Irretrievable Breakdown of Marriage How Supreme Court can grant Divorce…

Irretrievable breakdown of the marriage is not a ground by itself. But while scrutinizing the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties.

Till date, the prevailing laws in India regarding the issue of divorce have not recognized a situation where the spouses are facing a situation that despite the fact that they live under the same roof, their marriage is equivalent to a separation.

That is, there is still no codified law for irretrievable breakdown of marriage. The Hindu Marriage Act recognize few grounds for dissolution of marriage in Section 13.But with the change in the social mores and in view of the changing nature of marriage in the society, the supreme court has shown special concern over the matter of making irretrievable breakdown of marriage as a ground for divorce.

The Supreme Court has with a view to do complete justice and shorten agony of the parties engaged in long drawn battle, directed dissolution of marriage. Indeed, these were exceptional cases, as the law does not specifically provides for the dissolution of marriage on the grounds other then those given in Hindu Marriage Act, 1955. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted.

In V Bhagat vs. D Bhagat

she has not chosen to say that on that account she cannot reasonably be expected to live with the petitioner-husband nor has she chosen to claim any relief on that ground. Even so, allegations of ‘paranoid disorder’, ,mental patient’, ‘needs psychological treatment to make him act a normal person’ etc. are there coupled with the statement that the petitioner and all the members of his family are lunatics and that a streak of insanity runs through his entire family. These assertions cannot but constitute mental cruelty of such a nature that the petitioner, situated as he is and in the context of the several relevant circumstances, cannot reasonably be asked to live with the respondent thereafter. The husband in the position of the petitioner herein would be justified in saying that it is not possible for him to live with the wife in view of the said allegations. Even otherwise the peculiar facts of this case show that the respondent is deliberately feigning a posture which is wholly unnatural and beyond the comprehension of a reasonable person. She has been dubbed as an incorrigible adulteress. She is fully aware that the marriage is long dead and over. It is her case that the petitioner is genetically insane. Despite all that, she says that she wants to live with the petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved under Section 13(1)(i-a) of Hindu Marriage Act and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years detailed hereinbefore we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter.

Manish Kakkar and Nidhi Kakkar

 If parties agree, they can always go back to the trial court for a motion by mutual consent, or this Court has exercised jurisdiction at times to put the matter at rest quickly. But that has not been the only circumstance in which a decree of divorce has been granted by this Court. In numerous cases, where a marriage is found to be a dead letter, the Court has exercised its extraordinary power under Article 142 of the Constitution of India to bring an end to it.

20. We do believe that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. This is even reflected in the manner of responses of the parties in the Court. The sooner this comes to an end, the better it would be, for both the parties. Our only hope is that with the end of these proceedings, which culminate in divorce between the parties, the two sides would see the senselessness of continuing other legal proceedings and make an endeavour to even bring those to an end.

21. The provisions of Article 142 of the Constitution provide a unique power to the Supreme Court, to do “complete justice” between the  parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It is with this objective that we find it appropriate to take recourse to this provision in the present case.

22. We are of the view that an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately.

23. We, thus, exercising our jurisdiction under Article 142 of the Constitution of India, grant a decree of divorce and dissolve the marriage inter se the parties forthwith.

24. The respondent is a qualified lawyer; she claims to have not gone back to her family in Canada, but stayed in India only to battle this litigation. The respondent is being paid Rs.7,500 per month by the appellant. With a law degree she would be able to meet her needs better, though she claims that her sole concentration has been on the inter se  dispute. Be that as it may, we are of the view that the maintenance of Rs.7,500 per month should be continued to be paid by the appellant to the respondent, and it is open for the parties to move appropriate proceedings for either enhancement of this maintenance or reduction and cessation thereof. We only hope that this aspect can also be reconciled between the parties once a decree of divorce is granted.

Naveen Kohli (supra), a three Judge Bench of this Court has observed as under:

“74. ……Once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie  the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

85. Undoubtedly, it is the obligation of the court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist….

86. In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair.

A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of he fact and to declare defunct de jure what is already defunct de facto….” [emphasis supplied] A similar view has been expressed in the case of Samar Ghosh (supra).

In the similar set of facts and circumstances of the case, this Court in the case of Sukhendu Das (supra) has directed to dissolve the marriage on the ground of irretrievable breakdown of marriage, in exercise of powers under Article 142 of the  Constitution of India. 6. Now so far as submission on behalf of the respondent­wife that unless there is a consent by both the parties, even in exercise of powers under Article 142 of the Constitution of India the marriage cannot be dissolved on the ground of irretrievable breakdown of marriage is concerned, the aforesaid has no substance. If both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties do not agree and give consent, only then the powers under Article 142 of the Constitution of India are required to be invoked to do the substantial Justice between the parties, considering the facts and circumstances of the case. However, at the same time, the interest of the wife is also required to be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others.

In R.Srinivas Kumar vs R.Shametha the application for divorce filed by the appellant­ husband for dissolution of marriage is hereby allowed. The marriage between the appellant ­husband and the respondent­wife is ordered to be dissolved in exercise of powers under Article 142 of the Constitution of India on the condition and as agreed by the learned Senior Advocate appearing on behalf of the appellant­ husband that the appellant­husband shall pay to the respondent­ wife a lump sum permanent alimony, quantified at  Rs.20,00,000/­ (Rupees Twenty Lakhs) to be paid directly to the respondent­wife by way of demand draft within a period of eight weeks from today. Till the permanent alimony as above is paid to the respondent­wife, the appellant­husband to continue to pay the maintenance as being paid to her.

This court in a series of judgments has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted [Manish Goel v. Rohini Goel2].Admittedly, the Appellant and the Respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in 1 (2007) 4 SCC 511 [para101 (xiv)] 2 (2010) 4 SCC 393 [para 11]  matrimony [Rishikesh Sharma v. Saroj Sharma3]. The daughter of the Appellant and the Respondent is aged about 24 years and her custody is not in issue before us. In the peculiar facts of this case and in order to do complete justice between the parties, we allow the Appeal in exercise of our power under Article 142 of the Constitution of India, 1950.

How the proceedings under 340 CrPC Takes Place?

How complaint is filed?

If the wife has committed perjury in court i.e. suppose she has stated in her examination in chief that she is not working at the time of the application and the husband brings in such record to show that she is actually working. Thus wife has committed perjury by deposing falsely before the court for instance.

Now the thing is what will you do?

Do not act hastely on examination in chief only.

You have to confront her the documents on which she is employed during the cross examination if she admits to the documents then only the case under section 193 will e made out then only a material will be generated. Otherwise you have to lead your defense evidence in which you have to prove the documents which she has denied i.e her employment related documents.

After which you can file an Application U?S. 340 Crpc

What is the stage of filing 340 CrPC application?

The appropriate stage of filing section 340 Crpc application is at the time of completion of PE if the wife has admitted to the documents you have confronted and material is generated.

The other stage is at the time of defence evidence that is after you have proved the document.

The judge will keep the application pending and can decide at the time of final arguments.

Is it at the time of filing the complaint wherein the complainant deposes falsely or at the time of evidence when complainant deposes falsely before oath.

Well the requirement of 340 CrPC is when there is an unimpreachable evidence on record and the complainant deposes falsely with respect to that evidence.

This is means that there has to be a true evidence and in comparison to that there must be falsely deposed statement.

The law under Section 340 on initiating proceedings has been laid down in several of our judgments. Thus in Chajoo Ram vs. Radhey Shyam, (1971) 1 SCC 774, this Court, in para 7, stated:

  1. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.

Chandrapal Singh and Others vs. Maharaj Singh and Another, (1982) 1 SCC 466, this Court, in para 14, stated:

That leaves for our consideration the alleged offence under Section 199. Section 199 provides punishment for making a false statement in a declaration which is by law receivable in evidence. We will assume that the affidavits filed in a proceeding for allotment of premises before the Rent Control Officer are receivable as evidence. It is complained that certain averments in these affidavits are false though no specific averment is singled out for this purpose in the complaint. When it is alleged that a false statement has been made in a declaration which is receivable as evidence in any Court of Justice or before any public servant or other person, the statement alleged to be false has to be set out and its alleged falsity with reference to the truth found in some document has to be referred to pointing out that the two situations cannot co-exist, both being attributable to the same person and, therefore, one to his knowledge must be false.
Rival contentions set out in affidavits accepted or rejected by courts with reference to onus probandi do not furnish foundation for a charge under Section 199, I.P.C. To illustrate the point, appellant 1 Chandrapal Singh alleged that he was in possession of one room forming part of premises No. 385/2. The learned Additional District Judge after scrutinising all rival affidavits did not accept this contention. It thereby does not become false. The only inference is that the statement made by Chandrapal Singh did not inspire confidence looking to other relevant evidence in the case. Acceptance or rejection of evidence by itself is not a sufficient yardstick to dub the one rejected as false.

R.S. Sujatha vs. State of Karnataka and Others, (2011) 5 SCC 689 (at paras 15 & 16). This Court, after setting down the law laid down in these two judgments concluded:

Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.

Do wife get a chance to argue on 340 CrPC application?

As per the judgement of supreme court Pritesh Vs. State of Maharashtra

Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. In M.S. Sheriff and anr. vs. State of Madras and ors. (AIR 1954 SC 397) a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into.

Difference between ‘Capable of working’ ‘Actually Working wife’

Many people think that if they are able to show that the wife is capable of working and have been working previously or employed with a good employer as well as having great qualification will not make them liable to pay anything to the wife?

Many clients are satisfied by the advise that your wife is financially capable of working and previously has also worked you are not liable to pay any thing.

That you are no earning and your wife is capable of earning much more than you then also you can save yourself from maintainance

Wrong!!

Why?

In this Judgement Amit Dhiman Vs. Boski Dhiman the Hon’ble Delhi High Court has differentiated between wife capable of working and actual working.

Manoj Kumar Ohri, J. dismissed a revision petition filed against the order of the Family Court whereby the petitioner-husband was directed to pay interim maintenance of Rs 33,005 per month to the respondent-wife and their minor child.

The above order was made by the Magistrate while deciding the application under Section 125 CrPC filed by the respondent wherein she alleged that she was thrown out of the matrimonial home and was living at her paternal home along with the minor child. She had stated that had no source of income and claimed Rs 80,000 per month as maintenance. The petitioner submitted that he was an Executive Chef in a hotel in Goa and his monthly salary was Rs 88,000. He stated that he was looking after his old-aged parents and had other liabilities towards loan and rent.

S.C. Vats, Advocate for the petitioner, referred to the bio data of the wife and submitted that she was professionally qualified, an LL.B graduate, and was earning well. Per contra, Rajesh Sharma, Advocate for the respondent, opposed the instant review petition. Source https://www.scconline.com/blog/post/2019/12/12/del-hc-capable-of-earning-different-from-actual-earning-capacity-to-earn-is-no-ground-to-reduce-maintenance-awarded-to-wife/

 Shailja v. Khobbana, (2018) 12 SCC 199, wherein the Supreme Court held that “capable earning” and “actual earning” are two different requirements. Merely because the wife is capable of earning was held not to be a sufficient reason to reduce the maintenance awarded by the Family Court.

It was noted that the petitioner’s contention, in absence of any supporting document, remains a disputed question to be tested in the trial. In the impugned order, the Family Court had recorded that any amount paid as maintenance in favour of the respondent would be liable to be adjusted.

In such view of the matter, the High Court found no illegality in the order passed by the Family Court. Resultantly, the instant revision petition was dismissed. [Arun Vats v. Pallavi Sharma, 2019 SCC OnLine Del 11817, decided on 06-12-2019]

Divorce on ground of Mental cruelty Strategy by Case Law

Divorce on the ground of mental cruelty demand both facts and evidence of a kind in which the evidence suggest that you and your spouse cannot live together in any circumstances.

In the Live case example of: Dharamveer singh Vs. Lajwanti Devi a recent judgement passed by the Hon’ble Uttarakhand High Court in which husband successfully got the divorce on the ground of cruel conduct of the wife but what are the facts?

FACTS:

  1. The wife started behaving rudely right from the second day of the marraige.
  2. She went to her parents house and did not return for 3 months
  3. The husband tried to bring her back but she abused and humiliated the husband.
  4. Later she came back stayed for 2 months and again gone back her behavior did not changed again she abused the husband.
  5. She even beat the mother of husband and abused, humiliated her in front of strangers.
  6. Late husband took her to another place there also she abused and humiliated husband.

In counter wife

  • Even during the pregnancy she was taunted for having given birth to girl child.
  • She claimed she was thrown out of the house.
  • Claimed dowry demand and harassments.

Evidence

On evidence the husband produced 2 independent witness to show the conduct of the wife and she did beat his mother and abused and humiliated him.

He paid hospital bills to refute the allegation that he and his family was not happy with girl child.

Even the father of husband was present during the birth of the girl child and the namkaran ceremony.

Conclusion

The court concluded that there is substantial evidence to show that mental cruelty by rude behavior was in fact inflicted on the husband and he is entitled for decree of divorce. the evidence produced by him corroborates the stand as well as the refuting the stand of wife that husband and father were not happy with girl child.

What court see at framing of charge?

 The law on the subject was reiterated by Supreme Court in Dipakbhai Jagdishchandra Patel vs. State of Gujarat and Ors. reported as 2019 SCC OnLine SC 588, where it was held as under:

“23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.”

10. Recently, in Vikram Johar vs. State of Uttar Pradesh and Another reported as 2019 SCC OnLine SC 609 it was held:

“19. It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence.”

wherein it is the duty of the court to apply its judicial mind to the material placed before it and to come to a clear
conclusion that a prima facie case has been made out against the accused. An order for framing of charges is of serious concern to the accused as it affects his liberty substantially. Courts must therefore be cautious that their decision at this stage causes no irreparable harm to the accused.

Coming to the aspect of quashing of the charges, it is well settled that such exercise needs to be undertaken by the High Court in exceptional cases. It is also well settled that the
framing of charges being initial stages in the trial process, the court therein cannot base the decision of quashing the charge on the basis of the quality or quantity of evidence rather the enquiry must be limited to a prima facie examination. [refer to
State of Bihar vs. Ramesh Singh, 1977 CriLJ 1606].

IN SATISHCHANDRA RATANLAL SHAH the Hon’ble supreme court has recently quashed the charge 406 and 409 IPC

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.