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 is basic concept of Muta marriage under muslim law and its implication on child born from such marriage?

 Muta marriage also known as temporary marriage, is a concept in Shia Islam that allows for a time-bound contractual marriage between a man and a woman. This type of marriage has a fixed duration specified in the contract, and it ends automatically when that duration expires. The duration can range from a few hours to several years, as agreed upon by the parties involved.

The concept of Muta has been a subject of controversy and debate within the broader Muslim community. While Shia Muslims consider it permissible under certain conditions, Sunni Muslims generally do not recognize or accept the practice. Many Sunni scholars argue that temporary marriage contradicts the principles of permanence and stability emphasized in traditional Islamic marriages.

Implications on Children:

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Whether Conviction U/S 498A IPC is Sustainable When Marriage Is Found To Be Null & Void?

 Mr. S.Nagamuthu, learned senior counsel for the appellants submits that the marriage between the parties has been held to be null and void by the judgment of the High Court of Madras, Madurai Bench by order dated 25.02.2021. He therefore submits that in view of the judgment of this Court in the case of Shivcharan Lal Verma v. State of Madhya Pradesh reported in (2007) 15 SCC 369, the conviction under Section 498-A IPC would not be sustainable. {Para 5}

7. Undisputedly, the marriage between the appellant No.1 and PW-1 has been found to be null and void. As such the conviction under Section 498-A IPC would not be sustainable in view of the judgment of this Court in the case Shivcharan Lal Verma's case supra. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1404-1405 of 2012 and Criminal Appeal Nos. 1408-1409 of 2012

Date of Order: 09.02.2023

P. Sivakumar and Ors. Vs. State rep. by the Deputy Superintendent of Police and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and Vikram Nath, JJ.

Citation:  MANU/SCOR/28852/2023.

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What is the basic concept of 'Uniform Civil Code' and its implications on personal laws?

 

From marriage to adoption, how Uniform Civil Code could subsume personal laws across religions

The Uniform Civil Code is back in the news again after Prime Minister Narendra Modi made a strong push for it. If it comes into force, separate personal laws governing marriages, divorce, and inheritance of Hindus, Muslims, Sikhs, Parsis, and other communities will be subsumed. 

The UCC is the proposal to have one law for the entire country, which will apply to all religious communities in personal matters such as marriage, divorce, inheritance, succession, custody and adoption. The implementation of the UCC is likely to subsume personal laws in the country.

WHAT IS LIKELY TO BE COVERED UNDER UCC?

Marriage, divorce, maintenance, guardianship, adoption, inheritance, and succession are all issues that come within the definition of a 'civil code'. Currently, under Indian law, all these issues are governed by separate provisions under religious customary laws or codified laws pertaining to each religion in India.

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Whether Daughter will Lose Right In Joint Family Property if Dowry Was Paid At Her Marriage?

 The evidence on record shows that the joint family property was purported to be exclusively usurped by the brothers to exclude the sisters. Merely because one of the sisters deposed in favour of the brothers does not mean that the issue of family arrangement or oral partition was duly proved. There is no evidence about providing a sufficient dowry to the daughters of the house. However, even if it is assumed that some dowry was provided to the daughters, that does not mean that the daughters cease to have any right in the family property. The rights of the daughters could not have been extinguished in the manner in which they have been attempted to be extinguished by the brothers, post the father's demise.{Para 86}

 IN THE HIGH COURT OF BOMBAY AT GOA

Second Appeal No. 89 of 2005

Decided On: 16.03.2023

Terezinha Martins David Vs. Miguel Guarda Rosario Martins and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: MANU/MH/1005/2023.

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Claim for privilege under S 122 of The Indian Evidence Act - Communications during marriage

Section 122 of the Indian Evidence Act

Section 122 of the Indian Evidence Act, 1872, states that no person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married. This means that spouses cannot be forced to reveal private conversations they had with each other during their marriage.

Purpose of the privilege

The purpose of the spousal communication privilege is to protect the confidentiality of marriages and to encourage open and honest communication between spouses. This privilege is based on the idea that a marriage is a confidential relationship and that spouses should be able to speak freely to each other without fear of their words being used against them in court.

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What is basic concept of privileged communications during marriage as per Provisions of Indian Evidence Act?

S. 122 of Indian Evidence Act :- Communications during marriage.—No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

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Whether Conviction U/S 498A IPC is Sustainable if Marriage Is Found To Be Null & Void?

Mr. S.Nagamuthu, learned senior counsel for the appellants submits that the marriage between the parties has been held to be null and void by the judgment of the High Court of Madras, Madurai Bench by order dated 25.02.2021. He therefore submits that in view of the judgment of this Court in the case of Shivcharan Lal Verma v. State of Madhya Pradesh reported in (2007) 15 SCC 369, the conviction under Section 498-A IPC would not be sustainable. {Para 5}

7. Undisputedly, the marriage between the appellant No.1 and PW-1 has been found to be null and void. As such the conviction under Section 498-A IPC would not be sustainable in view of the judgment of this Court in the case Shivcharan Lal Verma's case supra.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1404-1405 of 2012 and Criminal Appeal Nos. 1408-1409 of 2012

Date of Order: 09.02.2023

P. Sivakumar and Ors. Vs. State rep. by the Deputy Superintendent of Police and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and Vikram Nath, JJ.

Citation:  MANU/SCOR/28852/2023.

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Can the court annul the marriage if the wife suppresses her mental illness before her wedding?

  The fact that the parties could not live together beyond nine weeks itself shows that the mental disorder suffered by the respondent is of a kind, and to such an extent as to be unfit for marriage and the procreation of children. It is not the case of the respondent that either of the conditions enumerated in Section 12(2)(a)(i), or (ii) exists in the present case, which would have debarred the appellant from seeking annulment of marriage on the ground contained in Section 12(1)(b) of the Hindu Marriage Act. That is not the defence set up by her, or established by her. The failure on the part of the respondent to disclose her mental disorder before her marriage with the appellant – as alleged by him, constituted a fraud perpetrated upon the appellant. Apart from stating that the parties had met a few times before the marriage, the respondent has not specifically averred, or established, that the appellant was made aware of the mental disorder suffered by the respondent, which was passed-off by her as mere “headaches”. Headaches–by themselves are not a disease. They are only symptoms of a disease. The Respondent does not state what caused her such serious and frequent headaches, which debilitated her from completing her studies. {Para 49}

 IN THE HIGH COURT OF DELHI AT NEW DELHI 

 MAT. APP. (F.C.) 142/2020

 SANDEEP AGGARWAL Vs PRIYANKA AGGARWAL

CORAM:  MR. JUSTICE VIPIN SANGHI HON'BLE MR. JUSTICE JASMEET SINGH

 Author: JASMEET SINGH, J

Dated: Pronounced on: 24.12.2021 

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Can the wife file the counter claim as per S 23A of Hindu Marriage seeking a declaration to declare marriage of his husband with the third-person void?

 As per para 37, the appellant-original defendant has proposed the relief to declare that the marriage between the respondent-original plaintiff with Hinaben Manubhai Panchal on 14.12.2006 is illegal, void and voidable and further to declare that Hinaben Manubhai Panchal is not a legal wife of the respondent – original plaintiff and also to declare that the original plaintiff – respondent herein is living with Hinaben Manubhai Panchal in adultery. It is also further prayed to declare that the son ‘Dev’ born through the respondent and Hinaben Manubhai Panchal is not a legitimate child of the respondent-original plaintiff. On a fair reading of Section 23A of the Hindu Marriage Act, we are afraid that the relief sought by way of counter claim in the Hindu Marriage Petition filed by the respondent can be claimed. Section 23A of the Hindu Marriage Act reads as under:

“23A. Relief for respondent in divorce and other proceedings – In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.”

On a fair reading of Section 23A of the Hindu Marriage Act, the

respondent in any proceedings for divorce or judicial separation or

restitution of conjugal rights, may not only oppose the relief sought on the ground of adultery, cruelty or desertion, but also make a counterclaim for any relief under Hindu Marriage Act, i.e, on the ground of petitioner’s adultery, cruelty or desertion and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under Hindu Marriage Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground, i.e., seeking a divorce or judicial separation on the ground of petitioner’s adultery or cruelty. Therefore, by way of counter claim, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for the relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act, namely, the relief under Section 9 (Restitution of

conjugal rights); Section 10(judicial separation); Sections 11 &

12(declaration of marriage between the petitioner and the respondent

void) and Section 13 (divorce). Therefore, the respondent to the

aforesaid proceedings can pray for the aforesaid reliefs only by way of counter claim and that too between the petitioner and the respondent. No relief can be prayed qua the third party. Under the provisions of the Hindu Marriage Act, the relief of divorce, judicial separation etc. can be between the husband and the wife only and cannot extend to the third party. Therefore, by virtue of Section 23A of the Hindu Marriage Act, it is not open for the appellant herein – original defendant to seek declaration to the effect that the marriage between the respondent – original plaintiff and the third party – Hinaben Manubhai Panchal is void. No relief can be prayed by way of counter claim even against ‘Dev’, the son born out of the alleged wedlock between the respondent – original plaintiff and the third party – Hinaben Manubhai Panchal. In such a situation, the only remedy available to the appellant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs. But such reliefs cannot be claimed by way of counter claim under Section 23A of the Hindu Marriage Act in the petition for divorce filed by the respondent herein against the appellant. At the most, the appellant herein – original defendant by way of counter claim could have claimed the relief and prayed for divorce and/or judicial separation on the ground of husband’s adultery. Beyond that, no relief which cannot be granted under the provisions of the Hindu Marriage Act can be claimed by way of counter claim.

{Para 9}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5901-5902 OF 2021

Nitaben Dinesh Patel  Vs  Dinesh Dahyabhai Patel 

Author: M.R. SHAH, J.

Dated: October 07, 2021.

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Whether wife can appear through video conferencing before Marriage Officer for registration of marriage under Special Marriage Act?

 The Kerala High Court in Pardeep Kodiveedu Cletus vs. Local

Registrar of Marriages (Common), 2018 (1) ILR (Kerala) 377, while examining a case of registration of marriage under the Kerala Registration of Marriages (Common) Rules, 2008, held that personal appearance of the parties to the marriage can be dispensed with by the Local Registrar. It was further observed that the Local Registrar is empowered to obtain their

personal appearance through video conferencing. In para 9 of the judgment, it was observed as under:-

9. True, inconvenience caused by a rule can never be a ground for

annulling the same or reading down the Rule in a different fashion.

But, if the purpose of the rule could be ensured otherwise, should the

parties be put to inconvenience? My conclusion is that if the purpose of the rule can be ensured otherwise, the provision of law can be

interpreted by courts in a fashion not causing any inconvenience to the parties. I am fortified in this view by the principle quod est

 inconveniens, aut contra rationem non permissum est in lege (that

which is inconvenient, or against reason, is not permitted in law). I am

also fortified in this view by the following observation in the

commentaries on 'Statutory Interpretation' by Francis Bennion:

"The court seeks to avoid a construction that causes unjustifiable

inconvenience to persons who are subject to the enactment, since

this is unlikely to have been intended by Parliament. Sometimes

however there are overriding reasons for applying such a

construction, for example where it appears that Parliament really

intended it or the literal meaning is too strong."

I do not find any overriding reason in this matter for the court to

interpret the provision contained in Rule 11 in such a fashion

compelling the parties to the marriage to be physically present before

the local Marriage Officer, for the purpose of registering their

marriage.”

The ratio of judgment passed in Dr. Praful B. Desai's case

(supra) is that statement of a witness or accused can be recorded by way of

video conference in the presence of his pleader/counsel under Section 273

Cr.P.C. This view was taken keeping in view that under Sections 284 and

285 of the Cr.P.C., attendance of the witness can be exempted by appointing a Commission, who can go to the place where the witness or accused is present and record his statement to meet the ends of justice. Hence, for all

intents and purposes, under the criminal law, presence of the witness is not

necessary before the Court for recording of his evidence. In the same

manner, for the purpose of issuing the marriage registration certificate, as

held by the High Court of Jharkhand in Upasana Bali's case (supra), parties

to the marriage can appear before the Registering Officer through video conference.

Appellant No.1-husband, in the present case, is not seeking

complete exemption of appearance of his wife-appellant No.2 (who is

working in USA) before the Registrar of Marriage. He is seeking that his

wife should be allowed to appear through video conferencing, so that the

marriage can be registered. Appellant No.2-Misha Verma, wife of appellant

No.1, was employed in Virginia University School of Medicine as Resident

Doctor. Now, she is working in J.W. Ruby Memorial Hospital at 1 Medical

Center Drive, Morgantown, West Virginia 26505, United States. The

appellants solemnized marriage on 07.12.2019 according to Hindu rites and

ceremonies in the presence of their respective families at Gurugram

(Haryana). In this case, presence of Misha Verma can be secured through

video conferencing and presence of husband-Ami Ranjan and three

witnesses can be marked by their appearance in the office of Registrar of

Marriages. Then, the certificate of marriage can be issued on doing

verification of facts as contemplated under Sections 15 and 16 of the

Special Marriage Act. Once, the marriage certificate is issued, it can be

made part of the public record under Section 47 of the Act by entering it

into the Marriage Certificate Book. There shall be no violation of Section

47 of the Act. The entire process can be done after seeking presence of Misha Verma wife of appellant No.1-Ami Ranjan through video

conferencing. For all intents and purposes, this would be a valid marriage

certificate.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

LPA No.125 of 2021 (O&M)

(in CWP No.20480 of 2020)

Date of decision: 09.03.2021

Ami Ranjan Vs. State of Haryana 

CORAM: HON'BLE MS. JUSTICE RITU BAHRI

HON'BLE MRS. JUSTICE ARCHANA PURI

Author: Ritu Bahri, J. (oral)

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Whether the daughter can challenge the validity of his father's marriage before the family court?

 : LOCUS STANDI :

29 The first plea raised by the learned counsel for the

respondent is that the appellant has no locus whatsoever to

challenge the validity of the respondent’s marriage to her father.

The learned counsel derives inspiration from the interpretation of

Section 7 of the Act and painstakingly dwelt upon nuances of

Section to bring home the point only to emphasize that besides

the parties to the marriage, no third party can seek a declaration

with regard to the validity of the marriage and more so when the

appellant’s father is no more.

37 In this case, the appellant is seeking declaration as to

the validity of the marriage of her late father with the respondent

and as also, according to her, the status of the respondent as on

today still continued to be the wife of Mr.Mansoor Cherwalla as

per provisions of Section 7 (1) Explanation (b) of the Act. Having

regard to the Objects and Reasons of the Act vis-a-vis literal

construction of Clause (b) under Explanation, in our considered

view, the appellant has every locus to bring in question the validity of marriage of her father with the respondent and as also

respondent’s status.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.179 OF 2019

WITH

CROSS OBJECTION (STAMP) NO.30564 OF 2019

IN

FAMILY COURT APPEAL NO.179 OF 2019

MRS. NAYANA M. RAMANI  V/s. MRS.FIZZAH NAVNITLAL SHAH

CORAM : R. D. DHANUKA &

V. G. BISHT, JJ.

JUDGMENT : (PER : V. G. BISHT, J.)

PRONOUNCED ON : 17th MARCH 2021

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Whether Notaries/Oath Commissioners are Authorized To Execute Marriage/Divorce Documents?

Not only the accused persons who have conspired in

performing the forged marriage of the complainant, but the Notary who executed the marriage agreement is also equally responsible in this case. The job of the Notary is defined under the Notary Act. He is not supposed to perform the marriage by executing documents.

Had he properly guided and refused to execute the marriage

agreement to the complainant, then the present offence would not have been committed. This Court is repeatedly receiving the cases of forged marriage performed by the Notary, therefore, the Law Department of the State is required to look into these matters as to how the Notaries and Oath Commissioners are involving themselves in executing the document in respect of the marriage, divorce, etc, which are not permissible under the law. Neither the Notary is authorised to perform the marriage nor competent to execute the divorce deed. Therefore, strict guidelines are required to be issued to the Notaries and oath commissioners for not executing such type of deed, failing which their licence would be terminated.

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE

(SINGLE BENCH : HON’BLE Mr . JUSTICE VIVEK RUSIA)

M.Cr.C. No. 44184 of 2020

(Mukesh S/o. Mr Lakshman @ Lakshminarayan. V/s. The state of

M.P.)

Date : 31.12.2020 :

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Can cooling-off period U/ S 13-B(2) of Hindu Marriage Act for divorce by mutual consent be waived?

Perused the order impugned so also the judgment delivered by the Apex Court in the matter of Amardeep Singh v. Harveen Kaur delivered in Civil Appeal No. 11158 of 2017 (Arising out of Special Leave Petition (Civil) No. 20184 of 2017). The Apex Court in its judgment in the matter of Amardeep cited supra in paras 15, 16, 17, 18 and 21 has observed thus:—

Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following:

i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.”

“21. Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.”

7. It is further informed by both the learned Counsel that aforesaid legal position is still holding the field and has not undergone any change. In the aforesaid backdrop, it will be appropriate in fitness of things, particularly having regard to the medical/health condition of the Petitioner, to allow the joint application moved for waiving the period as specified under Section 13B of the Hindu Marriage Act. The joint request for waiver of statutory period under Section 13B of the Hindu Marriage Act is allowed by quashing and setting aside the order impugned.

 In the High Court of Bombay

(Before Nitin W. Sambre, J.)

Kovelamudi Kanika DhillonVs Kovelamudi Surya Prakash Rao 

Writ Petition (St) No. 93737 of 2020

Decided on October 26, 2020

Citation: 2020 SCC OnLine Bom 2054

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Whether parties can dissolve marriage registered under Special Marriage Act by executing divorce deed on stamp paper?

It is the requirement of the statute that once having chosen to be spouses under the Special marriage Act, it is necessary for the parties to take recourse to the very law to even permanently severe the ties. In the instant case, although the marriage took place as mentioned hereinabove under the Special Marriage Act for the reasons best known to respondent No. 4, who claims to have got the purported document executed on the Rs. 100/- stamp paper before the Notary. That itself is raising question mark in relation to this very document. However, we are not presently to adjudicate upon the said issue and any claim made on the strength of the said document or any refusal that comes from the Respondent no. 4 claiming through this document, shall need to be presently denied. For the purpose of writ of habeas corpus, we have chosen not to permit reliance on the said document noticing the very question of validity of this document coupled with serious allegations of against mother of the applicant as all these can be sorted out by the respective parties in the appropriate proceedings.

In the High Court of Gujarat at Ahmedabad

(Before Sonia Gokani and N.V. Anjaria, JJ.)

Chavda Twinkle Vs  State of Gujarat

R/Special Criminal Application No. 2800 of 2020

Decided on July 17, 2020

Citation: 2020 SCC OnLine Guj 1167

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Kerala HC: Court can not draw presumption of legitimacy of a child under Sec. 112 of Evidence Act unless the marriage of his parents is declared valid

It is fundamental and axiomatic that valid marriage must be proved before the presumption under Sec. 112 can be invoked. Proof of valid marriage is sine qua non for invocation of the presumption under Sec. 112. Whatever the period of their cohabitation, however loyal and committed the partners may be to each other and however convincing the evidence of their faithful cohabitation may be, the presumption under Sec. 112 cannot be invoked or drawn unless solemnization of valid marriage is proved. Proof of valid marriage is the bedrock on which the presumption under Sec. 112 is built.

32. Such a presumption cannot obviously have any role or play before the validity of the marriage is established. To establish the validity of such a marriage, the presumption under Sec. 112 cannot obviously be invoked. In a case like the instant one where the validity of the marriage is assailed on the ground that the wife was pregnant through another on the date of marriage, this presumption cannot have any play at all. It would be a classic instance of putting the cart before the horse, if this presumption were to be invoked for ascertaining the validity of the marriage itself. We have, in these circumstances, no hesitation to agree with the learned Counsel for the appellant that the presumption under Sec. 112 cannot be invoked in a case where the very validity of the marriage is in question. Only after the validity of the marriage is considered and decided, the presumption under Sec. 112 can be invoked. To decide whether the marriage is valid or not, the presumption under Sec. 112 cannot obviously be invoked.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal Nos. 75 of 2008 & 31 of 2010

Decided On: 13.04.2012

 Rajesh Francis  Vs.  Preethi Roslin

Hon'ble Judges/Coram:

 Mr. Justice R. Basant &Mr. Justice K. Surendra Mohan

Citation: MANU/KE/0523/2012,2012 SCCONLINE Ker 5356

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Whether Civil Judge Junior division will have jurisdiction to grant cancellation of Marriage certificate if the plaintiff has taken the plea that there was no marriage?

Admitted position in this case is that the Petitioner/ Defendant has claimed that the Plaintiff/ opposite party married her according to Hindu rites and customs on 17.01.2001 which has been denied in the averment made by the Plaintiff in T.S. No. 60 of 2005. A similar question was dealt with by this Hon'ble Court in the case of Tapash Kumar Moitra v. Pratima Roy Chowdhury, reported in MANU/WB/0504/1984 : 89 CWN 671. It was a suit for declaration that the appropriate registration of Hindu marriage was null and void and the record of such registration should be cancelled, deleted and expunged from the relevant marriage register and the declaration given by the Plaintiff upon which the marriage was registered be declared null and void. In dealing with the matter it was held by the Hon'ble Court that the suit is simply for cancellation of the appropriate registration of the alleged marriage under the Hindu Marriage Act, 1955 and the Hindu Marriage Registration Rules, 1958 and consequential reliefs. If it is the averment that marriage has not been solemnized then the registration under Section 8 of the said Act read with relevant provisions of the said Rules by itself will not result in making the marriage complete and binding between the parties. Such registration may raise presumption of marriage being solemnized. In such a case the plaint cannot be considered to be a petition under Section 19 of the Hindu Marriage Act and as such the Civil Court has jurisdiction to entertain such prayer.

IN THE HIGH COURT OF CALCUTTA

C.O. No. 1323 of 2009

Decided On: 16.08.2011

 Pratima Maity  Vs.   Sujit Maity

Hon'ble Judges/Coram:

S.K. Chakraborty, J.

Citation: MANU/WB/0605/2011

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Whether husband can be prosecuted under S 304B and S 498A of IPC even if he is not legally married with prosecutrix?

Can a person who enters into a marital arrangement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature "dowry" does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to "any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction". It would be appropriate to construe the expression "husband" to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions - Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B Indian Penal Code. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of "husband" to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as "husband" is no ground to exclude them from the purview of Section 304B or 498A Indian Penal Code, viewed in the context of the very object and aim of the legislations introducing those provisions.

IN THE SUPREME COURT OF INDIA

Crl. A. No. 25 of 2004

Decided On: 08.01.2004

Reema Aggarwal  Vs.  Anupam and Ors.

Hon'ble Judges/Coram:

Doraiswamy Raju and Dr. Arijit Pasayat, JJ.

Citation: MANU/SC/0022/2004,(2004)3 SCC 199

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Whether Registrar of Marriage can refuse to register Marriage if it is in Violation Of Minimum Age Limit Under Hindu Marriage Act?

Learned counsel for the petitioners submits that petitioner No.1,

namely, Deepak Kumar, was less than 21 years of age on the date of the

marriage and thus, there was a violation of Section 5 of the Hindu Marriage

Act, 1955. However, in view of Sections 11 and 12 of the said Act, the

marriage was only voidable. Neither of the parties has sought to avoid their

marriage and thus, there is no legal bar in registration of the same. 

A perusal of the Hindu Marriage Act, 1955, shows that in case,

a marriage has been solemnized in violation of the age restriction laid down

therein, the marriage is only voidable. However, neither of the parties have

sought annulment of the marriage. In fact, the parties are seeking to register

their marriage. In law, the marriage is legal and there is no bar to its

registration. This case is squarely covered by Baljit Kaur Boparai’s and

Jyoti’s cases (supra).

The writ petition is accordingly, allowed

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

CWP-5135-2020 (O&M)

Date of decision : 15.6.2020

Deepak Kumar Vs  State of Haryana 

CORAM: HON’BLE MR. JUSTICE SUDHIR MITTAL

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Whether the court should give divorce on the ground of adultery if the husband alleges that the wife has committed adultery before Marriage?

It is thus clear that the learned Family Court had arrived at the right conclusion including observing that the accusations of adultery heaped by the appellant/husband on the respondent No.1/wife are without any proof whatsoever of the respondents living in adultery and having an illicit relationship either before or post the marriage of the parties and that the respondent No.1/wife had treated the appellant/husband with any cruelty. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 12.06.2020

 MAT.APP.(F.C.) 327/2019 & C.M. No.53990/2019

VISHAL SINGH  Vs  PRIYA @ PIHU 

CORAM:

HON’BLE MS. JUSTICE HIMA KOHLI

HON'BLE MS. JUSTICE ASHA MENON

ASHA MENON, J.

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