Cannot Be Exempted From Maintaining Child Even If Other Spouse Earns Sufficiently Well: Delhi HC

_*⭐Cannot Be Exempted From Maintaining Child Even If Other Spouse Earns Sufficiently Well: Delhi HC [Read Judgment].*_
http://www.livelaw.in/cannot-exempted-maintaining-child-even-spouse-earns-sufficiently-well-delhi-hc-read-judgment/

Whether proceeding under domestic violence Act can be conducted by brother of aggrieved woman?

Whether proceeding under domestic violence Act can be conducted by brother of aggrieved woman?

 Under Section 12 of the D.V. Act, an aggrieved person or a
Protection Officer or any other person on behalf of the aggrieved person has
been given a right to file an application to the Magistrate seeking various
reliefs permissible under the Act.   The conditions necessary for preferring
such an application are that the application must be filed by an aggrieved
person or any other person on behalf of the aggrieved person and that the
aggrieved person must be a woman, who is or who has been in domestic
relationship with the respondent and who is subjected to any act of domestic
violence by the respondent.  In the present case, the application has been filed
on behalf of the respondent by her brother.   The reason being that, at the
time of filing of the application, the respondent was doing her fellowship in
medicine at Bangalore.  The brother of an aggrieved person would certainly
fall within the meaning of the expression “any other person on behalf of the
aggrieved person”, used in Section 12 of the D.V. Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.656 OF 2015
Dr. Akshay s/o Navalkishor Lakhotiya,
Vs Dr. Arti w/o Akshay Lakhotiya,CORAM   :  S. B. SHUKRE, J.
Dated :   15th DECEMBER, 2016.
Citation: 2017(2) MHLJ 235 Bombay.  http://www.advok8.in/Consult/ConsultAll.aspx

If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and, similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and, similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

How to claim 50% of husband’s property after divorce?

How to claim 50% of husband’s property after divorce?

Are you thinking about a divorce? Do you have any knowledge about the divorce process and alimony that you will get? This article will give you an idea about the divorce procedures and the alimony that you have rights to claim and this article will help the individuals to navigate the process as smoothly as possible. You are at a right place for an overview of the divorce process.You will get an idea about where to file for divorce, serving and answering a divorce petition, divorce records and related privacy issues, divorce mediation, and more. 

The Indian government proposed some changes in marriage laws. The cabinet passed a bill called “Marriage Law’s (Amendment) Bill 2010”, which is waiting for approval and some major changes are made regarding how the properties would be divided after divorce. 

50% share for wife on husband’s properties 

Before this bill, a woman had rights in husband’s properties, but there were no legal statements about this, it would be any percentage depending on the case, but after this change, a woman can claim equal sharing without any condition in husband’s property. 

According to the earlier law, the wife gets share only in those properties which are acquired by husband after marriage, whereas according to new change the wife has rights on all properties which are acquired by the husband before and after marriage. The new divorce law saying that the share of wife in husband’s property would be 50%, no matter how much property she owns in other, her share will be decided by the court. 

Share on joint holder’s residential property 

Normally the residential properties will be a joint property. Both the husband and wife are pay’s from their respective salaries, and some cases only husband Pays. Suppose the couple got divorce – women will get 50% of all properties and she has the right to get half of her husband share in the house. As per The Hindu Marriage Act 1955, it states a settlement of property jointly owned by both parties which they were presented to them at the time of marriage. 

Apart from husband’s 50% share, the wife has also rights on other properties. But the legal statements about these rights are to be set. As per the bill now, this right depends on “living standard of the wife”. If the wives have no source of income, then according to Section 125 of the Criminal Procedure Code provides for monthly maintenance to wives. 

A lot of people are saying that this bill is totally against males and illogical.  They have termed this new divorce law as anti-marriage and anti-male law. The new law of divorce only talks about the division of the husband’s property but not wife’s property. So women will get 50% share in husband’s property even women is at fault. 

As per old divorce law, the cooling period of 6 months was compulsory before the divorce. But in new law, the couple can waive off the 6 months cool off period or lessen it if they want so. 

The serious drawback of this law is, if some men are going through a bad phase of marriage, then they have to transfer their properties into another person’s name to avoid the 50% share. 

The wife needs to take the initiative to claim the share and woman will get 50% share of the properties. Women and children have the rights on 50% properties of man and it will be decided by the court. Wives have rights on all properties of man, no matter if the property was acquired by before or after the marriage.https://play.google.com/store/apps/details?id=com.advok8

HUSBANDS ILLICIT RELATIONSHIP WITH ANOTHER WOMAN MAY NOT AMOUNT TO CRUELTY

HUSBANDS ILLICIT RELATIONSHIP WITH ANOTHER WOMAN MAY NOT AMOUNT TO CRUELTY

The Supreme Court has ruled that a husband's illicit relationship with another woman may not amount to 'cruelty' towards his wife and count as a ground for abetment to her suicide.

The case from Gujarat has striking facts. The husband and wife had a strained relationship and were contemplating divorce. The wife was resigned to her fate and had told her sister that she was facing breakdown of marriage. She had also said that she would leave her marital home. But, later, she consumed poison and committed suicide. 

The prosecution had accused the husband and his parents of cruelty and alleged that the woman was driven to suicide as her husband was having an illicit relationship with another woman. The trial court and the high court had convicted the accused.

After hearing appellant's counsel H A Raichura, a bench of Justices S J Mukhopadhaya and Dipak Misra said, "In the present case, in fact, there is no demand of dowry. If the evidence is appropriately appreciated, the deceased was pained and disturbed as the husband was having an illicit affair with a woman. Will such a situation amount to cruelty under Section 498A of IPC?"

The bench noted that the husband and wife had started living separately in the same house. "True, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC, would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide," it said.

Writing the judgment for the bench, Justice Misra said, "Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been held by the Supreme Court earlier but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide.

"In the instant case, the accused may have been involved in an illicit relationship with a woman, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the explanation to Section 498A which includes cruelty to drive a woman to commit suicide, would not be attracted." The bench acquitted the accused.

The woman hanged herself after hearing from people around the locality that her husband had an extra-marital relationship. After her death, her mother and brother also committed suicide, and the husband was held guilty under Sections 498-A and 306 of the IPC.

The judgment and order dated 13.04.2016 passed by the High Court of. Karnataka

According to Section 498-A of the IPC, a husband or his relative subjecting a woman to physical or mental cruelty can be sentenced to maximum period of three years of jail with fine.

MADHYA PRADESH HC: SEX WITH MARRIED MAN WITH UNDERSTANDING ABOUT HIS MARRIAGE NOT RAPE

Love recognizes no barriers. It jumps hurdles, leaps fences, penetrates walls to arrive at its destination full of hope.

[19/10 9:49 pm] Biji Mon Adv: “CR”
V. CHITAMBARESH & SATHISH NINAN, JJ.
= = = = = = = = = = = = = = = = = = = = = = = =
W.P.(Crl). No.313 of 2017,
I.A.Nos.15973, 15979 & 15980 of 2017
and
Crl.M.C.No.5684 of 2017
= = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 19th day of October, 2017
JUDGMENT
Chitambaresh, J.
“Love recognizes no barriers. It jumps hurdles,
leaps fences, penetrates walls to arrive at its
destination full of hope.”
said Maya Angelou, the American poet, memoirist and civil
right activist.
2. Sruthi Meledath ('Sruthi' for short) fell in love
with her classmate Anees Hameed ('Anees' for short) while
studying for the B.Sc.(Physics) course in the Pilathara Co-
operative Arts & Science College. Sruthi pursued her M.Sc.
[19/10 11:31 pm] Biji Mon Adv: And they require a little more elucidation. The concept of ‘judicial review’ is generally believed to be the invention of Chief Justice Marshall in his land mark judgment in Malberry Vs.Madison. True, Chief Justice Marshall enunciated the principle in unmistakable term. In that case Chief Justice Marshall only held that administrative decisions are amenable to correction by the Supreme Court. He enunciated nothing new. St.Augustine (AD.300) in his thesis ‘de doctrina’ said: lex injustia non est lex’; an unjust law is not a law at all. Centuries later, St.Thomas Aquinas in Summer Theologica (AD1200) re affirmed the same by saying that a law which is against the law of the nature and law of the God is no law. It need not be obeyed. He, however, gave caveat, namely, that provided the injury to be suffered by disobedience of the void law is not greater than the injury to be suffered by obedience to the unjust law. The doctrine of the right , nay , duty of of disobedience was thus laid down. A few centuries later, Chief Justice Edward Coke in Dr.Boliham’s case held enequem est aliequam rue sui est judiciam , namely, that if the Parliament were to make a law by which one of the parties to a dispute, a judge thereof, such a law is void. The assertion of Chief Justice Coke that the court of Common law could hold an Act of Parliament void, however, did not receive much acceptance and since then, no judge in England ever dated to assert so. There is valid reason for that. In England the House of Lords which is the Supreme Judicial Tribunal is itself the upper House of the Parliament. The practice since then is not to strike down an Act of Parliament as ‘void’, but in a lis between the subject and the state to declare an Act of parliament in so far as it voidable, the natural law to be void in so far as the subject is concerned. It is for the Parliament to take notice of the judicial declaration and to bring in necessary amendments to the law. In England, to challenge the wisdom of the Parliament constitute to be is in conceivable and there is no concept of judicial Review, an unruly horse, as we understand in India. However, all the 5 writs as enunciated in Article 226 and 32 are available in English; nay, we inherited it all from them alone.
It was necessary to briefly narrate as above the history of English law in the realm of “judicial review” , in view of the general misconception that civil courts have no power to interpret the constitution or declare an Act of Parliament or statutory instrument void.
While Article 226 and 32 expressly provide for judicial review by providing for five writs(Remedies) there is no express provision in the constitution which empower the High Courts or the Supreme Court to declare an Act of  Parliament or statutory instrument to be void other than Article 13(2) of the Constitution. The question therefore is , which court is competent to declare an Act of Parliament or statutory instrument to be void and unconstitutional. The answer to this question could be found in The Code of Civil Procedure,1908. Section 9 invests the jurisdiction in the civil court to try all suits of a civil nature unless barred expressly or by implication. However, by At No.23 of 1942 under section 27A titled, “suits involving a substantial question of law as to the interpretation of the constitution or as to the validity of any statutory instrument” was incorporate in The Code of Civil Procedure,1908. The said amendment made it mandatory that no suit involving a substantial question of law as to the interpretation of Govt. of India Act shall not be determined without notice to the Attorney General; so too that no suit concerning the validity of the statutory instrument can be decided without notice to the Govt. Pleader of the question concerns the government. In 1950, the words ‘Government of India Act’ were substituted by the words ‘Constitution of India’.
Thus, two things were manifest from above, namely:

(i) The civil courts can interpret and determine a substantial question of law, as to the interpretation of the constitution of India;
(ii) Declare a statutory instrument void or unconstitutional.

Then question is:
Whether the civil courts could determine the constitutional validity of an Act of Parliament?  The answer could only be in the affirmative. Because the power to determine ‘substantial question of law as to the interpretation of the constitution’ will undoubtedly take within it's ambit to declare an Act of Parliament as void, if it be so.
In all the chartered High Courts, the High Courts were invested civil original jurisdiction above a vertain pecuniary limits. Today except the chartered High Courts, no High Court enjoy original civil jurisdiction ; so too was the case at the time of the commencement of the constitution with the coming into force of the constitution by virtue of Articles 12, 13(2), and 372, thereof int became indispensible that a junior civil judge could determine a “substantial question of law as to the interpretation of the Constitution” so too invalidate an Act of Parliament , inter partes, the decision of the subordinate court having no precedential value.  The Parliament felt it to be not so ideal a situation. Accordingly by Act No.24 of 195  a proviso was added to section 113 of The Code of Civil Procedure,1908 to the effect “if in a case pending before it involves a question as to the validity of any Act, ordinance or regulations or of any provision contained in the Act,  ordinance.. the determination of which is necessary for the disposal of the case, the court shall refer the same for the opinion of the High Court.”
From the above it is crystal clear that the current practice of challenging the constitutional validity of an Act of Parliament or statutory instrument by instituting a writ petition in the High Courts or the Supreme Court of India is contrary to the Constitutional scheme and that the writ jurisdiction could be invoked in exceptional circumstances, for the enforcement of the remedies (5 kinds of writs) expressly stated in the Articles 226/32. It is not a matter of practical import; not merely academic. The reason is simple. The departure from the constitutional scheme as above has led to the exponential growth of writ jurisdiction; so too the face of law. In subordinate courts, there is nothing like face value/law. Cases are determined on it's merits, after issues are framed; evidence is allowed to be led for and against. The judge hardly exercises any discretion. He decides according to the evidence on record and law, in stark contrast to the practices in the High Courts. In the High Courts, under Article 226, no issues are framed; cases are decided summarily after at the admission stage itself. Judges openly say that he jurisdiction is discretionary. This dubious jurisdiction ( Article 226 & 32) has done great damage to the credibility of the justice delivery system as an impartial and objective with the undeniable perception among the common man that he can get justice if only he could afford an expensive lawyer, preferably of the judicial dynasties.
The situation to India’s seemingly irresolvable crisis in the dispensation of justice is to restore the pristine glory of the civil courts; recruit the best legal brain at the young age; train them; provide them the best pay and perks; so too the infrastructure; abolish if possible all tribunals; strengthen and stream line the subordinate judiciary/civil court. There in so other means than this to rebuild a robust justice delivery system.

SC Dismisses Centre’s Appeal Against Treating Children Born Out Of Void Marriages As Legitimate.

SC Dismisses Centre’s Appeal Against Treating Children Born Out Of Void Marriages As Legitimate.

BY: LIVE LAW.

On September 18, a Supreme Court bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit, dismissed the Centre’s appeal against a Division Bench judgment of the Madras High Court, which had validly held that children born out of void marriages are legitimate.

The Centre had first appealed against the judgment of the Central Administrative Tribunal before the Division Bench, and having lost in both, pursued its appeal in the Supreme Court, displaying complete non-application of mind, adding one more instance to the category of unnecessary litigation, which ought to have been avoided, to save precious resources.

The matter relates to the appointment on compassionate grounds in Southern Railway, of  a deceased employee’s son, born to his second wife, as he did not have any issue from his first wife.   The Southern Railway rejected the claim for appointment on the ground that children born to second wife were not recognised and second wife was not entitled to any benefits, as per the instructions of the Railway Board.   According to the Railway Board’s Circulated, dated 2.1.1992, appointment on compassionate ground, cannot be granted to the children born to second wife.

The Madras Bench of the CAT rejected the Railway’s contention on the basis of the judgment rendered by the Division Bench of the Kolkata High Court in the case of Smt.Namita Goldar and another v Union of India and others.

The Supreme Court too, in the case of Rameshwari Devi v State of Bihar, [2000(2) SCC 431) had held that the second marriage during the subsistence of first marriage may be illegal, but the children born out of such second marriage are legitimate and are also entitled to the estate of the father.   It is because under Section 16 of the Hindu Marriage Act, children of a void marriage are legitimate.

The CAT, therefore, held that no distinction can be made amongst the children of the first and second wife of a deceased employee.  In the present case, the first wife was issueless, and died shortly after the death of the employee concerned.

The CAT thus quashed the 1992 circular, issued by the Railway Board, to the extent that it prevented the children of the second wife from being considerd for appointments on compassionate ground.

The Madras High Court’s Division Bench, in view of the Kolkata High Court and Supreme Court’s decisions, held that the Centre’s stand against appointment of children born out of second marriage on compassionate ground, could not be countenanced in law.

The Madras High Court’s judgment was given by bench of Justices K.K.Sasidharan and V.Parthiban on February 28, 2017.

Union of India -VS-  M. Karumbayee. S.C. 2017.