Hindu Daughter After Converting To Islam Does Not Lose The Right To Inherit Property Under Hindu Succession Act: Gujarat HC [Read Judgment]...
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SUPREME COURT GUIDELINES ON CHILD SAFETY IN SCHOOLs
Guidelines regarding prevention of sexual assault, rape and other related crimes on
school going children in the school premises/bus.
1. School management should ensure that no school children are handed over to
anyone except parents/or those authorized by the parents. (Through ID Cards).
2. No minor female students should be left alone with male staff.
3. School management should install sufficient CCTV cameras on its premises
and also facing road and entry, exit and periphery.
4. In case of emergency principal shall personally authorize custody of the child
to a female teacher until the parent/guardian come and take stock of the
situation.
5. Senior sections should be separated from junior ones.
6. School management should ensure that there are separate male/female toilets
and both at a distant from each other. Female attendants (Ayah) should be
appointed to monitor near the female toilets.
7. School management should compulsorily insist for police verification
certificate with antecedent and address verification while appointing/hiring
teachers, physical instructors, lab technicians, drivers, janitors and other
support staff including the security.
8. School management should ensure they hire staff from the reputed outsourced
vendors in transport, security, housekeeping and canteen sections.
9. School management should insist that the vendors should compulsorily get the
verification done to the staff who are supplied by them and produce the
verification certificate to the principal before deputing them on duty to the
schools.
10. School management should appoint security guards. Along with male guards
female guards should be deployed at the entrance and exit gates during school
hours.
11. School management should make security guard responsible to go round the entire campus and class rooms after the school is over to ensure nobody is
there in the class and report to the principal or senior teacher.
12. School management should send a circular to the parents of the children who
are using private 3 wheeler/four wheeler/cabs or any form of transport to get
satisfied about their conduct and antecedents along with proper address.
13. School management should ensure that all areas of the school premises like
class rooms, led play-grounds, canteens, corridors, etc. should be regularly
monitored and un-authorized person should be questioned for their presence.
14. School management should appoint some staff as vigilance monitors on
rotation to keep an eye on all activities of kids arrival and departure from
school, during playtime, mealtimes, near toilets etc.
15. School management should ensure that no child should be given dark room or
solitary confinement punishments.
16. School management should set up an internal vigilance committee comprising
of staff, parents and education department officials and meet periodically and
discuss the issues concerning the deficiencies in security and related issues
and take corrective actions.
17. School should nominate coordinator counselor for parents to inform about
their concerns to him/her in confidence.
18. School management should periodically or during their meetings with both
teaching and non-teaching staff discuss about issues concerning safety issues
of children and take feedback from the staff.
19. Schools should take attendance of children at the beginning of school, after
lunch and at the time of school closing. In case if any students are not
available then immediately the matter should be brought to the notice of the
parents/guardians and to the concerned including police.
20. The school principals should give strict instruction to the van drivers and van
attendants not to pick up any un-authorized persons into the vehicle who are not connected with the school.
21. The bus the driver/attendant should not allow the child to get down in the
middle other than the place of residence from where the child was picked up.
22. School management should install Display board regarding “Dos & Dont’s” in
front of the School/College premises.
23. School management may introduce Group messaging system.
24. Transport Guidelines: Keeping in view the safety of the school
All rules and regulations of the Government and Transport Department
and the following guidelines issued by the Hon’ble Supreme Court of India
with regard to safety of school buses carrying children have to be followed in
letter and spirit keeping in view the safety of school going children:
a. School buses should be painted yellow.
b. School Bus must be written on the back and front of the bus. If it is
hired bus, “on School Duty” should be clearly indicated.
c. Bus should have a First Aid Box.
d. Bus should be fitted with speed governor of specified standard.
e. The windows of Bus should be fitted with horizontal grills.
f. There should be a fire extinguisher in the Bus.
g. School Name and Telephone No. Must be written on the Bus.
h. The doors of the Bus should be fitted with reliable locks.
i. To keep the school bags safely, there should be a space fitted under
the seats.
j. There must be a qualified attendant in the Bus to attend to Children.
k. Any parent or guardian sitting in the bus or a teacher may also travel
to ensure these safety norms.
l. The driver should have at least 05 years of experience of driving
heavy vehicles.
m. A driver who has been challenged (Fined) more than twice in a year
for offences like red light jumping, violation of lane discipline of
allowing unauthorized person to driver cannot be employed.
n. A driver who has been challenged (Fined) even once for the offence
of over speeding, drunken driving and dangerous driving etc. cannot
be employed.
By Adv Anubha Shrivastava Sahai
10 Land Mark divorce cases in favor of husbands
1. HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Dr. Anita Rani V/s Dr. Suresh Kumar
Wife files false criminal cases against the husband, breaking & throwing mangal sutra, getting husband arrested, neglecting household and ill-treated husband etc. are cruelty. P & H HC affirms lower court decree. Divorce granted by the court.
2. Madras High Court
A.P. Ranga Rao vs Vijayalakshmi
Wife made Suicide attempt as the husband did NOT set up the separate house. Madras HC granted a divorce for a husband. On several occasions wife threatened to commit suicide. She insisted on the husband to start a separate establishment after severing his connection with the other members of his family, namely, mother, brother, brother’s wife and unmarried brother.
3. Bombay High Court
Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha
High Court analyses that the husband has NOT proven cruelty during matrimonial life, also not proven that the wife is of unsound mind and he is entitled to get a divorce on the basis of wild, reckless and baseless allegations of impotency, lack of masculinity made by the wife.
4. Delhi High Court
Chandhok (Lajwanti) vs Chandhok
Wife drives husband out of the matrimonial home, assaulted and abused him, refused to cohabit all cruelty. HC observed that husband subjected to cruelty & has become unendurable and granted divorce to him.
6. Delhi High Court
Smt. Alka vs Dr. R.K. Gautam
Wife Refused to have sex and threatened husband with suicide, ill-treating and uncaring attitude is shown towards relatives of husband. Delhi HC decreed the Divorce.
7. HIGH COURT OF JUDICATURE AT BOMBAY
Anil Yashwant Karande, Vs Smt. Mangal Anil Karande
Wife files a false case on 498a against the husband. Bombay HC accepts the innocence of husband and it ends in discharge of the accused husband and his people and granted him divorce
8. THE SUPREME COURT OF INDIA
K.SRINIVAS V/s K. SUNITA
Wife files a criminal complaint under section 307 read with 34, 148A, 384, 324 of IPC. Husband and seven members of his family were arrested on this. It was argued that this was solitary criminal complaint and cannot be considered as cruelty.Divorce granted by observing that even one false criminal complaint by wife constitutes matrimonial cruelty.
9. HIGH COURT OF JUDICATURE AT BOMBAY
Shri Mangesh Balkrushna Bhoir Vs Sau. Leena Mangesh Bhoir
Hon HC granted a divorce to the man even though trial court not specifically mentioned 498a filed by women was false. HC observed that the women have filed false cases and treated husband cruelly. Man files for divorce and granted by the civil judge but due to appeals case finally reaches the Bombay HC.
10. HIGH COURT AT CALCUTTA
Rita Bandopadhyay v/s Abhik Bandopadhyay
Wife claims that husband had illicit relations with own sister, abuse him in the office, deserted him and stops him seeing own son. Divorce granted by the court and appreciates statements and evidence that proves cruelty of wife to husband. It takes about 21 years after desertion to get a divorce in this case.
_*⭐SC: Paternity claimed can't be denied by father in claim for maintenance of child, if he refuses to undergo DNA test.*_
_Where purported father denying paternity but refusing to undergo DNA test, held, such a person disentitled from disputing paternity- Evidence Act, 1872, Ss. 112 and 114 Ill ._
_Case:_
_*Dwarika Prasad Satpathy Vs. Vidyut Pravah Dixit.*_
_Citation:_
_*(1999) 7 SCC 675: AIR 1999 SC 3348.*_
_Bench Strength: *2*_
_Coram: *K. T. Thomas and M. B. Shah, JJ.*_
***************************
_*
Judgment on Video Conferencing In Matrimonial Disputes Needs Reconsideration: SC Refers Matter To Larger Bench
Read more at: http://www.livelaw.in/judgment-video-conferencing-matrimonial-disputes-needs-reconsideration-sc-refers-matter-larger-bench/
Marital Rape: Petitioners Rely On SC’s Recent Privacy Judgment To Persuade The Delhi HC...
Read more at: http://www.livelaw.in/marital-rape-petitioners-rely-scs-recent-privacy-judgment-persuade-delhi-hc/
Whether a lady can claim to be wife by Simply Putting Sindoor And Mangalsutra?
In order to verify the truthfulness or otherwise in the version of the
respondent, it is necessary to go through the contents in the FIR lodged by the
respondent with Ambazari Police Station, Nagpur, being No. 246/2013, on
11.9.2013. In fact, it was the complaint against the appellant u/ss. 376 and
417 of the IPC. The FIR reveals the name of the respondent as Smt. Rekha
Ashok Chandrayan which was her maiden name. She had specifically stated in
the complaint that she was married with Raja Balkrishna Deshpande in the
year 1998. There was a divorce between them in February, 2007. However for
the sake of children, they are residing together, even after divorce. The said
version clarifies that respondent was residing with her exhusband on
11.9.2013, since her marriage that took place some time in 1998. If that was
the case of the respondent, then there was no question of residing with
appellant at Jagat Apartment, after her alleged marriage with him on
16.4.2012. As regards marriage, it is mentioned in the complaint that on one
of the occasions, in the afternoon, the appellant called her on phone on the
third floor to his apartment. Accordingly, she went to 3rd floor of Jagat
Apartment and infront of Lord Krishna, the appellant put Sindoor on her
forehead and also put Mangalsutra on her neck and declared that they were
married. After two days, the respondent was called by the appellant on 6th
floor of Jagat Apartment. The appellant told her to wear red saree while
coming and thereafter physical relationship between the appellant and
respondent were established. Significantly, the respondent deposed before the
Family Court that the clothes were offered to her at the time of marriage and
garland was put on. There is discrepancy in the version of respondent as
regards time of offering the red saree to her. The contents in the FIR make
clear that the respondent was aware that respondent was not married with the
appellant and, therefore, she had mentioned her maiden name in the
complaint. Moreover, the respondent never disclosed her marriage to anyone
in the society, including the neighbours or relatives. No witness is examined
by the respondent on her behalf. These facts establish that there was no
marriage between the parties, on the date of filing the complaint. In the instant case also, the respondent failed to prove that there was
a marriage between the appellant and respondent. There is no proof to
substantiate the case of the respondent in that regard. No one attended the
said marriage. The alleged marriage was not celebrated with proper
ceremonies. In fact, there was no marriage between the appellant and
respondent, as claimed by the respondent; there was no cohabitation between
the parties; they were never recognised as husband and wife by the society.
Even there was no livein relationship between the parties. They never stayed
under the same roof as husband and wife. There is absolutely no iota of
evidence in that regard. On the contrary, evidence on record demonstrates
that the respondent was residing with her exhusband and children at
Gopalnagar, Nagpur. In this view of the matter, it is held that the respondent
has failed to prove that she was a legally wedded wife of appellant. Hence, the
point No.(1) is answered in negative.
34. As regards point No.2, since the respondent failed to prove her
marriage with the appellant, there is no question of granting the prayer for
restitution of conjugal rights. The Appeal is, therefore, allowed and the
judgment and decree passed by the learned Judge of the Family Court is
quashed and set aside.
35. Thus, in view of the fact that no marriage is proved between the parties,
there is no question of granting the prayer for restitution of conjugal rights to
the respondent.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
FAMILY COURT APPEAL NO.57/2015
Shri Nitin s/o Omprakash Agrawal
v
Smt. Rekha w/o Nitin Agrawal
(falsely claiming so)
CORAM : B.P. DHARMADHIKARI &
MRS . SWAPNA JOSHI, JJ.
DATED: 31.01.2017
1. The appellant/husband has preferred the present Appeal under section
19 of the Family Court’s Act,1984 read with Section 28 of the Hindu Marriage
Act 1955, being aggrieved by the judgment and order dated 1.4.2015 passed
by the learned Judge, Family Court No.2, Nagpur, whereby the Petition No.A.
1087/2013 filed by the respondent/wife for restitution of conjugal rights,
under section 9 of the Hindu Marriage Act has been allowed.
2. The brief facts giving rise to the Family Court Appeal are as under :
The respondent was married with one Rajesh Balkrishna Deshpande in
the year 1998. She has begotten two children out of the said wedlock. There
was a divorce between respondent and Rajesh Deshpande on 23.8.2007.
However, in the interest of children, both of them continued to stay together in
the same flat situated at Gopalnagar. In the year 2011, the respondent joined
Manjusha Convent, situated at Dharampeth, Nagpur, as a parttime teacher. In
the same building, on the ground floor, the appellant was running a Tent house
(Bicchayat Kendra). It would not be out of place to mention here that appellant
is from Marwari community, whereas the respondent is Maharashtrian
Brahmin. The respondent came in contact with the appellant. There was love
affair between them which continued for about 6 to 7 months, inasmuch as
they exchanged text messages and met each other very often. The appellant
got married with respondent on 16.4.2012 by putting a Mangalsutra and
applying vermillion on parting of hair, before the idol of Lord Krishna, on 3rd
floor of Jagat Apartment, Ravinagar, Nagpur. Physical relations were
established between the appellant and respondent since then. The appellant
had sexual relations with the respondent on many occasions on the third floor
as well as sixth floor of Jagat Apartment where the parents of appellant used
to reside. The parents of appellant were oblivious about the said relationship
between the appellant and respondent. At the relevant time, they used to stay
sometimes at Hyderabad with their daughter and some time at Dubai with
their son. Parents of the appellant opposed the marriage between appellant
and respondent. They alleged that there was no marriage between appellant
and respondent. In due course, they arranged a marriage of appellant in their
own community, with a girl residing at Raipur {Chhatisgarh}. The engagement
ceremony of the appellant was performed with that girl on 4.8.2013.
3. The respondent lodged a complaint against the appellant at Ambazari
Police Station alleging offence of rape and cheating. It is the allegation of the
respondent that the appellant has committed rape on her, on the allurement
and promise of marriage. The respondent lodged a complaint with the police
on 11.9.2013. The respondent lodged a complaint with the Human Rights
Commission also. As the appellant started avoiding the respondent and did
not keep his promise to marry respondent before the society, she filed a
petition for restitution of conjugal rights, under Section 9 of the Hindu
Marriage Act.
4. It is the case of the appellant that on 7.8.2013, the respondent
demanded an amount of Rs. 10 lakhs threatening to implicate him in a false
case of sexual harassment. The appellant, under duress, paid an amount of Rs.
2 lakhs on 8.8.2013 to the respondent, in order to save himself and his family
members from the false report and tarnishing the reputation in the society. On
the same day, the appellant received a text message from the Mobile Number
of the respondent expressing her happiness over receiving the amount for
which she remained grateful to him. On 9.8.2013 the respondent withdrew all
the allegations against the appellant, by giving in writing on stamp paper of
Rs. 100/.
5. It is alleged that the respondent continued to send SMSs to the
appellant . After about 2/3 days, the respondent visited the shop of appellant
along with her exhusbandRajesh Deshpande and demanded an amount of
Rs. 10 lakhs. She threatened to lodge report with the Police against the
appellant. The appellant realised that the respondent was blackmailing him.
6. The appellant filed his written statement and denied the averments
made in the petition. The appellant contended that the respondent has
wrongly represented herself to be his wife, in the absence of any proof thereof.
The appellant submitted that the respondent has mentioned her name as
‘Rekha Ashok Chandrayan’ in the FIR. The FIR does not disclose that the
appellantNitin is her husband. It is submitted that, in the FIR the respondent
has not mentioned the date of marriage whereas, in the petition for restitution
of conjugal rights, she has mentioned the date of marriage as 16.4.2012.
According to the appellant, as per Section 7 of the Hindu Marriage Act, no
ceremonies prevailing in the community of either of the parties, have been
performed. Therefore, there is no marriage between the appellant and
respondent, in the eyes of law. The appellant further contended that on
7.8.2013 the respondent had demanded Rs. 10 lakhs from the appellant and
when he expressed his inability to hand over the said amount, she got annoyed
and threatened him to implicate in a false case of sexual harassment.
7. The respondent examined herself as well as Nodal Officer on her
behalf. The appellant examined himself.
8. On the basis of aforesaid pleadings, the evidence led by the respective
parties and after hearing both the sides, learned Judge of the Family Court
recorded a finding that the respondent is entitled for decree for restitution of
conjugal rights. The appellant has challenged the said judgment and decree.
9. Mr. Anand Jaiswal, learned senior counsel with Mr. Gadhia, counsel for
the appellant vociferously argued that the learned Judge, Family Court erred
in granting the decree of restitution of conjugal rights in favour of respondent.
He further argued that there was no marital tie between the appellant and
respondent. He invited our attention to the FIR (Exh.50) lodged by respondent
on 11.9.2013 at Ambazari Police Station which does not disclose the date of
marriage although it was an important event in the life of the respondent.
Later on, the respondent came up with the date of marriage as 16.4.2012
almost one month after lodging of the FIR. Mr. Jaiswal, pointed out that the
FIR reveals the name of the respondent as Rekha Chandrayan and father’s
name as Ashok Chandrayan. Likewise, her residential address is mentioned as
Gopalnagar, Vinay Apartment, Flat No. 304. The FIR does not disclose the
name of respondent in marital name i.e. appellant ’s name. He further
submitted that the respondent has not mentioned the customary rites or
religious ceremonies of marriage performed in accordance with either Marwari
community or Brahmin community. According to him, as per Section 7 of the
Hindu Marriage Act, ceremonies are required to be performed like ‘Saptapadi’
or ‘phere’ for marriage and if it is not done, it is no marriage in the eyes of law.
He further submitted that the shop of the appellant was on the ground floor
of the building whereas the respondent used to attend Manjusha Convent on
the above floor. Except that acquaintance there was no relationship between
the parties. He submitted that once the respondent had requested the
appellant for financial help of Rs. 5000/ which was extended by him, on
humanitarian grounds. According to Mr. Jaiswal, on 4.8.2013, engagement of
appellant was performed on which occasion, the respondent congratulated.
However, all of sudden, on 7.8.2013, the respondent demanded an amount
of Rs. 10 lakhs from the appellant, threatening that he should pay the
amount else, she would lodge a report with Police about sexual assault by
him and his proposed marriage would be endangered. Mr. Jaiswal submitted
that therefore in order to save his engagement and reputation in the society,
the appellant agreed to pay an amount of Rs. 2 lakhs to the respondent which
she acknowledged, sending the text message mentioned supra. Thus, according
to Mr. Jaiswal, there was no marriage between the parties and, as such, there
is no question of restitution of conjugal right, as claimed by the respondent.
10. Learned counsel for the respondent, Mr. S.G.Joshi, contended that the
marriage took place between the parties in front of idol of Lord Krishna, on
third floor of Jagat Apartment. It is not at all the case of respondent that the
marriage took place as per the customs of any of the communities to which
the parties belong. According to Mr. Joshi, as there was continuous physical
relationship between the parties, the trial Court rightly came to the conclusion
that marriage was performed between the parties. Mr. Joshi submitted that as
the appellant had admittedly handed over the amount of Rs. 5,000/to the
appellant earlier and thereafter the amount of Rs. 2 lakhs, on demand, the said
fact itself shows that certainly there was existence of relations between the
parties as husband and wife. Mr. Joshi, contended that it was Gandharva
marriage between the parties as the respondent was not aware of Marwari
ceremonies and as she was informed by the appellant that they married as per
the Marwari customs, therefore, the respondent agreed to keep physical
relations with appellant. Mr. Joshi submitted that no doubt on the stamp paper
of Rs.100/ the respondent withdrew the allegations against the appellant.
However, it is not clear as what were the allegations exactly and this fact itself
shows the relationship between the parties. Lastly, he submitted that learned
Family Court has rightly passed the judgment in favour of the respondent .
11. After hearing learned counsel for both the sides and on a perusal of the
original record and proceedings, the following points arise for determination:
(1) Whether the marriage was solemnised between the
parties on 16.4.2012 ? .. .. No.
(2) Whether the appellant is entitled for quashing and
setting aside the order of restitution of conjugal rights passed
by the learned Judge of the Family Court? ..Yes.
(3) What order ? .. Appeal is allowed.
12. Before proceeding with the facts and circumstances of the case, it would
be necessary to go through the admitted facts in the Appeal.
It is fairly admitted that the respondent was married with one Rajesh
Balkrishna Deshpande, in the year 1998. There was a divorce between Rajesh
and respondent on 23.8.2007. It is not disputed that Rajesh and respondent
were residing at Gopalnagar, with their two children and they stayed together
even after divorce till March, 2014. It is not disputed that the respondent was
serving as a Teacher in Manjusha Convent, which is situated in the building
where the appellant was doing the business of Tent house. It is also not in
dispute that the appellant possesses his residential accommodation on the
third and sixth floors of Jagat Apartment. It is also not seriously disputed that
the appellant and respondent were acquainted with each other from 2011
onwards and the respondent had visited the two flats of appellant in Jagat
Apartment, to see the interior work. It is an admitted fact that the respondent
had lodged a complaint against the appellant with Human Rights
Commission, which was subsequently withdrawn. It is also an admitted fact
that there was exchange of text messages between the parties, that too at odd
hours. It is not in dispute that the respondent had acknowledged the receipt of
amount of Rs. 2 lakhs from the appellant and accordingly sent him text
message expressing thanks and gratitude. It is not in dispute that the parents
of the appellant were residing in Jagat Apartment and they used to reside
sometimes at Hyderabad with their daughter and sometimes at Dubai, with
their another son.
13. In the backdrop of the abovereferred facts, we have to examine
whether there was a marriage between appellant and respondent , as per the
provisions of Hindu Marriage Act. As discussed supra, a short point involved
in the present Appeal is, whether there was a valid marriage between
appellant and respondent as alleged, or it was a livein relationship between
them. It is the specific case of the respondent that they got married as per the
customs prevailing, inasmuch as the marriage took place before the idol of
Lord Krishna on 16.4.2012 and as per the Hindu rites and traditions the
marriage was performed at Apartment No.303, Jagat Apartment, Ravinagar,
Nagpur. The appellant put vermillion mark on the forehead of the respondent
and he put on Mangalsutra on her neck. The appellant also offered a garland
to the respondent and as per the usages and convention, offered saree, blouse
and other clothes to her. After marriage, there was a relationship between the
parties as husband and wife for more than oneandahalf years. According to
the respondent, she insisted for registration of marriage with Registrar of
Marriages. However, there was no such registration of marriage for which,
admittedly, the respondent never raised any legitimate grievance. According
to the respondent, nobody was informed about the said marriage, so much
so, even the parents of appellant were not aware of the said marriage as the
appellant did not disclose about the said fact to them. The appellant kept on
saying that as he belongs to Marwari community, huge dowry is required to
be offered in the marriage and furthermore, she being Maharashtrian
Brahmin, could not be accepted by his parents. The appellant, however,
promised her to perform a customary marriage for the sake of society, family
and friends. In her crossexamination, the respondent admitted that she
knows that for solemnization of Hindu marriage, certain rituals are to be
performed, those rituals may be different. She however stated that she does
not know the first rites in Agrawal community is of ‘Dwarchar’ which means
mother of bride performs pooja of groom on his first arrival at the entrance
gate and further does not know whether the bride and groom exchange
garlands which is known as 'Varmala' and certain mantras are chanted and the
bride and groom take round around the sacred fire (Saptapadi). She stated
that she does not know that parents of bride gifts bride which is known as
‘kanyadan’. She however admitted that she had never seen such a marriage in
which only two rites i.e.of Sindur and Mangalsutra are performed. The said
version of the respondent clearly indicates that she was aware of the fact that
in any marriage only two rites i.e. Sindoor and Mangalsutra are not
performed.
14. As against this, the case of the appellant is that in Agrawal community,
marriage procedure is as follows :
1) The marriage function starts from the function known
as Bhauhaath (Ganesh Pujan)
2) Haldad Ban: the function of applying turmeric to the
bride and groom at their respective places.
3) Chakbhat a type of ritual performed for Mama by
groom’s mother.
According to the appellant, there was absolutely no marriage between
him and respondent, as alleged by the respondent .
15. In order to verify the truthfulness or otherwise in the version of the
respondent, it is necessary to go through the contents in the FIR lodged by the
respondent with Ambazari Police Station, Nagpur, being No. 246/2013, on
11.9.2013. In fact, it was the complaint against the appellant u/ss. 376 and
417 of the IPC. The FIR reveals the name of the respondent as Smt. Rekha
Ashok Chandrayan which was her maiden name. She had specifically stated in
the complaint that she was married with Raja Balkrishna Deshpande in the
year 1998. There was a divorce between them in February, 2007. However for
the sake of children, they are residing together, even after divorce. The said
version clarifies that respondent was residing with her exhusband on
11.9.2013, since her marriage that took place some time in 1998. If that was
the case of the respondent, then there was no question of residing with
appellant at Jagat Apartment, after her alleged marriage with him on
16.4.2012. As regards marriage, it is mentioned in the complaint that on one
of the occasions, in the afternoon, the appellant called her on phone on the
third floor to his apartment. Accordingly, she went to 3rd floor of Jagat
Apartment and infront of Lord Krishna, the appellant put Sindoor on her
forehead and also put Mangalsutra on her neck and declared that they were
married. After two days, the respondent was called by the appellant on 6th
floor of Jagat Apartment. The appellant told her to wear red saree while
coming and thereafter physical relationship between the appellant and
respondent were established. Significantly, the respondent deposed before the
Family Court that the clothes were offered to her at the time of marriage and
garland was put on. There is discrepancy in the version of respondent as
regards time of offering the red saree to her. The contents in the FIR make
clear that the respondent was aware that respondent was not married with the
appellant and, therefore, she had mentioned her maiden name in the
complaint. Moreover, the respondent never disclosed her marriage to anyone
in the society, including the neighbours or relatives. No witness is examined
by the respondent on her behalf. These facts establish that there was no
marriage between the parties, on the date of filing the complaint.
16. Thus, after going through the testimony of the respondent as well as
the appellant and on a perusal of the contents of FIR, it is vividly visible that
the respondent being a divorcee who had undergone one marriage and
having two kids, was certainly aware of the customs and rituals of Hindu
marriage. She was no longer a young girl who would have not understood
the sanctity of marriage. It is undigestable that respondent, aged about 36
years, was not aware of the rites and rituals and the ceremonies of Hindu
marriage. The respondent did not succeed in proving the marriage as per the
Brahmin or Marwari community. As per the provisions of Hindu Marriage Act,
the marriage must be performed as per the ceremonies, rites and rituals
recognised by either of the parties. Even importance is given to Saptapadi in
Hindu marriage. Admittedly, no such ceremonies were performed between
the parties.
17. Coming to the other part of the evidence, as far as text messages
exchanged between the parties are concerned, on 20.8.2013, the respondent
sent a message to the appellant, which is at Exh. 89. It reads thus
(Vernaculars omitted)
The next message was on 29.8.2013 at 8.42 a.m.(Exh.49), which reads
thus:
(Vernaculars omitted)
The third message is dated 30.8.2013 is at 3.00 p.m. (Exh. 42) which
reads thus,
(Vernaculars omitted)
On going through all the three text messages, it is crystal clear that
there was no marriage between the parties and, all the while, the respondent
kept on insisting that though the appellant did not marry with her, the
relationship should be maintained between them. All the three text messages
demonstrate that there was no marriage between the parties.
18. The learned Judge of the Family Court has misinterpreted all those
text messages and has come to an erroneous conclusion that all the abovereferred
text messages proved that there was physical relationship between the
parties and there was intimacy between them and, therefore, certainly they
had married with each other and it was a valid marriage. In our opinion,
though there might be physical relationship, however, there was no valid
marriage between the parties as per the provisions of Hindu Marriage Act.
Even there was no livein relationship between them, as claimed by the
respondent, as there is no cogent and convincing evidence on record to show
that the parties resided together at Jagat Apartment.
19. Significantly, in order to prove her case, the respondent has not
examined any witness on her behalf to show that at least the appellant and
respondent stayed together in Jagat Apartment for certain period.
20. Now coming to the text message with regard to the acknowledgment
of the receipt of amount of Rs. 2 lakhs, the said message clearly indicates that
the respondent had received the amount of Rs. 2 lakhs from the appellant .
According to the appellant, the said amount was paid to the respondent
although she was demanding an amount of Rs.10 lakhs, in order to allow
him to marry with the girl with whom he got engaged on 4.8.2013. According
to the appellant, since he was in position to hand over the amount of Rs. 2
lakh only, to save his engagement with the girl and the reputation of his family,
he handed over the said amount to the respondent. The said fact simply
indicates that there was no doubt physical relationship between the parties,
however, there is no evidence to show that the parties were married with each
other.
The text message at Exh.46 reads thus :
(Vernaculars omitted)
All these abovereferred messages speak volumes about the reputation
and character of the respondent. Those messages never shed light on the fact
that the parties were married with each other. The above facts show that
neither there was a marriage between the parties nor their subsequent
conduct in any manner, indicate that they were married with each other.
21. The compact discs (CDs) relied upon by the respondent nowhere
indicate that there was marriage between the parties and, therefore, are not
helpful to the respondent.
Section 7 of the Hindu Marriage Act,1955 reads thus:
“(1) A Hindu marriage may be solemmnized in accordance
with the customary rites and ceremonies of either party
thereto.
(2) Where such rites and ceremonies include the
saptapadi ( that is, the taking of seven steps by the
bridegroom and the bride jointly before the scared fire), the
marriage becomes complete and binding when the
seventh step is taken.”
It is also necessary to go the relevant provisions of Sections 50 and
Section 114 of the Evidence Act, which are couched in the following terms :
Sec. 50: Opinion on relationship, when relevant When
the Court has to form an opinion as to the relationship
of one person to another, the opinion, expressed by
conduct, as to the existence of such relationship, of any
person who, as a member of the family or otherwise, has
special means of knowledge on the subject, is a relevant
fact:
Provided that such opinion shall not be sufficient
to prove a marriage in proceedings under the Indian
Divorce Act,1869 ( 4 of 1869), or in prosecutions under
sections 494, 495, 497 or 498 of the Indian penal Code
(45 of 1860).
Section 114 : Court may presume existence of certain
facts: the Court may presume the existence of any fact
which it thinks likely to have happened, regard being had
to the common course of natural events, human conduct
and public and private business, in their relation to the
facts of the particular case.”
22. On going through the abovesaid provisions, the existence of marriage
between the appellant and respondent is not seen in the present case.
Likewise, it is very difficult to presume in the present case from the conduct
of the parties that there was relationship between the appellant and
respondent as husband and wife.
23. Moreover, where a marriage is alleged to have been performed in
accordance with any modified form of Shastric Hindu Law, it must be pleaded
and proved as a custom. In the absence of a plea as to the custom, no amount
of evidence can be looked into.
24. Learned counsel for the appellantappellant placed reliance upon the
judgment, reported in AIR 1987 BOM 27:(Ningu Bamane and others vs.
Sadashiv Bamane and others) wherein it was held that Pat marriage
between the parties which is recognised and approved form of marriage, it
is held in that case that when a man and woman live together as husband and
wife for sufficiently long time and were treated as husband and wife by
friends, relatives and neighbours, there is always a presumption in favour of
their marriage. The abovesaid case law is not applicable to the facts of the
present case, as it is not the case of the respondent that they were teated as
husband and wife by friends, relatives or neighbours. In fact, there is
absolutely no evidence on record to show that the appellant and respondent
stayed together in Jagat Apartment as husband and wife, apart from bare
words of the respondent .
25. Learned counsel for the appellant placed reliance upon the judgment
reported at (2009) 15 SCC 184: (M.Yogendra and others vs. Leelamma N.
and others) wherein the issue of property was involved. Paragraph 20 of the
same reads thus:
“ .....Before the court, evidence in different forms may be
adduced. Information evidence may be one of them. But for the
purpose of arriving at a conclusion as to whether a valid
marriage has been performed or not. The court would be
entitled to consider the circumstances thereof. There may be a
case where the witnesses to the marriage are not available.
There may also be a case where documentary evidence to prove
marriage is not available. It is in the aforementioned situation,
the information of those persons who had the occasion to see
the conduct of the parties they may testify with regard to the
information (sic opinion) they form probably the conduct of the
persons concerned.”
26. As already discussed, except the bare words of the respondent, there
is absolutely no evidence on record to show that there was a valid marriage
between the parties on 16.4.2012. It is not at all the case of the respondent
that apart from appellant and respondent anybody else was present at the
time of marriage. In these circumstances, it is difficult to rely upon the bare
words of respondent. In fact, there was no occasion to see the conduct of the
parties i.e. their behaviour as appellant and respondent in the society. There
is absolutely no evidence on record to show that the parties stayed together as
husband and wife and their friends and relatives presume them to be husband
and wife. The respondent continued to stay with her exhusband. No evidence
came on record that she stayed for a few days or at night time at Jagat
Apartment. There is no evidence that neighbours treated that the respondent
was the wife of the appellant. On the contrary, it is clear that society continued
to recognise the respondent and Rajesh/(exhusband) as married couple.
The appellant and respondent never cohabited as husband and wife at Jagat
Apartment or anywhere else. The fact, however, remains that the society never
recognised the appellant and respondent as a married couple.
27. In AIR 1965 SC 1564 : (Bhaurao Lokhande vs.State of Maharashtra
and another), it is held by the Hon'ble Apex Court the term "solemnize”
means, in connection with a marriage, ‘to celebrate the marriage with proper
ceremonies and in due form, according to the Shorter Oxford Dictionary. It
therefore follows, therefore, that unless the marriage is celebrated or
performed with proper ceremonies and in due form, it cannot be said to be
solemnized. Thus, the ceremonies as claimed by the respondent were not
prescribed by law or approved by custom and therefore the marriage does not
come within the purview of Section 7 of the Hindu Marriage Act.
28. In Kochan Rani vs. Mathevan Kani reported in 1971(2) SCC 345, the
Hon’ble Apex Court in paragraph no.6 observed thus,
“6.....................It is well established that in the matter of
custom a party has to plead in specific terms as to what is the
custom that he is relying on and he must prove the custom
pleaded by him. He cannot be permitted to prove a custom not
pleaded by him. In Abdul Hussain Khan vs. Bibi Sona Dero AIR
1917 PC 181,the Judicial Committee observed: “It is, therefore,
incumbent upon the plaintiff to allege and prove the custom on
which he relies”. That was also the view taken by this Court in
Thakur Gokalchand v. Parvin Kumari AIR 1952 SC 231. The
reason for this is rule is obvious. Anybody who puts forward a
custom must prove by satisfactory evidence the existence of the
custom pleaded, its continuity and the consistency with which it
was observed. A party against whom a custom is pleaded must
have a notice as to what case he has to meet. The opposite party
apart from rebutting the evidence adduced by the plaintiff may
be able to prove that the custom in question was not invariably
followed. He cannot get ready with that evidence without
knowing the nature of the custom relied upon by the plaintiff.
Therefore all that we have to see in the present case is whether
the respondent has established the custom pleaded by him. ....”
29. The learned Judge of the Family Court has wrongly shifted the burden
upon the appellant. In fact, it was for the respondent to prove that the
marriage was performed as per the customs under Hindu law. She has failed
to prover her cohabitation with the appellant after the alleged marriage, as
husband and wife. There is absolutely no iota of evidence in that regard, of
the neighbours, relatives or friends of the respondent. Surprisingly, the
children of the respondent were also not aware of the so called marriage
between the appellant and respondent. No evidence in that regard is adduced
on behalf of the respondent. The society was not knowing about the divorce
between the respondent and her exhusband as they continued to stay together
as husband and wife, for the sake of their children. It is interesting to note
that if the respondent claimed to be legally wedded wife of the appellant, then
she should have challenged the engagement of the appellant with a girl from
Raipur, however, she kept mum. On the contrary, she accepted the amount of
Rs.2 lacs from the appellant and kept mum. She also withdrew the
allegations against the appellant. The behaviour of the respondent leads to the
conclusion that there was no marriage between the appellant and respondent.
In fact, the onus rests upon the respondent to prove that there was a valid
marriage between the appellant and respondent.
30. It would be useful to refer to the judgment of this Court in case of Mr
Raj Amarsingh Gulale vs. Mrs.Manasi Raj Gulale, reported in 2015 (3) ALL
MR 365, wherein it is held that merely because there was exchange of the calls
between the parties, that does not necessarily mean that the parties were
husband and wife. Those call details did not show that marriage took place
between the parties.
31. In the instant case also, there are numerous phone calls between the
parties. However the said fact does not necessarily indicate that there was a
marriage between the appellant and respondent. Even the CDs which are
relied upon by the respondent, do not show that marriage existed between the
appellant and respondent.
32. In 2011 (15) SCC 531 in case of Pallavi Bharadwaj vs. Pratap Chuhan,
the Hon’ble Apex Court observed that there is no document about marriage
or any acceptable material relating to marriage, hence the Apex Court
restored the judgment of Family Court which had held that since the marriage
was not performed, there is no question of decree for restitution of conjugal
rights.
33. In the instant case also, the respondent failed to prove that there was
a marriage between the appellant and respondent. There is no proof to
substantiate the case of the respondent in that regard. No one attended the
said marriage. The alleged marriage was not celebrated with proper
ceremonies. In fact, there was no marriage between the appellant and
respondent, as claimed by the respondent; there was no cohabitation between
the parties; they were never recognised as husband and wife by the society.
Even there was no livein relationship between the parties. They never stayed
under the same roof as husband and wife. There is absolutely no iota of
evidence in that regard. On the contrary, evidence on record demonstrates
that the respondent was residing with her exhusband and children at
Gopalnagar, Nagpur. In this view of the matter, it is held that the respondent
has failed to prove that she was a legally wedded wife of appellant. Hence, the
point No.(1) is answered in negative.
34. As regards point No.2, since the respondent failed to prove her
marriage with the appellant, there is no question of granting the prayer for
restitution of conjugal rights. The Appeal is, therefore, allowed and the
judgment and decree passed by the learned Judge of the Family Court is
quashed and set aside.
35. Thus, in view of the fact that no marriage is proved between the parties,
there is no question of granting the prayer for restitution of conjugal rights to
the respondent. Hence the following order:
ORDER
1) The Appeal is allowed.
2) The judgment and decree dated 1.4.2015 passed by the learned Judge,
Family Court No.2, Nagpur in Petition No. A1087/2013, is set aside.
No costs.
JUDGE JUDGE
OUR INDIAN JUDICIARY'S LAWS
1. ARE U AWARE THAT GENDER BIASED LAWS IN INDIA HAVE JAILED MORE WOMEN IN INDIA THAN BRITISH RAAJ?
2. ARE U AWARE THAT NUMBER OF SUICIDE OF MARRIED MEN IS MORE THAN DOUBLE OF MARRIED WOMEN?
3. ARE U AWARE THAT OVER 62,000K MARRIED MEN COMMIT SUICIDE EVERY YEAR BECAUSE OF FALSE CASES.
4. ARE U AWARE THAT ABOUT 10 LAKH PEOPLE IN INDIA JAILED IN LESS THAN 10 YEARS BCOZ OF GENDER BIASED LAWS IN INDIA?
5. ARE U AWARE THAT AS PER DATA FROM GOVERNMENT, ABOUT 98% CASES FILED UNDER GENDER BIASED LAWS ARE FOUND TO BE FALSE?
6. ARE U AWARE THAT IF A MAN FACES HARASSMENT IN INDIA, THERE IS NOT A SINGLE LAW UNDER WHICH HE CAN FILED COMPLAINT?
7. ARE U AWARE THAT A MAN HAS NO RIGHT TO FILE COMPLAINT AGAINST HARASSMENT METED OUT TO HIM AT WORKPLACE?
8. ARE U AWARE THAT AS PER THE PROPOSED AMENDMENT, EVEN HINDU MARRIAGE WILL BECOME FORCE PROPERTY LOSS?
9. INTRODUCING ANOTHER ANTI-MALE LAW MARITAL RAPE WILL GIVE MORE POWER 2 WIFE 2 FILE ADDITIONAL FALSE CASES AGAINST HUSBAND.
10. BY INTRODUCING MARITAL RAPE LAW, MEN WILL SUFFER & DIE SILENTLY, MORE MEN WILL COMMIT SUICIDE.
11. BY INTRODUCING MARITAL RAPE LAW, MEN WILL SUFFER & DIE SILENTLY, MORE MEN WILL COMMIT SUICIDE.
12. MEN ARE NOT CONSIDERED OR SEEN AS A VICTIMS OF RAPE WHILE WOMEN ARE.
13. MAN MUST MAINTAIN PARENTS, WIFE AND CHILDREN, BUT WOMEN HAS NO RESPONSIBILITY (CRPC 125).
14. MAN CAN BE PUNISHED FOR ADULTERY IF UNMARRIED BUT A WOMEN CAN'T BE PUNISHED IF MARRIED (IPC 497).
15. A MEN CAN BE JAILED FOR ADULTERY BUT WOMEN NOT. MAN CAN'T BE RAPED, ONLY WOMEN CAN BE (IPC 376).
16. MAN CAN'T BE MOLESTED ONLY WOMEN CAN BE (IPC 354). THE CONCEPT OF MARITAL RAPE LAW AGAIN PRESUMES THAT WIFE IS THE VICTIM AND HUSBAND TO BE THE RAPIST.
Whether magistrate can grant maintenance U/S 125 of CRPC to muslim wife if there is no legal divorce?
If we consider the submissions put forth by the Counsel for the parties and a perusal of the record what clearly appears is that fact that the Petitioner in the instant case has not been able to establish the fact that there was a customary Talak (except claiming Talak to have been made by sending a Registered letter) between the parties, coupled with the fact that there was an allegation made by the Respondent wife that she was subjected to physical and mental harassment and torture at the hands of the Petitioner and therefore she was forced to leave the matrimonial house and live separately. Further so far as agreement between the parties is concerned there is also an averment specifically made by Respondent No. 1 that the said agreement has been got executed by playing mischief by her father and uncle and she was not aware of the said proceeding, therefore the same would not be binding upon her. These pleadings have also come on record where it is the finding of fact that there was no customary ritual Talak which is said to have been executed by the Petitioner by sending the same by registered post to the house of the Respondent-wife. Further it also reflects from the Ikrarnama that the payment of Rs. 3.5 lakhs was by way of payment made as Mehar as well as amount payable during Iddat, therefore the same cannot be said to be an amount paid to the Respondents as one time settlement towards the maintenance of the Respondents for the life time. Further even if there was an agreement between the parties which the Respondent No. 1 has denied clearly would be contrary to the legal provisions of law. Mere agreement entered at between the parties would not disentitle wife and their children from claiming maintenance for their sustenance. Thus, till his wife is remarried it would be the responsibility of the Petitioner husband alone to maintain the wife and children born from them. An agreement in another words cannot be construed that the amount which have been paid as "Mehar" and during "Iddat" would be liable of being also considered for payment of maintenance of the Respondent Nos. 1 to 3.
5. So far as law in respect of maintainability of the provisions of Section 125 of the Cr.P.C. is concerned much water has since flown. Until and unless there is a proper legal divorce between the parties under the Provisions of the Act, 1986 the wife under normal circumstance can move claim for grant of maintenance under Section 125 of the Cr.P.C.
IN THE HIGH COURT OF CHHATTISGARH
Criminal Misc. Petition No. 599 of 2016
Decided On: 23.08.2016
Shakil Usman Ansari
Vs.
Afsana Bano and Ors.
Hon'ble Judges/Coram:
P. Sam Koshy, J.
Citation: 2017 CRLJ 834
1. The present Petition has been preferred challenging order dated 11.04.2016 passed in the Criminal Revision No. 5/2015 whereby the Revisional court has affirmed the order dated 24.08.2015 passed by the Judicial Magistrate First Class (for short 'the JMFC), Pratappur District-Surajpur in Misc. Criminal Case No. 132/2012. The fact of the case in brief is that the Petitioner is the husband of Respondent No. 1 and father of the Respondent No. 2. The Petitioner and Respondent No. 1 got married on 23.05.2008. Subsequently the relation between the parties got strained and Respondent No. 1 along with Respondent No. 2 left the matrimonial home and started living with her parents. While Respondent No. 1 had left the matrimonial home she was in the advance stage of pregnancy having conceived the second child i.e. Respondent No. 3 who later on was also born on 12.09.2012.
2. Respondent No. 1 filed a maintenance application under Section 125 of the Cr.P.C. before the JMFC, Pratappur at District Surajpur which was registered as Misc. Criminal Case No. 132/2012. The Court below having considered the facts and submissions by the parties vide order dated 24.08.2015 allowed the application under Section 125 of the Cr.P.C. and granted maintenance to Respondents at the rate Rs. 1000/- each. This order dated 24.08.2015 was subjected to challenge by way of Criminal Revision filed before Additional Sessions Judge vide Criminal Revision 5/2015. The Revisional Court also vide its order dated 11.04.2016 i.e. impugned order rejected the Revision Petition upholding the order passed by the JMFC, Pratappur. Assailing the said two orders the Petitioner has raised a ground that the two orders passed by the Court below are bad in law for the reason that firstly there was a settlement between the parties to the extent making one time payment of 3.5 lakhs inclusive of the maintenance amount to the Respondents vide agreement dated 14.02.2012. Secondly the provisions under Section 125 of the Cr.P.C. would not be applicable on account of the fact that the case of the present parties is governed under the provisions of Muslim Woman (Protection of Rights on Divorce) Act, 1986 (herein after 'the Act, 1986).
3. It was also the contention of the Counsel for the Petitioner that there was a settlement between the parties at the time of mutual separation and an agreement (Ikrarnama) was entered into between the parties on 14.02.2012. According to the Counsel for the Petitioner by the said Ikrarnama there was specific agreement between the parties that first part in the agreement was to pay a lump sum amount of Rs. 3.5 lakhs to Respondent No. 1 and the said amount shall be utilized by the Respondents for their maintenance and also their sustenance for the whole life. According to the Petitioner since the Respondents have received one time amount of Rs. 3.5 lakhs they are not entitled to further seeking maintenance by invoking Section 125 of the Cr.P.C. It was also the contention of the Counsel for the Petitioner that so far as maintainability part of Section 125 of the Cr.P.C. is concerned, judgment of the Orissa High Court in case of Begum Bibi & Ors. v. Abdul Rajak Khan reported in MANU/OR/0300/1994 : (1995) 1 Crimes 532 : MANU/OR/0300/1994 : (1995 Cri LJ 604 (Ori) which clarifies the fact that provision under Section 125 of the Cr.P.C. would not be applicable in the case where parties are governed by the provisions of the Act, 1986.
4. If we consider the submissions put forth by the Counsel for the parties and a perusal of the record what clearly appears is that fact that the Petitioner in the instant case has not been able to establish the fact that there was a customary Talak (except claiming Talak to have been made by sending a Registered letter) between the parties, coupled with the fact that there was an allegation made by the Respondent wife that she was subjected to physical and mental harassment and torture at the hands of the Petitioner and therefore she was forced to leave the matrimonial house and live separately. Further so far as agreement between the parties is concerned there is also an averment specifically made by Respondent No. 1 that the said agreement has been got executed by playing mischief by her father and uncle and she was not aware of the said proceeding, therefore the same would not be binding upon her. These pleadings have also come on record where it is the finding of fact that there was no customary ritual Talak which is said to have been executed by the Petitioner by sending the same by registered post to the house of the Respondent-wife. Further it also reflects from the Ikrarnama that the payment of Rs. 3.5 lakhs was by way of payment made as Mehar as well as amount payable during Iddat, therefore the same cannot be said to be an amount paid to the Respondents as one time settlement towards the maintenance of the Respondents for the life time. Further even if there was an agreement between the parties which the Respondent No. 1 has denied clearly would be contrary to the legal provisions of law. Mere agreement entered at between the parties would not disentitle wife and their children from claiming maintenance for their sustenance. Thus, till his wife is remarried it would be the responsibility of the Petitioner husband alone to maintain the wife and children born from them. An agreement in another words cannot be construed that the amount which have been paid as "Mehar" and during "Iddat" would be liable of being also considered for payment of maintenance of the Respondent Nos. 1 to 3.
5. So far as law in respect of maintainability of the provisions of Section 125 of the Cr.P.C. is concerned much water has since flown. Until and unless there is a proper legal divorce between the parties under the Provisions of the Act, 1986 the wife under normal circumstance can move claim for grant of maintenance under Section 125 of the Cr.P.C.
6. The Hon'ble Supreme Court in 2014 (12) SCC 646 in case of Khatoon Nisa v. State of Uttar Pradesh and others in para 10 has held as under:--
"10. Subsequent to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short "the Act") as it was considered that the jurisdiction of the Magistrate under Section 125 Cr.P.C. can be invoked only when the conditions precedent mentioned in Section 5 of the Act are complied with, in the case in hand, the Magistrate came to a finding that there has been no divorce in the eye of law and as such, the Magistrate has the jurisdiction to grant maintenance under Section 125 of the Cr.P.C. This finding of the magistrate has been upheld by the High Court. The validity of the provisions of the Act was for consideration before the Constitution Bench in the case of Danial Latifi v. Union of India MANU/SC/0595/2001 : (2001) 7 SCC 740 : (AIR 2001 SC 3958). 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. In fact, Mr. Qamaruddin, learned counsel appearing for the appellants, never objected to pay maintenance as ordered by the magistrate. But he seriously disputes the findings of the magistrate on the status of the parties and contends that the magistrate was wholly in error in coming to the conclusion that there has been no divorce between the parties in the eye of law."
7. The same view has further been reiterated in MANU/SC/0332/2014 : (2014) 12 SCC 636 in the case of Shamim Bano v. Asraf Khan band also in MANU/SC/0380/2015 : (2015) 5 SCC 705 : (AIR 2015 SC 2025) in the case of Shamima Farooqui v. Shahid Khan.
8. Thus, in the opinion of this Court keeping in view the aforementioned decisions of the Supreme Court the Court below has not committed any error of law or on fact calling for any interference with the order. For the aforesaid reason as no strong case is made out by the Petitioner calling for interference with the impugned order by this Court. The Revision Petition being devoid of substance stands rejected.
The Family Courts Act, 1984
THE FAMILY COURTS ACT, 1984
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,- -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 section 3;
(e) 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.
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,- -(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, established for every area in the State comprising 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.
4. Appointment of Judges.-
(1) The State Government may, with the concurrence of the High Court, appoint one or more persons to be the Judge or Judges of a Family Court. -(1) The State Government may, with the concurrence of the High Court, appoint one or more persons to be the Judge or Judges of a Family Court."
(2) When a Family Court consists of more than one Judge,-
(a) each of the Judges may exercise all or any of the powers conferred on the court by this Act or any other law for the time being in force;
(b) the State Government may, with the concurrence of the High Court, appoint any of the Judges to be the Principal Judge and any other Judge to be the Additional Principal Judge;
(c) the Principal Judge may, from time to time, make such arrangements as he may deem fit for the distribution of the business of the Court among the various Judges thereof;
(d) the Additional Principal Judge may exercise the powers of the Principal Judge in the event of any vacancy in the office of the Principal Judge or when the Principal Judge is unable to discharge his functions owing to absence, illness or any other cause.
(3) A person shall not be qualified for appointment as a Judge unless he-
(a) has for at least seven years held a judicial office in India or the office of a Member of a Tribunal or any post under the Union or a State requiring special knowledge of law; or
(b) has for at least seven years been an advocate of a High Court or of two or more such Courts in succession; or
(c) possesses such other qualifications as the Central Government may, with the concurrence of the Chief Justice of India, prescribe.
(4) In selecting persons for appointment as Judges,-
(a) every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected; and
(b) preference shall be given to women.
(5) No person shall be appointed as, or hold the office of, a Judge of a Family Court after he has attained the age of sixty-two years.
(6) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of a Judge shall be such as the State Government may, in consultation with the High Court, prescribe.
5. Association of social welfare agencies, etc.-The State Government may, in consultation with the High Court, provide, by rules, for the association, in such manner and for such purposes and subject to such conditions as may be specified in the rules, with a Family Court of- -The State Government may, in consultation with the High Court, provide, by rules, for the association, in such manner and for such purposes and subject to such conditions as may be specified in the rules, with a Family Court of-"
(a) institutions or organisations engaged in social welfare or the representatives thereof;
(b) persons professionally engaged in promoting the welfare of the family;
(c) persons working in the field of social welfare; and
(d) any other person whose association with a Family Court would enable it to exercise its jurisdiction more effectively in accordance with the purposes of this Act.
6. Counsellors, officers and other employees of Family Courts.-
(1) The State Government shall in consultation with the High Court, determine the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such counsellors, officers and other employees as it may think fit. -(1) The State Government shall in consultation with the High Court, determine the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such counsellors, officers and other employees as it may think fit."
(2) The terms and conditions of association of the counsellors and the terms and conditions of service of the officers and other employees, referred to in sub-section (1), shall be such as may be specified by rules made by the State Government.
7. Jurisdiction.-
(1) Subject to the other provisions of this Act, a Family Court shall- -(1) Subject to the other provisions of this Act, a Family Court shall-"
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
8. Exclusion of jurisdiction and pending proceedings.-Where a Family Court has been established for any area,- .-Where a Family Court has been established for any area,-"
(a) no district court or any subordinate civil court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or power under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),-
(i) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that sub-section or, as the case may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.
9. Duty of Family Court to make efforts for settlement.-
(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit. -(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit."
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it think fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings.
10. Procedure generally.-
(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. -(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court."
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.
11. Proceedings to be held in camera.-In every suit or proceedings to which this Act applies, the proceedings may be held in camera if the Family Court so desires and shall be so held if either party so desires. -In every suit or proceedings to which this Act applies, the proceedings may be held in camera if the Family Court so desires and shall be so held if either party so desires."
12. Assistance of medical and welfare experts.-In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by this Act. -In every suit or proceedings, it shall be open to a Family Court to secure the services of a medical expert or such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the court may think fit, for the purposes of assisting the Family Court in discharging the functions imposed by this Act."
13. Right to legal representation.-Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner: -Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner\:" Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.
14. Application of Indian Evidence Act, 1872.-A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872). -A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872)."
15. Record of oral evidence.-In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record. -In suits or proceedings before a Family Court, it shall not be necessary to record the evidence of witnesses at length, but the Judge, as the examination of each witness proceeds, shall, record or cause to be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the witness and the Judge and shall form part of the record."
16. Evidence of formal character on affidavit.-
(1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court. -(1) The evidence of any person where such evidence is of a formal character, may be given by affidavit and may, subject to all just exceptions, be read in evidence in any suit or proceeding before a Family Court."
(2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding summon and examine any such person as to the facts contained in his affidavit.
17. Judgment.-Judgment of a Family Court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision. -Judgment of a Family Court shall contain a concise statement of the case, the point for determination, the decision thereon and the reasons for such decision."
18. Execution of decrees and orders.-
(1) A decree or an order [other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], passed by a Family Court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the execution of decrees and orders. -(1) A decree or an order [other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], passed by a Family Court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the execution of decrees and orders."
(2) An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code.
(3) A decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary civil court to which it is sent for execution.
19. Appeal.-
(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. -(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law."
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 1[or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974): Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991].
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. 1[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.] 2[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.]" 2[(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. 2[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges. 3[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."
20. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. -The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
21. Power of High Court to make rules.-
(1) The High Court may, by notification in the Official Gazette, make such rules as it may deem necessary for carrying out the purposes of this Act. .-(1) The High Court may, by notification in the Official Gazette, make such rules as it may deem necessary for carrying out the purposes of this Act."
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) normal working hours of Family Courts and holding of sittings of Family Courts on holidays and outside normal working hours;
(b) holding of sittings of Family Courts at places other than their ordinary places of sitting;
(c) efforts which may be made by, and the procedure which may be followed by, a Family Court for assisting and persuading parties to arrive at a settlement.
22. Power of the Central Government to make rules.-
(1) The Central Government may, with the concurrence of the Chief Justice of India, by notification, make rules prescribing the other qualifications for appointment of Judge referred to in clause (c) of sub-section (3) of section 4. -(1) The Central Government may, with the concurrence of the Chief Justice of India, by notification, make rules prescribing the other qualifications for appointment of Judge referred to in clause (c) of sub-section (3) of section 4."
(2) Every rule made under this Act by the Central Government shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
23. Power of the State Government to make rules.-
(1) The State Government may, after consultation with the High Court, by notification, make rules for carrying out the purposes of this Act. .-(1) The State Government may, after consultation with the High Court, by notification, make rules for carrying out the purposes of this Act."
(2) In particular and without prejudice to the generality of the provisions of sub-section (1) such rules may provide for all or any of the following matters, namely:-
(a) the salary or honorarium and other allowances payable to, and the other terms and conditions of Judges under sub-section (6) of section 4;
(b) the terms and conditions of association of counsellors and the terms and conditions of service of the officers and other employees referred to in section 6;
(c) payment of fees and expenses (including travelling expenses) of medical and other experts and other persons referred to in section 12 out of the revenues of the State Government and the scales of such fees and expenses;
(d) payment of fees and expenses to legal practitioners appointed under section 13 as amicus curiae out of the revenues of the State Government and the scales of such fees and expenses;
(e) any other matter which is required to be, or may be, prescribed or provided for by rules.
(3) Every rule made by a State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislature.
