A Legal Analysis of the Supreme Court Verdict in Rousanara Begum v. S.K. Salahuddin

 

Read full judgment here: Click here

1.0 Introduction: A Landmark Verdict on Matrimonial Property Rights

The Supreme Court of India's decision in Rousanara Begum v. S.K. Salahuddin, delivered on December 20, 2023, represents a significant milestone in the jurisprudence concerning the property rights of divorced Muslim women. Arising from a decade-long legal battle, the verdict addresses deep-seated questions about the nature of gifts given at the time of marriage and clarifies the judicial approach required for interpreting social welfare legislation. It stands as a crucial reaffirmation of economic justice for women navigating the complexities of divorce.

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Supreme Court: Divorced Muslim Woman Entitled To Recover Gifts Given by her father To her Husband At the time of Marriage

 It is difficult to agree with the reasoning of the High Court. The primary basis for not giving the amount and gold in question to the Appellant, as it appears from the perusal of the judgment, was the apparent contradiction between the statement of the Kazi i.e. marriage Registrar and the father of the Appellant. The former stated in evidence that the entry recording the amount and gold being given to the husband was erroneously done so and it should have been that the said amount(s) were only given without specifying, to whom, the father of the Appellant on the other hand stated that he had given the amount(s) in question to the Respondent. The High Court observed that since the father was directly responsible for giving the said amount(s), it would be prudent to accept his version of events. What, apparently, the High Court lost sight of is the end result of the proceedings in which the said statement of the father was given. Those proceedings were concerned with Section 498A-Indian Penal Code and Section(s) 3/4 of the Dowry Prohibition Act, 1961, and despite such a direct statement by the father of the Appellant the learned Trial Court seized of the matter acquitted the Respondent, a conclusion which appears to have attained finality. Then, it cannot be said, in our view, that the evidentiary value of that statement is either equal to or greater than the statement of the marriage registrar. The High Court records that the latter statement regarding writing and overwriting in the entry in the marriage register is proved by him having produced the same before the Court. When that is the case, we are at a loss to understand why his statement in entirety should not be accepted. Mere allegation as to his conduct being suspicious on account of overwriting in the marriage register is not sufficient to discard his testimony.

{Para 8}

9. This case presents the possibility of two interpretations and whereas it is a settled rule that this Court under its plenary, Article 136 jurisdiction does not interfere with the findings of the High Court simply because there are two views possible, this case, in our considered view, does not fall under this exception for the High Court missed the purposive construction goalpost and instead proceeded to adjudicate the matter purely as a civil dispute. The Constitution of India prescribes an aspiration for all, i.e. equality which is, obviously, yet to be achieved. Courts, in doing their bit to this end must ground their reasoning in social justice adjudication. To put it in context, the scope and object of 1986 Act is concerned with securing the dignity and financial protection of a Muslim women post her divorce which aligns with the rights of a women Under Article 21 of the Constitution of India. The construction of this Act, therefore, must keep at the forefront equality, dignity and autonomy and must be done in the light of lived experiences of women where particularly in smaller towns and rural areas, inherent patriarchal discrimination is still the order of the day.

  IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 5164 of 2025 

Decided On: 02.12.2025

Rousanara Begum Vs. S.K. Salahuddin and Ors.

Hon'ble Judges/Coram:

Sanjay Karol and N. Kotiswar Singh, JJ.

Author: Sanjay Karol, J.

Citation: 2025 INSC 1375, MANU/SC/1611/2025.

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Delhi HC: Balancing Substantive Justice with Proportionality and Privacy Protections in Spousal Financial Disclosure

 

 A balanced scale symbolizing justice weighing financial documents against privacy protection

 The judgment from the High Court of Delhi concerns a matrimonial dispute where the Wife sought dissolution of marriage on grounds including adultery and cruelty. One key aspect of the judgment relates to the production of the Husband’s financial documents during the litigation process.

Context

·       The Wife applied under Order XI Rule 14 of the Code of Civil Procedure (CPC), seeking production of various financial documents of the Husband.

·       These documents included credit card statements, UPI transaction records, demat account statements, paytm transactions, Amazon purchase records, ESOP details, and statements from multiple years.

·       The Wife argued these documents were necessary not only to substantiate adultery but also to assess the Husband’s financial capacity for determining permanent alimony under Section 25 of the Hindu Marriage Act (HMA), 1955.

Family Court’s Approach

·       The Family Court partially allowed the application, permitting production of financial documents at Serial Nos. (i) to (viii), (x), (xii), and (xiii), essentially covering relevant bank and credit card statements, investment records, and documents evidencing income and assets.

·       It rejected other requests, including WhatsApp, Microsoft Teams, Facebook Messenger chats, FASTag records, leave records, hotel bookings, and travel details, on the ground that they amounted to fishing and roving inquiries beyond the scope of pleadings.

Husband’s Contentions

·       The Husband contended that the application for financial documents was premature since alimony claims arise only after the divorce decree.

·       He also argued the documents sought were irrelevant to the current stage, overly broad, and an invasion of privacy.

·       He claimed compliance with disclosure rules as per Rajneesh v. Neha (2021) and emphasized professional confidentiality concerns.

·       He further asserted some documents were not under his control and that the Wife’s requests were a fishing expedition unsupported by specific pleadings.

The High Court’s Findings on Financial Documents

·       The Court recognized the wide but not unlimited scope of discovery under Order XI Rule 14, emphasizing that documents sought must be relevant to the matters in dispute.

·       It stressed the need for a practical and flexible approach rather than a blanket rejection of discovery applications on grounds of speculation.

·       The Court held that the Wife is entitled to documents specifically related to her legally wedded Husband and the allegations—documents tied to a particular person, period, and issue.

·       It found the Family Court’s partial allowance appropriate and reasoned, permitting production of documents directly pertinent to the Wife’s claims and rejecting those beyond the pleadings or unrelated to financial standing or maintenance claims.

·       The judgment emphasized balancing the Wife’s right to evidence with the need to protect the Husband from undue fishing, harassment, or intrusion into unrelated private matters.

·       The Court allowed production of the financial documents at Serial Nos. (i) to (viii), (x), (xii), and (xiii) in a manner proportional to the issues in dispute.

·       It concluded that allowing these financial disclosures does not constitute an abuse of the discovery process and is justified for a fair adjudication of claims.

Conclusion

The judgment confirms that in matrimonial disputes:

·       Courts can order production of financial documents relevant to alimony, maintenance, and proving adultery.

·       Discovery must be specific, relevant, and proportionate to the pleaded issues.

·       Courts will reject irrelevant, speculative, or overly intrusive disclosure applications to protect privacy.

·       The court exercises a balanced discretion to ensure fair access to necessary evidence while preventing fishing expeditions.

·       The Husband was directed to produce the specified financial records to facilitate effective legal proceedings, subject to confidentiality safeguards.

This decision affirms the principle that evidence production in matrimonial cases must support substantive justice without violating proportionality and privacy protections.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 MAT.APP.(F.C.) 251/2025 and CM APPL. 50033/2025

MS. TANVI CHATURVEDI Vs MS. SMITA SHRIVASTAVA & ANR.

CORAM:

HON'BLE MR. JUSTICE ANIL KSHETARPAL

HON'BLE MR. JUSTICE HARISH VAIDYANATHAN

SHANKAR

Author: ANIL KSHETARPAL, J.

Judgment pronounced on: 29.08.2025.

Citation: 2025 DHC 7474 DB.

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Delhi HC: Court Can Seek Mobile Location of Spouse to Ascertain Adultery in Matrimonial Disputes: A Detailed Analysis

 

 Introduction

The intersection of digital privacy rights and matrimonial law has become a critical area of jurisprudence in contemporary India. The recent Delhi High Court judgment in Ms. Tanvi Chaturvedi v. Ms. Smita Shrivastava & Anr.Citation: 2025 DHC 7474 DB.  marks a significant milestone in establishing the legal framework for courts to seek mobile location data and Call Detail Records (CDRs) to ascertain adultery in matrimonial disputes. This comprehensive analysis examines the evolving legal position on courts' authority to collect digital evidence in matrimonial proceedings while balancing fundamental privacy rights with the imperative of fair trial.

Legal Framework for Mobile Location Data Collection

Constitutional Foundation

Read full judgment here: Click here.

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Kerala HC: Wife can claim maintenance after divorce despite prior compromise agreement if she is unable to maintain herself

Apparently, Ext.B2 was executed in the year 2004, and the claim for maintenance was raised only in the year 2012. Thus, without much discussion, it can be held that the consolidated payment of Rs. 30,000/- towards permanent alimony under Ext. B2 compromise will not disentitle the first appellant from raising a claim for maintenance at a later stage if she is actually unable to maintain herself. Therefore, it can be concluded that the first appellant is entitled to claim maintenance from the respondent, notwithstanding the terms of Ext.B2 agreement, either under Section 37 of the Act or under Section 125 of Cr. P.C., if she was unable to maintain herself during the relevant time. {Para 20}

 In the High Court of Kerala at Ernakulam

(Before Sathish Ninan and P. Krishna Kumar, JJ.)

Sheela George and Another V V.M. Alexander 

Mat. Appeal No. 586 of 2017

Decided on June 2, 2025

Citation: 2025 SCC OnLine Ker 3501

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Bombay HC: Section 377 IPC and Marital Disputes: Distinguishing Grounds for Divorce from Criminal Offence

Heard submissions and pursued the FIR and other documents. The complainant has grievance against her husband, who is a gay and kept sexual relations with male friends i.e., the petitioner. The Supreme court in the case of Navtej Singh Johar & Ors. vs. Union of India1 has held section 377 of the Indian Penal Code insofar as it criminalises consensual sexual conduct between the adult of same sex, as unconstitutional. In the present case, both were having an extra marital consensual sexual relationship. Though it may be a ground for divorce on the ground of cruelty to the complainant, it does not constitute offence under section 377 because both are adults and had sexual relationship by consent. In this case, there is no victim. The complainant wife is an aggrieved person but she cannot be called as a victim under section 377 of the Indian Penal Code. There are allegations against the husband having unnatural sexual intercourse with her. {Para3}

 IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 4470 of 2012

Decided On: 30.01.2019

Daniel Crasto Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

Citation: MANU/MH/0239/2019,AIRONLINE 2019 BOM 195.

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Can a Wife Prosecute Her Husband’s Male Partner for Unnatural Offence under Section 377 IPC?

Bombay High Court Discharges Accused from Section 377 IPC After Navtej Singh Johar Judgment: A Landmark Application of LGBTQ Rights

Article:

The Bombay High Court, in the case of Daniel Crasto vs The State of Maharashtra (judgment dated 30 January 2019),citations: AIRONLINE 2019 BOM 195 delivered a significant ruling that directly applied the Supreme Court’s landmark decision in Navtej Singh Johar & Ors. vs. Union of India to ongoing criminal proceedings under Section 377 of the Indian Penal Code (IPC).

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Gujarat HC: Composite petition for nullity of marriage and in the alternative for dissolution of marriage by a decree of divorce is maintainable

4.5 The petition for nullity of marriage is neither contrary nor

inconsistent and the same can be entertained by the Court. The

learned Family Court has rightly rejected the application on the

ground that not permitting the petitioner husband to  file composite suit will lead to multiplicity of proceedings and hence prayer for divorce can be made alternatively. Therefore, there can not be any bar in joint petition under Sections 12 and 13 of the Hindu Marriage Act claiming relief in alternative.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CIVIL REVISION APPLICATION NO. 351 of 2024

X vs Y

CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

Date : 22/01/2025

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Bombay HC: Whether the court can grant maintenance U/S 125 of CRPC to wife after her divorce if she fails to incorporate this fact by amending her application?

Since there was no dispute about divorce and it was a ground available for maintenance under Section 125 Explanation (b), the learned Magistrate could have considered these subsequent developments. Explanation (b) to sub-section (1) of Section 125 of the Criminal Procedure Code was dealt with by the Hon'ble Supreme Court in Rohtash Singh (supra) and recorded the finding in para 9 that on account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming maintenance allowance from her ex-husband. {Para 7}

8. There is no dispute on the law that such a right of divorcee exists till she remarries. There is no such averment that the respondent/wife was remarried. In view of the facts of the case and admitted position, the Court is of the view that the rule of pleading would not strictly apply in such cases. Therefore, the subsequent development of divorce has been correctly considered by the learned Revisional Court. Though the respondent/wife failed to establish that she was refused and neglected to maintain, the subsequent facts of divorce gave her a new ground which may be considered during the pendency of the application and the learned Magistrate ought to have considered it. The learned Revisional Court has corrected the errors of law of the Magistrate. However, the learned Revisional Court erred in granting the maintenance from 21.11.2005. If the right of the wife was accrued under Explanation (b) to sub-section (1) of Section 125 of the Criminal Procedure Code after the divorce and she was not entitled to the maintenance on the ground available under Section 125(1), she would not be entitled to the maintenance from the date of the desertion or filing the petition. Except this error, the judgment and order of the learned Revisional Court is legal, proper and correct. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Writ Petition No. 250 of 2008

Decided On: 25.09.2024

Kishor Fulchand Pawar Vs. Nanda

Hon'ble Judges/Coram:

S.G. Mehare, J.

Citation:  MANU/MH/6101/2024,2024 SCC OnLine Bom 3115,2024:BHC-AUG:23068

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Allah HC: Wife Declining To Cohabit With Husband By Forcing Him To Live In Separate Room Amounts To mental Cruelty to husband

 Cohabitation is an essential part of a matrimonial relationship and if the wife declines to cohabit with the husband by forcing him to live in a separate room, she deprives him of his conjugal rights, which will have an adverse impact on his mental and physical well being and which will amount to both physical and mental cruelty. The plaintiff’s allegation of being wrongfully deprived of his conjugal rights has not been controverted by the defendant-respondent and the same has been admitted by implication. {Para 20}

21. In view of the aforesaid facts, we are of the considered view that there was sufficient evidence to prove the grounds of cruelty pleaded by the plaintiff-appellant for grant of a decree of divorce the plaintiff has successfully proved by his ex-parte evidence that the defendant was treating him with cruelty.

 ALLAHABAD HIGH COURT

Case :-FIRST APPEAL No. - 32 of 2023

Jitendra Kumar Srivastava Vs  Smt. Sweta Srivastava

Coram: Hon’ble Rajan Roy J & Hon’ble Subhash Vidyarthi J.

Neutral Citation No. - 2024:AHC-LKO:57446-DB.

Date: 22.08.2024.

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Whether mental cruelty remedy has reached its limit or it needs further attention?

 The concept of mental cruelty as a remedy in Indian law has evolved significantly over the years, yet it continues to need further attention and development. Let's delve into the concept of mental cruelty within the context of Indian law, and evaluate whether it has reached its limits or requires further refinement.

Understanding Mental Cruelty in Indian Law

1. Definition and Context:

• Mental cruelty refers to conduct that inflicts mental pain and suffering on the spouse, making it impossible for them to continue living with their partner.
• Unlike physical cruelty, which involves bodily harm, mental cruelty involves emotional and psychological abuse.

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Bombay HC: Although Adultery Is Grounds For Divorce, It Can't Be A Ground To Deny Child's Custody

 The submission made on behalf of the petitioner/husband as regards the adulterous behavior of the respondent/wife, according to me, these are the allegations which are made in the marriage petition by Husband before Family Court, filed in the year 2020. The said allegation has to be proved by leading evidence before the Family Court. Therefore, based on the allegations, the doubt as to whether the custody can be given to the wife will have no bearing. There is no doubt as held by the various judgments that not a good wife is not necessarily that she is not a good mother. {Para 45}

46. In the present case as regards, the allegations made by

Husband are still to be proved. In the judgment of Vineet Gupta

Vs. Mukta Aggarwal reported in 2024 SCC Online Del 678, it has

been held that even though the allegations are proved as regards

the wife’s extra martial affair, still as far as the custody of the

minor children is concerned, in a given case, the same can be

granted to the wife.

47. Adultery is in any case a ground for divorce, however

the same can’t be a ground for not granting custody.

48. Hence, this writ petition fails. No costs.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.4060 OF 2024

Petitioner  V/s.  S

CORAM : RAJESH S. PATIL, J.

Dated:  19 APRIL 2024.

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Whether family court mumbai can entertain divorce petition on the ground that marriage reception took place at mumbai?

ANALYSIS AND CONCLUSION :

13. The question for determination in the present proceedings is whether the Family Court at Mumbai has jurisdiction to try and entertain under section 19 (iii) of Hindu Marriage Act, the Divorce Petition filed by Husband under Section 13 (1)(ia) of Hindu Marriage Act ?

14. There is no dispute between the parties that all the rituals of the marriage took place on 7 June, 2015 at Jodhpur, Rajasthan. In Mumbai, there was only a wedding reception on 11 June, 2015. In my view, there can't be any doubt that a wedding reception can't be called as a part of marriage ritual.

15. Admittedly, for a period of less than 10 days, the husband and wife stayed in the home of the parents of husband at Mumbai and thereafter the husband left for U.S.A. on 15 June, 2015 and the wife left on 1 August, 2015 to U.S.A. there is no dispute that the husband and the wife started living separately from 15 October, 2019 therefore, approximately around four years they stayed together in U.S.A. and occasionally in these four years, visited India.

16. Admittedly the wife has filed the divorce petition in U.S.A. and the husband has filed a divorce petition in Family Court at Mumbai. The fact that the wife has filed a divorce petition at U.S.A. this itself shows that the wife is not admitting the jurisdiction of Family Court in Mumbai, Maharashtra.

21. In the present proceedings, the husband was in U.S.A. at the time of presentation of Divorce Petition in Mumbai, which was notarized in U.S.A. so therefore, the Divorce Petition could not be filed in Mumbai, as Section 19 (iv) of the Hindu Marriage Act, contemplates that the Divorce Petition can be filed at the place where petitioner is residing, if the wife is residing outside India.

29. In the present proceedings the Husband has notarized his petition in U.S.A. and filed it in Mumbai through Power of Attorney. In my opinion in the present proceedings, the last residing together of the couple would be U.S.A., and it can't be Mumbai, where the couple briefly stayed for less than 10 days immediately after marriage, in the home of parents of Husband, hence the Family Court in Mumbai will have no jurisdiction, under sub-section (iii) of 19 of Hindu Marriage Act, to entertain Divorce Petition in Mumbai.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8829 of 2023

Decided On: 15.04.2024

Shikha Lodha Vs. Suketu Shah and Ors.

Hon'ble Judges/Coram:

Rajesh S. Patil, J.

Citation: MANU/MH/2423/2024.

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What are different types of traditional divorce under muslim law?

 In Islamic law, divorce is known as "Talaq," and there are different types of divorce recognized within the Sunni and Shia traditions. It's important to note that the details and interpretations of these concepts may vary among different schools of thought within Islam.

1. 1) Talaq:

   • Talaq-e-Ahsan: This is the most preferred and considered the most proper form of divorce. It involves a single pronouncement of divorce, followed by a waiting period (iddah) during which the wife cannot remarry. If the wife is not pregnant, the waiting period is three menstrual cycles; if she is pregnant, it lasts until the child is born.
   • 2)Talaq-e-Hasan:
   It consists of three pronouncements made during three consecutive menstrual cycles, with a waiting period (iddah) following the final pronouncement.

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Whether family court can pass divorce decree on admission without trial if both parties have not withdrawn allegations against each other?

 A perusal of decree passed by the Family Court clearly indicates that though the Family Court has taken cognizance of Section 151 of CPC which provides for inherent jurisdiction of the Court, when there is no specific provision for passing such an order, the Family Court has passed the decree of divorce contrary to Section 151 of CPC by assuming that the Appellant and the Respondent are intending to separate as marriage has been dissolved in their mind and heart. None of the parties have led any evidence. Allegations and counter allegations are made against each other. The learned Family Court could not have done guess work and could not have come to the conclusion that the marriage was dissolved in their mind and heart while passing the decree of divorce. It is a common ground when parties agree for divorce and do not make any allegations against each other or withdraw allegations made against each other, the parties could have filed a Petition for mutual divorce. No such Petition for mutual divorce was filed. {Para 19}

20. In view of the fact that, there is a specific provision for passing decree under Order 12 Rule 6 of CPC on satisfaction of conditions provided under the said provision, the Family Court could not have invoked Section 151 of CPC. The impugned order shows non application of mind on the part of the Family Court while passing decree of divorce by doing a guess work and without there being any evidence on record. As per Order 12 Rule 6 of CPC, the party who is alleged to have made an admission is entitled to be granted an opportunity to explain the so called admission made in the affidavit at the stage of trial. Such allegations made by the parties against each other could not have been brushed aside in such a summary manner as it is done by the Family Court.

21. We have perused the Application filed by the Respondent for passing decree on admission without admitting the allegations of cruelty made on part of the Appellant in the affidavit-in-reply, and also based on its own admission in the Application, praying for passing of decree of divorce on admission and submitting to the decree in terms of prayer clause (a) of the Petition. There is no admission on the part of the Appellant for decree of divorce. The decree of divorce on admission could have been passed if both parties would have agreed before the Family Court. The situation would have been different in such case.

 IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 24 of 2022 and Interim Application No. 1854 of 2022 in Family Court Appeal No. 24 of 2022

Decided On: 24.03.2023

Mansi Bhavin Dharani Vs. Bhavin Jagdish Dharani

Hon'ble Judges/Coram:

R.D. Dhanuka and Gauri Godse, JJ.

Citation:  MANU/MH/1269/2023.

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Whether wife is entitled to get divorce from husband on the ground of mental cruelty if he publish allegations against her in Newspaper and prosecute her relatives?

 In our considered view, a partner in matrimonial relationship who goes to the extent of filing police complaints against mother, friend, well wishers, Prosecutor or Advocate of his own wife, is a kind of person who is difficult to deal with and certainly causing mental harassment. {Para 31}

32. Original copy of newspaper Dainik Divya Marathi dated 13.07.2014 is at Exh. 279, in which alleged defamatory news about Respondent/Wife was published at the instance of Appellant/husband. Whether the actual news is defamatory or not is irrelevant for the present purpose. The fact that allegations and accusations are leveled by a party (husband in this case) against the spouse (wife) in newspaper, itself has an effect of lowering her reputation in the eyes of her peers and colleagues. Embarrassment is a bitter bonus ! Learned counsel for the Respondent/wife has submitted that because of news published by the Appellant/husband, the reputation of the Respondent/wife got damaged and she was embarrassed before her peers, colleagues and co-workers. Judgments of Hon'ble Supreme Court in the matter of Raj Talreja vs. Kavita Talreja MANU/SC/0493/2017 : (2017) 14 SCC 194 and K. Shrinivas Rao vs. D.A. Deepa MANU/SC/0180/2013 : (2013) 5 SCC 226, both arising out of matrimonial disputes, are relied upon in support of this case. We fully agree with the submission. The proposition of law laid down in the said cases apply to the fact of this case.

 IN THE HIGH COURT OF BOMBAY

Family Court Appeal No. 36 of 2021, 

Decided On: 24.03.2023

Uday  Vs. Rupali 

Hon'ble Judges/Coram:

R.D. Dhanuka and M.M. Sathaye, JJ.

Author: M.M. Sathaye, J.

Citation: MANU/MH/1142/2023.

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Supreme Court Constitution Bench Judgment on irretrievable breakdown of marriage

 Having said so, we wish to clearly state that grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that 'complete justice' is done to both parties. It is obvious that this Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established. For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children. Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations. We would not like to codify the factors so as to curtail exercise of jurisdiction Under Article 142(1) of the Constitution of India, which is situation specific. Some of the factors mentioned can be taken as illustrative, and worthy of consideration.{Para 33}

(iii) Whether this Court can grant divorce in exercise of power Under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?

This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power Under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do 'complete justice' to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.

IN THE SUPREME COURT OF INDIA

Transfer Petition (Civil) No. 1118 of 2014, 

Decided On: 01.05.2023

Shilpa Sailesh Vs. Varun Sreenivasan

Hon'ble Judges/Coram:

Sanjay Kishan Kaul, Sanjiv Khanna, Abhay Shreeniwas Oka, Vikram Nath and J.K. Maheshwari, JJ.

Author: Sanjiv Khanna, J.

Citation: : MANU/SC/0502/2023,

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Supreme Court guidelines for ascertaining mental cruelty in matrimonial relations

 No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

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

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

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

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded 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. In such like situations, it may lead to mental cruelty. {Para 74}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 151 of 2004

Decided On: 26.03.2007

Samar Ghosh Vs. Jaya Ghosh

Hon'ble Judges/Coram:

B.N. Agrawal, P.P. Naolekar and Dalveer Bhandari, JJ.

Author: Dalveer Bhandari, J.

Citation: ( 2007 ) 4 SCC 511, MANU/SC/1386/2007.

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Supreme Court: Irretrievably Broken Down Marriage Can Be Dissolved On Ground Of 'Cruelty'

When we take into consideration the facts as they exist today, we are convinced that continuation of this marriage would mean continuation of cruelty, which each now inflicts on the other. Irretrievable breakdown of a marriage may not be a ground for dissolution of marriage, under the Hindu Marriage Act, but cruelty is. A marriage can be dissolved by a decree of divorce, inter alia, on the ground when the other party "has, after the solemnization of the marriage treated the Petitioner with cruelty"1. In our considered opinion, a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. To keep the facade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage Under Section 13(1) (ia) of the Act.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2012 of 2013

Decided On: 26.04.2023

Rakesh Raman Vs. Kavita

Hon'ble Judges/Coram:

Sudhanshu Dhulia and J.B. Pardiwala, JJ.

Author: Sudhanshu Dhulia, J.

Citation: MANU/SC/0456/2023,AIR 2023 SC 2144, 2023/INSC/433

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Leading judgment on shared parenting after divorce in Family law

One of the ways to resolve the conundrum is, by the emerging concept of shared parenting. In some overseas jurisdictions, the concept of shared parenting has been in vogue and prevalent but not so well entrenched in India and has been ordered only in a handful of cases. It is necessary to remind ourselves that a child requires both parents, the mother and the father in jointly bringing up the child which would have a holistic impact on the overall growth of the child. This is because both parents have a joint responsibility in bringing up their children as each parent would contribute in a unique way to the mental, physical and emotional/psychological development of the child. Hence, whenever there is a separation between the parents, shared parenting would mean that the joint responsibility would continue subject to certain arrangements being put in place.{Para 9}

10. In this context, it is necessary to understand two terminologies, namely, joint physical custody and joint legal custody. Joint legal custody means that both parents have equal rights and responsibilities towards the child including the child's education and upbringing, whereas the joint physical custody would mean, both parents would share the physical custody of the child by spending equal time and having equal contact with the child.

11. The International Council on Shared Parenting (ICSP) at its conference held at Bonn, Germany, in July 2014 has arrived at certain areas of consensus as under:

(i) That "shared parenting" is defined to include both the shared parental authority (decision making) and shared parental responsibility for the day-to-day upbringing and welfare of the children, between both the parents keeping in mind children's age and stage of development. Thus, "shared parenting" is defined as the presumption of shared rights in regard to the parenting of children by fathers and mothers who are living together or apart.

(ii) Shared parenting is a post-divorce parenting arrangement for the optimal development of the child including children of high conflict parents. That if there is a 50-50 parent time, it would be an optimal time that each parent could expect during week days or week-ends, as the case may be.

(iii) There is also a consensus that shared parenting orders could be passed even if one parent opposes it. As shared parenting is in consensus with International Human Rights and Constitutional Rights of the children to be raised by both their parents.

(iv) Any judicial discretion to be exercised by the Court must be in the best interest of the children.

(v) Though the shared parenting would not apply to situations where there is violence and child abuse or maltreatment of the child in any form including parental alienation.

(vi) Accessible network of family relationship centers that would render relevant support services and family mediation are necessary and vital for the success of shared parenting.

19. In some cases, the concept of shared parenting may not work at all, particularly when one of the parents resides abroad or in a place different from the residence of another parent. It all would all depend on the facts and circumstances of each case, but there is a clear momentum in law towards shared parenting with the child in focus and the rights of the child being the over-riding factors rather than the rights of the separated parents. It would be ideal if the parents jointly submit a plan for shared parenting. In the alternative, the Court must exercise its parens patriae jurisdiction.

20. There may be certain drawbacks in shared parenting also particularly, when one of the parents is a habitual perpetrator of domestic violence, child abuse, child kidnap or child neglect or showing disinterest in the child. The other is when once separated parents re-marry, the second spouse may not be interested in the parenting of the child or maintaining links with the child from the first marriage. Therefore, there would be a dislike towards the child, which may cause emotional problem or harm to the minor child. Very often, differences in the finance and social status of the parents can cause a void, which the child would have to put up with. More importantly, the child would have to be moving between two homes. The ideal situation is, if the child is consistently in one home and the parents move in and out of the home. Nevertheless, it must be understood that children of divorced parents need both parents both emotionally and physically and hence, exclusive custody to one parent with visitation rights to the other cannot be a complete remedy. Thus, what emerges is that the expression 'best interest' and 'welfare of the child' must be imbibed in the context in which the child is positioned between the parents. The facts and circumstances of each case would vary and what is good in one case, may not be good in the other case and vice versa.

21. That while preparing a joint parenting plan, care must be taken so that there is no instability or inconvenience caused to the child. Also the expression "joint" or "shared" would not mean mathematical exactitude or precision, as there must be pragmatism and innovation required at every stage. The personal profile of the parent, their educational qualification, residence, economic and social status, etc., would be important factors while developing the joint parenting plan. As there is no legislation as such in India on shared parenting, the same must evolve with judicial interference, innovation and involvement in assessing the requirements of each child.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

M.F.A. Nos. 1536 of 2015 [GW] and 137 of 2015 [GW/WC]

Decided On: 11.09.2020

Savitha Seetharam Vs. Rajiv Vijayasarathy Rathnam

Hon'ble Judges/Coram:

B.V. Nagarathna and Neranahalli Srinivasan Sanjay Gowda, JJ.

Author: B.V. Nagarathna, J.

Citation:  MANU/KA/3123/2020,2020/KHC/14304-DB

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