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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What should a procedure court follow if one spouse alleges that another spouse is the person of unsound mind?

Order XXXII Rule 15 of the Code states as follows:

"15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind - Rules 1 to 14 (except rule 2A) shall, so far as may be apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued."

8. On a bare perusal of the said provision, it is evident that the court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind. It further provides that even if a person is not so adjudged, but he/she is found by court on inquiry to be incapable of protecting his or her interest, when suing or being sued, by reason of any mental infirmity, an appropriate order thereunder can be passed. This rule is applicable to two categories of persons. The first category is persons adjudged to be of unsound mind. The second category is  persons found by the court on inquiry to be incapable, by reason of any mental infirmity, of protecting their interest when sued or being sued.

9. As early as in 1957, in Balakrishnan v. Kalliyani : 1957 KLT 268, this Court had held that necessarily, the court has to satisfy itself on a proper inquiry, that the defendant, by reason of unsoundness of mind or mental infirmity, is incapable of protecting his interest in the suit, and then only the court could exercise its jurisdiction to appoint a proper person as guardian of the defendant. Acting on a mere allegation that the defendant is a person of unsound mind does not amount to an adjudication, express or implied, on the question of the alleged unsoundness of mind of the defendant. To treat a person, as one incapable of protecting his own interests by reason of unsoundness of mind or mental infirmity, is a very serious matter. It is in recognition of the seriousness of the matter that the legislature has insisted on a proper inquiry being made into that matter to enable the court to come to a conclusion about the mental condition of the person concerned. It is for the court to decide upon the manner in which and to the extent to which  such inquiry has to be conducted to enable it to come to a satisfactory conclusion as to the mental condition of the party concerned. If notice of such inquiry is given to the party, he may himself appear in court and participate in the inquiry. If he appears or is brought before the court, his presence might enable the court to form an impression about his mental condition. If it is deemed necessary, he may be got examined by a medical expert and a certificate obtained as to whether he is mentally fit to protect his own interests.

10. The decision under Order XXXII Rule 15 of the Code involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. In such circumstances, the court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend or guardian, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. If that person is not capable of protecting his interests on his own, the court has an obligation to protect his interests by appointing a next friend or guardian. If  such person is capable of protecting his own interests, the court has equally an obligation to see that a next friend or guardian is not superimposed on him, thereby depriving him of his right to take his own decisions. Weakness of mind due to any reason, making a person incapable of protecting his interests, is sufficient to unfold the protective umbrella under Order XXXII Rule 15 of the Code (See Raveendran v. Sobhana : 2008 (1) KLT 488).

11. If a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a person of unsound mind in view of Order XXXII Rule 15 of the Code (See Ram Chandra Arya v. Ram Singh : AIR 1968 SC 954).

 Kerala High Court

Jimshith Lal vs C.K Shabeena on 5 November, 2018

        

              PRESENT

          MR.JUSTICE C.K.ABDUL REHIM

                                &

       MR. JUSTICE R. NARAYANA PISHARADI

 

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Whether court can issue arrest warrant for recovery of interim maintenance granted in Hindu marriage petition?

 By order dated 15th February, 2017, the learned trial Judge issued warrant against the Petitioner for enforcement for direction for payment of interim maintenance. The order records that the warrant was returned un-executed possibly because the judgment debtor is a police officer and has played a material role in creating hurdles in such execution. The learned counsel for the Petitioner points out that the Petitioner is not a police officer. Possibly the learned trial Judge was mean to say that Petitioner's mother was Sr. Police Inspector. Be that as it may since, the Petitioner is admittedly in arrears of maintenance, there is nothing wrong in issuing warrant against him. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 13993 of 2016 and Civil Application No. 852 of 2017

Decided On: 20.12.2018

 Amol Chandrakant Mahamuni Vs.  Swati Amol Mahamuni

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: 2019(3) MHLJ 493

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Whether second Hindu marriage petition is maintainable if some instances of cruelty are different?

 The Hon'ble Apex Court in the case of Syed Mohd Salie v. Mohd Hanifa (supra) has categorically held that the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits and then to find out as to what has been decided by the judgments which operate as res judicata. Perusal of the pleadings which have been placed on record in WP No. 6225/17 by the respondent wife would reveal that the pleadings in HMP-1 and 2 are based on the same cause of action, and though the subsequent event of filing proceedings under Section 498A by the wife as an additional ground for cruelty had been attempted to be raised by the husband by way of an amendment, the same came to be rejected. In such circumstances, this Court is of the clear opinion that HMP-1 and HMP-2 are based on identical cause of action and specifically when both the parties agree that they stayed together only from 5th July 2006 till 27th August 2006, and thereafter, for a period of one year from 29th August 2007 to 4th August 2008 when the wife parted the company of the husband. HMP-1 is based on the acts of cruelty alleged by the husband to have been inflicted by the wife during the said period of cohabitation and the HMP-2 is also based on the pleadings of cruelty based on the same period of cohabitation, though with a slight variation in the acts alleged to be constituting cruelty. In any contingency, if the husband had omitted to mention some of the acts in the HMP-1 which were available to him, but if he chooses to intentionally not rely upon those instances which he has referred to and mentioned in HMP-2, that do not give him a distinct cause of action.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 4011 and 6225 of 2017

Decided On: 04.05.2018

 Bhushan Dattatrayay Kedar Vs. Dipti Bhushan Kedar

Hon'ble Judges/Coram:

Bharati H. Dangre, J.

Citation: 2018(5) MHLJ 842

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What is duty of court if petitioner in Hindu marriage petition is alleged to be person of unsound mind?

Order XXXII Rule 15 reads as under :-

"15. Rules 1 to 14 (except rule 2-A) to apply to persons of unsound mind - Rules 1 to 14 (except Rule 2-A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued."

7. It is, therefore, obvious that either a litigant has to be adjudged as being mentally challenged and incapable of conducting the matter or the Court must find on enquiry that such person would be incapable of protecting his/her interest in the matter.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 6989 of 2016

Decided On: 15.06.2017

 Sushma  Vs Umesh

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2018(1) MHLJ 51

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Whether court can grant divorce on grounds not pleaded in divorce petition?

We are not impressed by the submission of the learned Counsel for the Respondent that an incident which occurred somewhere in 2010 when the Appellant visited the office of the Respondent and alleged to have misbehaved with the Respondent in front of other officers would constitute an act of cruelty on the part of the Appellant so as to enable the Respondent to claim divorce. In the first place, no decree for divorce on one isolated incident can be passed. Secondly, there could be myriad reasons for causing such isolated incident. Merely because both exchanged some verbal conversation in presence of others would not be enough to constitute an act of cruelty unless it is further supported by some incidents of alike nature. It was not so.

33. We are also not impressed by the submission of the learned Counsel for the Respondent that since the Appellant had made allegation against the Respondent of his having extra-marital relation and hence such allegation would also constitute an act of cruelty on the part of the Appellant entitling the Respondent to claim decree for dissolution of marriage.

34. Similarly, we are also not impressed by the submission of learned Counsel for the Respondent that since both have been living separately for quite some time and hence this may be considered a good ground to give divorce.

35. In the first place, the Respondent did not seek a decree of dissolution of marriage on these grounds. Second, the grounds of cruelty taken by the Respondent in his petition does not include these grounds. Third, even if some stray allegations were made by the wife in her pleading/evidence as were relied upon by the learned Counsel are of no relevance because, as mentioned above, these ground were not pleaded in the petition by the Respondent for seeking a decree of divorce and nor were put in issue; and lastly, the burden being on the Respondent, the same could be discharged by the Respondent by pleading and then proving. It was not so done. It is for these reasons, we cannot accept the aforementioned two submissions for affirming the decree of divorce.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7114-7115 of 2014

Decided On: 08.03.2017

 Suman Singh  Vs.  Sanjay Singh

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: (2017)4 SCC 85

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Basic principles for amendment of pleading in hindu marriage petition

As held earlier the grounds for filing an application under Section 12 of the Act and the grounds for filing an application under Section 13 of the Act are different. Therefore, in my considered view, an application under Section 12 as well as under Section 13 of the Act will not be maintainable. However, from the averments made in the petition filed under Section 12 as well as the proposed amendment, it appears that allegations have been made to make out a ground for divorce under Section 13 of the Act. Therefore, amendment to the said extent is permissible and there is no need for the Court to interfere to that extent. Relying on the decisions cited by the learned counsel for both the parties, I am of the view that by way of amendment the Court could not have allowed the application to be filed under both the provisions of law and it can only be under Section 13 of the Act. The facts sought to be incorporated by way of amendment relate to allegations of cruelty, which had taken place after filing the suit under Section 12 of the Act. These allegations being subsequent events can be incorporated in the petition.

Orissa High Court

Smt. Sunanda Kar Alias Ratha vs Sudip Ratha on 29 November, 2005

Equivalent citations: AIR 2006 Ori 80, I (2006) DMC 695, 2006 (1) OLR 4

Bench: L Mohapatra

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