aid
Scheme may be invoked in appropriate cases in the proceedings under the Act.
5. Institution of proceedings. -
(a) All proceedings instituted before a Family Court shall be by way of an application as
per Form No. 1 appended to these rules which should be duly verified by the petitioner.
Interlocutory application in the proceeding to be instituted or already instituted shall be
filed in Form No. 2 after being duly verified by the applicant. The petition in Form No. 1
or the interlocutory application in Form No. 2 can be in any language falling in Schedule
VIII to the Constitution.
(b) There shall be no Court fee or any other fee in respect of any petition or any interlocutory
application filed before the Family Court.
(c) In respect of application under Section 125 of Cr. P.C. or other application under Chapter
IX of the Criminal Procedure Code the provision of that Code will apply.
(d) The application may be filed before Family Court as permitted under any law which also
includes provisions in the following laws viz:
(i) Chapter IX of the Criminal Procedure Code, 1973 (2 of 1974). (ii) Hindu Marriage
Act, 1955 (25 of 1955).
(iii) Maintenance under the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956).
(iv) Guardianship of the person or custody of or access to any minor under the Hindu
Minority and Guardianship Act, 1956 (32 of 1956).
(v) Dowry Prohibition Act, 1961 (28 of 1961) for an order for injunction in circumstances
arising out of marital relationship.
(vi) Hindu Marriage (Validation of Proceedings) Act, 1960 (19 of 1960).
(vii) Personal law applicable to Muslims including:
(a) Muslim Personal Law (Shariat) Application Act, 1937 (26 of 1937).
(b) Dissolution of Muslim Marriages Act, 1939 (8 of 1939).
(c) Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986).
—| 566 |—
(viii) Parsi Marriage and Divorce Act, 1936 (3 of 1936) which can be instituted or taken
before the Parsi District Matrimonial Courts constituted under Sections 18 and 20
of the said Act.
(ix) Indian Christian Marriage Act, 1872 (15 of 1872). (x) Indian Divorce Act, 1945.
(xi) Special Marriage Act, 1954 (43 of 1954).
(xii) Child Marriage Restraint Act, 1929 (19 of 1929). (xiii) Anand Marriage Act, 1909 (7
of 1909).
(xiv) Arya Marriage Validation Act, 1937 (19 of 1937). (xv) Foreign Marriage Act, 1969
(33 of 1969).
(xvi) Suits or proceedings relating to Part B States Marriages Validating Act, 1952 (1 of
1952).
(xvii) Guardians and Wards Act, 1890 (8 of 1890).
6. Filling of petition. - A petition or any other application shall be filed with two copies signed by
the parties alongwith as many copies to be sent to all the respondents by an officer designated
for this purpose. One copy of such petition or application shall be forwarded by the designated
officer of the Family Court to the Counsellor forthwith.
7. Notice to respondent. - Notice of the proceeding including interlocutory application shall be
issued in Form No. 3 appended to these rules alongwith a copy of the petition of the application,
as the case may be; in respect of matter under Chapter IX of the Criminal Procedure Code the
summons to appear and answer shall be in Form No. 4.
8. Name and address of the party or of the representative to be stated in every process. - The name
and address of a party or of the representative appearing for a party shall be stated in every
notices, summons, witness summons, interim application, warrant and every process of the
Court issues at the instance of such party or representative.
9. Notice, summons, etc. how attested and signed. - All notices, summons, rules, orders, warrants
and other mandatory processes shall be sealed with the seal of the Court and shall be signed by
the designated officer of the Court.
10. Returnable date of notice, summons. - Unless otherwise ordered the notice, summons shall be
made returnable three weeks after the date of the filing of the petition, if the respondent resides
with the local limits of the Court and five weeks after the date of the filing of the petition, if the
respondent resides outside the said limits.
11. Mode of service of notice, summons. -
(a) The notices, summons shall be served in the manner prescribed in the Code of Civil
Procedure save and except in proceedings under Chapter IX of the Criminal Procedure
Code where the provisions of the Code will apply. Alongwith the notice, summons a copy
of the petition and exhibit thereto shall be sent.
(b) In addition to the normal process of service by the Court, the applicant will be at liberty
to serve upon the respondent, the notices, summons of the Court alongwith copy of the
—| 567 |—
petition and exhibits either through person or through other recognisable mode of service
including registered post and shall file affidavit of service upon the respondent.
12. Proof of service of summons. - It has to be shown by affidavit of applicant or other evidence that
the notices, summons were served upon the respondents.
13. Substituted service. - In case of failure to serve by normal process, the Court on an oral/written
application of the applicant may direct for serving upon the respondents by substituted mode
i.e. through pasting publication in the newspaper, etc. and applicant shall file affidavit stating as
to the mode adopted for service of summons.
14. Copy of petition to be furnished to the respondent. - Any respondent who ask for the copy on
the ground that he has not received the copy of the petition or that he has not received complete
copy, the applicant shall furnish the complete copy with all exhibits to the respondents.
15. The provisions under Order I of Civil Procedure Code for addition of a necessary party or a
proper party shall be applicable to a proceeding before the Family Court.
16. Proceedings before the Court shall be taken up in the presence of the parties, and a legal
practitioner shall be allowed to appear only as amicus curiae, if the Court finds it necessary in
the interest of justice.
17. Directions on the returnable date. - On the returnable date of the notices, summons, the petition
shall be placed for directions before a Judge of the Family Court. On that day, the designated
Counsellor shall attend the Court of the Judge giving directions. The Judge shall, in consultation
with the Counsellor, direct the parties to attend a specified date by which Counsellor shall file a
memorandum setting out the outcome of the proceeding before him. On that day the Court will
pass further order and directions as it deems fit and proper.
18. Role of the Counsellor. - The Counsellor appointed to counsel the parties shall fix time and
date of appointment. The parties shall be bound to attend the Counsellor on the date and at the
time so fixed; if either of the parties fails to attend the Counsellor on the date and time so fixed,
the Counsellor may fix another date and shall communicate the same to the absentee party by
registered post. In case of default by either of the parties on the adjourned date, the Counsellor
shall submit a report to the Court and on receipt of such report, the Court may proceed with
the matter without prejudice to other powers of the Court to take action against the defaulting
parties.
The Counsellor entrusted with any petition on appearance of the parties before her/him shall
assist and advise the parties regarding the settlement of the subject matter of dispute and shall
endeavour to help the parties in arriving at conciliation.
The Counsellor may in discharge of him/his duties, visit the home of either of the parties and
interview the relatives, friends, and acquaintances of either of the parties.
The Counsellor in discharge of him/his duties may also seek such information as she/he deems
fit from the employer of either of the parties and such requisition for information shall be made
through the Court.
The Counsellor may take the assistance of any organisation, institution or agency in discharge of
her/his duties.
—| 568 |—
The Counsellor shall submit a report to the Court as and when called for to assist the Court in
deciding the case in hand. The report may, inter alia contain the following points:
(a) Living environment of the parties concerned, (b) Personalities,
(c) Relationship,
(d) Income and standard of living,
(e) Educational status of the parties, (f) Status in society,
(g) Counsellor’s findings.
The Counsellor may also supervise the child/children if and when called upon by the Court.
19. Confidentiality of information. - Information gathered by the Counsellor or any statement
made before the Counsellor or any notes or report prepared by the Counsellor shall be treated as
confidential and the Counsellor shall not be called upon to disclose such information, statement,
notes or report to any Court except with the consent of both the parties.
20. Efforts for arriving at settlement. - (1) Every Family Courts shall maintain separate lists of:
(a) Institutions and organisations engaged in social welfare together with names and addresses
of representatives of each institutions or organisations.
(b) Person professionally engaged in promoting the welfare of the family with their addresses.
(c) Persons working in the field of social welfare with their addresses.
Report from institution, organisation etc.-A Family Court may call for report as regards efforts
made or to be made by the institution, organisation or persons referred to in Section 5 of the
Act:
Provided that where efforts for amicable settlement are continuing or are deferred, the Family
Court may require the institution, organisation or person to submit before it an interim report.
21. When the parties arrive at a settlement before the Counsellor relating to the dispute or any part
thereof such settlement shall be reduced into writing and shall be signed by the parties and
countersigned by the Counsellor.
Hearing of Petitions in Court
22. Adjournment by the Court. - The petition so fixed shall not be adjourned by the Court unless
there are circumstances justifying such adjournment and to meet the ends of justice. The Court
shall record its reasons for adjourning a matter.
23. Memorandum of evidence. - The Court shall record only the substance of what the witness
deposes and prepare a memorandum accordingly which shall be read and explained to the
witness and the memorandum of the said substance recorded by the Court shall be signed by the
witness and the Presiding Officer of the Court and shall form part of the record. The evidence
taken on affidavit, if any, shall also form part of the record of the Court. The judgment shall
contain a concise statement of the case, the point for determination, the decision thereon and
the reasons for such decision.
—| 569 |—
24. The Court shall furnish to the parties to the proceedings before it a copy of the judgment certified
to be a true copy free of cost.
25. Appeal under Section 19(1) of the Act shall be in the manner of appeals against the original
decree or order in a civil proceedings but there shall be no Court fee payable for the appeal.
26. The rules framed under the Guardians and Wards Act,1890 by the Patna High Court and published
in Bihar Gazette-III dated the 27th May, 1931 and 8th September, 1933 shall be applicable in
matter relating to Guardians and Wards Act, 1890 to the extent they are not inconsistent with
the provisions of the Act or the Rules framed thereunder.
27. Application for Guardianship. - All petitions for guardianship other than applications over
which the High Court has jurisdiction, shall be filed before the Family Court.
28. Contents of the Application. - Every petition for guardianship when it is by a person other
than the natural parent or natural guardian of the child shall be accompanied by a Home Study
Report of the person asking for such guardianship and his/her spouse, if any, prepared by an
approved association of Social Welfare Agencies etc. or a suitably trained social worker, from
the list of agencies and/ or persons for the purpose of their association with the Court approved
by the Government in the rule made under Section 5 of the Act, in consultation with the High
Court.
29. In case of a child placed in guardianship the Court may, at any time direct a Counsellor attached
to the Court to supervise the placement of the child and submit a report thereon to the Court in
such manner as the Court may deem fit.
30. A child study report of the child proposed to be taken in guardianship together with a photograph
of the child should also be filed in all petitions for guardianship, as required under Rule 23 of
the Rules framed under the Guardian and Wards Act, 1890. Such report shall be in a particular
Form prescribed by the Court when the child is institutionalised (or Court committed). The
report shall be countersigned by the petitioner.
31. A proceeding before the Family Court shall not become invalid by reason only of no- compliance
with any of the procedural requirement prescribed herein.
Interim Applications
32. Interim application. - All interim applications to the Court shall be separately numbered as
“Interim Application No...........” In Petition No.........
33. Interim application while matter is pending before Counsellor. - An interim application may be
made even while the matter is pending before a Counsellor.
34. Report from the Counsellor. - The Court may ask the Counsellor to submit an interim report for
the purposes of such an application before deciding an interim application. The Family Court
Rules, 2002 relating to report to be submitted by Counsellor, shall mutatis mutandis apply to
interim reports also.
35. Officers. - The High Court may authorise and empower Judge of the Family Court, or if, there be
more judges than one in a Family Court the principal Judge of such Court to appoint so many
and such clerks and other ministerial officers as may be necessary for the administration of
justice and due execution of all powers and authorities exercisable by a Family Court:
—| 570 |—
Provided that the appointments of officers and ministerial staff shall be subject to any rules or
restriction., as may be, prescribed or imposed under the Act.
36. The proceedings before the Court shall be heard and disposed of as expeditiously as possible,
preferably within 3 months, and in achieving this objective the rules or procedure may not
rigidly be adhered to.
37. Control of High Court. - Every Principal Judge, and Judge of Family Court shall be under
administrative and disciplinary control of the High Court.
38. Power of High Court to transfer Judges, Officers etc. - Without prejudice to the administrative and
disciplinary control of the High Court under Rule 12, such Court or a Judge thereof authorised
under general or special order in this behalf by such Court, may where it is considered necessary
or expedient so to do, transfer any Principal Judge, Additional Judge, Judges or any officer or
Ministerial official of one Family Court to another Family Court in this State or retransfer such
Principal Judge, Additional Judge, officer or Ministerial official, as the case may be, and every
such Principal Judge, Additional Judge or Judge, Officer or Ministerial official shall comply.
39. Power of High Court to issue directions. - For carrying out the purposes of the Act and for
ensuring the uniformity of practice to be observed by Family Courts and for expeditious
disposal, the High Court may from time to time, supervise and inspect the Family Courts and
issue directions/circulars etc. to the Family Courts.
40. Judge not to try a case in which he is interested. - No Judge shall hear or decide any case to which
he is party or in which he/she is personally interested.
41. The Family Courts may use such forms and containing such particulars as may be approved by
the High Court.
42. Powers to call for information etc. - The High Court may require Family Courts to maintain
such registers and records and containing such particulars as may be approved by the High
Court.
—| 571 |—
Form No. 1
In The Family Court of...................
Petition No.............
Between
Mrs./Mr........................................................
W/o or S/o ..................................................
Age .............................................................
Occupation .................................................
Present Address ..........................................
Permanent Address/Residence .................. Petitioners
And
Mrs./Mr........................................................
W/o or S/o...................................................
Age..............................................................
Occupation .................................................
Present Address...........................................
Permanent Address/Residence....................
Petition under Section.............for............... Respondent
The abovenamed petitioner respectfully submits as under:
1. That the petitioner and respondent are legally married .....................&...........their marriage was
solemnized on.................. at.............according to customs. After the marriage both the petitioner and
respondent had been living/lived together as husband and wife at...........Out of the wedlock the couple
was blessed with the child aged named another child aged....................................named......
2. The petitioner submits that (give the grievance of the petitioner against the respondent with full
particulars)
(a) .........................................
(b) ........................
3. This petition is not presented in collusion with the respondent and there is no unnecessary or
improper delay in institution of these proceedings.
4. Cause of action for the petition arose on (date) when the marriage of the petitioner with respondent
was performed. It also arose on several occasions when the respondent behaved and committed
....................
5. The petitioner and the respondent both last lived together at................ (or where the marriage took
place or where the respondent at the time of presentation of the petition resided) which is within the
territorial jurisdiction of this Hon’ble Court.
—| 572 |—
Prayer
The petitioner therefore prays that this Court may be pleased to pass an order directing...........
Place :
Date:
Petitioner
Verification
I..........................daughter/son of................ aged............resident of.............do hereby declare that the
above facts stated in the petition are true and correct to the best of my knowledge, information and
belief. Hence, verified on this the... ...day of month.................
Petitioner
Form No. 2
In The Family Court of................
Interlocutory Application No...........................
In
Petition No....................................................
Between
Mrs./Mr........................................................
W/o or S/o ..................................................
Age .............................................................
Occupation .................................................
Present Address ..........................................
And
Mrs./Mr........................................................
W/o or S/o...................................................
Age..............................................................
Occupation .................................................
Present Address...........................................
Permanent Address/Residence....................
Interlocutory Application under
Section.............for............... Respondent
The above named petitioner respectfully submits as under:
—| 573 |—
1. That the petitioner and respondent are legally married.............&........their marriage was solemnized
on at according to............................customs. After the marriage both the petitioner and respondent
had been living/lived together as husband and wife at........................Out of the wedlock the couple was
blessed with the child aged .................... named..............another child aged...................named...............
particulars)
(a) ..................
(b) ..................
Prayer
The petitioner therefore prays that this Court may be pleased to pass an order directing.............
Place :
Date
Petitioner
Verification
I.............daughter/son of..................................aged..........................resident..........of do hereby declare
that the above facts stated in the petition are true and correct to the best of my knowledge, information
and belief. Hence, verified on this the day of month..........
Petitioner
Form No. 3
In The Family Court of ........
Petition No............................of.............................................................................. Petitioner
Versus
..........................................................................Respondent
To
Whereas the above named petitioner has instituted a petition against you, as set out in the petition
(annexed with the petition & annexure);
And whereas the petition will be placed for directions on ........................................................day of.........
You are hereby summoned to appear before the Family Court to answer the petitioner’s claim on the
said.............day of..............at.............O’clock, and Take notice that on the day before mentioned after
hearing parties who appear, directions will be given by the Judge as to the date of hearing before a
Counsellor of the Family Court and other matters concerning the petition and;
Take further notice that if you fail to appear before the Judge on the day the petition may be ordered
to be set down on Board on the same day or any subsequent day as ‘undefended’ and you will be liable
to have a decree or order passed against you. Witness Judge at aforesaid this .................................day
of........
—| 574 |—
Registrar
Form No. 4
In The Family Court of................
Petition No....................................................
Between
Mrs./Mr........................................................
W/o or S/o ..................................................
Occupation .................................................
Present Address ..........................................
And
Mrs./Mr........................................................
W/o or S/o...................................................
Occupation .................................................
Present Address...........................................
Permanent Address/Residence.................... Respondent
Petition for maintenance under Section 125 of Criminal Procedure Code. The above named petitioner
respectfully submits as under:
1. That the petitioner and respondent are legally married........................&............their marriage was
solemnized on at...................................according to customs. After the marriage both the petitioner and
respondent had been living/lived together as husband and wife at....................Out of the wedlock the
couple was blessed with the child aged named.............. another child aged................named........
particulars)
(a) ...............
(b) ...............
3. The petitioner has no resources/limited resources to maintain herself and her minor children. She is
presently dependent upon her parents, who have their own expenses and may not be in a position to
support the petitioner for long period.
4. That the petitioner on called upon the respondent to provide money for maintenance for herself and
her minor children but as yet no amount towards maintenance has been received from the respondent.
5. That the respondent is a person with means and has the following property, monthly income etc.
(a)......................
—| 575 |—
(b) ......................
(c) ........................
6. In the circumstances stated above there is no alternative for the petitioner and her minor children
but to approach this Court for maintenance.
Prayer
The petitioner therefore prays that this Court may be pleased to pass an order directing the respondent
to pay Rs towards maintenance of the petitioner and Rs...........towards maintenance of the minor
children.
Place
Date :
Petitioner
—| 576 |—
YEAR OF PUBLICATION : 2022
Compiled by :
JUDICIAL ACADEMY JHARKHAND
Phone : 0651-2772001, 2772103, Fax : 0651-2772008

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SUPREME COURT OF INDIA

Judicial Academy Jharkhand

Year of Publication : 2019

MARRIAGE AND DIVORCE

MAINTENANCE AND ALIMONY

CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING

DUTY OF FAMILY COURTS

LATEST JUDGMENTS OF HIGH COURT OF JHARKHAND

THE FAMILY COURTS (JHARKHAND HIGH COURT) RULES, 2004

MOHAMMED SALIM (DEAD) THROUGH LEGAL REPRESENTATIVES

(d) a marriage prohibited by reason of difference of religion (Section 259);

3 2012 SCC OnLine Mad 1275 : (2012) 3 LW 937

JUVERIA ABDUL MAJID PATNI VERSUS

5 Criminal WP No. 4250 of 2012, decided on 23-1-2013 (Bom)

including divorce, inheritance, property, contractual disputes, etc. Schacht, p. 188. A

11 AIR 1961 SC 808 : (1962) 1 SCR 67

12 (2002) 7 SCC 518 : 2002 SCC (Cri) 1814

† Under Article 32 of the Constitution of India

MR. ANURAG MITTAL VERSUS MRS. SHAILY MISHRA MITTAL

Hon’ble Mr. Justice L. Nageswara Rao :—

Per Hon’ble Mr. Justice S.A. Bobde :—

AMARDEEP SINGH VERSUS HARVEEN KAUR

The text of Section 13B is as follows:

SWAPNANJALI SANDEEP PATIL VERSUS SANDEEP ANANDA PATIL

SAMAR KUMAR ROY (DEAD) THROUGH LEGAL REPRESENTATIVE

15 Har-Shefi v. Har-Shefi, 1953 P 161 : (1953) 2 WLR 690 (CA)

20 1978 SCC OnLine Ori 105 : AIR 1979 Ori 51

JOSEPH SHINE VERSUS UNION OF INDIA

Per Nariman, J. (concurring)

Per Indu Malhotra, J. (concurring)

sexual desires in pursuit of happiness is intrinsic to dignified human existence—To character-

Per Chandrachud, J. (concurring)

21 of the Constitution — Adultery envisages a tripartite involvement of adulterer, adulteress and

27 John Vallamattom v. Union of India, (2003) 6 SCC 611

SUMAN KAPUR VERSUS SUDHIR KAPUR

NARAYAN GANESH DASTANE VERSUS SUCHETA NARAYAN DASTANE

1975 SCR (3) 967 1975 SCC (2) 326

Hindu Marriage Act--Section 10(1)(b) and 23(1)(a)(b)--Meaning of cruelty--Burden of proof in

(1) American Jurisprudence, 2nd Ed., Vol. 24, p. 206.

BIPIN CHANDER JAISINGHBHAI SHAH VERSUS PRABHAWATI

32 [1955] 1 All E.R. 341, 342.

39 [1925] P. 187, 192.

DR. AMIT KUMAR VERSUS DR. SONILA

Hon’ble Mr. Justice Sanjay Kishan Kaul :—

KOLLAM CHANDRA SEKHAR VERSUS KOLLAM PADMA LATHA

44 (2007) 1 ALD 598 : (2007) 1 An LT 177

19.4. (iv) What order? Answer to Points (i) to (iii)

50 1960 P 52 : (1959) 3 WLR 592 : (1959) 3 All ER 389

JOYDEEP MAJUMDAR VERSUS BHARTI JAISWAL MAJUMDAR

KALYAN DEY CHOWDHURY VERSUS

KYNTIEW AKOR SUCHIANG VERSUS

5 2016 SCC OnLine Megh 232

JAIMINIBEN HIRENBHAI VYAS & ANR VERSUS

[1] (2008) 9 SCC 632; Paras 39 - 41.

MANJU KUMARI SINGH @ SMT. MANJU ... VERSUS

CHATURBHUJ VERSUS SITA BAI