When husband & wife are #separated for 19 years, #HighCourt says enough is enough, NOW #Divorce & stop Litigating !

Husband and wife separated for approx 2 decades

There seems to be No chance of reunion

They have stayed together for just 3 years, separated , then moved thru courts and finally landed at HC

Hon HC grants Divorce !!

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Parties living separate from each other. No chance of their living together. Better that both parties be permanently allowed to live separate from each other. Decree of divorce allowed.

JHARKHAND HIGH COURT
Bench: JUSTICE Hari Shankar Prasad
SHANKAR CHAKRAVARTY Vs. PUSPITA CHAKRAVARTY
On 29 September 2004

JUDGEMENT

1. This appeal, at the instance of the appellant,is directed against the judgment dated 28.8.1998 and decree dated 7.9.1998 passed in Matrimonial Suit No. 19/13 of 1991-97.

2. The case of the petitioner-appellant in brief is that the petitioner is Hindu governed by Hindu Marriage Act, 1955 and marriage of the petitioner with the respondent was solemnized on 25th July, 1982 at quarter No. 12, Jaba Road, Haludbani, P.S. Parsudih,Town Jamshedpur, District Singhbhum Eastaccording to Hindu rites and customs and after marriage respondent came to her Sasural and both the petitioner-appellant and respondent lived together as husband and wife from 26.7.1982 to 1.4.1985. Their marriage was consummated and out of the wedlock a son was born to the petitioner and respondent on 18.11.1983.  https://twitter.com/ATMwithDick The petitioner was maintaining a very good and cordial relation with the respondent. It is stated that during the stay with petitioner the respondent behaved very irrationally with him and his family members and she used to quarrel with all of them and this caused mental suffering to the petitioner. It is further submitted that respondent used to go out of matrimonial home without consent of the petitioner and when petitioner used to protest, then she used to quarrel with him and it is alleged that on 2.4.1985 respondent’s mother Rita Banerjee took the respondent to her home on the plea that respondent shall be staying there for a month and thereafter she will return to the house of the petitioner and at that time mother of the petitioner was seriously ill and petitioner and his family members requested the respondent not to leave her matrimonial home but respondent left the house with her child and articles and did not return from there. https://vinayak.wordpress.com/ The petitioner went tothe house of the mother of the respondent several times and even persuaded the respondent to return with him but the respondent declined and refused to stay with the petitioner as husband and wife and respondent even misbehaved with the petitioner. On 1.8.1986 mother of the petitioner died and on this very occasion the respondent was requested and even persuaded to come but she did not come. Inthe month of July a Panchayati was also held in presence of the petitioner and respondent but that Panchayati could not materialize on count of interference by the mother of the respondent and respondent. Thereafter respondent instituted a case under Section 125, Cr. P.C. for grant of maintenance for herself as well as for her child, which was numbered as Misc. Case No. 6.87 and the aforesaid case was decided on 11.1.1991 and petitioner was directed to make payment of Rs. 300 per month in favour of the respondent and Rs. 200 per month for the child and the petitioner has been paying Rs. 500 per month as maintenance to the respondent and her child. https://vinayak.wordpress.com/ It is alleged that she has deserted continuously for a period of more than 5 years and there has been no cohabitation between the petitioner and respondent during the said period and this has caused cruelty to the petitioner and, therefore, this suit for decree of divorce hasbeen instituted.

3. Respondent appeared and filed written statement and submitted that petition is notmaintainable. It is alleged that ever since marriage of the respondent with petitioner, mother, sister and brother of the petitioner continuously ill-treated and misbehaved with her for the sake of dowry.  https://twitter.com/ATMwithDick Respondents are poor persons and not in a position to meet heavy demands of dowry and that led to ill-treatment of the respondent by the petitioner and his family members and ill-treatment included ruthless beating and some time denial of meal by the petitioner and inmates of his house. It is denied that during her stay with petitioner, she behaved irrationally with the petitioner and his family members and she used to quarrel with them. It is also denied that on 2.4.1985 her mother came and took her away and on the other hand, it is stated that a sum of Rs. 10,000 was demanded from the mother of the respondent for construction of room, which was not fulfilled by the respondent and by her mother, as a result of which respondent was mercilessly beaten by the petitioner and ultimately driven out of the house with only one torn Sari. She has not taken any article with her. It is also denied that petitioner ever visited her mother’s house for taking her away. All allegations that petitioner visited the house of the mother of the respondent and persuaded her and her mother for taking her away are not correct and on the other hand, petitioneralways demanded Rs. 10,000 as dowry.

4. On the other hand, a show cause was filed on behalf of the petitioner in the proceeding under Section 125, Cr.PC and allegation has been leveled that respondent has developed immoral habits at her parentage house and she has no check over her and that is the version of the petitioner and in that view of the matter, can there be any genuine plea on behalf of the petitioner for taking her away to his house. https://twitter.com/ATMwithDick The respondent has alleged that no Panchayati was held and it is further alleged that she has not caused any mental cruelty to the petitioner and further that she has not deserted the house of the petitioner without any reasonable cause.

5. On the aforesaid pleadings of the parties, the learned Court below framed the following issues for their determination in the suit:(i) Whether the petition of the applicant is maintainable?(ii) Whether the petitioner has got valid cause of action?(iii) Whether the respondent is guilty of causing mental cruelty to the petitioner?(iv) Whether the respondent has withdrawn from the society of the petitioner without any reasonable cause or whether the petitioner has kicked her out from his house for the fulfilment of his demand of Rs. 10,000 as dowry for the construction of a room?(v) Whether the applicant is entitled to a decree of divorce as prayed for?

6. The learned Court below, after recording evidence both oral and documentary of the parties concerned, decided the issues and ultimately came to a finding that no case forgrant of decree of divorce is made out and, therefore, dismissed the suit of the petitioner for a decree of divorce.

7. The case of the petitioner-appellant is that his marriage was solemnized according to Hindu rites and customs with the respondent on 25th July, 1982 and the respondent went to his house and remained there till 1.4.1985 and during this period he maintained cordial relations with the respondent and out of the wedlock a son was born to them in 1983 but all of a sudden mother of the respondent came and on the plea that she would stay at her house for a month, took the respondent to her house and since then she has not come back to his house, although he made several attempts to bring her back and even persuaded her mother and her but she is not willing to come to his house. In the meanwhile respondent filed a case under Section 125, Cr. P.C., in which an order was passed and respondent was allowed maintenance allowance @ Rs. 300 per month and Rs. 200 per month for her child and he has been paying Rs. 500 per month as maintenance allowance. https://twitter.com/ATMwithDick On the other hand case of the respondent is that she was brutally assaulted and humiliated by petitioner and even meal was denied to her for non-fulfilment of demand of dowry of Rs. 10,000 which petitioner and his family members made for construction of a room in the house and when she and her mother failed to fulfil his demand she was mercilessly assaulted and ultimately driven out of the house and in such a situation shehas left the house of the petitioner, but not without any reasonable cause.

8. Now the point that arises for determination in this appeal is whether the plaintiff is entitled to grant of decree of divorce on the ground of cruelty and desertion.

9. The learned Court below has perused the evidence of the witnesses produced on behalf of the parties and has also heard the submissions of the parties and after carefulscrutiny of evidence, both oral and documentary, came to a finding that no case for grant of decree of divorce is made out and, therefore, dismissed the suit.

10. The learned Counsel appearing for the petitioner-appellant, submitted that petitioner and respondent are living separate from each other for the last 19 years and there is no chance of their living together and, therefore, on the basis of theirlong separation, a decree of divorce should be passed because marriage was solemnized in the year 1982 and only three years they remained together and out of their wedlock a son was born to them but thereafter from 1985 both of them are livingseparate from each other and thus by now they have remained separate for the last 19 years and there is no chance that they will be willing to reside together. In that view of the matter, learned Counsel for the appellant placed reliance upon Prabhat Kumar Mitra v. Sikha Mitra, II (2002) DMC 444 (DB)=(2002) 2 JLJR 619, in which it hasbeen held that parties living separate from each other for the last 22 years, the Court has allowed the divorce and allowed both the sides to permanently live separate from each other and in the instant case also the petitioner and the respondent are living separate from each other for the last 19 years and there is no chance of settlement and when there is no chance of settlement and so it is better that both the parties be permanently allowed to live separate from each other.

11. In that view of the matter, this appeal is allowed and the judgment and decree of thelearned Court below are hereby set aside and decree of divorce is allowed but subjectto the condition that petitioner-appellant willpay a sum of Rs. 1,50,000 to the respondentas permanent alimony. No order as to costs. https://vinayak.wordpress.com/

Appeal allowed.

 

Great singer Kumar Shanu : Sad tale of a man #alienated from kids. Rs 37500 #monthly #maintenance

The man talks about his wife making wild claims. Violent marriage and a split. Finally it looks like Rs. 37,500 PER MONTH was the maintenance decided by the court (video year 2011 or earlier !!)…

But the estranged wife says it is NOT sufficient , especially with all the servants she has to maintain !! and the bungalow she has to maintain !!

“….if the whole world is eating his money, why NOT me …” asks his ablaa nari wife !!

VERY sad to see the kids speak against the father. Really sad to see such a talented person fighting such bitter battles in life

We hope now at least that BOLLYWOOD will understand male suffering and portray the truth in films instead of running around trees with scantily clad women

 

 

Woman must temporarily #reside at place of filing plaint. She can’t go to a new place to CREATE #Jurisdiction. #DV #BombayHC

Woman must temporarily reside at place of filing plaint – Jurisdiction in Domestic Violence

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

Criminal Revision Application No. 146 of 2017

Applicants :

1) Prashant son of ManmohanjiLaddha, aged about 36 years, Occ: Business

2) Smt Leelabai wd/o Manmohanji Laddha, aged Major, Occ: Household

Both residents of In front of Mayor’s Bungalow,University Road, AmravatiVersus

Respondents:

1) Sau Madhuri w/o PrashantLaddha, aged about 34 years, Occ: Household

2) Ku Vidhi d/o Prashant Laddha, aged about 9 years, Occ: Student

3) Ku Ekta d/o Prashant Laddha, aged about3 years, Student Respondents no. 2 and 3 being minor, through respondent no. 1 natural guardian-mother

All residents of c/oShri Satyanarayan Champalal Taori, Near Hotel Harmony, Gandhibag, Nagpur At present, c/o Suresh Madhukar Rathi, Hardware Shop, Main Road, Ward No. 9, Saunsar, District Chindwara, MPShri R. D. Wakode,

Advocate for applicants Shri B. N. Mohta,

Advocate for respondents

Coram : S. B. Shukre, J

Dated : 6th April 2018

Oral Judgment

1. Heard learned counsel for the parties. Admit. Heard forthwith by consent of parties.

2. This revision application questions the legality and correctness of the order dated 27.10.2016 passed by the learned Principal District Judge, Nagpur in Criminal Appeal No. 297 of 2015, upsetting the order dated 28.10.2014 passed by the learned Judicial Magistrate, FC, Nagpur in Misc. Criminal Application No. 3538 of 2014. The learned Magistrate has held that the Court at Nagpur has no jurisdiction to try the petitionunder Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, the “D.V. Act”).

3. Shri Wakode, learned counsel for the applicants submits that the impugned orderis patently illegal and perverse and whereasShri Mohta, learned counsel for the respondents submits that it is perfectly legal and proper. Shri Mohta submits that inany case, the learned Magistrate could not have dismissed the petition on the preliminary objection, without giving any opportunity to the parties to lead evidence. In support, he places his reliance upon the cases of Vijay Sudhakar Patil v. Asha Vijay Patil reported in 2015 (1) Mh. L. J. 431; Ramesh a/o Mohanlal Bhgutada, Advocate& anr v. State of Maharashtra reported in 2011 (6) Mh. L. J. 167 and Vikas Rastogee v. State of U. P. & anr reported in II (2014) DMC 470 (All).

4. The learned Magistrate while allowing theapplication vide order dated 28.10.2015 hasgiven elaborate reasons to support the finding about the non-maintainability of the petition under the D. V. Act while holding that he had no territorial jurisdiction to try the petition under Section 12 of the D.V. Act. Learned Magistrate has taken into consideration the admissions given by the non-applicant no. 1 in her application filed under Section 125 Cr. P. C. (Criminal Application No. 62 of 2014) before the Court at Saunsar, the admissions given by the non-applicant no. 1 in the First Information Report lodged by her against the applicants on 8.12.2014 at Police Station, Saunsar and the other facts which are matter of record and not in dispute. These facts show that non- applicant no. 1 has admitted just about one month before filing of the application on 20.10.2014 and also two months thereafter that she has been residing at her parental place at Saunsar since August 2014.

5. Learned Magistrate has also noted the fact that although non- applicant no. 1 showed her address in Section 12 of the D. V. Act petition as c/o Shri Satyanarayan Champalal Taori, near Hotel Harmony, Gandhibag, Nagpur, she did not file even an affidavit of Satyanarayan Taori to show that she is a temporary resident of Nagpur. In the application under Section 12 of the D.V. Act, there is only a passing reference made by the respondent that she along with her children has been residing presently at Nagpur in the house of her brother on the address mentioned in the cause title. This application has been filed on 20.10.2014. But, just a month before, she filed application under Section 125 Cr. P. C. before the Saunsar Court wherein she asserted that she was residing at Saunsar since August 2014. Even in the First Information Report that was lodged by her on 8.12.2014, about one and half months after Section 12 D. V. Act application at Police Station, Saunsar, the non- applicant no. 1 stated that she has been residing at Saunsar. Not only this, but in her evidence recorded in the proceedings under Section 125 Cr. P. C. before the Saunsar Court subsequent to the filing of the present application also, the non-applicant no. 1 admitted that she was residing at Saunsar. In the backdrop of these admissions, it was necessary for the non-applicant no. 1 to have clarified as to when did she leave Saunsar and come to Nagpur for residing atNagpur temporarily. She also needed to have stated the relevant dates in this regard. If some of the admissions pertainedto a period which was after filing of this application, an affidavit of brother, giving relevant details placed on record by the applicant would have gone a long way to clarify her stand in the matter. But, she did not file on record the affidavit of her brotherSatyanarayan Taori.

6. Learned counsel for the non-applicants submits that the non- applicant no. 1 was never called upon to lead any evidence in this regard. I must say, nothing prevented non-applicant to at least file on record an affidavit giving her explanation/clarification in the matter. It is not enough for non-applicant no. 1 to just make a bald statement, as she has in her application, that presently, she has been residing at Nagpur in the house of her brother when she admits in other proceedings that she resides at Saunsar. She could have boostedher statement of her Nagpur residence by something relevant or at least an affidavit ofSatyanarayan Taori. But, she did not submit any such additional material or affidavit before the Court. These facts have been duly taken note of by learned Magistrate when he passed the order dismissing application under Section 12 of the D. V. Act.

7. But these facts, relevant as they are, havebeen completely ignored by the learned Principal District Judge. The learned Principal District Judge has also not considered the reasons given by the learned Magistrate in the order passed by her. It is the requirement of Section 27 of the D. V. Act that in order to confer territorialjurisdiction upon a Judicial Magistrate, FirstClass, there has to be at least a temporary residence within the territorial jurisdiction of his Court. The admissions given by non-applicant no. 1 could show that she was all the while residing at Saunsar and coupled with that fact, she has failed to explain as to how and in what manner, she assumed her temporary residence at Nagpur. The learned Principal District Judge, however, reasoned that pursuing of some cases at Nagpur itself amounted to temporary residence at Nagpur, which is fallacious to say the least. Pursuing of some cases from a place cannot be equated with temporary residence at that place. Temporary residence requires residence at a place on continuing basis in pursuit of some activity or want or need which may be economic, educational, financial, cultural, social and the like which comes to an end when the goal or purpose is achieved. The period or such residence would vary depending upon the purpose for which it is taken. But, such residence cannot be a residence created just to conferterritorial jurisdiction upon a Magistrate of aplace or otherwise, it would be easy for a woman well equipped with resources to go to a far away place, set up a temporary residence there just to file a case and file a case to get the pleasure of seeing husband or person in domestic relationship being put to travails of long travels and high expenses. So, to my mind, in the context of Section 27 of the D. V. Act, temporary residence means a residence set up or acquired in the ordinary course of human affairs and is not a residence set up with anintention to file a case and confer jurisdiction upon the magistrate. This is the meaning, plainly and naturally, conveyed by combined reading of key words used in Section 27 of the D. V. Act, which are “resides or carries on business or is employed”.

8. In the cases relied upon by learned counsel for the non- applicants, it has been held that the preliminary objection regarding lack of territorial jurisdiction cannot be decided unless the parties are called upon to place on record evidence. There can be no doubt about the principle enunciated by these cases. But, this is not the case wherein the learned Magistrate has dismissed the application without there being on record proved facts. Ultimately, proof of facts is all that matters and facts can be proved by admissions, just as they can be by oral evidence. Here, facts stood proved because of admissions, though there was no oral evidence led by the parties. It appears to me that not tendering of oral evidence was the choice of the parties. Learned Magistrate has also noted the fact that the non-applicant no. 1 did not submit any affidavit of her brother in support of her claim that she was temporarily residing at Nagpur, thereby indicating an opportunity already available was wasted by her. Therefore, I do not think that any assistance could be sought by the learned counsel for the respondents from the cases cited before me.

9. In the facts and circumstances noted above, I am of the view that the impugned order is manifestly illegal and perverse and the order of the learned Magistrate is legal and correct calling for no interference therein.10. In the result, the application is allowed. The impugned order is quashed and set aside and the order of learned Magistrate is confirmed. Liberty is, however, granted to file fresh application under Section 12 of the D. V. Act before the proper forum.

S . B. Shukre, J joshi

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#ticket-less #single woman can’t be thrown out of train, forget out of your #house !! Read before attempting #DIVORCE In India !!

Ticket-less travel is a punishable offense in India. Varying amounts of fine, imprisonment for repeat offenses and at least removal from train are the normal punishments awarded to Ticket-less travelers.

That is if you are MALE !!

However IF you are a female, you can happily continue your journey and the ticket examiner can’t do a damn

The news article (in Hindi) clearly states that Single Women traveling ticket-less in Indian trains can’t be even thrown out of trains !!

Read this fully well BEFORE thinking that you will easily get a #divorce in Indian #courts

If a woman can’t even be thrown out of a train, and that too for her own fault, how can you imagine to throw her out of your house and that too over a complicated matrimonial matter