Section 493, IPC not attracted, if an ex-parte divorce decree is set aside

Bench of JAGDISH SINGH KHEHAR, S.A.BOBDE JJ., of the Supreme Court of India, while considering the question as to whether the respondent husband has committed an offence under Section 493 and 494 of the Indian Penal Code, 1860, held that, Section 493 of Indian Penal Code will not be attracted, if an ex-parte divorce decree is set aside.

In the instant case, where an ex-parte divorce decree was obtained, and in spite of the fact that, both the parties to the present case continued to live together. However, on a subsequent order, theex-parte divorce decree was set aside.

However, in the present case of the appellant, it was contented by the appellant that, the respondent, husband did not inform her about the divorce decree and continued the conjugal relationship. Subsequently, the respondent married to another person, therefore, it is contented that, the respondent committed the offence under Section 493 and 494 of the Indian Penal Code.

Then she came to know about the ex-parte divorce decree and subsequently the appellant of the present case filed an application for setting aside said ex-parte divorce decree, and the same was allowed. Hence, the court in this case observed that, in sum and substance, therefore, thematrimonial ties between the appellant and the respondent came to be restored, as if the marital relationship had never ceased.

On the ground of above mentioned findings the apex court opined that, the respondent husband could not have deceived the appellant of the existence of a “lawful marriage”, when a lawful marriage indeed existed between the parties, during the period under reference, and held that the charge against the respondent of the present case is not made out, under Section 493 and 494 of the Indian Penal Code.

Read full judgement on Ravinder Kaur v. Anil Kumar (09-04-2015, Supreme Court)

Burden of proof not on mother in case of interim custody of child

Division bench of the Supreme Court comprising Vikramajit Sen and C. Nagappan, JJ while considering an interesting case dealing with the issue of an interim custody of a minor child, ordered interim custody of the child to the Mother.

While dealing with the instant case, the apex court considered the provisions of Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956 and Juvenile Justice (Care & Protection) Act, 2000 and in detail explained the concept of guardianship under Indian legal system.

After giving due consideration to above mentioned statutes, court ruled that, mother is the best suited guardian for the custody of children below the age of five years, an in all such cases, where the dispute is on the guardianship of an infant below the age of five years, then the focal point of consideration shall be given to the welfare of the child.

In the present case, the father of the child initiated legal proceedings alleging that, due to the bi-polar disorder, the mother is not fit for the custody of the child. However, apex court rejected such contention and set aside lower court’s judgment imposing the onus on mother to establish the sustainability of granting interim custody of the child, and further observed that, onus is on the father to prove that, it is not in the welfare of the infant child to be placed in the custody of mother and that, the wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.

Read full judgement on Roxxan Sharma v. Arun Sharma (17-02-2015, SC)

[Breaking] Using derogatory terms against spouse amounts to cruelty

Division Bench of the Supreme Court consisting of Vikramajit Sen and Abhay Manohar Sapre JJ while allowing a petition for dissolution of marriage on the ground of cruelty held that, either of the spouse to a marriage abuses the other OR calls police and lodge false complaint against the other spouse or his relatives OR refusing to allow close relatives from visiting other spouse and reside in the matrimonial home for some days etc. would amounts to cruelty towards the other spouse for the purpose of divorce (dissolution of marriage) under the Hindu Marriage Act, 1955.

The present case is a series of cases filed between the parties viz. the appellant filed a petition for thedissolution of marriage under Section 13 (1) (ia) of the Hindu Marriage Act, 1955, petition forrestitution of conjugal rights filed by the respondent under Section 9 of the Hindu Marriage Act, 1955 and a petition for maintenance of Rs. 2 lacs under Section 125 of the Code of Criminal Procedure Code.

After considering the facts and evidences, apex court was of the view that, the Appellant had duly pleaded instances of mental cruelty which he proved in evidence and documents. An examination of the divorce petition makes it abundantly clear that various allegations of cruelty were made out and a number of incidents were mentioned therein. Further evidence was submitted during the course of the Trial to substantiate these allegations, which is in keeping with Order VI Rule 2 of the CPC.

Court was further opined that, the Trial Court examined the evidence at great length and came to the reasoned conclusion that the actions of the Respondent amounted to cruelty. After a cursory discussion of the evidence which the Trial Court had discussed threadbare, the High Court was not justified to set aside the conclusions arrived at by the Trial Court without giving substantiated reasons. Hence, the apex court allowed the appeal and restored the trial court’s verdict granting the divorce to the appellant.

Read full Judgement of Vinod Kumar Subbiah v. Saraswathi Palaniappan (decided on 24-04-2015, Supreme Court)

[Breaking] Dowry can be demanded at any time, says Supreme Court

A bench of M.Y. Eqbal and P.C. Ghose JJ. of the Supreme Court of India, while upholding the life term of the appellant, said that, dowry can be demanded at any time, and it is not necessarily before marriage. It was a case were the appellant was sentenced for life term for poisoning and burning his wife to death.

Appellant pleaded before the Honourable Supreme Court that, he has not demanded any dowry. However, court did not agree to his contention. Supreme Court rejected the plea of the appellant and his family members with a note that, there was no missing link in the circumstantial evidence brought by the prosecution to justify their plea.

Court further pointed that, if some or any of the chain in the above-mentioned circumstances found to be missing, and then the accused is entitled for the benefit of doubt. However, in this case, no such missing links were found with respect to the evidences produced in support of the claims presented by the prosecution. Therefore, court concluded that, the appellant is not entitled for the benefit of doubt.

  • Read more on Section 498A: Husband or relative of husband of a woman subjecting her to cruelty

It is a well-established principle that, there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act was done by the accused.

Dowry system is one of the major social evil existing in India since ages, which put great financial burden on the family of bride. The existence of dowry system is one of the major cause, which leads to different kinds of crimes against women in India ranging from harassment to death. In India, dowry system is prohibited under the Dowry Prohibition Act, 1961, Section 304B and 498A, of the Indian Penal Code.

Read the Full Judgment of Bhim Singh v. State of Uttarakhand (Decided on 11-02-2015, Supreme Court)

[Breaking] Right to maintenance an absolute right under Section 125, Cr.PC

While considering the scope of maintenance under Section 125 of the Code of Criminal Procedure, a division bench comprising of Dipak Misra and P.C. Pant, JJ, of the Honourable Supreme Court held that, right to maintenance of a wife as guaranteed under Section 125 of the Code of Criminal Procedure is an absolute right and the same is applicable to Muslim women as well.

While delivering the judgment court ruled that, as long as the husband is physically fit to support himself and earn his livelihood, husband is under a legal obligation to provide maintenance to his wife. Apex court further clarified that; right to maintenance under Section 125 of Cr.PC cannot be restricted to a Muslim (divorced) woman, as long as she did not remarry.

In this regard, court relied upon its earlier judgment Shabana Bano v. Imran Khan (([2010] 1 SCC 666)). Court further relying upon the same judgment held that, the amount of maintenance to be awarded under Section 125 Cr.PC cannot be restricted for the iddat period only.

Court emphasised the importance of Section 125 of the Code of Criminal Procedure, that, the purpose of above mentioned Section is that, even after the divorce, a women can live with dignity, in the same way as she would have lived in her matrimonial home.

However, the benefit of Section 125 will be available only till she remains unmarried after the divorce. Court further observed that, common pleas in almost all the cases under Section 125 like; he does not have the means to pay, for he does not have a job or his business is not doing well, are only bald excuses and they have no acceptability in the eye of law.

Read the complete judgment on Shamima Farooqui v. Shahid Khan, decided on April 6, 2015 (Supreme Court)

[Breaking] Husband’s right to extramarital relationship accepted

The question came before the Honourable Supreme Court in Ghusabhi Raisangbhai Chorasiya v(45cm) IHマイスター 寸胴鍋. State of Gujarat【】 【まとめ買い】【キクロン】【ドルフィン】DNー7 抗菌アルミロンS【大袋個】×240個セット (4975810181767), was that【正規保証2年】 boby wagon/ボビーワゴン 2段2トレイ ベージュ [キャスタ付きワゴンはboby wagon ボビーワゴン 2段2トレイ], whether husband’s extramarital relationship amounts to cruelty within the meaning of Section 498A【取寄せ】ディズニー Disney 白雪姫 7人の小人たち プリンセス 壁紙 デカール シール ステッカー 子供部屋 装飾 壁画 アート ミューラル ウォールステッカー 子供用 女の子 男の子 [並行, of IPC? A Division Bench of the Supreme Court comprising of Justice Dipak Misra and Justice SVitamix/ヴァイタミックス 2L プロ750(7年保証付き) シルバー.J Mukhopadhayay学習デスク 天然木 ヒカリサンデスクパティナデスク100 PATINA100cm幅デスク かどう固定ワゴン L棚セットカラー:ナチュラル/ウォールナット照明:HLE-140(LED)/HL-340(蛍, observed thatアコーデオンドア!トーソー アコーデオンドア クローザ エクセル TD-5059/TD-5060 グレーベル?フリージェ, if husband has developed some intimacy with another【まとめ買い】【樹脂猫置物シリーズ】猫フック!一匹! 【96点】seiwa, during the subsistence of marriage and failed to discharge his marital obligationsベスタル 腕時計 Vestal Destroyer Watch Rosegold/Rosegold/White, One Size, as such would not amount to “cruelty”ビューティ マッサージベッド TB-235, within the meaning of Section 498A, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A IPC.

Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman amounts to cruelty. Or in other words, cruelty means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

By virtue of Section 498A of Indian Penal Code (IPC), whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend upto three years and shall also be liable to fine.

This was a case, where one of the appellant was convicted under Sections 498A, 306, 201 and 114 of Indian Penal Code, where his wife committed suicide after she came to know about the extramarital affair. Accordingly, the question, whether husband’s extramarital relationship amounts to cruelty, placed before the Supreme Court.

However, court in the light of its earlier judgement in Pinakin Mahipatray Rawal v. State of Gujarat, observed that, if the extramarital relationship of a husband is of such nature where, is likely to drive the wife to commit suicide, then it would fall under the ambit of Explanation appended to Section 498A.

Read Full Judgement of Ghusabhi Raisangbhai Chorasiya v. State of Gujarat decided on 18-02-2015