Irretrievable break down of Marriage: Supreme Court can grant divorce to couple.

Why lock a couple in a dead marriage.

The Respondent wife, who did not appear before the trial court after filing of written statement, did not respond to the request made by the High Court for personal appearance.

In spite of service of Notice, the Respondent did not show any interest to appear in this Court also. This conduct of the Respondent by itself would indicate that she is not interested in living with the Appellant. Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty [Samar Ghosh v. Jaya Ghosh1]. The High Court observed that no attempt was made by either of the parties to be posted at the same place. Without entering into the disputed facts of the case, we are of the opinion that there is no likelihood of the Appellant and the Respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage.

Continue reading “Irretrievable break down of Marriage: Supreme Court can grant divorce to couple.”

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Divorce by Mutual Consent: Waiver of time for second motion

Divorce by mutual consent

Requirement is that such divorce shall be given by way of two motions. Second requirement of section 13-B of Hindu Marriage Act is that second motion can be entertained only after expiry of six months after the first motion is accepted by the court.

Question is whether the said period is directory or mandatory? In other words, can the court waive the said period and accept second motion before expiry of said period?

Decision:

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 :

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; Continue reading “Divorce by Mutual Consent: Waiver of time for second motion”

Triple talaq is sinful and no more lawful in India

Supreme Court: Triple talaq is manifestly arbitrary.

(An abstract of the decision of Supreme Court dated 22 August 2017)

Types of Talaq in Muslim Law

‘Talaq-e-hasan’ is pronounced in the same manner, as ‘talaq-e-ahsan’. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked.
The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). ‘Talaq’ is pronounced again. After the second pronouncement of ‘talaq’, if there is resumption of
cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so,
either expressly or by resuming conjugal relations, ‘talaq’ pronounced by the husband becomes ineffective, as if no ‘talaq’ had ever been expressed. If the third ‘talaq’ is pronounced, it becomes irrevocable.
Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third ‘tuhr’ (period of purity), as soon as the third declaration is made, the ‘talaq’ becomes
irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required ‘iddat’ (the period after divorce, during which a woman cannot remarry. Continue reading “Triple talaq is sinful and no more lawful in India”

Transfer of matrimonial proceedings: Use video conferencing instead.

Forum Non Conveniens.

The doctrine of forum non conveniens can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice.

In Spiliada Maritime (1986)3 All ER 843 case the House of Lords laid down the following principle:

“The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in which the case could be tried more suitably for the interest of all the parties and for the ends of justice.”

The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances militating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried. Continue reading “Transfer of matrimonial proceedings: Use video conferencing instead.”

Cruelty includes efforts to separate from joint family

Attempt to persuade Husband to get separated from Joint Family with Parents is ‘Cruelty’:

Acceptance of Hindu Values:

Wife wanted the Appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the Appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.

Normal Indian Values:

Continue reading “Cruelty includes efforts to separate from joint family”

Family Court Act (Bare Act)

THE FAMILY COURTS ACT, 1984

(No.66 of 1984)
[14th September, 1984]

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.

Be it enacted by Parliament in the Thirty-fifth Year of the Republic of India as follows:

CHAPTER I – PRELIMINARY

1. Short title, extent and commencement. – 1) This Act may be called the Family Courts Act,
1984.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different States.
2. Definitions.- In this Act, unless the context otherwise requires,
a. “Judge” means the Judge or, as the case may be, the Principal Judge, Additional
Principal Judge or other Judge of a Family Court;
b.”notification” means a notification published in the Official Gazette;
c. “prescribed” means prescribed by rules made under this Act;
d. “Family Court” means a Family Court established under Sec.3;
all other words and expressions used but not defined in this Act and defined in the Code
of Civil Procedure, 1908(5 of 1908), shall have the meanings respectively assigned to
them in that Code.

CHAPTER II – FAMILY COURTS

(3) Establishment of Family Courts.-(1) For the purpose of exercising the jurisdiction and
powers conferred on a Family Court by this Act, the State Government after consultation with the High Court, and by notification,-
a. shall, as soon as may be after the commencement of this Act, establish for every area in
the State comprising a city or town whose population exceeds one million, a Family
Court;
b. may establish Family Courts for such other areas in the State as it may deem necessary.

(2) The State Government shall, after consultation with the High Court specify, by notification, the local limits of the area to which the jurisdiction of a Family Court shall extend and may, at any time, increase, reduce or alter such limits.

Continue reading “Family Court Act (Bare Act)”

THE ANAND MARRIAGE ACT, 1909

Laavan fere, Sikh weddingThe law governing sikh marriage in India.

Full Bare Act

Anand Marriage Act, 1909.

(Act 7 of 1909)
[AS ON 01.05.2014]
[22nd October, 1909]

An Act to remove doubts as to the validity of the marriage ceremony common among the Sikhs called Anand.
WHEREAS it is expedient to remove any doubts as to the validity of the marriage ceremony acidity of the marriage ceremony common among the Sikhs called Anand; It is hereby enacted as follows:–

1. Short title and extent: (1) This Act may be called the Anand Marriage Act, 1909; and
(2) It extends to the of India except the State of Jammu and Kashmir.*

2. Validity of Anand marriages: All marriages which may be or may have been duly solemnized according to the Sikh marriage ceremony called Anand  [commonly known as Anand Karaj]## shall be, and shall be deemed to have been with effect from the date of the solemnization of each respectively , good and valid in law.

3. Exemption of certain marriages from Act: Nothing in this Act shall apply to:-

Continue reading “THE ANAND MARRIAGE ACT, 1909”

Second marriage by Muslim male injuncted.

Family court Bombay restrains Muslim man from marrying second time

The family court at Mumbai, India, in an unprecedented order, has restrained a Muslim US-returned paediatrician from marrying for the second time till he settles the rights and dues of his wife.

“The law and the religion both do not permit a Muslim man to perform another marriage as of a right by defeating and delaying the rights of his first wife,” said Judge Swati Chauhan in her May 13 order. Worli resident Dr Akbar Khan (name changed) is directed “not to perform another marriage” till the January 30, 2015 order to grant his estranged wife Sakina (name changed) alternate accommodation is complied with. And, until her prayer for maintenance is not “heard, decided and fully complied with”.

Wife Sakina (34) had moved the court after finding that husband Akbar (45) had posted an ad on an online matrimonial website that he is “desirous of marrying an unmarried young girl in the age group of 18-25 years”. She apprehended that Akbar’s remarriage would “frustrate and defeat her lawful rights”.

The couple married on May 27, 2001 and the next month moved to the US where four sons, between 12 and 4 years, were born. Frictions arose between them even before the family shifted back to Mumbai in September 2011 and into a leased flat in Versova.

Sakina had initially approached the family court in Bandra for custody of her three older children saying Akbar without her consent had snatched them from her. She claimed that the landlord had asked her to vacate the flat in July 2014. She pointed out that the Akbar had not complied with the court’s earlier order to allow her access to her 3 sons and alternate accommodation. She urged that Akbar be directed not to marry another woman till her rights are adjudicated upon.

Akbar’s advocate argued that his client had divorced Sakina, who had accepted the talaq as she had not challenged it. He said the parties are governed under the Muslim Personal Law and therefore a husband cannot be restricted from exercising his right to perform four marriages.Sakina’s advocate Neelofar Akhtar countered that a husband can be restricted under the law and religion if he is defeating the rights of his first wife. She argued that the widely accepted perception of four marriages is nothing but an “end product of misrepresentation of the holy Quran”. Akhtar cited the surah nisa ayat 3 and 129 saying Muslim men are permitted to enter into four marriages but it is after compliance of certain stipulations which serve as injunction.Judge Chauhan said that from a careful reading of its English version, it is understood that Muslim men are preached that they can marry for the second time only if they are able to be equitable to both the women. “In the same breath the surah nisa further states that practically this is not possible and therefore second marriage should not be contracted because it will cause injustice,” she added.Chauhan said various authors and authoritative writings have discouraged polygamy and stringent conditions were imposed on men even during the lifetime of Prophet Mohammad. The judge said Akbar’s “conduct is absolutely against the injunction of the Holy Quran”, as he has “shown least care towards the issue of food, clothing, maintenance and accommodation of the petitioner”.

Chauhan also took note of the Supreme Court’s February 2015 judgment in Khursheed Ahmad Khan versus State of UP case, which Akhtar again relied upon, which held that a practice cannot acquire religious sanction just because it is permitted and even the practice of having more wives than one can be regulated or prohibited in the interest of public order, morality and health.The judge noted that despite the order for providing suitable accommodation for Sakina and her 4-year-old son, Akbar has kept her away from the matrimonial home and her 3 sons strategically. He has also not provided her with any maintenance and “very conveniently” remained absent for the hearings. “In such a situation, if the respondent performs another marriage, the rights of the petitioner would definitely be defeated,” the judge said, concluding that “it is a fit case” to pass the direction.

Claim of Maintenance by Spouse: Delay in adjudication

Claim for maintenance or support by wife

Delay in adjudication of Spouse Support or Maintenance Claim by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual.

Sustenance by dependent spouse:

The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.

Sensitivity required from Family Judge:

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.

[Source: Bhuwan Mohan Singh v. Meena]

Analysis of Bhuwan Mohan Singh v. Meena:

Maintenance or spouse support is always a matter of acrimonious contention between the warring couple. The concept of human right introduced in this case is good but it is likely to be turned on it’s head. Here is ground reality of litigation in India:

While the constitution of India ensures equal rights and status to all the fact is the billionaires and beggars share the same street. The courts are approached by poor and rich alike. The claim of maintenance for child or spouse support is not different. Litigations drag for years, even before an interim amount is given. While for rich couple it may be alright to pay and receive huge arrears, for poor the delay means denial. It is also a fact that rich often get speedier justice than poor.

It would be appropriate if these provisions relating to child support and spouse support are properly reworked and re-legislated with the proper attention to human rights and disassociating it’s use as leverage in matrimonial litigation. If that is done, perhaps the courts would not be required to introduce human rights from back door.

This is not the first time court has emphasized expediency in such matters. The truth is that these observations fall on deaf ears in Indian Judicial System. Subordinate Judges have become insensitive to observations of expediency by Apex Courts and in the absence of any direct accountability measure, this judgement is not going to change anything. However citing this judgement with a motion for early hearing may yield results.

 

Grant of maintenance to Muslim woman

Right of Muslim woman to receive maintenance aka support from husband:

Right of maintenance under Indian Laws:

Petition under Section 125 CrPC would be maintainable before the Family Court as long as the appellant does not remarry. The amount of maintenance to be awarded under Section 125 CrPC cannot be restricted for the iddat period only.

Though the aforesaid decision was rendered interpreting Section 7 of the Family Courts Act, 1984, yet the principle stated therein would be applicable, for the same is in consonance with the principle stated by the Constitution Bench in Khatoon Nisa

[Source: Shabana Bano v. Imran Khan, (2010) 1 SCC 666.]

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 include provision for her residence, her food, her clothes, 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 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 in Section 3(3) but nowhere has Parliament 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 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”, and 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 wife’s mahr and restored her dowry as per Sections 3(1)(c) and 3(1)(d) of the Act.

[Source: Danial Latifi v. Union of India, (2001) 7 SCC 740 (Supreme Court of India)]

 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 and 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 of the Act; that liability of a Muslim husband to his divorced wife arising under Section 3 of the Act to pay maintenance is not confined to the iddat period; and that a divorced Muslim woman who has not remarried and who is not able to maintain herself after the 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 to Muslim law from such divorced woman including her children and parents and 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.

The validity of the provisions of the Act was for consideration before the constitution bench in the case of Danial Latifi and Anr. v. Union of India. In the said case by reading down the provisions of the Act, the validity of the Act has been upheld and it has been observed that under the Act itself when parties agree, the provisions of Section 125 Cr.P.C. could be invoked as contained in Section 5 of the Act and even otherwise, the magistrate under the Act has the power to grant maintenance in favour of a divorced woman, and the parameters and considerations are the same as those in Section 125 Cr.P.C..

It is undoubtedly true that in the case in hand, Section 5 of the Act has not been invoked. Necessarily, therefore, the magistrate has exercised his jurisdiction under Section 125 Cr.P.C. But, since the magistrate retains the power of granting maintenance in view of the constitution bench decision in Danial Latifi’s case (supra) under the Act and since the parameters for exercise of that power are the same as those contained in Section 125 Cr.P.C., we see no ground to interfere with the orders of the magistrate granting maintenance in favour of a divorced Muslim woman.”

 When the marriage breaks up, a woman suffers from emotional fractures, fragmentation of sentiments, loss of economic and social security and, in certain cases, inadequate requisites for survival. A marriage is fundamentally a unique bond between two parties. When it perishes like a mushroom, the dignity of the female fame gets corroded. It is the law’s duty to recompense, and the primary obligation is that of the husband. Needless to emphasise, the entitlement and the necessitous provisions have to be made in accordance with the parameters of law.

[Source: Shamim Bano vs. Asraf Khan, April 16, 2014, Supreme Court of India]

Related post:
An eBook about Law of Maintenance.