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Tuesday, December 1, 2015


The Hon’ble Supreme Court in Krishna Bhatacharjee Vs. Sarathi Choudhury and another (reported in 2015 AIR SCW 6386) have decided on the claim made by women over her Stridhana properties, the apex court observed who is the “aggrieved person” as defined under the Protection of Women from Domestic Violence Act, 2005 and whether the claim was barred by limitation and the relationship of husband and wife when there is a decree of judicial separation.

Stridhana properties means: Stridhana properties are properties gifted to the girl before her marriage, at the time of marriage or at the time of giving farewell or thereafter. It is her absolute property with all rights to dispose at her own pleasure. Husband has no control over her Stridhana properties, he may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. The Stridhana properties are not joint properties of the wife and husband, the husband will have no right or title over the Stridhana property.

Domestic violence includes Economic Abuse: The Protection of Women from Domestic Violence Act, 2005, is the beneficial as well as assertively affirmative enactment for the realisation of the constitutional rights of women and to ensure that they do not become victims of any kind of domestic violence. The definition of “Domestic Violence” covers a range of violence including “Economic Abuse”.

Background before appealing to Supreme Court: The appellant (woman/wife) having lost the battle for getting her Stridhan back from her husband, before the learned Magistrate on the ground that the claim preferred under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was not entertainable as she had ceased to be an "aggrieved person" under Section 2(a) of the 2005 Act and further that the claim as put forth was barred by limitation; preferred an appeal before the learned Additional Sessions Judge who concurred with the view expressed by the learned Magistrate. Subsequently approached the High Court of Tripura, Agartala in Criminal Revision, the High Court declined to interfere with the lower court findings, consequently wife preferred appeal, by special leave before the Supreme Court.

Difference between decree for divorce and judicial separation: There is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and legal relationship continues as it has not been snapped. Therefore wife does not cease to be an “aggrieved person” because of decree of judicial separation. Once decree for divorce is passed the parties become different, but that is not so when there is a decree for judicial separation.

Continuing offence: The retention of Stridhana by the husband or any other family members is a continuing offence.  Neither the husband nor any other family members can have any right over the Stridhana and they remain the custodians. Wife as long as she remain the status of the “aggrieved person” can file for her right or claim under 2005 Act for her stridhana properties. In the above case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010 to the Magistrate. In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for Stridhana. Regard being had to the said concept of "continuing offence" and the demands made, the Hon’ble Supreme held that the application was not barred by limitation and the courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation.

The Hon’ble Supreme Court allowed the appeal and directed the concerned magistrate to proceed with the application filed by the appellant wife under provision of section 12 of Protection of Women from Domestic Violence Act, 2005.

Prepared by: S. Hemanth

Sunday, August 9, 2015


The Hon’ble Supreme Court Acquited Appellants Due to Lack of Evidence to Prove Mental Cruelty U/S 498a

The prosecution case was that the husband, Rakesh had an extra marital affair with Jasuben, a divorcee. This illicit relationship shattered his marital relation with his deceased wife Biniben. The said Biniben committed suicide on 4/3/04 by consuming poison. The death of the deceased was known to her parents only on 17/3/04.  After the knowledge of her suicide her mother filed complaint at Jamnagar police station and pursuant to the statement of 21 witnesses the police filed charge sheet u/s 498 A, 306, 201 and 114 of IPC against father-in -law of the deceased as accused 1, husband as Accused 2, mother-in-law as accused 3 and Jasuben as Accused 4. The elder brother and wife of accused 2 were exonerated by the trial court due to lack of evidence against them. Other accused were convicted by the trial court and they preferred appeal in the High court The Honorable high court also upheld the conviction of the trial court. Against the finding of high court the appellants moved appeal before the Apex court.

The Bench presided over by Justice Sudhanshu Jyoti Mukhophadya and Justice Deepak Misra had scrutinized minute aspects of the sections the appellants have been charged, and with reference of similar citations reached the conclusion to acquit the appellants.

The SC observed that the prosecution had produced and based on the deposition of PW 21 the sister of the deceased it was quite clear the deceased had obtained a divorce with 2nd accused and stayed on the terrace of the house. She had also intimated that after the festival of Holi she will return to her parental house.

The apex court further analyzed whether the charges framed u/s of IPC is applicable to the appellants in the instant case. The alleged charges of mental cruelty inflicted on the deceased by her husband owing to his extramarital affair wouldn’t attract Section 498 A as the cruelty defined in the section require proper evidence of such imposition of harassment on the deceased. The court observed that the in laws of the deceased were alleged to take her daily earnings but that was also not proved.  Any torture stated in Section 498 A and demand of dowry is not committed by accused and hence alleged cruelty by them in laws is also not proved and does not attract the explanation cruelty or harassment in section 498 A.

The endurance of mental cruelty depends on the mental status of each individual as per the court and the Bench affirmed that a fact of husband having an illicit relation imposed mental cruelty on the deceased is not proved by any strong undeniable evidence or fact. Another point of consideration by the court was the element of abetment or instigation u/s 306. Court observed that the suicide note of the deceased states that she was possessive about her husband and due to emotional stress she relieved her husband through the act of suicide that does not come under the ambit of abetment stated in section 306.

On the conclusion Apex Court has found that the accused appellants are not guilty u/s 306 and 498A of IPC hence the conviction is not sustainable u/s 201. The appellants were acquitted on the light of the above findings.

[Ghusabhai Raisangbhai Chorasiya & Others Vs State of Gujarat – 2015 AIR SCW 3950]

Prepared by: S. Hemanth
Advocate at Hemanth & Associates

Friday, August 7, 2015


From section 125 of the Cr.P.C it is seen that, to file a petition, the status of wife and husband should exist between the petitioner and the respondent. In addition she should show that she does not have any source of income and she is unable to maintain herself.

High Court of Karnataka in Dr.Shrishail Ramakrishna Bijapure Vs Smt. Vidya  

Prepared by: S. Hemanth


The Court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and to all those he is obliged under law and also statutory but involuntary payment or deductions from his income. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she used to when she lived with her husband and she does not feel handicapped in the prosecution of her case. The amount when fixed cannot be excessive.

High Court of Karnataka in K R Arun Vs Smt. M. Latha

Prepared by: S. Hemanth

Tuesday, June 30, 2015



The appellant husband filed a petition under Section 13(1) (i-a) and (i-b) of the Hindu Marriage Act, 1955, for dissolution of marriage. The notice issued to 1st respondent-wife was retuned as refused, the Family Court held service of notice on the wife as sufficient. The 1st respondent-wife was placed ex parte and the case was adjourned. The first respondent-wife’s counsel filed vakalathnama and an application under Order IX, Rule 7 of C.P.C, the said application was allowed, the ex parte order was set aside. The 1st respondent-wife was absent and evidence was closed. Appellant-husband got himself examined as P.W-1 and got marked Exs. P1 to P4. Cross-examination of P.W-1 was taken as nil, the family Court allowed the petition and dissolved the marriage of the parties.

The 1st respondent-wife challenged the judgement of the dissolution of marriage before the High Court on the grounds of fraud.

The main allegation made by the 1st respondent-wife is that the husband played fraud on the Family Court and obtained the decree of dissolution of marriage. In support of such submission, she submitted that she had not engaged any Counsel in the case and that blank Vakalathnama was taken at the time of settlement for their mutual divorce and that she never appeared before the Family Court.

No question as to whether the appellant-husband played fraud on the Family Court and obtained the decree of dissolution of marriage or whether the appellant-husband committed any offence punishable under the provisions of Indian Penal Code was framed by the High Court. The High Court failed to notice that this is a case in which there is a disputed question of fact which cannot be decided without faming a proper issue and in absence of evidence on record. Consequently the Hon’ble Supreme Court had set aside the impugned judgement passed by the Division Bench of the High Court of Karnataka and thereby the appellant-husband appeal was allowed. [Sunil Vs. Sakshi@Shweta].

Prepared by: S. Hemanth
Advocate at Hemanth & Associates

Friday, November 29, 2013


Whether a “live-in-relationship” would amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship”?

A women, entered into a live-in-relationship with a man knowing that he was married person with wife and children where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character, the continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is a rebuttable one and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage.

A relationship between a women and a married man could not be termed a relationship in the nature of marriage. The Hon’ble Supreme Court in Indra Sarma Versus V.K.V. Sarma observed.

In the instant case, the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. Long standing relationship as a concubine, though that not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but the Domestic Violence Act does not take care of such relationships.

Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent.

Appellant and respondent were working together in a private company. The Respondent, who was working as a Personal Office of the Company, was a married person having two children and the appellant, aged 33 years, was unmarried. Constant contacts between them developed intimacy and in the year 1992, appellant left the job from the above-mentioned Company and started living with the respondent in a shared household. After several years, the man moved out of such live-in-relationship. The appellant preferred Criminal Miscellaneous Petition under section 12 of the Domestic Violence Act before the Magistrate, Bangalore. Seeking reliefs of independent residence, monetary order, compensation and maintenance. The learned magistrate found proof that the parties had lived together for a considerable period of time, for about 18 years, and then the respondent left the company of the appellant without maintaining her. Learned magistrate took the view that the plea of “domestic violence” had been established, due to the non-maintenance of the appellant and passed the order directing the respondent to pay an amount of Rs. 18,000/- per month towards maintenance from the date of the petition. Subsequently the Sessions Court upheld the Trial Court Decision.

But the Karnataka High Court set aside the Trial Court order saying that live-in- relationship did not fall within the ambit of “relationship in the nature of marriage”, a cardinal principal for one to invoke Domestic Violence Act.

The Hon’ble Supreme Court held that the appellant, having been fully aware of the fact that the respondent was a married person, could not have entered into a live-in- relationship in the nature of marriage. All live-in-relationships are not relationships in the nature of marriage. Appellant’s and the respondent’s relationship is, therefore, not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship whould not fall within the definition of “domestic relationship” under Section 2(f) of the Domestic Violence Act. If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to “domestic violence” under Section 3 of the Domestic Violence Act.

The Hon’ble Court Supreme Court further held that the appellant’s status was that of a mistress, who is in distress, a survivor of a live-in-relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation.

We are conscious of the fact that if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an international tort.

Prepared by: S. Hemanth

Tuesday, October 1, 2013


The Hon’ble High Court of Judicature at Madras in Aysha Vs Ozir Hassan, held that if a bachelor who has completed 21 years of age and a spinster who completed 18 years of age indulges into a sexual act, then they would be considered as legally wedded couple. The Hon’ble Court was of further view that even after such a sexual relationship, if both decides to separate; the husband or wife cannot marry without getting a decree of divorce from the court of law.

Consequently, any couple who choose to consummate their sexual cravings then that act becomes a total commitment with adherence to all consequences that may follow except on certain exceptional considerations. Therefore, the marriage formalities as per respective religious customs viz., tying of thali, exchange of garlands, exchanging of finger rings, circling around the matrimonial fire pit or registering of marriage at a Government Registration Office is only to comply with each one’s respective religious customs for the satisfaction of the society.

The Hon’ble Court further observed, if any couple, subject to their attaining the mandatory age of freedom, who indulge in sexual gratification, then that would be considered as valid marriage and they could be termed as “husband and wife”, as a result of their choice of freedom. On the other hand, in some cases, both bachelors and spinsters, who adhering to all formalities of their respective religion and culture with marriage solemnized, find it that their conjugal rights for sexual consummation had not been fulfilled, then such a marriage is deemed to be a failure, void or lapse. So in total, what is expected after adhering to norms and formalities is the sexual consummation by the couple. Hence, the main legal aspect for valid marriage is consummation or sexual interaction.

The Hon’ble Court further observed that, if necessary, either party may approach the Family Court for declaration to the effect of marital status by supplementing documentary proof of evidence in order to prove the sexual relationship. After such a declaration from the concerned forum, the victim can establish herself in all the government records or any other relevant records where she can encrypt her name as wife to her counterpart. Legal rights applicable to the normal wedded couples will also be applicable to couples who have had sexual relationships which are established.

The Hon’ble High Court held that the main legal aspect for valid marriage viz., consummation between both spouses has happened even before the formalities. If the consummation has taken place between the spouses (bachelors and spinsters) then from that time onwards both are declared husband and wife. This declaration will not be prejudicial to either party. This Court’s further view is that this declaration would strengthen the Indian Culture and would protect the young women’s welfare, character and status among the society. This pertinent view of this Court is in order to protect Women’s Civil Rights and personal life. This Court further opines that it is an appropriate time to prevent the Indian Culture from deteriorating further when it comes to living honestly as spouses. It is an imperative need that the morals and ethics of Indian Culture is taken to the next level and maintained so as to never slander the life of an innocent woman. Finally and most importantly the Courts do give paramount importance to the customs and rights to every religion so long as it remains in tandem with civil rights that are controlled by the Courts.

Prepared by: S. Hemanth
Advocate at Hemanth & Associates