Tag Archives: Family court

Family Court has NO jurisdiction to award lump sum for accommodation under Sec 127 CrPC

Wife looses 3 lakhs lumpsum awarded ! However Family court has rights to award monthly maintenance based on merits of the case and earning of the husband

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION (FOR MAINTENANCE) NO. 505 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE S.G.SHAH

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

==========================================================
KETAN PRAFULBHAI VYAS….Applicant(s)

Versus

STATE OF GUJARAT & 2….Respondent(s) ==========================================================

Appearance:
MR ASIT B JOSHI, ADVOCATE for the Applicant(s) No. 1
MR BHASH H MANKAD, ADVOCATE with MS GARIMA MALHOTRA, ==========================================================
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

Date : 03/08/2016

CAV JUDGMENT

  1. Heard learned advocate Mr.Asit B.Joshi for the applicant, learned advocates Ms.Garima Malhotra with Mr.Bhash H.Mankad for respondents No.2 and 3 and learned APP Mr.K.P. Raval for respondent No.1 – State being formal party.
  2. The applicant – husband has challenged the order dated 5.8.2015 by the Principal Judge, Family Court, Rajkot in Criminal Misc.Application No.61 of 2011. By such impugned order, Principal Judge, Family Court, Rajkot has awarded an amount of Rs.7,000/- to Rs.10,000/- for different period between 25.1.2011 being date of application till date of order and period thereafter. By same impugned order, an amount between Rs.3,500/- to Rs.5,000/- is also awarded towards maintenance of minor son of the spouse. Thereby, from 1.1.2015, the total liability of the applicant – husband is to pay Rs.10,000/- as maintenance to the wife and Rs.5,000/- to their minor son i.e. total Rs.15,000/-. In addition to such amount of maintenance, the Family Court has also directed the husband to pay a lump sum amount of Rs.3 Lacs for the provision of residential accommodation. I have heard both the sides and perused the available record, which includes oral evidence of both the sides so also reply and affidavit-in- rejoinder before this Court.
  3. However, irrespective of factual details emerging from record, it is clear that Family Court has no jurisdiction whatsoever to award lump sum amount towards provision for residential accommodation when claim is under Section 127 of the Code of Criminal Procedure (‘the Code’, for short) for increasing the amount of maintenance already awarded u/s.125 of the Code, though the Family Court may have similar jurisdiction in case of appropriate application under any other enactment viz. Protection of Women from Domestic Violence Act, 2005 and Hindu Adoption and Maintenance Act, 1956 etc. Therefore, by all means, there is reason to interfere with the impugned order and to quash and set-aside the impugned order so far as it is directing the applicant – husband to pay the lump sum amount of Rs.3 Lacs towards provision for residential accommodation.
  4. Therefore, so far as additional amount of Rs.3,00,000/- towards provision of residence is concerned, it is clear that the Family Court has misinterpreted the decision in the case of Komalam Amma vs. Kumara Pillai Raghavan Pillai reported in AIR 2009 SC 636 because, though it is true that provision for maintenance must include provision for residence with provision for food and clothing etc. and thereby though basic need of roof over head is to be considered and, therefore, though the Honourable Supreme Court has stated that provision for residence may be made either by giving lump sum in money or properties in lieu thereof or by providing money for necessary expenditure or by giving life interest in property, it becomes clear that under the provisions of Section 125 of the Code of Criminal Procedure, the Court is empowered to make arrangement for maintenance of wife which may include consideration for provision for residence but in my considered view, the Court while passing an order under Section 125 of the Code of Criminal Procedure does not have jurisdiction to award lump sum amount towards residential accommodation though it can be awarded under the provisions of Domestic Violence Act. It cannot be ignored that in such cited decision, the Honourable Supreme Court was dealing with the relief of maintenance under Hindu Adoption and Maintenance Act and not under provisions of Section 125 of the Code of Criminal Procedure. It is quite clear and obvious that both under Hindu Adoption and Maintenance Act and the Protection of Women from Domestic Violence Act, wife can claim a separate residential accommodation or provision for it and competent Court can grant such relief, but there is no similar power vested in the Court while dealing with the application under Section 125 of the Code of Criminal Procedure wherein jurisdiction of the Court is limited for making immediate arrangement for livelihood of the wife and children, though such maintenance must be enough for the wife to live with dignity. However, at the same time, such living should not be luxurious, though she should not be left to live in discomfort.
  5. It is a settled legal position that the word ‘maintenance’ has no limited consideration, meaning thereby though the word ‘maintenance’ includes all benefits towards for food, lodging, boarding, medicines, clothes, transportation, entertainment etc., in other words, it includes all the facilities that may be made available to the wife in her house with her husband, but in any case, the word ‘maintenance’ does not include the provision or a right to seek lump sum amount for residential accommodation.
  6. For the purpose, reference of Section 125 of the Code of Criminal Procedure is material which speaks about the right of the person to get maintenance and though the word ‘maintenance’ is nowhere defined, it is clear and obvious that ‘maintenance’ means monthly amount to be paid by the husband or the concerned person to the wife or parents or children as the case may be; where the material part of Section 125 of the Code of Criminal Procedure reads as under :- Section : 125. Order for maintenance of wives, children and parents :- (1) xxxx xxxx xxxx (a) xxxx xxxx xxxx (b) xxxx xxxx xxxx (c) xxxx xxxx xxxx (d) xxxx xxxx xxxx A Magistrate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 1[***], as such Magistrate thinks fit, and to pay to such person as the Magistrate may from time to time direct:
  7. Therefore, a bare reading of the relevant provisions of Section 125 of Code of Criminal Procedure makes it clear that under such Section, right of the wife or the concerned person is to get the monthly allowance on such monthly rate that the Magistrate may think fit from time to time. Thus, in any case, the learned Family Court has no right or jurisdiction whatsoever, to direct the present applicant to provide lump sum amount to the wife for residential accommodation.
  8. However, learned advocate for the respondents are relying upon following citations and therefore, they need to be referred and explained:- 8.1 In the matter between Chaturbhuj Vs. Sita Bai reported in AIR 2007 SCW 7416. Learned advocate has referred last few lines of paragraph 5, which reads that – “It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution.”. However, though this is a well-known citation on this subject, it cannot be ignored that it nowhere confirms that provision for shelter is to be provided in lump sum, which is certainly not in consonance with the provisions of statute itself wherein words used are “a monthly allowance for the maintenance”. Therefore, though amount of maintenance may include amount for shelter, it should be paid per month either as rent or in any other manner, but not in lump sum as awarded in the impugned order. 8.2 In the matter between Komalam Amma (supra), which is relied upon by the respondents is already discussed herein above. 8.3 Unreported judgment dated 19.4.2016 between Sandip Pramodrai Jani Vs. State of Gujarat & Ors. decided in Special Criminal Application No.1129 of 2016, the Single Judge of this Court has relying upon the decision of Komalam Amma (supra) and Mangat (dead) and Anr. vs. Punna Devi (Smt.) (Dead) and Ors reported in (1995)6 SCC 88 held that order of payment of lump sum amount towards provision for residential accommodation is provided and thereby, refused to quash such order by dismissing the petition. However, judgment of Komalam Amma (supra) is already discussed herein above, which makes it clear that it does not confirm that the Family Court or the Magistrate has power to grant lump sum amount towards provision for residential accommodation in favour HC-NIC Page 7 of 10 Created On Sat Aug 06 03:40:38 IST 2016 of wife, more particularly with reference to Section 125 of the Code.
  9. Therefore, none of above judgment makes it clear that the trial Court has absolute and uncontrolled jurisdiction to grant lump sum amount towards residential accommodation also though the phrase used in Section 125 of the Code is quite clear that a Magistrate may order to make a monthly allowance in maintenance. It is also evident that in all such cited cases, the Court has relied upon the provisions of Hindu Adoption and Maintenance Act and not under the provisions of Section 125 of the Code.
  10. Whereas, so far as the amount of monthly maintenance is concerned, Family Court has rightly bifurcated the total amount in three slabs by awarding Rs.10,500/- in aggregate for both the respondents for the period between January, 2011 to December, 2012 and again Rs.12,000/- for two years from January, 2013 to December, 2014 and Rs.15,000/- from January, 2015 onwards. So far as quantum is concerned, there is specific documentary evidence on record regarding income of the applicant – husband in the form of his salary slips, which confirms that though his salary was approximately Rs.18,000/- in the year 2008, the same has been increased to approximately Rs.44,000/- from October, 2014 and HC-NIC Page 8 of 10 Created On Sat Aug 06 03:40:38 IST 2016 it must have been increased thereafter. Therefore, when a person is earning Rs.44,000/- in the month of February, 2015, when his evidence was recorded, then, an amount of Rs.15,000/- i.e. only 1/3rd of his earnings for two living persons can never be said to be excessive in any manner whatsoever. Therefore, so far as quantum of maintenance is concerned, I do not see any reason or substance to interfere with the impugned order, more particularly considering the fact that impugned order is passed in an application u/s.127 of the Code by wife and minor for enhancement of maintenance and thereby, so far as their right to get maintenance and liability of the applicant to pay maintenance is now not in dispute.
  11. In view of above facts and circumstances, the present Criminal Revision Application is partly allowed. Thereby, though order of monthly maintenance is upheld and confirmed as per the impugned order, the order regarding payment of Rs.3 Lacs lump sum towards provision for residential accommodation to be paid by the husband to the wife is hereby quashed and set- aside.
  12. Interim relief, if any, shall stand vacated.

(S.G.SHAH, J.)

Advertisements

2.45 lakh cases in UP Family courts. Need 17 yrs to clear them Even IF no new cases filed !! फैमिली कोर्ट में 2.45 लाख केस, नए न आएं तो भी निपटाने में लगेंगे 17 साल

कैसे मिले न्याय: फैमिली कोर्ट में 2.45 लाख केस, नए न आएं तो भी निपटाने में लगेंगे 17 साल

अभिषेक यादव/अमर उजाला, लखनऊ Updated Sun, 09 Jul 2017 11:55 AM IST
SOURCE : AMAR UJJALA
Demo Pic
Demo Pic

यूपी की पारिवारिक अदालतों में लंबित मुकदमों की संख्या 2.45 लाख के पार पहुंच चुकी है। अमर इन अदालतों में नए केस न भी आएं तो मौजूदा सभी मामलों को निपटाने में 17 साल लग जाएंगे। ऐसा इ‌सलिए क्योंकि 190 फैमिली कोर्ट में से केवल 42 में ही जज हैं। ये हकीकत इलाहाबाद हाईकोर्ट की लखनऊ खंडपीठ के एक फैसले में सामने आई है

यह खंडपीठ फैमिली कोर्ट को लेकर दायर एक याचिका पर सुनवाई कर रही थी। याचिका में अप्रैल 2017 तक के लंबित केसों की संख्या का हवाला दिया गया था।

इस पर जस्टिस श्रीनारायण शुक्ला और जस्टिस शिव कुमार सिंह- प्रथम ने कहा, अगर मान लिया जाए कि मई से एक भी केस दायर नहीं हो और पारिवारिक अदालतों को वैसे ही चलने दिया जाए, जैसे ये अभी चल रही हैं तो इन सभी मामलों पर फैसला सुनाने में 17 साल लग जाएंगे। याचिका न्यायिक अधिकारियों की संस्‍था यूपी न्यायिक सेवा संघ के महासचिव ने दायर की थी।

प्रदेश में 190 पारिवारिक अदालतें पर 42 में ही जज, यानी 148 खाली

26 मई, 2017 तक के आंकड़ों के अनुसार पारिवारिक मामले निपटाने के लिए यूपी में प्रमुख जज और अपर प्रमुख जजों की 190 अदालतें बनाई गई हैं। लेकिन, सहायक रजिस्ट्रार द्वारा दी गई जानकारियों के अनुसार इनमें सिर्फ 42 न्यायिक अधिकारी ही काम कर रहे हैं। 148 अदालतें खाली हैं। इसलिए लंबित मामले भी लगातार बढ़ रहे हैं।

याचिका में पारिवारिक अदालतों के दो अलग-अलग नियमों पर सवाल
1. यूपी फैमिली कोर्ट्स रूल्स, 1995 के नियम 36 के अनुसार पारिवारिक न्यायालयों को हाईकोर्ट के अधीन काम करना होगा।

2. यूपी फैमिली कोर्ट्स रूल्स, 2006 के अनुसार फैमिली कोर्ट के जज जिला जजों के प्रशासनिक और विभागीय नियंत्रण में होंगे। इसके बाद समस्त नियंत्रण हाईकोर्ट का होगा।

याची का तर्क
याची संगठन के अनुसार, ये दोनों नियम विरोधीभासी हैं। जजों की समितियों ने कई बार 2005 के नियम को नकारते हुए पारिवारिक अदालतों को हाईकोर्ट के अधीन रखने की सिफारिश की थी, लेकिन सरकार अब तक कोई निर्णय नहीं ले सकी है।

#Family court #NOT #empowered to grant #maintenance unless sought

#Family court #NOT #empowered to grant #maintenance unless sought.

 

From the careful reading of the above said provisions, it is apparent that the court would not be empowered to grant the relief unless sought. In the present case, it appears that at the time of delivering judgment, the court suo motu considered the application under section 26 of the Domestic Violence Act thereby clearly denying an opportunity to non applicant to meet with the same. It was obligatory on the part of the Family Court to hear the non-applicant before awarding maintenance under Section 26 of the Domestic Violence Act. Since the Family Court failed for the same and since the applicant/present non-applicant failed to establish that she entered into domestic relationship or she was legally married to non-applicant, she was not entitled to relief of maintenance either under Section 125 of the Code of Criminal Procedure or under the provisions of the Domestic Violence Act.

 

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR

BENCH : NAGPUR

CRIMINAL APPLICATION [APL] NO.664 OF 2011

Gautam s/o Jairam Gavai,

V

Sau. Ragini alleged w/o Gautam,Gavai,

CORAM : KUM. INDIRA JAIN, J.

DATED : JANUARY 20, 2017.

1] By these applications under Section 482 of the Code of Criminal Procedure, applicant has assailed the judgment and order of the Family Court, Akola in Petition No.E-82/2010 passed on 21.10.2011, order dated31.12.2014 passed by the Judicial Magistrate, First Class,Akola in Miscellaneous Criminal Case No.949/2010 and order dated 18.3.2015 passed by the Adhoc Additional Sessions Judge, Akola in Criminal Appeal No.11/2015.

2] Heard the learned counsel for the parties. Since common questions of facts and law arise in these two applications, they are disposed of by common judgment.

3] The facts giving rise to the applications may be stated, in brief, as under : Respondent no.1 claiming herself to be the wife of applicant, filed an application under Section 125 of the Code of Criminal Procedure before the Family Court, Akola. She pleaded that she was married to applicant Gautam Gawai on 11.5.1997. They have two sons Vaibhav and Nipun born out of the said wedlock. According to respondent Ragini, till Diwali 2009, they led happy married life. After Diwali-2009, quarrel between respondent and applicant started and applicant used to treat her as maid servant. He started harassing her and ultimately left the house, not to return forever. She made efforts to find out his whereabouts. She was not successful and so she informed about the same to the Superintendent of Police. According to respondent, both the children were studying in English Medium School. She was unable to maintain herself. She, therefore, claimed maintenance for herself and the children.

4] Applicant appeared in the proceedings and contested the same. He denied marriage between him and respondent Ragini. According to applicant, he was married to Suvarna on 9.5.1990. The couple were blessed with three children. Marriage between applicant and Suvarna still subsists. Further submission is that respondent is a legally wedded wife of one Shamrao Bhopaji Ambhore and her marriage was solemnized on 01.03.1995 under the provisions of the Special Marriage Act. He contended that on false grounds, application for maintenance came to be filed and prayed to reject the same.

5] On appreciation of evidence, Family Court came to the conclusion that Ragini was not the legally wedded wife of Gautam Gawai. However, keeping in view the object of the provisions relating to maintenance, the learned Judge thought it appropriate to consider the prayer for maintenance under Section 26 of the Family Courts Act and awarded maintenance at the rate of Rs.1500/- per month to the applicant. It is this order which is the subject matter of Criminal Application No.664/2011.

6] In another proceeding, respondent presented an application under the provisions of the Protection of Women from Domestic Violence Act, 2005 (In short “Domestic Violence Act”) claiming relief of protection order, monetary relief and compensation. This application was presented almost on the same grounds on which an application under Section 125 of the Code of Criminal Procedure was filed by her. Considering the evidence, the learned Judicial Magistrate, First Class, partly allowed the application and granted maintenance at the rate of Rs.2000/- per month to the applicant under Section 20 of the Domestic Violence Act. The order was carried in appeal before the District Court, Akola. Applicant preferred an application seeking stay to the judgment and order passed in Misc. Criminal Case No.949/2010. Vide order dated 18.3.2015, the learned Adhoc Additional Sessions Judge, Akola allowed the application and stayed the impugned judgment, subject to condition of depositing 50% of the outstanding amount within one month from the date of order, with further condition that non-compliance of the same, would result into automatic end to the stay order. The order passed by the learned Judicial Magistrate, First Class and the order on Exh.5 passed by the learned Adhoc Additional Sessions Judge are the subject matter of Criminal Application No.229/2015.

7] Learned counsel Shri Dhande submits that marriage between applicant and respondent is in dispute. Family Court has categorically held that there was no legal marriage between applicant and respondent. He submits that respondent could not establish dissolution of marriage in accordance with the law and in such circumstances, respondent was not entitled for maintenance under Section 125 of the Code of Criminal Procedure.

8] Regarding protection under the Domestic Violence Act, learned counsel submitted that domestic relationship between applicant and respondent is not established and in the absence of proof of domestic relationship, respondent was not entitled to any protection under the provisions of the Domestic Violence Act. In support of the submissions, learned counsel placed reliance on the decisions of the Hon’ble Supreme Court in D. Velusamy .vs. D. Patchaiammal (2010 (10) SCC 469 and of this Court in the case of Shri Ambadas Gangadhar Shetye .vs. Malabai Ambadas Shetye and another (2013 BCI 535). Reliance is also placed on the judgment dated 27.1.2015 passed by this Court in Criminal Writ Petition No.773/2014.

9] Per contra, learned counsel for respondent strongly supports the order impugned in both the applications. It is submitted that strict proof of legal marriage is not required in the proceeding under Section 125 of the Code of Criminal Procedure and so far as the protection under the Domestic Violence Act is concerned, this is an admitted fact that for a long long years, applicant and respondent resided together and they have two children out of the said relationship. The learned counsel submits that in such a situation no interference is required in extra-ordinary jurisdiction and prays to reject the applications.

10] With the assistance of the learned counsel for the parties, this court has gone through the reasons recorded by the learned Judge of the Family Court, learned Judicial Magistrate, First Class and the learned Adhoc Additional Sessions Judge. Needless to state that to attract the provisions of Domestic Violence Act, applicant must not only to show existence of live-in-relationship with the nonapplicant which is akin to a marriage visible from the fact that applicant and non-applicant are living together as husband and wife but also should show that they are otherwise legally qualified to marry. A woman, who is married, cannot enter into a domestic relationship as contemplated under Section 2 (f) of the Domestic Violence Act, and even if, she is successful in establishing a long standing relationship with the man, she would not be entitled to protection under the provisions of the Domestic Violence Act. The cases referred by the learned counsel for applicant reiterate the well settled propositions of law in this regard.

11] In the case on hand, so far as the domestic relationship between applicant and respondent is concerned, applicant could not establish the same as required under Section 2 (f) of the Domestic Violence Act. Though she states that her previous marriage with Shamrao Ambhore was dissolved by a deed of dissolution, she could not prove the said deed of dissolution in accordance with the law. Once respondent admits her marriage with Shamrao Ambhore in the year 1995, it was for her to prove that after dissolution of the said marriage, she married to non-applicant or enter into domestic relationship with non-applicant. In the absence of proof regarding dissolution of first marriage of respondent Ragini, the courts below committed serious error in holding that she entered into domestic relationship with the non-applicant whose first marriage with Suvarna was also in existence on 11.5.1997.

12] As stated above, Family Court has held that Ragini was not the legally wedded wife of Gautam Gawai and proceeded to consider the application under Section 125 of the Code of Criminal Procedure under Section 26 of the Family Courts Act and awarded maintenance to her. The provisions of Section 26 of the Protection of Women from Domestic Violence Act, 2005 read thus -26. Relief in other suits and legal proceedings :- (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. From the careful reading of the above said provisions, it is apparent that the court would not be empowered to grant the relief unless sought. In the present case, it appears that at the time of delivering judgment, the court suo motu considered the application under section 26 of the Domestic Violence Act thereby clearly deniying an opportunity to nonapplicant to meet with the same. It was obligatory on the part of the Family Court to hear the non-applicant before awarding maintenance under Section 26 of the Domestic Violence Act. Since the Family Court failed for the same and since the applicant/present non-applicant failed to establish that she entered into domestic relationship or she was legally married to non-applicant, she was not entitled to relief of maintenance either under Section 125 of the Code of Criminal Procedure or under the provisions of the Domestic Violence Act.

13] So far as maintenance to minors is concerned, it can be seen from the municipal record that name of father of Vaibhav was initially shown as Sanjay and later on tried to be rectified as Gautam. Regarding Nipun, there is no convincing evidence to show that he was born to respondent from applicant. Exh.28 is considered as a letter by applicant to S.D.P.O. and reliance is placed on the admissions therein. On cursory look at Exh.28, it can be seen that on 1.1.2010, S.D.P.O. recorded statement of applicant in the course of enquiry. Applicant has not admitted the statement. In the absence of unequivocal admission on the part of applicant Gautam and for want of legal proof, reliance could not have been placed on contents of Exh.28 to fasten paternity of children on him.

14] In the above circumstances, this court finds that the case of the respondent is completely out of purview of the provisions of Section 125 of the Code of Criminal Procedure and the provisions of Domestic Violence Act. As impugned orders suffer from material legal infirmities, interference in extra-ordinary jurisdiction is warranted.

Hence, the following order.

(1) Criminal Application (APL) No.664/2011 is allowed The impugned order dated 21.10.2011 in Petition No.E.82/2010 passed by the Family Court, Akola is quashed and set aside. Rule is made absolute in the aforesaid terms. No order as to costs.

(2) Criminal Application (APL) No.229/2015 is allowed. Rule is made absolute in terms of prayer clauses (a)-(i), (ii) and (iii). No order as to costs.

(Kum. Indira Jain, J.)

 

with all money linked to #aadhar, will it become easy for courts to take it all in one go ??

if government makes absolutely #aadhar compulsory (over few years), then link all #bank a/c, #property, #shares, own car, loans etc etc to aadhar, will it become VERY easy for #FamilyCourt and #Magistrate court to loot you in one go, and give % of everything to wife (and her …….. ) ???

One side keeping matri case pending is harassment to other. Its a punishment to the other side. Madras HC !!

IF your wife is delaying the matrimonial case, Use this Madras HC judgement for speedy closure. In this case a husband approached the HC who has ordered closure of the case by FAMILY COURT within 2 months

“…. Noting that the family proceedings had been prolonged, longer than a regular civil suit, the judge said, “Keeping the case pending by one of the litigant, amounts to harassment to the other side. It is deliberately resorted to as a method of punishment to the other side.”

She said, “Emotional explosion is involved in almost all cases relating to matrimonial disputes. The interest of children is involved in several cases and pending dispute shatters mental peace. The future planning is kept under suspension. Procreation may become an impossibility because of the advancement of age. The impatient litigant may resort to illegal marriage.”

>>>>>>>> Article >>>>>>>>>>>>

Dispose of divorce cases fast: High Court

TNN | Feb 21, 2016, 09.06 AM IST

Chennai: Neither being able to ‘consummate’ his marriage for 13 years nor obtain divorce on the ground of cruelty for denial of conjugal rights, a man moved Madras high court for speedy end to the ordeal, prompting the court to repeat its oft-quoted phrase ‘Justice delayed is justice denied.’

Justice S Vimala, expressing distress at inordinate delay in disposal of divorce cases in family courts, said such delays in settling matrimonial disputes would emotionally disturb parties who would undergo ‘relentless worries’. Calling it the “silent cry of a husband, who is allegedly deprived of the conjugal relationship right from the date of marriage”, the judge then directed the third additional family court to dispose of the matter in two months.

Meenakshi Sundaram had moved the court to declare the marriage between him and his wife as a nullity, saying the wife was disinclined to live with him and that she refused to consummate the marriage. Noting that she refused to render conjugal company, which amounted to mental cruelty, he sought divorce on the ground of cruelty. Justice Vimala said it was a well-known fact that pendency of family court cases was mounting, bringing the judges under enormous pressure. “Despite the family court judges burning the midnight oil, they are not able to clear the pendency, because of the attitude of parties, procedural flexibility not being utilized, parties not willing to settle the matter at the earliest point of time and pre-litigation settlement not being utilized.

Noting that the family proceedings had been prolonged, longer than a regular civil suit, the judge said, “Keeping the case pending by one of the litigant, amounts to harassment to the other side. It is deliberately resorted to as a method of punishment to the other side.”

She said, “Emotional explosion is involved in almost all cases relating to matrimonial disputes. The interest of children is involved in several cases and pending dispute shatters mental peace. The future planning is kept under suspension. Procreation may become an impossibility because of the advancement of age. The impatient litigant may resort to illegal marriage.”

It is for the judges of family courts to find out ways and means to dispose of the cases quickly. “Bottlenecks in the system and the handicap for judges, if any, should be discussed in judicial academies and solutions in terms of either change in law or change in procedure or change in attitude of the parties must emerge,” Justice Vimala said. She urged family courts to make use of alternative disputes resolution (ADR) methods such as conciliation, mediation and lok adalat, and said, “There is a duty enjoined on family courts to make efforts for settlement at the first instance, wherever it is possible to do so, consistent with the nature and circumstance of the case. Settlement brings finality to the litigation and peace to the family.”

source
http://timesofindia.indiatimes.com
/city/
chennai/