6 Months wait period for divorce can be waived :- Supreme Court

6 Months wait period for divorce can be waived :- Supreme Court - http://supremelaws.com/blog/6-months-wait-period-divorce-can-waived-supreme-court/?

Maintenance Tribunal constituted under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as 'the Act')

Whether Maintenance Of Parents And Senior Citizens Act Can Be Used as tool in Property Disputes Between Siblings?

The Act is one enacted to ensure the proper protection and

maintenance of senior citizens. It cannot be allowed to be used as a

tool in property disputes among siblings. The substantial right of the 3rd

respondent which is sought to be enforced by recourse to the Act is the

right to be maintained and protected by her children. In view of the

specific contention of the petitioner that she had never refused to do

so and that Exhibit      P1 is an agreement recorded without her

understanding the contents of the same, I am of the opinion that

 
interests of justice will be met by directing that the petitioner shall look

after her mother.

      In the result, Exhibit    P1 is set aside. It is directed that the

petitioner shall also have the responsibility of looking after her mother.

If the 3rd respondent agrees to go and reside with the petitioner, she

shall be looked after well and expenses shall be met by the petitioner.

If the 3rd respondent is not desirous of going and staying with the

petitioner, the petitioner will pay an amount of Rs.5,000/- (rupees five

thousand) to the 3rd respondent instead of Rs.500/-per month as

agreed in Exhibit P1 on or before 10th day of every month commencing

from November, 2016 towards the personal expenses of the mother. If

any default is committed by the petitioner in paying maintenance as

directed above, the 3rd respondent will be free to approach the Tribunal

afresh.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                        
PRESENT:

         
MRS. JUSTICE ANU SIVARAMAN

4TH DAY OF NOVEMBER 2016

               
WP(C).No. 9108 of 2014 (K)
              

         
MAVILA SATHI,
Vs

     
STATE OF KERALA
        

      This writ petition is filed challenging Exhibit P1 order issued by

the Maintenance Tribunal constituted under the Maintenance and

Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred

to as 'the Act'). Petitioner is the daughter of the 3rd respondent. It is

contended by the learned counsel for the petitioner that the 3rd

respondent, who is having three children, had gifted her properties to

her children, including the petitioner. The petitioner was assigned 23

cents of property retaining the 3rd respondent's right to take the

benefits and right of residence in the tharawad building situated in the

property. Thereafter, the 3rd respondent was staying with the

petitioner. Subsequently, in the year 2012, the 3rd respondent assigned

a further extent of 10 cents of property by Exhibit P5 settlement deed

in favour of the petitioner. On 3.8.2013, the 4th respondent, who is the

brother of the petitioner, took the 3rd respondent to his house.

Thereafter, M.C.C.No.73 of 2013 was filed under the Act before the 2nd

respondent at the instigation of the 4th respondent alleging that though

the petitioner was assigned 41 cents of property on condition that she

will look after the 3rd respondent,          the petitioner ousted the 3rd

respondent from the house and is refusing to look after the mother.

  
The 2nd respondent passed Exhibit P1 order            dated 12.12.2013

directing the petitioner to pay an amount of Rs.500/- to the 3rd

respondent as monthly maintenance and also to          re-convey the 10

cents of property covered under Exhibit P5 settlement deed

No.3530/2012. The said order which is one purportedly recorded on

agreement is under challenge in this writ petition.

      2. Heard learned counsel for the petitioner, learned Government

Pleader and the learned counsel appearing for respondents 3 and 4.

      3. Learned counsel for the petitioner contended that Exhibit P1

order issued by the 2nd respondent is liable to be struck down as it does

not satisfy the statutory requirements contemplated under the Act. The

complaint was filed by the 3rd respondent before the 2nd respondent

only at the instigation of the 4th respondent, it is submitted. It is

contended that the petitioner was not served with a copy of the

complaint at the time of hearing or at the conciliation meeting and it is

only after receipt of Exhibit P1 that the petitioner has applied for a

copy of the complaint filed by the 3rd respondent and she was served

with the same. It is further contended that the petitioner was not given

an opportunity to file reply to the complaint. Learned counsel for the

petitioner submitted that when the petitioner appeared before the

conciliation officers on 12.12.2013, she was directed to sign on some

papers so as to submit a report to the 2nd respondent.         It is also

  

submitted that the 3rd respondent, who is aged 74 years and capable of

managing her affairs was pictured as incompetent and illiterate and

her thumb impression was affixed in Exhibit P2 complaint. It is

submitted that as per Section 23 of the Act, in order to declare a

transfer of immovable property by a senior citizen to be void, two

conditions should be satisfied; 1) the transfer should be subject to the

condition that the transferee shall provide the basic amenities and

basic physical needs to the transferor; and 2) the transferee should

have refused or failed to provide such amenities and physical needs. It

is also submitted that the procedure adopted by the 2nd respondent is

illegal and arbitrary. It is specifically contended by learned counsel for

the petitioner that the property has been transferred by the 3rd

respondent to the petitioner only on love and affection and not on a

condition that the petitioner shall provide the basic amenities and

basic physical needs to the 3rd respondent. Since the petitioner

considers that it is her duty to look after and maintain 3rd respondent,

she is not challenging the portion of Exhibit P1 order to the extent it

directs payment of Rs.500/- per month as maintenance.

      4. A counter affidavit has been filed by the 3rd respondent inter

alia stating that she had gifted the 41 cents of property to the

petitioner on a specific understanding that the petitioner will look after

her, but after getting the property in her name, the petitioner treated

her with cruelty. The allegation that the 4th respondent was instigating

the 3rd respondent to get back the 10 cents of property from the

petitioner is denied by the 3rd respondent. It is stated in the counter

affidavit that the averment that the petitioner was not given a copy of

the complaint is incorrect. The petitioner appeared before the 2nd

respondent on getting summons and a copy of the complaint and she

participated in the conciliation proceedings after knowing fully about

the contents in the complaint and she had put her signature with the

full knowledge regarding the contents of the settlement, it is

submitted. It is further submitted that the attempt of the petitioner is

only to escape the liability to maintain the 3rd respondent as promised

at the time of executing of the gift deed.

      5. I have considered the contentions advanced on either side.

The main grievance voiced by the petitioner is with regard to the

condition in Exhibit P1 to the effect that she is to reconvey ten cents

of property gifted as per Exhibit P5 back to the 3rd respondent. The

petitioner contends that she had never agreed to any such condition in

the settlement. It is argued that the contents of the petition, if taken as

a whole, would not disclose a cause of action for issuance of a direction

to reconvey the property or even to hold that Exhibit P5 is void. She

further contends that she had never refused to look after her mother

and is ready to take care of her and to provide shelter for her. It is

   

further contended that the procedure prescribed for recording of an

agreement had not been followed by the conciliation officer or the

Tribunal before Exhibit P1 order was issued.

      6. It is now contended that the petitioner is always ready and

willing to take care of her mother and look after her. Going by the

pleadings on record, it appears that Exhibit P2 complaint of the 3rd

respondent was instituted on 21.10.2013. Exhibit P1 order is seen

dated 12.12.2013. There is nothing on record to show that the

petitioner had actually refused to look after her mother. Petitioner has

a specific case that she was staying along with her mother in the

tharawad house which is not the property covered by Exhibit P5. The

3rd respondent was taken away by the 4th respondent from there. It is

also contended that it is only at the instance of the 4th respondent and

his wife that the complaint came to be filed.

      7. The Act is one enacted to ensure the proper protection and

maintenance of senior citizens. It cannot be allowed to be used as a

tool in property disputes among siblings. The substantial right of the 3rd

respondent which is sought to be enforced by recourse to the Act is the

right to be maintained and protected by her children. In view of the

specific contention of the petitioner that she had never refused to do

so and that Exhibit      P1 is an agreement recorded without her

understanding the contents of the same, I am of the opinion that

 
interests of justice will be met by directing that the petitioner shall look

after her mother.

      In the result, Exhibit    P1 is set aside. It is directed that the

petitioner shall also have the responsibility of looking after her mother.

If the 3rd respondent agrees to go and reside with the petitioner, she

shall be looked after well and expenses shall be met by the petitioner.

If the 3rd respondent is not desirous of going and staying with the

petitioner, the petitioner will pay an amount of Rs.5,000/- (rupees five

thousand) to the 3rd respondent instead of Rs.500/-per month as

agreed in Exhibit P1 on or before 10th day of every month commencing

from November, 2016 towards the personal expenses of the mother. If
any default is committed by the petitioner in paying maintenance as
directed above, the 3rd respondent will be free to approach the Tribunal
afresh.

     
The writ petition is ordered accordingly.

Live in Relationship (Judgments) 1.Bharatha Matha v/s R. Vijaya Renganathan - Child born out of live in relationship may be allowed inheritance property of parents.

Live in Relationship (Judgments)
1.Bharatha Matha v/s R. Vijaya Renganathan - Child born out of live in relationship may be allowed inheritance property of parents.
2.Abhijit Bhikaseth Auti v/s State of Maharashtra - Long period live in relationship woman should enjoy legal status of wife
3.D. Veluswami v/s D. Patchaimmal - it is necessary that couple must hold themselves out to society as being akin to spouses
4.Alok Kumar v/s State - live in relationship is a walk in and walk out relationship 5.Badri Prasad v/s Dy. Director of Consolidation - Recognized live in relationship as a valid marriage.
6.Mohabbat Ali Khan v/s Muhammad Ibrahim Khan - law presumes living together in consequences of a valid marriage D.Velusamy v/s D.Patchaiammal
7.Lata Singh v State of UP - recognized a live in relationship
8.SPS Bala subramanyam v Sruttayan : If a man and woman are living under the same roof and cohabiting for a number of years, there will be presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate
9.Tulsa and ors. v Durghatiya and ors: Held that when a man and a woman have cohabited for a long period of time they will be considered to be married unless there is an evidence to the contrary .This judgement illustrates the courts attempt to treat a live in similarly to marriage 10.Madan Mohan Singh & Ors v Rajni Kant : “Live-in relationship’ is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time.
11.Savitaben Somabhai Bhatiya v State of Gujarat : Made an exception where the live in partner who had assumed the role of second wife was not granted any maintenance whereas the child was granted maintenance.
12. Captain Ramesh Chander Kaushal v Mrs.Veen Kaushal : The right to maintenance is condition to the fatherhood of the child being established.
13. Dimple Gupta v Rajiv Gupta : maintenance under Section 125 of the CrPC for illegitimate child born out of an illicit relationship
14.Vidyadhari v Sukhrana Bai : Supreme Court passed a landmark judgement wherein the Court granted inheritance to the children born from the live in relationship in question and ascribed them the status of “legal heirs”. 15.Revanasiddappa v Mallikarjun : The question raised in this cases was whether the children of void/voidable marriages have a right to only the self- acquired property of their parents? Since, there is no attempt to marry, theoretically it is often argued that live in relationships should not be granted any form of legitimacy in the eyes of law and the children born out of such sexual unions cannot be provided with any inheritance rights. However, in such a situation the Courts have exercised the authority vested in them and interpreted the statutes in a broader manner to ensure that the children do not suffer as a result of the wrongs of their parents and consequently face problems in their economic as well as social life. Apart from the presumption of marriage in case of existence of such relations for a reasonable period of time, the Court have adopted a liberal approach towards the inheritance rights of children specifically.

Supreme court waived waiting period of six month for divorce by mutual consent

Supreme court waived waiting period of six month for divorce by mutual consent

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL No. 4490 OF 2016

(Arising out of SLP (c) No.12161 of 2016)

 

NIKHIL KUMAR                                       Appellant

 

VERSUS

 

RUPALI KUMAR                                          Respondent

J U D G M E N T

1. Leave granted.

2. The appellant and respondent have filed the petition under Section 13- B(1) of the Hindu Marriage Act, 1955 before the Family Court (Principal Judge, Family Court, Tiz Hazari District Courts), Delhi. The parties were married on 07.02.2011 according to the customary rights. It is submitted that they have not been able to workout their marriage as husband and wife since day one. For the last around five years, most of the time they have been living separately and their marriage reached a breaking point more than a year back. Both the parties, after giving serious thought on the entire consequences of their decision, have taken a conscious decision to part and accordingly they have filed a petition before the Family Court for divorce on mutual consent on 29.03.2016. The Family Court granted the First Motion on 01.04.2016 and now, the matter is posted in the month of October, 2016.

3. The respondent has made a travel plan to move to New York on 29.04.2016 seeking a job and resettlement in life, after a long period of traumatic experiences of her married life as stated in the affidavit.

4. In the above circumstances, the appellant has filed the present appeal praying for waving the six months' waiting period required under Section 13-B(2) of the Hindu Marriage Act, 1955, invoking our jurisdiction under Article 136 read with Article 142 of the Constitution of India.

5. The respondent has appeared in person. She was directed to file an affidavit before this Court. The respondent in the affidavit has endorsed the submission that they were not happy ever since their marriage in 2011. It is stated that with the set-back of a broken marriage, the respondent needs a change in environment and thus, she has proposed to move to New York and it would be difficult for her to get back to India after six months or even in the near future. It is further stated that both of them have realized the consequences of their decision and they have taken the decision out of their free will and without any undue influence or coercion.

6. Both the parties have appeared before the Court. The appellant was born in the year 1984, and is graduate in commerce. He is working as senior manager in a private firm. The respondent was born in the year 1982 and she also is a graduate.

7. The respondent is scheduled to leave the country by 29.04.2016 and it is not possible for her to return to India within six months or in the near future, it is submitted.

8. Having regard to the educational background of the appellant as well as the respondent, and the entire facts and circumstances, we feel that it is a very peculiar situation where this Court should invoke its jurisdiction under Article 142 of the Constitution of India for doing complete justice between the parties. We do so.

9. In the above circumstances, HMA No.272 of 2016 filed on 29.03.2016 before the Ld. Principal Judge, Family Courts, Tiz Hazari District Courts, Delhi under Section 13-B(1) of the Hindu Marriage Act, 1955 is allowed. The statutory period of six months is waived and the marriage between the parties is dissolved.

10. The Registry to communicate a copy of this judgment to the Family Court forthwith.

11. The appeal is allowed as above. No order as to costs

SC: "Stridhana" - Meaning and nature of - Wife is absolute owner of stridhana property - It is not a joint property of the wife and the husband.*_

_*⭐SC: "Stridhana" - Meaning and nature of - Wife is absolute owner of stridhana property - It is not a joint property of the wife and the husband.*_

_Properties gifted to the bride before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. The husband has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband has no title or independent dominion over the property as owner thereof._

_Case:_
_*Rashmi Kumar Vs. Mahesh Kumar Bhada*_

_Citation:_
_*(1997) 2 SCC 397.*_

_Bench Strength *- 3*_
_Coram: *K. Ramaswamy,  S. B. Majmudar and G.T. Nanavati, JJ.*_
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Whether women can outrage Modesty of women?

Whether women can outrage Modesty of women?

The argument of Mr. Gupta is that as the Penal Code does not make the act of assault or use of criminal force to any man with intent "to outrage his modesty" an offence, Section 354, Penal Code contravenes Article 14 of the Constitution and that in enacting Section 354, Penal Code, the legislature has discriminated in favour of women only on the ground of sex and that therefore, Section 354 offends against Article 15(1). In my view this argument is unsound and must be rejected. The offence under Section 354 is committed only when a person assaults or uses a criminal force to a woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It is not the act of outraging the modesty that is made an offence under this section. In order to constitute an offence under Section 354, Penal Code there must be an assault or use a criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged. The offence under Section 354, Penal Code can be committed by any man or a woman with the necessary intent or knowledge. For, a woman can assault or use criminal force to any other woman as equally and effectively as any man; and the intention or knowledge that the modesty of the woman assaulted or against whom criminal force has been used will be outraged, is not of a kind which a woman on account of inherent differences from man is incapable of having. The pronoun "he" used in the expression "that he will thereby outrage her modesty" must therefore be taken under Section 8, Penal Code as importing a male or a female. It is thus clear that : under Section 354, Penal Code a man as well as a woman can be held guilty of the offence of assaulting or using criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged, and be punished for the offence. Section 354, therefore, operates equally upon all persons whether males or females and it cannot be maintained that as women are exempt from any punishment under this section, it offends against the provisions of Article 14 of the Constitution.

Madhya Pradesh High Court
Girdhar Gopal vs State on 18 December, 1952
Equivalent citations: 1953 CriLJ 964

Dixit, J.

1. In this case the petitioner Girdhar Gopal has been convicted by the City Magistrate, Lashker for offences under Sections 342 and 354, Penal Code and sentenced to six months and one year rigorous imprisonment respectively for each of the offences. The sentences were directed to run concurrently. The Sessions Judge of Gwalior rejected an appeal preferred by the accused against the convictions and sentences. The applicant has now come up in revision to this Court.
2. Before me, Mr. Bhagwandas Gupta learned Counsel for the applicant did not challenge the conviction and sentence of the applicant under Section 342, Penal Code, His contention was that Section 354, Penal Code offended against the provisions of Articles 14 and 15 of the Constitution of India and that therefore, Section 354 being void, the conviction of the applicant under that section was illegal. The argument of Mr. Gupta is that as the Penal Code does not make the act of assault or use of criminal force to any man with intent "to outrage his modesty" an offence, Section 354, Penal Code contravenes Article 14 of the Constitution and that in enacting Section 354, Penal Code, the legislature has discriminated in favour of women only on the ground of sex and that therefore, Section 354 offends against Article 15(1). In my view this argument is unsound and must be rejected. The offence under Section 354 is committed only when a person assaults or uses a criminal force to a woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It is not the act of outraging the modesty that is made an offence under this section. In order to constitute an offence under Section 354, Penal Code there must be an assault or use a criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged. The offence under Section 354, Penal Code can be committed by any man or a woman with the necessary intent or knowledge. For, a woman can assault or use criminal force to any other woman as equally and effectively as any man; and the intention or knowledge that the modesty of the woman assaulted or against whom criminal force has been used will be outraged, is not of a kind which a woman on account of inherent differences from man is incapable of having. The pronoun "he" used in the expression "that he will thereby outrage her modesty" must therefore be taken under Section 8, Penal Code as importing a male or a female. It is thus clear that : under Section 354, Penal Code a man as well as a woman can be held guilty of the offence of assaulting or using criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged, and be punished for the offence. Section 354, therefore, operates equally upon all persons whether males or females and it cannot be maintained that as women are exempt from any punishment under this section, it offends against the provisions of Article 14 of the Constitution.
3. It is true that the act of assault or use of criminal force to any man with the intention or knowledge of "outraging his modesty" is not made an offence under the Penal Code. Learned Counsel for the applicant was, however, unable to say what according to him was the meaning of the expression "outraging the modesty of a man" or whether the expression meant "offending the impudence of man" or dishonouring him. It would however, appear from Section 353 that an assault or use of criminal force to any man by a woman intending thereby to dishonour him otherwise than on grave provocation is punishable. Be that as it may the objection of the learned Counsel for the applicant that the Penal Code gives no protection to man against assault or criminal force with intent to "outrage his modesty" is really an objection as to the policy of law in not creating a particular offence. It is not an objection as to the infringement of Article 14 of the Constitution. This Article provides that the State shall not deny to any person equality before the law or the equal protection of laws within the territories of India. Article 14 has been construed by the Supreme Court in several cases See Raning Rawat v. State of Saurashtra ; Charanjitlal v. Union of India and by this Court also in Miss Sumitra Devi v. State of Madhya Bharat 1952 Madh B LR 385 (C) and in effect it means that every law that the State makes shall operate alike upon all persons, and property under the same conditions and circumstances. It does not mean that all persons, property or ' occupation must be treated alike by the State. As pointed out by His Lordship Das J. in : While Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act.
4. From these observations it is clear that a reasonable classification of groups for purposes of legislation is permissible and what is prohibited is discrimination between persons who are included in the group to which the law applies. If, therefore, the Legislature has in its wisdom thought it fit to treat men differently from women in regard to modesty and to make an assault or use of criminal force with intent to outrage the modesty punishable under Section 354 when committed only with respect to women, the provisions contained in Section 354, Penal Code cannot be condemned as repugnant to Article 14 of the Constitution.
5. The contention of the learned Counsel for the applicant that Section 354 violates the provisions of Article 15(1) of the Constitution is equally untenable. This Article says that the State shall not discriminate on grounds only of religion, race, caste, sex, place of birth or any of them. The word "only" is important and deserves to be noted. It emphasises the fact that the discrimination that is prohibited; under Article 15(1) is a discrimination based on the ground of sex, or race, etc. alone. If the discrimination is based not merely on any of the grounds stated in Article 15(1) but also on considerations of propriety, public morals, decency, decorum and rectitude, the legislation containing such discrimination would not be hit by the provisions of Article 15(1). It cannot be denied that an assault or criminal force to a woman with intent to outrage her modesty is made punishable under Section 354 not merely because women are women, but because of the factors enumerated above. Our country is not peculiar in making the acts described in Section 354 punishable as an offence. Such acts constitute a penal offence in all other civilised countries. After all civilisation depends on morality. In any country claiming or aspiring to be a civilised country morality and all the incidents of morality are as essential as justice to the citizen and personal liberty. No civilised country whose action is directed towards securing "the greatest good of the greatest number" can allow assaults or criminal force to women with intent to outrage their modesty to go unpunished and permit the position of women to be injuriously affected by chartered libertines. In my opinion, the contention advanced on behalf of the applicant that Section 354 offends Article 15(1) must be rejected.
6. As to the facts of the case, I see no reason to differ from these concurrent conclusions arrived at by the Courts below. On the evidence on record it is conclusively established that on the afternoon of 10.2.1951 at about -4-30 p.m., the applicant who is a Pujari of a Mandir caught hold of a young girl named Saroj of about 9 years of age, took her to his house on the pretext of giving "Parshad" to her and then when she was inside he closed the door of the room, made her lie on a bed, put a covering on her and then sat upon her for some time. Later on the applicant became naked and asked Saroj, to remove all her clothes. When the girl shouted and called her brother, who happened to come near the house in search of Saroj, the applicant forcibly closed her mouth. Saroj was then rescued by the neighbours who forcibly opened the door and entered the room. On her return home, Saroj then complained to her mother. Mr. Bhagwandas Gupta urged that as Saroj was a little girl of nine years of age, she could not have developed the sense of modesty of a woman as contemplated by Section 354, Penal Code and further as her mother was not examined, to support her statement that she complained to her mother, it was doubtful whether the applicant had committed any offence at all under Section 354, Penal Code. Learned Counsel relied on Soko v. Emperor AIR 1933 Cal 142 (D). In that case Jack J., felt some doubt as to whether the act of a man putting a finger into the private parts of a girl of five and half years of age, constituted an offence under Section 354, Penal Code. The learned Judge was inclined to think that when the girl had no hesitation in telling her mother exactly what had happened and having regard to her age, it could not be said that she Had developed a sense of modesty, Ghose J., who was the other member of the Bench which decided that case did not agree with the view taken by his learned brother that the case did not fall under Section 354, Penal Code. In the Calcutta case, the accused was ultimately convicted under Section 323, Penal Code and the sentence of six months rigorous imprisonment which had been awarded to him by the trial Magistrate under Section 354, Penal Code was maintained. Having regard to the circumstance that the sentence was maintained, Bose J., did not wish to differ with the conclusion arrived at by Jack J. With all respect to Jack J., I am unable to find myself in agreement with his reasoning. It is unnecessary to consider here whether a little girl of five years of age can be said to have developed a sense of modesty contemplated by Section 354, Penal Code. So far as the present case is concerned, it is clear that when the applicant asked Saroj to remove her clothes, she refused to do so and shouted. It cannot, therefore, be said that she had not developed any sense of modesty. To my mind, the act of the applicant in confining Saroj in a room, in making her lie on a bed and then sitting on her and becoming naked is clearly one amounting to use of criminal force with the intention or knowledge that the girl's modesty will be outraged. The applicant has been rightly convicted under Sections 354 and 342, Penal Code. The appropriateness of the sentences awarded to him is amply made out.
7. In the result this revision petition is dismissed.

Divorce Petition can not be dismissed on basis of mistake in petition.

Landmark Judgement(SC): Divorce Petition can not be dismissed on basis of mistake in petition.

In this case, the petition has been filed in 2005 the evidence by way of affidavit has been filed in 2008 and the cross examination of the witness is yet to be completed.  The case has been pending in the court for many years and it is noted that there is an unintentional drafting error which can be corrected by an amendment simplicitor will be taken to technical view when the thrust of concern in matrimonial be a question of granting or non-granting of divorce. The question is whether the court can reject an application for dismissal of the divorce petition which has been filed under the Hindu marriage Act on the ground of cruelty and desertion when admittedly the parties have contracted a marriage under the Special Marriage Act and yet give a direction suo motu to the respondent to amend the petition.
                            
HIGH COURT OFDELHI AT NEW DELHI 

                                         
        
MAT. Appeal No.32/2009 

  
Decided on : 28th May, 2015 

   
SUMAN KUNDRA   
                                                                                                              ...... Appellant 

                                                                                          
Versus 

  
SANJEEV KUNDRA   
                                                                    

                                       ...... Respondent
CORAM: 

  
HON'BLE MR. JUSTICE V.K. SHALI 

  
V.K. SHALI, J.

    1. This is an appeal filed under Section 28 read with Article 227 of the Constitution of India by the appellant against the order dated 16.3.2009 by virtue of which the application of the appellant for dismissal of the petition for divorce filed by the respondent herein under Section 13 (i) (a) of the Hindu Marriage Act was sought to be dismissed on the ground that the marriage between the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act. 

    2. The question which is arising for consideration is as to whether the court can reject an application for dismissal of the divorce petition which has been filed under the Hindu Marriage Act on the ground of cruelty and desertion when admittedly the parties have contracted a marriage under the Special Marriage Act and yet give a direction suo motu to the respondent to amend the petition. 

    3. Both Mr. Chandhiok, the learned senior counsel for the appellant and Mr. Jai Bansal, the learned counsel for the respondent have vehemently canvassed for their point of view with a number of judgments but before dealing with their respective submissions, it may be pertinent here to give a brief background of the case. 

    4. The respondent/petitioner filed a petition against the appellant/wife for grant of divorce underSection 13 (i) (a) and (i) (b) of the Hindu Marriage Act on the grounds of cruelty and desertion. It was not disputed that the parties are Hindu by religion and got married on 29.10.1986 as per Hindu rites and ceremonies. The marriage though a love marriage could not continue for very long and the relationship soured as a consequence of which the marriage got dissolved by a decree of divorce on 2.6.1988. 

    5. After the decree of divorce having been passed, the parties were drawn against each other once again and they decided to get re-married for second time. This time on 3.5.1990, the marriage was solemnized before a Marriage Officer, Tis Hazari Court, Delhi under the Special Marriages Act. The parties could not reconcile their inherent differences and the husband on 21.07.2005 filed a petition for divorce on the ground of cruelty and desertion under Section 13 (i) (a) and (i) (b) of the Hindu Marriage Act. 

    6. The appellant contested the petition and filed her written statement on 8.9.2005. Issues were framed on 27.9.2008 and the case was set down for trial. The respondent/petitioner filed his affidavit of evidence on 28.11.2008 and 7.1.2009 and the case was adjourned to 11.2.2009. 

    7. On 9.2.2009, the appellant/defendant filed an application under Section 151 CPC seeking dismissal of the petition on the ground that a false averment has been made in the petition with regard to the status of the respondent/petitioner and further that the divorce petition has been filed under HMA while as admittedly the marriage has taken place under Special Marriage Act. Therefore, the petition on the face of it was not maintainable. 

    8. The respondent/petitioner filed his reply to the application and stated that the petition for divorce cannot be dismissed on account of the error which has crept in the petition with regard to the mentioning of the provision for grant of divorce which admittedly was cruelty and the said ground of cruelty apart from being a ground under Section 13 (1) (a) of the HMA is also a ground for grant of divorce under Section 27 of the Special Marriage Act. It was also contended that the learned ADJ who is to try the divorce petition under the HMA is also to try the divorce petition under the Special Marriage Act and therefore, this being only a technical objection should not come in the way of processing and dealing with the petition on merits. 

    9. The learned ADJ after hearing the arguments of both the sides dismissed the application of the appellant by holding that he has the jurisdiction to entertain the petition for divorce both under the HMA as well as Special Marriage Act and the cruelty being a ground for divorce under both the Acts, therefore, the petition could continue as there is a cause of action for the same. However, while dismissing the application, the learned Judge distinguished the judgment relied upon by the appellant in Harshad Chiman Lal Modi vs. DLF Universal & Anr.; (2005) 

    7 SCC 791, which was relied upon by them in order to contend that a forum which did not have the jurisdiction could not entertain the same. These judgments were distinguished by the learned ADJ by observing that they related to territorial jurisdiction and not to subject-matter jurisdiction which admittedly the ADJ had in the instant case. The learned ADJ in support of his reasoning relied upon two judgments cited by the learned counsel for the respondent/petitioner to contend that it had the jurisdiction because the ground of cruelty was a ground for which a provision existed as a ground for divorce under both the enactments. The case relied upon are titled Anupam Das v.Smt. Mampi Das; AIR 2008 Gau (3) 2007 and Prabir Chandra Chatterjee vs. Kaveri Guha Chatterjee; AIR 1987 Calcutta 191. 

    10. I have heard both Mr. Chandhiok, the learned senior counsel for the appellant as well as Mr. Jai Bansal, the learned counsel for the respondent. 

    11. Mr. Chandhiok, the learned senior counsel for the appellant has made the following submissions :- 

    12. The first contention is that if the marriage is solemnized under the Special Marriage Act, then one cannot invoke the jurisdiction of the court exercising the powers under Hindu Marriage Actas in that case, the court will not have the jurisdiction over the subject-matter unless and until it is not a family court under the Family Court Act. In order to support his submissions, he has placed reliance on Stephen Joshus & Anr. Vs. JS. Kapoor; (1995) 58 DLT 57; Mohan Raj vs. Violet Chandra; (1993) 1 ALL India HLR 108; and D. Jacintha Kamath vs. K. Padmanabha Kamath; AIR 1992 Kant 372. 

    13. In Stephen Joshus's case (supra), the question which had arisen was whether a Christian married under the Christian Marriage Act could be granted divorce on the basis of mutual consent under Special Marriage Act. The submission which was made before the Hon'ble High Court of Delhi was that since under the Special Marriage Act, 1954, mutual consent is a ground of divorce it is equally applicable to all the citizens of India irrespective of the fact that as to whether the marriage is solemnized under the same or other provisions of law. Section 28 of the Christian Marriage Act does not create a bar on grant of divorce by mutual consent. 

    14. This contention was negatived by the High Court stating that the divorce can be granted only on the grounds which are available under a particular act under which parties have got married meaning thereby that since parties were married under the Christian Marriage Act and under the said Act there was no provision for grant of divorce by mutual consent and therefore their marriage could not be dissolved by mutual consent. Similar is the judgment in Mohan Raj's case (supra). 

    15. In D. Jacintha Kamath's case (supra) the question which had arisen was whether a Christian marriage where one of the parties is Hindu can be dissolved by a decree of divorce under Section 13 of HMA at the instance of either of the parties. This contention was also negated by Karnataka High Court on the ground that for the purpose of dissolution of marriage under Hindu Marriage Act the parties have to be necessarily Hindus and married according to Hindu rites and ceremonies, customary or ones which are prescribed under the said Act. 

    17. In the instant case, the learned Trial Judge had rejected the application of the appellant/wife for dismissal of the divorce petition holding that such a petition for divorce was maintainable and the only mistake which had taken place was instead of mentioning the relevant provisions for grant of divorce under the Special Marriage Act, the provisions of the Hindu Marriage Act were mentioned. 

    18. It has been contended by Mr. Chandhiok that no doubt under the Family Courts Act, it is the same Family Judge who deals with the personal laws and the matrimonial laws of all the religions, but before the constitution of the family courts as this is an old case, the jurisdiction is vested with the District Judge and it is not necessary that the same District Judge may be assigned the task. Therefore, there will be lack of jurisdiction to entertain the petition by the District Judge which passed the impugned order. 

    19. What is involved in the present case is special jurisdiction and admittedly it cannot be said to be an inherent lack of jurisdiction to entertain a matter with regard to the special jurisdiction that a matter pertaining to personal law or a law pertaining to grant of divorce by the Trial Judge. The reason for this is that the Trial Judge under the Hindu marriage as well as the Special Marriage Act has to be the District Judge and incidentally in the instant case, it is the same additional District Judge who is to decide the application for amendment both under the Special Marriage Act and the Hindu Marriage Act. 

    20. Therefore, the same District Judge dealing with the divorce petition under the Hindu Marriage Act as well as Special Marriage Act in my view does not lack the jurisdiction to entertain the application of the respondent. 

    21. It may also be stated that objections with regard to the jurisdiction so far as the subject matter is concerned, ought to have been taken by the respondent at the earliest possible stage to avoid wastage of time and energy of both the litigants as well as of the court staff. In the instant case, the matter has been filed in 2005 the evidence by way of affidavit has been filed in 2008 and the cross examination of the witness is yet to be completed. The matter has been pending now in courts for the last more than a decade and, therefore, to dismiss the divorce petition on the ground of lack of inherent jurisdiction when the same is due to an inadvertent drafting error which can be corrected by an amendment simplicitor, would be to take a hyper technical view by this court when the thrust of the concern in matrimonial matters should be the question of grant/non grant of divorce and other ancillary reliefs to the parties. 

    22. The learned senior counsel's arguments flow from the assumption as if the divorce under theSpecial Marriage Act and the divorce petition under HMA are dealt with by two different authorities. Both the powers are with the same District Judge. 

    23. I do not agree with this submission of the learned senior counsel for the appellant for the simple reason as stated above that in the instant case it is the same District Judge who was hearing the objections for grant of divorce, restitution of conjugal rights as well as grant of maintenance and other peripheral orders. 

    24. Therefore, this contention of the learned senior counsel in view of the aforesaid does not persuade me to accept his argument. 

    25. The second submission is that wrong mentioning of provision is different from invoking jurisdiction under a different statute. Reliance in this regard is placed on Jeet Mohinder Singh vs. Harminder Singh; (2004) 6 SCC 256. 

    26. In Jeet Mohinder Singh's case (supra), the Supreme Court has dealt with the purpose of mentioning the correct provision for filing the application and it was held as under: 

    6. Though the nomenclature of an application is really not material and the substance is to be seen, yet it cannot be said that a party shall be permitted to indicate any provision and thereafter contend that the nomenclature should be ignored. Duty is cast on the parties to properly frame their applications and indicate the provisions of law applicable for making the application. Nomenclature may not be normally material. But there is a purpose in indicating the nomenclature in a clear and precise manner. Though it is the substance and not the form which is material but as indicated above, that cannot be a reason to quote an inappropriate provision of law and then say "Don't look at the nomenclature". The care and caution which is required to be taken cannot be diluted to absurd limits. The care and caution required to be observed while making an application in the highest Court of the State are sadly missing in this case. Order XVIII Rule 17 deals with recall and examination of a witness and reads as follows: 

    "The Court may at any stage of a suit recall any witness who has been examined andmay subject to the law of evidence for the time being in force put such questions to him as the Court thinks fit." 

    27. In the aforesaid case, although the application for recalling and examination of a witness was filed but wrong provision of law was mentioned. The Supreme Court although impressed upon correct mentioning of the provisions of law for filing the application, but on merits of the matter as the application was filed under a wrong provision, the aggrieved party was permitted to file a fresh application under Order 18 Rule 17 which if it chose to do and the same was to be dealt with by the trial court meaning thereby that although the court impressed upon the mentioning of the correct provisions of law for the purpose of filing of an application or for that matter which would applicable to a petition also, but it did not oust the aggrieved party in the said case only on technicalities of not granting it an opportunity to rectify the deficiency by filing a fresh application under the relevant provision. 

    28. There is no quarrel with the proposition of law laid down in the said judgment that correct provision of law must be mentioned in the application or the petition, but at the same time in case a correct provision of law has not been mentioned, a party be that in an application or a petition, the said petitioner/applicant should not be made to suffer on account of these inadvertent technical errors which have cropped up. 

    29. The learned counsel for the respondent relying on N.Mani v.Sangeetha Theatre; (2004) 12 SCC 278 has submitted that in the instant case there was only a technical problem, which was already removed by the learned ADJ court by directing the respondent to file amended petition of divorce under Special Marriage Act. 

    30. No Doubt, the pleadings are of utmost importance and so are the provisions of law under which they are filed. But courts are by and large guided by the substantive justice rather than ousting a party on hyper technicalities. This is more so in matrimonial cases which are not like commercial disputes. In matrimonial cases both the a parties are disturbed because of their matrimonial discord, therefore, they need to be dealt with humane approach with a view to find a solution to their vexed problem through adjudication if it is not possible through mediation and conciliation. Therefore, in my view, this judgment does not help the appellant. 

    31. The third submission is non-raising of 'No objection as to inherent lack of jurisdiction' in the written statement will not create any bar against the appellant to raise this plea at any time of the proceedings. Reliance in this regard was placed on the following three judgments Sarwan Kumar vs. Madan Lal Aggarwal; (2003) 4 SCC 147; Hira Lal Patni vs. Kali Nath; (1962) 2 SCR 747; andUnion of India vs. Baleshwar Singh; 1994 Supp. (2) SCC 587. 

    32. The three judgments with regard to the timely objection regarding the inherent lack of jurisdiction not being taken by the appellant, does not create any bar against the appellant raising that objection now. 

    33. In the instant case, there is no lack of inherent jurisdiction of the forum to deal with the divorce petition. It is the same district judge who deals with the divorce petitions under different enactments. The question was whether persons who had got married under Special Marriage Actcan be given divorce when the petition for divorce has been filed under H.M.A., certainly answer to this question is in negative. But then the question would arise should the petition be amended? The trial court has suo moto given direction to amend the petition. 

    34. The next submission is also connected with the earlier submissions that the appellant's conduct or his participation in the proceedings will not confer jurisdiction on a court or a Judge who inherently lacks the same. 

    35. Since I have already held above that there is no inherent lack of jurisdiction, therefore, this submission of the learned senior counsel for appellant that the appellant's participation will not confer the jurisdiction is of no merit. There was no inherent lack of jurisdiction. The only thing was wrong provision was invoked by the respondent. Having said so, the appellant ought to have raised this object at the earliest stage. Since this was not done there, it could be taken as an objection having been waived or the appellant is decreed to be estopped from raising the same. But still the question would have remained whether the cause of action for grant of divorce existed under the provision in which petition was filed. That would be question to be decided on merits. 

    36. The next submission is that the divorce petition is liable to be dismissed as the same has been filed after suppressing material facts from the Hon'ble Court and reliance in this regard was placed on Satish Khosla vs. Eli Lilly Ranbaxy Ltd.; 741 (1998) DLT 1; and A. Janaki vs. John Keneddy; MANU/TN/0394/2009. 

    37. At the outset, it stated so far as the question of concealment of facts, as alleged, is concerned, that is a question of merit of the matter and need not and cannot be gone into when the dismissal of the petition is sought on account of certain procedural irregularity. 38. Mr. Jai Bansal, the learned counsel for the respondent is concerned, has primarily placed reliance on the two judgments of the Bombay High Court and Guwahati High Court. These are Anandrao, s/o Marotrao Kharabe vs. Madhuri posing herself to be w/o Anandrao Kharabe &Anr.; 2009 (111) Bombay LR 832 and Anupam Das vs. Smt. Mampi Das; AIR 2008 Gau 3. 

    39. So far as Anupam Das's case (supra) is concerned, the same is distinguishable on the premise that this was a case which had come up before the High Court of Gauhati when a petition underArticle 227 of the Constitution of India was filed challenging an interlocutory order passed underSection 25 of the Hindu Marriage Act, 1955 and Section 20 (3) of the Hindu Adoptions andMaintenance Act, 1956 by the learned District Judge, Shillong directing the revision-petitioner to pay a sum of Rs.1,000/- per month to the respondent and another sum of Rs.500/- per month to her minor child for the purpose of maintenance. One of the grounds for challenging the maintenance order was that the marriage between the petitioner and the respondent/wife was solemnized and duly registered under the Special Marriage Act, 1954 and the learned District Judge had no inherent jurisdiction to entertain and proceed with the divorce petition filed by the respondent under Section 13 (1) (i-a) of the Hindu Marriage Act, 1955 and therefore, the application under Section 25 of the Hindu Marriage Act which was for permanent alimony which is to be granted at the time of divorce was itself not maintainable. The Hon'ble High Court did not accept this plea of the petitioner for setting aside the order by giving the reasoning that there is no dispute that the learned District Judge, Shillong had the jurisdiction to entertain the divorce petition, both under the provisions of Hindu Marriage Act and Special Marriage Act. It was also noted that incidentally, cruelty which was a ground for filing a petition for grant of divorce under the Hindu Marriage Act was also a ground for divorce under the Special Marriage Act underSection 27 (1) (d) 

    At the same time, the High Court observed that henceforth, the petition for grant of divorce which has been filed under the Hindu Marriage Act shall be entertained as an application filed under the Special Marriage Act. 

    40. In Anandrao's case (supra) is also distinguishable from the instant case as the issue involved was whether it was open to the parties whose marriage is solemnized under the Special Marriage Act by mutual consent to dissolve their marriage can be legally dissolved as per customs which are saved by Hindu Marriage Act even though marriage is solemnized under Special Marriage Act.Therefore, this judgment also at least recognizes one principle that if a mutual consent is not a ground for divorce and both the parties are Hindus by their religion, they cannot get their marriage dissolved by a provision which was nonexistent in the Special Marriage Act. 

    41. As against this, in the present case, the marriage originally had taken place according to Hindu Rights and Ceremonies in the year 1986. The said marriage was dissolved by a decree of divorce from a competent court on 02.06.1988. The parties had again got married under theSpecial Marriage Act and once they got married under Special Marriage Act, therefore, their conduct with regard to the grant of divorce or relationship would be covered under the Special Marriage Act only. The respondent filed a petition for divorce under the Hindu Marriage Act. 

    42. Because of these reasons, I feel that the acceptance of both these judgments as making a basis of dismissing the application by the learned Trial Judge was misplaced. 

    43. The next question which arises for consideration is though the learned Trial Judge has dismissed the application of the appellant filed under Section 151 CPC for dismissal of the divorce petition, but still it has directed the respondent to amend the divorce petition and for this purpose it has given time. The law regarding amendment of the plaint or a petition is incorporated under Order 6 Rule 17 CPC. The said order reads as under: 

    17. Amendment of Pleadings.- the Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: 

    Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 

    44. A perusal of the aforesaid provision would clearly show that Order 6 Rule 17 CPC envisages amendment of a plaint or a written statement on an application and not on direction of the court meaning thereby that only when an application is filed by either the plaintiff or the defendant for amendment of its pleading, the court will be called upon to decide the said application at that point of time. The court has no power of its own unlike under Section 151 CPC or under Order 14 Rule 5 CPC or Order 1 Rule 10 CPC to pass an order which may be warranted under law in those contingencies. As has already been discussed in the previous paras, the learned Trial Judge, in my considered opinion, has exceeded its jurisdiction of also giving a direction to the respondent to amend the plaint and treat the provisions of Section 13(1) (a) i.e. ground of cruelty as a ground for grant of divorce under the Special Marriage Act. 

    45. But at the same time, it is pertinent to note that the courts must act in a manner so as to deliver substantive justice and to ensure that a litigant is not made into a litigant non grata for inadvertent deficiencies as the same might lead to a meritorious case being thrown out at the very threshold for mere technicalities. 

    46. In B.K.Narayana Pillai v. Parameswaran Pillai; AIR 2000 SC 614, the Hon'ble Apex Court has held as under: 

    " The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. 

    47. When a party approaches a counsel for legal advice and entrusts the matter to him, it is presumed that the same shall be dealt with utmost professionalism and due despatch. In Rafiq v.Munshilal; (1981) 2 SCC 788, the Hon'ble Supreme Court has held that once a person engages his counsel his botheration goes and it is the duty of the counsel to take care of the case. In the instant case, the inadvertent drafting error seems to have crept in on the part of the drafting counsel which mistake should not prejudice the interest of the party. 

    48. The Hon'ble Supreme Court in Bhuwan Mohan Singh v. Meena;AIR 2014 SC 2875 has observed that all such applications pertaining to maintenance, divorce, custody of child must be decided expeditiously by the court owing to the factum that the lis before it pertains to emotional fragmentation and delay can feed it to grow. The instant case was filed in 2005 and we are in 2015, in the last ten years, the matter has not seen any substantial progress on account of the same being lying pending in the docket of this court merely due to an inadvertent drafting error which can be rectified on an amendment simplicitor. 

    49. In the light of the aforesaid facts, the appeal is partly allowed holding that the court had no power suo moto to amend the plaint or give directions to that effect to any party. However, keeping in view the peculiar facts and circumstances of the case, that the case has been pending in court for the last nearly ten years and it would advance substantive justice between the parties, an opportunity is given to the respondent to take corrective steps within a period of six weeks to rectify his mistake. In case such an application is filed, it shall be dealt within accordance with law. 

50. The parties are directed to appear before the learned District Judge on 3rd August, 2015. With this direction, the appeal is partly allowed. 

   
V.K. SHALI, J.