Whether High court can entertain petition for appointment of guardian of person of the minor in its original jurisdiction at Mumbai?

  The judgment of the Full Bench leaves no room for doubt that the High Court must be considered as a District Court for the purposes of the Family Courts Act and since the Family Courts have been established in the city of Mumbai, a Guardianship Petition for the custody or access to any minor would lie in the Family Court. The Guardians and Wards Act was enacted in 1890 and the High Court exercising its Ordinary Original Civil Jurisdiction is considered a District Court under that Act. The High Court's jurisdiction has been ousted in the light of the provisions of the Family Court Act in case of guardianship proceedings instituted by a relative of a minor for guardianship of the minor's person. Such a proceeding clearly falls within the purview of Section 7 of the Family Courts Act. Therefore, only the Family Court would have jurisdiction in view of the provisions of Section 20, By virtue of Section 20, the Family Courts Act has an overriding effect over any other law. However, the High Court will continue to exercise its Ordinary Original Civil Jurisdiction in respect of petitions relating to the guardianship of the property of a minor.{11}

12. In my opinion, therefore, a Guardianship Petition seeking guardianship of the person of a minor filed by either the parents or any relative of a minor would lie before the Family Court, irrespective of whether there is a matrimonial dispute pending before that Court. The Petition in the instant case, therefore, is not maintainable before this Court exercising its Ordinary Original Civil Jurisdiction and is accordingly, returned to the petitioner for presenting the same before the appropriate Court.

Bombay High Court

Girish J. Bobade vs Ajay Thakur And Ors. on 22 December, 2005

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Whether High court can entertain the matrimonial matter as the court of Original Jurisdiction at Mumbai if it comes within the family court's jurisdiction?

 The plea with regard to the Family Court is raised on the basis of the provisions of section 2(e) along with section 8 of the said Act. Exclusion of jurisdiction of the Civil Court will also have to be considered. Section 2(e) reads as under:

"2(e) all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure, 1908 (5 of 1908) shall have the meanings respectively assigned to them in that Code."

Relevant portion of section 8 reads as under :

"8. Exclusion of jurisdiction and pending proceedings.---

(a) no District Court or any Subordinate Civil Court referred to in subsection (7) shall in relation to such area have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;"

5. Reference to District Court or any Subordinate Civil Court may in the aforesaid portion of the said section 8 will therefore have to be understood with reference to the Code of Civil Procedure. Section 2(4) of the Code reads as under:

"2(4) district means the local limits of the jurisdiction of a principal Civil Court of Original Jurisdiction (hereinafter called a "District Court") and includes the local limits of the ordinary original civil jurisdiction of a High Court."

28. Virtually, the litigation before the Family Court is a mixture of inquisitorial trial, participatory form of grievance redressal and adversorial trial.

As the Family Court is left to devise its own practice, it can have a judicious mixture of all three of them and can as well proceed under any of- them exclusively.

29. The anomaly would thus be obvious. The Ordinary Original Civil Jurisdiction is held to be retained as per the learned Judges of the Division Bench and the learned Judges of the Full Bench of the Madras High Court. The procedure will be in accordance with the respective rules of the High Court on its Original Side. When legal representation being a certainty with all trapping of a full-fledged trial and the Evidence Act, 1872 will apply with force and rigour.

30. The litigants deciding to litigate within the limits of the City of Mumbai will thus continue to operate under the existing system. The litigants other than that litigating with new system will have the benefit of the aforesaid Family Courts Act which with reference to the aforesaid changes brought about in the conduct of the matters before the Family Court is clearly radical departure from the accepted form of a trial of a Civil Court. If the legislature in its wisdom has decided to make this departure while interpreting any provision of it, in our opinion, the interpretation should be in furtherance of the objective.

31. When thus interpreted, in our opinion, the conclusion would be inescapable that when the High Court exercises its Ordinary Original Civil Jurisdiction in relation to the matters under the Family Court Act, it would be a District Court as understood therein. It would, therefore, lose its jurisdiction. The reference is answered accordingly.

Bombay High Court

Romila Jaidev Shroff vs Jaidev Rajnikant Shroff on 5 May, 2000

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Whether court directing wife to undergo gender detection test amounts to a violation of her right to privacy?

This petition has been filed by the petitioner/wife under Article 227 of the Constitution of India against the orders dated 16.8.2018 as also order dated 25.9.2018 passed in Case No. 112-A/2017 by the Principal Judge, Family Court, Jabalpur, whereby the learned Judge, by accepting an application filed by the respondent husband under Section 151 of CPC has directed that the gender of the petitioner be verified by a Government lady doctor and vide order dated 25.9.2018, the petitioner is directed to keep herself available for medical examination on 10.10.2018 before the Dean, Netaji Subhash Chandra Bose, Medical College, Jabalpur.

This Court is of the considered opinion that if any evidence having a nexus with the lis between the parties, should be allowed to be produced. In a matrimonial dispute, if gender of one of the parties is questioned by the other party, it assumes importance and the party raising such issue also has a right to adduce the evidence in this behalf and the other party, to rebut the same. This Court is conscious of the fact that one's sex/gender is one's own business, but when it comes to marriage, the other partner's rights are also closely attached with the same, as it assumes importance to maintain a healthy and peaceful married life, and since he or she also has a fundamental right to life under Article 21 of the Constitution of India, the rights of both the parties are evened out. In such circumstances, the plea of violation of privacy or any fundamental right is not tenable.

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

Misc. Petition No. 4820 of 2018

Decided On: 04.10.2019

 Surbhi Trivedi  Vs.  Gaurav Trivedi

Hon'ble Judges/Coram:

Subodh Abhyankar, J.

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Whether Widow is liable to pay court fees in partition suit filed against her brother in law?

 A petition for probate of a Will is neither a petition in relation to any 'property dispute' nor does it 'arise out of or concern a matrimonial matter.'

c) A petition for probate of a Will is never a petition in relation to any dispute concerning any property but is in relation to the validity or otherwise of a Will. The judgment of the Supreme Court in the case of Delhi Development Authority v. Mrs. Vijaya Gurshaney and Anr., MANU/SC/0632/2003 : A.I.R. 2003 S.C. 3669, which Deshmukh J. referred to in his judgment of 4/6/2007 clearly brings to light the aforementioned view, wherein it was held that a testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will and grant of a probate or Letters of Administration does not confer title to property.

d) As rightly contended by the learned Advocate General, Mr. Ravi Kadam, on behalf of the state, testamentary cases do not arise out of matrimonial matters but rather arise out of 'death'.

C) Furthermore it is pertinent to differentiate between matrimonial matters and matrimonial relationship as the two terms are not synonymous and hence the term 'matrimonial matters' arising in the Notification of 23/3/2000 cannot be replaced by 'matrimonial relationship' so as to bring a petition filed by a widow for probate of her deceased husband's Will, within the ambit of the Notification.

D) Lastly, the words 'property dispute arising out of or concerning matrimonial matters' should be given their plain and simple meaning, that is, a dispute arising between parties to a marriage, (attention may be brought to the reference made by Deshmukh. J. to the Family Courts Act sub-section (1) section 7 to elucidate the meaning of the term 'matrimonial matters') and should therefore exclude testamentary petitions wherein not only is there an absence of a dispute, other than in cases when somebody files a caveat, it is not a matter between two parties to a marriage."

14. Learned Advocate for the plaintiffs, in the matter in hand, has contended that since the husband of plaintiff No. 4 has passed away, her claim for partition and separate possession can be considered to be a matrimonial dispute since she would not have been required to litigate if her husband would have been alive or would have apportioned his share to her before his death. This contention finds an answer in the conclusions of the learned Division Bench in the Girish Case (supra) in paragraph Nos. 26(B) (d), (C) and (D). It is concluded that even testamentary cases with regard to the death of the husband would not come within the meaning of 'matrimonial dispute'.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 1210 of 2016

Decided On: 15.01.2018

Kailash Satyanarayan Khandal Vs. Vijaykumar Satnarayan Khandal and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2019(1) MHLJ 737

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What is appropriate stage for referring dispute to mediation in Family disputes?

Having regard to the provisions of Section 89 and Rule 1A of Order 10, the stage at which the court should explore whether the matter should be referred to ADR processes, is after the pleadings are complete, and before framing the issues, when the matter is taken up for preliminary hearing for examination of parties under Order 10 of the Code. However, if for any reason, the court had missed the opportunity to consider and refer the matter to ADR processes under Section 89 before framing issues, nothing prevents the court from resorting to Section 89 even after framing issues. But once evidence is commenced, the court will be reluctant to refer the matter to the ADR processes lest it becomes a tool for protracting the trial.

30. Though in civil suits, the appropriate stage for considering reference to ADR processes is after the completion of pleadings, in family disputes or matrimonial cases, the position can be slightly different. In those cases, the relationship becomes hostile on account of the various allegations in the petition against the spouse. The hostility will be further aggravated by the counter-allegations made by the respondent in his or her written statement or objections. Therefore, as far as Family Courts are concerned, the ideal stage for mediation will be immediately after service of respondent and before the respondent files objections/written statements. Be that as it may.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6000 of 2010 (Arising out of SLP (C) No. 760 of 2007)

Decided On: 26.07.2010

Afcons Infrastructure Ltd. Vs.  Cherian Varkey Construction Co. (P) Ltd. and Ors.

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When decree for restitution of conjugal rights will not be granted against wife?

 On perusal of the aforesaid section, it will appear that the

provision requires that if one of the parties i.e. either the husband

or the wife withdraws from the society of the other and that too

without any reasonable excuse, then the petition for restitution of 

conjugal rights filed by the other side would be maintainable and

once the Court holds that there was no reasonable excuse for

withdrawal of one of the parties from the society of the other, it

may pass a decree of restitution of conjugal rights accordingly. It

is the party withdrawing from the society of the other side who

has to prove that there is reasonable excuse for him/her for such

withdrawal and the burden of proof would lie on him/her.

12. However, a wife cannot be compelled to stay with her husband or

her in-laws in adverse circumstances, particularly when she has

been physically and mentally tortured and has not been properly

treated with love and affection by her husband and the in-laws.

She has to lead her life in a dignified manner in the house of her

in-laws and any kind of willful conduct on the part of the husband

or her in-laws, which shakes the confidence of the wife including

the fact that her life would be under threat, may be sufficient for

her to withdraw from the society of her husband and stay

separately.

13. No doubt, the burden is on the party, who has withdrawn from the

society of the other to prove the reasonable excuses, but strict

proof of such matter should not always be insisted upon,

inasmuch what would be the proper reasonable excuse for a party

to withdraw from the society of the other would depend upon the

facts and circumstances of each case and no straight jacket

formula can be laid down. It may vary from house to house or to

person to person. It all depends upon the type of the life the

parties are accustomed to or their economic and social conditions.

It may also depend upon their culture and human values to which

they attach importance. In some cases, even a single incident

would be sufficient for a party to withdraw from the society of the

other. For example, if a wife does not feel safe in the company of

her husband and in-laws and her life is in danger and she is

physically and mentally tortured in connection with the demand of

dowry or the husband brings unfounded allegations against her

character or keeps illicit relationship with another lady then the

wife would certainly be justified in withdrawing from the company

of the husband. These grounds are not exhaustive, but have been

given by way of mere illustration.

JHARKHAND HIGH COURT

F A No.172/2011

Smt. Rita Prajapati 

V

Sanjay Kumar, 

P R E S E N T

E MR. JUSTICE SHREE CHANDRASHEKHAR

 MR. JUSTICE RAJESH SHANKAR

Citation: AIR 2017 Jharkhand 41

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Whether examination in chief of wife can be relied on if she fails to remain present for cross examination?

 In a matrimonial dispute, testimony of the contesting spouse to refute
the accusations made in the pleadings in divorce petition plays a major role.
In the instant case, unfortunately the wife (RW-1) failed to appear at the
relevant stage to conclude her cross-examination. Learned Judge, Family
Court has noted, and rightly so, that her incomplete statement cannot be read
in evidence. Now we are left with remaining seven witnesses examined by
her. They are not going to have any significant effect on the defence of the
wife.
 IN THE HIGH COURT OF DELHI AT NEW DELHI

Dated: September 06, 2016
 MAT.APP.(F.C.) 15/2015
GEETA PANDEY 
v
SHEKHAR PANDEY 
CORAM:
 MR. JUSTICE PRADEEP NANDRAJOG
 MS. JUSTICE PRATIBHA RANI
Citation: AIR 2017 Delhi 70

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When corroboration is not required to prove intimate facts about spouses in matrimonial matters?

As noticed above, in matrimonial cases, the approach of the courts is
different from that adopted in other cases. In Suman Singh (supra), the 
Division Bench while relying upon A v. B (supra) observed that the nature
of proof required in matrimonial matter is different, considering the fact that
matters relating to the private intimate life of the parties are not supposed to
be known to other persons, and no corroboration can be expected in such
cases. To seek a corroboration to a fact pertaining to health of the intimate
relationship - which belongs to the sacred and secret precincts of marital life,
and which are known only to the spouses to the exclusion of all others,
would amount to shutting one’s eye towards the facts of life and reality.
Corroboration, therefore, to the version of either spouse on such aspects, can

hardly be expected to come from any other independent source.

 IN THE HIGH COURT OF DELHI AT NEW DELHI
 Judgment delivered on: 22.03.2016
 MAT. APP. 68/2012
SA ...Appellant
 versus
AA ..... Respondent
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
Citation: 2016 (3) ALLMR(JOURNAL)60

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Whether Husband and wife can be permitted to resile from compromise which was acted upon?

During pendency of this MATA, it appears that both
the parties have settled the matter. In fact, pursuant to our
direction dated 14.1.2016, both the appellant and respondent
appeared in person on 18.1.2016. Though, the respondent stated
that by way of compromise, he has paid Rs.7,00,000/- to the
appellant, the appellant disputed the same. However, on being
questioned in open Court in presence of her father and her
counsel, the appellant stated unequivocally that she had accepted
Rs.3,00,000/- by way of compromise of the lis. In such
background, according to our considered opinion, nothing
remains to be adjudicated in the present appeal as the
compromise entered into between both the spouses is complete
and acted upon and hence they are bound by the compromise and
they cannot resile from the same.
ORISSA HIGH COURT, CUTTACK
MATA NO.128 of 2015

Stm. Monisha Sharma v  Sri Ashis Sharma 
Date of Order: 22.01.2016

P R E S E N T:
MR. JUSTICE VINOD PRASAD
AND
 MR. JUSTICE BISWAJIT MOHANTY
Citation: AIR 2016(NOC) Orissa

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Whether court can refuse to hear a person on merit if he fails to pay interim alimony in matrimonial litigation?

Where the maintenance pendente lite was not paid in pursuance to an order passed under the Act, this Court in Krishan Kumar v. Monika Grover 2011(6) RCR (Civil) 121 held that the erring spouse was disentitled to be heard on merits for disobeying the order of the court with the following observations:-

"In Rani's case (supra), this court allowed appeal filed by wife against decree of divorce after the defence of the husband was struck off on account of non- payment of maintenance as fixed under section 24 of the act. Relevant para 7 of the judgment is extracted below:-

"No doubt, wife can file a petition under Order 21 Rule 37 Civil Procedure Code for the recovery of this amount and the husband can be hauled up under the contempt of Courts also for disobedience of the aforesaid Court's order, but Section 24 of the Act empowers the matrimonial Court to make an order for maintenance pendente lite and for expenses of proceedings to a needy and indigent spouse. If this amount is not made available to the applicant, then the object and purpose of this provision stand defeated. Wife cannot be forced to take time consuming execution proceedings for realising this amount. The conduct of the respondent-husband amounts to contumacy. Law is not that powerless as to not to bring the husband to book. If the husband has failed to make the payment of maintenance and litigation expenses to the wife, his defence can be struck out. No doubt, in this appeal he is respondent. His defence is contained in his petition filed under Section 13 of the Act. In a plethora of decisions of this Court in Smt. Swarno Devi v. Piara Ram, 1975 HLR 15; Gurdev Kaur v. Dalip Singh, 1980 HLR 240; Smt. Surinder Kaur v. Baldev Singh, 1980 HLR 514; Sheela Devi v. Madan Lal,1981 HLR 126 and Sumrati Devi v. Jai Parkash, 1985(1) HLR 84 it is held that when the husband fails to pay maintenance and litigation expenses to the wife, his defence is to be struck out. The consequence is that the appeal is to be allowed and his petition under Section 13 of the Act is to be dismissed."

Punjab-Haryana High Court

Pawan Kumar vs Goldy on 19 January, 2015

Citation;AIR 2015 (NOC)602 P&H

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How to appreciate evidence of child witness in dispute between father and mother?

Sweety, daughter of the parties, stepped into the witness box on 4.10.2002 and her age at that time was little above 14 years. The pregnancy of the respondent for the second time came to light in the first week of September 1996 at which time the child was 8 years old. However, appearing in the witness box, the child said that her mother was taken by her father to PGIMS Rohtak for delivery. She also gave the exact dates of not attending her school, the months in which her mother was allegedly beaten by her father and the date on which the appellant had allegedly asked her mother to withdraw the entire amount from the bank account. She gave specific dates when the appellant asked the respondent to bring all the money lying deposited at Jind and Hansi. How a child who was only 9 years old at that time could give the exact dates is beyond comprehension. Rather this goes to show that Sweety was thoroughly tutored by her mother before she appeared as a witness. In the cross examination she showed ignorance about her parents having lived separately from her grand-parents. Interestingly, she was able to give dates which she was not supposed to remember but she could not tell whether they were residing separately in Jind from the parents of the appellant or not. It is not believable that she did not know that her grand parents were living in the same city i.e. Jind where she was liviig for some time with her parents in a separate house. She, further down in the cross examination, stated that she used to be in the house of her grand-father or paternal aunt, till her mother returned to Jind from her duty and also stated that it took less than 10 minutes on two-wheeler to reach their rented house from the house of her grand-parents. She therefore knew that they were living separately from the grand-parents but earlier in the cross examination she said that she did not know about it. The statement of the girl, therefore, cannot be given much credence. She said that she did not know that her birthday was celebrated on 10.7.1996 and photographs were clicked. Surprisingly, she remembers the dates on which her father asked her mother to withdraw money from the bank and all the dates when her mother was allegedly beaten but she does not remember the celebration of her birthday. Nothing more is required to prove that she was a tutored witness. She being intelligent, could manage some of the answers in the cross examination but at other places she made it obvious that the entire statement was not voluntarily made and she was tutored by her mother in that regard.

Punjab-Haryana High Court

Jai Gopal vs Maya Rani on 22 August, 2014

CORAM:        HON'BLE MR. JUSTICE S.S. SARON
              HON'BLE MS. JUSTICE NAVITA SINGH

Citation;AIR 2015(NOC)375(P and H)

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When court should not strike off defence in matrimonial matter?

 Now, we make a reference to the decision of this Court in
the case of Vimi Vinod Chopra. In our view, the said decision does not

help the Respondent husband. As noted earlier, drastic order under Rule
11 of Order XXXIX can be passed only if the Court comes to the
conclusion that there is a wilful disobedience of the orders by a party.
Mere breach or mere failure to abide by the order does not attract Rule
11 of Order XXXIX. The learned Single Judge in the said decision has
recorded a finding in the facts and circumstances of the case before her
that the wife has committed a complete breach of the order of access.
In the facts of the case, the learned Judge came to the conclusion that it
was a drastic case of complete and wilful default. Hence, the said
decision will have no application. In the present case, no specific finding
of wilful breach of the order has been recorded. As of the date of
impugned order, it was not a fit case to pass a drastic order under Rule
11 of order XXXIX. Therefore, the impugned order will have to be set
aside. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.20 OF 2013
WITH
CIVIL APPLICATION NO.40 OF 2013
AND
CIVIL APPLICATION NO.214 OF 2013
IN
FAMILY COURT APPEAL NO.20 OF 2013
Mrs. Kavita Krishnamurthy … Appellant
V/s.
Shri. K.N. Krishnamurthy … Respondent
CORAM : A.S. OKA &
A.S. GADKARI, JJ.
DATE : 9th DECEMBER, 2014
Citation; 2015(2) ALLMR 807

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Whether it is mandatory for family court to send matrimonial matter for mediation if the prayer is to declare the marriage as null and void ab initio?

The Family Court Judge, having briefly noticed the facts of the case, passed the impugned order. The relevant portion reads thus:

"When the prayer is to declare the marriage as null and void ab initio such a matter cannot be referred to mediation. The law cannot given in the hands of parties to decide by themselves as to what is a nullity and what is a fraud the plea that a party to a marriage certainly needs recording of evidence and does not depending upon then say of the party. Thus on facts it is not a proper case to exercise discretion to refer to the mediation. With regarding to the Ruling cited in para 18 it is held cases involving allegation of fraud coercion are not suitable for ADR process. In para No.19(ii) it is held that all case arises from disputes relating to matrimonial causes may be referred to but in para No.19(v) it is suitable clarified that the enumeration of suitable and categorization of cases is not intended to exhaustive or rigid. They are illustrative which can be subjected to just exceptions of the court exercising the discretion. Thus I am afraid to misapply the said ruling and refer the matter to mediation."

 On a careful reading of the impugned order, it is clear that not only the relevant statutory provisions but also the settled position of law, by catena of decisions, including that of AFCONS INFRASTRUCTURE LTD., which was brought to its notice, has not been appreciated. Theimpugned order, extracted in para 2 supra, is diametrically opposite to the elucidation of law made in AFCONS INFRASTRUCTURE LTD.

23. S.89 CPC enables the Court to refer the subject matter of a case to either of the five Alternative Disputes Resolution processes shown therein. Except, Arbitration, the four other processes are non-adjudicatory dispute resolution processes, wherein, there is no decision, but there can only be a settlement by mutual consent of the parties.

24. In the instant case, the Family Court has not acted in a manner which is required of it, having regard to the jurisdiction vested on it, under the Act, particularly S.9, which casts a duty to assist and persuade the parties to arrive at a settlement by referring them to alternative dispute resolution processes of conciliation and / or mediation. The Family Court Judge has not shown a human approach which he is expected to have while dealing with the matrimonial dispute, since, the marriage is an institution of great social relevance. The impugned order is against the spirit of the Act and also settled position of law.

Karnataka High Court

Bhavana Ramaprasad vs Yadunandan Parthasarathy on 31 October, 2014

Author: A.N.Venugopala Gowda

Citation;AIR2015 Karnat6

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Whether power of attorney can give evidence on behalf of Spouse in matrimonial proceeding?

 In our view, the appellant cannot be permitted to give his evidence through his power of attorney. During the course of hearing, we pointedly asked the learned counsel for the appellant as to whether his client is willing to come to India to give evidence so that the Court may consider the question of remanding the matter to the trial court and allow him to lead evidence. He, however, frankly submitted that his client is not willing to come to India at all. Considering the said aspect, in our view, no useful purpose will be served even if the matter is remanded to the trial Court permitting him to lead his evidence. The appellant must adduce his evidence which are within his personal knowledge. In our view, in a matrimonial matter, the presence of spouses before the Court is a vital as there are certain aspects which are only within the personal knowledge of the spouse. In fact, it is the duty of the Family Court under Section 9 of the Act to make efforts for settlement. The power of attorney cannot give evidence regarding the facts which are only within the personal knowledge of either of the husband or wife. Since Mr. Pradhan has fairly submitted that the appellant is not willing to come to India at all and to lead evidence before the Family Court, in our view it is not necessary to interfere with the order of the Family Court by remanding the matter back to the trial Court. As stated earlier, even the Advocate cannot give any evidence on behalf of the appellant as there are certain facts which can be within the knowledge of the appellant.1

Bombay High Court

Rajiv Dinesh Gadkari, Aged About ... vs Smt. Nilangi Rajiv Gadkari, Aged ... on 16 October, 2009

Bench: P. B. Majmudar, R. V. More

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Whether woman litigant is entitled to get exemption from payment of court fees in partition suit if her husband is alive?

Bombay Court Fees Act, (1959) S.46 – Court

fee – Exemption to woman litigant – Challenge

– Wife claimed partition of ancestral properties

while husband was alive – Dispute is not

“matrimonial” – Exemption not justified – Also

because no reasons are assigned for granting

impugned exemption. Vijay Mohan Jagtap Vs.

Sau. Sindhubai Mohanrao Jagtap 2011(6) ALL

MR 498

The facts of the case cited by the Counsel for the petitioner in the case of Prabhakar (supra) are similar to the facts in the present case. This Court, in the cited judgment, has taken a view that if the suit is filed for declaration and partition along with separate possession in respect of ancestral properties, in that case, the dispute is outside the realm of expression "matrimonial dispute".

Bombay High Court

Vijay S/O Mohan Jagtap vs 5 Sau.Sharda Balasaheb Lonkar on 22 September, 2011

Bench: S. S. Shinde

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How to appreciate evidence in matrimonial dispute?

 Presently, to the core issue, viz, whether the appellant-husband had made out a case for mental cruelty to entitle him to get a decree for divorce. At this juncture, we may unhesitantly state that the trial court as well as the first appellate court have disbelieved the evidence of most of the witnesses cited on behalf of the husband on the ground that they are interested witnesses. In a matrimonial dispute, it would be inappropriate to expect outsiders to come and depose. The family members and sometimes the relatives, friends and neighbours are the most natural witnesses. The veracity of the testimony is to be tested on objective parameters and not to be thrown overboard on the ground that the witnesses are related to either of the spouse. Exception has been taken by the courts below that the servants of the house should have been examined and that amounts to suppression of the best possible evidence. That apart, the allegations made in the written statement, the dismissal of the case instituted by the wife under Section 494 of the Indian Penal Code, the non-judging of the material regard being had to the social status, the mental make-up, the milieu and the rejection of subsequent events on the count that they are subsequent to the filing of the petition for divorce and also giving flimsy reasons not to place reliance on the same, we are disposed to think, deserve to be tested on the anvil of “perversity of approach”.

Supreme Court of India

Vishwanat vs Sau. Sarla Vishwanath Agrawal on 4 July, 2012

Author: D Misra

Bench: Altamas Kabir, J. Chelameswar

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