How courts give Divorce?

By tanya Saraswat

We all know that marriage is one of the best moments of every individual’s life and we all some on the other part want to marry someone and wants to have our partner to be loyal and will stable to give us better company so that we will grow as an individual. As an individual we human always crave to have good or the best companionship with our partners and that partner will give us best of their guidance to run the battel of life along with our partner.

Marriage is not about having only one person as a partner in the life or to just enjoy the conjugal rights over one person. It is wedlock where two individuals’ come together to help each other or to make promises to help each other in every way. Marriage is the promise between husband and wife to stay together and live together in every thick and throw of the life.

Where there is happiness there is obviously the unhappiness that lies together but some time, they become that big which can easily spoil the beautiful relationship of the individuals and give them high grief and soreness. When a marriage exists, there is definite chances of the fights on different opinions, thoughts, perceptions and in the anger the couple forget to relay on the words of the other person and start the blame game that leads to anger, misconceptions, misbehavior on the weeded party.

Here in the Indian Society that is continuously trying to evolve but still because of the some or the other reason stopped themselves to adopt the modern thinking start blaming the individuals.

The family of the men starts blaming the girl and the family of girl start blaming the boy; but this is not always said to be incorrect that all the male are not same as well as all the females are not the same. The first Question that comes in our mind that says that “Is this correct that the Husband waived his hand on the Wife and try to beat her? Or Is it correct that the wife was having any extra marital affair with some body? Or Where is all the Gold Ornaments went? Is the Girl is like Looteri Dulhan?” all kind of assumptions we made irrespective of knowing the true and correct facts.

To clarify some of our doubts the various HIGH COURTS from all over the INDIA set some of the judgments that give relief to the society. Some of them are in favors of males and some will be in favors of females.

JUDGMENTS on Section 13 Of HMA

  1. Binod Vs. Sophy

That the said appeal was allowed by the Kerala High Court in favor of the appellant Husband. In the petition that has been field by the wife and she was adored with 51 sovereigns of gold ornaments at the time of marriage and 48 sovereign’s other gold belongings of her. While asking for gold ornaments entrustment it is said by the court in the another matter that BOP, “Burden of Prove” lies on the plaintiff in the matter of the entrustment of Gold Ornaments.

In the said matter the Apex court also quoted that another matter “Pankajakshan Nair Vs. Shulaja & Another (2017)” that at the time of filing the matter the wife made numerous of bogus allegations and as they are fake in nature, she fails to give any evidence that helps her to prove the demand for dowry and the court found that the wife voluntarily separated from her husband and her matrimonial family that itself leads to cruelty over the Appellant/Husband.

In the said matter the Apex Court again take reference from the another matter and quoted that “Separation itself amounts to cruelty” said by the three Judges bench of The Supreme Court India.

She/wife fails to explain the actual amount or the actual weight of the gold ornaments and at the time of cross-examination she fails to explain the court about her own words that leads to contradiction in her statements that has been submitted to different places. She also fails to explain about the entrustment of gold ornaments that in who’s possessions are they.

She also failed to explain about the letter in which she herself concluded that she is having the ornaments within her possession. The court observed that she failed to give appropriately right statement and make allegations that her ornaments were taken by her in-laws at next day of her marriage.

The High Court observed and found that the wife/respondent fails to prove entrustment and appropriation of gold ornaments.  The appeal is allowed and passed decree for divorce in favor of husband.

  • Lijmol Vs. K.B BIJU

That the said appeal was allowed by the Kerala High Court in favor of the appellant wife.

It is notifying that the marriage between both the parties was an arranged marriage. That during the marriage it was shown by the respondent and his family that before the marriage husband is having very reputed job and was earning good salary. It was also showcase by the family members of the husband that he was owning a very good l` avish house and having his own car, but after the f ew time later the wife got to know that the respondent got suspended from his job because of some of his job and the car which he said he was owning was actually rented and it was all done for the temporary purpose.

It is also stated by the wife that during the marriage the family of the appellant’s family    spent lot of money to make the wedding as perfect as the respondent’s expectations. It is also stated by the wife that she gave 349 grams old ornaments and 1 lakh in cash.

In the case all the ornaments as well as the objects were taken by the respondent and was alleged by the appellant that she was threaten for dowry demands of Rupees 10 Lakhs, but the respondent denied that the gold ornaments were not in the possession of the respondent and his family as the respondent himself failed to produce the evidence in his favor.

In the said appeal the apex court quoted another judgment “Mayadevi vs. Jagdish Prasad” the court observed that “Physical violence is not absolutely essential to constitute cruelty”  

Divorce was granted in favor of wife as the lady was harassed and on account of mental cruelty the divorce was granted in favor of appellant wife.  

  • D. Subramanyam Raju vs. d. Lakshmi Devi

In the present matter the husband wants to break the wedlock on the bases of cruelty and on the bases of desertion, he is also seeking for the divorce.

That after three months after the marriage they start living separately and the situation with the both become as worst as the families have to come together for the purpose of mediation.

Both the parties were imposing allegations on each other regarding the cruelty and desertion and on the account of respondent made allegation that the wife left the husband even after coming back from Kuwait to India and never tried to accompany the respondent and on the other hand the petitioner stated that she went to meet the respondent in India after returning back from Kuwait. She also said that the husband asked the respondent to share some of percentage of her salary with him. The appellant also alleged that his wife was deserted the marriage but after the finding of evidences the court observed even after not living together, they used to meet each other occasionally or once in a month. The court observed that the respondent not deserted the appellant but the appellant deserted the respondent and respondent had subjected the appellant to cruelty and court finds that there is lack of evidence on the grounds of the desertion and cruelty made by the wife, the court finds evidence that there is desertion on the part of the respondent that too without reasonable cause or against the wish of the petitioner and there are also steps taken by the wife to call the police for mediation. The court quoted” if the words of the respondent’s counsel that when the wife is denying him conjugal society, he should file the petition of RCR”. The court didn’t find the appropriate evidence on the ground of cruelty and dismissed the appeal field by the Appellant/Husband.

  •  Sunita Shrivas vs. Bhagwat Shrivas

              That the said appeal was dismissed by the Chattisgarh High Court filed by the wife alleging about the demand of dowry. In the said appeal the appellant failed to prove to clarify and to produce the appropriate evidence that helps the court to examine the correct fact demanding dowry. As the family members are also failed to support the specific allegations has not supported by them about the allegations. And as the wife failed the demanding of dowry has not been established in the criminal trial and the acquittal is on the lack of ground and the said appeal was dismissed on the ground of mental cruelty.

  • Rajesh Upadhyay vs. Usha Devi @ Usha Upadhyay     

That the said appeal was dismissed by the Jharkhand High Court filed by the Petitioner/Husband. The husband made allegation over the wife that she is unsound mind person and she used to talk alone and used to stair the stars for long time. The petitioner also stated that his wife used to talk about magic and Tantra. He made statement that the respondent asking for the partition but after examination of the witnesses it is concluded that the respondent never said anything about the partition. After examination by the court; the court didn’t find any evidence that shows the cruelty towards the husband. The Appellant also fails to prove the ground of desertion and the allegation of demanding partition from appellant’s brother. And all the allegation like the respondent is unsound mind these allegations were bogus and appellant cooked another new story in front of court which is totally a new case made out on his behalf. The Hon’ble High Court considered the submission of the parties and relevant material on record and also perused impugned judgment. Therefore, the Hon’ble High court any reasons to disturb the findings of Ld. Family court. Therefore, the appeal was dismissed by the High court. Decreed accordingly.       

  • Susen Bhandhari vs. Tumpa Bhandari

In the present matter the husband wants to break the wedlock on the bases of cruelty, adultery, Desertion, he is also seeking for the divorce. That the said appeal was dismissed by the Jharkhand High Court. Husband made allegation on the wife that she is having extra marital affair with another person, but at the timing of proving the allegations the husband was unable to justify his allegations and fails to submit his evidences in favor of his statements. The Hon’ble court give directions to both the petitioner and the respondent to try to live together and if possible, to reunite then try to live; but the efforts seem not good and both of them fails to live together. Then the husband files the petition for ground but on account of insufficient evidences the court dismissed the appeal for the desertion, as the husband fails to prove cruelty on the ground of desertion.  

  • Sanjeev P.R & ANR. Vs. Sreelatha C.K.

In the present matter husband is seeking for the divorce and the appeal was allowed by the Kerala High Court. It was alleged by the Husband/Petitioner that after the marriage the Husband/Petitioner and the Wife/Respondent they started living in a rented house but the respondent was very cruel in nature and they both purchased some property on their joint names. The petitioner made allegations regarding the cruel behavior he also alleged that the respondent tried to kill the petitioner by the knife. Petitioner/Husband specifically stated that she sent some Gundaa’s and sent the petitioner/Husband out from his own house and he is presently residing in a rented house. The respondent/wife was stated that she was given Rs. 50,000-/ and 20 sovereigns of gold ornaments as her share and the petitioner had taken away 15 sovereigns of gold ornaments but the petitioner denied on the same things as he is not having the gold ornaments as well as any amount. The wife has been alleging that the petitioner is having illicit relationships with other women. During the evidence the petitioner in his evidence has categorically stated the aforesaid facts. In the present matter the court finds that both the husband and wife broken irretrievably and there is no chance of re-union. The court observed and quoted “when allegations are made by the wife against her husband alleging illicit relationship, which is unsubstantiated, that itself amounts to mental cruelty”. The court observed the concern of the wife for her gold ornaments and sustain the decree directing return of gold ornaments and money, the divorce decree passed by the F.C was set-aside by the Hon’ble High Court.

  • R. Anil Kumar vs. S. Veena

   That the said appeal was allowed by the Karnataka High Court filed by the Petitioner/Husband. That the appellant/husband and respondent/wife lived together for 8-10 days after the marriage. The appellant is the only son and so they never demand any kind of dowery from the respondent and his family but the family members of the respondent always insisting the appellant to buy new house and to live separately along with the respondent. The family members of the respondent did not perform the nuptial ceremony when the appellant had gone to their house. Even they did not allow the appellant to have sexual intercourse with the respondent. After that the “Panchayaat” was held in the presence of the elder one’s but no settlement was happened between both the parties. After that the respondent field a frivolous petition on ground of bogus allegations, on the other side the appellant/husband filed counter on seeking claim on the ground of the restitution of conjugal rights. But after hearing both the parties the court passes a decree of divorce and reject the claim of Restitution of conjugal rights. The court finds that the family court failed to consider the oral and documentary evidence in proper perspective and the respondent wife has harassed the petitioner and his parents. The court observe the entire evidence do not make out a specific case of cruelty by the husband and there is no other witness in support of the evidence to prove the cruelty by the Husband. That the husband in his submission produced some of the documents that are relied on the purpose of proving the illicit intimacy of the respondent-wife. After looking at the matter the family court finds that the respondent wife has proved that the appellant has subjected her to cruelty and the appellant/husband is not entitled to restitution of conjugal rights. It is pertinent to mentioned that the wife is not willing to continue to the marriage and after the judgment passed by the court the wife on 43rd from the date of judgment pursued another marriage this clearly shows the respondent has the frivolous case. The family court fails to find out that the all allegations were made by the wife on base of cruelty and on based on the dowery demand were absolutely false and the court fails to consider the case of the appellant. Hence, the findings given by the family court are liable to be set aside. Counter claim made by the appellant therein is allowed.       

  •   AS Vs. SJ

That the said appeal was allowed by the Delhi High Court filed by the Petitioner/wife. That the petition is filed by the appellant wife is on the ground of the cruelty as she alleged that the husband and his family after the few days of marriage started demanding the dowery from her and the husband was this much cruel that he used to through statements like that he had done mercy over the wife to get married with her. The appellant was specifically alleged that the respondent forced the appellant to arrange the money from her grandfather and the same was paid to the respondent; that itself leads to broader means to cruelty. At the time when the appellant fails to manage the company of her husband and his family, she voluntarily left the matrimonial house; but even after knowing that she left the matrimonial place because of the ill treatment by the Respondent/husband and then husband again put the writ petition of the “Habeaus Corpus”. This is also leading to cruelty over the appellant wife. The court finds that whatever allegations made by the appellant over the husband none of them were rebutted and they all remains the unimpeached. That court finds that the this is the case where cruelty has been done under the means of section 13 of the HMA and the court passed an order in favor of Appellant by passing the decree of divorce.     

What is the purpose of DIR in Domestic Violence Case?


The Domestic Incident Report or DIR is prescribed form for the magistrate and is filled by the protection officer for the purpose to assist the magistrate.

The DIR Performa is given in FORM-I of the schedule II of the rules. This performa is a detailed analytical foem wherein the details of each of the incident of domestic violence are to be entered with date, time and place and other details as mentioned in the complaint.

If summoning orders are passed without consideration of the DIR, remanding case back for consideration of DIR would be proper

Bhupender singh Mehra vs. State of NCT of Delhi.

Practical Problems with the DIR.

The exercise of obtaining an presenting DIR is a clerical job and magistrate can do it himself.

The qualification of protection officers and their training is again a questionmark.

For 3-4 dates they even do not submit the DIR and hence there is a serious issue and unreasonable delay in cases.

Can you file a case against wife or her relatives for giving Dowry?

In 498a complaints there is a common issue that wife or relatives of the wife alleges that they have given dowry in the marriage.

Section 3 of Dowry prohibition act states as under

“3. Penalty for giving or taking dowry.- (1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:] Provided that the Court may, for a adequate and special reasons to be recorded in he judgment, impose a sentence of imprisonment of a term of less than [(Note: Subs. by Act 43 of 1986, Sec.3) five years.] (2) [(Note: Ins. by Act 63 of 1984, sec.3) Nothing is sub section (1) shall apply to, or in relation to, –

Now if wife files a complaint and she admits to giving dowry why she and relatives be prosecuted for giving dowry as envisaged under the DP Act 1961.

But if we see section of 7 of the Dowry prohibition act which says

7. Cognizance of offences –

……………….

(3) Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.”

In Judgement of Pooja Saxena vs State & Another

No doubt, as per Section 3 of the Dowry Prohibition Act, giving or abetting to give dowry is a punishable offence, but the petitioner does have protection of Section 7(3) of the Act. Section 7(3) provides that notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence under the Act shall not subject him to prosecution under this Act. In the instant case, it is obvious that respondent No.2 has filed his petition under Section 156(3) Cr.P.C. only on the basis of the allegations made by the petitioner Pooja Saxena in her complaint made to CAW Cell which formed basis for the registration of FIR No.232/2009 under Section 498A/406/34 IPC against respondent No.2 and others as well as in her petition under Hindu Marriage Act and Domestic Violence Act. Thus, it is clear that FIR No.59/2010 registered against the petitioner under Section 3 of the Dowry Prohibition Act, 1961 is based upon the statements made by the petitioner in her complaint to CAW Cell and above noted petitions. Therefore, she is entitled to the protection of Section 7(3) of the Act, being the victim of demand of dowry.

Therefore Victim has the protection under the 7(3) of the act and no complaint can be lodged against her.

The Haryana Real estate regulatory Authority having its office at Gurgaon near the district court

HRERA Gurugram Bench final decision, complete the builder in three phases  Greenopolis Project

Types of Complaint which can be filed in HRERA Gurugram/ Gurgaon?

There are two type of complaints that can be filed in HRERA Gurgaon. You need to fill the CRA forms and submit your complaint. The Court fee is Rs. 1000 which can be paid online only.

Both online and offline process is set up and needs to be complied with.

The best about RRA is there is no evidence stage unlike consumer forum and straight away they hear the case

You need to file all the documents with the complaint on which you are relying because at later stage it is difficult.

A. Possession/Delay Possession Charges

B. Refund with interest.

A. Possession/Delay Possession Charges

In this kind of complaint the complainant wants to continue with the project however due to delay in the project he wishes to continue and wants compensation.

B. Refund with Interest

In this kind of complaint the complainant is seeking refund of his hard earned money along with interest.

Now in the recent judgement by Punjab and Haryana High Court both these complaints can be filed in HRERA Gurgaon.

Procedure for filing complaint Online

HRERA Gurgaon Offline filing Process

When the online process for registration is completed and fee is paid the complaint needs to be filed offline at the office of HRERA Gurugram

Important things

-> Proof of service along with service report

-> CD PDF with Doc file

-> Complaint with all annexure flagged.

-> 2 sets needs to be filed.

-> Complete form CRA filled.

-> An extra set for opposite party along with blank envelope

Procedure after filing of complaint

You should be receiving mail in few days regarding the hearing date update

About intimation of Date

You can check RERA portal also for the next date of hearing…

Process of hearing in HRERA Gurugram

These days Haryana RERA is hearing the matters both physically and through VC.

Complainant can engage an advocate and can choose any of the mode to present his case.

FIRST DATE

At the first date of hearing the opposite party is generally given time to reply to your complaint and after reply comes on the Second date the next date is fixed for arguments.

Arguments

At the stage of the arguments the case is presented by the each side.

You have to show the delay and deficiencies and make out a case in your favor then the opposite party will submit his/her reply after which the court reserves it Decision.

Final Decision

Sample Order

Compensation Ordered

A compensation in form of 8-10% is ordered

Recent Matter won by Advocate Nitish Banka

Emaar MGF

A compensation of 9.30% was ordered as there was a delay in delivery of the project

A settlement with good compensation awarded to another client

Ramprastha execution Case

Buyers got 8 Cr as refund…

BPTP Refund Case

Buyers got their refund at 7% Pa interest

Legal Advice

Nitish Banka Advocate

How court assess standard of living in maintenance cases?

The standard of living assessment is the accurate measure of determining the amount of maintainance.

In the maintenance cases there is a tendency to cover up the income so that the maintenance of the husband can be reduced but by assessing the standard of living court can assess maintenance according to standard of living not by the income earned by the husband.

(ii) At present, the issue of interim maintenance is decided on the basis of pleadings, where some amount of guess-work or rough estimation takes place, so as to make a prima facie assessment of the amount to be awarded. It is often seen that both parties submit scanty material, do not disclose the correct details, and suppress vital information, which makes it difficult for the Family Courts to make an objective assessment for grant of interim maintenance. While there is a tendency on the part of the wife to exaggerate her needs, there is a corresponding tendency by the husband to conceal his actual income.

In Bhagwan Dutt v Kamla Devi 6 the Supreme Court held that under Section 125(1) Cr.P.C. only a wife who is “unable to maintain herself” is entitled to seek maintenance. The Court held :

“19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.” (emphasis supplied) Prior to the amendment of Section 125 in 2001, there was a ceiling on the amount which could be awarded as maintenance, being Rs. 500 “in the whole”.

The monetary relief granted under this section under DV act shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

Parties may lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.

The factors which would weigh with the Court inter alia are the status of the parties; reasonable needs of the wife and dependant children; whether the applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.33 In Manish Jain v Akanksha Jain 34 this Court held that the financial position of the parents of the applicant-wife, would not be material while determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.

On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7. Refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112.

On the other hand, the financial capacity of the husband, his actual income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would Refer to Jasbir Kaur Sehgal v District Judge, Dehradun & Ors. (1997) 7 SCC 7. Refer to Vinny Paramvir Parmar v Paramvir Parmar (2011) 13 SCC 112.

(2017) 15 SCC 801.

be required to be taken into consideration, to arrive at the appropriate quantum of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.35

(ii) A careful and just balance must be drawn between all relevant factors.

The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.36 The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.

Reema Salkan v Sumer Singh Salkan (2019) 12 SCC 303.

Cross examination questions you need to ask in false 498a

The art and science of cross examination in 498a is the key for winning the case.

The right kind of questions will influence the judge in making a judgement regarding the credibility of the witness and to shake his/her credibility questions are to be crafted using the strategic values of these things..

Questions which shake the credibility of the witness.

Now if wife alleges some injury and there is no MLC related document on record then you have to ask if you have opted for MLC or done any formal complaint about incident. Here keep this thing in mind that you already know the answer will be a big “NO”. If somebody has done cruelty on wife oboviously the person would complain about the incident. beware you do not have to ask the question why she did not do the complaint rather give a suggestion that no incident happened that’s why you did not do complaint or told anybody. Now if she acts smarter and will try to add she did not do the complaint because she wanted to save the marraige if you ask why she did not do the complaint.

Questions which are directed to her in which you know there is no evidence on record

You know wife has no evidence of spending 25 lakh in a marriage you can ask questions like supporting bills or jewallary items like this

Have you attached any jwellary or marraige related bills? dont go to the question why you have not attached the bills.

Contradictory previous statement

You need to highlight the contradiction of 161 statement and examination in chief and content of complaint if there are material contradiction of date/place.

Confrontational questions

You need to put your defense to her you have to first identify her Facebook or WhatsApp number and then confront her with the messages exchanged

No eviction of Daughter in law from the House of mother and father in law

This is a new judgement of Hon’ble Supreme court n which the eviction of Daughter in law from the shared household is not possible.

Now there is a scenario when mother in law/father in law could file the proceedings under the senior citizens act in connivance with the son to evict the daughter in law

Now question which was answered in this new judgement of S Vanitha is that whether the daughter in law can be evicted when she is occupying shared household of old parents?

The answer to the question lies in the harmonious construction of both the DV act and the senior citizen act

There is a section 26 of the DV act which says the provisions of the DV act are in addition to any other act.

The Hon’ble supreme court held that

It would be appropriate for the Tribunal constituted under the Senior Citizens Act 2007 to appropriately mould reliefs, after noticing the competing claims of the parties claiming under the PWDV

Conclusion

Daughter in law cannot be evicted without keeping in mind the provisions of PWDV
Act 2005 and Senior Citizens Act 2007.

Maintenance Case what is favor of Husband?

The new Maintenance Judgement is against men or in favour of wife that has to be seen from a presepective.

The Maintenance laws are obviously considers right of wife to get maintainance we cannot say that law is in favour of women, when the law is already there.

But the new Judgement only clarify the procedure to decide maintainance case.

Rajnesh Vs. Neha

Here are some of the highlights

But what points are in favour of Husband?

Here are the some points

1. Overlapping Jurisdictions

It is well settled that a wife can make a claim for maintenance under
different statutes. For instance, there is no bar to seek maintenance both under the D.V. Act and Section 125 of the Cr.P.C., or under H.M.A. It would, however, be inequitable to direct the husband to pay maintenance under each of the
proceedings, independent of the relief granted in a previous proceeding. If
maintenance is awarded to the wife in a previously instituted proceeding, she is under a legal obligation to disclose the same in a subsequent proceeding for maintenance, which may be filed under another enactment. While deciding the quantum of maintenance in the subsequent proceeding, the civil court/family court shall take into account the maintenance awarded in any previously instituted proceeding, and determine the maintenance payable to the claimant.

To overcome the issue of overlapping jurisdiction, and avoid conflicting
orders being passed in different proceedings, we direct that in a subsequent
maintenance proceeding, the applicant shall disclose the previous maintenance proceeding, and the orders passed therein, so that the Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. If the order passed in the previous proceeding requires any modification or variation, the party would be required to move the concerned court in the previous proceeding.

2. Income Affidavit

Keeping in mind the need for a uniform format of Affidavit of Disclosure
of Assets and Liabilities to be filed in maintenance proceedings, this Court
considers it necessary to frame guidelines in exercise of our powers under Article
136 read with Article 142 of the Constitution of India :
(a) The Affidavit of Disclosure of Assets and Liabilities annexed at
Enclosures I, II and III of this judgment, as may be applicable, shall be filed
by the parties in all maintenance proceedings, including pending proceedings
before the concerned Family Court / District Court / Magistrate’s Court, as
the case may be, throughout the country;
(b) The applicant making the claim for maintenance will be required to file a
concise application accompanied with the Affidavit of Disclosure of Assets;
(c) The respondent must submit the reply alongwith the Affidavit of
Disclosure within a maximum period of four weeks. The Courts may not
grant more than two opportunities for submission of the Affidavit of
Disclosure of Assets and Liabilities to the respondent.
If the respondent delays in filing the reply with the Affidavit, and seeks
more than two adjournments for this purpose, the Court may consider
exercising the power to strike off the defence of the respondent, if the conduct
is found to be wilful and contumacious in delaying the proceedings.

On the failure to file the Affidavit within the prescribed time, the Family
Court may proceed to decide the application for maintenance on basis of the
Affidavit filed by the applicant and the pleadings on record;

The pleadings made in the applications for maintenance and replies filed
should be responsible pleadings; if false statements and misrepresentations
are made, the Court may consider initiation of proceeding u/S. 340 Cr.P.C.,
and for contempt of Court.

In contemporary society, where several marriages do not last for a
reasonable length of time, it may be inequitable to direct the contesting
spouse to pay permanent alimony to the applicant for the rest of her life. The
duration of the marriage would be a relevant factor to be taken into
consideration for determining the permanent alimony to be paid.

Criteria for quantum of Maintenance

A careful and just balance must be drawn between all relevant factors.
The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.

The maintenance amount awarded must be reasonable and realistic, and
avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

Enforcement of Maintenance Order

The order or decree of maintenance may be enforced like a decree of a
civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.

Striking off the defence of the respondent is an order which ought to be
passed in the last resort, if the Courts find default to be wilful and contumacious,
particularly to a dependant unemployed wife, and minor children.
Contempt proceedings for wilful disobedience may be initiated before the
appropriate Court

How maintenance cases will now be decided-New SC Judgement

With so many ambiguities in deciding maintenance cases the Hon’ble supreme court has decided to frame guidelines throughout the country to decide maintenance cases.

Basically to give uniformity to the procedure to be followed throughout the country here are the key points and various judgements

The Judgement is Rajnesh Vs. Neha

(a) Issue of overlapping jurisdiction
To overcome the issue of overlapping jurisdiction, and avoid conflicting
orders being passed in different proceedings, it has become necessary to issue
directions in this regard, so that there is uniformity in the practice followed
by the Family Courts/District Courts/Magistrate Courts throughout the
country. We direct that:


(i) where successive claims for maintenance are made by a party
under different statutes, the Court would consider an adjustment or setoff, of the amount awarded in the previous proceeding/s, while
determining whether any further amount is to be awarded in the
subsequent proceeding;
(ii) it is made mandatory for the applicant to disclose the previous
proceeding and the orders passed therein, in the subsequent proceeding;
(iii) if the order passed in the previous proceeding/s requires any
modification or variation, it would be required to be done in the same
proceeding.


(b) Payment of Interim Maintenance
The Affidavit of Disclosure of Assets and Liabilities annexed as
Enclosures I, II and III of this judgment, as may be applicable, shall be filed
by both parties in all maintenance proceedings, including pending
proceedings before the concerned Family Court / District Court / Magistrates
Court, as the case may be, throughout the country.


(c) Criteria for determining the quantum of maintenance


For determining the quantum of maintenance payable to an applicant, the
Court shall take into account the criteria enumerated in Part B – III of the
judgment.

Criteria for determining quantum of maintenance
(i) The objective of granting interim / permanent alimony is to ensure that
the dependant spouse is not reduced to destitution or vagrancy on account of the failure of the marriage, and not as a punishment to the other spouse. There is no straitjacket formula for fixing the quantum of maintenance to be awarded.


The factors which would weigh with the Court inter alia are the status of
the parties; reasonable needs of the wife and dependant children; whether the
applicant is educated and professionally qualified; whether the applicant has any independent source of income; whether the income is sufficient to enable her to maintain the same standard of living as she was accustomed to in her matrimonial home; whether the applicant was employed prior to her marriage; whether she was working during the subsistence of the marriage; whether the wife was required to sacrifice her employment opportunities for nurturing the family, child rearing, and looking after adult members of the family; reasonable costs of litigation for a non-working wife.


In Manish Jain v Akanksha Jain this Court held that the financial
position of the parents of the applicant-wife, would not be material while
determining the quantum of maintenance. An order of interim maintenance is conditional on the circumstance that the wife or husband who makes a claim has no independent income, sufficient for her or his support. It is no answer to a claim of maintenance that the wife is educated and could support herself. The court must take into consideration the status of the parties and the capacity of the
spouse to pay for her or his support. Maintenance is dependent upon factual situations; the Court should mould the claim for maintenance based on various factors brought before it.
On the other hand, the financial capacity of the husband, his actual
income, reasonable expenses for his own maintenance, and dependant family members whom he is obliged to maintain under the law, liabilities if any, would be required to be taken into consideration, to arrive at the appropriate quantum
of maintenance to be paid. The Court must have due regard to the standard of living of the husband, as well as the spiralling inflation rates and high costs of
living. The plea of the husband that he does not possess any source of income ipso facto does not absolve him of his moral duty to maintain his wife if he is able bodied and has educational qualifications.


(ii) A careful and just balance must be drawn between all relevant factors.
The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home.

The maintenance amount awarded must be reasonable and realistic, and
avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.


(iii) Section 23 of HAMA provides statutory guidance with respect to the
criteria for determining the quantum of maintenance. Sub-section (2) of Section
23 of HAMA provides the following factors which may be taken into
consideration : (i) position and status of the parties, (ii) reasonable wants of the claimant, (iii) if the petitioner/claimant is living separately, the justification for
the same, (iv) value of the claimant’s property and any income derived from such property, (v) income from claimant’s own earning or from any other source.
(iv) Section 20(2) of the D.V. Act provides that the monetary relief granted to
the aggrieved woman and / or the children must be adequate, fair, reasonable, and consistent with the standard of living to which the aggrieved woman was accustomed to in her matrimonial home.

(v) The Delhi High Court in Bharat Hedge v Smt. Saroj Hegde37 laid down
the following factors to be considered for determining maintenance :
“1. Status of the parties.

  1. Reasonable wants of the claimant.
    3.The independent income and property of the claimant.
  2. The number of persons, the non-applicant has to maintain.
  3. The amount should aid the applicant to live in a similar lifestyle as
    he/she enjoyed in the matrimonial home.
  4. Non-applicant’s liabilities, if any.
  5. Provisions for food, clothing, shelter, education, medical attendance
    and treatment etc. of the applicant.
  6. Payment capacity of the non-applicant.
  7. Some guess work is not ruled out while estimating the income of the
    non-applicant when all the sources or correct sources are not disclosed.
  8. The non-applicant to defray the cost of litigation.
  9. The amount awarded u/s 125 Cr.PC is adjustable against the
    amount awarded u/ 24 of the Act. 17.”
    (vi) Apart from the aforesaid factors enumerated hereinabove, certain
    additional factors would also be relevant for determining the quantum of maintenance payable.
    (a) Age and employment of parties
    In a marriage of long duration, where parties have endured the
    relationship for several years, it would be a relevant factor to be taken into consideration. On termination of the relationship, if the wife is educated and professionally qualified, but had to give up her employment opportunities to look after the needs of the family being the primary caregiver to the minor children, and the elder members of the family, this factor would be required to be given due importance. This is of particular relevance in contemporary society, given the highly competitive industry standards, the separated wife would be required to undergo fresh training to acquire marketable skills and re-train herself to secure a job in the paid workforce to rehabilitate herself. With advancement of age, it would be difficult for a dependant wife to get an easy entry into the work-force after a break of several years.
    37 140 (2007) DLT 16.
    (b) Right to residence
    Section 17 of the D.V. Act grants an aggrieved woman the right to live in
    the “shared household”. Section 2(s) defines “shared household” to include
    the household where the aggrieved woman lived at any stage of the domestic relationship; or the household owned and rented jointly or singly by both, or singly by either of the spouses; or a joint family house, of which the
    respondent is a member.
    The right of a woman to reside in a “shared household” defined under
    Section 2(s) entitles the aggrieved woman for right of residence in the shared household, irrespective of her having any legal interest in the same. This Court in Satish Chander Ahuja v Sneha Ahuja38 (supra) held that “shared household” referred to in Section 2(s) is the shared household of the aggrieved person where she was living at the time when the application was filed, or at any stage lived in a domestic relationship. The living of the aggrieved woman in the shared household must have a degree of permanence.
    A mere fleeting or casual living at different places would not constitute a
    “shared household”. It is important to consider the intention of the parties, nature of living, and nature of the household, to determine whether the premises is a “shared household”. Section 2(s) read with Sections 17 and 19 of the D.V. Act entitles a woman to the right of residence in a shared household, irrespective of her having any legal interest in the same. There is no requirement of law that the husband should be a member of the joint family, or that the household must belong to the joint family, in which he or
    the aggrieved woman has any right, title or interest. The shared household
    may not necessarily be owned or tenanted by the husband singly or jointly. Section 19 (1)(f) of the D.V. Act provides that the Magistrate may pass a residence order inter alia directing the respondent to secure the same level of alternate accommodation for the aggrieved woman as enjoyed by her in the shared household. While passing such an order, the Magistrate may direct the
    Civil Appeal No. 2483 / 2020 decided vide Judgment dated 15.10.2020 respondent to pay the rent and other payments, having regard to the financial needs and resources of the parties.
    (c) Where wife is earning some income
    The Courts have held that if the wife is earning, it cannot operate as a bar
    from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments.
    In Shailja & Anr. v Khobbanna,
    39 this Court held that merely because the
    wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival.

  10. In Sunita Kachwaha & Ors. v Anil Kachwaha 42 the wife had a
    postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance.
    The Bombay High Court in Sanjay Damodar Kale v Kalyani Sanjay
    Kale43 while relying upon the judgment in Sunita Kachwaha (supra), held
    that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance.
    An able-bodied husband must be presumed to be capable of earning
    sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by
    the Delhi High Court in Chander Prakash Bodhraj v Shila Rani Chander
    39 (2018) 12 SCC 199.
    See also Decision of the Karnataka High Court in P. Suresh v S. Deepa & Ors., 2016 Cri LJ 4794.

    The onus is on the husband to establish with necessary material
    that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court.
    This Court in Shamima Farooqui v Shahid Khan45 cited the judgment in
    Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife.
    (d) Maintenance of minor children
    The living expenses of the child would include expenses for food,
    clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular / coaching classes, and not an overly extravagant amount which may be claimed. Education expenses of the children must be normally borne by the father.
    If the wife is working and earning sufficiently, the expenses may be shared
    proportionately between the parties.
    (e) Serious disability or ill health
    Serious disability or ill health of a spouse, child / children from the
    marriage / dependant relative who require constant care and recurrent
    expenditure, would also be a relevant consideration while quantifying
    maintenance.



The aforesaid factors are however not exhaustive, and the concerned
Court may exercise its discretion to consider any other factor/s which may be necessary or of relevance in the facts and circumstances of a case.


(d) Date from which maintenance is to be awarded
We make it clear that maintenance in all cases will be awarded from the
date of filing the application for maintenance, as held in Part B – IV above.
(e) Enforcement / Execution of orders of maintenance
For enforcement / execution of orders of maintenance, it is directed that
an order or decree of maintenance may be enforced under Section 28A of the
Hindu Marriage Act, 1956; Section 20(6) of the D.V. Act; and Section 128
of Cr.P.C., as may be applicable. The order of maintenance may be enforced
as a money decree of a civil court as per the provisions of the CPC, more
particularly Sections 51, 55, 58, 60 r.w. Order XXI.

Criminal Case of Defamation after Acquittal in 498a

The question is can you put a case of defamation on wife after you get acquittal in 498a.

The issue has complicated answer and has mixed set of judgments some are in favor of husband and some are against.

Before proceeding let us analyse what is section 499 of IPC is

Section 499. Defamation – Whoever, by words
either spoken or intended to be read, or by signs or by
visible representations, makes or publishes any
imputation concerning any person intending to harm, or
knowing or having reason to believe that such
imputation will harm, the reputation of such person, is
said, except in the cases hereinafter expected, to
defame that person.
Explanation 1.- It may amount to defamation to
impute anything to a deceased person, if the
imputation would harm the reputation of that person if
living, and is intended to be hurtful to the feelings of
his family or other near relatives.
Explanation 2.- It may amount to defamation to
make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3.- An imputation in the form of an
alternative or expressed ironically, may amount to
defamation.
Explanation 4.- No imputation is said to harm a
person’s reputation, unless that imputation directly or
indirectly, in the estimation of others, lowers the moral
or intellectual character of that person, or lowers the
character of that person in respect of his caste or of his
calling, or lowers the credit

public servant in the discharge of his public functions,
or respecting his character, so far as his character
appears in that conduct, and no further.

First Exception.- Imputation of truth which
public good requires to be made or published.- It
is not defamation to impute anything which is true
concerning any person, if it be for the public good that
the imputation should be made or published. Whether
or not it is for the public good is a question of fact.


Ninth Exception.- Imputation made in good
faith by person for protection of his or other’s
interests.- It is not defamation to make an imputation


Gen-really two exceptions are taken when imputation is made in pleadings

But do pleadings in court amount to publication?

Now there are conflicting decisions…

J. Gnana Kumar
Vs. Joy Kanmani reported in LAWS (MAD)-2007-11-
513, wherein the respondent wife had instituted a
private complaint against her husband for the alleged
offence punishable under Section 500 of IPC. The
Madras High Court was pleased to observe that, one of
the basic legal requirements of Section 499 of IPC is
that, the imputation should be either made directly to
the knowledge of third parties, or the same should be
published to the knowledge of the third parties.
However, in the case before it, even as per the
allegations made in the complaint, it observed that, the
imputations cannot be considered as published either
directly or indirectly since they were pleadings filed

before the Court of Law which are not public documents
to which anybody can have free access. The Madras
High Court, however, opined in the same case that,
though the pleadings are handled by the Court staff and
copy is furnished to the respondent therein, which can
be made public even by the respondent, but those
things would not amount to publication by the accused.
Learned counsel for the accused also relied upon a
judgment by a co-ordinate bench of this Court in the
case of S. Nagaraj Vs. K. Nanda Kumar reported in
LAWS(KAR)-2014-10-20, wherein this Court was
pleased to observe that, the complainant alleging
defamation is required to establish that the defamatory
matter was published or that it was communicated to
some person other than the person about whom it is
addressed. It was further observed that, mere
communication of the defamatory matter to the person
defamed is not ‘publication’ and that the ‘publication’

should be made to others with an intention to defame
the concerned person – publication to person defamed
may amount to an insult and not ‘defamation’.
Learned counsel for the accused also relied upon
the judgment of another co-ordinate bench of this Court
in the case of Chirashree Das Gupta Vs. Amitabh Das
S/o. Late Punyanand Das reported in LAWS(KAR)-
2018-8-304, wherein this Court was pleased to observe
that making a defamatory matter known after it has
been written to some person other than the person for
whom it is written is a ‘publication’ in its legal sense. A
defamatory matter must, therefore, be communicated to
some person other than the person concerning whom it
is written. Communicating a defamatory matter to the
person concerned only cannot be said to be a
publication.

In the case of Smt. Madhuri Mukund Chitnis Vs.
Mukund Martand Chitnis and another reported in 1990
CRL.L.J. 2084, the Bombay High Court was pleased to
observe that, the imputations made in a proceeding
which is filed in a Court is clearly a publication. It
further observed that even a publication to an authority
over the person against whom the imputations are made
must be held to be sufficient publication which falls
within the purview of the said Section 499 of IPC.
In the case of M.K. Prabhakaran and another
Vs.T.E. Gangadharan and another reported in 2006
CRI.L.J. 1872, the Kerala High Court, in a matter where
it is alleged that defamatory statements against

complainant were made in a written statement filed
before the Court held that, once a statement has been
filed in a Court of Law, that statement can be taken as
published. If such a statement amounts to per se
defamatory, then it is the duty of the accused to
establish that, they are justified in making such a
statement under any of the exceptions to Section 499 of
IPC.
In the case of Sanjay Mishra Vs. Government of
NCT of Delhi & another, the Delhi High Court in
paragraphs 11 and 12 of its judgment was pleased to
observe as below:-
“11. In Sandyal V.Bhaba Sundari Debi 7
Ind.Cas.803:15 C.W.N.
995:14 C.L.J.31 the learned Judges, following the
case of Augada Ram Shaha V. Nemai Chand Shaha
23 C.867;12 Ind.Dec.(n.s.)576, held that defamatory
statements made in the written statement of a party
in a judicial proceedings are not absolutely privileged
in this country, and that a qualified privilege in this

regard cannot be claimed in respect of such
statements, unless they fall within the Exceptions to
Section 499 of the Indian Penal Code. Undisputedly,
the case of the petitioner was not in any of these
Exceptions.

  1. For criminal purposes “publication” has a
    wider meaning than it has in civil law, since it
    includes a communication to the person defamed
    alone. The prosecution for defamation in criminal
    cases can be brought although the only publication is
    to the person defamed as it is very likely to provoke
    a breach between the persons involved….”
    In the case of Thangavelu Chettiar Vs.
    Ponnammal reported in AIR 1966 Mad 363, the Madras
    High Court was pleased to observe that, there can be no
    doubt that the defamation contained in the plaint was
    published by the plaint being filed in the Court.

Conclusion

In the case of Sushma Rani the court has held that the putting false allegations

Adv. Nitish Banka