NRI divorce lawyers

Divorce case can be initiated in India with the help of a general power of attorney holder so that the person seeking divorce does not have to come to India again and again. The biggest problem which Non-Resident Indians (NRI) used to face in divorce cases is that they had to come to India to give evidence to get divorce. Now family courts have got the power to establish their own procedure in divorce cases. Evidence can be given through video-conferencing also, if the judge allows the application to give evidence through videoconferencing. Therefore it has become extremely easy for Non-Resident Indians (NRI) to get divorce in India.

Divorce in India as of two types. One is uncontested divorce which is called mutual consent divorce in India. In mutual consent divorce, both the parties agreed to get divorce from each other. When the case is first heard (that is the first date of hearing) judge asks the parties whether they have finally decided to get divorce from each other. After the parties affirm their decision before the judge, date of six months is given. On the second date of hearing, the judge passes a decree of divorce.

The other type of divorce is contested divorce. In contested divorce, one of the parties seeks the divorce and the other does not want to give divorce. In contested divorce, one party files a divorce case in the court, summons are issued to the second party, second party files reply the court, issues are framed, evidence is led by both the parties, arguments of both the parties are heard by the judge and then a final decision is given. Under Hindu Marriage Act, 1955, contested divorce can be sought on the grounds of adultery, cruelty, desertion, conversion to another religion, unsoundness of mind or mental disorder, leprosy or venereal diseases, or if the respondent has renounced the world or has not been heard for seven years or more.

It may be noted that the court always tries to mediate between the parties to resolve the differences and can even send the case to mediation Centre. Parties are not forced to enter into a compromise or to withdraw divorce proceedings. The court merely interferes because in India divorce is not considered a normal situation.

Complete text of The Hindu Marriage Act, 1955 is as following:-

The Hindu Marriage Act, 1955

1. Short title and extent.

(1) This Act may be called the Hindu Marriage Act, 1955. (2) It extends to the whole of India except the State of Jammu and Kashmir , and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

2. Application of Act. —

(1) This Act applies—

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation. —The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

3. Definitions.-

In this Act, unless the context otherwise requires,—

(a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

(b) “district court” means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;

(c) “full blood” and “half blood”— two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;

(d) “uterine blood”— two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;

Explanation. —In clauses (c) and (d), “ancestor” includes the father and “ancestress” the mother;

(e) “prescribed” means prescribed by rules made under this Act;

(f) (i) “ sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation; (ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

(g) “degrees of prohibited relationship”— two persons are said to be within the “degrees of prohibited relationship”— (i) if one is a lineal ascendant of the other; or (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or (iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;

Explanation .—For the purposes of clauses (f) and (g), relationship includes— (i) relationship by half or uterine blood as well as by full blood; (ii) illegitimate blood relationship as well as legitimate; (iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.

4. Overriding effect of Act.-

Save as otherwise expressly provided in this Act,—

(a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

5. Conditions for a Hindu marriage.-

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity ***;

(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; ***

6. Guardianship in marriage.
***

7. Ceremonies for a Hindu marriage.-

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

8. Registration of Hindu marriages.-

(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.

9. Restitution of conjugal rights.-

*** 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 district 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.

Explanation. —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. ***

10. Judicial separation.-

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

11. Void marriages.-

Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) , (iv) and (v) of section 5.

12. Voidable marriages.-

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:— (a) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage— (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if— (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied— (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

13. Divorce. —

(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) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation .—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(iv) has *** been suffering from a virulent and incurable form of leprosy; or

(v) has *** been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; ***

Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. ***

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as 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 proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation. —This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).

13A. Alternate relief in divorce proceedings.-

In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

13B. Divorce by mutual consent. —

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

14. No petition for divorce to be presented within one year of marriage.-

(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:

Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.

15. Divorced persons when may marry again.-

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again. ***

16. Legitimacy of children of void and voidable marriages.-

(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

17. Punishment of bigamy.-

Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.

18. Punishment for contravention of certain other conditions for Hindu marriage.-

Every person who procures a marriage of himself or herself to be solemnised under this Act in contravention of the conditions specified in clauses (iii), (iv), and (v) of section 5 shall be punishable—

(a) in the case of contravention of the condition specified in clause (iii) of section 5, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both; (b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both; *** ***

19. Court to which petition shall be presented.-

Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

20. Contents and verification of petitions. —

(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and, except in a petition under section 11, shall also state that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.

21. Application of Act 5 of 1908.-

Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

21A. Power to transfer petitions in certain cases.-

(1) Where— (a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13; and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State, the petitions shall be dealt with as specified in sub-section (2).

(2) In a case where sub-section (1) applies,— (a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court; (b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.

21B. Special provision relating to trial and disposal of petitions under the Act. —

(1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

21C. Documentary evidence.-

Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.

22. Proceedings to be in camera and may not be printed or published. —

(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.

23. Decree in proceedings .—

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—

(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him 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 purpose of such relief, and

(b) where the ground of the petition is the ground specified *** in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and

(c) the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.

(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.

23A. Relief for respondent in divorce and other proceedings.-

In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

24. Maintenance pendente lite and expenses of proceedings.-

Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

25. Permanent alimony and maintenance.-

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall *** pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant , the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

26. Custody of children.-

In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made: Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

27. Disposal of property.-

In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

28. Appeals from decrees and orders.-

(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of ninety days from the date of the decree or order.

28A. Enforcement of decrees and orders.-

All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction for the time being are enforced.

29. Savings.-

(1) A marriage solemnised between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste.

(2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.

(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed. (4) Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954 (43 of 1954) with respect to marriages between Hindus solemnised under that Act, whether before or after the commencement of this Act.

30. Repeals.
***

Important judgments on divorce cases are:-

Suman Singh v. Sanjay Singh, (SC) 2017 AIR (SC) 1316

JUDGMENT

Abhay Manohar Sapre, J. – These appeals are filed by the appellant (wife) against the final judgment and order dated 23.05.2013 passed by the High Court of Delhi at New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013 by which the High Court dismissed the appeals filed by the appellant and confirmed the judgment dated 14.12.2010 of the Principal Judge, Family Courts, Rohini which had granted decree for dissolution of marriage in favour of the respondent (husband) and, in consequence, also affirmed the order dismissing the petition filed by the appellant (wife) for restitution of conjugal rights.

2. Facts, in brief, to appreciate the controversy involved in the appeals need mention infra.

3. The marriage between the appellant and the respondent was solemnized on 26.02.1999 at Delhi as per the Hindu rites. The respondent-husband is working as “Caretaker” in the Government of NCT of Delhi whereas the appellant is a housewife. Out of this wedlock, one daughter was born on 15.06.2002 and the second daughter was born on 10.02.2006. Both daughters are living with the appellant.

4. On 11.07.2010, the respondent (husband) filed a petition for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “The Act”) in the Family Courts, Rohini, Delhi against the appellant (wife). The respondent sought decree for dissolution of marriage essentially on the ground of “cruelty”.

5. In substance, the respondent, in his petition, pleaded 9 instances which, according to him, constituted “cruelty” within the meaning of Section 13(1)(i-a) of the Act entitling him to claim dissolution of marriage against the appellant.

6. The first ground of cruelty was related to wife’s behaviour on the next day of marriage, i.e., 27.02.1999. It was alleged that the appellant came out of the bedroom in night dress and that too late when the close relatives of the respondent were sitting in the house. It was alleged that she did not pay respect and wishes to the elders. (Para 9 of the plaint)

7. The second ground of cruelty was again about the appellant’s behaviour with the respondent on the eve of New Year. However, the year was not mentioned. According to the respondent, he agreed to celebrate the new year with the appellant on her parental house as the parents of the appellant gave repeated calls. After reaching her parental house, most of the time the appellant was busy with her family members and left him alone in the drawing room. Even at the time of dinner, the family members of the appellant did not behave properly. (Para 10).

8. The third ground of cruelty was that the appellant did not show any inclination or enthusiasm to attend any important family function or festivals at the respondent’s house whenever held. However, no details were given about the date and the function held. The allegations are general in nature (Para 11).

9. The fourth ground of cruelty was again about the indecent behaviour of the appellant towards the respondent’s family members. However, no details were pleaded except making general averments (Para 12).

10. The fifth ground of cruelty was in relation to an incident which, according to the respondent, occurred in July 1999. It was alleged that the appellant, on that day, insisted that the couple should live separately from the respondent’s parents (Para 13).

11. The sixth ground of cruelty was again general with no details. It was alleged that the appellant was not interested in doing any household work nor was interested in preparing meals and used to insist the respondent to have his lunch from outside. (Para 14).

12. The seventh ground of cruelty was in relation to one incident which, according to the respondent, occurred on Diwali day in the year 2000. It was again about the behaviour of the appellant with the family members of the respondent which, according to the respondent, was rude (Para 16).

13. The eighth ground of cruelty was in relation to one isolated incident which, according to the respondent, occurred on 15.04.2001. It was again about the behaviour of the appellant with the friends of the respondent who had come to the respondent’s house. According to the respondent, the family members did not like it (Para 17).

14. The ninth ground of cruelty was that one day in year 2010, the appellant visited the respondent’s office and misbehaved with the respondent in the presence of other officials (Para 27).

15. The respondent also alleged some instances in the petition. They, however, again essentially relate to the appellant’s behaviour with the respondent and his family members.

16. The appellant filed her written statement and denied these allegations. The appellant also applied for restitution of conjugal rights against the respondent in the same proceedings by filing petition under Section 9 of the Act and inter alia alleged in her petition that it was the respondent who has withdrawn from her company without there being a reasonable cause. She also while denying the case set up by the respondent justified her case for restitution of conjugal rights.

17. The Trial Court framed the following issues on the basis of pleadings in the case:

1. Whether after solemnization of marriage, the Respondent has treated the Petitioner with cruelty? OPP

2. Whether the Petitioner is entitled to the decree of divorce as prayed? OPP

3. Relief
The following issues were framed based on the pleadings in the petition under Section 9 of the Act:

1. Whether the Petitioner is entitled to the restitution of conjugal rights as prayed? OPP

2. Relief
18. Parties adduced the evidence. By order dated 14.12.2012, the Family Court allowed the petition filed by the respondent. It was held that the grounds alleged by the respondent amounted to mental cruelty within the meaning of Section 13(1)(ia) of the Act and the same having been proved by the respondent, he was entitled to claim a decree for dissolution of marriage against the appellant. Accordingly, the Trial Court granted decree for dissolution of marriage in favour of the respondent and dissolved the marriage. Since the decree for dissolution of marriage was passed against the appellant, the petition filed by the appellant against the respondent seeking restitution of conjugal rights was dismissed.

19. The appellant, felt aggrieved by the aforesaid order, filed first appeals before the High Court. In appeals, the question was whether the Trial Court was justified in granting decree for dissolution of marriage to the respondent (husband) and, in consequence, was justified in dismissing the petition for restitution of conjugal rights filed by the appellant (wife).

20. By impugned judgment, the High Court dismissed the appeals and affirmed the judgment/decree of the Trial Court. The appellant (wife), felt aggrieved, has filed these appeals by special leave against the judgment of the High Court.

21. Heard Mr. D.N. Goburdhan, learned counsel for the appellant and Mr. Gaurav Goel, learned counsel for the respondent.

22. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order, dismiss the divorce petition filed by the respondent(husband) against the appellant and, in consequence, allow the petition filed by the appellant(wife) for restitution of conjugal rights against the respondent (husband).

23. The word “cruelty” used in Section 13(1)(ia) of the Act is not defined under the Act. However, this expression was the subject matter of interpretation in several cases of this Court. What amounts to “mental cruelty” was succinctly explained by this Court (three Judge Bench) in Samar Ghosh v. Jaya Ghosh 2007(2) R.C.R.(Civil) 595 : 2007(2) Recent Apex Judgments (R.A.J.) 177 : (2007) 4 SCC 511. Their Lordships speaking through Justice Dalveer Bhandari observed that no uniform standard can ever be laid down for guidance, yet it is appropriate to enumerate some instances of human behaviour which may be considered relevant in dealing with the cases of “mental cruelty”.

24. Their Lordships then broadly enumerated 16 category of cases which are considered relevant while examining the question as to whether the facts alleged and proved constitute “mental cruelty” so as to attract the provisions of Section 13 (1) (ia) of the Act for granting decree of divorce.

25. Keeping in view the law laid down in Samar Ghosh’s case (supra), when we examine the grounds taken by the respondent in his petition for proving the mental cruelty for grant of divorce against the appellant, we find that none of the grounds satisfies either individually or collectively the test laid down in Samar Ghosh’s case (supra) so as to entitle the respondent to claim a decree of divorce.

26. This we hold for more than one reason. First, almost all the grounds taken by the respondent in his petition were stale or/and isolated and did not subsist to enable the respondent to seek a decree for dissolution of marriage. In other words, the incidents of cruelty alleged had taken place even, according to the respondent, immediately after marriage. They were solitary incidents relating to the behaviour of the appellant. Second, assuming that one or more grounds constituted an act of cruelty, yet we find that the acts complained of were condoned by the parties due to their subsequent conduct inasmuch as admittedly both lived together till 2006 and the appellant gave birth to their second daughter in 2006. Third, most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the appellant actually said etc.

27. In our view, the incidents which occurred prior to 2006 could not be relied on to prove the instances of cruelty because they were deemed to have been condoned by the acts of the parties. So far as the instances alleged after 2006 were concerned, they being isolated instances, did not constitute an act of cruelty.

28. A petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of the date of petition cannot furnish a subsisting cause of action to seek divorce after 10 years or so of occurrence of such incidents. The incidents alleged should be of recurring nature or continuing one and they should be in near proximity with the filing of the petition.

29. Few isolated incidents of long past and that too found to have been condoned due to compromising behaviour of the parties cannot constitute an act of cruelty within the meaning of Section 13 (1)(ia)of the Act.

30. In our considered opinion, both the Courts below failed to take note of this material aspect of the case and thus committed jurisdictional error in passing a decree for dissolution of marriage.

31. We cannot, therefore, countenance the approach of the High Court because it did not, in the first instance, examine the grounds taken in the petition to find out as to whether such grounds constitute mental cruelty or not? The finding, therefore, though concurrent does not bind this Court.

32. We are not impressed by the submission of the learned counsel for the respondent that an incident which occurred somewhere in 2010 when the appellant visited the office of the respondent and alleged to have misbehaved with the respondent in front of other officers would constitute an act of cruelty on the part of the appellant so as to enable the respondent to claim divorce. In the first place, no decree for divorce on one isolated incident can be passed. Secondly, there could be myriad reasons for causing such isolated incident. Merely because both exchanged some verbal conversation in presence of others would not be enough to constitute an act of cruelty unless it is further supported by some incidents of alike nature. It was not so.

33. We are also not impressed by the submission of the learned counsel for the respondent that since the appellant had made allegation against the respondent of his having extra-marital relation and hence such allegation would also constitute an act of cruelty on the part of the appellant entitling the respondent to claim decree for dissolution of marriage.

34. Similarly, we are also not impressed by the submission of learned counsel for the respondent that since both have been living separately for quite some time and hence this may be considered a good ground to give divorce.

35. In the first place, the respondent did not seek a decree of dissolution of marriage on these grounds. Second, the grounds of cruelty taken by the respondent in his petition does not include these grounds. Third, even if some stray allegations were made by the wife in her pleading/evidence as were relied upon by the learned counsel are of no relevance because, as mentioned above, these ground were not pleaded in the petition by the respondent for seeking a decree of divorce and nor were put in issue; and lastly, the burden being on the respondent, the same could be discharged by the respondent by pleading and then proving. It was not so done. It is for these reasons, we cannot accept the aforementioned two submissions for affirming the decree of divorce.

36. This takes us to the next question as to whether the appellant was able to make out any case for restitution of conjugal rights against the respondent.

37. Having perused her petition and evidence, we are of the view that the appellant is entitled for a decree for restitution of conjugal rights against the respondent.

38. In our considered view, as it appears to us from perusal of the evidence that it is the respondent who withdrew from the appellant’s company without there being any reasonable cause to do so. Now that we have held on facts that the respondent failed to make out any case of cruelty against the appellant, it is clear to us that it was the respondent who withdrew from the company of the appellant without reasonable cause and not the vice versa.

39. In view of foregoing discussion, the appeals succeed and are allowed. The impugned judgment is set aside. As a result, the petition filed by the respondent (husband) under Section 13(1) of the Act seeking dissolution of marriage is dismissed. As a consequence thereof, the marriage between the parties is held to subsist whereas the petition filed by the appellant against the respondent under Section 9 of the Act seeking restitution of conjugal right is allowed. A decree for restitution of conjugal right is, accordingly, passed against the respondent.

40. We hope and trust that the parties would now realize their duties and obligations against each other as also would realize their joint obligations as mother and father towards their grown up daughters. Both should, therefore, give quite burial to their past deeds/acts and bitter experiences and start living together and see that their daughters are well settled in their respective lives. Such reunion, we feel, would be in the interest of all family members in the long run and will bring peace, harmony and happiness. We find that the respondent is working as a “Caretaker” in the Government Department (see Para 4 of his petition). He must, therefore, be the “Caretaker” of his own family that being his first obligation and at the same time attend to his Government duties to maintain his family.

Raj Talreja v. Kavita Talreja, (SC) 2017(5) Scale 413

JUDGMENT

Deepak Gupta, J. – Parties to the appeal got married in 1989 according to Hindu rites. Out of this wedlock a son was born in the year 1990. It is not disputed that till the year 1999 both husband and wife lived together with the parents of the husband. In the year 1999, the couple shifted to their own residence. On 19.03.2000, the husband left the matrimonial home and, soon thereafter, on 25.03.2000, filed a petition for grant of a decree of divorce dissolving the marriage.

2. It is not disputed that the wife filed a suit praying for injunction that the husband should not be permitted to enter the matrimonial home. On 07.11.2000, certain news items appeared in the newspapers in which serious allegations were made against the husband. These newspaper reports were based on the intimation given by the wife. On 04.12.2000, the wife filed a complaint to the State Women Commission making serious allegations against the husband. Thereafter, on 05.12.2000, she sent a similar letter to the Chief Justice of the High Court as well as the Superintendent of Police. Finally, on 07.12.2000, she made another complaint to the Chief Minister. On 16.03.2001, these complaints were found to be false. On 12.04.2001, a First Information Report (for short the `FIR’) was registered at the instance of the wife against the appellant husband under Section 452, 323 and 341 of the Indian Penal Code. The police investigated the matter and filed a report on 30.04.2001 stating that there is no merit in the FIR. According to the police, the injuries on the person of the wife were self inflicted and she has filed a false FIR. It was recommended that the criminal proceedings be initiated against her under Section 182 of the Indian Penal Code (for short `IPC’). It is not disputed that till 16.03.2001, such criminal proceedings were initiated against the wife.

3. The husband moved an amendment application in the divorce petition incorporating all these facts and alleging that due to filing of the false complaints before various authorities he had been subjected to cruelty by the wife. This is the only issue raised before us. The learned trial Judge dismissed the petition. The appeal filed by the husband was also dismissed. Hence, this appeal.

4. It would be pertinent to mention that in the year 2012, 11 years after the police had submitted its report and after proceedings had been initiated against the wife, the wife filed a protest petition against the cancellation of FIR against the husband, in which notice was issued by the court below. However, on a revision being filed by the husband, the revisional court allowed the revision petition and quashed the order of the trial court. As a result, there are no criminal proceedings pending against the husband.

5. We have heard Mr. Gaurav Agrawal, learned counsel for the appellant and Ms. Vibha Datta Makhija, learned senior counsel for the respondent.

6. Mr. Agrawal, learned counsel has contended that the acts of the wife in levelling defamatory allegations and filing false complaints against the husband amounts to cruelty. On the other hand, Ms. Makhija, learned senior counsel has submitted that her client is not at fault and cruelty has not been proved. She further submits that her client wants the status of being a legally married woman and she prays that the appeal be dismissed.

7. We may now refer to the evidence relied upon by the husband. The first is a newspaper report dated 07.11.2000, in which it is reported that the wife had alleged that she was beaten by her husband and his family members many times for not fulfilling the demand of dowry. There were allegations that she was kept like an orphan and twice attempts had been made to set her on fire. These allegations were made in a letter sent by the wife to the police. Thereafter, the wife sent a similar complaint to various authorities including the State Women Commission, Rajasthan. She sent a telegram to the Chief Justice of the Rajasthan High Court again alleging that her husband and in-laws had attempted to burn her and engaged goondas to eliminate her. Complaint was also made to Chief Minister of Rajasthan. The matter was referred to the police. On investigation by the police, the allegations were found to be totally false. Thereafter, the wife filed a complaint against her husband and 3 other persons alleging house trespass against them and that she had been assaulted and threatened to leave the house. In this case also, the final report of the police is that the complaint is baseless and false and the injuries were self-inflicted.

8. As noted above, these findings of the police have attained finality and as on date there is no criminal case pending against the husband. It is more than obvious that the allegations levelled by the wife are false. It may be true that these allegations were levelled after the divorce petition had been filed and the wife may have been in an agitated state of mind. However, that did not give her a right to make defamatory statements against the husband. The falseness of the allegations is borne out from the fact that the police did not even find it a fit case to be tried. After the police filed its cancellation report, the wife kept silent and after 11 years she filed a protest petition.

9. This Court in Para 16 of K. Srinivas Rao v. D.A. Deepa, 2013(2) R.C.R.(Civil) 232 : 2013(2) R.C.R.(Criminal) 217 : 2013(2) Recent Apex Judgments (R.A.J.) 102 : 2013 (5) SCC 226 has held as follows:

“16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh v. Jaya Ghosh, 2007(2) R.C.R.(Civil) 595 : 2007(2) R.C.R.(Criminal) 515 : 2007(2) Recent Apex Judgments (R.A.J.) 177 : 2007 (4) SCC 511, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.”

In Ravi Kumar v. Julmidevi, 2010(2) R.C.R. (Civil) 178 : 2010(1) Recent Apex Judgments (R.A.J.) 684 : 2010 (4) SCC 476, this Court while dealing with the definition of cruelty held as follows:

“19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon, (1966) 2 WLR 993 held that categories of cruelty in matrimonial cases are never closed.”

10. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 (for short `the Act’). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of IPC.
11. We have perused the judgment of the High Court. The High Court while dealing with the plea of false complaints held that there was no reason to hold that the criminal complaint filed by the respondent-wife was false and mala fide. We are unable to agree with this finding of the High Court and the court below. Both the courts below relied upon the statement of the wife that her husband had often visited her house and she fulfilled her marital obligations. These observations are not based on any reliable or cogent evidence on record. It is not disputed before us that the wife continues to live in the house which belongs to the mother of the husband whereas the husband lives along with his parents in a separate house and the son and daughter-in-law of the parties live with the wife. The son is working with the husband. We may note that Ms. Makhija has very fairly stated before us that the husband had always fulfilled his paternal obligations to his son and is continuing to pay maintenance to his wife as fixed by the court.

12. Though we have held that the acts of the wife in filing false complaints against the husband amounts to cruelty, we are, however, not oblivious to the requirements of the wife to have a decent house where she can live. Her son and daughter-in-law may not continue to live with her forever. Therefore, some permanent arrangement has to be made for her alimony and residence. Keeping in view the status of the parties, we direct that the husband shall pay to the wife a sum of L 50,00,000/- (Rupees Fifty Lakhs only) as one time permanent alimony and she will not claim any further amount at any later stage. This amount be paid within three months from today. We further direct that the wife shall continue to live in the house which belongs to the mother of the husband till the husband provides her a flat of similar size in a similar locality. For this purpose, the husband is directed to ensure that a flat of the value up to L 1,00,00,000/- (Rupees One Crore Only) be transferred in the name of his wife and till it is provided, she shall continue to live in the house in which she is residing at present.

13. The appeal is accordingly allowed. The judgment and order dated 01.03.2013, passed by the High Court in D.B. Civil Miscellaneous Appeal No.1432 of 2004 and the judgment and decree dated 05.08.2004, passed by the Family Court, Udaipur in Civil Case No. 56 of 2000 are set aside. The petition for divorce filed by the husband under Section 13 of the Act is decreed and the marriage of the parties solemnized on 13.04.1989 is dissolved by a decree of divorce. The wife shall be entitled to permanent alimony of L 50,00,000/- (Rupees Fifty Lakhs Only) and a residential flat of the value of up to L 1,00,00,000/- (Rupees One Crore Only), as directed herein above. Pending application(s), if any, stand(s) disposed of.

Important judgments on transfer of divorce cases from one place to another are:-

Krishna Veni Nagam v. Harish Nagam, (SC) 2017 AIR (SC) 1345

JUDGMENT

Adarsh Kumar Goel, J. – This transfer petition has been filed for transfer of Case No.179A/2013 u/s 13 of the Hindu Marriage Act, 1955 (the Act) titled “Harish Nagam v. Krishna Veni Nagam” pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh to the Family Court Hyderabad, Andhra Pradesh.

2. Case of the petitioner-wife is that she was married to the respondent-husband in the year 2008 at Kukatpally, Hyderabad. She was blessed with a girl child in 2009. While living in her in-law’s house at Jabalpur, she was ill-treated. She was subjected to mental and physical torture. She suffered injury on her spinal cord. She left the matrimonial home in 2012.

3. The respondent-husband filed application for restitution of conjugal rights which was later on got dismissed as withdrawn. Thereafter, a divorce petition has been filed at Jabalpur while the petitioner has filed a domestic violence case at Hyderabad. Since the petitioner-wife, along with her minor daughter, is living with her parents, she cannot undertake long journey and contest the proceedings at Jabalpur by neglecting her minor child. She also apprehends threat to her security in attending proceedings at Jabalpur.

4. On 7th January, 2015, notice was issued and stay of proceedings was granted. The matter has been pending in this Court for more than two years.

5. On 9th January, 2017 when the matter came-up for hearing, the following order was passed:

“This petition is filed under Section 25 of the Code of Civil Procedure seeking transfer of proceedings initiated by the respondent under Section 13 of the Hindu Marriage Act at Jabalpur. According to the petitioner, who is the wife of the respondent, she will face acute hardship in contesting the proceedings at Jabalpur as she is living at Hyderabad. The marriage took place at Hyderabad. The petitioner has to look after her minor daughter who is living with her.

Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the present nature could be filed at the place where the marriage is solemnized or the respondent, at the time of the presentation of the petition, resides or where the parties to the marriage last resided together or where the wife is residing on the date of the presentation of the petition, in case she is the petitioner or in certain situations (as stipulated in clause iv) where the petitioner resides.

This Court is flooded with petitions of this nature and having regard to the convenience of the wife transfer is normally allowed. However, in the process the litigants have to travel to this Court and spend on litigation. Question is whether this can be avoided?

We are of the view that if orders are to be passed in every individual petition, this causes great hardship to the litigants who have to come to this Court. Moreover in this process, the matrimonial matters which are required to be dealt with expeditiously are delayed.

In these circumstances, we are prima facie of the view that we need to consider whether we could pass a general order to the effect that in case where husband files matrimonial proceedings at place where wife does not reside, the court concerned should entertain such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife as may be determined by the Court. The Court may also pass orders from time to time for further deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases, the husband may take proceedings before the Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any other option to remedy the situation can also be considered.

However, before passing a final order, we consider it necessary to hear learned Attorney General who may depute some law officer to assist this Court.

List the matter on 31st January, 2017.

We also request Mr. C.A. Sundaram, Senior Advocate to assist this Court as amicus curiae. A set of papers may be furnished to the amicus.”

(Emphasis added)

6. Thus, the question is whether an order can be passed so as to provide a better alternative to each individual being required to move this Court.

7. We have already noted that large number of transfer petitions of the present nature are being filed in this Court and are being mechanically allowed. Similar observation was made by this Court more than 10 years ago in Anindita Das v. Srijit Das, (2006)9 SCC 197 “…On an average at least 10 to 15 transfer petitions are on board of each court on each admission day.” It has also been observed in a number of cases that in absence of any male member being available to accompany the wife who is party to matrimonial proceedings to a different place, it may render it “expedient for ends of justice” to transfer proceedings Mona Aresh Goel v. Aresh Satya Goel (2000) 9 SCC 255; Lalita A. Ranga v. Ajay Champalal Ranga (2000) 9 SCC 355; Deepa v. Anil Panicker (2000) 9 SCC 441; Archana Rastogi v. Rakesh Rastogi (2000)10 SCC 350; Leena Mukherjee v. Rabi Shankar Mukherjee (2002) 10 SCC 480; Neelam Bhatia v. Satbir Singh Bhatia, 2006(2) R.C.R.(Criminal) 65 : (2004) 13 SCC 436; Soma Choudhury v. Gourab Choudhaury (2004) 13 SCC 462; Rajesh Rani v. Tej Pal (2007) 15 SCC 597; Vandana Sharma v. Rakesh Kumar Sharma, 2008(4) R.C.R.(Civil) 421 : (2008)11 SCC 768; and Anju Ohri v. Varinder Ohri (2007) 15 SCC 556.

8. Of course in some cases, it was observed that instead of proceedings being transferred, the husband should pay travel, lodging and boarding expenses of the wife and/or person accompanying for each hearing Premlata Singh v. Rita Singh (2005) 12 SCC 277. This trend has also been followed in other matrimonial disputes, including guardianship dispute, etc. Gana Saraswathi v. H. Raghu Prasad (2000)10 SCC 277

9. Spirit behind the orders of this Court in allowing the transfer petitions filed by wives being almost mechanically allowing is that they are not denied justice on account of their inability to participate in proceedings instituted at a different place on account of difficulty either on account of financial or physical hardship. Our Constitutional scheme provides for guaranteeing equal access to justice[6], power of the State to make special provisions for women and children[7]and duty to uphold the dignity of women[8]. Various steps have been taken in this direction.[9]

[6] Article 39A of the Constitution of India, 1950.

[7] Article 15(3) of the Constitution of India, 1950.

[8] Article 51-A(e) of the Constitution of India, 1950.

[9] In Articles 243-D and 243-T of the Constitution, provision has been made for reservation for women in Panchayats and Municipalities by 73rd and 74th Amendments. Need for affirmative action consistent with the Article 15(3) of the Constitution has led to several measures being adopted by the legislature, executive as well as the judiciary to advance gender justice. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) underlines the awareness of the international commitments on the subject which has inspired several judgments of this Court [Vishaka v. State of Rajasthan, 1997(4) R.C.R.(Criminal) 187 : (1997) 6 SCC 241; Arun Kumar Agrawal v. National Insurance Co. Ltd., 2010(3) R.C.R.(Civil) 827 : 2010(4) Recent Apex Judgments (R.A.J.) 262 : (2010) 9 SCC 218; Charu Khurana v. Union of India, 2015(2) S.C.T. 819 : (2015) 1 SCC 192; Prakash v. Phulavati, 2015(4) R.C.R.(Civil) 952 : 2015(6) Recent Apex Judgments (R.A.J.) 22 : (2016) 2 SCC 36; Danial Latifi v. Union of India, 2001(4) R.C.R.(Criminal) 468 : (2001) 7 SCC 740; Voluntary Health Assn. of Punjab v. Union of India, 2013(2) R.C.R.(Civil) 287 : 2013(2) R.C.R.(Criminal) 259 : 2013(2) Recent Apex Judgments (R.A.J.) 134 : (2013) 4 SCC 1 and; Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa (1987) 2 SCC 469. It was observed in Voluntary Health Assn. as under:
“20. It would not be an exaggeration to say that a society that does not respect its women cannot be treated to be civilised. In the first part of the last century Swami Vivekanand had said:
`Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind.'”
10. As noted in the Order dated 9th January, 2017 quoted above, Section 19 of the Act permits proceedings to be filed not only at a place where the wife resides but also at place where marriage is solemnized or the place where the parties last resided together. It is mostly in the said situations that the wife has hardship in contesting proceedings. At the same time, under the law the husband is legally entitled to file proceedings at such places. Territorial jurisdiction of court is statutorily laid down in C.P.C. or other concerned statutes.

11. Accordingly, we have heard Shri C.A. Sundaram, learned senior counsel as amicus curiae. Learned amicus has suggested that Section 19 of the Act should be interpreted to mean that the jurisdiction at the place other than where wife resides being available only at the option of the wife or that such jurisdiction will be available in exceptional cases where the wife is employed and the husband is unemployed or where the husband suffers from physical or other handicap or is looking after the minor child. Even though we are unable to give such interpretation in the face of plain language of statute to the contrary and it is for the legislature to make such suitable amendment as may be considered necessary, we are certainly inclined to issue directions in the interest of justice consistent with the statute.

12. Mr. Nadkarni, learned Addl. Solicitor General has suggested that it will be appropriate to give some directions to meet the situation. He submitted that paramount consideration in dealing with the issue ought to be the interest of justice and not mere convenience of the parties. Thus, where husband files a petition at a place away from the residence of the wife, the husband can be required to bear travel and incidental expenses of the wife, if it is so considered appropriate in the interest of justice. At the same time, if the husband has genuine difficulty in making the deposit, proceedings can be conducted by video conferencing. At least one court room in every district court ought to be equipped with the video conferencing facility. The interest of the minor child has also to be kept in mind along with the interest of the senior citizens whose interest may be affected by one of the parties being required to undertake trips to distant places to face the proceedings. Protracted litigation ought to be avoided by better management and coordination so that number of adjournments can be reduced.

13. We have considered the above suggestions. In this respect, we may also refer to the doctrine of forum non conveniens which can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice. In Modi Entertainment Network and anr. v. W.S.G. Cricket Pte. Ltd., (2003)4 SCC 341 this Court observed:

“19. In Spiliada Maritime Corpn. v. Cansulex Ltd. (1986)3 All ER 843 case the House of Lords laid down the following principle:

“The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in which the case could be tried more suitably for the interest of all the parties and for the ends of justice.”

The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances militating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried.”
Though these observations have been made in the context of granting anti suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the plaintiff is the dominus litis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed. Kusum Ingots & Alloys Ltd. v. Union of India and anr., 2004(2) R.C.R.(Civil) 720 : (2004) 6 SCC 254 para 30.

14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing State of Maharashtra etc. v. Dr. Praful B. Desai etc., 2003(2) R.C.R.(Criminal) 770 : (2003) 4 SCC 601; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and anr. 2005(1) R.C.R.(Criminal) 988 : (2005) 3 SCC 284; Budhadev Karmaskar (4) v. State of West Bengal, 2012(1) R.C.R.(Criminal) 598 : 2012(1) Recent Apex Judgments (R.A.J.) 101 : (2011) 10 SCC 283; Malthesh Gudda Pooja v. State of Karnataka and ors., 2012(1) R.C.R.(Civil) 985 : 2012(1) Recent Apex Judgments (R.A.J.) 303 : (2011) 15 SCC 330.

15. The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. Legal Aid Committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought to be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution.

16. The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts.

17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.

18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:-

i) Availability of video conferencing facility.

ii) Availability of legal aid service.

iii) Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC.

iv) E-mail address/phone number, if any, at which litigant from out station may communicate.
19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017. However, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No.179A/2013 under Section 13 of the Act titled “Harish Nagam v. Krishna Veni Nagam” pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video conferencing. Records shall e sent by court where proceedings are pending to the transferee court forthwith.

20. The Registry to transmit a copy of this order to the courts concerned. A copy of this order be sent to all the High Courts for appropriate action.

21. We place on record our appreciation for the valuable assistance rendered by Mr. Atmaram N.S. Nadkarni, learned Additional Solicitor General and Mr. C.A. Sundaram, learned Senior Advocate.

21. The transfer petition is disposed of accordingly.

Bhartiben Ravibhai Rav v. Ravibhai Govindbhai Rav, (SC) 2017(6) Scale 74

ORDER

R. Banumathi, J. – This transfer petition filed under Section 25 of Code of Civil Procedure for transfer of H.M.P. No. 1668 of 2015 titled as `Ravibhai Gobindbhai Rav v. Bhartiben Ravibhai Rav’ pending before the Family Court Judge, Ahmedabad at Gujarat to the Court of Competent Jurisdiction at Dungarpur, Rajasthan.

2. The marriage between the petitioner and the respondent was solemnized on 19.02.2006 and the couple was blessed with two sons namely Meshvasinh and Aeshvasinh who are aged eight years and seven years respectively. The relationship between the couple was strained and it is alleged that in September, 2015 the petitioner-wife was thrown out of her matrimonial house. The respondent-husband filed divorce petition being H.M.P. No.1668 of 2015 before the Family Court, Ahmedabad under Section 13(1) of the Hindu Marriage Act, 1955 of which the petitioner-wife seeks transfer.

3. The transfer petition is strongly objected to by the respondent-husband on the ground that he is employed in Ahmedabad and that he is taking care of his two sons, apart from his aged parents. The petitioner-wife, on the other hand, contends that the distance between Ahmedabad and her place Dungarpur, Rajasthan is about 200 kms. and that she finds it difficult to travel to Ahmedabad to contest the divorce petition. That apart, the petitioner-wife has also raised difficulty in pursuing the Divorce Petition in Ahmedabad because of the language problem, as she is not well-acquainted in Gujarati.

4. Apart from divorce petition, there are other proceedings pending between the parties which have been filed by the petitioner-wife at Dungarpur, Rajasthan viz; (i) FIR under Section 498-A and 406 IPC and under Section 4 of The Dowry Prohibition Act; (ii) Petition under Section 125 Cr.P.C. before the Family Court, Dungarpur, Rajasthan and (iii) petition under Sections 12 and 23 of Protection of Women from Domestic Violence Act, 2005 pending before the Chief Judicial Magistrate, Dungarpur, Rajasthan. It is stated that respondent-husband is already appearing in Dungarpur Court, Rajasthan in connection with the aforesaid cases instituted by the petitioner-wife and that it may not be difficult for respondent-husband to pursue the divorce petition in Dungarpur Court, Rajasthan. Considering the facts and circumstances of the case, we feel that the petition could be transferred to Dungarpur, Rajasthan.

5. This petition is allowed. We make it clear that we have not expressed any opinion on the merits of the matter.

6. The Family Court Judge, Ahmedabad, Gujarat is directed to transmit records pertaining to HMP No.1668/2015 to District Judge, Dungarpur, Rajasthan, who shall transmit the case to Family Court, Dungarpur, Rajasthan (if there is a Family Court) or forward the same to the Court of competent jurisdiction.

7. On the case being transferred, to Dungarpur, Rajasthan, if need be sufficient security be provided to either of the parties, on an application made before the Court.