What is distinction between concept of cruelty U/S 498A of IPC and Under Civil law or Matrimonial law?

 C. Veerudu Vs. State Of A.P.(1989) CR. L.J. NOC 52(A.P.)

• S. 498 A The sole constituent of offence u/s 498 A is cruelty which means 'wilful conduct'. The Word wilful contemplates obstinate and deliberate brhaviour on part of offender for it to amount to cruelty. Thus 'Mensrea' is an esssential ingredient of the offence.
• The principles are that the standard of proof of cruelty are higher in degree in criminal law than in civil law under the matrimonial causes.
• The intention or mensrea on the part of one spouse to injure the other is not a necessary element of cruelty in civil law for martimonial causes while it is an essential element in criminal law.
• It is enough if crulety is proved by preponderance of probabilities in civil law while in criminal trials the coduct of cruelty has to be proved beyond all resonable doubt.
• It is immaterial in civil law whether respondent's conduct was aimed at the other spouse or is due to unwarranted indifference attributable perhaps to selfishness or laziness while it is very much material in criminal proceeding and for relief of matrimonial causes in civil law the conduct of spouse need not necessarily result in danger to life, limb or health but a reasonable apprehension of such danger is enough, whereas section 498 A contemplates such a conduct besides being wilful to result in the likelihood of driving the woman to commit suicide or to cause grave injury or danger to life, limb or health.

[ In the High Court of Andhra Pradesh, Criminal Appeal No. 756 of 1987. ] 1

VEERULU V/S STATE OF ANDHRA PRADESH, decided on Friday, June 10, 1988.  Judge(s) : BHASKARA RAO. Read full Judgment here: Click here.

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What is role of counseling and mediation in matrimonial conflict resolution in the context of S 89 C.PC?

 Counseling and mediation play important roles in matrimonial conflict resolution, especially in the context of Section 89 of the Code of Civil Procedure (C.P.C) in India. Section 89 encourages parties involved in disputes, including matrimonial conflicts, to explore alternative dispute resolution methods before resorting to litigation. Here's how counseling and mediation are involved in matrimonial conflict resolution under Section 89 C.P.C:

• Initiation and Referral:

• Section 89 of the C.P.C empowers courts to refer parties to mediation or counseling to resolve their disputes. In matrimonial cases, the court may suggest or order mediation or counseling before proceeding with the trial.

• Counseling:

• Counseling is a process where a trained counselor helps individuals or couples explore their issues, emotions, and communication problems. In matrimonial conflicts, counseling can provide a safe space for spouses to discuss their concerns, work on their relationship, and explore possible solutions. Counselors can assist with improving communication and understanding between the parties.

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Can the court grant a divorce to the husband if the wife makes a false allegation of his impotence amounting to cruelty?

  As regards the allegations made in pleadings, Courts have considered

this question time and again and it is now no longer res integra that false,

baseless, scandalous, malicious and unproven allegations made in the written

statement may amount to cruelty. If it is established from the evidence that

the allegations were evidently false, then such baseless allegations made in

the written statement can amount to cruelty and the Court can pass a decree

of dissolution of the marriage. In Jayanti v. Rakesh Mendiratta, 2016 (4) CLJ 498 Del, it was held that in matrimonial proceedings, the pleadings

assume great significance. Similarly, in the case of V. Bhagat (supra), grave

false allegations were made by the wife against the husband in her written

statement. Such allegations were even put to the husband in crossexamination.

The Supreme Court held that such allegations were bound to

cause mental pain and anguish to the husband amounting to mental cruelty

and dissolved the marriage between the parties. In the present case, we

therefore agree with Mr. Prabhjit Jauhar that the allegations in the Written

Statement are grave and serious accusations, which are likely to impact

Respondent’s self-image and adversely affected his mental well-being. Thus,

having regard to the law on the subject, we find no infirmity in the findings

and observations of the trial court that the allegation of the Appellant in the

Written Statement with respect to the impotency clearly falls within the

concept of cruelty as defined under law.{Para 19}

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 MAT.APP.(F.C.) 92/2020 &CM APPLs. 14842-14843/2020

KIRTI NAGPAL  Vs ROHIT GIRDHAR 

CORAM:

HON'BLE MR. JUSTICE MANMOHAN

HON'BLE MR. JUSTICE SANJEEV NARULA

Author: SANJEEV NARULA, J.

Pronounced on: 20.11.2020

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Whether former husband of Muslim wife can refuse to pay permanent alimony to her if she remarries after divorce?

 We may conclude observing that when the Court makes an award of permanent alimony or for one time payment, it is not founded on any stipulation that any part of the sum would be either actually refunded in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. In fact, it is something different from the obligation of her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the judgment debtor from his future liabilities unconditionally. On the other hand, the grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation to the spouse to maintain her so long as she enjoys the continued status of a divorcee. On such remarriage, that status of divorcee comes to an end and she acquires another marital status as someone's spouse. Under the Act, 1986 as well as under Section 125 Cr.P.C., the wife includes a divorcee. Therefore, when the wife remarries, her claim of maintenance primarily comes to stand against her new husband coming into existence in new relationship. The obligation of maintaining the divorced wife is shifted to the husband, whom she subsequently marries. The future obligation to maintain her by her previous husband comes to an end. That makes a case of permanent alimony different from a case of grant of periodical maintenance. The former is to discharge the husband from his obligation for all times in lieu of a settled reason, in the later, he is required to continuously discharge his obligations at interval of every period. This proposition of law laid down by us should be looked into keeping in mind Section 3(1)(a) of the Act, 1986. A divorced woman is entitled to 'a reasonable and fair provision" and "maintenance" to be made and paid to her within and post the Iddat period by her former husband. The Supreme Court in Danial Latifi (supra) interpreted this as two separate obligations. The Court found "reasonable and fair provision' to mean a provision in advance for the future needs of the ex-wife including her residence, food, clothes and other necessities. The Supreme Court found that the Act, 1986 requires a Muslim husband to provide maintenance of a reasonable and fair amount needed to maintain his wife for the rest of her life but that he must pay this amount in total during the iddat Period. At the cost of repetition, we state that the provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage. In other words, the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding.{Para 79}

80. From the aforesaid discussion the following conclusions emerge;

(A) Before the enactment of the Act, 1939, a woman, under pure Muslim Law, had no right to get a decree for divorce from the husband if the husband refuse to divorce her. The Act, 1939, for the first time, conferred a legal right to move the Civil Court for a decree for dissolution of marriage on the grounds specified in Section 2 of the Act, 1939. After the Act of 1939, a wife thus had a statutory right to obtain a divorce from her husband through the Court on proof of the grounds mentioned in the Act.

(B) A decree for dissolution of marriage obtained by the wife under the provisions of the Act, 1939 is a legal divorce under the Muslim Law by virtue of the statute. The ex-wife, having obtained divorce from her erstwhile husband under the provisions of the Act, 1939 is entitled to reasonable and fair provision under Section 3 of the Act, 1986.

(C) Section 20 of the Family Courts Act, 1984 gives an overriding effect to the provisions of the Act over all other enactments. The Family Courts Act has in its comprehension all community including the Muslims. All disputes between the Muslim community within the purview of the Family Courts Act are to be settled by the Family Courts.

(D) The dispute contemplated by Section 3 of the Act, 1986 is within the purview and four corners of the Family Courts Act as the dispute under Section 3 of the Act, 1986 also relates to matrimonial relations between the parties.

(E) The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much an integral part of the decree of 'dissolution of marriage'. The Law contemplates that the husband has two separate and distinct obligations; (I) to make "reasonable and fair provision" for his divorcee wife and (ii) to provide "maintenance" for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.

(F) The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.

(G) When the Family Court makes an order of permanent alimony or for one time payment in the proceedings instituted by the wife for divorce, it is not founded on any stipulation that any part of the sum would be refunded either in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. It is something different from the obligation to her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the husband from her future liabilities unconditionally.

(H) The grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation of the spouse to maintain her so long as she enjoys the continued the status of divorcee. If the wife gets remarried, her status of divorcee is come to an end and the liability of the husband to pay periodical maintenance would also come to an end.

81. It is brought to our notice by the learned counsel appearing for the respective parties that the appellant herein remarried way back in the year 2014. This is suggestive of the fact that much before the respondent herein instituted the proceedings in the Family Court for divorce, the husband had already remarried and raised a family. The appellant could do so because polygamy is permissible amongst the Muslim Community. It does not constitute an offence of bigamy punishable under 494 of the Penal Code. The materials on record further indicates that the husband hardly paid anything towards maintenance. The respondent had to leave her matrimonial home soon after the marriage, i.e., sometime in 2010. Ultimately, she was constrained to institute the proceedings of divorce in the Family Court. It appears that even during the pendency of such proceedings before the Family Court, nothing was paid to the wife. The wife, ultimately, succeeded before the Family Court in getting the marriage dissolved and was also successful in getting an order of permanent alimony. The husband now cannot turn around and say that he is not liable to pay the lump sum amount because the respondent is remarried.

 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/First Appeal No. 2012 of 2019 and Civil Application No. 1 of 2019 in R/First Appeal No. 2012 of 2019

Decided On: 19.03.2020

 Tarif Rashidbhai Qureshi Vs.  Asmabanu

Hon'ble Judges/Coram:

J.B. Pardiwala and V.B. Mayani, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/GJ/0734/2020

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Whether it is duty of court to protect wife against burden of litigating in an inconvenient forum?

We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that state to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company v. State of Washington (1) which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.

Supreme Court of India

Smt. Surindar Kaur Sandhu vs Harbax Singh Sandhu & Anr on 11 April, 1984

Equivalent citations: 1984 AIR 1224, 1984 SCR (3) 422

Bench: Chandrachud, Y.V. ((Cj)

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How to ascertain limitation for seeking declaration that there was no marriage?

 If a party wants a declaration that there was no marriage and no marriage was conducted and thereby the status of the wife or husband should not be given to any of the spouses, then it will be a relief outside the purview of the matrimonial laws under the statutes no such declaration be possible and that is a common law remedy available which was codified into a right under Section 34 of the Specific Relief Act. Once such declaration has to be sought for, which is not coming under the purview of the Marriage Laws as per the statutes provided for that purpose, then the bar under Section 29(3) of the Limitation Act will not be attracted and for such suits or proceedings, the general of limitation available for seeking such declaration alone can be attracted.

47. This aspect has been considered by the Allahabad High Court in the decision reported in R.P. Agrawal v. Smt. Urmila Devi (MANU/UP/0787/1981 : 1982 Allahabad Law journal 260), where it has been held that, where an application for maintenance under Section 488of Code of Civil Procedure 1898(old) was filed by alleging solemnisation of marriage before coming into force of Hindu Marriage Act to have that marriage declared invalid could be governed by Article 58 and not residuary Article 113 and hence would be barred by limitation, when filed after expiry of three years from the date of application under Section 488. Further as Hindu Law of Marriage which was in force before the commencement of Hindu Marriage Act, 1955 did not provide for a suit for a declaration that the marriage solemnised while the applicant's husband by earlier marriage was alive and invalid. Further even going by the dictum mentioned above, it will be seen that, in order to attract the provisions of the Hindu Marriage Act, for nullifying the marriage or dissolving the marriage, it can be done only on the grounds available therein and solemnisation of the marriage must be admitted. Further in this case, appellant is not admitting the marriage, but only admitting the relationship and he wanted a declaration that there was no marriage at all.

48. Further it was admitted by the appellant that, even in the year 1988, when they started residing separately, the respondent filed an application for maintenance for herself and for the minor child and in that case, the appellant admitted the existence of marriage and suffered an order against him. Even in the subsequent proceedings between the parties also, he did not object the existence of marital relationship between the parties, which was necessary for deciding the issues in those cases. So he did not object the status of the respondent as his wife for want of customary marriage at the first point of time when it occurred for consideration. But suffered an order against him.

49. Article 58 of Limitation Act which reads as follows:

In both these articles, the Limitation will start when the right to sue first accrues.

50. As far as the appellant is concerned, that has accrued to him when the respondent had made a claim for maintenance, alleging that she is the legally wedded wife of the appellant and a suit filed long after suffering an order of maintenance namely nearly 17 years of that cause of action is highly belated and barred by limitation. Since it is a question of law which has to be considered by the court even if it is not raised that can be considered by the appellate court at the appellate stage in an appeal filed by the appellant invoking the power under Order 41 Rule 22 and 33 of Code of Civil Procedure. So the suit filed after three years of the accrual of the cause of action to the appellant to challenge the same, is clearly barred by limitation and on that ground also the appellant is not entitled to get the relief claimed.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 351 of 2006

Decided On: 16.06.2017

 D. Sivadasan

Vs.

 Santha

Hon'ble Judges/Coram:

A.M. Shaffique and K. Ramakrishnan, JJ.

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When husband can claim maintenance from wife?

  A husband seeking maintenance from

the wife can be treated only as exceptional case as normally he

has got the liability or obligation to maintain the wife and vice

versa is only exceptional.

      15.The question        under what circumstances the husband is

entitled to get maintenance under Section 24 of the Act has

been considered         by the Bombay High Court in the decision

reported in Smt. Kanchan, w/o. Kamelendra                    Sawarkar v.

Kamalendra @ Kamalakar s/o. Rajaram Sawarkar (AIR 1992

Bombay 493) and it has been held that:

             "Since the wife is in employment, the husband cannot

       make himself wholly depend on her income through a devise

       under Section 24 of the Act. In the absence of any handicap or

       impediment to earn, to grant maintenance to such able bodied

       person equipped with skill would promote idleness, which is

       opposed to spirit of Section 34 of the Act".

      16. The same question has been considered by the Madhya

Pradesh High Court in the decision reported in Yashpal Singh

Thakur v. Smt. Anjana Rajpu (AIR 2001 MP 67) relying on the

decision reported in Govind Singh v. Smt. Vidya (AIR 1999

Rajasthan 304) where it has been observed that:


               "It is true that Section 24 of the Hindu Marriage Act,

       1955     entitles either party to move an application for

       maintenance       provided such party has no means of

       subsistence and the other party is in a position to provide

       maintenance.     But it does not mean that the husband who

       is otherwise capable of earning his living should stop earning

       the living and start depending on the earning of the wife. In

       that    case   the husband    has incapacitated   himself   by

       stopping the running the auto rickshaw on hire. It is well

       established maxim of Anglo Saxion jurisprudence that no

       person can be allowed to incapacitate himself. That maxim is

       applicable to the case of earning husband. A person who

       voluntarily incapacitates himself from earning is not entitled

       to claim maintenance from the other spouse".

   
              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

            MR.JUSTICE A.M.SHAFFIQUE
                                  &
            MR. JUSTICE K.RAMAKRISHNAN

       14TH DAY OF FEBRUARY 2017

                     OP (FC).No. 26 of 2015 

            NIVYA V.M,  Vs    SHIVAPRASAD N.K, 

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When court should not give decree for divorce to husband on ground of adultery by wife?

Mainly,   it   would   be   necessary   to   consider   the   evidence   of   the
husband and his witnesses, as it is well settled that the burden to prove that

the spouse had voluntary sexual intercourse after the soleminzation of the
marriage, with a person other than his or her spouse would lie only on the
spouse levelling the allegation of voluntary sexual intercourse against his or her
spouse   and   the   burden   would   not   shift   on   the   spouse   against   whom   the
allegation is levelled. 
 Lastly, it would be necessary to consider the evidence of Khushi, the
daughter of the husband and the wife. Before considering the evidence it would
be necessary to consider that the husband had not pleaded in the petition for
divorce that either Santoshi, Tanuja or Khushi, his daughter, had told him
about   the   illicit   relationship   between   the   wife   and   Keshav   Kale,   Rajendra
Bhakre and Gajanan Bele. It is not the case of the husband that his daughter
had ever told him that her mother used to make her stand outside the house
and clap when she was alone in the house with Keshav Kale or Rajendra
Bhakre. Khushi stated in her examination­in­chief that the husband and wife
never quarreled and the husband had never beaten the wife. Khushi stated in
her examination­in­chief that when her father was out of Akola for one night,
her mother was staying in the house with Keshav Kale and she and her brother
Harsh were asked to sleep in the room of Santoshi. We have already expressed
great doubt about Santoshi being a tenant in a room in the ‘Wada’ of the
husband. It is not the case of Santoshi in her evidence that Khushi and her
brother Harsh were sleeping in her room at night when the husband was out of
Akola and the wife was alone in the house with Keshav Kale. Khushi admitted
that she could not tell the dates or the period during which her mother had
asked her to stand outside the house. Khushi admitted that she was living with

her grandparents and her father and there were discussions in the house in
respect of this Court case between her father and her mother. This statement is
significant. It is apparent that Khushi has spoken about her mother on the say
of her grandparents and father and also in view of the discussions that she
heard   in   the   house   of   her   grandparents.   Khushi   admitted   in   her   crossexamination
that till 24.05.2012, their entire family, i.e, her father, her mother,
her brother Harsh and herself travelled together to Goa and Meherabad and
that they enjoyed the trips. It is difficult to believe that when the husband and
the wife were travelling together to Goa and Meherabad and also visiting the
restaurants at Akola on Sundays, the husband knew about the relationship of
the wife.   The wife had left the matrimonial house, even according to the
husband on 08.06.2012, i.e., just a few days after the wife and the husband last
travelled to Meherabad. We find that the witnesses examined on behalf of the
respondent are got­up witnesses and none of them have witnessed any physical
relationship between the wife and Keshav, Rajendra and Gajanan. The family
Court, however, erroneously relied on the evidence of Santoshi, Tanuja and
Khushi to hold that the husband had been successful in proving that the wife
had voluntary sexual intercourse with Keshav, Rajendra and Gajanan. In fact,
no finding is recorded by the family Court that the wife had voluntary sexual
intercourse with Keshav, Rajendra and Gajanan. The family Court has only held
that the wife was living an adulterous life and she had illicit relationship with
Keshav, Rajendra and Gajanan. There is neither a pleading in the petition in
regard to voluntary sexual intercourse nor is a finding recorded by the family

Court that the wife had voluntary sexual intercourse with Keshav, Rajendra and
Gajanan. If there is no pleading or finding in this regard, it is difficult to gauge
as to how the family Court has dissolved the marriage between the parties
under Section 13 (1) (i) of the Hindu Marriage Act as the said section provides
for a dissolution of the marriage by a decree of divorce only on the ground that
either  the  husband  or  the  wife  had   voluntary  sexual  intercourse  with   any
person other than his or her spouse after the solemnization of the marriage.
Neither   has   the   husband   pleaded   in  this   regard  nor   has  the  family   Court
rendered a finding to the aforesaid effect. We find that the husband has, for the
reasons best known to him sought to eliminate the wife from his house by
levelling serious allegations that cast aspersions on her character. Though the
husband has not stated as to how and from whom and when he became aware
about the wife’s illicit relationship, the husband was successful in examining
Santoshi and Tanuja who are the got­up witnesses. It is conspicuous to note
that though the husband has examined Shekhar by tendering his evidence on
affidavit, this witness did not turn up for cross­examination. Also, it is apparent
from an appreciation of the evidence on record that the husband had cooked­up
a story of the wife having an illicit relationship with Gajanan, who was an
electrician, as the said electrician was working in the printing press of the
husband   and   the   husband   was   successful   in   securing   his   admission   in   his
written statement that he had an affair with the wife. We have already stated
earlier and we reiterate that a man would never come forward to admit and
boast in the legal proceedings that he has an affair and illicit relationship with

the wife of another man. We have a doubt as to why the wife, whose father is a
Doctor and who belongs to a very respectable family, both on the parents side
and   the   matrimonial   side,   would   have   an   affair   with   an   electrician.   It   is
conspicuous to note that the husband has admitted in his cross­examination
that Gajanan works with him as an electrician. This would falsify the case of the
husband, specially in regard to the illicit relationship between his wife and
Gajanan Bele. Why did the husband, who is aware about the illicit relationship
of his wife with an electrician, permit the electrician to work with him in his
printing press even after his wife leaves the matrimonial home and a case is
filed against the wife for divorce under Section 13 (1) (i) of the Act. The very
fact that Gajanan works with the husband as an electrician even after he is
aware about the relationship of Gajanan with his wife, falsifies the case of the
husband that his wife had an illicit relationship with Gajanan Bele. Though it is
not clear to us as to why the husband would level such allegations against the
wife,   one   thing   is   clear   that   the   husband   has   levelled   false   and   baseless
allegations   against   the   wife   and   he   has   failed   to   substantiate   them   either
through his pleadings or by his evidence. We find that the case tried to be made
out by the husband against the wife is a concocted case and the husband has
maligned the image of the wife in the society by levelling false and baseless
allegations that cast aspersions on the moral character of the wife. The family
Court has not considered the evidence in the right perspective and has, by a
short judgment, which does not carry cogent reasons, granted a decree of
divorce in favour of the husband under Section 13 (1) (i) of the Act. In the

circumstances of the case, the family Court should have dismissed the petition
filed by the husband with costs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO. 339/2014

 Sau.  Smruti  Vs Anant   


           CORAM :  SMT.VASANTI    A   NAIK  AND
           KUM. INDIRA JAIN, JJ.
            DATE :  20TH & 21ST OCTOBER,  2016.
Citation: 2017(1) MHLJ 173,2017(1) ALLMR 77

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Leading Supreme Court Judgment on appreciation of evidence in civil/matrimonial proceeding

The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A. prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note : "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" Per Dixon, J. in Wright v. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear" Blyth v. Blyth [1966] 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.

Supreme Court of India

Dr. N.G. Dastane vs Mrs. S. Dastane on 19 March, 1975

Equivalent citations: AIR 1975 SC 1534, (1975) 2 SCC 326, 1975 3 SCR 967

Bench: N Untwalia, P Goswami, Y Chandrachud

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Whether concept of fraud as mentioned in contract Act is applicable to matrimonial proceeding?

The word 'fraud' has not been defined in the Act. It has, however, been defined in Section 17 of the Indian Contract Act thus--

'fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:

(1) The suggestion, as a fact, of that which J is not true, by one who does not believe it to be true;
(2) The active concealment of a fact by one having knowledge or belief of the fact;
(3) A promise made without any intention of performing it;
(4) Any other act fitted to deceive;
(5) Any such act or omission as the law specially declares to be fraudulent.
Explanation:-- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.

This definition would not be applicable to a marriage under the Hindu Law, because it is undisputed that a Hindu marriage is a sacrament and not a contract. As observed by B.K. Mukherji J. in a Full Bench decision of the Calcutta High Court in Kshitish Chandra v. Emperor MANU/WB/0001/1937 : AIR 1937 Cal 214--

It is well settled that a Hindu marriage is a sacrament and not a contract, and the presence of a consenting mind is not indispensable. If the marriage rites are duly performed and there is no impediment to the marriage in the shape of identity of gotra or prohibited degrees of relationship, the doctrine of factum valet applies and makes the marriage indissoluble in the absence of proof of any force or fraud Brindabun Chandra v. Chundra Kurmokar ILR 12 Cal 140. The reason for the exception seems to be that where the girl is abducted by force or fraud and married, there is neither any gift by the lawful guardian nor the performance of any religious ceremony in the proper sense and there is, consequently, an absence of the essential ingredients necessary to constitute a valid marriage.

The word 'fraud' as a ground for the annulment of the marriage under the Hindu Law is limited only to those cases where the consent of the Petitioner at the solemnization of the marriage was obtained by some sort of deception. For example, take a case where A was given to understand that he was being married to B and, in fact, he was married to C. Again, where the marriage of the Petitioner was solemnized when he or she, as the case may be, was under the influence of liquor. In case of a marriage under the Hindu Law, 'fraud' is not used in a general way and on every misrepresentation or concealment, the marriage cannot be dissolved. If the term 'fraud' is to be interpreted according to the definition given in the Indian Contract Act, then it would become impossible to maintain the sanctity of the marriage. All sorts of misrepresentations will be alleged by the Petitioners in older to break the marriage tie. This obviously, could not be the intention of the Legislature. 

Equivalent Citation : AIR 1964 P and H 359

IN THE HIGH COURT OF PUNJAB AND HARYANA

F.A.F.O. No. 5-M of 1961

Decided On: 20.05.1963

 Harbhajan Singh  Vs. Smt. Brij Balab Kaur

Hon'ble Judges/Coram:
P.C. Pandit, J.

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Whether wife leaving husband for becoming politician amounts to desertion?

To prove desertion in matrimonial matter, it is
not always necessary that one of the spouse should
have left the company of the other as desertion
could be proved while living under the same roof.
Desertion cannot be equated with separate living
by the parties to the marriage. Desertion may also
be constructive which can be inferred from the
attending circumstances. It has always to be kept
in mind that the question of desertion is a matter
of inference to be drawn from the facts and
circumstances of each case.”
Thus keeping in view the aforesaid settled position of
law that there can be no desertion without animus deserendi and
it implies not only factum of separation but also intention to
separate permanently and to put an end to matrimonial
relationship and cohabitation, on scanning of the materials on 16
record, we found that the conduct of the appellant in leaving the
company of her husband and their small children and living
separately for so many years since 2007 for pursuing her socalled
political ambition clearly indicates that she had deserted
the respondent without reasonable cause and without his
consent and against the wish of the respondent.

IN THE HIGH COURT OF ORISSA, CUTTACK
MATA NO. 104 Of 2011


Usharani Pradhan V Brajakishore Pradhan 



P R E S E N T:-
 MR. JUSTICE VINOD PRASAD
AND
 MR. JUSTICE S.K. SAHOO
 Date of Judgment-19.11.2015

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How to appreciate that husband was really wanted to bring back wife to his house?

 The only question that has to be decided in this case is whether the appellant had voluntarily withdrawn from the society of the respondent or not. In this case it appears from the evidence of the respondent-husband that the appellant-wife's mother suggested to keep the appellant for a period of two months further after first delivery which are quite normal. Immediately after the appellant gave birth to a female child, it was unexpected to leave her to the matrimonial house. On January, 14,1997 the respondent and his mother went to the appellant's house and called her family members to their house. Accordingly, they also attended the respondent's house. The respondent-husband asked the parents of the appellant to send their daughter-appellant. But her parents suggested that they would send their daughter after three months. Even after such period lapsed, when the appellant did not join the matrimonial house, without taking any effect at his behest the respondent directly sent a registered notice asking her to join him to which the appellant replied and did not prefer to join him. Accordingly a case was filed by the respondent-husband. Normally it is expected that before issuing a legal notice, the respondent-husband should have gone to the father-in-law's house to give an opportunity to the appellant-wife to join his company. In stead of that, he issued a registered notice through a lawyer to come and join his company. A registered notice is not a substitute of going personally to the father-in-law's house to invite his wife. After such registered notice was issued, it was reasonably expected for the appellant-wife to give reply. Had the respondent gone to the appellant's house in person, the situation could have been different, but the registered notice must have caused hurt to her ego. After such proceeding was initiated, the appellant-wife did not find any other way than to file an application for maintenance from the respondent-husband Under Section 125 of the Code of Criminal Procedure.

Orissa High Court

Dolly Roy vs Raja Roy on 16 September, 2002

Equivalent citations: I (2003) DMC 44

Bench: B Panigrahi, P Misra

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Whether persons not residing with husband can be charged for criminal breach of trust relating to streedhan of wife?

In paragraph 4 of the complaint, there is a general allegation that the cash and gifts which the respondent No. 2 and accused No. 1-Vaibhav had received during marriage were kept at the matrimonial home by all the accused persons including the applicant No. 1, who is accused No. 7, being the mediator for the marriage between the respondent No. 2 and accused No. 1-Vaibhav; and the applicant No. 2, who is accused No. 4, being the sister in law of the complainant-Non-applicant No. 2. It is an admitted position that both these applicants were not part of matrimonial home of the accused No. 1 and Non-applicant No. 2. Therefore, no offences relating to cheating and criminal breach of trust punishable under Sections 417 and 406 would be prima facie made out against these applicants. Besides, there is also no allegation in paragraph 4 that the Non-applicant No. 2 at any point of time demanded return of the Stridhan articles to her from those accused persons who are residing in her matrimonial home.

Equivalent Citation: 2015ALLMR(Cri)2607, 2015(2)Crimes368(Bom.)

IN THE HIGH COURT OF BOMBAY

Criminal Application No. 251 of 2014

Decided On: 14.01.2015

 Gopal and Ors.Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:S.B. Shukre, J.

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Whether filing of complaint by wife under Domestic violence Act amounts to cruelty?

 So far as filing of the case under the Domestic   Violence Act   is
concerned, the learned Counsel for the appellant submitted that because of the
ill­treatment and acts of incidents out of anger at the hands of in­laws, she was
subjected to strangulation which forced her to file the  complaint.  Except this
solitary criminal complaint, she has not filed any other complaint.   It is required
to be noted that the said case is still pending. The competent court has not found

that it is a false complaint.  In our view, filing of the complaint itself can never be
considered as an act of  cruelty unless it is found  by positive evidence that it was
a false complaint.  The said complaint has not yet been decided and is still
pending.   When the said case is pending before the competent court, the learned
trial Judge should not have given so much weightage about the factum of filing
of such complaint and trying to find out as to whether the allegations in the said
complaint   are   correct   or   not.   If   ultimately   the   said   complaint   is   dismissed,
naturally one can presume that the wife is guilty of filing false cases and making
reckless allegations against the husband. When the Act permits the   wife to
approach the Court under the provisions of Domestic Violence Act and if that
remedy is   availed of, such act should not be   treated as an act of cruelty,
otherwise  in no case a lady can file any complaint,  if the filing of complaint is to
be treated as an act of cruelty.  Simply because the wife in her cross­examination
admitted   that   she   did   not   want   to   live   an   animal   life   and   that   she   is   not
interested in marital life, one cannot jump to a conclusion that the wife is at
wrong.  A wife is also entitled to have her own freedom after marriage.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION 
FAMILY COURT APPEAL NO.120 OF 2009
with
CIVIL APPLICATION NO. 174 OF 2009
Mrs. Deeplakshmi Sachin Zingade 
V
Sachin Rameshrao Zingade,  

 CORAM:  P.B. MAJMUDAR  &
                  R.V. MORE, JJ.
       
         Dated:     24th September,2009
Citation; 2010(1) MHLJ 10 Bom

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Whether wife initiating proceeding under S498A of IPC and S 125 of CRPC amounts to cruelty?

Then comes the wife filing a petition under Section 498-A of IPC and initiating proceedings under Section 125 Cr.P.C. However, mere filing of the petition, taking action for legitimate rights will not be amounting to cruelty. It is not brought on record that the allegations in the petition were of such grave nature, that they necessitated separation and perpetual severance between the parties.

Bombay High Court

Sandip vs Aruna on 5 March, 2009

Bench: K.U. Chandiwal

Citation;2009(6) MHLJ961 Bom

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Good study material on matrimonial law and family court

https://drive.google.com/file/d/0B5vWGtQ14k1BeHhhc3dVX1ZzLW8/view?usp=sharing

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Whether it is necessary to decide issue of jurisdiction prior to grant of divorce?

A Bombay High Court Bench at Nagpur, comprising Justice Vasanti A. Naik and Justice Prasanna B. Varale recently mulled over the question whether a couple having their native place in particular city or state file for divorce in family court situated in another city or state. The Court ruled that when such a question is raised, the family court must first address the issue of jurisdiction, before proceeding with the case.

The Bench observed, “Firstly, it was necessary for the Family Court to frame the issue of jurisdiction and then permit the parties to tender evidence, both, oral and documentary, on the issue of jurisdiction. It is a well established position of law that the jurisdiction of the Court cannot be decided on the written statement or the documents tendered by the parties.”

The Court was hearing the case of a couple who had been divorced by judgment dated September 26, 2013. The Divorce petition was filed by the husband on grounds of cruelty and desertion.

The wife had challenged the Family Court verdict, seeking a remand of the matter to the Family Court, Nagpur, on the ground that the Family Court did not have jurisdiction to entertain the Hindu Marriage Petition filed by the husband.

According to the wife, since no cause of action arose at Nagpur, the Family Court, Nagpur did not have jurisdiction to entertain and decide the petition. The wife also denied the allegations made against her in respect of cruelty and desertion.

She submitted before the High Court that the marriage between the parties was solemnized in a Temple in Kolhapur district and the parties last resided together at Belgaum. It was further confirmed by the husband’s petition that the wife refused to join the Company of the husband at Nagpur.

The Court noted that despite the specific objection of the wife that the Petition should not be entertained by the Family Court, Nagpur, the Court did not frame the issue in regard to the jurisdiction of the Court. Without framing such an issue, the Family Court proceeded on the assumption that it held jurisdiction to entertain the petition.

Accepting the contentions put forward by the wife, the High Court observed, “It is rightly stated on behalf of the wife that it was necessary for the Family Court to have framed the issue of jurisdiction and if the same was answered in favor of the husband, then only the Family Court ought to have proceeded to decide the Hindu Marriage Petition, on merits.”

 The Court hence set aside the Family Court’s judgment and remanded the case back to the Family Court for framing and deciding the issue of jurisdiction and then proceeding to decide the Hindu Marriage  Petition if the issue is answered in favor of the husband.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

FAMILY COURT APPEAL No. 333/2014

Kalpana  Gorakhnath Dhone,Vs Shri Gorakhnath Govinda Dhone,

CORAM : SMT. VASANTI A. NAIK AND

   PRASANNA B. VARALE, JJ.

DATE :  JULY        8,     2015.

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Basic concept of taking advantage of his own wrong in matrimonial law

There is no obligation cast by the statute on the party praying
for the relief of dissolution of marriage that he/she should call upon
other party against whom decree of restitution of conjugal rights has
been passed to satisfy the decree and that being so, it cannot be
said that the party asking for divorce on such ground has committed
wrong if he is not followed the said course. In order to constitute the
“wrong”, within the meaning of Section 23 (1) (a) of the said Act, it
has to be something more than mere disinclination of the petitioner husband
to agree to or an offer of re-union after filing of divorce
petition. The alleged misconduct must be serious enough to justify

the denial of the relief to which the petitioner is otherwise entitled to.
The word “wrong” envisaged under Section 23 (1) (a) of the Act has
to be a “wrong” of a kind different from a mere conduct of refusing to
resume conjugal relationship after passing the decree of restitution of
conjugal rights. In our considered opinion, the learned Judge of
Family Court, Aurangabad has thus taken a wrong view that refusal
of petitioner-husband to take back respondent-wife after institution of
divorce proceeding and not taking any steps for restitution of
conjugal rights during or after the statutory period is over, would
constitute a ground for refusing decree of divorce. There is nothing
on record to show that after passing decree of restitution of conjugal
rights and before making petition for divorce, the petitioner-husband
had created obstruction in complying with the decree by the wife or
that the petitioner-husband wanted that the decree should not be
complied with so that he may obtain divorce on the basis of said
decree for restitution of conjugal rights. In our considered onion, the
petitioner-husband is not in any way taking advantage of his own
wrong in this case. Thus, we are not inclined to hold that the
petitioner-husband has resorted to proceeding for restitution of
conjugal rights only as device to obtain the decree of divorce.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FAMILY COURT APPEAL NO. 32 OF 2004

Arun s/o Narayanrao Marathe Vs Varsha w/o Arun Marathe


CORAM : R.M. BORDE AND
V. K. JADHAV, JJ.

Dated :14.10.2014

Citation;2015(2)MHLJ400

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