Tuesday, 25 April 2017

Whether wife can file application for maintenance at place where she is residing?

 The facts of the present case indicate that though the parties were
married at Paratwada and they resided together at Indore, the non­applicant
was compelled to leave the matrimonial house and reside at Amravati.  The
right to claim maintenance after living separately from her husband was
sought to be exercised from the place where she was residing.  Thus part of
cause of action had arisen at Amravati and therefore the Family Court at
Amravati had the territorial jurisdiction to entertain the proceedings.   The
impugned order holding so, therefore does not suffer from any jurisdictional
Manoj s/o Ishwarlal Sharma 

Riti@ Archana w/o Manoj Sharma 

 DATE   : January 05,  2017 
Citation: 2017(1) ALLMR 508
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Whether application for compensation under motor vehicles Act can be dismissed in default?

The sole question that hinges for consideration is whether
an application for compensation under Section 166 of the Motor
Vehicles Act can be dismissed for default.
5. The subject-matter of dispute is no more res integra. A
Division Bench of this Court, speaking through Justice Dipak Mishra
(as he then was), in the case of Bhagaban Mallik-Vrs.-Nagendra
Biswal and another 1996(II) OLR 298 in paragraph 8 of the report
held thus:-
“ 8. By incorporation of Rule 20, Order 9 has been
made applicable. The said rule has to be read in harmony
with other Rules. Rule 5 confers express power on the
Tribunal to dismiss an application in a summary manner.
As already indicated earlier Rule 16 deals with framing of
issues. Rule 17 provides that after framing the issues the
Claims Tribunal shall proceed to record evidence thereon
which each party may desire to adduce. As envisaged under
Rule 19 the Claims Tribunal in passing the order shall
record concisely in a judgement the findings on each of the
issues framed and the reasons for such finding and make an
award, justifying the amount of the compensation to be paid
by the insurer and also the person or persons to whom
compensation shall be paid. If an application is not
summarily dismissed it continues to reach its logical end,
and the logical end is as provided for under Rule 19 of the
Rules. That apart, Sec. 166 (old Sec.110-B) casts a mandate
on the Tribunal to pass an award determining the amount of
compensation. Reading the Rules in juxtaposition of Sec.
166 of 1988 Act (110-B of the old Act) it is beamingly clear
that the Tribunal has no jurisdiction to dismiss a claim
petition for default after issues have been framed. But, if an
award has been passed, the same can be set aside taking
resort to Order 9 of the Code (emphasis laid).
W.P.(C) No.6360 of 2006

Naliniprava Behera 
Executive Engineer,
E.H.T., Keonjhar & another 
Citation: 2017(1) ALLMR(JOURNAL) 101

 Date of judgment: 28.06.2016
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Monday, 24 April 2017

Whether husband can be granted divorce on ground of cruelty if wife is making false complaints against him?

Cruelty can never be defined with exactitude. What is
cruelty will depend upon the facts and circumstances of each
case. In the present case, from the facts narrated above, it is
apparent that the wife made reckless, defamatory and false
accusations against her husband, his family members and
colleagues, which would definitely have the effect of lowering
his reputation in the eyes of his peers. Mere filing of
complaints is not cruelty, if there are justifiable reasons to file
the complaints. Merely because no action is taken on the
complaint or after trial the accused is acquitted may not be a
ground to treat such accusations of the wife as cruelty within
the meaning of the Hindu Marriage Act 1955 (for short ‘the
Act’). However, if it is found that the allegations are patently
false, then there can be no manner of doubt that the said
conduct of a spouse levelling false accusations against the
other spouse would be an act of cruelty. In the present case,
all the allegations were found to be false.
The petition for divorce filed by the husband under 
Section 13 of the Act is decreed and the marriage of 
the parties solemnized on 13.04.1989 is dissolved by a
 decree of divorce. 
CIVIL APPEAL NO. 10719 OF 2013
Raj Talreja 
Kavita Talreja 
Dated:April 24, 2017
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Sunday, 23 April 2017

How to prove that particular person was converted in to Hindu Religion?

In this regard, the learned counsel for respondent/husband placed reliance mainly upon the 3-Judges Bench expression of the Apex Court in Perianal Nadar (Dead) By Lrs. v. Ponnuswami MANU/SC/0361/1970 : AIR 1971 SC 2352, leave about the other expression of Kerala High Court in In. Re: Betsy and Sadanandan MANU/KE/1087/2009 : 2009 (4) KLT 631, in saying intention to convert is enough, in paras-6 to 9 in the controversy as to the wife converted from Christianity to Hinduism, which reads thus:
"6. It is not necessary to decide in this case whether marriage between a Hindu male and an Indian Christian female may be regarded as valid, for, in our judgment, the finding of the Courts below that Annapazham was converted to Hinduism before her marriage with Perumal is amply supported by evidence. A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion.
7. In Muthusami Mndaliar v. Masilamani alias Subramania Mudaliar I.L.R. 33 Mad. 342 the validity of a marriage according to Hindu rites between a Hindu and a Christian woman fell to be determined. It was held that the marriage contracted according to Hindu rites by a Hindu with a Christian woman, who before marriage is converted to Hinduism, is valid, though the marriage was not in strict accordance with the Hindu system of law. Such a marriage is still common among and recognised as valid by the custom of the caste to which the man belongs.
8. In Goona Durgaprasada Rao and another v. Goona Sudarasanaswami and others MANU/TN/0295/1939 : I.L.R. [1940] Mad. 653 Mockett, J., observed that no gesture or declaration may change a man's religion, but when on the facts it appears that a man did change his religion and was accepted by his co- religionists as having changed his religion and lived and died in that religion, absence of some formality cannot negative what is an actual fact.Krishnaswami Ayyangar, J., observed that a Hindu who had converted himself to the Christian faith returned to Hinduism and contracted a second marriage during the lifetime of his first wife and remained and died a Hindu having been accepted as such by the community and co-religionists without demur. Absence of evidence of rituals relating to conversion cannot justify the Court in treating him as having remained a Christian.
9. The evidence clearly establishes that the parents of Annapazham arranged the marriage. The marriage was performed according to Hindu rites and ceremonies in the presence of relatives who were invited to attend : customary ceremonies peculiar to a marriage between Hindus were performed : no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith, and the plaintiff was also treated as a Hindu. On the evidence there can be no doubt that Annapazham bona fide intended to contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed."
19. No doubt, from the above expression, no particular ceremony is required and bona fide intention to convert is enough followed by faith and belief in Hinduism for the respondent besides being accepted by the local Hindu community and treatment of him as Hindu to say that he has converted. Here that evidence is lacking, apart from his say of not any bonafide intention to convert, but for unwillingly and only to marry the petitioner for a condition stated imposed of conversion to fulfill and not even stated lived as Hindu. 
Thus, at the cost of repetition from what was discussed earlier, when his version is he was as fell in love with her, made to convert as Hindu by adoption to a Hindu family by made to convert; there from there was no voluntary conversion apart from no adoption validly taken place and there was nothing to show any alleged conversion of him besides voluntary with any faith in Hinduism which is the religion of the petitioner, to validate any ceremonies of marriage, not even adduced any evidence of he was accepted as a Hindu by the neighbourhood and the community of Hindus nearby and observing any faith in Hinduism without which there is no valid conversion is the law laid down in Perumal Nadar (supra) and there is no valid conversion from Muslim religion to Hindu religion, the very marriage itself is void ab initio for he is not a Hindu by the time of marriage, and it is a material fact or circumstance relating to him as per Section 12(1)(c) of the H.M. Act to annul the marriage otherwise as per the expression of the Apex Court in Gullapalli Sowria Raj (supra).
Civil Miscellaneous Appeal No. 28 of 2014
Decided On: 29.09.2015
 Shaik Mahammad Rati

 Grandhi Poorna Seetha Manoja


R. Subhash Reddy and Dr. B. Siva Sankara Rao, JJ.

Citation:2017(1) ALLMR(JOURNAL)84

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