SHIROMANI JAIN v. ASHOK KUMAR JAIN AND ORS. (2018) 14 SCC 310

RELEVANT FACTS

Shiromani Jain (woman/appellant) was married to Ashok Kumar Jain (Respondent 1) in a Jain temple according to the Hindu rites and Manu (son) born out of this wedlock. Respondent 1 leaves his wife and his son out of the house because of not bringing sufficient dowry and had married Jyoti Jain (respondent 2) in a Jain temple under Hindu rites and had a daughter born out of this wedlock.

Appellant filed a petition before the Family Court to declare 2nd marriage as null and void and she also demanded maintenance from her husband. But in the absence of evidence of her marriage, the Family court and High Court both dismiss the application holding that performance of marriage in accordance with Hindu rites has not been proved by the Appellant. Relatives have not been examined. Now appellant filed an appeal before Hon’ble Supreme Court to allow her marriage to be valid and to provide maintenance.

ISSUES

• Whether there is allowed maintenance to the appellant and her son?
• Whether there is 1st and 2nd marriage valid and void respectively?

LAW POINTS/ RULE OF LAW

• Section 9 and 17 of Hindu Marriage Act, 1955.
• Section 494 and 495 of Indian Penal Code, 1860.

JUDGEMENT WITH REASONING

Learned counsel of the respondent stated that there is only an agreement had been entered into between appellant and respondent 1 that notarised agreement could not be said to be a valid form of marriage. And there is no proof of marriage between the appellant and respondent 1 but there is a valid marriage performed between respondent 1 and 2 in the Jain temple according to the Hindu rites. And according to the case law Gopal Lal v. the State of Rajasthan, Merely execution of the agreement could not be said to be a valid form of the marriage.

So, Family Court dismissed the application holding that performance of marriage in accordance with Hindu rites has not been proved by the Appellant. And High Court also affirmed with the judgment of the Family Court. 

Now learned counsel of the appellant stated in Hon’ble Supreme Court that declaration made in the application filed Under Section 9 of the Act had not been taken into consideration either by the Family Court or by the High Court for restitution of the conjugal rights and there are two witnesses who examined to support the fact of marriage.

There was also stated that the appellant and her son have not lived together with respondent 1 for the last 18 years. So, there should be given a maintenance of Rs. 8 Lakhs and 6000 per month. And marriage between respondent 1 and 2 is null and void according to section 17 of the Hindu Marriage Act, 1955, and respondent 1 should be punished on the basis of section 494 and 495 of the Indian Penal Code, 1860.

Finally, the Hon’ble Supreme Court stated that both the marriage solemnized according to the Hindu Rites but there is also not allowed bigamy to any Hindu person under section 17 of the Hindu Marriage Act, 1955. So, the court held that the marriage between respondent 1 and 2 is null and void and there should be given maintenance to the appellant by the Respondent.

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MEENAKSHI KHANDELWAL v. SHAILESH KHANDELWAL (2012) 11 SCC 798

RELEVANT FACTS

Marriage between Meenakshi Khandelwal (Petitioner/wife of the Respondent) and Shailesh Khandelwal (Respondent) was dissolved by the Family Court by section 13b of the Hindu Marriage Act, 1955 under divorce by mutual consent. There is a daughter Shrestha. She is nine years old and the family court gave custody of the child to her mother. After that respondent filed an appeal before the High Court to challenge the order of the Family Court. High Court allowed and permitted him to retain the custody of the child and allowed visitation rights to the mother. Now, the petitioner challenges the order of the High Court in the Hon’ble Supreme Court under Special Leave Petition (SLP).

ISSUES

Whether the petitioner can get custody of her child? 

LAW POINTS/ RULE OF LAW

• Section 13b and 26 of Hindu Marriage Act, 1955.
• Section 7 and 17 of Guardians and Wards Act, 1890.

JUDGEMENT WITH REASONING

First of all, in the welfare and interest of the child, Hon’ble Supreme Court directed both the parties to appear before the court with their daughter.

The daughter expressed his views that she is comfortable staying with her father and wanted to continue her education under her father’s guidance. And she also said that she had a grievance against her mother.

After that court stated that it is right to the entitlement of the child to the mother for the welfare of a child and according to the Special Leave Petition. But according to the statement of the child, she wanted to live with her father.

So, the finally Hon’ble Supreme Court concluded and directed the respondent to take his daughter to the Nagpur Bench Meditation Centre on a particular date which was decided by the court and the respondent should hand over his daughter to the petitioner at 10 a.m. in the presence of mediators. And there is also given direction to the mother of the child to return the child to the respondent at 6 p.m.

The court directed the mediators to observe the behavior and relationship of the child to her mother and father and subsequently submit a report to this court. So that on the behalf of the report the court can easily take the next step regarding the custody of the child and appoint a guardian. Because the court has the power to appoint a guardian for the child under section 7 and 17 of the Guardians and Wards Act, 1890.

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Swapna Rani Sahoo vs Niranjan Sahoo

Facts:

A matrimonial dispute was raised before a family court when the respondent that is the husband filed an appeal in the court against her wife, who was said to have misbehaved with the in-laws by making use of foul language and other misappropriate conduct was reported. The appellant went to her parental house along with her child and did not inform about her whereabouts to the respondent. It was appealed to dissolve the marriage on the ground of cruelty. However, in reply, the appellant denied all such allegations and submitted that the respondent in order to fulfill his personal motive filed an appeal of divorce knowing that the respondent had an extramarital affair with one of his staff members. The learned judge, the family court allowed the prayer for divorce by discarding all the allegations made by the appellant and decided that the wife is not subjected to any permanent alimony. Aggrieved by the decision, the appellant moved to High Court.

Issues:

Whether the appellant is entitled to permanent alimony?

Legal Provisions:

• Section 13, Hindu Marriage Act, 1955 – Divorce
• Section 25, Hindu Marriage Act, 1955 – Permanent alimony and maintenance

Appellant’s Contention:

It was submitted by the appellant that the judgment was illegal and the learned judge had erred in the finding if there was any cruelty against the husband by the wife. The wife claimed that the respondent had performed second marriage before the appeal period and laid evidence that proved that the second marriage took place much before the appeal period. The appellant further submitted that she had been suffering from breast cancer despite this she had been staying with her in-laws, whereas the respondent was cohabiting in a separate house with a newly wedded wife.
Therefore, it is prayed to set aside the judgment of the learned judge, Family court.

Respondent’s Contention:

The respondent laid evidence to prove that he had performed second marriage after the decree of the divorce of the first marriage and presented a birth certificate of the female child, born out of the second wedlock along with a marriage photograph.

Observation of the court:

The court was of the opinion that the learned judge, Family court had erred in not granting permanent alimony to the appellant, but the court did not feel inclined to set aside the decree of divorce just because the respondent was remarried. The court determined the quantum of alimony be granted to the appellant as per the Hindu Marriage Act, 1955 after considering the income and age of the husband, it was felt appropriate to fix permanent alimony and provide for expenses relating to the child born out of wedlock from the first marriage.

Judgment:

The court ordered the respondent to pay a sum of Rs. 7,00,000/- as permanent alimony and to secure the appellant with residential accommodation.

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RAMKANYA BAI vs. BHARAT RAM

FACTS OF THE CASE:

The present appeal/SLP was preferred by the wife/appellant against the impugned Judgment and order of Madhya Pradesh High Court, Indore bench passed on 26th June 2008. Appellant and respondent were getting married in April 1999. The wife, after some time, was harassed by the husband/respondent and turned out of her matrimonial house. In 2004, the husband filed an application under Section 13 of the Hindu Marriage Act in the Court of Additional District and Session Judge, District Mandsor, Madhya Pradesh. The district court dismissed the application of the husband/respondent. A child was born to wife in November 2004 and the husband filed an appeal under section 28 of Hindu Marriage Act in Madhya Pradesh High Court, Indore Bench and asked for an order for performing a DNA test for the paternity of child on the ground that such child could not be born out of the wedlock between appellant and respondent. The Madhya Pradesh High Court, Indore Bench passed an order on 26th June 2008 in favor of the husband and directed to perform DNA test for paternity of the child and made the following observation that is reunited.”

ISSUE:

Whether the order to perform a DNA test is legally valid or not on the sole presumption of re-union of parties?

RULE OF LAW:

Section 13 of the Hindu Marriage Act, 1955
Section 28 of the Hindu Marriage Act, 1955

JUDGEMENT:

The learned bench of Hon’ble Supreme Court observed that there is no justification for allowing to perform the DNA test of a child only on the ground that there is a possibility of re-union of parties if the legality of the child to be proved and if it is proved that the child was an outcome of the wedlock between the parties. Also, the court observed that there is no allegation of illicit relationship with the third person by husband/respondent on wife/appellant, by which a DNA test can be performed for the paternity of a child. The Court mentioned that “It is well settled that the presumption of legitimacy is a presumption of law”. So, if a child is born out of wedlock there is a presumption of his/her legitimacy unless and until there is any allegation over the wife to have been in an illicit relationship with a third person.
Therefore, The Hon’ble Supreme Court set aside the impugned order of the Madhya Pradesh High Court dated 26th June 2008, and the application to performing the DNA test on the child of wife/appellant is hereby rejected.

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Abstract

On 6th November 2020 the decision taken by the Hon’ble Supreme Court of India in Shruti Kaushal Bisht Vs Kaushal R Bisht, the court discussed the ambit and application of Section 21- A of Hindu Marriage Act. The section talks about the power to transfer petitions in certain cases. This section provides the guidelines as to when can a petition under this Act be transferred to a different court in the interest of justice.

Facts of the case

The parties of the petition got married in the year 19.11.2015 but eventually, disputes started arising between them. Both the parties decided to live separately from 12.01.2019. A divorce petition was filed by the husband on 7.5.2019 before the Family court in Pune Maharashtra. After receiving a notice regarding the divorce petition the wife filed for transfer of petition and later as a response to the divorce petition filed by the husband. She also filed a petition for restitution of conjugal rights before the Family Court, Saket, New Delhi. Upon receiving the said petition filed by the wife the husband also filed for transfer of petition.

Arguments of both the parties

Some of the arguments made by the counsel of the wife were as follows:
• The grounds on which the wife seeks transfer of the husband’s divorce petition from Pune to New Delhi is because she has no independent source of income and since her husband is not paying the maintenance she is entitled to transfer of petition from Family Court in Pune to Family Court in Delhi.
• This was pleaded to try both divorce petition and restitution of conjugal rights petition in one court.
• It was argued that as the wife was unemployed and she is depended on her parents.

Some of the contentions made by the husband were as follows:
• The husband opposed that the transfer petition filed by the wife, is that his own petition for divorce was prior in point of time and that therefore under Section 21-A(2)(b) of the Hindu Marriage Act, 1955, the petition filed by the wife subsequently, is liable to be transferred to Pune.
• He agreed to bear the expenses of the wife to travel from Delhi to Pune.
• He also stated that his father suffers from seizures and asthma and his mother had undergone a cervical biopsy due to which he was needed by his aged parents.

The rationale of the Judgment

The judges decided the case considering the following contentions made by both the parties:
• The claim made by the petitioner that she is unemployed and doesn’t have an independent source of income was not seriously disputed by the respondent but on the contrary, he has attempted to take advantage of the fact that the wife is unemployed by claiming in the ground no. (F) that no inconvenience will be caused to the wife, who is unemployed if she is made to attend the proceedings in Pune.
• The claim of the wife regarding not giving maintenance is also not disputed.
• The respondent’s party has highly relied on Sec 21-A (2)(b) of Hindu Marriage Act 1956, the section provides guidelines as to transfer of petition for certain cases. It is to be observed that the court in the order has stated that “…contention is misconceived, as can be seen from the plain language of Section 21-A in entirety,…” here the court has tried to enunciate the scope of interpretation of this Section in this case.
• The court referred the case of Guda Vijalakshmi vs. Guda Ramchandra Sekhara Sastry wherein the Court rejected the contention that the substantive provision contained in Section 25 CPC is excluded by reason of Section 21 of the Hindu Marriage Act, 1955.

Judgment

The Supreme Court observed the contentions made by the parties and passed an order in the favour of the wife. Thus the petitions of divorce and restitution of conjugal rights are to be tried in the Family Court of Delhi.

Conclusion

In this case, the court has adopted an analytical approach towards interpreting the language of the law made. The court determined that the pre-condition for application of Section 21-A was not satisfied due to which the petition was transferred to Pune. It is to be seen that Sec 25 of CPC has prevailed wherein a conflict of both the sections was observed.

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SA v AA

Facts:

In the present case, an appeal is filed by the Appellant (Wife) under Section 28 of Hindu Marriage Act, 1955 against the impugned judgment by the learned ADJ Delhi, which was granted in favour of the Respondent (Husband) and the Appellant was held guilty of subjecting Respondent to cruelty under Section 13(1)(ia) of the Hindu Marriage Act,1955. The Appellant and Respondent were married on 03.02.2005 and they have one male child. After the solemnization of the marriage, the Appellant subjected the Respondent to constant mental torture.  Thus, based upon the facts, circumstances and evidences, the Learned ADJ stated that the Respondent (husband) had established the ground of cruelty thereafter to seek dissolution of marriage which is being appealed to the Supreme Court.

Issues:

Whether the Appellant subjected Respondent with cruelty after the solemnization of marriage under Section 13(1) (ia) of Hindu Marriage Act, 1955?

Rules:

Section 13(1) (ia) of Hindu Marriage Act, 1955: 

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

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty

Section 28 of Hindu Marriage Act, 1955:

Appeals from decrees and orders.—(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction

Section 138 of the Indian Evidence Act, 1872: 

Order of examinations. –– Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief

Section 146 of the Indian Evidence Act, 1872:

When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend–– (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:

Contentions:

Appellant:

• The Appellant (Wife) contends that failure to provide formal suggestion with respect each allegation made against her by PW in the cross examination will not constitute admission of the same as construed by the Trial Court. The Appellant also states that she has denied all the allegations specifically in the written statement and the above failure should not be fatal to the case.
• The Appellant also submits that the allegations made by the Respondent are vague and non-specific, thereafter cannot be accepted by the Court.
• The Appellant also contended that the Respondent had asserted cruelty by stating that his wife had injured his private parts but the same stands condoned as they cohabited soon after that which is proved from the subsequent pregnancy.
• The Appellant further states that the Trial Court has adopted a different yardstick in appreciation of evidence of the Appellants.

Respondent:

• The Respondent alleged that the Appellant has subjected him to various instances of cruelty such as injured Respondents’ private parts, repeatedly slapping, repeatedly insulting him by calling him mota, mota haathi and taunting him that he cannot satisfy her etc.
• The Respondent (Husband) submits that generally matrimonial matters, physical intimacy, acts of cruelty are extremely private affairs and thereafter is difficult to corroborate it with eye-witness.
• The Respondent further submits that the Appellant not only failed to question their correctness against the allegations in examination-in-chief but also failed to falsify the testimony or its credit-worthiness.  The Respondent relied on previous Supreme Court precedents to prove that Section 138 & 146 of Indian Evidence Act,1872 bear no distinction per se when it is either civil or criminal case.
• The Respondent contended that the nature of proof in such matrimonial matters is distinct due to the private intimate life between husband and wife. Thus, corroboration of such matters from an independent source cannot be expected and usually such matters are decided on preponderance of probabilities.

Analysis:

The Hon’ble Court dismissed the appeal, refusing to interfere with the judgment passed:

• The Court divulged in this matter of condonation of the offence by the aggrieved spouse by relying on “Dastane v. Dastane^[1]” & “Dr. Seema v. Dr Akhilesh Chaudhary^[2]”, a subsequent offence by the spouse will revive the previous condonation by the aggrieved spouse, thereby allowing aggrieved spouse to base his contention on the earlier condoned act as well.
• The Court has also submitted that specific allegations along with general statements were made by the Respondent. Specific allegations such as ‘Mota’, ‘Mota Haathi’, injuring the private parts, taunting him repeatedly that he was unable to satisfy her. There were also specific incidents addressed revealing acts of cruelty. The Court explicitly laid down that such taunts, harassment amounts to mental cruelty under Section 13(1)(ia) of Hindu Marriage Act, 1955. The Court has also elaborated that the Respondent rightly made specific allegations along with general statements as it is not possible to maintain particular date and time for each and specific incident.
• The Court has submitted that there is no explicit distinction between the applicability of Section 138 and Section 146 of Indian Evidence Act, 1872 in civil and criminal matters. Thus, it has been reiterated from time and again that the right of cross-examination is considered as a valuable right^[3] and when such a right to challenge the evidence is waived then the said allegations can rightly be construed as true.^[4]
• Thus, the High Court refused to interfere with the decision of the lower court and held that the matter was decided on the basis of the merits of the case, thereby holding Appellant (Wife) guilty for cruelty under Section13(1)(ia) of Hindu Marriage Act, 1955.

Conclusion:

The Delhi High Court has delivered a laudable judgment by taking into account the humiliation, taunts that people go through in their day to day life and how such inappropriate behaviour has drastic impact on their mental health. By holding the Appellant accountable under mental cruelty for her taunts such as Mota, Mota Haathi which causes destruction of the matrimonial bond, it reflects the evolution of the legal regime in the country from time to time. This case also sets an example in regard to the cruelty faced by the husbands breaking the stereotypical conduct. There is a paradigmatic shift in the violence, cruelty faced by the wives to husbands. The gender biased laws are being used as a weapon by the wives to unleash their personal vendetta against their husbands. Thus, it becomes crucial to decide each case based on the existing circumstances in the society.

^[1] AIR 1975 SC 1534 

^[2] 177 (2011) DLT 537

^[3] State of U.P. v. Nahar Singh (D) & Ors (1998) 3 SCC 561

^[4] Browne v. Dunn (1893) 6 The Reports 67

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