Calcutta High Court Judgments on Matrimonial Issues

Print

  1. But mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding (Also available at [2016 (1) CLJ (Cal) 562])
  2. The wife who has the right to live with the husband in matrimonial home or the shared household due to existence of her marital tie with the husband, will be deemed to have domestic relationship with the husband. Thus, the words “live or “have, at any point of time, lived” appearing in Section 2(f) of the Domestic Violence Act will include “right to live” (Also available at [2016(1) CLJ(CAL)93])
  3. In view of the provisions of Section 60 (i) (ia) of the Code of Civil Procedure, the attachment of gross salary of the petitioner for realisation of arrears amount of maintenance of the opposite partywife must be limited to ⅓ of the gross salary (Also available at [AIR 2015 (NOC) 35(Cal])
  4. Section 23 of the P.W.D.V. Act gives power to the learned Magistrate for passing interim order. Residence order is required to be considered as urgent relief to protect a woman from her taking shelter on road and thus passing of interim order is not improper in the matter of granting residence orders. Neither the learned Magistrate nor the learned Additional Sessions Judge refused rightly to grant interim relief relating to residence order under Section 19 of the Act in the absence of recording evidence [Also available at 2016(1) CLJ (CAL) 452]
  5. The expression “support” has been interpreted by the Supreme Court in case of Rajesh Burman –v- Mitul Chatterjee (Burman) reported in (2009) 1 SCC 398 to mean providing money for a person to live on. The Apex Court further noticed the expression “maintenance” and “support” and held that both are synonymous. In both these sections, the expressions “no independent income” is qualified with the subsequent word “sufficient” conveying the intention that even if, the wife has some income but if the same is not sufficient for her support and to make the necessary expenses of the proceeding should be entitled to a maintenance [Also available at 2016(1) CLJ (CAL) 383]
  6. I am also unable to accede to the submission of the learned lawyer for the petitioner that there can be no case of ‘domestic violence’ after the decree of divorce in 1988 as the parties had not lived together thereafter. Section 3 of the Act provides that any act or omission on the part of the respondent which harms, endangers or injures the health, safety life, limb or well being of an aggrieved person including economic abuse amounts to ‘domestic violence’. Denial of economic support/sustenance to a divorced wife living penury would amount to ‘economic abuse’ constituting ‘domestic violence’ under the Act. Continuity of joint residence in a shared household or domestic relationship inter se is not a sine qua non for the perpetration of domestic violence to an aggrieved person in the form ‘economic abuse’ under the Act. Hence, the plea that there can be no case of ‘domestic violence’ after divorce of the opposite party no. 1 is clearly misconceived and untenable in law [Also available at 2016(2) CLJ (Cal) 154]
  7. D.N.A. Test cannot be ordered as a matter of routine. When Section 112 of the Evidence Act was enacted at that time there was not even any contemplation of the legislature to make provision regarding D.N.A. Test which is virtually the outcome of advancement of modern science. It is perhaps needless to repeat that if D.N.A. Test is done it will be clear if the petitioner is the biological father of the girl child or not. At the same time it has to be kept in mind that a person cannot be compelled to undergo D.N.A. Test. Here the petitioner himself voluntarily preferred to undergo D.N.A. Test. The question is he has also prayed for D.N.A. Test of child ‘Rithika’. Since the divorce suit has been filed on the allegation of adultery in my view, the Learned Court below ought to have allowed the said prayer of the petitioner [Also available at 2016(2) CLJ (Cal) 134]
  8. In view of the above proposition of mental cruelty laid down by the apex court, we are of the view that refusal to grant divorce to the respondent/husband after continuous separation of the parties for last almost 20 years would lead to mental cruelty to the respondent/husband in the back ground of acrimonious married life of the couple, particularly when there is no chance of re-union of the parties [Also available at 2015 (2) CLJ (Cal) 211]
  9. I am unable to accede the submission of the learned counsel appearing for the petitioners that the subsequent decree declaring the matrimonial tie a void one on the ground of nonconsummation of marriage would render the allegations of commission of offence punishable under section 498A of the Indian Penal Code otiose [Also available at 2015(2) CLJ (Cal0 226]
  10. Even though Section 19 was amended in the year 2003 incorporating the sub-clause (iiia) in the said Act to give benefit to a wife/opposite party to come up with such a petition before the Court concern where she is residing on the date of the presentation of the petition but this amendment cannot give a right to the present Opposite Party to file an application under Section 25 of the said Act before the District Judge at Barasat particularly when the original decree for divorce was passed by the Civil Judge (Senior Division) at Sambalpur. It is needless to mention that the substantive sections regarding divorce etc. are sections 9, 10, 11, 12, 13, 13A, 13B and 14. Section 25 or Section 27 is incidental in nature deriving source from that original decree for divorce or etc [Also available at 2015 (2) CLJ (Cal) 388]
  11. Therefore, suppression of mental illness, even if there be any, does not come within the mischief of Section 420 of IPC. If parents of bride induce a complainant to marry their daughter concealing the fact that the bride has some disease, no element of wrongful gain or loss to the property is involved. A bride cannot be equated with the term ‘property’. The basic thing is such that the offence under it consists of a dishonest disposition of property or valuable security [Also available at 2015 (3) CLJ (Cal) 604]
  12. But in 2006 the Prohibition of Child Marriage Act was promulgated. Section 2(f) defines a “minor” to mean a person who is deemed not to have attained majority under the Majority Act, 1875. Section 12 deals with instances of a void marriage but none of these instances is applicable to the instant case. On the contrary it is Section 3 which will be applicable and such a child marriage is voidable at the option of the contracting party. Therefore, the marriage of Arman and Manisha is not a nullity in the eye of law but is voidable at the option of the contracting party, and till one of such contracting party initiates a proceeding for annulment of the marriage, the marriage of a Mohammedan cannot be nullified [Also available at 2016 (2) CLJ (Cal) 369]
  13. In the decision reported in AIR 2003 Supreme Court 2462 it has been laid down that unfounded allegations by the Husband assailing the moral character and chastity of the Wife in his written statement amount to worst form of insult and cruelty sufficient by itself to pass a decree of divorce in favour of the wife [Also available at 2016 (2) CLJ (Cal) 376]
  14. Although there is no hard and fast rule, it would appear from judicial precedents that generally a wife’s maintenance is fixed at a figure between 20 per cent to 30 per cent of the husband’s net income.[Also available at 2017 (2)CLJ (Cal) 107]

Source: Official Website of WBJA, Last Updated on 14-11-2017

© Official website of WBJA, India