Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Hindu Marriage Act, 1955 (25 of 1955), Section 12 – Annulment of marriage – Transfer of case – Kolkata to Jharkhand – Petitioner-wife has filed a petition for maintenance etc., the respondent-husband has filed the subject suit u/s 12 of the Hindu Marriage Act, 1955 for annulment of the marriage -- Grounds taken that wife is staying with her parents at Dhanbad, Jharkhand; she has no source of livelihood; she has apprehension of physical violence and mental torture in the event of visiting Alipore etc. – Case ordered to be transferred to the Family Court at Dhanbad, Jharkhand.

(Para 1-5)

Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Transfer of divorce petition – Jharkhand to Bihar – Petitioner employed at Bengaluru -- Stated that it would be difficult for her to defend the subject-case at Ranchi, Jharkhand as she has no family support either at Bengaluru or at Ranchi -- It is specifically submitted that most of the time, she is working from Katihar, where her parental home is situated -- It would be expedient for the ends of justice to transfer the subject-case as asked for by the petitioner -- Transfer Petition allowed.

(Para 3-7)

A. HUF as proprietor -- Proprietorship is not governed by any statute, there is no bar on a Hindu Undivided Family becoming a proprietor.

(Para 15)

B. HUF -- One person cannot form a Hindu Undivided Family.

(Para 15)

C. Legal Services Authorities Act, 1987 (39 of 1987), Section 22C -- Loan to Proprietorship/ HUF – Exemption from payment of foreclosure charges to individual – Applicability of -- Application for loan signed with stamp “Proprietor/HUF” -- In the PAN details of applicant/borrower, details of the sole proprietor alone have been mentioned -- Application for loan was submitted for and on behalf of the Individual borrowers/ sole proprietorship and not in any capacity as a Hindu Undivided Family -- Merely because the wife and son become “Co-applicants”, it would not automatically term the borrowing as one by Hindu Undivided Family, which is a separate entity for assessment and the Hindu Undivided Family never submitted an application -- Meaning of “/” has to be read as “either/or”, hence, the interpretation of the stamp has to be in the context in which the application had been submitted -- Foreclosure charges along with the processing charges charged by the respondent/ Finance Company directed to be refunded to the petitioner with interest @ 6% per annum.

(Para 15-24)

D. Legal Services Authorities Act, 1987 (39 of 1987), Section 22C -- Permanent Lok Adalat -- Public Utility Services -- Authorised representative – Permissibility of -- There is no mandate in law that only the sole proprietor could have preferred an application before the Permanent Lok Adalat (Public Utility Services) and that he could not have authorised any other representative to pursue the application u/s 22-C of the Legal Services Authorities Act, 1987 -- No adverse inference can be drawn only on the strength that the proprietor has come before High Court whereas the application had been preferred before the Permanent Lok Adalat (Public Utility Services) through the authorised representative.

(Para 22)

Hindu Marriage Act, 1955 (25 of 1955), Section 13, 13-B -- Code of Civil Procedure, 1908 (V of 1908), Section 25 – Constitution of India, Article 142 -- Divorce – Transfer petition -- Settlement arrived between parties – Pending cases quashed -- Joint Application filed by the parties under Article 142 of the Constitution -- Terms of the settlement are lawful and there is no legal impediment in accepting the same -- Consequently, invoking jurisdiction under Article 142 of the Constitution of India, the marriage between the parties dissolved by a decree of divorce by mutual consent -- Transfer Petition disposed of.

(Para 8-16)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Constitution of India, Article 142 -- Divorce -- Irretrievable breakdown of marriage -- Parties are residing separately since February, 2011 -- No contact between them during long period of almost 13 years -- Respondent-wife is not even responding to the summons issued by the courts -- It seems she is no longer interested in continuing the marital relations with the appellant – Appeal allowed, marriage between the parties dissolved on the ground of irretrievable breakdown in exercise of powers under Article 142(1) of the Constitution of India.

(Para 15)

Hindu Marriage Act, 1955 (25 of 1955), Section 13B -- Constitution of India, Article 142 – Divorce by mutual consent – Waiver of period – Quashing of all pending proceedings-- Parties have recorded their statements before the Registrar(Judicial) on oath as regards compliance of conditions stipulated in Section 13-B of the Hindu Marriage Act -- Order waiving the timeframe stipulated in Section 13-B(2) of the Hindu Marriage Act, 1955 passed considering the fact that they have been living separately for more than two years -- Direction given that a decree be passed dissolving their marriage on mutual consent -- Cases involving the parties mainly arising out of their matrimonial dispute, quashed.

(Para 1, 2)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Punjab Courts Act, 1918 (6 of 1918), Section 41 – Regular Second Appeal – Substantial question of law -- In the States of Punjab and Haryana, it is the provisions of the Punjab Courts Act, 1918 would be applicable and, therefore, Section 100 CPC would not hold the field -- There would be no requirement of framing substantial questions of law in second appeal.

(Para 15)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6, 8 – Ancestral property – Once the property had been acquired by way of succession, it would lose its ancestral character.

(Para 16)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(1a) – Cruelty – Divorce -- False allegation of extra-marital affair -- Appellant-wife made serious and scandalous allegations regarding adulterous life of her husband, learned court below rightly arrived at a conclusion that false allegation of adultery constitutes mental cruelty -- No scope to interfere with the Decree of Divorce granted by the learned Family Court in favour of the respondent-husband – Appeal dismissed.

(Para 26-29)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(1a) -- Cruelty – False allegation of extra-marital affair -- Leveling disgusting accusations of indecent familiarity with a person outside wedlock and allegations of extra marital relationship constitute grave assault on the character, honour, reputation, status of the spouse -- Definitely such aspersions amount to worst form of insult and cruelty, which itself is sufficient to substantiate cruelty in law.

(Para 26)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(1a) -- Cruelty -- Though word “cruelty” has not been defined in the Hindu Marriage Act, but it has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations -- It is a course of conduct of one which is adversely affecting the other -- Cruelty can be mental, physical, intentional or unintentional -- If it is physical, it is a question of fact and degree, but if it is mental, the inquiry 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 -- There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal – The absence of intention should not make any difference in the case, if any ordinary sense in human affairs, the act complained could otherwise be regarded as cruelty.

(Para 27)

D. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(1a) -- Cruelty -- Intention is not a necessary element in cruelty -- Relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment.

(Para 27)

A. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child – Welfare of child -- What is 'welfare of the child' depends upon several factors -- It has to be measured not only in terms of money and physical comfort, but also in view of the age of the child and the manner, in which, 'needs' can be fulfilled, more particularly, moral and ethical aspects of the shaping of the minor's personality -- Legal right or the financial affluence is not decisive, but the welfare of the minor is decisive for the claim of the custody.

(Para 8)

B. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child – Wish/ Desire/ Welfare of child -- It has to be borne in mind that the question ‘what is the wish/  desire of the child’ is different and distinct from the question ‘what would be in the best interest of the child’ --  Certainly, the wish/ desire of the child can be ascertained through interaction but then, the question as to ‘what would be in the best interest of the child’ is a matter to be decided by the Court, while taking into account, all the relevant circumstances.

(Para 9)

C. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child – Welfare of child -- Unless and until, there is proven bad conduct of one of the parent, which makes him/ her unworthy to claim the custody of the child concerned, the question can and shall be decided, solely looking into the question as to, ‘what would be the best interest of the child concerned’.

(Para 9)

D. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of girl child – Visiting rights -- Aspect of age of the child weighs in the mind of the Court – Mother is qualified doctor, girl child being of 10-11 years is passing through the formative stage of life -- At this stage, the mother can be the best friend, guide and mentor for the growing daughter -- She is already residing with the mother and therefore, no further change in the arrangement, already existing, shall be beneficial to the child -- Girl child allowed to meet the petitioner, her father, twice a month.

(Para 10-16)

Punjab Civil Service Rules Vol. 2, Chapter VIII, Rule 8.35 -- Constitution of India, Article 226 -- Family pension – Karewa Marriage with Dewar – Effect of – Petitioner solemnized Kareva marriage with his brother-in-law (Devar) -- On request, the family pension was transferred in the name of son – Second husband also passed away and petitioner requested to restore her family pension -- Respondent-department denied family pension to the petitioner because she got re-married and stopped of her son because he got job – In Amrit Kaur @ Paramjit Kaur’s case 2014 (2) PLR 192 benefit of family pension was extended to widow of a deceased employee though said lady solemnized marriage with his brother-in-law -- Petition disposed of with a direction to the respondent-authorities to reconsider claim of the petitioner and pass an appropriate order within three months.

(Para 2-5)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 20 – Family Courts Act, 1984 (66 of 1984), Section 7 -- Court Fees Act, 1870 (7 of 1870), Section 7 – Ad-valorem court fee – Charge for maintenance -- Suit for grant of maintenance and for declaration that the plaintiffs have charge and creating charge over the properties and further for declaration that transfer deeds with regard to immovable property are illegal and null and void -- Proceedings initiated before the Family Court for the purpose of maintenance are petition in nature and not suit -- Petitioners are not liable to pay the ad valorem court fee.

(Para 2, 12, 15)

A. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction -- Before grant of temporary injunction, the plaintiff is required to satisfy three tests namely:-

i. Prima facie in his favour;

ii. Balance of convenience in this favour; and

iii. Irreparable loss and injury, if the injunction is not granted.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Specific Relief Act, 1963 (47 of 1963), Section 41(h) – Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Temporary injunction against Karta --  Appellate court held that plaintiff cannot restrain the karta (his father) to alienate the property -- Moreover, the defendant No.1 disputes the fact that plaintiff is his biological son -- It would not be appropriate to restrain the defendant No.1 from alienating the property particularly when the doctrine of lis pendens is applicable in view of Section 52 of the Transfer of Property Act, 1882 and the plaintiff shall not suffer any prejudice if alienation is made during the pendency of the suit -- No ground to interfere is made out – Revision dismissed.

(Para 12, 13)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce petition -- Burdon of proof – Nature of evidence -- Degree of probability is not one beyond reasonable doubt, but of preponderance.

(Para 10)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce -- Cruelty – Long separation – Allegation of adultery -- Marriage solemnized in the year 2002 -- Disputes started between the parties from 2006 onwards -- Appellant–Wife registered a complaint u/s 498A of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 -- Respondent-Husband had questioned the character of the appellant-Wife -- Respondent-Husband also demanded a medical examination of the appellant–Wife, alleging she was living in adultery and had given birth to a child during the period of non-cohabitation -- Said request was nullified by the Order of the High Court – For a decade and half, the parties have been living separately -- Marriage does not survive any longer, and the relationship was terminated otherwise except by a formal decree of divorce – Status quo continues, awaiting an approval from the Court – Decree of divorce allowed.

(Para 16-20)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13A -- Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Transfer of matrimonial dispute case – While considering the transfer of a matrimonial dispute/case at the instance of the wife, the Court is to consider family condition of the wife, custody of the minor child, economic condition of the wife, her physical health and earning capacity of the husband and most important, convenience of the wife i.e. she cannot travel alone without assistance of a male member of her family, connectivity of the place as well as bearing of the litigation charges and travelling expenses.

(Para 5)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13A -- Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Transfer of divorce petition – Karnal to Sonipat -- Petitioner-wife residing with three minor children at Sonipat – Petition filed u/s 13-A of the Hindu Marriage Act, pending before the Family Court, Karnal transferred to the competent Court of jurisdiction at Sonepat.

(Para 6)

Hindu Succession Act, 1956 (30 of 1956), Section 6, 8 – Co-parcenery property – Notional partition -- Testamentary or intestate succession -- When a male Hindu died after the commencement of the Act of 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in that property shall devolve by survivorship upon the surviving members of the coparcenary -- If the deceased left behind him a surviving female relative specified in Class I of the Schedule or a male relative specified in that class who claimed through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act of 1956 and not by survivorship -- Interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim such partition or not.

(Para 11)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18 -- Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 17A, Order 41 Rule 27, Section 151 – Maintenance @ Rs.5,000/- per month -- Additional evidence in appeal -- Notwithstanding the deletion of Order 18 Rule 17-A of CPC, the Court has inherent powers to permit parties to lead additional evidence on such terms as may appear to be just – One opportunity granted subject to costs of Rs.5,000/- -- Respondent shall also be given an effective opportunity to rebut the evidence produced by the petitioner by way of additional evidence, if so required.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 32, Section 25 – Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of Conjugal rights – Transfer petition – Dadra & Nagar Haveli to Gujarat -- Non-participation in case – Effect of -- It cannot be said that non-participation in a proceeding of a restitution of conjugal rights, of the party who seeks for transfer of such proceeding is absolutely impact-less infact, it has civil consequences – Considering the distance between place of proceedings and place of residence of wife, transfer petition allowed.

(Para 3)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce – Impotency -- Inability to bear a child – Ground of -- Inability to bear a child is neither impotence nor any ground for dissolving the marriage -- Divorce is not provided as per the Hindu Marriage Act in such circumstances -- Family Court has rightly dismissed the matrimonial case of the appellant seeking divorce -- Appeal dismissed.

(Para 11)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Cheque by Karta of HUF – Summoning of members of HUF – Quashing of complaint/ summoning order -- When cheque was issued by “karta” in the name of HUF and liability of the HUF is not disputed, in the absence of “Karta”, it cannot be denied that liability of HUF on account of cheque issued in its name still remains, which will obviously devolve on its members or upon the one who shall become “Karta” – At this stage, pending proceedings before the trial Court cannot be quashed -- Petition dismissed.

(Para 2-13)

Hindu Succession Act, 1956 (30 of 1956), Section 8 -- Indian Succession Act, 1925 (39 of 1925), Section 372 – Retiral benefits of deceased employee – Legal heirs -- Succession certificate -- Deceased nowhere mentioned in his entire service record of the petitioner being his wife – Retiral benefits can be settled only after a competent Civil Court gives a declaration -- Procedure for obtaining succession certificate in this regard has been laid down under the Indian Succession Act, 1925 as well as Hindu Succession Act, 1956 -- Petitioner would have to get the said competent declaration from the competent court.

(Para 4, 6)

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 – Co-parcenery property -- Right and liabilities of co-parceners daughter – She carries the same liabilities and disabilities as a son does -- Coparceners have right to alienate for consideration, to demand partition, to joint possession and usufruct, to maintenance, to make Will of one’s interest, to restrain unauthorized disposal, to surrender one’s interest and to survivorship -- Similarly, every coparcener is liable to repay the loans which were raised for the purposes of the family -- This obligation exists to the extent of his own interest in the joint family property -- His personal or separate property is not bound by this obligation.

(Para 8)

B. Odisha Land Reforms Act, 1960 (16 of 1960), Section 19(1)(c) -- Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Co-parcenery property -- Right and liabilities of co-parceners daughter – A woman will have an equal share in undivided family property -- Sons and daughters of a coparcener become coparceners by virtue of birth -- A female heir or male relative of such female heir have same rights and liabilities – Claims Commission has committed error apparent on the face of the record by passing the order impugned denying benefit to the daughter – Daughter has a right to get the property of her father from the date the Amendment Act came into force, i.e., in 2005 – Order set aside, matter remitted back to the Claims Commission for its re-adjudication by giving opportunity of hearing to all the parties.

(Para 10-13)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Desertion --  Divorce petition by husband -- Husband and his witnesses tried to emphasize the fact that respondent-wife was of quarrel some nature and had left the matrimonial home of her own and despite efforts by husband and his family members, she did not return back -- Statements of husband and his father as PW-1 and PW-2 were in general terms without specifying any particular incident, which cannot be held sufficient for discharging the burden of the husband as petitioner.

(Para 12)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Desertion --  Divorce petition by husband -- Long separation – Respondent-wife residing separately from her husband since 1995 – Respondent-wife alleged that the husband had married another lady, and had begotten two sons from such relationship -- In his examination-in-chief, husband has not uttered even a single word regarding such allegation -- He simply denied the suggestions made to him during his cross-examination that he had married another woman named ‘L’ and had two children from her – Respondent-wife and her witnesses had been categoric in asserting the factum of husband having married another lady -- Standard of proof required in matrimonial disputes is of preponderance of evidence – Thus respondent had justifiable ground to live separately as no wife can be forced to live in matrimonial home with husband keeping another lady with him -- Hence the ground of desertion not proved.

(Para 13-16)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(iii) – Divorce -- Unsoundness of mind -- Standard of proof -- Standard of proof in such case is very high -- Depending on the social set up of the parties and surroundings in which the parties live, the allegations can also be established by preponderance of evidence.

(Para 15)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(iii) – Divorce -- Unsoundness of mind -- Mental disorder cannot be a sole ground to grant decree of divorce, but it must further be proved that it is of a such nature as the appellant/ husband cannot reasonably expected  to live with the respondent -- There has been abnormal aggressive and serious irresponsible conduct done by the wife -- Husband cannot live with the wife because of periodical mental illness, which is rash behaviour, order to stay by force would amount to mental cruelty – Photographs admitted to be that of wife reflects that it was an aggressive expression, not normal, which corroborates the statement given by the husband -- Marriage solemnised between the parties dissolved by decree of divorce.

(Para 18, 19)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(iii), 25 – Divorce -- Permanent alimony -- Husband getting salary of Rs.40,000/- per month, daughter is with the appellant/husband -- Considering the inflation; circumstances; and also to avoid multiplicity of the proceedings, court deemed it appropriate that Rs.8,000/- per month maintenance to the wife henceforth as a permanent alimony -- Deduction shall be made from source and would be paid to the account of wife -- As and when the salary is reciprocally increased, subsequently the amount of maintenance shall also be increased proportionally to the percent and extent of increase in future salary.

(Para 20, 21)

A. Constitution of India, Article 142 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievable breakdown of marriage -- Grant of divorce on the ground of irretrievable breakdown of marriage by Supreme Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties.

(Para 33)

B. Constitution of India, Article 142 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievable breakdown of marriage – Factors to be considered

-- Period of separation should be sufficiently long, and anything above six years or more will be a relevant factor.

-- But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children.

-- Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations – Exercise of jurisdiction under Article 142(1) of the Constitution of India is situation specific.

Some of the factors mentioned can be taken as illustrative, and worthy of consideration.

(Para 33)

C. Constitution of India, Article 142 – Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(i-a), 13B -- Divorce -- Irretrievable breakdown of marriage – Held, decisions of Supreme Court in Manish Goel (2010) 4 SCC 393, Neelam Kumar (2010) 13 SCC 298, Darshan Gupta (2013) 9 SCC 1, Hitesh Bhatnagar (2011) 5 SCC 234, Savitri Pandey and others (2002) 2 SCC 73 have to be read down in the context of the power of Supreme Court given by the Constitution of India to do ‘complete justice’ in exercise of the jurisdiction under Article 142(1) of the Constitution of India – Held, power to do ‘complete justice’ is not fettered by the doctrine of fault and blame, applicable to petitions for divorce under Section 13(1)(i-a) of the Hindu Marriage Act -- Court’s power to dissolve marriage on settlement by passing a decree of divorce by mutual consent, as well as quash and set aside other proceedings, including criminal proceedings, remains and can be exercised.

(Para 40)

D. Constitution of India, Article 32, 142, 226 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievable breakdown of marriage:

Whether a party can directly canvass before Supreme Court the ground of irretrievable breakdown by filing a writ petition under Article 32 of the Constitution.

-- In Poonam’s case (2010) 4 SCC 460, a two judges’ bench of Supreme Court has rightly held that any such attempt must be spurned and not accepted, as the parties should not be permitted to file a writ petition under Article 32 of the Constitution of India, or for that matter under Article 226 of the Constitution of India before the High Court, and seek divorce on the ground of irretrievable breakdown of marriage.

-- Parties should not be permitted to circumvent the procedure by resorting to the writ jurisdiction under Article 32 or 226 of the Constitution of India, as the case may be.

-- Secondly, and more importantly, relief under Article 32 of the Constitution of India can be sought to enforce the rights conferred by Part III of the Constitution of India, and on the proof of infringement thereof -- Judicial orders passed by the court in, or in relation to, the proceedings pending before it, are not amenable to correction under Article 32 of the Constitution of India.

Therefore, a party cannot file a writ petition under Article 32 of the Constitution of India and seek relief of dissolution of marriage directly from Supreme Court.

(Para 41)

E. Constitution of India, Article 32, 142, 226 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievable breakdown of marriage:

Scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India.

“This question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered in terms of paragraphs 8 to 13, inter alia, holding that this Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. While deciding whether to exercise discretion, this Court must consider the substantive provisions as enacted and not ignore the same, albeit this Court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a ‘cause or matter’.”

(Para 42(i))

F. Constitution of India, Article 32, 226 142 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce – Quashing of Ancillary proceedings -- Scope of Article 142 of Constitution of India :

Power to quash and dispose of other/connected proceedings under the Domestic Violence Act, Section 125 of the Cr.P.C., or criminal prosecution primarily under Section 498-A and other provisions of the I.P.C. under Article 142 of the Constitution of India.

Held, Supreme Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.

(Para 42(ii))

G. Constitution of India, Article 32, 226 142 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievable breakdown of marriage:

Whether Supreme Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?

“…… this question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.”

(Para 42(iii))

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Cruelty -- Irretrievable breakdown of a marriage -- A marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides -- A marriage which has broken down irretrievably, spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty -- It is therefore a ground for dissolution of marriage u/s 13 (1) (ia) of the Act.

(Para 16)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Cruelty -- Irretrievable breakdown of a marriage – Both barely stayed together as a couple for four years, living separately for the last 25 years, no child out of the wedlock -- Matrimonial bond is completely broken and is beyond repair -- Long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act – Marriage dissolved.

(Para 18, 19)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia), 25 -- Divorce -- Appellant/husband is an employee in Life Insurance Corporation, and his present salary is more than Rs.1,00,000/- per month – Court deemed it fit and proper that he gives an amount of Rs.30,00,000/- to the respondent/wife as permanent alimony.

(Para 19, 20)

Succession law -- Disinheritance notice in newspaper – Registered Will bequeathing equal share to plaintiff and defendant -- Courts below found that such notice was not sufficient to disinherit defendant from the property -- Will Ex.D1, duly executed by the testator/ father was not revoked by him during his life time – Held, findings given by the Courts below are based upon proper appreciation and correct interpretation of law.

(Para 10-12)

Hindu Succession Act, 1956 (30 of 1956), Section 14, 15(1)(c) – Arrears of maintenance – Death of wife – Mother of wife impleaded as party -- In view of Section 15(1)(c) of the Hindu Succession Act, mother is entitled to the property of her daughter -- Arrears of maintenance accrued till the death – Ld. Judge rightly impleaded the mother of the deceased daughter (wife of the petitioner) in the petition for arrears of maintenance – Revision against impleadment as party dismissed.

(Para 1, 2, 15)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 16 – Adoption deed – Proof of adoption – Panchayatnama (Ex.P1), produced as evidence of the alleged adoption, is neither signed by the adoptive parents nor by the natural parents -- In the absence of the signatures of the adoptive parents as well as the natural parents on Ex.P1, the same cannot be treated as a document of adoption -- In the job card issued by MGNREGA (Ex.DW6/A), the plaintiff-appellant is recorded as being the son of MS – Date of registration much after the alleged adoption by the deceased – Ration card (Ex.D4) also shows the plaintiff-appellant as son of MS -- In the absence of the adoption deed and in view of the evidence led by the defendant-respondents, the plaintiff-appellant cannot be held to be the adopted son of deceased

(Para 8)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Indian Evidence Act, 1872 (1 of 1872), Section 112 – Divorce on the ground of desertion and cruelty -- DNA test of child – Legitimacy of child – Presumption -- Divorce petition  by husband – In pleading husband did not deny access to wife – Admitted that he used to stay with his wife during weekends -- Presumption u/s 112 of Evidence Act gets attracted -- Baby was born to the couple having access to each other and during subsistence of valid marriage between them -- It is conclusive proof of baby’s legitimacy -- Paternity of the child cannot be allowed to be ascertained in the manner sought by the husband -- He cannot be allowed to fill up the lacuna, if any, in his evidence by seeking to conduct the DNA test of the child and the parties.

(Para 5)

Family Courts Act, 1984 (66 of 1984), Section 19(4) – Meager interim maintenance – Expedite disposal of main maintenance petition – Prayer for -- Petitioners submit that income of respondent-husband is admittedly Rs.30,000/- per month whereas the Family Court has granted meagre amount of maintenance of Rs.6,000/- to the petitioners i.e. wife and son -- Considering that amount of maintenance awarded i.e. Rs.6,000/- per month, the Family Court requested to expedite the disposal of determination of final maintenance.

(Para 1-3)

A. Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of conjugal rights -- Transfer of case – While considering the transfer of a matrimonial dispute/case, at the instance of the wife, the Court is to consider the family condition of the wife, the custody of the minor child, economic condition of the wife, her physical health and earning capacity of the husband and most important the convenience of the wife i.e. she cannot travel alone without assistance of a male member of her family, connectivity of the place to and from her place of residence as well as bearing of the litigation charges and travelling expenses.

(Para 6)

B. Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of conjugal rights -- Transfer of case – Ludhiana to Hoshiarpur -- Considering the fact that issuance of notice to the respondent has the consequences of staying further proceedings before the trial Court, otherwise the petitioner-wife will have to bear the litigation expenses and transportation expenses and in case, notice of motion is issued, even the respondent-husband has to bear the litigation expenses – Petition allowed.

(Para 7)

Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 14(1) – Divorce by mutual consent – Exemption from one year separation – Family court dismissed as it found no ground to accept the petition prior to lapse of one year from the date of marriage in terms of Section 14 of the Act -- Parties are still young, the husband being 30 years old, the wife being 26 years old and after marriage, they barely lived with each other for about ten (10) days -- It is categorically stated that the parties seek to move further in their life as there is no possibility whatsoever of any reconciliation between them leading to resumption of matrimonial ties -- Impugned order passed by the learned Family Court set aside, petition u/s 13-B of the Act stands revived -- Parties directed to appear before the learned Family Court on 15.03.2023 for recording of their statements at first motion in accordance with law.

(Para 1, 8-12)

Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Absolute owner -- Ancestral property – Assessment of -- Excerpts of the land – Requirement of -- The trial Court relied upon cross-examination of defendant admitting that suit land in hands of S.R. was ancestral property and similarly other witnesses of the defendant have admitted so -- Whole approach of the trial Court was illegal and erroneous -- In absence of the excerpts being got prepared with regard to the suit land and revenue record being there to corroborate that fact, the suit land could not possibly be taken to have nature of ancestral coparcenary property -- It being so, the inference can be drawn that S.R. was absolute owner of the suit land and not in his alleged capacity as Karta of the Hindu joint family -- It being so, since S.R. died intestate, his estate is to devolve upon all his legal heirs by natural succession in equal shares.

(Para 12)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 15, 21B(3), 23(2), 28 -- Contempt of Courts Act, 1971 (70 of 1971), Section 2(b) -- Divorce – Remarriage during pendency of appeal – Civil Contempt -- Section 21B(3) states that the appeal will be disposed expeditiously within a period of three months -- Despite a lapse of 13 years, the appeal has not been decided, though the Act casts upon a duty on the Appellate Court to dispose it off within three months – A spouse cannot be held guilty u/s 15 of the Act without referring to Section 21B(3) of the Act -- Spouse cannot be made to wait for endless period if the Court is not able of deciding the appeal, especially when the same has been admitted -- Contempt petition dismissed.

(Para 21(a)(b)(d)(e), 22)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 15, 21B(3), 23(2), 28 -- Contempt of Courts Act, 1971 (70 of 1971), Section 2(b) -- Divorce – Remarriage during pendency of appeal – Civil Contempt -- Violation of Section 15 of the Hindu Marriage Act amounts to civil contempt under Section 2(b) of the Act -- However, when there is no specific restraint order from remarrying after three months period expired u/s 21B(3) for disposal of the appeal, considering that the respondent waited for 10 years and ultimately decided to move on to secure her future and performed the second marriage, no willful disobedience made out – Contempt petition dismissed.

(Para 21(f), 22)

C. Indian Penal Code, 1860 (45 of 1860), Section 494 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13, 15, 21B(3) -- Divorce – Remarriage during pendency of appeal – Bigamy – Suo-moto quashing of summoning order -- There is no specific restraint order from remarrying after three months period expired under Section 21B(3) for disposal of the appeal – Respondent waited for 10 years and ultimately decided to move on to secure her future and performed the second marriage -- Summoning order u/s 494 IPC observing that respondent-wife has performed the marriage in violation of Section 15 of Hindu Marriage Act not sustainable -- Suo moto power u/s 482 Cr.P.C. exercised, summoning order and subsequent prosecution in pursuance thereto quashed.

(Para 23)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 22 -- Maintenance to grand-daughter -- Ld. Additional District Judge set aside the order granting maintenance of Rs.10,000/- per month to minor/ granddaughter – In revision, petitioners insisted that it is incumbent upon the respondents/ grandparents to maintain their granddaughter, however, it is not disputed that the respondent no. 1/ grandfather is a pensioner, whereas the petitioner no. 1/ mother is earning – Revision dismissed.

(Para 7)

Hindu Succession Act, 1956 (30 of 1956), Section 25, 27 -- Dowry articles – Right of parents of deceased daughter -- Husband convicted for murder of wife/ daughter of the plaintiffs, who died intestate not leaving any child behind and defendants were found disentitled to claim her inheritance by Lower Courts – Although after trial only two of them were convicted, whereas four were acquitted, that does not affect the civil liability of the defendants – Appeal dismissed.

(Para 2, 12-16)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Hindu Marriage Act, 1955 (25 of 1955), Section 11 -- Nullity of marriage – Maintainability of petition u/s 125 Cr.P.C. – FAO is pending, no stay against decree whereby marriage stands declared null and void -- Thus, as on date relation of husband wife does not exist between petitioner and respondent – Held, Family Court rightly dismissed petition u/s 125 Cr.P.C. -- There is no legal or factual infirmity in the impugned order, thus, no interference is warranted – Revision petition dismissed.

(Para 5-9)

Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Transfer of divorce petition – Jaipur to Kurukshetra -- Petitioner and the respondent both are in Government service and are posted at Jaipur -- Petitioner is currently posted as Deputy Director in National Health Mission, Jaipur and a Class-I, Officer remained posted in Rajasthan since 2011 – Transfer Petition on the ground that her father-in-law was Assistant Superintendent of Police in Rajasthan (now retired), is a very influential person in Jaipur and that at his behest, threats have been extended to the petitioner, in respect whereof, some complaints have been made by her to the authorities -- Son of the petitioner is living and studying in Kurukshetra, Haryana, where he has initiated proceedings for maintenance u/s 125 of the Cr.P.C against the respondents – Held, extension of some threats as alleged may be a danger to her personal security but that may not be sufficient or a good ground for the transfer of the petition -- The complaints alleging such threats are all subsequent to the filing of the divorce petition and may be for creating a ground for seeking transfer of the divorce petition -- Even the initiation of the proceedings by the son at Kurukshetra in Haryana are subsequent to the filing of the divorce petition and appears to be an afterthought – Held, it is not just and proper to transfer the case outside Rajasthan to a remote place like Kurukshetra in Haryana.

(Para 3-6)

Hindu Marriage Act, 1955 (25 of 1955), Section 13, 13-B, 28  -- Divorce by mutual consent -- Settlement between parties in appeal -- Conversion of petition u/s 13B of HMA – Waiver of six months for second motion -- Application seeking conversion was allowed -- Statements of the parties at first motion were recorded -- Settlement amount paid -- Parties living apart since 15.04.2010 and there being no possibility of any rehabilitation of matrimonial ties despite earnest efforts being made, the statutory period of six months for recording of the statement at second motion indeed stands waived off – Statement of second motion recorded – Non-waiver of the same would only have prolonged the agony of the parties and prevented them from moving on in their lives -- No possibility for resumption of matrimonial ties between the parties -- Marriage dissolved by way of mutual consent.

(Para 4-9)

A. Indian Penal Code, 1860 (45 of 1860), Section 498-A -- Hindu Marriage Act, 1955 (25 of 1955), Section 11 -- Void marriage – Conviction u/s 498-A IPC – Sustainability of -- Marriage found to be null and void, as such the conviction u/s 498-A IPC would not be sustainable. Shivcharan’s case (2007) 15 SCC 369 relied.

(Para 7)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 378 -- Dowry Prohibition Act, 1961, (28 of 1961), Section 3, 4 -- Acquittal of accused – Interference in -- Ld. trial Judge by an elaborate reasoning, arrived at after appreciation of evidence, has found that the prosecution has failed to prove the case beyond reasonable doubt – High court reversed the judgment – Held, in an appeal/revision, the High court could have set aside the order of acquittal only if the findings as recorded by the trial Court were perverse or impossible – No perversity in the approach adopted by the learned trial Judge -- Held, High Court ought not to have interfered with the well-reasoned judgment of the trial Judge -- Appeals allowed, judgment and order passed by the High Court quashed and set aside.

(Para 8-11)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 20(3) -- Constitution of India, Article 227 -- Interim maintenance – Expeditious decision – Prayer of -- Petitioner/daughter of respondent is pursuing undergraduate course in Medicine and Surgery in China, requires money for meeting her expenses – Petition allowed, Family Court directed to decide the application for interim maintenance expeditiously preferably within one month.

(Para 1, 4, 5)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Hindu Marriage Act, 1955 (25 of 1955), Section 12(1)(c) – Interim maintenance to wife – Petition for annulment of marriage – Effect of -- Filing of the petition for annulment of marriage in itself cannot be a ground to deny interim maintenance to the respondent-wife.

(Para 3)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Interim maintenance – Look after old parents by husband – Ground of -- Petitioner-husband required to take care of his old parents cannot be a ground to avoid his responsibility towards the respondent-wife.

(Para 3)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 19 -- Maintenance to grandchildren --  Interpretation of word widow -- Family Court directed the petitioner to pay the maintenance pendente lite @ Rs.2,000/- each to his three grandchildren – The 1956 Act is a beneficial legislation enacted in order to take care of the destitute daughter-in-law who, on account of unfortunate circumstances, becomes a widow -- The word “widow” would include the minor grandchildren who are staying with their mother -- No ground to interfere with the impugned order -- Revision petition dismissed.

(Para 1-4)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 19, 21, 22, 23 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 -- Maintenance to widowed daughter-in-law and grandchild – Liability of mother-in-law --  Rejection of plaint -- Contention that petition u/s 19 of the 1956 Act can only be maintained against the father-in-law and not against the mother-in-law -- Under common law, if the grand mother has the wherewithal, she has the moral responsibility to maintain her widowed daughter-in-law and grandchild – Application for rejection of plaint dismissed – Revision also dismissed.

(Para 1-4)

Hindu Succession Act, 1956 (30 of 1956), Section 15(1) -- Dowry Prohibition Act, 1961, (28 of 1961), Section 6(3) – Conviction for murder of wife – Husband’s right on dowry articles -- Wife died within 7 years of her marriage -- Record reveals that she died unnatural death other than in normal circumstances -- Thus, the case of the appellant squarely falls within Clause 3 of Section 6 of the Dowry Prohibition Act, 1961, so as to maintain the custody of dowry articles with the complainant -- Provisions of Dowry Prohibition Act, 1961, cannot be overlooked by invoking the provisions of Hindu Law relating to Succession -- Trial Court rightly held that husband was not entitled to retain dowry even if he was acquitted and dowry articles will remain with father of deceased.

(Para 14-16)

Hindu Succession Act, 1956 (30 of 1956), Section 2(2), 7, 8 – Constitution of India, Article 14, 21 -- Scheduled Tribe daughter’s right of survivorship -- Whether the appellant/petitioner being the daughter is entitled to the share in the compensation with respect to the land acquired, on survivorship basis under the provisions of Hindu Succession Act? -- As per Section 2(2) of the Hindu Succession Act, the Hindu Succession Act will not be applicable to the members of the Scheduled Tribe.

-- If the claim of the appellant on the basis of the survivorship under the Hindu Succession Act is accepted in that case it would tantamount to amend the law. It is for the legislature to amend the law and not the Court.

-- To deny the equal right to the daughter belonging to the tribal even after a period of 70 years of the Constitution of India under which right to equality is guaranteed, it is high time for the Central Government to look into the matter and if required, to amend the provisions of the Hindu Succession Act by which the Hindu Succession Act is not made applicable to the members of the Scheduled Tribe.

-- Direction given to Central Government to consider it just and necessary to withdraw the exemptions provided to the Scheduled Tribes and whether to bring a suitable amendment or not – Court shown hope and trust that the Central Government will look into the matter and take an appropriate decision taking into consideration the right to equality guaranteed under Articles 14 and 21 of the Constitution of India.

(Para 6-7.2)

Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Divorce petition – Non-filing of written statement -- Striking off defence – Petitioner-wife was never afforded sufficient and adequate opportunity to file her written statement -- Held, in the matrimonial litigation, the dispute is primarily relating to the human relationship, which ultimately not only affects the two families but the society at large as well and thus, the standard of strict applicability of the procedure needs to be avoided and instead of adopting hyper-technical approach, the courts are required to be more practical while dealing with such kind of litigation -- Revision petition allowed by granting one effective opportunity to petitioner-wife to file written statement as well as reply to the application for grant of interim custody of the minor child before the court below.

(Para 5-8)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Transfer of divorce petition – Yamunanagar to Mohali – Respondent- husband, besides looking after his shuttering business is burdened with the responsibility of upbringing three children; out of whom two are girls aged 18 and 21 years while the son is 15 years of age -- The age of the children is very crucial inasmuch as their studies and career is concerned – Singular concern that weighs is the interest and welfare of the children, which is paramount -- Keeping in view the interest of the young adults/ children of the parties, no case for transferring the petition u/s 13 of the HMA from Yamuna Nagar to Mohali is made out – Petition dismissed.

(Para 7-10)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 14 – Divorce by mutual consent within one year of marriage -- Waiver of mandatory period of one year -- Couple stayed together only for about two months and there is no issue from the wedlock, this is the sufficient ground to allow their application filed u/s 14 of the Act for waiving off the mandatory period of one year.

(Para  6)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 14 – Divorce by mutual consent within one year of marriage -- Waiver of mandatory period of one year – Appeal against dismissal of application for waiver – Couple Stayed together for about two months – No issue from the wedlock -- Appellant/ husband is staying in USA – SPA/ father of husband and the respondent alongwith her parents present in Court -- Keeping in view the compromise effected and the statements made by both the parties, appeal converted to a petition u/s Section 13-B of the Hindu Marriage Act, 1955 -- Mandatory period of one year u/s 14 of Act, 1955 waived -- Marriage between the parties dissolved by way of mutual consent.

(Para 6)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Dissolution of marriage – Witness-wife living in Canada – Cross-examination through video conferencing – Procedural aspects in conjunction with the latest technology have to be used, so as to help the parties to avail their remedies in the most efficient and effective manner, rather than curtailing their rights -- It would also ensure expeditious disposal of the proceedings including, avoid the burden of unnecessary expenses relating to the visit of petitioner, if any -- Trial court shall allow the petitioner-wife to appear as witness for the purpose of her cross-examination through video conferencing by following the procedure laid down under the aforesaid High Court Rules and orders.

(Para 10, 11)