Monthly Archives: March 2016

No interim maintenance, in DV case, 2 well qualified wife sitting idle. Was she forced 2 resign etc is for trial, NOT interim. Delhi HC

Delhi HC refuses to grant maintenance to well qualified wife sitting Idle at home and filing DV case. when the wife tries to claim that she was forced to resign, the court states such force etc is for inquiry and trial and NOT for interim !!

“…The grievance of the petitioner is that the learned ASJ committed an error in declining the relief to her on the ground that she was well qualified, capable to maintain herself and had the capacity to work and that she had also been actually earning in the past and was thus not entitled to get any maintenance from the respondent. ….”

“…. The learned ASJ in the impugned order has rightly observed that the question whether the petitioner-wife was forced to resign or had resigned herself is a question to be considered during trial and also the question whether the reasons given by her for resigning from her job were satisfactory or not……”

So HC concludes that wife gets NO maintenance and dismissed her petition “….6. The learned ASJ has rightly declined the interim monetary relief to the petitioner by holding that she was well educated lady earning Rs.50,000/- per month and had chosen not to work of her own will though had the capacity to work and find a suitable job for herself.….”

and concludes “…There is no jurisdictional error or error in law in the impugned order. The petition being devoid of merit is hereby dismissed with no order as to costs…..”


IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 19.04.2012
PRONOUNCED ON: 14.05.2012

CRL.REV.P. 344/2011

DAMANREET KAUR ….. Petitioner
Through: Mr.Sugam Puri, Advocate
versus
INDERMEET JUNEJA & ANR ….. Respondents
Through: Mr.Shyam Moorjani with Mr.Taru Goomber, Mr.Pankaj Mendiratta and Mr. Gaurav Goswami, Advocates.

CORAM:

HON’BLE MS. JUSTICE PRATIBHA RANI %

 

  1. The petitioner has preferred this revision petition impugning the order dated 01.06.2011 passed by the learned Addl. Sessions Judge, Delhi. The petitioner is wife of respondent Indermeet Juneja. She filed a complaint case bearing No.352/3 under Section 12 of Protection of Women from Domestic Violence Act, 2005 alongwith an application for monetary relief under Section 23 of the Act. Her prayer for interim monetary relief was declined vide order dated 18.11.2010 by the learned M.M.
  2. Feeling aggrieved, she preferred an appeal against the said order passed by the learned M.M. declining monetary relief to her. In appeal, the learned ASJ vide the impugned order dated 01.06.2011 though declined the prayer of interim monetary relief to the petitioner, partly allowed the appeal and directed the respondent to pay a sum of Rs.10,000/- per month from the date of filing of the petition towards contribution of the respondent to maintain the child born out of the wedlock of the parties.
  3. The grievance of the petitioner is that the learned ASJ committed an error in declining the relief to her on the ground that she was well qualified, capable to maintain herself and had the capacity to work and that she had also been actually earning in the past and was thus not entitled to get any maintenance from the respondent. The petitioner has submitted that earlier she was working with Met Life Insurance Company since the birth of her child. The company due to its relocation process had asked the petitioner to shift to Bangalore. She could not accept this offer as it would not be appropriate for the child to be uprooted from the place where she has been residing and due to the fact that there were visitation orders passed by the learned Sessions Court and had the petitioner along with the child shifted to Bangalore, the said orders could not have been complied with. As such the petitioner turned down the offer of the company. The company refused to change its policy and the petitioner was forced to resign from her job.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com.
  4. The relieving letter placed on record by the petitioner is dated 17.08.2010. As per this relieving letter the date of joining of the petitioner with Met Life was 07.01.2008 and her designation at the time of leaving the company was Assistant Manager (Service Delivery). She has been relieved pursuant to her resignation letter dated 17.06.2010. This letter is not accompanied by the resignation letter of the petitioner giving the reasons for her resignation or the policy of the company to shift her to Bangalore. It is relevant to mention here that while the date of joining of petitioner with Met Life Insurance is 07.01.2008, the petitioner has given birth to a female child on 18.09.2008 i.e. in the same year and despite having infant child to take care, she has served the company till she was relieved on 17.08.2010.
  5. The contention of petitioner is that in order to comply with the order of the Court to allow the respondent to have visitation right she could not shift to Bangalore. There is nothing on record to indicate that at any point of time despite continuous litigation going on between the parties she had approached the Court for modification of the order regarding visitation right. If the petitioner of her own prefers to resign, she cannot take shelter under the Court order regarding visitation right. With the passage of time the child has grown up and is of school going age. Thus, it is more convenient for a working mother to be in the job then to sit at home.
  6. The learned ASJ has rightly declined the interim monetary relief to the petitioner by holding that she was well educated lady earning Rs.50,000/- per month and had chosen not to work of her own will though had the capacity to work and find a suitable job for herself.
  7. The learned ASJ in the impugned order has also corrected the error appearing in the order of learned M.M declining the monetary relief to the child for the reason that she was not the petitioner before the Court. In para-10 of the impugned order, the learned ASJ, after considering the facts and relevant case law has concluded as under:-
    • “10. On perusal of record and after hearing the submissions made
      at bar, I do not find any infirmity in the impugned order as regards
      maintenance to the appellant/wife is concerned. The question, whether
      appellant/wife was forced to resign or she had resigned herself is a
      question to be considered by the court during trial and also the
      question whether the reasons given by her for resigning were
      satisfactory or not. These are the question to be gone into during
      evidence by the Learned Trial Court. But, the observation of the
      Learned Trial Court in para-10 i.e. “As far as the maintenance of the
      child is concerned, since she is not the petitioner in the present
      complaint, I would not be able to pass any orders as regards the
      maintenance for the daughter of the parties”, is erroneous and cannot
      be sustained. Admittedly on the date, when application u/s. 12 of the
      „act? was filed by the appellant/wife, child was in the custody of
      the husband. Secondly, if the scheme of the act is seen as a whole,
      it is obvious that it is not necessary that the child should be
      impleaded as a party. Relief can be granted to the child or for the
      benefit of the child without child being impleaded as a party. The
      relief can be granted not only to the aggrieved person, but also to
      the „child?. On reading of Section 20 and 21 of the „Act? it is clear
      that not only aggrieved person, but any child or children may be
      granted relief. The court has to keep in mind the interest and the
      welfare of the child, even if child is not a party. Therefore, orders
      as regard custody or the maintenance or the welfare of the „children?
      can be passed even if child is not a party in the application filed
      under the „Act? before Learned Metropolitan Magistrate. There is
      manifest error in the impugned order as regards the observations in
      para-10 of the impugned order, which is set aside. In view of this,
      it is directed that Learned Trial Court shall decide the quantum of
      maintenance for the minor daughter of the parties after making a
      realistic assessment of the needs of child, keeping in view the
      status of parties, on the basis of material placed on record by the
      parties. Respondent/husband submitted that he was ready and willing
      to bear 50% of expenditure of the child. He can show his bonafide by
      providing some assistance to the child so that the child is brought
      up in an appropriate atmosphere and so that she is provided with
      minimum comfort, which the child requires.
    • 11. In the circumstances, till further orders are passed by the
      Learned Trial Court, I deem it expedient in the interest of justice
      to direct the respondent/husband to pay sum of Rs.10,000/- per month
      towards his contribution from the date of filing of the petition to
      maintain the child. The amount ordered to be paid by
      respondent/husband shall not tantamount to be an expression on merits
      of the case. Appeal stands disposed of accordingly. TCR be sent back
      alongwith copy of this order. File be consigned to Record Room.”
  8. In Smt.Mamta Jaiswal vs. Rajesh Jaiswal 2000(3) MPLJ 100, the High Court of Madhya Pradesh while dealing with identical situation observed that well qualified spouses desirous of remaining idle, not making efforts for the purpose of finding out a source of livelihood, have to be discouraged, if the society wants to progress. For better appreciation, relevant paragraphs of the said decision are reproduced hereunder:-
    • “In view of this, the question arises, as to in what way Section
      24 of the Act has to be interpreted. Whether a spouse who has
      capacity of earning but chooses to remain idle, should be permitted
      to saddle other spouse with his or her expenditure? Whether such
      spouse should be permitted to get pendent lite alimony at higher rate
      from other spouse in such condition? According to me, Section 24 has
      been enacted for the purpose of providing a monetary assistance to
      such spouse who is incapable of supporting himself or herself inspite
      of sincere efforts made by him or herself. A spouse who is well
      qualified to get the service immediately with less efforts is not
      expected to remain idle to squeeze out, to milk out the other spouse
      by relieving him of his or her own purse by a cut in the nature of
      pendent lite alimony. The law does not expect the increasing number
      of such idle persons who by remaining in the arena of legal battles,
      try to squeeze out the adversary by implementing the provisions of
      law suitable to their purpose. In the present case Mamta Jaiswal is a
      well qualified woman possessing qualification like M.Sc. M.C M.Ed.
      Till 1994 she was serving in Gulamnabi Azad Education College. It
      impliedly means that she was possessing sufficient experience. How
      such a lady can remain without service? It really put a big question
      which is to be answered by Mamta Jaiswal with sufficient cogent and
      believable evidence by proving that in spite of sufficient efforts
      made by her, she was not able to get service and, therefore, she is
      unable to support herself. A lady who is fighting matrimonial
      petition filed for divorce, cannot be permitted to sit idle and to
      put her burden on the husband for demanding pendente lite alimony
      from him during pendency of such matrimonial petition. Section 24 is
      not meant for creating an army of such idle persons who would be
      sitting idle waiting for a „dole? to be awarded by her husband who
      has got a grievance against her and who has gone to the Court for
      seeking a relief against her. The case may be vice versa also. If a
      husband well qualified, sufficient enough to earn, sit idle and puts
      his burden on the wife and waits for a ?dole? to be awarded by
      remaining entangled in litigation. That is also not permissible. The
      law does not help indolents as well idles so also does not want an
      army of self made lazy idles. Everyone has to earn for the purpose of
      maintenance of himself or herself, at least, has to make sincere
      efforts in that direction. If this criteria is not applied, if this
      attitude is not adopted, there would be a tendency growing amongst
      such litigants to prolong such litigation and to milk out the
      adversary who happens to be a spouse, once dear but far away after an
      emerging of litigation. If such army is permitted to remain in
      existence, there would be no sincere efforts of amicable settlements
      because the lazy spouse would be very happy to fight and frustrate
      the efforts of amicable settlement because he would be reaping the
      money in the nature of pendent lite alimony, and would prefer to be
      happy in remaining idle and not bothering himself or herself for any
      activity to support and maintain himself or herself. That cannot be
      treated to be aim, goal of Section 24. It is indirectly against
      healthiness of the society. It has enacted for needy persons who in
      spite of sincere efforts and sufficient effort are unable to support
      and maintain themselves and are required to fight out the litigation
      jeopardizing their hard earned income by toiling working hours.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com.
    • In the present case, wife Mamta Jaiswal, has been awarded
      Rs.800/- per month as pendent lite alimony and has been awarded the
      relief of being reimbursed from husband whenever she makes up a trip
      to Indore from Pusad, Distt. Yeotmal for attending Matrimonial Court
      for date of hearing. She is well qualified woman once upon time
      obviously serving as lecturer in Education College. How she can be
      equated with a gullible woman of village? Needless to point out that
      a woman who is educated herself with Master?s degree in Science,
      Masters Degree in Education, would not feel herself alone in
      travelling from Pusad to Indore, when at least a bus service is
      available as mode of transport. The submission made on behalf of
      Mamta, the wife, is not palatable and digestible. This smells of
      oblique intention of putting extra financial burden on the husband.
      Such attempts are to be discouraged.”
  9. Section 20 (1) (d) of PWDV Act, 2005 specifies that upon appropriate proof, the court may order the respondent to pay maintenance to the aggrieved person and to her children and further permits the Court to pass an order of maintenance under the PWDVA in addition to maintenance already granted under section 125 Cr.P.C.
  10. In State of Maharashtra vs. Sujay Mangesh Poyarekar (2008) 9 SCC 475 it was held that powers of the revisional courts are very limited and the revisional court should not interfere unless there is a jurisdictional error or an error of law is noticed.
  11. The learned ASJ in the impugned order has rightly observed that the question whether the petitioner-wife was forced to resign or had resigned herself is a question to be considered during trial and also the question whether the reasons given by her for resigning from her job were satisfactory or not.
  12. It is worth mentioning here that the child for which maintenance of Rs.10,000/- per month from the date of filing of the petition has been ordered by Learned Addl. Sessions Judge is just and fair and sufficient to meet the requirements of a child which is aged about 3 ½ years.
  13. There is no jurisdictional error or error in law in the impugned order. The petition being devoid of merit is hereby dismissed with no order as to costs.

 

(PRATIBHA RANI) JUDGE

MAY 14, 2012/„dc?

*****************************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. 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.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

 

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Get a job, don’t rely on ex-husband: Court to woman seeking alimony

Hindustan Times, New Delhi

Updated: Mar 23, 2016 09:18 IST

The court asked the woman seeking maintenance after her divorce to start sincere efforts to look for a job, instead of relying on the alimony. (File photo)

A city court asked a woman to look for a job, saying she was qualified and capable and should not put financial burden on her estranged husband, a decision that could spur a debate on India’s alimony system. The man agreed to help her find employment and pay maintenance for a year.

 

The court’s observation came on an appeal filed by the man against paying Rs 12,000 a month to support his wife.

“The respondent (woman) admitted being more qualified than the appellant (man). She admitted to being able-bodied and having capacity to earn. As such, she cannot be allowed to sit idle at home to put financial burden on the appellant,” said district judge Rekha Rani. “Let her make sincere endeavour to find work.”

Under the Indian legal system, a separation or divorce entitles a woman to maintenance from her spouse, in the form of financial support.

“If the woman needs assistance of the appellant in finding a job, she may communicate with him (the estranged husband) by sending SMS on mobile/email,” the court said.

The woman had argued that, though she was better qualified, she married young and never held a job or even travelled alone.

However, the man said his estranged wife was not entitled to monetary relief as she was more qualified than him. His appeal pointed out that she was an MSc gold medallist. He alleged she had not applied for a job anywhere and wanted to sit idle and remain a financial burden on him.

On the woman’s submission that she had never travelled alone and wanted the man to go with her on job searches, the court said “the submission is neither palatable nor digestible”.

“Both are coming to the court separately. If she can come to the court to fight litigation alone, she can go alone to search for a job as well,” the judge observed.

The man told the court he was willing to accompany her and assist her in whatever way she needed to find work.

“The man has agreed to pay her maintenance of Rs 12,000 per month for one year and during this period, she should make sincere efforts and start working,” the judge said

 

source :

http://www.hindustantimes.com/india/get-a-job-don-t-rely-on-maintenance-court-tells-woman-seeking-alimony/story-IiQmAwxSEDuxPp6wvPr5lK.html?utm_source=facebook&utm_medium=fbpost&utm_campaign=legal

 

Madras HC quashes #FALSE498a in Feb’16 & talks of 498a misuse! Quotes earlier SC cases on #498amisuse

A woman files a fake 498a case. During police panchayat she agrees to live separately with her husband IF a separate household is established. She also states that all her Jewellery is with her parents. Later the couple start living together and again trouble crop up. She changes her stand and files yet another fake dowry case. The second case is inquired into and in the inquiry report dated 01.04.2013 by the District Social Welfare Officer clearly states that the dispute is purely a matrimonial dispute and there is no material to infer that the accused had demanded dowry. However police file final report on many accused who move to the HC for quash.

Honble HC quashes the case and also clearly decries the misuse of 498a !! The Honble HC quotes both Sushil Kumar and Arnesh Kumar case (SC cases !! )


BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 19.02.2016  

CORAM
THE HON’BLE MR.JUSTICE P.N.PRAKASH

Crl.O.P.(MD) No.14279 of 2013

1.      Kaleel Ahamed Sahib
2.      Basaria Begum
3.      Mariyam Kani
4.      Syed Mohammed            … Petitioners/A1 to A4
-vs-

1.      The State Rep. by
The Inspector of Police,
All Women Police Station,
Sivakasi, Virudhunagar District.
(Crime No.6 of 2013)            …1st respondent/complainant

2.      Thameema                … 2nd respondent/Defacto complainant

Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., praying to call for the records relating to the C.C.No.137 of 2013 on the file of Judicial Magistrate Court, Sivakasi and quash the same as illegal.

For Petitioners        :
Mr.N.Syed Mohamed (4th petitioner / Party-in-Person)
Mr.A.Prasanna Rajadurai  (Amicus Curiae)

For R1                 :
Mr.S.Prabha, Govt. Advocate (Crl.Side)

For R2                  :
Mr.Ayyanar Premkumar, For Mr.D.S.Haroon Rashee, Addl. Public Prosecutor

O R D E R

  1. This petition has been filed to call for the records relating to the C.C.No.137 of 2013 on the file of Judicial Magistrate Court, Sivakasi and quash the same as illegal.
  2. Initially, this quash petition was filed by the petitioners through their counsel M/s.Ajmal Associates and during the pendency of the quash petition, the petitioners have revoked the vakalath given to M/s.Ajmal Associates and Syed Mohammed / 4th petitioner herein appeared in person with authorization from other petitioners.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com.
  3. During the course of hearing, this Court observed that Syed Mohammed / 4th petitioner herein requires legal assistance and therefore, this Court requested Mr.A.Prasanna Rajadurai, Advocate to appear pro bono for the petitioners and adjourned the case to today.
  4. This Court heard Mr.A.Prasanna Rajadurai, Advocate, Mr.Syed Mohamed / Party-in-person, Mr.Ayyanar Premkumar, learned counsel for the defacto complainant and Mrs.S.Prabha, learned Government Advocate (Crl.Side) for the State and reserved orders.
  5. It is seen that Thameema / 2nd respondent (defacto complainant) got married to Kaleel Ahamed Sahib / 1st petitioner (A1) on 10.05.2009 and their marriage ran into rough weather. Thameema lodged a complaint sometime in January, 2012 before the Sub-Inspector of Police, All Women Police Station, Madurai Town, alleging the acts of cruelty against her husband and in-laws. The Police called both parties for enquiry. During enquiry, the couple agreed to reunite and establish a separate household. Thameema gave a letter dated 01.02.2012 to the Sub-Inspector of Police, All Women Police Station, Madurai Town, wherein she has stated that she is willing to join her husband and that the jewellery, which was given to her during marriage are in the custody of her parents. She withdrew the complaint given by her. Thereafter, again some dispute arose between the couple on account of which Thameema lodged a fresh complaint on 07.07.2012 before the Sub-Inspector of Police, All Women Police Station, Madurai Town. Since the Police did not take any action, she filed a petition in Crl.O.P.(MD) No.9676 of 2012 under Section 482 Cr.P.C. before this Court for a direction to the Police to register an FIR on her complaint. Pursuant to the order passed by this Court, the Sub-Inspector of Police, All Women Police Station, Madurai Town, registered a case in Crime No.8 of 2012 on 18.08.2012 under Section 498(A) IPC and Section 4 of Dowry Prohibition Act against her husband and in-laws.
  6. Subsequently, for lack of territorial jurisdiction, the FIR was transferred to the file of All Women Police Station, Sivakasi, where the case was re-registered as Crime No.6 of 2013. The Sivakasi Police referred the matter to the District Social Welfare Officer for enquiry. The enquiry report dated 01.04.2013 by the District Social Welfare Officer clearly states that the dispute is purely a matrimonial dispute and there is no material to infer that the accused had demanded dowry. However, the respondent police filed a final report in C.C.No.137 of 2013 before the learned Judicial Magistrate, Sivakasi against all the four petitioners for offences under Sections 498(A) and Section 4 of Dowry Prohibition Act.
  7. Mr.A.Prasanna Rajadurai, learned counsel appearing for the petitioners submitted that the same allegations were made by the defacto complainant in the 1st complaint that was filed before the All Women Police Station, Madurai and during enquiry, she has categorically stated that she is ready to live with her husband in a separate household. She has also stated that her jewellery are with her parents. Thereafter, when the 1st petitioner pronounced Triple Talaq before Ramanathapuram District Shariath Council in Case No.41 of 2012 on 15.09.2012, the defacto complainant has revived her previous complaint, resulting in the Police filing the impugned final report.
  8. On the contrary, Mr.Ayyanar Premkumar, learned counsel for the defacto complainant submitted that there are sufficient materials for the trial to proceed against the accused and this is not a fit case to quash the prosecution.
  9. Learned Government Advocate (Crl.Side) also supported the stand of the defacto complainant.
  10. This Court gave its anxious consideration to the rival submissions and perused the final report and accompanying documents.
  11. From the records, it is apparent that the defacto complainant gave a complaint, in which she has stated that she is being taunted by her in-laws in the joint family. She withdrew the complaint on 01.02.2012 by accepting to live in a separate household with her husband. She has also stated that the jewels given to her are with her parents. Thereafter, she has changed her stand, perhaps because, her husband had pronounced triple talaq.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com.
  12. Be that as it may, the allegations in the final report as against parents-in-law and sister-in-law are indeed very vague. Even according to the final report, Mariyam Kani (A3) was married to one Mohammed Sindhasha and is living separately in No.170, Sakkarai Vava Street, Sivakasi, but whereas the other accused are living in No.19, Periyapillai Rowther Street, Sivakasi.
  13. The Supreme Court in Sushil Kumar Sharma vs. Union of India and Others [W.P.(civil) 141 of 2005] decided on 19.07.2005, has observed as follows: “……But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work…..”
  14. In yet another judgment in Arnesh Kumar vs. State of Bihar and another, reported in (2014) 3 MLJ (Crl) 353 (SC), the Supreme Court has expressed its view as under: “……..There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested….”
  15. On a careful reading of the final report and the statements, this Court is of the view that the prosecution as against Basaria Begum (A2), Mariyam Kani (A3) and Syed Mohammed (A4) is only abuse of process of law and there are materials for the prosecution to proceed against Kaleel Ahamed Sahib (A1).
  16. In the result, this Criminal Original Petition is partly allowed and the proceedings in C.C.No.137 of 2013 on the file of Judicial Magistrate Court, Sivakasi as against Basaria Begum (A2), Mariyam Kani (A3) and Syed Mohammed (A4) alone are quashed.
  17. This petition as against Kaleel Ahamed Sahib (A1) stands dismissed. Consequently, connected miscellaneous petitions are closed.

 

To

  1. The Judicial Magistrate, Sivakasi.
  2. The Inspector of Police, All Women Police Station, Sivakasi, Virudhunagar District.
  3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..

Kerala HC Reduces waiting period for mutual consent divorce to one year for Christians

Mutual consent Divorce made easier / faster for Christians in Kerala. Hope other high courts follow

In a landmark judgement the honourable Kerala High Court has reduced the mandatory period of waiting From two years to one year for all mutual consent divorces under the special marriage act.

The honourable court has rightly considered that the right to marry and the right to divorce are inalienable rights which are needed for life liberty and pursuit of happiness. Hence The court has opined that the law of marriage and divorce cannot be different for Indians following different religions

******* decision from the honourable High Court is given below for the benefit of members ******

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 20076 of 2009(R)

1. SAUMYA ANN THOMAS, AC-18, ARTIEE COMFORT….. Petitioner

Vs

1. THE UNION OOF INDIA, REPRESENTED BY … Respondent

2. PRAVEEN THOMAS, THAZHETHIL ST. MARYS

For Petitioner :SRI.P.B.SAHASRANAMAN

For Respondent :SRI.PRATHEESH.P

The Hon’ble MR. Justice R.BASANT

The Hon’ble MRS. Justice M.C.HARI RANI

Dated :25/02/2010

O R D E R

R. BASANT & M.C. HARI RANI, JJ.

W.P.(C) No. 20076 of 2009-R

Dated this the 25th day of February, 2010

JUDGMENT

Basant,J.

Is the stipulation of a period of two years as the minimum mandatory period of separate residence in Sec.10A(1) of the Divorce Act right, just and fair? Is it arbitrary, fanciful and oppressive? Does that stipulation offend Art.14 and/or Art.21 of the Constitution? Does that stipulation deserve to be read down to "one year" to save the provision from the vice of unconstitutionality? These interesting contentions are raised for our consideration in this writ petition.

2. These questions arose for consideration before us in this writ petition as also in W.P.(C) No.24219/08. Both were heard together. We have had the advantage of hearing Sri. G.Shrikumar, the learned counsel who was requested to render assistance as amicus curiae to this Court. We have also heard the arguments of Advocates M/s T.S. Harikumar, Liji J. Vadakkedom, H.B. Shenoy and T.P.M. Ibrahim Khan, the learned Assistant Solicitor General of India. W.P.(c) No.24219/08 is being disposed of by a separate judgment in view of certain vital difference in the facts scenario in that case. In fact we note that the bulk of arguments were advanced in W.P.(c) No.24219/08. We must straightaway record our appreciation for the able and effective assistance rendered to us by Sri.G. Shrikumar who appeared as amicus curiae as also Advocate Sri. Ligi J. Vadakkedom who appeared for one of the parties.

3. To the vital and crucial facts first. The petitioner and the 2nd respondent are spouses. They are Christians by faith. Their marriage was solemnized on 6/4/08 in accordance with Christian religious rites. Differences and disagreements arose instantly after marriage and the spouses started separate residence with effect from 21/9/08. The petitioner herein filed an application for divorce on 5/12/08. That petition was numbered as O.P.No.1313/08. During the pendency of that petition, the parties appear to have settled all their outstanding disputes. They entered into Ext.P1 agreement. They consequently filed I.A.No.536/09 with a prayer that the marital tie may be dissolved by a decree for divorce on mutual consent under Sec.10A of the Divorce Act. They filed I.A.No.537/09 to dispense with the waiting period of six months under Sec10A(2) of the Divorce Act. By the impugned order, the court below rejected both the applications holding that the period of two years having not elapsed admittedly from the date of commencement of separate residence, this joint petition under Sec.10A of the Divorce Act is not maintainable.

4. The learned counsel for the petitioner as also the learned counsel for the 2nd respondent have been heard. The learned counsel for the spouses assail the impugned order on the following grounds: 1. The period of two years stipulated under Sec.10A(1) and the period of six months stipulated under Sec.10A(2) of the Divorce Act must have been waived and dispensed with by the learned Judge of the Family Court. 2. The stipulation of a period of two years under Sec.10A(1) is arbitrary, capricious and fanciful; is not fair, just, right and reasonable and consequently offends the right to equality of the petitioner under Art.14 of the Constitution and her right to life under Art.21 of the Constitution. The same is liable to be read down as one year and consequently divorce under Sec.10A of the Divorce Act is liable to be granted.

5. To appreciate this contention raised, we deem it necessary to extract Sec.10A of the Divorce Act. It reads thus: "10A. Dissolution of marriage by mutual consent.– (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree."(emphasis supplied) The provision is in substance a verbatim reproduction of the provision in Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Divorce Act and Sec.28 of the Special Marriage Act. The only difference is that instead of the period of two years mentioned in Sec.10A(1) emphasised above, one year is the period of separate residence stipulated in those provisions.

6. The first contention is that the period of two years under Sec.10A(1) and the period of six months under Sec.10A(2) of the Divorce Act must have been waived by the Family Court in its discretion. We find absolutely no merit in this contention at all. Under the body of Sec.10A(1), four conditions must co-exist before an application can be made. They are: A. The marriage between the spouses must have been solemnized; B. They have mutually agreed that the marriage should be dissolved by mutual consent; C. That they have not been able to live together; and D. That they have been living separately for a period of two years or more.

7. We are satisfied that these are the essential requirements/ingredients/preconditions which must be established to justify an application for dissolution of marriage by mutual consent under Sec.10A(1). These conditions must co- exist to justify an application for divorce. There is no provision
– express or implied, which can enable the court to waive/reduce the mandatory minimum period of separate residence stipulated under Sec.10A. That contention cannot hence be accepted at all.

8. There was a contention raised at the Bar initially that it is enough that conditions A and B specified above along with condition C and/or D alone need be satisfied. After detailed discussions at the Bar, that contention is not pressed. We are not hence delving deeper into that contention. Suffice it to say that such a contention is not justified by the language of Sec.10A. All the above four pre conditions – A, B, C and D must co-exist to justify institution of proceedings for dissolution of marriage by mutual consent under Sec.10A(1) of the Divorce Act.

9. We may also mention that we find no merit in the contention that the period of six months stipulated under Sec.10A(2) can and must have been waived by the Family Court. We have already dealt with this question in detail in M. Krishna Preetha v. Dr. Jayan Moorkkanatt & another in Mat. Appeal No.633/08 dated 22/2/2010. Following the decision of the Supreme Court in Anil Kumar Jain v. Maya Jain (2009 (12) SCALE 115), we have held that no court other than the Supreme Court invoking its power under Art.142 of the Constitution can dispense with the mandatory period of six months specified under Sec.10A(2) of the Divorce Act. In these circumstances, we find no merit in the challenge raised on ground No.1 above.

10. We now come to the second ground raised above. Marriage in the Christian and Indian traditional thought has been accepted as an indissoluble sacrament. Divorce and re- marriage which are common concepts today were unknown to these systems of law. With passage of time marriage as a purely indissoluble sacrament has undergone changes conceptually. Marriage today is not looked upon in law as merely a divine institution made in heaven with the incident of indissolubility. Marriage and its dissolution, in modern judicial and legal thought, is reckoned as the incident of the human right of right to life. Marriage today is a social institution of partnership, friendship, mutual complementarity, love, affection, caring and sharing between two equal partners. Partners walk into the institution of marriage purely based on their consent and volition though after they enter such institution voluntarily, they are bound by the legal norms, ideas and procedure.

11. From a totally indissoluble institution, winds of change have swept the institution of marriage. Initially divorces on the ground of marital contumaciousness and non-existence of vitals necessary to make a marriage work were recognised by law. But later it was recognised that matrimony is after all a human institution – a bond created by exercise of the free act of will by the partners who are responsible; but fallible individuals who may err and blunder. With this emerged the concept of divorce by mutual consent. When the partners find it impossible to live out their lives with happiness and meaningfully, they were granted the option in law to walk out of such marriage subject to conditions by mutual consent. Today, most modern systems of jurisprudence recognise and accept the right of the spouses to get their marriage dissolved by mutual consent. This transformation in the concept of marriage and its dissolution and acceptance of those altered concepts by the legal systems did not take place one fine morning. Many a battle had to be fought socially and legally before the concept of divorce by mutual consent was accepted by the polity and approved by the legislature. The Indian experiment shows that the Special Marriage Act, 1954 in Sec.28 recognised the concept of dissolution of a secular marriage by mutual consent. Long later, in 1976 the concept of divorce by mutual consent was accepted and recognised under the Hindu Marriage Act. Still later in 1988 the Parsi Marriage and Divorce Act in Sec.32B accepted and recognised the concept of divorce by mutual consent. To get the concept introduced into the Divorce Act, 1869 we had to wait for a lot more of time. In 2001, after the Courts and the Law Commission incessantly demanded the incorporation of such a provision, Sec.10A of the Divorce Act found its way into the Act. It is thus that the concept of divorce by mutual consent was accepted under the Divorce Act.

12. But when the said provision was incorporated in the Divorce Act, surprisingly instead of a period of one year as the mandatory minimum separate residence, a period of two years was stipulated under Sec.10A(1) of the Divorce Act. It is that stipulation which is challenged before us.

13. It is contended that the incorporation and insistence of a longer period of mandatory minimum separate residence so far as the persons to whom the Indian Divorce Act applies is discriminatory. What is the justification for such a longer period mandatory minimum separate residence for those to whom the Indian Divorce Act applies; it is queried. It is argued that there is absolutely no principle or reason that justifies insistence on such longer period of separate residence so far as the Christians alone are concerned, to whom the Divorce Act applies. The constitutional mandate of equality is offended, it is urged. The core constitutional value of equality and equal protection of the law Art.14 of the Constitution is offended, contend the counsel. If the mandatory minimum period of separate residence of one year is sufficient for those to whom the secular law of divorce by mutual consent under Sec.28 of the Special Marriage Act, and Hindus to whom Sec.13B of the Hindu Marriage Act and Parsis to whom Sec.32B of the Parsi Marriage and Divorce Act, there is no justification constitutionally acceptable for insisting on a different longer period of mandatory minimum separate residence so far as the Christians to whom Sec.10A of the Divorce Act applies, contend counsel. The learned counsel urge that the stipulation is unconstitutional as it offends the mandate of equality under Art.14 of the Constitution.

14. It is secondly contended that such stipulation of the longer period of minimum mandatory separate residence offends the right to life guaranteed under the Constitution. It is trite that the right to marry and right to obtain divorce by mutual consent must be reckoned as incidents of the right to life. Right to life can be curtailed or regulated only by procedure established by law. Such procedure, to pass the test of constitutionality must be fair, just, reasonable and right and should not be arbitrary, fanciful or oppressive. The stipulation of the longer period of two years is arbitrary, fanciful and oppressive. It is unreasonable. It offends the core constitutional value of respect to the dignity of life. Spouses during their active period of fertility and re-productivity will be unnecessarily and unreasonably obliged to conform to the oppressive stipulation of living in a dead marriage for one more year. This offends their right to life and the right to pursue happiness, it is urged. It is contended that the stipulation of the longer period of two years under Sec.10A(2) to justify a claim for divorce by mutual consent for the Christians alone offends not only the right to equality under Art.14 of the Constitution; but it also offends the right to life under Art.21 of the Constitution. It places unreasonable, arbitrary and baseless fetter of the spouses to enjoy life and pursue happiness, contend counsel.

15. The learned counsel, in these circumstances, contends that the stipulation of the period of two years in Sec.10A(2) of the Divorce Act must be held to offend the fundamental rights guaranteed under Part III of the Constitution and consequently that stipulation must be held to be unconstitutional. Sec.10A as it now stands must be declared to be unconstitutional under Art.13 of the Constitution. The consequent prayer is that to avoid unconstitutionality the period of two years stipulated in Sec.10A(2) may be read down to a period of one year, in tandem with the periods stipulated in Sec.28(1) of the Special Marriage Act, Sec.13B(1) of the Hindu Marriage Act and Sec.32B(1) of the Parsi Marriage and Divorce Act.

16. This argument advanced by Sri.G. Shrikumar, amicus curiae, mainly is endorsed by the other counsel who appeared for the parties.

17. Sri.T.P.M. Ibrahim Khan, the learned Assistant Solicitor General of India, on the contrary, contends that the provision is absolutely valid, correct and constitutional. It is not vitiated by the vices against which Arts.14 and 21 of the Constitution are safeguards. The learned ASGI resists the contention on the following specific grounds:

18. First of all, the learned ASGI points out that the personal laws are not ‘laws’ or ‘law in force’ within the sweep of Art.13 of the Constitution. The learned ASGI places reliance on the decision of the Division Bench of the Bombay High Court in The State of Bombay v. Narasu Appa (AIR (39) 1952 Bombay
84). The counsel contends that this view has been accepted by the Supreme Court in Srikrishna Singh v. Mathura Aahir & Others ((1981) 3 SCC 639). In these circumstances, a piece of personal law cannot be assailed on the ground that it offends the fundamental rights guaranteed under Part-III of the Constitution. Art.13 has no application whatsoever in such a situation, contends the learned ASGI.

19. Sri.G. Shrikumar, the amicus curiae, questions the correctness of the dictum in Narasu Appa (supra). The learned counsel contends that the view taken by the Bombay High Court in that decision has not been approved by jurists. The learned counsel points out that Sri.H.M. Seervai in his work "Constitutional Law of India" has opined as follows:"There is no difference between the expression "existing law" and "law in force" and consequently personal law would be "existing law" and "law in force". This conclusion is strengthened by the consideration that custom, usage and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them; it was, therefore, necessary to treat the whole of personal law as law in force under Article 372 and to continue it subject to the provisions of the constitution and subject to the legislative power of the legislature."
It is further pointed out that the learned author has finally opined as follows:
"Finally Entry 5 List 3 Schedule VIII of the Constitution clearly recognizes personal law as a law which parliament and state legislature can enact, alter or repeal. For these reasons it is submitted that the personal law of a community is law and is "law in force" or "existing law" within the meaning of the constitution."

20. The learned counsel further points out that many other authors, including Chitaley on the Commentaries on the Constitution of India have made critical reference to this aspect of the decision excluding personal laws from the sweep of Art.13 of the Constitution.

21. Sri. G. Shrikumar further points out that Justice V.R. Krishna Iyer as early as in Assan Rawther v. Ammu Umma (1971 KLT 684) has disagreed with the proposition enunciated in Narasu Appa (supra) by observing as follows in para-23: "In the Bombay case, the learned Judges went to the extent of laying down that personal law is not included in the expression "laws in force" used in Article 13(1). With great respect, I demur to the proposition and to the reasoning adopted in reaching this result. Personal law so-called is law by virtue of the sanction of the sovereign behind it and is, for that very reason, enforceable through court. Not Manu nor Muhammed but the monarch for the time makes ‘personal law’ enforceable.
Article 13(1) gives an inclusive and not exhaustive definition. And I respectfully venture the opinion that Hindu and Mohamedan laws are applied in courts because of old regulations and Acts charging the courts with the duty to administer the personal laws and not because the ancient law-givers obligate the courts to enforce the texts."
(emphasis supplied) Sri. G. Shrikumar further points out that the Supreme Court in Sarla Mudgal v. Union of India (AIR 1995 SC 1531) has also taken the view that the personal law owes its existence as law not to any religion; but to legislation and the willingness of the courts and the sovereign to enforce such personal law. The counsel relies on the following passage in para-35 of Sarla Mudgal (supra): "It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc., only under the Regulations of 1781 framed by Warren Hastings. The Legislation – not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/ supplemented by introducing a uniform civil code."
(emphasis supplied)

22. It is also brought to our notice that a learned single Judge of Bombay High Court in Re Smt. Amina (AIR 1992 Bombay 214) has doubted the proposition enunciated in Narasu Appa (supra) and had referred the matter to a larger Bench. Our attempts to ascertain the result of the said reference has not been successful. We note that the Delhi High Court had also made an effort to trace the answer on reference by the larger Bench; but as stated in Kalawati v. Union of India (L.A.A.No.650/08 and CM No.9226/08 dated 27/1/09), that court was also not able to trace the outcome of the reference. We are now given to understand that the Division Bench had declined to answer the reference by judgment dated 6/11/1993.

23. The learned ASGI submits that a Division Bench of this Court in Mathew & Another v. Union of India (1999 (2) KLJ
824) has also accepted the dictum in Narasu Appa (supra) and, in these circumstances, no doubts can be entertained now about the acceptability of that dictum. The learned ASGI further points out that in Shri Krishna Singh v. Mathura Ahir ((1981 3 SCC 689) in para17 the Supreme Court has virtually endorsed the dictum in Narasu Appa (supra) in the following words:"In our opinion, the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties, he could not introduce his own concepts of modern times but should have enforced the law as derived from recognised and and authoritative sources of Hindu Law, i.e., Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except, where such law is altered by any usage of custom or is modified or abrogated by statute."
(emphasis supplied) We have serious doubts about the proposition that a piece of personal law – whether statutory or precedent recognised or otherwise, will not be law or law in force within the meaning of Art.13 of the Constitution. This would go against the fundamental and core constitutional values as also the scheme of Art.13 of the Constitution.

24. All laws whether pre constitutional or post constitutional will have to pass the test of constitutionality. We find no reason, in a secular republic, to cull out "personal law" alone and exempt the same from the sweep of Art.13 and Part III of the Constitution. With great respect to the eminent Judges who decided Narasu Appa (supra), we feel that the decision requires reconsideration. A piece of personal law also binds citizens. It is as much a piece of enforceable law notwithstanding the fact that such principles of personal law may not be statutory law and may only have been accepted and enforced by the sovereign and acted upon by the courts for a long period of time. Art.13 assures the citizen that pre- constitutional or post-constitutional laws shall not be permitted to eat into space of fundamental rights reserved by ‘we the people of India’ in favour of themselves while giving unto themselves the constitution. In that view of the matter, we are certainly of the opinion that the decision in Narasu Appa (supra) which appears to have been endorsed in Mathew (supra) deserves re-consideration. Mathew (supra) does not appear to have delved deeper into question before endorsing Narasu Appa (supra). We are tempted to agree with the learned single Judge who opined in Re Smt. Amina (AIR 1992 Bombay 214) that the observations of the Supreme Court in Shri Krishna Singh (supra) extracted above cannot be reckoned as ratio. In an appropriate case, we shall certainly want the matter to be decided by a larger Bench.

25. Be that as it may, we are of the opinion that this question need not be referred to a larger Bench in this case. We are not dealing with a piece of traditional personal law pure and simple. We are dealing with a piece of statutory law enacted by the Parliament. Sec.10A has been introduced into the Divorce Act by the legislative act of Parliament. Notwithstanding the fact that such statutory law amends the personal law, it will certainly have to satisfy Part III of the Constitution and will hence be open to challenge under Art.13. On this question, we find absolutely no doubt. If there be any doubt, the decision of the Full Bench of this Court in Mary Sonia Zachariah v. Union of India (1995 (1) KLT 644 (FB)) lays to rest all such doubts. After adverting to Narasu Appa (supra), the Full Bench has observed thus in para-39:" 39. Another contention of the learned Central Government Pleader was that the impugned provisions in S.10 are codified forms of personal laws of Christians in India founded on the teachings of Christ and his disciples. Such personal laws may not come within the purview of Art.13 of the Constitution of India and as such cannot be declared as ultra vires the Constitution. Learned counsel has in this connection relied upon the decision in The State of Bombay v.Narasu Appa Mali (AIR 1952 Bom. 84) where it has been held that personal laws are not covered by Art.13 of the Constitution of India. We do not find any merit in the above contention as we are in this case directly concerned with a particular provision in an enactment passed by the legislature unlike in the case which came up for consideration in Narasu Appa Mali’s case. So long as the infringed provisions are part of an Act, it must pass the test of constitutionality even if the provision is based upon religious principles. We would accordingly repel the said contention also."(emphasis supplied)

26. We do further note that the Supreme Court in Shri Krishna Singh (supra) which decision, according to the learned ASGI, endorses and approves the dictum in Narasu Appa (supra) has also observed that when personal law is altered, "modified or abrogated by statute", the same will have to satisfy the test of Art.13. (See para-17 of Shri Krishna Singh already extracted above).

27. We do, in these circumstances, hold that even if the dictum in Narasu Appa (supra) is valid and binding and has been approved by a co-equal Bench of this Court as well as the Supreme Court, the same cannot in any way justify the contention that Sec.10A of the Divorce Act is not amenable to challenge under Art.13 of the Constitution. The said contention must, in these circumstances, fail. We hold that Sec.10A of the Divorce Act shall have to stand the test of Art.13 of the Constitution.

28. The learned ASGI next contends that classification is inherent in legislation and the mere fact that there has been classification of Christians as a separate group in the matter of divorce by mutual consent to stipulate a different period of minimum mandatory separate residence cannot be said to offend Art.14. Relying on precedents which we find unnecessary to specifically refer, the learned ASGI contends that the classical test as judicially enunciated demands that two conditions must be fulfilled. They are:(1) The classification must be founded on an intelligible differential which distinguishes those that are grouped together from others.(2) The differential must have a rational relation to the object sought to be achieved by the law under challenge.
There can be no dispute on this proposition of law. Classification is permissible and differential in classification can be justified only if the above two tests are simultaneously satisfied by the piece of law under challenge. It is also well settled that classification on the basis of religion in the matter of personal laws is justified. These general principles are not disputed. But the learned counsel argue that these tests are not satisfied in the instant case.

29. They argue that concept of divorce by mutual consent is unknown to the Christian personal law. It is not modification or amendment of an existing stipulation regarding divorce applicable to Christians. Sec.10A attempts to introduce the secular concept of divorce by mutual consent into the personal law. Christian, Hindu or Parsi religions had not permitted divorce by mutual consent under their traditional personal law. The concept is alien to all these religions identically. The secular concept of divorce by mutual consent had gained currency and acceptance in the system. There was demand from members of these communities that such concept must be made applicable to them and they should not be denied the benefit of such divorce by mutual consent merely because they had chosen to get their marriages solemnised by following the traditional rites available in their community. It is this demand – by people of all religions that the secular concept of divorce by mutual consent must be made applicable to them also that prompted the legislature to bring in amendments to the personal laws by Acts of Parliament. The classification is not on the basis of religion. The classification is on the basis that the beneficiaries are spouses who want the benefit of divorce by mutual consent, notwithstanding the fact that they belong to a religion which does not recognize divorce by mutual consent and have got their marriages solemnised by observing religious rituals and rites. Those who belong to such a group cannot be discriminated on the basis of their religion. The community may initially have been unwilling to accept such an altered progressive concept regarding divorce. The provision may have been introduced into the Divorce Act belatedly on account of such assumption of parliament about reluctance of the community to accept change. But having chosen to introduce the provisions relating to divorce by mutual consent into the Christian law of divorce and having decided to make the said benefit available to them, the legislature is not justified in discriminating against Christians who belong to that larger group of spouses wanting the benefit of the secular concept of divorce by mutual consent solely on the basis of their religion.

30. The argument in short is this. We belong to a larger group of Indians who do not want religion to interfere with our right to claim divorce by mutual consent. It is for the benefit such larger group of Indians that the legislature has chosen to introduce the concept of divorce by mutual consent. To those who had married under the secular Special Marriage Act the benefit was made available in 1954 when Sec.28 of the Special Marriage Act was enacted. In 1956 it was made applicable to the Hindus in the group. In 1988 it was made applicable to Parsis in the group. In 2001 it was made applicable to Christians in that group. For Muslim this is not necessary as they can get their marriage dissolved by mutual consent already under their personal laws without the intervention of the court. Now the concept of divorce by mutual consent is applicable to all Indians. Having made it applicable to all Indians belonging to that group, it is not constitutionally right, just or fair to discriminate among the Christian members of the group/classification on the ground of their religion and to insist on a longer period of mandatory minimum separate residence so far as they are concerned.

31. We have first of all got to see what is the basis of the classification? The dominant rationale for classification, we must note is the anxiety and the yearning of the legislature, in response to popular demands, that the secular concept of divorce by mutual consent must be made available and applicable to the followers of all religions who want to take advantage of the same. They are people who may have got their marriages solemnized in accordance with their respective personal laws; but want such marriages to be dissolved on the ground of mutual consent. That is the dominant principle of classification. To such class of persons benefits have been extended by amendment and incorporation of identical provisions in the statutory law relating to marriage. The beneficiaries do not primarily and dominantly belong to the class of Christians, Hindus or Parsis. They are not classified for the purpose of the amendment on the basis of their religion at all. They belong to the class of persons who notwithstanding the solemnization of their marriage under the personal law and notwithstanding the absence of such provisions in their personal law, want to claim the benefit of such dissolution of marriage by mutual consent as is available to those who have got their marriage solemnized under the secular law i.e., the Special Marriage Act. After having identified such a class of persons and after having chosen to extend the benefit of divorce by mutual consent which is totally alien to their personal law to them, though at different points of time there is, according to us, absolutely no justification in again classifying them on the basis of their religiou and applying the law unequally to such a homogeneous group of persons on the basis of their religious identity. Religious identity is irrelevant to such a group of persons who want to transcend their religious identity and claim the benefit of the secular concept of divorce by mutual consent. The sub-classification in such a broad group on the basis of their religion and differentiation against them must obviously be held to be unconstitutional as the discrimination and differentiation is unrelated to the purpose and object of classification.

32. We do first of all look at Art.44 of the Constitution which enjoins that the State must endeavour to secure for all its citizens a uniform civil code through out the territory of India. The preamble of the Constitution declares and stipulates that the Union of India shall be a sovereign, secular, socialist, democratic republic. The core values of the constitution are declared. Secularism without any dispute is one of the basic features of the Indian Constitution. The State cannot be secular until the polity also becomes secular. Constitutional secularism is not denying religion as such. The core of Constitutional secularism is the realistic understanding and acceptance that the religions shall not transgress into domains and areas where religion is and ought to be irrelevant.

33. Art.44 of the Constitution mandates that there must be a uniform civil code in India. All Indians ideally will have to come under the umbrella of a uniform civil code which will contribute to the creation of national identity and character. Persons who have imbibed the core constitutional value of secularism and the constitutional dream of the polity having a uniform Indian civil laws are members of the classified group to whom this law is expected to cater. Sec.28 of the Special Marriage Act, Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Sec.10A of the Divorce Act are all attempts of the legislature to make the law of divorce by mutual consent applicable to this broad classification/group of individuals. The law classifies them into one group and makes the benefit of the concept of divorce by mutual consent, unknown to their respective traditional personal law, available to them. Due to pressure of obscurantist religious groups this could not evidently be introduced simultaneously by Parliament by enacting a law applicable to all in the group. Progressively one by one the benefit has been extended to the followers of all religions. When the legislature has perceived that the time is ripe to extend the benefit of the concept to a particular community, to further discriminate them on the basis of their religion is certainly anathema to law. It offends the principle of equality. The stipulation of the longer period of mandatory separate residence, the differential, has no rational relationship to the object sought to be achieved. In short, we agree that classifying persons into one group to extend the benefit of the secular concept of divorce by mutual consent to them by progressive amendment of the personal law though in stages and later discriminating among them on the basis of religion by prescription of a longer period of mandatory minimum separate residence clearly offends the mandate of equality under Art.14 of the Constitution. We take the view that such prescription offends Art.14 and must hence be held to be unconstitutional.

34. The learned counsel alternatively argue that the discriminating stipulation offends the right to life guaranteed under Art.21 of the Constitution. The stipulation obliges those to whom Sec.10A will be applicable to continue in dead matrimony for a period of one year more. This obligation is not there for persons belonging to other religions. Willing couple who want to avail the benefit of the concept of divorce by mutual consent will have to waste one extra year during the prime period of life only to satisfy the unreasonable statutory stipulation of a longer period. This would offend their right to life and their right to pursue happiness. The imposition of such an onerous condition on one section of the populace alone is arbitrary, fanciful and oppressive. It is not fair, just and right, contend the learned counsel.

35. It is now well settled that right to marry and the right to secure divorce must be reckoned as basic and essential incidents of the right to life. Right to life cannot be controlled, regulated or denied except by procedure established by law. This procedure cannot be arbitrary, fanciful or oppressive and must necessarily answer the test of fairness, propriety and reasonableness. Para-56 of the decision in Maneka Gandhi v. Union of India (AIR 1978 SC 597) appears to be relevant and crucial. It reads as follows:"56. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied".(emphasis supplied)

36. In this context it will be apposite to look at the rationale behind the stipulation of a period of mandatory minimum separate residence. The law and the system values and cherishes the institution of matrimony. The concept of marriage being sublime is accepted by the refined polity. Though the polity and State does not look at marriage as purely a divine sacrament it accepts marriage to be the most fundamental and sublime of all human institutions. Marriage is an arrangement/institution between the adult partners which has social and societal implications. Even when the concept of divorce by mutual consent is accepted, the system wants to ensure that a decision to dissolve marriage by mutual consent is taken by the partners only after sufficient forethought. The spouses must decide mutually that the marriage can be dissolved by their mutual consent. They must be satisfied that they are not able to live together. They must actually have been unable to live together and such period of separate residence must be a prescribed mandatory minimum. All this is made only to ensure that a decision to dissolve marriage is not taken hastily and without sufficient forethought or contemplation. This anxiety of law is reflected in Sec.28(2) of the Special Marriage Act, Sec.13B (2) of the Hindu Marriage Act and Sec.10A(2) of the Divorce Act. Even after the parties take a decision to dissolve marriage by mutual consent and file an application, they have to live with the decision, contemplate the same, sleep over the decision and wait for a period of six months before a court can pass any order on the basis of such a joint application. Only if the request is repeated after the said period of six months, can the court grant a decree for divorce by mutual consent.

37. We intend to note that the prescription of the period of mandatory minimum separate residence has an objective to serve, that is to ensure the interests of sufficient forethought and contemplation before an application is filed. Even thereafter, the contemplation must continue. The stipulation of the period of minimum mandatory separate residence thus serves this purpose. Considering the purpose and the group of people to which such purpose is to apply and operate, we find the stipulation of different periods for different religions totally unjustified. That renders the stipulation not fair, just and right. It renders the stipulation unreasonable, arbitrary, fanciful and oppressive. In that view of the matter, we are satisfied that Art.21 of the Constitution is also offended by the prescription of a separate, different and longer period of mandatory minimum separate residence for those to whom the Divorce Act applies. Having brought all persons belonging to all religions within a group/classification for the purpose of extending the benefit of the concept of divorce by mutual consent and having chosen to make that benefit available to members of all the communities within the group, later stipulation of a different more onerous period to one sub group alone on the basis of the unreasonable and irrelevant basis of religion does certainly, according to us, offend the mandate of right to life under Art.21 of the Constitution. That the discrimination manifests itself not in one common statute but in a separate statute applicable to the victims of discrimination is not relevant while considering the challenge against the unconstitutional discrimination.

38. It is argued by the learned ASGI with the help of the discussions in Parliament that the community had demanded the stipulation of different period considering the difference in the Christian approach to indissolubility of marriage. The learned counsel, on the contrary, argues that having decided to extend the concept of divorce by mutual consent to the members of the Christian community by introduction of Sec.10A of the Divorce Act, there is no basis whatsoever for the contention that they must alone wait for a longer period of minimum mandatory separate residence. The concept of indissolubility of marriage was available in the Indian and Christian thought and the attempt to justify prescription of a discriminatory provision on the mere basis of "demands from the community" is not justified, it is urged.

39. The learned counsel further contend that even parliamentary discussions show that this prescription was questioned and the right of the clergy who are not married men to give authentic opinion regarding marriage on behalf of the laity was questioned even in Parliament. We need not enter into that domain at all. We need only note that having chosen to introduce the concept of dissolution of marriage by mutual consent, prescription of a longer period does appear to offend the mandate of equality undoubtedly. The attempt to justify the same on the vague and assumed basis of demands from the community cannot be held to be sufficient to avoid the vice of arbitrariness.

40. With the help of the decision in Karnataka Bank Ltd., v. State of Andhra Pradesh (2008 (2) SCC 254) it is argued by the learned ASGI that in pronouncing the constitutional validity of a statute the court is not concerned with the wisdom or unwisdom, the justice or injustice of law. If that which is passed into the law is within the scope of power conferred on a legislature and violates no restriction of that power the law must be upheld whatever a court may think of it. It is further argued that the presumption of constitutionality must apply to Sec.10A of the Divorce Act. The court cannot lightly assume the same to be not fair, just and right or arbitrary, fanciful and oppressive. It must be remembered that the wisdom of the legislative policy is not to be questioned at all before the courts.

41. We have no quarrel with this proposition. We are reminded by learned counsel with the help of the decision in A.L. Karle v. The Project and Equipment Corporation of India Ltd., (AIR1984 SC 1361) that the wisdom of legislative policy is not open to judicial review but when the wisdom takes the concrete form of law, the same must stand the test of being in tune with the fundamental rights and if it trenches upon any of the fundamental rights it is void as ordained by Article 13 of the Constitution.
42. In the domain of policy, it is the legislative decision which will prevail. The wisdom or un-wisdom, justice or injustice of the policy cannot be called in question in judicial review. But when the wisdom takes the concrete form of law the legislative provision will have to stand the test of Art.13 and if the legislative stipulation offends any fundamental right under Part- III of the Constitution Art.13 will come into operation and the offending provision will have to be declared to be void.

43. Having considered all the relevant circumstances, we are of the opinion that the stipulation of a higher period of two years of mandatory minimum separate residence for those to whom the Divorce Act applies, in contra-distinction to those similarly placed to whom Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Divorce Act and Sec.28 of the Special Marriage Act would apply, offends the mandate of equality and right to life under Arts.14 and 21 of the Constitution.

44. What is to be the consequent order is the next question. Applying the doctrine of severability as has been held in D.S. Nakara v. Union of India (1983 SC 130) we are satisfied that we will be well within the power of this Court to read down such an unconstitutional provision which is unrelated to the object sought to be achieved The stipulation of two years can be severed and can be read down to one year to bring it to be in conformity with the provisions of other laws to avoid the vice of unconstitutionality.

45. We come back to the facts of the case. The marriage was solemnized on 6/4/08. Separate residence commenced on 21/9/08. Separate residence has been there for a period exceeding one year on the date of application. A period of six months has already elapsed from the date of filing of the petition. We are satisfied, in these circumstances, that a decree for divorce can be granted as prayed for by the petitioners under Sec.10A of the Divorce Act.

44. In the result:
(a) This writ petition is allowed.
(b) The stipulation in Sec.10A(1) of the Divorce Act that the spouses must "have been living separately for a period of two years or more" is declared to be unconstitutional as the stipulation of the period of "two years" therein violates the fundamental rights to equality and the right to life under Arts.14 and 21 of the Constitution.
(c) To save the provision and to avoid the vice of unconstitutionality the period of "two years" stipulated in Sec.10A of the Divorce Act is read down to a period of "one year".
(d) The common impugned order passed by the court below is set aside. It is found that the petitioners are entitled to a decree for divorce under Sec.10A of the Divorce Act.
(e) Invoking the powers of the Family Court under Sec.10A of the Divorce Act as so read down, the marriage between the petitioner and the second respondent solemnized on 6/4/08 is hereby dissolved under Sec.10A of the Divorce Act.

Sd/-

R. BASANT (Judge)

Sd/-

M.C. HARI RANI (Judge)

Nan/ //True Copy//

P.S. to Judge

If women have rights to their father’s property, why are wives asking money from husbands ?? !!

Supreme court clarifies AGAIN that daughters have right to their father’s Property !!

In a historic judgment of far reaching consequences, the Honourable Supreme Court of India has yet again clarified that Hindu daughters have rights to ancestral properties (from their father’s side … The only technical issue is that this law is valid since 2005 … yeah since 11 years ago !!

So, IF daughters have rights to their father’s property, why is my wife asking me for money ???  (please note that Muslim daughters ALREADY had a share according to Sharia, even before this law came into force !!)

I am sure the erudite readers here can help me understand !!


>>>>>> News from IBN  India web portal is given below. However this decision was widely reported in many news papers >>>>>>>>

Daughters can inherit ancestral property if father died after amendment of Hindu Law in 2005: Supreme Court

Posted on: 12:29 PM IST Nov 03, 2015

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New Delhi: In a Supreme Court ruling, daughters can only claim their ancestral property right if ‘father’ died after the amendment of Hindu law.

The apex court has said that a daughter’s right to ancestral property does not arise if the father died before the amendment to Hindu law, which came into force in 2005. Daughter can become a co-sharer in father’s ancestral property if he died after the amendment of Hindu Law.

“The father would have to be alive on 9th of September, 2005, if the daughter were to become a co-sharer with her male siblings,” the ruling said.

The ruling stated that the amended provisions of the Hindu Succession (Amendment) Act, 2005, do not have retrospective effect. The bench comprises of Justices Anil R Dave and Adarsh K Goel held that the date of a daughter becoming co-sharer is on and from the commencement of the Act.

Earlier, under the Hindu Succession Act, 1956, a daughter was not empowered to inherit rights in ancestral property. Later, Congress-led UPA government amended the Act on September 9th, 2005 and empowered them to inherit the ancestral property.

Before the amendment of the act, women could only ask for maintenance from a joint Hindu family. The only restriction in force after the passage of this amendment was that women could not ask for a share if the property had been alienated or partitioned before December 20, 2004, the date the Bill was introduced.