Law Web: appeal against divorce

Sunday, 6 April 2014

Whether Wife can seek injunction to restrain husband from performing second marriage?

Family - injunction - Section 24of Hindu Marriage Act, 1955 and Order 39 Rules 1 and 2 of Code of Civil Procedure, 1908 - appeal by wife against decree of divorce - appellant wife prayed for restraining respondent husband from marrying during pendency of present appeal - respondent husband contended that if appellant wife succeed in present appeal then second marriage by him would be void and it would not have any effect on status of appellant and injunction in favour of appellant should not be granted - Court observed that if wife does not succeed in present appeal then status of second marriage by respondent husband would go unhindered but if she succeed then she is bound to face mental agony and status of second wife would also be in controversy - therefore balance of convenience in favour of injunction and thus injunction against husband granted.

Calcutta High Court

Chitra Sengupta vs Dhruba Jyoti Sengupta on 3 April, 1987Equivalent citations: AIR 1988 Cal 98, 92 CWN 54
Bench: A Bhattacharjee, A K Nayak

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Sunday, 23 February 2014

Whether appeal against decree of Divorce by mutual consent is maintainable?

Legislature has cast obligations upon Court entertaining the proceedings under section 13[B] to record a finding that consent for divorce has not been obtained by force, fraud or undue influence. Thus legislature has visualised that there may be a case in which consent for divorce may be obtained and decided to provide a safeguard against abuse of this provision. Hence obligation has been cast upon the court to verify the same, and to record a satisfaction that the consent given by the parties is free and voluntary. Thus having visualized abuse of such provision for grant of divorce by mutual consent by use of force, fraud etc., it cannot be accepted that legislature did not provide for a remedy to the spouse aggrieved in such matters. To hold that remedy of appeal is not available to such aggrieved spouse, will be rendering nugatory the exercise of obligation cast upon the trial court by the Legislature. I therefore find that the arguments of Advocate Shri De about tenability

of appeal against such consent divorce decree are liable to be rejected.

13. In view of this consideration, it has to be held that the appeal as filed by the appellant / wife before the Lower Appellate Court and before this Court is legally maintainable and question no.2 needs to be answered accordingly in affirmative in her favour. Question no.3 about indulgence in perjury by the appellant wife cannot be answered at this stage in absence of sufficient material, as it is found to be premature. No remand or calling of report from trial court in that respect is necessary as even otherwise the trial court has to look again into the voluntary nature of wife's consent. Question no.1 is answered in favour of the wife by holding that there is no compliance with provisions of Section 23[1][bb] of the Hindu Marriage Act.

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