Whether attester of a will is entitled to receive benefits under that same will ?

 Legal Framework under the Indian Succession Act, 1925

The question of whether an attesting witness (attester) to a will can receive benefits under that same will is governed by Section 67 of the Indian Succession Act, 1925. The Act lays down specific rules on this issue, and the answer depends on both the religion of the testator and the role of the witness.

General Rule: Bequest to Attesting Witness Is Void

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When court should not give divorce on ground of unsoundness of mind of other spouse?

 From the above evidence, we are of the view that, it is difficult to assume that a case of unsoundness of mind as required by the statute, has been made out. As has been pointed out by the Hon'ble Supreme Court, mere unsoundness of mind cannot by itself constitute a ground for divorce. The unsoundness of mind should be to such an extent that it should be incurable that other spouse cannot be reasonably expected to live with the person who is alleged to be mentally unsound.

22. We have examined the evidence on record and the cumulative effect of the evidence on record leads us to believe that the husband has not made out a case for grant of divorce on the ground of unsoundness of mind. There might have been hiccups in the family but that by itself cannot lead to a presumption that the wife is of unsound mind, which is incurable and it is of such gravity that the husband cannot be expected to live with her. Even the doctor, examined by the husband namely, P.W. 2 has deposed that the disease can be controlled. He would further depose that the wife is capable of discharging her marital obligations. He would also state that with medication she can lead normal life. The husband has also admitted that he had led a normal family life, as a result a male child was born on 12.07.2002. These vital admissions, according to us, would go against the claim of the husband that the wife is suffering from incurable unsoundness of mind.

IN THE HIGH COURT OF MADRAS

C.M.A. No. 990 of 2008 and Crl. R.C. No. 1353 of 2007

Decided On: 20.12.2016

 T. Jagedeeswari and Ors.

Vs.

 Anand

Hon'ble Judges/Coram:

Pushpa Sathyanarayana and R. Subramanian, JJ.

Citation:AIR 2017 (NOC) 415MAD

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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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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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Whether one spouse can get exparte divorce decree set aside after death of other spouse?

Learned Counsel for the appellant submitted one objection in connection with such proceedings. He submitted that if such an action survives and the challenge to a decree ex parte or bipartite for divorce is found to be maintainable at the instance of the aggrieved spouse against whom the decree has been passed then persons who are non-spouses will have to be joined in the litigation and this would go counter to Section 13 of the Hindu Marriage Act. This difficulty is more imaginary than real. Once a divorce decree is passed, the stage of launching any petition under Section 13(1) does not survive. It is true that Section 13 of the Hindu marriage Act lays down that marriage whether solemnised before or after the commencement of the Act may be dissolved by a decree of divorce on the grounds mentioned therein on a petition presented by either the husband or the wife, thus, initially when such petition is to be presented. The person who presents such petition must be either wife or husband and the other party would be the other spouse. But once these proceedings are initiated by the concerned aggrieved spouse, the trial then proceeds further. It is of course true that pending such trial if either of the spouses expires then, as seen earlier, the personal cause of action against the husband or the wife, as the case may be, dies with the departing spouse. As no rights are still crystallized by then against or in favour of either spouse, no proprietary effect or any adverse effect on the status of the parties would get generated by mere filing of such petition and the status quo ante would continue to operate during the trial of such petition. However the situation gets changed once a decree of divorce follows in favour of either of the spouses whether such decree is bipartite or ex parte. Thereafter, as noted earlier, direct legal consequences affecting the status of parties as well as proprietary rights of either of them, as noted earlier, would flow from such a decree. Under these circumstances, if the aggrieved spouse who suffers from such legal effects of the adverse decree against him or her is told off the gates of the appellate proceedings or proceedings for setting aside such ex parte decree, the concerned spouse would suffer serious legal damage and injury without getting any opportunity to get such a decree set aside on legally permissible grounds. Consequently, it may be held that once the petition under Section 13 of the Hindu Marriage Act results into any decree of divorce either ex parte or bipartite then the concerned aggrieved spouse who suffers from such pernicious legal effects can legitimately try to get them reversed through the assistance of the court. In such an exercise, all other legal heirs of deceased spouse who are interested in getting such a decree maintained can be joined as necessary parties. Section 13(1) of the Hindu Marriage Act can obviously come in the way of such proceedings being maintained against the legal heirs of the decree-holder spouse. A mere look at the ground of Section 13(1) will show that a Hindu marriage can be dissolved on the proof of matrimonial misconduct of very serious nature as mentioned in the concerned grounds, namely, that the offending spouse, after the solemnization of the marriage, has voluntary sexual intercourse with any person other than his or her spouse; or has treated the petitioner with cruelty; or has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or has ceased to be Hindu by conversion to another religion; or has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder; or has been suffering from a virulent and incurable form of leprosy; or has been suffering from venereal disease in a communicable from; or has renounced the world by entering any religious order or has not been heard of as being alive for a period of seven years or more. These grounds of say the least, if found established, against the offending spouse would be serious matrimonial misconducts or incapability's and such a spouse will go with a stigma for the rest of his or her life which will have serious pernicious consequences only special but also legal, as we have noted earlier. If a decree of divorce on these grounds whether ex parte or bipartite is not permitted to be challenged by the aggrieved spouse, it would deprive the aggrieved spouse of an opportunity of getting such grounds re-examined by the competent court. It cannot, therefore, be said that after a decree of divorce is passed against a spouse whether ex parte or bipartite such aggrieved spouse cannot pi safer an appeal against such a decree or cannot move for getting ex parte divorce decree set aside under Order IX Rule 13 C.P.C. Such proceedings would not abate only because the petitioner who has obtained such decree dies after obtaining such a decree. The cause of action in such a case would survive qua the estate of the deceased spouse in the hands of his or her heirs or legal representatives. Consequently in such appellate proceedings or proceedings under Order IX Rule 13 C.P.C, other heirs of the deceased spouse could be joined as opposite parties as they would be interested in urging that the surviving spouse against whom such decree is passed remains a divorcee and is not treated to be a widow or widower of the deceased original petitioners so that she or he may not share with other heirs the property of deceased spouse. So far as the other heirs of the deceased spouse are concerned, they would certainly be interested in getting the decree of divorce confirmed by the appellate court or by the Trial Court by opposing application under Order IX Rule 13 C.P.C. if it is ex parte decree against the concerned spouse. It must, therefore, be held that when a divorce decree is challenged by the aggrieved spouse in proceedings whether by way of appeal or by way of application under Order IX Rule 13 C.P.C. for setting aside the ex prate decree of divorce, right to sue survives to the aggrieved surviving spouse if the other spouse having obtained such decree dies after the decree and before appeal is filed against the same by the aggrieved spouse or application is made under Order IX Rule 13 by the aggrieved spouse for getting such an ex parte decree of divorce set aside. Similarly, the right to sue would also survive even if the other spouse dies pending such appeal or application under Order IX Rule 13 C.P.C. In either case proceedings can be continued against the legal heirs of the deceased spouse who may be interested in supporting the decree of divorce passed against the aggrieved spouse.

 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9852 of 1996.

Decided On: 08.10.1996

Smt. Yallawwa  Vs. Smt. Shantavva

Hon'ble Judges/Coram:

N.P. Singh and S.B. Majmudar, JJ.

Citation : AIR 1997 SC 35

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Whether Infidelity, By Either Spouse, Is On Equal Footing?

 The discussion of the evidence regarding the respondent alleging
that the appellant was interested more in other girls and less in him, an
allegation which falls far short of a plea of adulterous relationship, but
material enough to decide the strange matrimonial relationship between
the parties, is in paragraph 58 of the impugned decision. It reads as
under:-
“58. It is settled law that the acts of cruelty with dates and
occasions and the places where such acts were committed
must be specifically mentioned in the petition. The
petitioner has, however, failed to do so. The petitioner has
leveled different baseless allegations and has made no
efforts to prove the same. The petitioner merely claimed
that the respondent has leveled baseless allegations of his
having extramarital affairs with different women/girls and
this caused him cruelty. I am not in conformity with the 
petitioner. It has come over the record that the petitioner
himself had been indifferent towards the respondent. He did
not offer any explanation to the respondent as to why the
girls/women had been calling him. In such circumstances,
she would have thought that the petitioner had extra-marital
relations with other girls/women. It has, however, come
over the record that she has not specified any girl or woman
with whom the petitioner had alleged extra marital
relations. In fact, she has been throughout ready and
willing to join the company/society of the petitioner. If the
respondent had any doubt/suspicion against the petitioner,
that were due to his conduct only and he alone is
responsible for the same. Moreover, the allegations made
against the husband do not in terms of mental torture and
agony necessarily have a similar impact. The reason why a
false charge of unchastity against the wife is viewed
seriously, is because of the high moral ground of which the
fidelity and commitment of Hindu wives is placed towards
the husbands. A false allegation of infidelity made against
the husband can be treated as mental torture only if such
torture is proved as a fact. The social milieu in which the
parties live, their value system and outlook also assume
importance in such a situation.”

10. The finding returned by the learned Judge Family Court against the
appellant proceeds on the assumption that the testimony of the respondent
proves that the appellant was in touch over the telephone with many
women and this was the reason why he was indifferent towards the
respondent. The learned Judge Family Court has held against the
appellant on the ground that the appellant had to render an explanation as
to why so many women were calling him. The learned Judge has held
that the appellant had to remove the suspicion from the mind of his wife.
A gender bias approach to the issue is revealed, when the learned Judge
reasons that unchastity by a wife is to be viewed seriously because a
higher level of fidelity is expected from a wife. An allegation of
infidelity made against the husband cannot be treated as mental torture. 
The approach by the learned Judge is totally perverse and contrary to law.
An act of infidelity by either spouse, irrespective of the gender is on an
equal footing and would cause mental cruelty to the other spouse with the
same intensity. The assumption by the learned Judge that the respondent
has established the appellant being in touch with many women is
incorrect, for the reason it was an allegation made by the respondent
against the appellant and she had to prove the same.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Dated : February 06, 2017
 FAO 366/2012
NAVRATAN BAID v NEETU BAID 
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE YOGESH KHANNA

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Whether one spouse is supposed to maintain logbook to note down matrimonial offences committed by other spouse?

The parties are required to make specific pleadings for the reason that
it enables the opposite party to specifically meet, verify, and if necessary,
challenge/deny the averments/ allegations. Otherwise, the opposite party
would remain in the dark and would not be able to effectively deal with the
accusations, allegations and averments made against him/her.
30. Apart from making the aforesaid specific allegations, the respondent
also made general allegations in his petition with regard to the alleged
general conduct and behaviour of the appellant. It may not always be
possible for a party to make specific allegations with regard to the date,
time, place of occurrence in relation to a generalized conduct, act or
omission – where such conduct is repeated continuously over a period of
time. Thus, the allegations that the appellant used to call the respondent
‘Hathi’ or ‘Mota Hathi’, cannot be given a particular date, time or place of 
utterance as, according to the respondent, such an utterance was repeatedly
made by the appellant. Similarly, it may not be possible to give specific
dates and times in relation to the allegations that the appellant denied sex to
the respondent consistently. When two parties are in a marital relationship,
neither is expected to maintain a logbook and note down therein each and
every instance of matrimonial offence committed by the other. When the
allegation is that a party showed uncooperative attitude towards his/her
spouse and family members; did not show respect to the other spouse and
his family members; misbehaved and abused with the opposite party and his
family members – in respect of such allegations, it may not be possible to
plead a specific date, time or place of occurrence. However, when
intolerable conduct/matrimonial offence manifests itself into an incident
which has larger proportions, the aggrieved party would be able to pin
pointedly – with particulars and details, recite and establish such
matrimonial offence.
 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 court can draw presumption of divorce with first spouse like presumption of marriage?

In so far as submission of Mr.Mandlik, learned counsel for
the respondents that since there was a presumption of law of a valid
marriage between the plaintiff no.1 and the said Namdeo Jadhav in view
of the plaintiff no.1 having stayed with Namdeo Jadhav for a long period
and three children having begotten out of such relationship and thus
there was a presumption of a valid divorce between the plaintiff no.1
and the said Waman Chavan prior to contracting her marriage withNamdeo Jadhav is concerned, I am afraid this submission cannot be
accepted. In my view, no presumption of law can be drawn in respect
of a valid divorce between the parties. The divorce can be granted only
under the provisions of Section 13 of the Hindu Marriage Act, 1955
amongst Hindus on the grounds set out therein unless such divorce is
recognized by custom. In my view, even if the plaintiff no.1 was staying
with the said Namdeo Jadhav for some time and if any issues were
begotten out of such relationship between the plaintiff no.1 and the said
Namdeo Jadhav, even if legal presumption of marriage of the plaintiff
no.1 and the said Namdeo Jadhav is drawn in accordance with law,
presumption of divorce of the plaintiff no.1 with her husband Waman

Chavan cannot be drawn by any Court of law.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.108 OF 1993

Kashibai Namdeo Jadhav  V  Yamunabai w/o Namdeo Jadhav 

 CORAM : R.D. DHANUKA, J.
  PRONOUNCED ON :   25th February 2016
Citation:AIR 2016 (NOC)387 BOM

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Whether court should grant decree for divorce on ground of mental illness of spouse?

 Merely branding a spouse as a schizophrenic is not
sufficient. The degree of mental disorder of the spouse must

be proved to be such that petitioning spouse cannot
reasonably be expected to live with the other. The Supreme
Court in the case of Ram Narain Gupta Vs. Rameshwari Gupta;
reported in AIR 1988 S.C. 2260, has held that the degree of
mental disorder must be proved. It should be such that the
petitioning spouse cannot reasonably be expected to live with
the other. The context in which the ideas of unsoundness of
"mind" and "mental disorder" occur in the section as grounds
for dissolution of a marriage, require the assessment of the
degree of the "mental disorder". Its degree must be such that
the spouse seeking relief cannot reasonably be expected to live
with the other. All mental abnormalities are not recognized as
grounds for grant of decree. If the mere existence of any
degree of mental abnormality could justify dissolution of a
marriage, few marriages would, indeed, survive in law. But the
personality disintegration that characterizes this illness may be
of varying degrees. Not all schizophrenics are characterized by
the same intensity of the disease. The mere branding of a
person as schizophrenic therefore, will not suffice. For the
purpose of Section 13(1)(iii) "schizophrenia" is what
schizophrenia does. According to clause (iii), two elements are

necessary to get a decree. The party concerned must be of
unsound mind or intermittently suffering from schizophrenia or
mental disorder. At the same time that disease must be of
such a kind and of such an extent that the other party cannot
reasonably be expected to live with him. So only one element
of that clause is insufficient to grant a decree."
23 As stated earlier, the respondent has denied that he
was suffering from any such mental illness and according to
him, he was taking medication as he was suffering from stress
and sleeplessness. The respondent has been cross-examined
at length. This averment of the respondent that he did not
suffer from "paranoid schizophrenia" has not been dislodged in
the cross-examination. The respondent has also stated that he
had not given any mental or physical cruelty to the appellant
by giving her abuses and beating. No dent has been created in
this averment in the cross-examination. In view of the above
discussion, in our opinion, the appellant failed to prove that the
respondent-husband treated her with cruelty and her husband
i.e. the respondent is suffering from any mental disorder of
such nature that she cannot be reasonably expected to live

with him. In our view, the evidence of the respondent shows
that there was minor wear and tear of their married life. It is a
settled law that a decree of divorce cannot be granted on
minor wear and tear of married life. Therefore, the appellant is
not entitled to get the decree of divorce on the ground of
cruelty and mental disorder of the respondent as per Section
13(1)(i-a) and 13(1)(iii) of the Hindu Marriage Act, 1955.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 136 OF 2013
Mrs. Hemali Bindesh Kelaiya ]

Vs.
Mr. Bindesh Jayantilal Kelaiya ]

CORAM : SMT.V.K.TAHILRAMANI AND
V.L. ACHLIYA, JJ.

DECLARED ON : JANUARY 21, 2014
Citation; 2015(4) ALLMR313

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When mental illness of spouse can be proved by xerox medical records?

 The appellant is also seeking divorce on the ground of
mental illness of the respondent. In order to prove that the
respondent is suffering from mental illness, the appellant has
examined PW-2 Dr. Mazumdar. Dr. Mazumdar has stated in his
evidence that he is working as Psychiatrist in B.A.R.C. (Bhabha
Atomic Research Centre). The respondent is also working in
the said Research Centre. Dr. Mazumdar knew the respondent
as they were both working in one and same Institution. He has
stated that the respondent was taking treatment from him.
The respondent had come to his department with symptoms of
"paranoid schizophrenia". The Doctor has produced xerox

copies of medical papers of the respondent. It is pertinent to
note that the appellant has not produced the original medical
papers of the respondent. PW-2 Dr. Mazumdar has admitted
that the originals of medical papers of the respondent are with
B.A.R.C. however, they were not produced before the Court and
only xerox copies of the medical papers were produced. Thus,
the medical papers have not been proved according to law. It
is well settled that the burden of proving a fact lies heavily
upon the person who makes the allegations. The appellant has
not complied with the legal requirements to prove the
contents of the xerox copies. Therefore, the medical papers
(Exh. 28) cannot be read in evidence against the respondent.
Admittedly, the medical papers produced by PW-2 Dr.
Mazumdar are not primary evidence but those are secondary
evidence. Admittedly, the appellant has not taken permission
from the Court before leading such secondary evidence. The
appellant was required to comply with Section 65 of the Indian
Evidence Act before leading secondary evidence which has not
been done by the appellant.
16 The Hon'ble Apex Court has observed in the case of
U. Sree Vs. Srinivasi (2003) DMC 91 (S.C.) that:
"Secondary evidence relating to contents of a
document is inadmissible until non production of
original is accounted for, so far as to bring it within
one or other cases provided for under Section 65 of
the Indian Evidence Act."
Admittedly, the medical papers are not the original or
certified copies issued by the B.A.R.C. The medical papers,
pages 1 to 52 are not in the handwriting of PW-2 Dr.
Mazumdar. He is not the author of the documents. He has not
given the proper explanation for non-production of the original
medical papers. The mandatory essential requirements of
Section 65 of the Indian Evidence Act, have not been complied
with by the appellant. Therefore, in this situation and
considering the above observation of the Hon'ble Apex Court in
the above authority, in our opinion, the appellant has failed to
prove the medical papers produced at Exh. 28. Therefore, the
medical papers produced at Exh. 28 cannot be read in evidence
against the respondent.
17 The respondent has specifically stated in his evidence

that due to project work and continuous work pressure he was
not getting proper sleep, and therefore, he used to take
medicines. Dr. Mazumdar has stated in his evidence that the
respondent used to take tablets as per his prescription. He has
also stated in his cross-examination that the respondent
approached B.A.R.C. hospital personally due to work pressure
and sleeplessness. He has stated in his evidence that he has
prescribed "Trinicalmplus and CPZ" to the respondent. PW-2
Dr. Mazumdar has further admitted in his cross-examination
that the above tablets reduce stress and enable proper sleep.
The respondent has taken medical treatment for that purpose.
Dr. Mazumdar has admitted in his cross-examination in para 13
that he has not prescribed any medicines to the respondent
between June, 2007 to September, 2007. He has further
admitted in the same paragraph that as per his advice the
respondent stopped taking medicines during the above period.
In view of the above discussion, in our opinion, the evidence of
PW-2 Dr. Mazumdar does not prove that the respondent is
suffering from mental disorder to such an extent that it was
difficult for the appellant to live with the respondent.

18 The respondent has stated in his evidence that he
was working in B.A.R.C. i.e. Nuclear Power Corporation India
Ltd. He had been promoted. He also worked as the Secretary
of the society from 2002 to 2007. He is still performing his
official work and he is not suffering from any mental disorder.
Hence, on this basis, it can safely be held that he is not
suffering from any mental disorder to such an extent as to
make it difficult to live with him.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 136 OF 2013
Mrs. Hemali Bindesh Kelaiya ]

Vs.
Mr. Bindesh Jayantilal Kelaiya ]

CORAM : SMT.V.K.TAHILRAMANI AND
V.L. ACHLIYA, JJ.

DECLARED ON : JANUARY 21, 2014
Citation; 2015(4) ALLMR 313

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Whether one spouse can get compensation for loss of consortium in case of temporary disablement of other spouse?

We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2,500/- to Rs. 10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/- to Rs. 10,000/-, In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.” (Emphasis laid by this Court)

Supreme Court of India

Balram Prasad vs Kunal Saha & Ors on 24 October, 2013

Bench: Chandramauli Kr. Prasad, V. Gopala Gowda

Read whole judgment here; click here

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Whether marriage between Hindu and Parsi can be dissolved under Hindu Marriage Act?

Whether you can celebrate Divorce?

The Bombay High Court has rejected the plea of a Parsi man to declare his 15-year-old marriage to a Hindu as null and void as their wedlock was arranged in accordance with Hindu rituals though they professed different religions.

A division bench recently dismissed an appeal filed by Viraf Phiroz Bharucha, a city resident, against a family court order rejecting his plea to grant divorce under the Hindu Marriage Act, saying that there was no merit in the case and that the plea was barred by law.

Upholding the impugned family court order of February 24 this year, justices A R Joshi and Vijaya Tahilramani held that the appellant had taken too long to realise that his marriage to the respondent be declared null and void as they belonged to different religions.

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What is distinction between visitation rights and custody right of one spouse over minor child?

By Judgment dated 02/08/2014, passed by this Court (Coram F. M. Reis, J.), in Writ Petition No. 79 of 2014, it was ordered that custody of the child would continue with the petitioner therein i.e. the petitioner herein, but the respondent being the mother would definitely have frequent visitation rights of minor child, which shall tentatively be for at least three days in a week. "Frequent" means occurring often or in close succession. Frequent cannot mean continuous.

The learned trial Court, however, by impugned order has fixed Saturday, Sunday and Monday of every week as the days for visitation of child by respondent but has further directed that the child shall be brought in the Court on every Saturday at 9.30 a.m. and handed over to the respondent, to remain with her till Monday and that she shall return the child in the court every Monday at 5.00 p.m. to the petitioner. The above means that the respondent is not allowed to visit the child as per the order of this Court but the child has been ordered to be handed over to the respondent to remain exclusively with her for three days between 9.30 a.m. of every Saturday to 5.00. p.m. of every Monday. Thus, though this Court by order dated 02/08/2014 ordered that the custody of child shall continue with the petitioner, however, on account of the impugned order, the custody of the child would remain with the petitioner only from 5.00 p.m. of every Monday till 4.00 p.m. of every Saturday, i.e. for four days.

 In other words, contrary to the order dated 02/08/2014 passed by this Court in Writ Petition No. 79 of 2014, and overreaching the said order, the impugned order has been made by the trial Court for sharing custody of child between respondent and petitioner i.e. three days custody to the respondent and four days custody to the petitioner. This is clearly illegal and hence impugned order dated 06/09/2014, warrants interference.

In terms of Black's Law Dictionary, Tenth Edition, visitation means a non-custodial parent's period of access to a child. visitation right means a non-custodial parent's or grandparent's Court ordered privilege of spending time with a child or grand child who is living with another person, usually the custodial parent. A visitation order means an order establishing the visiting times for a non-custodial parent with his or her children. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from custody because non-custodial parent and child do not live together as a family unit.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 576 of 2014

Decided On: 18.09.2014

Appellants: Arun Sharma Vs.

Roxann Sharma

Hon'ble Judges/Coram:
U.V. Bakre, J.
Citation;2015(2) ALLMR978 SC

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Whether unsubstantiated criminal proceeding against other spouse which results in acquittal amounts to cruelty?

 The Appellant made

unsubstantiated allegations of unchastity against the respondent for

having extra marital affair. There can be no two opinions that the

allegation was very serious. Such an allegation not only disturbs the

tranquility of a marriage but more importantly is character

assassination of a person which certainly has to be placed on a

higher pedestal than merely other grounds for a failed marriage.

In 1995/96 she filed a criminal prosecution under

Section 498A of the Indian Penal Code/3 and 4 of the Dowry

Prohibition Act.

The respondent was convicted but came to be

acquitted in Criminal Appeal No. 16 of 2001. It cannot be lost sight

of that in view of the institution of a criminal prosecution under

Section 498A of the Indian Penal Code/3 & 4 of the Dowry

Prohibition Act and the inability to substantiate the same leading to

acquittal in Appeal itself amounts to cruelty in the eyes of law.

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Appeal No.852 of 2011

 Usha Devi  Vs  Ashok Kumar Mishra 

CORAM:  MR. JUSTICE NAVIN SINHA

and

 MR. JUSTICE JITENDRA MOHAN

SHARMA

Order dated;19-06-2014

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Whether annulment of marriage of parties is tenable at instance of parent of one of spouse?

It is trite that in matrimonial relationship, locus standi to challenge the factum of marriage or a relief for its annulment can only be claimed by one of the spouses and no other person can seek the relief about annulment of the matrimonial relationship. In our considered opinion, the learned trial Court has rightly concluded that no cause of. action has accrued to the appellants to file the suit and they are having no locus to lay a suit of such a nature. By filing such a suit, the appellants are per-se guilty of abusing the process of the Court and taking cognizance of this sort of conduct of the appellants, the learned Court below has rightly saddled them with the cost of Rs. 5,000/- each.

IN THE HIGH COURT OF RAJASTHAN

D.B. Civil Misc. Appeal No. 465/2013

Decided On: 24.02.2014

Appellants: Dilip
Vs.
Respondent: Ravi

Judges/Coram:Dinesh Maheshwari and Pratap Krishna Lohra, JJ.

Citation; AIR 2014 Raj 89

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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 One spouse can consent to search of a house on behalf of other spouse?

Just from watching legal dramas on television, many people know that the police need a warrant to search your house. This is accurate, for the most part, as the Fourth Amendment protects private citizens from unreasonable searches and seizures. But did you also know that under the exclusionary rule generally anything seized during an illegal search cannot be used as evidence in court?

As a result of the exclusionary rule, there are important exceptions to the warrant requirement that have developed under the law that everyone should know about.

Let's start with the basics first. What is a search warrant? If a judge is convinced that there is "probable cause" of either criminal activity or contraband at a place to be searched, he or she will issue and sign a search warrant—a court order that allows the police to search a specific location for specified objects at a specific time.

That's a lot of specifics, to be sure,

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