Questions and answers on law {Part 92}

 Q 1:- What are Kinds of estoppel?

Ans:- “Broadly, estoppel is of three classical kinds: estoppel by record, estoppel by deed, and estoppel by conduct or representation. In modern law, promissory estoppel is also a well-recognized form, where a person who makes a clear promise, intending another to act on it, cannot later go back on it if the other has altered his position. Thus, estoppel prevents a party from denying what he earlier represented.

Brief classification

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Supreme Court: Orders Giving Visitation Right/Temporary Child Custody Cannot Be Passed In A Proceedings For Restitution Of Conjugal Right

The respondent (husband) should have filed a separate and independent petition under Section 26 of the Hindu Marriage Act, 1955, instead of securing an Order in the proceedings pending under Section 9 of the Act. The Order dated 03062019 giving visitation rights or temporary custody of the child to the respondent (husband) is, thus, patently illegal. {Para 7}

 IN THE SUPREME COURT OF INDIA

Transfer Petition (Civil)  No. 964/2021

Date of Order: 08.12.2022

Priyanka Vs. Santoshkumar

Hon'ble Judges/Coram:

Surya Kant and J.K. Maheshwari, JJ.

Citation:  MANU/SCOR/123274/2022.

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Whether the court can impose bail condition for an offence U/S 498A of IPC that husband Should Resume Conjugal Life With Wife?

Vide the said order dated 10.08.2021, the

High Court had allowed the A.B.A. No.2025 of 2021 on the

condition that the appellant shall take the respondent No.2

(wife) to his house at Pandra locality of Ranchi and maintain

her with full dignity and honour as his lawful wife.

5. The High Court vide the impugned order has dismissed the

Cr.M.P. No.2419 of 2021 filed by the appellant observing that

in view of the adamant attitude of the appellant in not

resuming the conjugal life with the opposite party No.2 in the

house of the appellant, where the opposite party No.2 was

staying, his petition could not be considered. In our opinion,

neither such condition should have been imposed by the High

Court while granting an anticipatory bail, nor such could be a

ground for rejection of the petition filed by the appellant.

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.3701 OF 2023

KUNAL CHOUDHARY  Vs THE STATE OF JHARKHAND .

Dated: DECEMBER 05, 2023.

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Whether Non-Participation In A Proceeding Of A Restitution Of Conjugal Rights Has Civil Consequences ?

Taking note of Order XXI Rule 32 of the Code of Civil

Procedure, we are of the view that it cannot be said that non participation in a proceeding of a restitution of conjugal

rights, of the party who seeks for transfer of such proceeding

is absolutely impactless. In fact, it has civil consequences

as is evident from the aforesaid provision. In such

circumstances and taking into account the distance of the

court where the case sought to be transferred is pending and

the place where the petitioner-wife is presently residing, we

are inclined to allow the captioned transfer petition.

Consequently, Transfer Petition is allowed. Accordingly,

petition for restitution of conjugal rights filed under

Section 9 of the Hindu marriage Act, the Hindu Marriage

Petition No. 01/2023 titled “Ankur Ashokbhai Pawar vs. Smt.

Poonam Ankur Pawar“ pending before the Court of Ld. District

Judge of Dadra & Nagar Haveli at Silvassa stands transferred

to the Court of Ld. Principal Judge, Family Court, Ahmedabad,

Gujarat.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO.973 OF 2023

POONAM ANKUR PAWAR  Vs ANKUR ASHOKBHAI PAWAR 

Dated: 27.07.2023.

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Notes on execution of decree for restitution of conjugal rights

 32. Decree for specific performance for restitution of conjugal rights, or for an injunction.—(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced 495[in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction] by his detention in the civil prison, or by the attachment of his property, or by both.

33. Discretion of Court in executing decrees for restitution of conjugal rights.—(1) Notwithstanding anything in Rule 32, the Court, either at the time of passing a decree 499[against a husband] for the restitution of conjugal rights or at any time afterwards, may order that the decree 500[shall be executed in the manner provided in this rule].

(2) Where the Court has made an order under sub-rule (1) 501[* * *], it may order that, in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.

(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again revive the same, either wholly or in part as it may think just.

(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money.

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Whether Non-Participation In A Proceeding Of A Restitution Of Conjugal Rights Has Civil Consequences?

 Taking note of Order XXI Rule 32 of the Code of Civil

Procedure, we are of the view that it cannot be said that non participationin a proceeding of a restitution of conjugal

rights, of the party who seeks for transfer of such proceeding

is absolutely impactless. In fact, it has civil consequences

as is evident from the aforesaid provision. In such

circumstances and taking into account the distance of the

court where the case sought to be transferred is pending and

the place where the petitioner-wife is presently residing, we

are inclined to allow the captioned transfer petition.

Consequently, Transfer Petition is allowed.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO.973 OF 2023

POONAM ANKUR PAWAR  Vs ANKUR ASHOKBHAI PAWAR 

Dated: 27.07.2023

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Whether the court can grant decree for restitution of conjugal rights against Muslim wife if husband has performed second marriage?

 Thus, in the absence of any cogent explanation for the second

marriage or in the absence of any explanation to the first wife with

respect to matters aforementioned, the action of the plaintiffappellant

would amount to cruelty to his first wife. Therefore, it

would be inequitable for the court to compel the first wife against

her wishes to live with such a husband, i.e. the plaintiff-appellant. {Para 13}

14. A Muslim husband has the legal right to take a second wife

even while the first marriage subsists, but if he does so, and then

seeks the assistance of the Civil Court to compel the first wife to

live with him against her wishes on pain of severe penalties, she

is entitled to raise the question whether the court, as a court of

equity, ought to compel her to submit to co-habitation with such

a husband. In that case the circumstances in which his second

marriage took place, are relevant and material in deciding

whether his conduct in taking a second wife was in itself an act

of cruelty to the first. In other words, if the husband, after

taking a second wife against the wishes of the first, also wants

the assistance of the Civil Court to compel the first to live with

him, the Court will respect the sanctity of the second marriage,

but it will not compel the first wife, against her wishes, to live

with the husband under the altered circumstances and share his

consortium with another woman, if it concludes, on a review of

the evidence, that it will be inequitable to compel her to do so.

Even in the absence of satisfactory proof of the husband's

cruelty, the Court will not pass a decree for restitution in favour

of the husband if, on the evidence, it feels that the circumstances

are such that it will be unjust and inequitable to compel her to

live with him.

15. When the plaintiff-appellant has contracted the second marriage

suppressing this fact from his first wife, then such a conduct of the

plaintiff-appellant amounts to cruelty to his first wife. Under the

circumstances, if the first wife does not wish to live with her

husband-plaintiff appellant, then she cannot be compelled to go with

him in a suit filed by him for restitution of conjugal rights. If the

contention of the plaintiff-appellant/ husband for grant of decree of

conjugal rights is accepted, then from point of view of the

defendant-respondent/wife, it would amount to breach of her

fundamental rights guaranteed under Article 21 of the Constitution

of India.

16. For all the reasons afore-stated, the present appeal is totally

frivolous and deserves to be dismissed at the admission stage.

 ALLAHABAD HIGH COURT

Case :- FIRST APPEAL No. - 700 of 2022

Appellant :- Azizurrahman

Respondent :- Hamidunnisha @ Sharifunnisha

Coram: 

Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Rajendra Kumar-IV,J.

Author: Surya Prakash Kesarwani, J.

Order Date :- 19.09.2022

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Whether the court can grant interim maintenance to wife in proceeding for restitution of conjugal rights under muslim law?

The above mentioned Full Bench judgment of Orissa High Court is also quoted with approval in para 36, 37 and 38. At the end of para 38, it has been stated that inherent power of a Court, as is well known, can be denied only by way of statutory interdiction. There does not exist any provision either in Civil Procedure Code, or in the Act, disbelieving the Court from granting interim maintenance". In para 45, it is also held that independent of inherent powers under Section 151 of Civil Procedure Code, even under the provisions of Act itself, by necessary implication, power has been conferred in the Court to grant interim maintenance to wife and minor children where circumstances so warrant.

13. Thus, the Full Bench judgments above clearly show that in a suit cognizable under Section 9 of Civil Procedure Code, the power to grant interim maintenance is available to Civil Court. The same power is also available to Family Court. Here, though the parties are Mohammedan, the maintainability of proceedings is not in dispute and hence till the question of entitlement to final relief remains pending for adjudication, Case before the Family Court is not for recovery of maintenance and, it has jurisdiction and power to award interim maintenance to the respondent - wife during restitution proceedings. The Family Court has correctly appreciated the law on the point.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 3232 of 2010

Decided On: 12.08.2010

Mohammed Anis-Ul-Haq Vs. Asma Anjum

Hon'ble Judges/Coram:

B.P. Dharmadhikari, J.

Citation:  MANU/MH/0908/2010

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Whether the court can grant residence to wife under DV Act if she opposes petition of husband for restitution of conjugal rights?

 Further, this Court does not find any force in the argument of the Petitioner that since the Respondent did not wish to live with her husband and refused to join him she could not have claimed a right to residence in her matrimonial home. The right of residence under the DV Act is exclusive to and isolated from any right that may arise under Section 9 of the Hindu Marriage Act, 1955 and thereby, the learned Appellate Court‟s observation in this regard has also been correctly made.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 5188/2013,

OM PRAKASH GUPTA & ANR  Vs ANJANI GUPTA

CORAM:

HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

Pronounced on: 8th March, 2022

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Whether a husband can seek divorce against his wife on the ground of cruelty if he had filed a petition for restitution of conjugal rights?

We are not impressed by the submissions made on behalf of the appellant/husband. On the correct appreciation of the evidence on record, the learned Family Court has concluded that except for making some generalised allegations against the respondent/wife, the appellant/husband had not been able to establish that the respondent/wife had ever threatened him with cruelty. It is also worthy of note that according to the appellant/husband, sometime in August 2012, he had filed a petition under Section 9 of the Act for restitution of conjugal rights. In other words, if there was any misconduct or misbehaviour on the part of the respondent/wife till then, the appellant/husband had condoned the same when he approached the court for issuing directions to the respondent/wife to join the matrimonial home. According to the respondent/wife, when she had expressed her readiness and willingness to return to the matrimonial home to continue the relationship with the appellant/husband, he had promptly withdrawn the petition filed under Section 9, on 18.08.2012.

IN THE HIGH COURT OF DELHI

M.A.T. App. (F.C.) 65/2020 and C.M. No. 7957-58/2020

Decided On: 01.05.2020

Jitender Kumar Vs. Kamlesh

Hon'ble Judges/Coram:

Hima Kohli and Asha Menon, JJ.

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Leading Supreme Court Judgment on grant of permanent alimony

 In the present case, on the husband's petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void - meaning non-existent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan's case (supra), the expression used in the opening part of Section 25 enabling the 'Court exercising jurisdiction under the Act' 'at the time of passing any decree or at any time subsequent thereto' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as 'at the time of passing of any decree,' it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13.

19. Learned counsel for the husband has argued that extending the benefit of Section 25 to even marriages which have been found null and void under Section 11 would be against the very object and purpose of the Act to ban and discourage bigamous marriages.

20. It is well known and recognized legal position that customary Hindu Law like Mohammedan Law permitted bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after the Hindu Law was codified by enactments including the present Act that bar against bigamous marriages was created by Section 5(i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependant. It is with the purpose of not rendering a financially dependant spouse destitute that Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in marriage relationship.

21. Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider facts, and circumstances of the spouse applying and decide whether or not to grant permanent alimony or maintenance.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1774 and 1775 of 2001

Decided On: 13.12.2004

Rameshchandra Rampratapji Daga Vs. Rameshwari Rameshchandra Daga

Hon'ble Judges/Coram:

D.M. Dharmadhikari and H.K. Sema, JJ.

Citation: (2005) 2 Supreme Court Cases 33 : (AIR 2005 SC 422)

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Whether order of maintenance passed in favour of wife can be set aside if she is not ready to comply decree for restitution of conjugal rights passed against her?

 Fact remains that the husband Saranan Banerjee had, obtained a decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights as against Aparna Banerjee and in spite of conciliation and efforts she is not inclined to live with her husband on the plea that a case for the offence under Section 498A, I.P.C. was pending against the husband on the allegation of torture, misbehaviour, demand of dowry and many other allegations and for such reason she is apprehensive at the hands of her husband Saranan Banerjee. The judgment passed and decree prepared under Section 9 of the Hindu Marriage Act for restitution of conjugal rights is decreed, which cannot be executed by force. I am, therefore, of the opinion that the maintenance amount awarded to the wife Aparna Banerjee and her daughter cannot be sweeped and set aside only on the ground that she was not inclined to abide by the decree of the restitution of conjugal rights prepared against her. 

IN THE HIGH COURT OF ALLAHABAD

Crl. Rev. No. 325 of 2018

Decided On: 07.02.2018

 Vimal Kumar Verma Vs.  Kavita Verma and Ors.

Hon'ble Judges/Coram:

Aniruddha Singh, J.

Citation: 2018 (105) ACC 394

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Whether husband is entitled to get divorce even if he has not filed application for execution of order of restitution of conjugal rights?

In Smt. Bimla Devi v. Singh Raj {MANU/PH/0030/1977 : AIR 1977 PH 167} Hon'ble Full Bench of the High Court of Punjab and Haryana has observed that the decree of restitution of conjugal rights has been passed in favour of husband against wife, it is wife who has not complied with the decree, due to which there is no restitution of conjugal rights as between them for more than two years, then, notwithstanding Section 23(1)(a), wife is entitled to dissolution of marriage.

24. In Radhakumari v. Dr. K.M.K. Nair {MANU/KE/0053/1988 : AIR 1988 Ker 235} Hon'ble Division Bench of the High Court of Kerala has observed that the failure on part of the husband in not enforcing the decree for restitution of conjugal rights, will not disentitle him from getting a decree for divorce under Section 13(1-A)(ii) of the Act if there was no resumption of cohabitation between the parties for a period of one year or more after passing of the decree for restitution of conjugal rights. As a matter of fact, the lower Court rightly held that there is no material in this case evidencing any conduct on the part of the appellant husband which would amount to a wrong within the meaning of Section 23(1)(a) of the Act, dis-entitling him to the relief of divorce.

25. In Dharmendra Kumar v. Usha Kumari {MANU/SC/0215/1977 : AIR 1977 SC 2218} the Hon'ble Supreme Court has observed that in order to be a 'wrong' within the meaning of Section 23(1)(a), the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.

26. From the aforesaid judicial precedents in Smt. Bimla Devi (supra), Radhakumari (supra) and Dharmendra Kumar (supra) the legal position which emerges is that when the applicant gets the decree for the restitution of conjugal rights against the non-applicant, and applicant does not file execution of such judgment and decree, does not attempt to bring her back, does not comply with the aforesaid judgment and decree where the non-applicant is ready for the union, then applicant could not be deemed as to be wrongdoer and applicant would be entitled to get the decree of divorce under Section 13(1-A)(ii) of the Act of 1955 subject to the fulfillment of the conditions of this Section and other conditions of Section 23 of the Act of 1955. Similarly, if non-applicant does not comply such decree, non-applicant is not ready to lead conjugal life with the applicant, then non-applicant is also entitled to get decree of divorce under Section 13(1-A)(ii) of the Act of 1955 subject to the fulfillment of the conditions of this Section and other conditions of Section 23 of the Act of 1955. If there is no restitution of the conjugal rights for one year or upwards after passing of the decree of the restitution of conjugal rights, and other conditions of Section 23 of the Act of 1955 are fulfilled, then any of the parties would be entitled to get the decree of divorce irrespective of this fact who was not inclined to comply with the aforesaid decree.

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

First Appeal (M) No. 160 of 2016

Decided On: 01.05.2018

Sandeep Kumar Mishra  Vs.  Nikky

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Whether husband has condoned cruelty caused by wife if he has filed petition for restitution of conjugal rights?

In the case in hand, after the alleged cruelty, the appellant had preferred an application under Section 9 of the Act of 1955 and obtained the judgment and decree in his favour. These circumstances clearly establish that at the time of filing of the application under Section 9 of the Act of 1955, the appellant had condoned the alleged cruelty. If he had not condoned the alleged cruelty committed by the respondent, then he would not have filed the application under Section 9 of the Act of 1955. Thus, in the case in hand, the alleged cruelty is out of consideration for grant of divorce.

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

First Appeal (M) No. 160 of 2016

Decided On: 01.05.2018

Sandeep Kumar Mishra  Vs.  Nikky

Hon'ble Judges/Coram:

T.B. Radhakrishnan, C.J. and Sharad Kumar Gupta, J.

Citation: AIR 2018(NOC) 926 Chh

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NOTES ON HINDU MARRIAGE ACT 1955

S 3. Definition:-

c) full blood and half blood- Two persons are said to be related to each other by full blood when they are descended from a common father by the same wife, and by half blood when they are descended from a common father but by different wives;

d) uterine blood -Two persons are said to be related to each other by uterine blood, when they descended from a common mother but by different husbands;

f) Sapinda relationship with reference to any person extends as far as third generation inclusive in the line of ascent through mother and fifth generation inclusive in the line of ascent through father,the line being traced upwards in each case from the person concerned, who is to be counted as the first generation.

Read important judgments on Hindu Marriage Act: Click here

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Whether wife can be imprisoned if she fails to obey decree for restitution of conjugal rights?

There is another way of looking into the matter. The consent terms on
which the parties settled the matter contained an important part of
agreement, namely, both the parties decided to live together again. This
happened in the proceedings which essentially related to the custody of
child. No doubt, when the parties agreed to resume the matrimonial
relations and decided to live again as husband and wife, the problem of
custody of Pranav got automatically solved thereby as it brought about
an ideal situation where Pranav could have the company of his both the
parents. Unfortunately, this did not materialise. In a case like this
whether the High Court could force the appellant to join the company of
the respondent and live with him, if he had decided for certain reasons
not to do so? Even when a decree of conjugal rights is filed by a
competent court of law in favour of one of the spouses, such a decree
cannot be executed and the other spouse who is directed to resume the
conjugal relations, cannot be forced to do so. It is a different matter that
for not obeying such a decree, other consequence follow including right
to the decree holder to seek divorce. When that is the position even in
respect of a decree passed by competent court of law forcing the
appellant to join the company of the respondent and on her failing to do
so punishing her in committing contempt of the court’s order, that too by
awarding maximum civil imprisonment in law cannot be countenanced.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1606 OF 2018
MEENAL BHARGAVA  V NAVEEN SHARMA 
A.K.SIKRI, J.
Dated:MAY 09, 2018.

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Whether proceeding for divorce will be barred by res judicata if there is decree or dismissal of suit for restitution of conjugal rights?

To elucidate it further, the conjoint consideration of Section 9 read with Section 13A is relevant.

6. Whereas Section 13A of Hindu Marriage Act, 1955 deals with the alternative relief in divorce proceedings where the Court in the principal proceedings under Section 13(1) and in its sub-clauses, alternatively feels instead of dissolving the marriage, to grant a decree of 'judicial separation' and, yet again is only an enabling provision to the Court to have an alternative recourse of judicial separation instead of dissolving the marriage under Section 13 for raising institution of marriage. It would be reasonable to infer that the invocation of Section 13A is enabling the Court to have a situation to meet and grant an alternative decree of judicial separation instead of dissolution of marriage.

7. If both the provisions if are scrutinized harmoniously, the Legislature in all its wisdom had provided that the two sections i.e. Section 9 and Section 13A of Hindu Marriage Act, 1955. Provided to meet a separate set of contingencies, while maintaining a matrimonial relationship and its continuance. Under no set of circumstances or reasonableness, Section 9 deals or touches the issue, which is either covered by Section 13 or by Section 13A of the Hindu Marriage Act, 1955. Thus, both the provisions are divergent to one another one aims to bring family together and the other is a judicial process to separate the family for the grounds provided under Section 13 of Hindu Marriage Act, 1955 and to meet a different purpose. Hence adjudication made by the Court under any of the aforesaid provisions, this Court feels would not attract Section 11 of the Code of Civil Procedure to create a Bar in filing of a subsequent suit under either of the provisions under Section 9 or 13A of Hindu Marriage Act, 1955.

8. Even otherwise also, if a proceeding under Section 9 is initiated by any other party to the family disputes, its allowing would be ending up of the controversy between the parties or will aggravate the dispute between them. Allowing or rejection of Section 9 will not create any impediment for Section 13 and Section 13A, as they are independent to Section 9. Thus Section 9 will not eclipse the statutory effect of Section 13A. Thus, the bar of Section 11 of Code of Civil Procedure will not come into to play.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 552 of 2015

Decided On: 22.06.2017

Balveer Singh Vs. Harjeet Kaur

Hon'ble Judges/Coram:

Rajiv Sharma and Sharad Kumar Sharma, JJ.

Citation:AIR 2017 UTTAR175

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Historic Judgment on restitution of conjugal right against wife who was married when she was child

 It is a misnomer to call this a suit for the restitution of conjugal rights. When a married couple, after cohabitation separate and live apart, either of them can bring a suit against the other for the restitution of conjugal rights according to the practice in England, and according to the later practice of the Courts in India. But the present suit is not of that character. The parties to the present suit went through the religious ceremony of marriage eleven years ago when the defendant was a child of eleven years of age. They have never cohabited. And now that the defendant is a woman of twenty-two, the plaintiff asks the Court to compel her to go to his house, that he may complete his contract with her by consummating the marriage, The defendant, being now of full age, objects to going to live with the plaintiff, objects to allowing him to consummate the marriage, objects to ratifying and completing the contract entered into on her behalf by her guardians while she was yet of tender age. It seems to me that it would be a barbarous, a cruel, a revolting thing to do to compel a young lady under those circumstances to go to a man whom she dislikes, in order that he may cohabit with her against her will; and I am of opinion that neither the law nor the practice of our Courts either justified my malting such an order, or even justifies the plaintiff in maintaining the present suit.

Bombay High Court

Dadaji Bhikaji vs Rukhmabai on 21 September, 1885

Equivalent citations: (1885) ILR 9 Bom 529

Bench: Pinhey

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Whether marriage can be proved on basis of mobile phone call details?

The appellant has merely relied upon the copy of the
notice issued by him to the respondent to resume cohabitation.
To the said notice the respondent replied that no marriage had
ever taken place and hence there is no question of her resuming
the company of the petitioner. Thereafter, reliance was placed by
the appellant upon an application under the Right to Information
Act asking for mobile phone call details about calls allegedly
made by the respondent and the appellant to each other. Even if
call details show that they had made calls to each other, these call
details would not show that any marriage ever took place
between the parties. It is true that details of marriage ceremonies
is matter of evidence but at the same time petition should prima
facie disclose that some form of marriage took place between the
parties and there should be some prima facie evidence of
marriage in the form of marriage like marriage invitation card,

photographs of marriage, certificate of marriage or details as to
which persons were present in the marriage or details in relation
to marriage ceremonies. Annexing such documents to the petition
was necessary in this case because the respondent had in reply to
the notice of the appellant to resume his company specifically
denied that any marriage had ever taken place. As observed
12)
filed by the appellant.
earlier, all these details are conspicuously lacking in the petition
In view of the above discussion, we find no merit in
this appeal.
APPELLATE  SIDE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

FAMILY  COURT APPEAL No. 37  of  2014.
Mr Raj Amarsingh Gulale (Singhania)
Versus

Mrs Mansi Raj Gulale(Singhania)

CORAM :- SMT. V.K. TAHILRAMANI AND
A.R. JOSHI, JJ.
DATED :- 29th September, 2014.
Citation; 2015(3) ALLMR365

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Whether muslim husband can be denied restitution of conjugal rights if he performs second marriage?

 On consideration of facts and circumstances revealed that the
Muslim husband has not treated his wife in accordance of Holy Queen which 
leads to conclusion that he has dis-entitled himself to a decree of
restitution of conjugal rights.
When the husband proceeds against for wife for restitution
conjugal rights and also contracted second marriage during the pendency of
the suit for restitution of conjugal rights and in the instant case, the wife
also complained of physical cruelty to extract money, after 18 years of
matrimonial life. Then the burden of proof is on the plaintiff-husband who takes
a second wife to explain his action to prove that, his taking of a second
wife involves no cruelty to the first wife, by adducing necessary evidence to
that
effect. For instance, he may rebut the presumption of cruelty by proving that
his second marriage took place on the suggestion of first wife otherwise the
Court will presume that  under modern social conditions that the action of
the husband in taking second wife, during pendency of the suit for
institution of conjugal rights involves cruelty to the first wife then it
could be inequitable for the Court to ask the wife to live with such a
husband. 
 In the circumstances, it could not be unreasonable to hold
that after the plaintiff-husband contracted second marriage, the appellant
wife is reasonable and justifiable in staying away from her husband. This
Court while bearing in mind, the right of the Muslim husband as to contract
of marriage more than once, however, it has to be borne in mind that the
decision in a suit for restitution of conjugal rights does not entirely
depend upon the right of the Muslim husband. The Court should also consider
whether it

make it in-equitable for it to compel the wife to  live with her husband. Our
notions of law in that regard have to be held in such a way so as to bring
them in confirmity with modern social condition. There is no law or a rule
which compel the Court always to pass a decree in a suit for restitution of
conjugal rights in favour of the husband. A duty is caused upon to the Court
to find out whether it could be just and reasonable for the Court to deny the
said relief to the plaintiff Muslim husband if the proved circumstances are
such that it could be inequitable to do so for a muslim woman.
                25. On consideration of the evidence and the pleadings thereon
coupled with the admission of the P.W.1 and the D.W.1, this Court finds that
the action of the plaintiff-husband is not bonafide and the fact that the
plaintiff-husband has taken the second wife during the pendency of the suit
also lead to the irresistible conclusion that he disqualified for a decree of
restitution of conjugal rights and reasoning given by the lower Appellate
Court is not sustainable in law.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.06.2017  

CORAM   
MR.JUSTICE RMT.TEEKAA RAMAN              

S.A.(MD) No.62 of 2006 


Kothar Beevi @ Badrunnisha  vs K.Aminudeen        

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