Category Archives: divorce

High court sets aside RCR issued by family court on wife’s appeals 335 days later !!!! Oh mi lord ….. what’s the use of RCR then ???

High court sets aside RCR issued by family court on wife’s appeals 335 days later !!!! Oh mi lord ….. what’s the use of RCR then ??? The Hon High court itself agrees that wife hasn’t given proper reasons for delay !! 😃😃😃😃


When court should set aside exparte decree for restitution of conjugal rights?

Therefore, it is incumbent on the petitioning husband or wife, as the case may be, to satisfy the court about his/her sincerity in wanting to resume cohabitation with his/her spouse. This is more so, since clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act mandates that, in any proceeding under the said Act, whether defended or not, the court shall decree the relief only if the court is satisfied that any of the grounds for granting the relief exists and the petitioner, except in cases where the relief is sought by him or her on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5, is not in any way taking advantage of his or her own wrong or disability for the purposes of such relief.

  1. In the instant case, a reading of the impugned order (which we have already extracted hereinbefore) would show that, the Family Court passed the ex parte decree for restitution of conjugal rights, merely accepting the proof affidavit filed by the respondent herein, even without recording the satisfaction of the court in terms of clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act.
  2. In that view of the matter, the ex parte decree for restitution of conjugal right passed by the Family Court cannot be sustained in law. Though the appellant has not offered specific reason for her non-appearance in court after filing her objections in the O.P., considering the totality of the facts and circumstances of the case and also the fact that the Family Court passed the ex parte decree merely accepting the proof affidavit filed by the respondent herein, even without recording its satisfaction in terms of clause (a)to sub-section (1) of Section 23 of the Hindu Marriage Act, this appeal is disposed of by setting aside the ex parte order passed by the Family Court on 31.07.2014 in O.P.No.2251 of 2012, on the appellant depositing a cost of Rs.3,000/- before the Family Court, within one month from the date of receipt of a certified copy of this judgment, for payment to the respondent herein. On such deposit being made, the Family Court shall proceed with O.P.No.2251 of 2012 and dispose of the matter finally, as expeditiously as possible, at any rate within four months from the date of such deposit, afteraffording both the sides an opportunity to adduce evidence.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

MR.JUSTICE P.R.RAMACHANDRA MENON

&

MR. JUSTICE ANIL K.NARENDRAN

13TH DAY OF JULY 2016

Mat.Appeal.No. 989 of 2015

RINJU,

Vs

SANTHOSH,

Citation: 2016 (6) ALLMR(JOURNAL)101

The appellant is the respondent in O.P.No.2251 of 2012 on the file of the Family Court, Thrissur, a petition filed by the respondent herein for a decree of restitution of conjugal rights. On receipt of notice, the appellant entered appearance and filed her objections in the said O.P. But, she failed to appear before the Family Court on the subsequent posting dates and as such, she was set ex parte. The respondent herein filed proof affidavit and the Family Court allowed the O.P. by an ex parte order dated 31.07.2014. Paragraphs 4 and 5 and the operative portion of the said order read thus;

“4. The petitioner filed affidavit in support of the avermentsin the petition.

  1. From the evidence, averments in the petition are proved. In the result, the petition is allowed as follows; The respondent is directed to come and reside with the petitioner within one month from the date of decree. If she fails to obey the decree, the petitioner will be entitled to get it executed through court.”
  • Feeling aggrieved by the ex parte decree of the Family Court in O.P.No.2251 of 2012 the appellant is before this Court in this appeal.

  • This appeal was filed with a delay of 335 days. By a separate order passed on this date we have condoned the delay in filing the appeal.

  • Since the only issue that arises for consideration in this appeal is as to whether the appellant has made out a case to set aside the ex parte decree passed by the Family Court, the learned counsel for both the parties have agreed that the appeal itself can be finally heard and disposed of.

  • Heard the arguments of the learned counsel for the appellant and also the learned counsel for the respondent.

  • The pleadings and materials on record would show that, the marriage between the appellant and the respondent was solemnised on 01.01.2012. After the marriage, they resided together as husband and wife and a female child was also borne in the said wedlock. Alleging that the appellant had withdrawn from the company of the respondent without any valid cause, the respondent herein has approached the Family Court in O.P. No.2251 of 2012 seeking a decree of restitution of conjugal rights. Though the appellant entered appearance before the Family Court and filed objection, she could not appear on the subsequent posting dates. As such, she was set ex parte and the Family Court passed an ex parte decree for restitution of conjugal rights.

  • The appellant would contend that she was not afforded with a reasonable opportunity before the Family Court to contest the matter by adducing evidence. However, the specific reason for her non-appearance in court after filing her objections in the O.P. has not been disclosed either in the memorandum of appeal or in the affidavit accompanying I.A.No.3543 of 2015 filed seeking an order of stay of the execution of the ex parte decree passed by the Family Court. The only contention raised in the memorandum of appeal is that, the appellant has no means of livelihood and she and her child are totally depending on her parents for their livelihood. In the memorandum of appeal the appellant would also state reasons for leaving her matrimonial home. We express no opinion on the said contentions raised by the appellant and it is for her to substantiate such contentions before the Family Court by adducing cogent and convincing evidence.

  • Section 9 of the Hindu Marriage Act, 1955 deals with restitution of conjugal rights. As per Section 9 of the Act, when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Going by the Explanation to Section 9, where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

  • The essence of a decree for restitution of conjugal rights is that, either the husband or the wife desiring the company of his/her spouse makes an effort through the court to restore his/her conjugal rights. The mode of enforcement of a decree for restitution of conjugal rights is provided under Rules 32 and 33 of Order XXI of the Code of Civil Procedure, 1908. As per sub-rule (1) of Rule 32, where the party against whom a decree for restitution of conjugal rights has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced by the attachment of his property. Going by sub-rule (3) of Rule 32, where any such attachment under sub-rule (1) of Rule 32 has remained in force for six months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance, if any, to the judgment-debtor on his application. Rule 33 deals with the discretion of the court in executing a decree for restitution of conjugal rights.

  • The provisions under Rules 32 and 33 of Order XXI of theCode of Civil Procedure therefore provides for enforcement of a decree for restitution of conjugal rights only to the extent indicated therein. Therefore, on the strength of the decree for restitution of conjugal rights obtained by either the husband or the wife, his/her spouse cannot be compelled restore conjugal rights or to resume cohabitation, unless and until he/she is willing for such restoration or resumption. However, it has to be noticed that, as per clause (ii) of sub-rule (1A) of Section 13 of the Hindu Marriage Act, a petition for dissolution of marriage by a decree of divorce could be maintained on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceedings to which they were parties. Therefore, the provisions under Section 9 of the Hindu Marriage Act for restitution of conjugal rights cannot be allowed to be misused by either the husband or the wife, as the case may be, whose request for restitution of conjugal rights was merely a pretence and sham, and intended for an extraneous purpose of securing a decree for divorce invoking clause (ii) of sub-rule (1A) of Section 13 of the said Act.

  • Therefore, it is incumbent on the petitioning husband or wife, as the case may be, to satisfy the court about his/her sincerity in wanting to resume cohabitation with his/her spouse. This is more so, since clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act mandates that, in any proceeding under the said Act, whether defended or not, the court shall decree the relief only if the court is satisfied that any of the grounds for granting the relief exists and the petitioner, except in cases where the relief is sought by him or her on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5, is not in any way taking advantage of his or her own wrong or disability for the purposes of such relief.

  • In the instant case, a reading of the impugned order (which we have already extracted hereinbefore) would show that, the Family Court passed the ex parte decree for restitution of conjugal rights, merely accepting the proof affidavit filed by the respondent herein, even without recording the satisfaction of the court in terms of clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act.

  • In that view of the matter, the ex parte decree for restitution of conjugal right passed by the Family Court cannot be sustained in law. Though the appellant has not offered specific reason for her non-appearance in court after filing her objections in the O.P., considering the totality of the facts and circumstances of the case and also the fact that the Family Court passed the ex parte decree merely accepting the proof affidavit filed by the respondent herein, even without recording its satisfaction in terms of clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act, this appeal is disposed of by setting aside the ex parte order passed by the Family Court on 31.07.2014 in O.P.No.2251 of 2012, on the appellant depositing a cost of Rs.3,000/- before the Family Court, within one month from the date of receipt of a certified copy of this judgment, for payment to the respondent herein. On such deposit being made, the Family Court shall proceed with O.P.No.2251 of 2012 and dispose of the matter finally, as expeditiously as possible, at any rate within four months from the date of such deposit, after affording both the sides an opportunity to adduce evidence.

  • It is made clear that, we have not expressed anything touching the merits of the issues between the parties and all such issues are left open to be urged before the Family Court.

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    Attempting #suicide forcing husband to set up #separate home are #cruelty. #Divorce granted.

    Attempting suicide forcing husband to set up separate home desertion are all grounds for divorce.

    A.P. Ranga Rao vs Vijayalakshmi on 26 September, 1988

    Madras High Court

    A.P. Ranga Rao vs Vijayalakshmi on 26 September, 1988

    Equivalent citations: I (1990) DMC 567

    Author: K Natarajan

    Bench: K Natarajan

    JUDGMENT K.M. Natarajan, J.

    1. This second appeal is directed by the petitioner husband challenging the legality and correctness of the judgment passed by the VI Additional Judge, City Civil Court, Madras, in C.M.A. 54 of 1979, confirming the decree and judgment passed by the IV Assistant Judge, City Civil Court, Madras, dismissing the petition for dissolution of marriage.
    2. The facts which are necessary for the disposal of this appeal can be briefly stated as follows : The appellant (herein after referred to as the petitioner) married the respondent on 9 9-1968, according to caste custom. On account of the lawful wedlock she gave birth to a daughter on 3-7-1969. The case of the petitioner is that the respondent used to tease him and provoke him often. On several occasions she threatened to commit suicide. She insisted on the petitioner to start a separate establishment after severing his connection with the other members of his family, namely, mother, brother, brother’s wife and unmarried brother. In or about March 1969, the respondent consumed bug poison and she was admitted in the Government Stanley Hospital. She deserted the petitioner in June 1970. By the intervention of mediators, who consisted of close relations, she later joined and she again left the house in February 1971. Subsequently in October 1972 she returned. In June-July 1973, she again attempted to commit suicide by consuming glass pieces. According to him, Mr. V.M. Day, Advocate, attempted to settle the matter amicably, but of no use. On account of the various acts of the respondent, he is put to extreme mental agony and that the respondent has also developed ulcer. Hence, he filed the petition for dissolution of marriage on the ground of desertion and cruelty. In addition he prayed for custody of the minor child.

    3. The said position was resisted by the respondent and she would contend that all the allegations in the petition are untrue. The petitioner agreed to pay Rs. 100 per mensem to her as maintenance. He failed to do so. He later filed O.P. 407 of 1973, for judicial separation. It was not pressed. She went to the house of the petitioner to reside with him even after the dismissal of the said petition. But it was only the petitioner who suddenly left the house without intimating the respondent. She would state that she is willing to reside with her husband, the petitioner. To substantiate the allegations, the-petitioner examined himself as PW 1 and also examined seven other witnesses and filed Ex. A. 1 to A. 11. On the side of the respondent, besides examining herself, three other witnesses were examined and Ex. B. 1 to B. 3 were marked.

    4. The trial Assistant Judge dismissed the petition holding that the petitioner has not made out any of the grounds of desertion or cruelty. He was unsuccessful before the appellate court. Hence this second appeal.

    5. The second appeal was admitted on the following substantial question of law :–

    “Whether in view of the conclusion of the lower appellate Court that there had been several attempts on the part of the respondent to commit suicide, the ground of cruelty has not been made out within the meaning of Section 13(1)(i-a) of the Hindu Marriage Act 1955 ?

    1. Learned counsel for the appellant, Mr. G.M. Nathan, submitted that within six months the marriage the respondent attempted to commit suicide by consuming bug poison and that she was taken to the Stanley Medical Hospital and examined by the doctor PW 7 who certified that she consumed bug poison. Subsequently in July, 1973, she again consumed glass pieces and that she was taken to the house of one lawyer V.M. Dev (PW 8) who is his family friend. PW 8 directed his son to admit her in the Stanley Medical College Hospital, Madras PW 5, doctor, treated her. It is supported by Ex. A. 6 and A. 7. The lower appellate Court came to the conclusion that it has been established that she attempted to commit suicide on those occasions. But the lower appellate court held that the reason for the respondent to commit suicide was the refusal of the appellant to set up separate residence and his disliking towards her and as such, it cannot be said that the appellant suffered any mental cruelty on account of the above facts, namely, her attempt to commit suicide on more than one occasion which amounted to mental cruelty. Learned counsel for the appellant in this connection submitted that the very approach of the lower appellate Court is not proper especially in view of the introduction of Section 13(1)(i-a), by virtue of the amendment Act 68 of 1976 and the ratio laid down by the Supreme Court and High Courts.
  • In the instant case, admittedly, the marriage between the parties took place on 9-9-1968 and a child was born on 3-7-1969. According to the appellant the respondent was not behaving like a normal woman and that she was behaving like person affected with hysterical complaint. It is seen that the respondent insisted the appellant to separate from his family which consisted of his mother, elder brother, brother’s wife and married younger brother and set up a separate family, to which the appellant was not agreeable. Even according to the case of the respondent, the appellant’s brother’s wife was responsible for the disharmony and that her efforts to set up a separate residence was not fruitful.

  • It is seen from the evidence of PW 7, who is a Civil Assistant Surgeon, attached to the Stanley Medical Hospital, that the respondent was admitted into the hospital on 14-3-1969 at 8.15 p.m. for consuming bug killer poison. The respondent complained of vomiting and pain in the abdomen. She has stated that she took bug killing poison at 8 p.m. According to AW 7, the diagnosis also showed that she consumed bug killer poison and the medical opinion also was to the same effect. Learned Counsel for the respondent submitted that in cross-examination, this witness has stated that he spoke only from the records and the symptoms noticed by his assistants who treated her and hence no reliance could be placed on this evidence. The learned counsel also submitted that even the finding of the lower appellate Court on this aspect should not be accepted. I do not find any merit in the said contention. The evidence of PW 7 clearly establishes that her respondent took bug killer poison, that she was treated for the same, that there were symptoms of consuming bug killer poison and that that is the diagnosis by the medical authorities. Again, the respondent consumed glass pieces on 30-7-1973 for which she was admitted in the Stanley Medical College Hospital. PW 5, Civil Assistant Surgeon, gave treatment to her. He had stated that the respondent herself stated that she swallowed glass pieces. He had made a note of it in the case sheet Ex. A. 6, and Ex. A. 7 is her O.P. ticket. Learned counsel for the respondent, relying on the answer given by this witness in cross-examination that no glass pieces were detected and that he cannot say whether she consumed glass pieces, contended that it cannot be said that she consumed glass pieces. On a careful reading of the evidence of PW 5,1 find that the respondent not only admitted that she had taken in glass pieces, but also she vomited once or twice. It is also seen that she was given drugs to bring the glass pieces out, that she refused to take them and that she also refused to get proper ., treatment. She also refused to given reasons for consuming glass pieces. Besides the evidence of PW 5, we have got the evidence of PW 8, an advocate, who mediated and who admitted her in the hospital through his son PW 5. The appellant also examined PW 2, 3 and 4 to establish the above act of the respondent in attempting to commit suicide. It is also in evidence that the respondent was in a state of pregnancy when for the first time she consumed bug poison. In evidence she would come forward with the version that she took it by mistake. But such defence was not taken by her in her counter. As regards the reasons for attempting to commit suicide PW 2 would say that there were frequent quarrels and that on account of the same, the respondent took bug poison. The evidence of PW 4 is to the effect that in June 1973, the respondent was actually seen taking glass pieces and was anxious to put an end to her life. With regard to this incident, we have got the evidence of the advocate PW 6 who mediated the dispute between the parties. The finding of the lower appellate Court in para 9 of its judgment is to the effect–

  • “The lower court has taken these instances and has held that there was no conclusive proof about the consumption of bug poison or of having taken glass pieces. I do not accept this finding of the lower court. As pointed out by the Supreme Court, the court has come to a conclusion on a preponderance of probabilities. The evidence taken as a whole establishes that the respondent was dissatisfied with her marital life and was deeply affected and agitated by the lack of affection and courtesy by her husband. If she had resorted on more than one occasion to put an end to her life, it was not because of any dislike for family life, but because she was dissatisfied with her surroundings.”

    Again, in para 10, the lower appellate Court has pointed put–

    “Of course, there have been attempts to commit suicide, but on that ground it cannot be said that the petitioner was put to mental agony. It is urged that the behaviour of the wife was such as to cause an extreme mental upset and detriment to the health of the petitioner.”

    In para 10, it was also observed–

    “His admission that PW I attempted to commit suicide because he was not prepared to set up a separate residence, indicates that cause for dejection of the respondent. It is not a case of mental cruelty by the respondent, but a marked obsession on the part of the petitioner to tear away from the other members of his family.”

    Finally, the lower appellate Court gave a finding–

    “On the facts of the case, I am satisfied that the respondent has not been guilty of mental cruelty, and if the petitioner entertained feeling that he has been treated with cruelty, it is due to his own making. Point No. 1 is found against the petitioner.”

    It is clear from the above finding of the lower appellate court, that the respondent attempted to commit suicide on more than one occasion by consuming bug poison and taking glass pieces. The lower appellate Court held that those acts would not amount to mental cruelty as the appellant was resposible for those acts since he refused to set up separate family and that he did not like her. It is only this reasoning which is now challenged by the learned counsel for the appellant by contending that the refusal of the appellant-husband to set up a separate family and his disliking is quite immaterial and if it is established that there was an attempt on the part of the wife to commit suicide, the reason for the same has no consequence and the very act would amount to mental cruelty. In this connection, my attention was drawn to the fact that prior to the amendment Act 68 of 1976, ‘cruelty’ was not shown as one of the grounds for divorce, but it was shown as one of the grounds for judicial separation after amendment. By virtue of the amendment Act, Section 13(1)(i-a) was introduced under which ‘cruelty’ was also mentioned as one of the grounds for divorce. It is worthwhile to quote Section 13(1)(i-a) of the Act–

    “13(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-(i). …

    (i-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty.”

    This provision came up for interpretation before a Full Bench of the Bombay High Court in the case reported in Keshacrao v. Nisha, it has been held :–

    “The cruelty contemplated under Section 13(1)(i-a) of the Act neither attracts the old English doctrine of danger nor the statutory limits embodied in old Section 10(1)(b). The cruelty contemplated is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent”.

    It was therefore held in that case, that the decision in Madanlal Sharma v. Santosh Sharma, 1980 Mah. LJ 391, does not lay down the law on the point correctly.

    1. Learned counsel for the appellant invited the attention of this Court to the decision reported in Shobha Rani v. Madhukar Reddi, AIR 1980 SC 121, wherein it was held–

    “The demand for dowry is prohibited under law. That by itself is bad enough. That amounts to cruelty entitling the wife to get a decree for dissolution of marriage.”

    It was further observed–

    “The word ‘cruelty’ has not been defined and could not have been defined. It has been used in relation to human conduct or; human behaviour. It is conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and perse unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”

    The learned Judge further observed–

    “A new dimension has been given to the concept of cruelly. Explanation to Section 498-A I.P.C. provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such wilful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would also constitute cruelty. The cruelty as a ground for dissolution of marriage if not admitted requires to be proved on the preponderance of probabilities as in civil cases and not beyond a reasonable doubt as in criminal cases.”

    Learned counsel for the appellant submitted that the attempt to commit suicide is per se an offence punishable under the Penal Code, and is like the demand for dowry which is prohibited under law and which by itself is bad enough and the same would amount to cruelty as per the decision of their Lordships of the Supreme Court in the case reported in Shobha Rani v. Madhukar Reddi (supra). Certainly, the attempt to commit suicide would also amount to mental cruelty to the husband by the wife. In para 17 of the judgment, it was observed —

    The cruelty treatment may also result by the cultural conflict of the spouses, in such cases, even if the act of cruelty is established, the intention to commit cannot be established. The aggrieved party may not get relief, we do not think that was the intention with which the Parliament enacted Section 13(1)(i-a) of the Hindu Marriage Act. The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, that act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment. The same is also the line of reasoning adopted by the House of Lords in Collins v. Collins, 1963-2-All ER 966, at page 976 where Lord Evershed said–

    ‘I am unable to accept the premise that ‘cruelty’ in matrimonial proceedings requires or involves of necessity the element of malignity though I do not of course doubt that if malignity be in fact established it would be highly relevant to a charge of guilty.

    In my opinion, however, the question whether one party to a marriage has been guilty of cruelty to the other or has treated the other with cruelty does not according to the ordinary sense of the language use by Parliament, involve the presence of malignity (or its equivalent); and if this view be right it follows, as I venture to thick, that the presence of intention to injure on the part of the spouse charged or (which is, I thing, the same thing) proof that the conduct of the party charged was ‘aimed at’ the other spouse is not an essential requisite for cruelty. The question in all such cases is, to my mind, whether the acts or conduct the party charged were ‘cruel’ according to the ordinary sense of that word, rather than whether the party charged was himself or herself a cruel man or woman.. ..”

    It is clear from the above decision that the proper approach in matrimonial cases is whether the acts or conduct of the party charged were cruel according to the ordinary sense of that word. Further, the intention to cause such cruelty is not a necessary element and it is no answer that for committing the acts the party charged himself was responsible as was done in case by the lower appellate Judge. In Narayan Ganesh Dastane v. Sucheta Narayan Dastane, , it was held that the threat given by wife to her husband that she will put an end to her life was cruelty towards her husband. In that case, the act of taking poison by wife was held to be cruelty to her husband. In Savitri v. Mulchand, , it was observed in para 28 at page 57 :

    “The respondent petitioner husband had deposed that on his return from London the wife took poison when she saw him, and that she was saved by Jethanand. Attempt to commit suicide with a view to coerce the husband into doing something which he is not inclined to do, for whatever reason, I am of the view, is also a cruelty on the husband. Justice Leila Seth in her judgment reported as Shakunlala Kumari v. Om Prakash Ghai, I (1981) DMC 25=AIR 1981 Delhi 53, also said that threat to commit suicide by the wife amounts to cruelty on the husband. In my view attempt to commit suicide by taking poison would also amount to cruelty.”

    In that case, the learned Judge referred to the decision reported in Narayana Ganesh Dastane v. Suchita Narayana Dastane, (supra), also. Applying the ratio mentioned in the above quoted decisions to the facts of this case, it can be held that merely because the husband was not agreeable to separate from the members of the family and set up separate family as desired by his wife, she was not justified in resorting to attempt to commit suicide by consuming poison or glass pieces on more than one occasion. She could have worked out her remedy by taking such legal action open to her under law. It is not open to her to remain in the house of the husband and threaten to commit suicide by consuming poison etc. and cause mental cruelty to him. In Harbajan Singh v. Amarjeet Kaur, , it has been held “For these reasons it is established that the defendant respondent held out threats of committing suicide. It is needless to add that such threats constitute cruelty.”

    Therein also, reliance was placed on the decision of the Supreme Court, in Dastane’s case (supra). As already stated, in the instant case, the lower appellate Court came to the conclusion, after differing from the view taken by the trial court, that there has been attempts to commit suicide. But, he came to the conclusion that on that ground it cannot be said that the husband was put to mental cruelty. According to the lower appellate Judge, the admission of the husband that his wife attempted to commit suicide because he was not prepared to set up a separate residence, indicates the cause for dejection, the appellant-husband should blame himself for his lapse and it is not open to him to contend that the threat to commit suicide and various acts attributed to the wife would amount to cruelty. In view of the ratio laid down in the above decisions, the said reasoning of the lower appellate judge is not tenable and on the established facts it is clear that the appellant has made out a case for mental cruelty so as to get a decree for dissolution of marriage under Section 13(1)(i-a) of the Hindu Marriage Act, as amended by Act 68 of 1976. Thus the substantial question of law is answered in favour of the appellant and against the respondent.

    1. As regards the question of desertion, I do not find any irregularity or illegality in the finding rendered by both the courts below. Though their marriage was celebrated in 1968. they lived together till about 1973 and according to the appellant, there was desertion from 1973. It is seen from the evidence of PW 1 that even after the orders passed in O.P. 407 of 1973 she came and lived with him and subsequently she left only on 22-3-1976. The Original Petition was filed on 25-11-1977 which is less than two years immediately after leaving the appellant, and in view of Section 13(1)(i-b) the said ground is not tenable. It cannot be said from the circumstances that there was any animus deserendi on her part so as to constitute desertion. Hence no interference is called for in the finding on the question of desertion by the respondent wife. However, in view of the finding on the ground of cruelty, the appellant is entitled to the relief of dissolution of marriage.

    2. In the result, the appeal is allowed. The judgment and decree of the courts below are set aside and the petition O.P. 629 of 1977 filed by the appellant is allowed and there will be a decree for dissolution of marriage between the appellant and the respondent under Section 13(1)(i-a) of the Hindu Marriage Act. In the circumstances, of the case, there will be no order as to costs.

    3. Before parting with the case, I wish to place on record the valuable assistance rendered by Mr. S. Swaminathan, Advocate, who acted as amicus curiae on behalf of the respondent in the case, and my appreciations to him.

    Why Brahmachari / MGTOW in India ?

    Why Brahmachari / MGTOW in India ?

    • 30% to 50% of the unmarried Indian women today are not interested in long term RESPONSIBILITIES and hence are not fit for marriage. They want all the comforts and benefits of marriage, but are not ready for the responsibilities. In such situations the man has to become a slave, or the marriage will break down. Sometimes the marriage will break down even if the woman finds a better slave. Sometimes the marriage breaks down because woman gets a disinterested with the slave husband.

    • It was our mistake to RUN behind these and marry them

    • in India at least, many of the matrimonial the laws are 30 years behind the current social scene. Most of the laws consider men to be rapists, thugs and murderers. This ( legal scene ) doesn’t help either.

    • since some 30% to 50% of women are not fit for marriage, a large number of males should decide to go single or go MGTOW

    • otherwise statically it wouldn’t work.

    • Most of these control freaky, money minded, high sexual drive women have no interest or chance of bringing up normal children. So starting a long-term relationship with them is endangering the next generation as well. So, large number of men going single or MGTOW that is the only solution to have some sort of intelligent progression of the India community / population .

    • IF for example, there isn’t enough food in the community, rationing is the only possible solution till such time food growth comes back to normal or population decreases to normal. Expecting some miracle, expecting some court expecting some policeman to solve the problem is not an intelligent or a practical solution.

    • similarly, large number of men remaining single, or going MGTOW For at least one generation, till such time society understands the situation and changes, is the only practical solution in India.

    • ALAS it is NOT easy at all

    Indian men ! Don’t just learn Karate for self defense. Study law

    Gone are the days when the bad guys came with the knife and you could water them off with some karate strokes… Today the thieves come with cost boot and suit. They come armed with the law. If you are planning to get married , read the law understand it all very well before you jump. God be with you. God be with you and your family.

    Wife can not demand share in property of husband’s HUF during his life time

    Wife can not demand share in property of husband’s HUF during his life time

    Bombay High Court

    Jayamati Narendra Shah vs Narendra Amritlal Shah on 18 January, 2014

    CORAM : MRS. ROSHAN DALVI, J.

    Citation; 2014 (2) MHLJ 739,2014(4)ALLMR616

    Family – Entailment for Injunction – Demand of partition – Plaintiff had filed suit claimed partition of immovable properties and mandatory injunction directed to handover those properties to Plaintiff and usual permanent injunctions against alienation – Hence, this Notice of Motion – Whether Defendant had rightly filed notice of motion to oppose grant of adinterim reliefs – Held, it was only Hindu widow who got interest of her husband in coparcenary or joint family property upon death of her husband – There had been no partition in HUF in which husband was coparcener – Husband had not acquired any specific share in coparcenary property – In disputed property deceased who was member of her husband’s (Defendant’s) HUF would have share – However deceased could not have demanded partition – Thus claim by wife during life time of husband in share and interest which he had coparcener in his HUF was wholly premature and completely misconceived – Therefore injunction in respect of such property could not be granted as claimed – Hence Defendant should not alienate, encumber, part with possession or create any third party rights in equity shares held by deceased – Notice of Motion disposed of.

    Ratio Decidendi:

    “Party shall not alienate, encumber, transfer, part with possession or otherwise create any third party rights, unless proves that party can make demand partition in HUF properties.”

    1. The plaintiff is the son of the defendant. The defendant’s wife, the plaintiff’s mother, expired on 10th June, 2013 leaving behind a registered will dated 2nd July 2011. The plaintiff has sought administration of her estate. The plaintiff has also sought disclosure of the remainder of the estate which the plaintiff has no knowledge of. The plaintiff is the sole beneficiary under the will of the deceased which has been sought to be probated. The plaintiff claims to be the owner of the properties bequeathed by the deceased to him and the usual injunction against alienation of those properties. In the suit the plaintiff has claimed partition of immovable properties that have been bequeathed to him and mandatory injunction directing to handover those properties to the plaintiff and the usual permanent injunctions against alienation.
    2. The defendant has filed his affidavit-in-reply to the notice of motion to oppose the grant of ad-interim reliefs. The plaintiff has filed the rejoinder thereto.

    3. For considering the properties which constituted the estate of the deceased the cases of the respective parties are required to be seen for the grant of the injunctive reliefs claimed. The plaintiff has set out the properties comprising the estate of the deceased in the list of immovable properties Exhibit-C and the list of movable properties, Exhibit-D to the plaint. For the purpose of notice of motion, a consideration of the immovable properties is required.

    4. The plaintiff claims 1/2 undivided share which the deceased had in flat No. 14, Premkunj Co-op. Hsng, Society Ltd., Sion (West), Mumbai-400 022. The defendant resides in that flat. The plaintiff had left that premises upon certain disputes between the parties prior to the death of the deceased. In the notice of motion the usual injunctions against sale and alienation of that property would suffice.

    5. The plaintiff also claims tenancy rights in the garage No. 1 in Urvashi Building, Sion(West), Mumbai-400 022. It is stated to be a parking garage. It is contended that it is neither a residential nor a commercial premises. It is not covered under Section 5(11)(c)(i) or (ii) of the Bombay Rent Act, 1947 or Section 7(15)(d) of the Maharashtra Rent Control Act, 1999. It would have to be seen in the suit whether a garage would devolve upon any member of the family of the deceased upon the death of the tenant as a statutory tenant cannot bequeath the tenancy right as held in the case of Vasant Pratap Pandit Vs. Dr. Anant Trimbak Sabnis MANU/SC/0685/1994 : 1994 Mh.L.J. 1450; However that judgment considered a commercial or a residential premises. A parking garage in which user and occupation was only parking vehicles would not be on par with a residential or commercial premises in which some of the heirs of the deceased live or carry on business along with the deceased during the life time of the deceased. The garage may revert back to the owner upon the death of the tenant or may devolve upon the heirs in equal shares. Upon such consideration of the law the title which may pass upon the bequest would be considered. Pending that the garage must be protected against alienation and sale.

    6. The plaintiff has made an unusual claim upon an unusual bequest under the will of the deceased. The will, Exhibit-B to the plaint, shows inter alia as one of the properties of the deceased whatever “monies” that come to “my share” in the account of Narendra Amrutlal Shah (NAS) HUF which includes 1/3 share of NAS HUF in a bungalow situate at Ashwamegh Co-op. Hsng. Society in Ahmedabad. The title of the deceased to give her a right to bequeath the property would have to be seen in the monies that would come to her share in a HUF of her husband, the defendant herein. The husband was alive on the date of the will as also on the date of her death. The deceased was not a widow. The deceased did not get the share which belonged to her husband in the HUF upon her husband’s death as per Section 3 of the Hindu Women’s Right to Property Act, 1937. The deceased was not a member of any HUF which owned a bungalow in which her husband, the defendant herein, had a 1/3 share. It is argued that the deceased was a member of the joint family of her husband along with her three children, the plaintiff being one of them and the other two being his step brothers. It is, therefore, argued on behalf of the plaintiff that the deceased had a 1/5 share in the 1/3 share which her husband had in the HUF which owned a bungalow. Hence the deceased would claim to be entitled to a 20% share of the HUF properties.

    7. The deceased was the wife of the defendant. She was not a member of his joint Hindu family except as his wife. It is only when the defendant would constitute HUF for the purpose of his succession that his wife may be shown as the member of the HUF. The wife of a Hindu Coparcener in a HUF is not a Coparcener. She does not get any interest by virtue of her birth in her marital family. Only a person who would derive an interest by virtue of his/her birth in a family would become a Coparcener, a Coparcenary being a much narrower body than a Hindu Joint Family.

    8. Counsel on behalf of the defendant has also produced the Law Lexicon page 416 showing the definition of coparceners thus:

    Coparceners. Otherwise called Parceners, are such as have equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors.

    Coparcener. One who shares (equally) with others in inheritance in the estate of a common ancestor [S. 6, expln. 1, Hindu Succession Act]”.

    It further shows coparcenary property thus:

    Coparcenary property. The expression ‘Coparcenary property’ includes property in which the deceased husband had an interest as a joint owner during his life time and, therefore, ancestral property.

    Coparcenary property means the property which consists of ancestral property, or of joint acquisitions, or of property thrown into the common stock and accretions to such property.

    1. The rules and existence of coparcenary or joint family properties enumerated in the case of State Bank of India Vs. Ghamandi RamMANU/SC/0297/1969 : AIR 1969 SC 1330 have been considered by this Court in the case Shalini Sumant Rauth Vs. Milind Sumant Rauth by this Court in Chamber Summons No. 492 of 2012 in Suit No. 143 of 2010 which sets out in para 7 thereof the interest of a coparcener in a joint family property and the distinction between the coparcenary and a joint family property. The interest in a coparcenary is only by virtue of the birth. However some of the various rules of joint Hindu family and coparcenary property enunciated in Mulla’s Hindu Law, Twentieth Edition, Volume-I, Chapter XII set out in that judgment require enunciation:
  • Male issues acquire an interest in coparcenary property from the moment of their birth [page 357].

  • A Hindu coparcenary is a narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. (Hence joint property and coparcenary property or joint Hindu family property or coparcenary property are synonymous) [page 359].

  • The persons who acquire an interest by birth in a joint family property or coparcenary property are sons, grandsons and great-grand sons of the holder of the joint property. They become entitled to joint property upon their birth [Page 359].

  • A joint Hindu family has a common male ancestor with his lineal descendants in the male line [pages 361 & 362].

  • A female cannot be a coparcener although she may be a member of a Joint Hindu Family (the position in law has changed upon the amendment to Section 6 of the Hindu Successions Act, 1956 by the amendment of 2005. That amendment applies to daughters of a coparcener and not to a wife of a coparcener) [page 362].

  • The ownership of a joint family property is with the coparceners consisting of the Karta and his sons. They are the co-owners or coparceners (Hence the expression co-owners and coparceners are synonymous) [page 364].

  • The ownership of a coparcenary is in the whole body of coparceners. (Hence it would exclude their wives. Wives cannot be coparceners in a coparcenary. Only the coparceners would be co-owners. Hence a wife would not co-own a share along with her husband in the HUF of the husband [page 366].

  • Coparcenary interest is fluctuating. It is enlarged by the deaths in the family; it is diminished by the births in the family. Such interest is called undivided coparcenary interest (The death of a wife of a coparcener cannot augment or diminish the share of the other coparceners or co-owners) [page 366].

  • On the death of a coparcener the others take by survivorship the share which he had in common earlier. Such share cannot entirely devolve upon the wife. Otherwise the very concept of coparcenary would be destroyed. It would tantamount to the wife succeeding to the estate of the husband in the coparcenary absolutely [page 366].

  • The interest of the deceased member passes on his death to the surviving coparcener(and not to the wife) [page 366].

  • A coparcener has joint interest or joint possession in joint family property or coparcenary property (his wife cannot have interest jointly with the other coparceners) [page 370].

  • On the death of a coparcener his interest in the coparcenary property does not pass by succession to his heirs; it passes by survivorship to the other coparceners (This was the position in old uncodified Hindu law. There was a departure therefrom under Section 6 of the Hindu Succession Act, 1956 under which a male Hindu dying intestate leaving behind female heirs or male heirs claiming other female heirs would have their share in the coparcenary property devolved by succession and not by survivorship).

  • The coparceners have community of interest and unity of possession. Hence no coparcener can have exclusive possession of any part of the property (no coparcener can, therefore, also alienate or have a bequeathable interest in any specific part of the property) [page 409].

  • No coparcener can predicate at any given moment what his share in joint family property is. No member would be entitled to a definite share in joint family property or in its income [page 409].

  • Each coparcener is entitled to joint possession and in enjoyment of family property. (Since no coparcener can have any exclusivity of possession or interest, no such interest can be bequeathed or succeeded) [page 410].

  • A coparcener excluded from joint possession is entitled to enforce his right by a suit. He is not bound to sue for partition. He is entitled to sue for joint possession and enjoyment. (Such a right is not available to a wife of a coparcener except for enjoyment and possession of a property which is her matrimonial home or shared residence) (See Section 17 of the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) [page 410]

  • The right to enforce a partition and the right of survivorship go hand in hand. “It is the right to partition which determines the right to take by survivorship” [See Anant Vs. Gopal (1895) 19 Bom 269].

  • The aforesaid principles of law show that in a HUF only sons (vertically) and brothers (laterally) would constitute a coparcenary in a joint Hindu family; their wives may be members of the joint Hindu family but are not coparceners. The proprietary rights are of a coparcener if the joint Hindu family owns any joint property. The wives of coparceners do not get any interest in joint property owned and held by coparceners who are co-owners. The wives of the co-owners do not get any interest by virtue of their birth. It is only a Hindu widow who gets the interest of her husband in the coparcenary or joint family property upon the death of her husband. That interest enables her to claim maintenance and residence. Only a widow can demand partition of the interest which her deceased husband would have been entitled.

  • The position of a wife even as regards the right of partition in Mitakshara law has been considered in Mulla’s Hindu Law, Twentieth Edition, Volume I, paragraph 314 at page 579 thus:

  • 314 WIFE:

    (1) A wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled (except in Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband.

    1. Consequently a wife has no share, right, title or interest in the HUF in which her husband is a coparcener with his brothers, father or sons (and after the amendment of Section 6 of the Hindu Succession Act in 2005 with his sisters and daughters also).
  • The wife, such as the deceased, may be a member of a joint Hindu family. By virtue of being a member in the joint Hindu family she cannot get any share, right, title or interest in the joint Hindu property which that family owns. A joint Hindu family may own no property at all. If it owns property, a wife cannot demand partition unlike a daughter. She would get a share only if partition is demanded by her husband or sons and the property is actually partitioned. There has been no such demand and no consequent partition of any property. In fact there has been no partition in the HUF in which the husband is a coparcener. Hence the husband has not acquired any specific share in the coparcenary property-the bungalow in Ahmedabad-which could have become the property of his separate HUF consisting of his wife and children until the death of his wife, the deceased.

  • If there was a partition in the HUF of her husband’s father, in which he is a coparcener, the husband would have got a share in that partition. That would have been ancestral property in his hands. That would have, therefore, been his HUF property. In that property the deceased who was a member of her husband’s (the defendant’s) HUF would have had a share. The deceased could not have demanded a partition. Had there been a partition upon the demand of the coparceners (the husband and children), she would have got a share thereunder. That share would have been her separate property bequeathable by her. She expired prior to such share being obtained. Since her husband did not expire, she would not have the rights of a widow also. Consequently she had no share and no bequeathable interest in any share which devolved upon her husband by survivorship until her death. Consequently the bequest of “my share” or the “monies” which may come to my share is wholly misconceived since her husband was alive on the date of her death and she was not a widow.

  • Counsel on behalf of the plaintiff has relied upon the judgment in the case of N.V. Narendranath Vs. Commissioner of Wealth-tax, Andhra PradeshMANU/SC/0223/1969 : 1969 (1) SCC 748. That judgment is only in respect of the assessability of the share of the sole surviving coparcener, his wife and daughters. If, for the purpose of taxation, the assessee has shown himself as a HUF, the incidents of HUF would follow. This case relates to the assessment filed showing the status of a HUF. That HUF consisted of the assessee and the wife and two minor daughters. The judgment considered whether showing himself as a HUF could be sustained under Section 3 of the Wealth Tax Act, 1957. It was held that a HUF was an assessable legal entity. It was further held in para 4 of the judgment that a Hindu joint family consisted of a person lineally descended from a common ancestor and includes their wives and unmarried daughters unlike a Hindu coparcenary which would be a narrower body and included only persons who acquired, by birth, interest in the joint or coparcenary property. Consequently it was observed that though a wife can be a member of the HUF, no female can be a member of a coparcenary. Even after the amendment of 2005 to Section 6 of the Hindu Succession Act a wife would not be a coparcener; only a daughter of a coparcener would be a coparcener. The analogy in the judgment, therefore, would apply only to the extent that though a wife is a member of a HUF, she is not a member of coparcenary as she is not a coparcener. She may be assessed as such, but she cannot have any interest in the coparcenary property since it is not the HUF but the coparcenary, which is a narrower body, which would alone own and acquire interest in joint or coparcenary property.

  • The analogy in para 5 of the judgment itself would show that though joint property and coparcenary property is synonymous, a member of the HUF and a coparcener are not.

    1. Counsel on behalf of the defendant drew my attention to two judgments of the Madras High Court which has been later followed by the Supreme Court in the cases of V.M.N. Radha Ammal, Kancheepuram Vs. The Commissioner of Income-tax, Madras MANU/TN/0222/1950 : AIR (37) 1950 Madras 538 C.N. 223 and Commr. Of Income-tax, Madya Pradesh, Nagpur and Bhandara Nagpur Vs. Seth Govindram Sugar Mills MANU/SC/0170/1965 : AIR 1966 SC 24 (V 53 C 7) which concern management by a coparcener. The judgment considered the Hindu Women’s Right to Property Act, 1937. The effect of the act is held to be “merely” to confer upon the widow an interest in the share of the husband and the estate created in that interest as the interest of an Hindu widow. She is also entitled to claim partition without conferring upon her the status of coparcener or the right to represent other members of the family as a Karta of an HUF.

    2. The right under Section 3 is, therefore, available only to widows. It is a limited right. It is a right in the share which the husband had in the coparcenary. Section 3 has been repealed by Section 14 of the Hindu Succession Act, 1956 which gives the right to a Hindu woman in lieu of her possession therein. That is an entirely different concept.

    3. The claim by a wife during the life time of the husband in the share and interest which he has as a coparcener in his HUF is wholly premature and completely misconceived. Such bequest under the will does not show the title of the deceased to such property. The deceased, therefore, could not have bequeathed any “monies” as “my share” in the 1/3 share which her husband had in the HUF in which he was a coparcener along with his brothers, father and sons. Consequently the injunction in respect of such property cannot be granted as claimed.

    4. The other movable estate of the deceased are shown to be certain articles and jewellery, furniture & fixtures and shares in three private family companies. It would be for the plaintiff to prove the properties claimed by the plaintiff since it is disputed.

    5. The private limited companies shown by the plaintiff in which the deceased had certain equity shares are stated to be defunct. What was the worth of those companies and the shares since would have to be ascertained at the trial. Such estate of the deceased is not disputed. Hence the following order:

    6. The defendant shall not alienate, encumber, transfer, part with possession or otherwise create any third party rights in flat No. 14, Premkunj Co-op. Hsng, Society Ltd., Sion (West), Mumbai-400 022 as also in the tenancy rights in the garage No. 1 at Urvashi Building, Sion(West), Mumbai-400 022.

    7. There shall be no order in respect of the undivided 1/5 share of the deceased as a coparcener in Narendra Amritlal Shah HUF or in the land or bungalow at Ahmedabad.

    8. There shall be no order with regard to the articles of jewellery or furniture & fixtures of the deceased.

    9. The defendant shall not alienate, encumber, part with possession or create any third party rights in the equity shares held by the deceased in the three private limited companies shown as item No. 3 in the schedule of the movable properties of the deceased, Exhibit-D to the plaint.

    10. The defendant shall disclose on oath the assets and properties, movable and immovable, constituting the estate of the deceased within 30 days.

    11. The notice of motion is disposed of accordingly. No order as to costs.

    12. The defendant has been served with the plaint and has been represented. The defendant shall file his written statement within 30 days.