Concealing Existing Marriage will allow Wife to claim Maintenance under Section 125 CrPC

Under Section 125 of the Code of Criminal Procedure (“CrPC”), wives, children and parents, if the situation requires, can claim maintenance. Recently, Supreme Court of India, while delivering the judgment in Badshah v. Sou. Urmila Badshah Godse & Anr, had to decide a vital question pertaining to section 125. In this case, a situation had arisen where a woman, being unaware of the existence of man’s first marriage, was claiming maintenance. The question which the court had to decide was – whether, in such a situation, a woman can be considered as ‘wife’ for claiming maintenance under section 125 of CrCP? Under Hindu Marriage Act, 1955 (“Hindu Marriage Act”), a person cannot marry where he/she has a spouse living at the time of marriage. Because of this, the question that arose in the present case becomes important. In this post, I have summarised the important points of this case where court had upheld the maintenance claim of wife.

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Facts: The Petitioner, Badshah, married Respondent no. 1, Urmila, after the divorce of the latter from her first husband. Later, it was found by the Respondent No. 1 that the petitioner was already married to one lady, Sobha. Petitioner had duped respondent No.1 by not revealing the fact of his first marriage and pretending that he was single. Even after finding this fact, the Respondent no. 1 continued to live with the Petitioner as she had become pregnant. When the ill-treatment by the Petitioner became intolerable, the Respondent no. 1 was left with no choice but to go to the house of her parents. Subsequently, Respondent no. 1 gave birth to a girl child whose biological father was Petitioner. A proceeding was consequently initiated by Respondent no.1 for claiming maintenance under Section 125 of CrPC. The maintenance was granted in favour of the Respondent no. 1 by the Sessions Judgment and, on appeal, the order was affirmed by the High Court.

Preliminary Decree - Not Sufficient for the Partition of a Hindu Joint Property

Amendment to the Hindu Succession Act, 1956 (“Act”) in the year 2005 turned to be an enabling provision for women by providing them with the rights over the ancestral property, which for long period of time was denied to them. Section 6 of the Act was amended so as for this purpose which provided rights to daughters equivalent to those of a sons in a family property by virtue of their birth. But, it shall be noted here that act so amended cannot be applied to the partitions or property arrangements executed before the commencement of the act. Statement of Objects and reason of the amendment act, if read carefully, will aptly connote that the said amendment to the act was indeed carried out because disallowing women from claiming any kind of share in the property was behaving as a discriminatory provision against the women. In other words, it was a gender biased provision. The date on which this amended act came into force was September 9, 2005.

Some of the ways by means of which a Hindu Joint Property can be divided are a registered instrument of a partition, and a decree of the court. In the former case, sometimes it becomes difficult to conclude at what stage of the trail a decree of the court can be considered to be sufficient for the final partition of a Hindu Joint Property. In other words, whether preliminary decree can be considered to be sufficient enough for the partition of a Hindu Joint Property? This question has recently been addressed by the Supreme Court in Ganduri Koteshwaramma & Ors v. Chakiri Yanadi & Ors Civil Appeal No. 8538 of 2011, where issue as regards the rights of the daughters/appellants under the amended act had come before the court.

Preliminary decree had been passed by the trial court in the year 1999, at a time when the impugned act was not amended by the legislature. Before the final decree passed, the act was amended in the year 2005 thereby conferring rights over the appellant on in the piece of property which they had not been holding any kind of share earlier. The same amendment was allowed by the trail court and the final decree was made only after taking into consideration the amended act. In the meantime, Sons/Respondent preferred an appeal before the Andhra Pradesh High Court, and interestingly High Court reversed the decree of trial court, and further high court was of the view that final decree shall always be in conformity with the preliminary decree after taking into consideration Order XX Rule 18 of CPC. Eventually, the matter came before the Supreme Court by means of a civil appeal.

Supreme Court aptly discussed the issue as regards the substance which one should provide to the preliminary decree. Court held that a suit for partition cannot said to have been disposed off only by means of a preliminary decree, and the same shall stand to be concluded only when the final decree has been passed. Further Court was of the opinion that the same preliminary decree can be amended as many times as court wants to amend before the final , and no provision under Civil Procedure can said to be a deterrent to the same. Court, while opining this, relied on the case of Phoolchand and Anr. Vs. Gopal Lal [AIR 1967 SC 1470], wherein it had been held by the court that –

"We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. . . . .. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; ........... there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. . . for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. . . . .a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree.... ............"

Court also relied on the case of S. Sai Reddy vs. S. Narayana Reddy and Others [(1991) 3 SCC 647 11], wherein it had been held by the court that

“Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete”.

Eventually, court in this case, while appreciating the fact that this amended act shall not be applied to the partitions which had already been executed before this amended act, Court allowed the appeal.

Suicide Threats - A ground for Divorce under Hindu Marriage Act

An interesting decision has come along recently by the Supreme Court of India in the case of Pankaj Mahajan v. Dimple @ Kajal Civil Appeal No. 8402 of 2011, case which was concerned with the issue of divorce. Interestingly, after this case, a person will be able to get a divorce decree if other spouse is threatening former of committing suicide. And, the same can be categorised under cruelty. In the instant case, wife-respondent was suffering from schizophrenia which husband-petitioner was not aware of. And, wife was suffering from that particular disease even before marriage, and she, after marriage, on several occasions had threatened her husband that she would commit suicide. Instead, she once tried to end her life but was eventually saved on the timely intervention of her husband. Husband left his parental home in the hope that his wife will abstain from becoming aggressive, but no fruitful result came out. He intimated the same to his mother-in-law and consequently filed a petitioner before the District Court of Amritsar which decreed in favour of husband. But, the order of the district court was reversed by the Punjab and Haryana High Court because of which the matter came before the Supreme Court under civil appeal.

Section 13, of the Hindu Marriage Act, 1955 can be read as – (Only Relevant Portion)

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-a) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

Husband came to know about the mental condition of his wife only after one month of the marriage, and same was intimated to her father. Reports presented before the court made in clear that wife had undergone treatment but doctors have not certified her to be entirely mentally fit. Supreme Court refuted the reasoning of the High Court where high court had opined that mere mental illness cannot be considered as a sufficient ground for seeking divorce without appreciating the reports of the doctors. All the doctors who submitted their reports before the court called the diseased suffered by the respondent-wife to be incurable.

Reasoning of the Supreme Court while rejecting the opinion of the High Court can be read as follows –

“It is clear from the above that the respondent-wife was not of sound mind and she did not look after the household work rather she used to give threats to commit suicide. She did not even make food for the appellant-husband and he had to arrange the same from outside. Apart from this, she used to embarrass the appellant-husband before his landlord's family and because of her weird behaviour and threats to commit suicide, the appellant-husband was forced to leave the rented accommodation. Madan Lal, the landlord, PW-5 has also highlighted several instances when the respondent-wife used to quarrel with her husband and he had to face humiliation in front of others because of her behaviour. Inasmuch as PW-5 was living in the same house on the ground floor and the appellant-husband and the respondent-wife were living on the first floor, the said witness being the eye-witness to the cruelty meted out by the respondent-wife to the appellant-husband, as he had himself seen the behaviour and the activities of the respondent-wife including humiliation and threats of committing suicide, cannot be thrown out. Under those circumstances, the observation of the High Court that the statement of PW-5 is only hearsay is liable to be rejected.”

Supreme Court further stated that –

“It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. In the case on hand, the appellant-husband has placed adequate materials to show that the respondent-wife used to give repeated threats to commit suicide and once even tried to commit suicide by jumping from the terrace. Cruelty postulates a treatment of a spouse with such cruelty as to create reasonable apprehension in his mind that it would be harmful or injurious for him to live with the other party. The acts of the respondent-wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the appellant-husband which amounted to cruelty in matrimonial law.”

Divorce was consequently granted to the husband.

Increase in the amount of Maintenance by the Supreme Court

Recent Supreme Court decision in Vinay Paramvir Parmar v. Paramvir Parmar Civil Appeal Nos. 5831-5833 of 2011, a issue has come out pertaining to divorce decree and thereafter demand of maintenance by the wife. Governed by Hindu Law, divorce was decreed in relation to Section 13-B of Hindu Marriage Act, 1955. Family Court fixed 20,000/- as the amount of maintenance to be provided to the wife, and this was followed by an appeal in the High Court which affirmed the Family Court decision. Altering the judgments of both High Court and Family Court, Supreme Court increased the amount of maintenance from 20,000/- to 40,000/- per monthafter bearing in mind the facts and circumstances of the case. In addition to the decision of Family Court, High Court (Bombay) asked husband to pay up a permanent alimony of Rs. 20 lakhs to the wife referring to Section 25 of the Hindu Marriage Act. It was alleged by the appellant, i.e. wife that the income of respondent is much higher in comparison to the maintenance amount fixed by the court, and hence it should be increased. Contrary to this, it was contended by the respondent that the income as alleged by the appellant was not his actual income, and it would amount to what has been alleged only after accumulating the allowances and other benefits, and the contention of the respondent was acknowledged by the court.

Court, referred to its judgement in Shri Bhagwan Dutt vs. Smt. Kamla Devi and Anr. (1975) 2 SCC 386, where it was held by the court, while referring to section 488 of Code of Criminal Procedure, 1898 that

“The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.”

Another judgment which was referred by the Supreme Court was of Chaturbhuj vs. Sita Bai, (2008) 2 SCC 316, where it referred to Section 125 of the Code of Criminal Procedure, 1973, and opined that

“Where the personal income of the wife is insufficient she can claim maintenance under Section 125 CrPC. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt v. Kamla Devi it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression "unable to maintain herself" does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 CrPC."

Returning to the judgment of this particular case, it would be interesting to note that while ascertaining the property so as to determine the amount to be paid as maintenance/alimony, income, property along with other sources of incomes ought to be taken into account before decreeing in favour of anyone. Amount which should be provided has not been provided in any of the acts, and amount would depend on the facts and circumstances of each case. It would be obligatory on the part of the court to look into the state which wife was living in before divorce as a married woman. And the amount needed to maintain her would certainly be such, as would be sufficient for her to maintain herself by living under habitual conditions. There would be no mandate on the part of the husband to provide her a luxurious life once divorce has been decreed. Notion of equity has to be kept in mind, and it would certainly be necessary to see whether husband would be able to provide the amount which wife is demanding, and court would not force him to live in an abysmal state after devoting a major part of his income to his former wife. Here in this case, it was husband which had to provide maintenance but it is not mandatory that a husband cannot receive maintenance in case his wife’s condition is much better than that of him, and without her assistance it would not be possible for him to maintain himself. So, the wording should be read as “either husband and wife” and the same has been provided under Hindu Marriage Act.

But, in this case wife had been working in Cathay Pacific Airlines and was also earning some additional amount before marriage. Subsequently after marriage, she resigned from the post after her husband asked her to do so. Thereafter, she had no source of income and was living with her husband before divorce and with her sister after divorce. Considering all these circumstances, it was held by the Supreme Court that the amount of maintenance should be increased from Rs. 20,000/ to Rs. 40,000/- per month.

Adultery as a ground for Divorce under Hindu Law

Adultery can be defined, according to Black’s Law Dictionary, as the unlawful voluntary sexual intercourse of a married person with another person of opposite sex. Indian law treats adultery as an offence under Section 497 of Indian Penal Code, punishable with imprisonment which can be extended for a period of 5 years. At the outset, this provision was introduced so as to preserve the notion of a family, where a married person was not allowed to have illicit relationship once married. Under Hindu Marriage Act, adultery is one of the grounds on the basis of which a person can file a petition in order to procure decree of divorce. Very often, Courts are reluctant in awarding a decree of divorce, and put a great burden over the parties before separating them. Marriage, according to Hindus, is a sacred and impeccable bond, which if broken would lead to severe consequences. However sacred it may be, there have always existed some grounds on which marriage can be broken, and sometimes couples find themselves in a subjugating state that divorce seems to them the last resort to entreat.

Section 13 of Hindu Marriage Act, 1955 states the circumstances enabling a person to file a petition for the decree of divorce, and for our purpose clause (3) of the aforesaid section is significant which can be read as –

“has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse”

So as to avoid a plethora of divorce petitions, and to save the knot of marriage, petitioner cannot as a matter of fact get the petition decreed in his favour just because of the reason that respondent had illicit relationship with some other person in past. Instead, court would be hesitant in providing such decree if respondent had abstained from indulging in such an activity for a substantial period of time, and thereafter practicing a good moral behaviour. Continuing the tradition, the onus remains on the party which files a petition to get relief on the basis of this particular ground, and courts do not make it an easier task for the petitioner, and require them to prove it stoutly, which can persuade the judges. Accusing someone of adultery means questioning the moral character of that person, and this is the reason why burden on the petitioner becomes even higher. There can certain circumstances when a person becomes perplexed whether his spouse is engaged in the act of adultery, and mere qualm can never be allowed as a strong reason to believe that the other spouse has in fact committed adultery, and courts have always remained cautious so as not to opine any erroneous decision. In addition to this, courts, very often, remain reluctant to admit the direct evidence pointing towards the act of adultery. Highly probable circumstances proving the act of adultery are relied upon by the courts while hearing this discourse.

There are certain other evidences which can, if reliable, be admitted and accepted by the court of law while pronouncing its decision for the act of adultery. A series of act, if called upon by the courts to prove this act, forms one of the most important substantiation which if proven can lead to the decree of divorce efficacious. Denying accusation of adultery by the respondent, even if he did it, can be carried out by him because of various reasons, and can plead those reasons which can form substantial ground for refuting the divorce decree. Being faulty, a petitioner cannot ask for divorce. It is as simple as it can be, one cannot ask for a relief for which he was at fault. A person, who himself engages in the act of adultery, cannot ask for a divorce decree, which if asked would be precluded by the court promptly. Eventually, it would be the discretion and satisfaction of the court which would be the deciding component in these cases.

Criminal charges cannot be framed in a suit filed in a civil court, even if such charges proven. This is because of a minimal reason that the degree of proof in a criminal court is highly sophisticated in comparison to a civil court, which shall be proven beyond all reasonable doubts disparate to what one requires to prove in a civil court. A separate suit can be filed in the criminal court under Section 497 of Indian Penal court, which would consequently lead to the engrossment of the criminal procedure while framing charges and thereby proving it. Another important point which ought to be taken into account while dealing with such cases is the naissance of a child during the period when couple had been living apart because of some differences between them, and the period between the birth of the child and last marital intercourse should be long enough in order to prove that no child, if conceived during such period, would be a legitimate child of the petitioner. It would be unproblematic to understand that petitioner in such cases would be a man. But, it would be an obligation on the part of the husband to prove that no access was feasible at the time when child was born. The period relied upon the English Court is that of 360 days after the last martial intercourse between the couple. Once proven, such a ground would leave no room for the court to believe that adultery was in fact committed by the wife. There have been certain instances when a man had requested the court to conduct blood test in order to spot whether the child born is in fact his child. But, a court cannot compel, in such cases, a wife to undergo blood test so as to make the petitioner satisfy and this shall be proven by means of facts and circumstances. Only wholesome facts and circumstances can prove such a charge. It would not be mandatory for the petitioner to name the person with whom the respondent had committed adultery, and it would not in any way affect the decision of the court. Interestingly, courts do not rely upon the confession churned out by the respondent in front of the bench. As an alternative, court will rely on the evidences presented before it with verve. It would be quite clear to understand some of the basic principles on which a divorce decree could be granted to the petitioner if demanded.

“Christ and The Church: If he were to apply for a divorce on the grounds of cruelty, adultery and desertion, he would probably get one.” - Samuel Butler

Custom as a Source of Law in Hindu Law

Hindu Law sometimes finds itself in a state of ambiguity while resolving the disputes pertaining to Hindus. At times, there arises certain situations when it becomes difficult for courts to decide whether, in a particular situation, custom would prevail or the text mentioned in the Smritis would prevail. Such problems do not arise when custom has varied over a period of time, but it arises where when it has been practiced for a long period of time uniformly by a certain community, or a religion to be more specific in present dilemma. Generally, it has been a practice which has been followed by several courts to offer primacy to the customs of texts specified in Smritis.

But, another problem crop up as to how and which customs should get primacy, or could be used as a source of law, and for that matter could be used as a law itself. Now, let us spot the points on which these customs are based, points which are not of cultural important but for legal importance. There are three kinds of customs which can be considered to be of some legal importance and above that importance in resolving critical legal disputed in determining the applicability of these customs.

1. Local Custom

2. Family Custom

3. Class Custom.

It would not be intricate to understand the meaning of these customs separately, nor would it be complex to define these customs in our own terms. “Local Custom” is a custom which is prevalent, and has been followed in a particular area or territory for a long period of time, time immemorial to be more specific, and is not against the morality and legal principles. When we converse about legal principles, we mean principles which are fundamental in governing in any society or a nation and which cannot be overlooked while dealing with any of these customs at any point of time. “Family Custom” is often followed only in a particular family, which makes it difficult for the family members to prove the existence of any such custom as required by the case. It is certainly easier to prove the existence of custom which is prevalent in a particular area or class because it is not concentrated to a particular family. In the same manner, “class custom” is the one followed by a particular class.

Before applying these customs as a source of law, it is necessary to check its authenticity. And, it becomes important to make sure whether the custom has been used for a long period of time which in a way makes it ancient, and is reasonable without arbitrariness and is not in the derogation of the general rules of law present in the society. Let us take an example in order to ascertain whether any custom can be accepted as a source of law or not, and for this purpose let us refer to the practice of “Sati”, which had been followed rampantly by Hindus in ancient period. Reasons for burning a woman with her deceased husband can be many, but none of them can justify their reasonableness by murdering a woman. Right thinking members, at that time, might be of the opinion that woman should not claim their right over the property of her husband and they found “Sati” as an easy mechanism to stub out the claim made by them. Another reason could be the maintenance of the woman after her husband’s death, i.e., who would take care of her, and for that matter who would provide her shelter to live in. These were some of the reasons provided by many of the members of the society, at that point of time, to substantiate the fairness of their act. So, it becomes necessary for the courts not to acknowledge such customs which are based merely on arbitrariness and unreasonableness. Here comes the aspect of public morality and public policy, and clear and unambiguous evidence must be there in order to prove it. It should be unambiguous because by claiming the validity of a custom, one is challenging the provision mentioned in the text, let us say Smritis. While proving its validity, another important aspect would come into light i.e. whether such custom has been followed consistently or there have been various instances when such a tradition has been ignored by the members of the society, then how can such a custom be used as an authentic source of law while delivering justice. In such instances, custom cannot be termed as proved and would not make anyone bind to consider it as an authority. This is one of the problems which have been faced by the courts while delivering right justice to the people.

Moreover, it would be a mandate that such a custom has been formed by the common consent of the society and it would always be a matter of fact while ascertaining its authenticity. It would not be possible for a person to claim anything on the basis of the theory, or by alleging that such a custom has been mentioned in some text. This is because, texts which are considered to be authentic, are already present in the form of Smritis,Vedas etc. And a custom, which is authentic, is always context driven and not theory driven. Another aspect which has to be taken into account while dealing these matters is to inquire whether it was only in recent times that the custom has been followed, and if it has been followed only in recent times, then the court decrees based on such a custom would not serve as a precedent. In the earlier part of the post, family custom has been defined and it would be important to know how and when they could be applied. Customs relating to family has been considered by the court as an authentic source for a long period of time, but proving the existence of such a custom is not only difficulty but also time consuming. But, once proven, it would become obligatory to prove any such custom. But, the burden to prove any such existence would again depend on the person alleging it.

Through this post, it may become somewhat clear as to how and when custom as a source of law can be applied while dealing the cases related to Hindu Law.

"Strike an average between what a woman thinks of her husband a month before she marries him and what she thinks of him a year afterward, and you will have the truth about him. "~H.L. Mencken