Daily Archives: January 16, 2015

Husband can add wife’s adultry allegatns in dvrce petition even if serious, scandalous in nature-DelhiHC

Husband can add wife’s adultery allegations in divorce petition even if serious, scandalous in nature as long as these are essential to prove his case. Wife’s objection NOT allowed – DelhiHC

Excerpts
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" …..The said allegations are undoubtedly serious in nature and may also be termed as scandalous or insinuating but the question to be answered is as to whether the same are relevant for the purpose of adjudication of the petitioner and should be allowed to remain on record. There is no denial of the legal position that in a petition for dissolution of marriage, based on the ground of cruelty, the petitioner has to succinctly state the events and instances which according to the petitioner constitute cruel conduct within the meaning of Section 13(1)(1a) of the Hindu Marriage Act but such instances of cruel conduct must, however, relate to a period after the solemnisation of the marriage and not prior thereto. …"
* "…There is also no doubt that any conduct of the spouse which points to his/her extra martial relations would be the conduct amounting to utmost cruelty to the other spouse. …"

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Delhi High Court

Rekha Singal vs Lavleen Singal on 18 January, 2002

Equivalent citations: 2002 IIIAD Delhi 260, 96 (2002) DLT 289, I (2002) DMC 476, 2002 (62) DRJ 7

Author: R Jain
Bench: R Jain

JUDGMENT R.C. Jain, J.

1. This Civil Revision is directed against the order dated 15.5.2000 passed by the learned Additional District Judge, Delhi thereby dismissing an application under Order 6 Rule 16 filed by the wife Smt. Rekha Singal praying for a direction on the husband to strike out and delete certain allegations contained in the divorce petition, as the allegations are stated to be scandalous, frivolous, vexatious and likely to prejudice and embarrass the wife and delay the fair trial of the divorce petition.

2. The petitioner herein Ms. Rekha Singal is facing a divorce petition filed by the respondent-husband Mr. Lavleen Singal seeking dissolution of the marriage between the parties on the ground of cruelty. Before filing her written statement to the divorce petition, the petitioner-wife filed an application under the provisions of Order 6 Rule 16 CPC with the averments that although the dissolution of marriage was not sought on the ground of ‘adultery’ or on the ground that the wife having had sexual intercourse with persons other than the spouse, after solemnisation of the marriage, yet the husband has made several false, scandalous allegations against the character of the wife without impleading the persons which according to him had illicit relations with his wife. The said allegations are contained in paras 4.6, 4.16, 4.18, 4.23 and 4.23 of the petition for divorce and the offending portions of the paragraphs containing the said allegations were detailed with in the said applications. The application was opposed by the husband and it was stated that the allegations are relevant for deciding the real controversy between the parties and that he intends to prove the same. On a consideration of the matter, the learned trial Court dismissed the application primarily for the reason that allegations made by the petitioner in the petition were necessary for the purpose of explaining his case and cannot be said to be of scandalous nature or liable to be deleted. It was, however, observed that the petitioner-wife would be at liberty to take whatever objections she may have in her written statement. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. I have heard Shri J.K. Seth, senior advocate on behalf of the petitioner-wife and Shri H.L. Tikku, advocate representing the respondent-husband and have given my thoughtful consideration to their respective submissions. In support of his contention that some of the allegations made in paragraph 4.5, 4.6, 4.11, 4.16, 4.18 and 4.23 of the divorce petition are insinuating, false, scandalous, vexatious and irrelevant and are liable to be delated from the divorce petition as the husband is not seeking the dissolution of marriage on the ground of adultery, the learned counsel for the petitioner has placed reliance on a Division Bench judgment of this Court in the case of Manjit K. Singh v. S. Kanwarjit Singh . In the said cited case, the husband had filed a petition for dissolution of marriage by a decree of divorce on the grounds of adultery, cruelty and desertion. However, as the case progressed, the husband gave up the ground of adultery for seeking dissolution of marriage still the husband, wanted to rely upon and adduce evidence qua the allegations of adultery in support of the ground of cruelty on the premises that the adulterous acts alleged in the petition amounted to cruelty. By means of an application the wife sought deletion of certain portions from the petition on the ground that the allegations were scandalous, frivolous, vexatious and unnecessary. The application was, however, dismissed by the learned trial court. The Division Bench of this Court, on a consideration of the matter reiterated the legal position that the Court has sample power to order striking out of pleadings which may be unnecessary, which may tend to prejudice, embarrass or delay the fair trail of the suit and further held that after the husband had given up the ground or in that behalf the allegations of adultery, allowing the same to remain a part of the pleadings more especially in the absence of the alleged adulterer being a party will definitely tend to prejudice the fair trial of the suit which will have to be tried on the basis of allegations which may amount to cruelty whether physical or mental. The Court ruled that the allegations as noticed were not only unnecessary but might tend to prejudice and also delay the fair trial of the proceedings. The Court ordered the deletion of the allegations from the petition which amounted alleging adultery on the part of the wife.

4. As against the above, learned counsel for the respondent-husband has placed reliance upon the Supreme Court decision in the case of V. Bhagat v.

D. Bhagat and in the case of Ramesh Chander v. Savitri in order to show that the allegations of which offence has been taken by the wife are nothing, but various instances of cruel conduct attributable to the wife. In the case V. Bhagat v. D. Bhagat (supra), the Supreme Court more fully expounded the meaning of cruelty as referred to in Section 13(1)(i-a) of the Hindu Marriage Age, 1955 in the following words:-

"Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. Mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstance which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."

5. Reliance has also been placed on two English decisions. In the case of Chalcroft v. Chalcroft (1969) 2 All. E.R. 1172 and the case of Walker v. Walker (1961) 3 All. E.R.14 laying down that an allegation of condoned adultery or of a reasonable belief in adultery in a petition founded on cruelty is not an allegation of adultery for the purpose of Rule 13(1) of the Matrimonial Causes Rules 1968, but is an allegation of improper association within Rule 13(2) of the Rules. In the later case, it was held that a husband who carries on deliberately such a course of conduct as induces in his wife a reasonable belief that he is carrying on an adulterous association and thereby causes injury to her health, is guilty of persistent cruelty towards her. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. Bearing in mind the above legal preposition, I may now proceed to examine if the allegations which are sought to be deleted from the divorce petition are relevant and necessary for the just and proper adjudication of the petitioner or are scandalous, insinuating, vexatious and irrelevant. The allegations which are stated to be offending and liable to be deleted have been reproduced in paragraph 2 of the revision petition and are purposely being not reproduced in this order.

7. The said allegations are undoubtedly serious in nature and may also be termed as scandalous or insinuating but the question to be answered is as to whether the same are relevant for the purpose of adjudication of the petitioner and should be allowed to remain on record. There is no denial of the legal position that in a petition for dissolution of marriage, based on the ground of cruelty, the petitioner has to succinctly state the events and instances which according to the petitioner constitute cruel conduct within the meaning of Section 13(1)(1a) of the Hindu Marriage Act but such instances of cruel conduct must, however, relate to a period after the solemnisation of the marriage and not prior thereto. There is also no doubt that any conduct of the spouse which points to his/her extra martial relations would be the conduct amounting to utmost cruelty to the other spouse. Judging above referred allegations in this light, this Court is of the opinion that so far as the allegations which form part of paras 4.4 and 4.6 of the petition which pertains to the alleged conduct of the wife prior to the solemnisation of the marriage cannot be said to be relevant for the just and effective adjudication of the divorce petition. These allegations are, therefore, irrelevant besides being scandalous and, therefore, are liable to be deleted from the petitioner. Yet another reason why the Court should not permit the retention of these allegations is the alleged person with whom the wife is stated to have been sexually involved has not been made a party in the divorce petition. So far as other allegations contained in paragraphs 4.16, 4.18 and 4.23 are concerned, this Court is of the opinion that the allegations no doubt being of serious nature and tend to be scandalous but as they are attributable to the conduct of the wife after solemnisation of the marriage may be considered to be the instances of cruel conduct for establishing the ground of cruelty on which the petition for divorce has been filed. The said allegations no doubt vaguely suggest that the wife might be indulging in extra-marital relations, but it is not categorically alleged that the wife having had after solemnisation of the marriage voluntarily sexual intercourse with any person other than the husband. Accordingly these allegations are not liable to be deleted and can be allowed to be retained in the petition.

8. In the result, this revision petition is partly allowed. The impugned order of the learned trial court dated 15th May, 2000 is hereby set aside and the application of the petition under Order 6 Rule 16 is allowed to the extent that the allegations as contained in the portion of paragraphs 4.4 and 4.6 and as reproduced in para 2 of the Revision Petition are ordered to be deleted from the petitioner. The respondent-husband shall make requisite amendment in the petition within four weeks from the date of this order.

9. The trial court record shall be sent back forthwith.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

No maintenance to adulterous wife, but mere depositions not sufficient, adultry to be proved-Delhi HC

Notes
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* Husband paying interim maint of rs. 5000 p.m. in CrPC 125 case
* Wife claims that husband is having huge income etc
* Husband appeals wife’s interim maintenance saying wife is living in adultry
* To prove his case, Husband has filed a deposition by a third party (in an adultry police complaint). In that deposition the third party / man says this wife was staying with him !!
* HC does not accept that deposition as sufficient proof and sends case back to Trial court

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Delhi High Court

Arun Kumar vs Meenu Kumar on 31 May, 2007

Author: S R Bhat

Bench: S R Bhat

JUDGMENT S. Ravindra Bhat, J.

1. This petition seeks interference with the order of the Additional Chief Metropolitan Magistrate (hereafter referred to as “the trial Court”) dated 9th June, 2005. The trial Court was dealing with an application under Section 125 Cr.P.C. filed by the respondent/ wife. The trial Court proceeded to grant interim maintenance of Rs. 5,000/- per month w.e.f 01.06.05.

2. The marriage between the parties took place on 08.10.99. It is a common case of the parties that the complainant/respondent was the second wife of the petitioner who had three major married children from his first marriage. It is also a fact that the complainant too had three children from her earlier marriage. The allegations in the complaint, inter alia, extended to mis-behavior and acts of cruelty. It was alleged that the petitioner/ husband had vast assets and was in possession of income to the tune of Rs. 78,000/- per month. It was stated that the petitioner had seven immovable properties. The trial Court after considering the materials, directed the petitioner to pay Rs. 5,000/- per month to the complainant.

3. This order has been impugned for two reasons. One, that the Court has overlooked Section 125(4) which stipulates, inter alia, that if the wife lives in adultery there would be no order for maintenance including interim maintenance. Learned Counsel for the petitioner relied upon an affidavit filed by one Mr. Ashok Soni dated 05.04.05. In that, the deponent suggested, inter alia, that the complainant/wife stayed with him. The affidavit was filed in support of an application seeking pardon in a criminal complaint filed by the present petitioner against his wife and that deponent. It is submitted that the police filed a final report in those proceedings before the concerned Court.

4. Learned Counsel contended that in the light of the above facts, the respondent/wife was dis-entitled to any relief and, therefore, the approach of the trial Court in granting interim maintenance was irregular and liable to be interfered with.

5. The petition was resisted on behalf of the complainant/ respondent. It was contended on her behalf that the petitioner has vast properties and by his conduct in not complying with the Court’s orders (which had restrained him from dispossessing the complainant from the properties where she was residing) he has forfeited his right to press this petition. It was also contended that the provisions of Section 125(4) Cr.P.C. have also to be considered in the light of the Protection of Women from Domestic Violence Act, 2005 which entitles the aggrieved spouse to have a residential right in the matrimonial home.

6. Learned Counsel for the respondent/wife relied upon the judgment of the Punjab & Haryana High Court in the case reported as Jagir Singh v. Jasbir Kaur 2005 Crl.L.R. 572.

7. The above factual matrix would show that the complainant applied for maintenance under Section 125 Cr.P.C. The trial Court, after considering the averments proceeded to award the amount of Rs. 5,000/- per month as interim maintenance. The contention of the petitioner, to the extent that the trial Court’s order does not deal with the averments in the reply of the petitioner/husband, is correct. Facially, there is no discussion by the trial Court about the reply of the husband who is the petitioner. The question, therefore, is whether this amounts to an illegality which requires to be set aside having regard to the circumstances of this case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. Section 125 Cr.P.C. to the extent it is relevant reads as follows:

125. Order for maintenance of wives, children and
parents- (1) If any person having sufficient
means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not
being a married daughter) who has attained
majority, where such child is, by reason of any
physical or mental abnormality or injury unable
to maintain itself, or

(d) his father or mother, unable to maintain
himself or herself,a Magistrate of the first
class may, upon proof of such neglect or refusal,
order such person to make a monthly allowance for
the maintenance of his wife or such child, father
or mother, at such monthly rate, as such
magistrate thinks fit, and to pay the same to
such person as the Magistrate may from time to
time direct:

Provided that the Magistrate may order the
father of a minor female child referred to in
Clause (b) to make such allowance, until she
attains her majority, if the Magistrate is
satisfied that the husband of such minor female
child, if married, is not possessed of sufficient
means.

[Provided further that the Magistrate may,
during the pendency of the proceeding regarding
monthly allowance for the maintenance under this
sub-section, order such person to make a monthly
allowance for the interim maintenance of his wife
or such child, father or mother, and the expenses
of such proceeding which the Magistrate considers
reasonable, and to pay the same to such person as
the Magistrate may from time to time direct:

Provided also that an application for the
monthly allowance for the interim maintenance and
expenses for proceeding under the second proviso
shall, as far as possible, be disposed of within
sixty days from the date of the service of notice
of the application to such person.

Explanation – For the purpose of this Chapter-

(a) “minor” means a person who, under the
provisions of the Indian Majority Act, 1875 (9 of
1875) is deemed not to have attained his majority;

(b) “wife’ includes a woman who has been
divorced by, or has obtained a divorce from, her
husband and has not remarried.

(2) xxxx        xxxx        xxxx        xxxx
xxxx (3) xxxx        xxxx        xxxx
xxxx        xxxx

(4) No wife shall be entitled to receive an
[allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the
case may be,] from her husband under this section
if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her
husband, or if they are living separately by
mutual consent.

9. In this case, the reply of the husband was filed on 19.11.03. There appears to be a supplementary affidavit which was replied on 26.03.04 by the wife. It is stated by counsel that the affidavit of Shri Ashok Soni was brought on record of the trial Court through an application dated 15.04.05. The affidavit of Shri Ashok Soni is dated 05.04.05

10. In the judgment of the Punjab & Haryana High Court in Jagir Singh’s case the Court held as follows:
In this petition, counsel for the petitioner
raised two-fold submissions, firstly, that since
the petitioner has alleged that the respondent-
wife is living in adultery, therefore, no interim
maintenance can be granted to her in view of
amendment made in Sub-Section (4)of Section 125
Cr.P.C. by the Legislation vide Act No. 50 of
2001. Vide this amendment words “allowance for
maintenance or the interim maintenance and
expenses of proceedings, as the case may be”,
have been added in Sub-Section (4), which provide
that no wife shall be entitled to receive an
allowance for maintenance or interim maintenance
if she is living in adultery. Learned Counsel for
the petitioner, thus, contends that intention of
Sub-Section (4) is very much clear that no wife,
who is living in adultery, shall be entitled to
any allowance including interim maintenance. It
is further contended that world “allowance” not
only includes the initial maintenance amount, but
includes the interim maintenance amount also.
Therefore, the respondent-wife, in the case in
hand, who is living in adultery, is not entitled
to any allowance under Sub-Section (4) of Section
125 Cr.P.C. Secondly, he submitted that
respondent No. 2 is major, therefore, she is not
entitled for maintenance. However, he admitted
that respondent No. 2 is still unmarried.

5. I have considered the aforesaid two
submissions made by the learned Counsel for the
petitioner and am not inclined to accept the
same. In my view interim maintenance cannot be
denied to the respondent-wife merely on the
ground that petitioner-husband has made an
allegation that she is living in adultery. Denial
of interim maintenance just on the basis of such
an allegation would not be justified until and
unless the allegation is substantiated by any
cogent evidence by the husband

11. Learned Counsel for the petitioner sought to distinguish the decision in the case on the ground that factual matrix was facially different and this was not a case of mere allegation but there were some other proofs also.

12. The contextual backdrop of each case would of course differ, yet the ratio of the decision by the Punjab & Haryana High Court is that the Court must adopt a cautious approach, and should not rush into presumption on the basis of allegations. The allegation can be in the form of reply or affidavit. In this case what emerges from the record at least today is that the petitioner has sought to bring on record the affidavit of the person who was seeking pardon. The genuineness or otherwise of such an affidavit and the circumstance under which it was sworn cannot be divorced from the facts of this case. It is true that the trial Court has not adverted to it but there cannot be an assumption that this was pressed, and yet consciously not adverted to.

13. Another aspect which has to be seen is that the contents of the affidavit are untested; though the deponent mentioned that the complainant stayed with him, the next assumption that such a residence amounted to adultery, would be drastic. In any form of proceeding, to conclude adultery, where civil consequences spelt out under Section 125(4) are to be inferred, the party likely to be affected has to be given reasonable and fair opportunity to meet and rebut the charge. Though Section 125 Cr.P.C. is in the nature of a welfare measure, and perhaps falls within the description of “special provision” under Article 15(3) of the Constitution, the exception under Section 125(4), loaded as it is in gender unequal terms, against the woman, has to be made recourse to with care and circumspection. The enacting part of Section 125, which entitles a woman to maintenance, makes makes no distinction whether the cause for her approaching the Court is adultery or infidelity of the husband; yet, the possible effect, viz estrangement and the situation of her living in adultery, is sought to ground a denial of that welfare measure. Without entering into the logic of this enforcement of morality through the legal process – which has to receive a wider debate, what can be said is that the Court should loath to rush into conclusions or a priori assumptions, since Section 125(4) enacts an exception. It should be satisfied about the soundness of such a charge, and cannot be content to elevate allegations into findings. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14. In view of the above discussion and after taking into consideration the overall conspectus of the facts of this case, I am of the opinion that the trial Court should proceed and dispose off the application under Section 125 Cr.P.C finally within four months.

15. It is a matter of record that the petitioner has already paid 50 per cent of the amount which works out to Rs. 60,000/-. The balance shall be deposited in the trial Court to be appropriated having regard to the final outcome of the proceedings under Section 125 Cr.P.C. The parties shall appear before the trial Court on 10th July, 2007.

The petition is disposed off in the above terms.

Order dusty.

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist