14 family law and succession

42 Pages·2008·2.93 MB·English

14
FAMILY LAW AND SUCCESSION
Poonam Pradhan Saxena*
I INTRODUCTION
IMPORTANT JUDICIAL pronouncements under the Indian Divorce Act, 1869;
Dowry Prohibition Act, 1961; Dowry deaths under the Indian Penal Code, 1860;
Family Courts Act, 1984; Guardians and Wards Act, 1890; Maintenance under
Criminal Procedure Code, 1973 section 125; and under Muslim Women's
(Protection of Rights on Divorce) Act, 1986; Matrimonial violence under Indian
Penal Code, 1860; Special Marriage Act, 1954 and Indian Succession Act, 1925
have been briefly discussed here.
II INDIAN DIVORCE ACT, 1869
Divorce under section 10 and claim of right of privacy of spouses
The antique legislation amended and brought uptodate only in September
2001 earlier made matrimonial breakup at the instance of the parties an extremely
cumbersome task. This was the only statute amongst the multiplicity of personal
laws in India that did not permit divorce on grounds of husband's adultery alone
and required the wife to prove along with adultery of the husband another
specified ground of his matrimonial misconduct. Proving commission of adultery
in itself is difficult as its substantiation with direct proof may not be possible.
Despite that under the Act, besides naming the person with whom adultery was
committed the aggrieved party is also required to make him a co-respondent in
this matrimonial petition. Therefore, a high degree of probability of its commission
may convince the judiciary of the veracity of the alleged conduct. But considering
the seriousness with which adultery by married persons is viewed both by the
society and the judiciary, a false allegation by the guilty party may boomerang
on her if the accused spouse decides to defend himself by resorting to advance
medical techniques of DNA analysis to prove his innocence and culpability of
the other. The Divorce Act also contemplates providing enough opportunities to
the accused party to lead such evidence. The whole pattern shows that guilty
parties cannot befool the judiciary and manipulate the judicial process to their
advantage by falsely maligning the innocent spouse to suit their ulterior motives.
Thus, a vital question emerges. As proof of commission of adultery can a party
seek and get from the court a permission for a DNA test to be performed on the
* LLM, PhD, Reader, Faculty of Law, University of Delhi.
www.ili.ac.in The Indian Law Institute
336 Annual Survey of Indian Law [2002
foetus conceived during the subsistence of the marriage but later aborted? In a
case from Delhi1 the wife became pregnant during the subsistence of the marriage
but the foetus was aborted and was preserved by the All Indian Institute of
Medical Sciences (AIIMS) due to an abnormality. The tubular foetus was aborted
by the wife before the commencement of the present litigation that was initiated
by her. She claimed divorce from the husband alleging that he is guilty of
committing cruelty and adultery. The husband defended the petition; denied the
allegations of the wife levelled against him and claimed that it was she who
herself was guilty of commission of adultery and as a result of this adulterous
connection with her paramour whom he named, she had conceived a child who
was later aborted. In support of this allegation he sought permission of the court
to have the DNA test to be preformed on the preserved foetus so that truth can
be known of its paternity. The wife who initially had alleged adultery on part of
the husband now when faced with a similar charge and a possibility of a concrete
proof vehemently opposed the prayer of the husband and claimed that the court
could not grant the said permission as she cannot be compelled to testify against
herself and her right of privacy will be violated if such permission were allowed.
She further claimed that the foetus was a part of her body and a DNA test
conducted on it and disclosure of such analysis would transgress her constitutional
rights of privacy, a fundamental right guaranteed to her. The court held that to
refute the false allegations of adultery levelled against the husband by the wife
when she herself might be guilty of committing adultery the husband is allowed
to lead evidence to this effect and if the wife objects to such DNA tests there
is no reason why inference cannot be drawn against her. The permission was
sought to conduct the DNA test on the preserved foetus that no longer formed
a part of her body. The court thus rightly dismissed her petition and her contention
of violations of right of privacy.
Cruelty as a ground for divorce under Divorce Act
The Act, prior to its amendment did not enable a spouse to claim divorce
on grounds of cruelty of the other. Nevertheless a woman filed a petition2 in
1998 in the family court at Bangalore alleging that from day one the husband
treated her cruelly so much so that the marriage broke down and they started
living separately. Neither cruelty nor breakup of marriage was a ground contained
in the statute at that time enabling her to get a decree of divorce. However, the
petition was duly served on the husband but he did not appear to contest the
same. The wife pleaded her entitlement to a decree of divorce notwithstanding
the fact that the provisions did not provide for such a ground and contended that
in the past three high courts had declared section 10 as void and thus the
requirement that the wife must prove cruelty as well as adultery on part of the
husband in order to get divorce no longer applied to her. The family court held
that even though there are three decisions of the Kerala, Bombay and Andhra
Pradesh High Courts to the effect that section 10 is violative of the constitutional
1 X v. Z, AIR 2002 Del 217.
2 Annie P Mathews v. Rajimon Abraham, AIR 2002 Kant 385.
www.ili.ac.in The Indian Law Institute
Vol. XXXVIII] Family Law and Succession 337
provisions of equality it did not bind the trial court or the family court of the
Karnataka State and refused the relief. On appeal the high court held that this
attitude of the family court was totally wrong and granted divorce to her. Strangely
enough in the present case the wife neither challenged the constitutional validity
of section 10 nor did the court pass any opinion on its constitutionality. The sole
reason for making the ground of cruelty available to the wife was the judgments
of parallel high courts of other states. It is a settled principle of law that the high
court decisions of other states are only of persuasive value and are not binding
on the lower courts of other states. In the absence of any verdict of similar
nature of the Karnataka High Court the family court had rightly dismissed the
petition of the wife.
Adulterer to be impleaded as a respondent
A decree of divorce pronounced by the trial court was ineffective under the
old law till it was confirmed by the high court. In confirming the decree the high
court could also go into the matter in detail and ask the parties to lead additional
evidence if it deemed necessary. The husband3 filed a petition in the trial court
seeking divorce on the grounds of desertion by the wife. As the wife did not
appear before the court it proceeded ex parte. During the course of the proceedings
the husband under order 6, rule 17 of the CPC made an application for amendment
of the pleadings and inclusion of another paragraph which in substance was
addition of the ground of adultery. In the paragraph added subsequently the
husband alleged that the wife was living openly with some other person and due
to this open live in relationship there was no chance of any reconciliation between
them. He prayed to the court that the marriage should be dissolved. The court,
accordingly, passed a decree of dissolution of marriage observing that the
knowledge of husband with respect to the wife living in adultery was subsequent
to the filing of the petition praying for a decree of divorce. The husband then
applied for its confirmation to the high court. The high court noted that the
marriage was dissolved not on the grounds of desertion that was pleaded
initially but on grounds of adultery of the wife and under section 11 of the
Divorce Act whenever a marriage is sought to be dissolved on grounds of
adultery the alleged adulterer is not only to be named but is also to be made
a co-respondent unless
i) the respondent wife is leading the life of a prostitute and the
petitioner knows no person with whom the adultery is committed;
ii) that the name of the alleged adulterer is unknown to the petitioner
although he has made due efforts to discover it;
iii) that the alleged adulterer is dead.
Here the husband named the adulterer but failed to make him a co
respondent. Since the marriage was dissolved on the ground of wife's adultery
but without making the adulterer as a co-respondent the high court held the
3 Ajant Bhuiya \. Lalrinmawii Khiangte, AIR 2002 Gau 107.
www.ili.ac.in The Indian Law Institute
338 Annual Survey of Indian Law [2002
order of the trial court violative of section 11 of the Act and opined that it
cannot be sustained in law. The trial court was asked to consider the matter
afresh once the alleged adulterer was impleaded by the husband as a co
respondent. The court further ordered that the wife be summoned again as in
the original petition filed by the husband it was only a charge of desertion and
not adultery and that petition was decreed ex parte.
Here summons were earlier sent to the wife to file a written reply but
only with respect to the charge of desertion. It is indeed surprising how this
petition of the husband was entertained in the first place by the court as the
only ground on which he could seek divorce was wife's adultery, which was
added to the original petition after an amendment. The entire case from
starting to culmination at the trial court level suffered from various
infirmities. His petition was based on a non existing ground; was devoid of
wife's participation as despite inclusion of the ground of adultery the wife
was neither informed of the allegation nor given a chance to defend herself.
Secondly, the alleged adulterer was also not made a co-respondent according
to the tenets of the law. The high court's decision, therefore, had the effect
of undoing the error committed by the trial court.
Divorce by mutual consent
A petition for putting an end to the marriage by divorce by mutual consent
can be filed after the amendment of the Act only before the district court as per
the provisions contained in seciton 10A though before the amendment it could
be filed in the trial court or the high court. However, notwithstanding the
pendency of a contentious divorce proceedings awaiting disposal in the high
court can a mutual consent petition also be filed in the high court? The wife
alleging adultery, desertion and cruelty on part of the husband who refuted all
these allegations initiated the divorce petition.4 During the pendency of this
litigation the parties filed a joint petition praying for a decree of divorce by
mutual consent in the high court. They claimed that as it was now impossible
for them to live together because of irreconcilable differences they agree to
mutual consent divorce even though the contentious litigation was still
pending.
It should be noted that section 10A permitting divorce by mutual consent
was inserted in the statute in 2001. It enables the parties to file a joint petition
subject to the provisions of the Act in the district court and not straightaway in
the high court. The question before the court was: is the high court competent
to entertain such a petition directly on the original side in view of section 10A?
The court held drawing analogy from the cases decided under the Hindu Marriage
Act, 1955 and giving references to them, that in all cases where litigation or
contentious divorce proceedings were sought to be converted into one of mutual
consent, it was accepted and divorce was allowed notwithstanding the fact that,
had it been an independent mutual consent proceedings it would have commenced
4 Sherly Thomas v. Johny, AIR 2002 Ker 280.
www.ili.ac.in The Indian Law Institute
Vol. XXXVIII] Family Law and Succession 339
from the district court. The proceedings of mutual consent were allowed and
marriage was dissolved. However, in the light of section 16 it was not a final
order but only a decree nisi.
The court, however, failed to note that it was not a conversion of a contentious
proceedings into a mutual consent petition but an independent joint petition
seeking divorce which in the light of section 10A should have been filed in the
district court and not straight away in the high court.
Nullity of marriage
The party to the marriage whose consent is obtained by force or fraud can
obtain a decree of nullity. There can be no fraud where the material facts are
within the knowledge of the party,5 but can a party allege that her consent was
obtained by force if she did consent to the marriage at the time of its solemnisation
at the instance of her parents for their satisfaction while all along she was
opposed to marriage? The husband filed a petition6 praying for a decree of
nullity on the grounds that the wife never responded to his marital advances and
disclosed to him that her consent was obtained by force. She had given her
consent only at the instance of her parents and for their satisfaction but never
wanted to go ahead with this marriage herself. Their stay together in the
matrimonial home lasted only for a period of one week and thereafter they lived
separately. The court held that in such cases it could be safely said that the
consent was not voluntarily given and a decree of nullity could be granted in
favour of the husband more so as it appeared that there was no collusion or
connivance between them.
The decision appears to be strange. The first problem arises in deciding the
question whether insistence of her own parents would amount to force within the
meaning of the Divorce Act. If it is, then in a majority of cases of arranged
marriages where parents play a pivotal role arranging marriages sometimes
consulting and sometimes even without consulting their wards such marriages
will run the risk of being declared null and void at the instance of the court. The
wife was a major at the time of the marriage and the marriage was solemnized
in the church. If she said yes at the time of the ceremony of marriage it appears
difficult that the insistence of the parents was of an intensity as to be equated
with the term "force" as is understood under the Act. Further, if without there
being any pressure from the parents she went ahead with the marriage only to
satisfy them it can hardly be said that her consent was obtained by force. The
voluntary act of satisfying the wishes of parents can by no stretch of imagination
be called as amounting to force.
Secondly, if the consent of the wife was taken by force the petition should
have emanated from her and not from the husband as there was nothing wrong
with his consent. He did not claim that his consent was obtained by force or
fraud; rather it was contended by him that the wife's consent was obtained by
force. Though the Act provides that the court is competent to pronounce a decree
5 Sunny Rebeiro v. Querobin Pebira, AIR 2002 NOC 264 (Ker).
6 Ranjit Thomas v. Annie R Thomas, AIR 2002 NOC 63 (Del).
www.ili.ac.in The Indian Law Institute
340 Annual Survey of Indian Law [2002
of nullity on ground that consent of either party was obtained by force or fraud7
yet it is a cardinal principle of matrimonial jurisprudence that the aggrieved
party can only be entitled to a remedy under law. Therefore, availability of a
decree of nullity would be open only to the wife and not the husband. It is only
at her instance that the marriage can be annulled as she was the aggrieved party.
The courts should not have entertained the petition from the husband in the first
place as it did not emanate from the aggrieved party.
Restitution of conjugal rights
One of the essential prerequisites for bringing a petition of restitution of
conjugal rights against the spouse is the withdrawal of the guilty party from the
society of the aggrieved without a reasonable excuse. Similarly, to defend such
a petition the defendant has to come up with cogent reasons which forced her
to withdraw from the matrimonial home. The courts can thus weigh the conduct
of both the spouses to decide whether such a petition should be rejected or
decreed. In the case in hand a Christian8 couple married in 1983 and lived
together for about six months after which the wife was left by the husband at
her parent's place and she did not come back. The child born after they separated
was living with the mother, a teacher in a school. She had also filed a case
against the husband and his brother under the Dowry Prohibition Act that was
later quashed by the court as unsubstantiated.
The husband filed a case for restitution of conjugal rights and for the custody
of the child then aged seven years on the ground that he was the natural guardian
of the child and the mother was not taking proper care of him. The wife alleged
that from the time of the birth till the filing of the petition the husband did not
show any interest in the child. He did not visit the child at the time of the
delivery nor at the time of its baptism and the handing over of the child to the
father would be to its disadvantage as he himself was living in a lodge and could
not afford to give the child even home made meals. The district judge after
hearing both the parties and appreciating the evidence passed a decree of restitution
of conjugal rights in favour of the husband directing the wife to hand over the
custody of the minor to the father. Aggrieved by the decision of the district court
the wife preferred an appeal to the high court.
Meanwhile, after the police complaint filed by the wife against the husband
and his brother was quashed in the high court the brother filed a case for
damages against her and the husband gave a notice to her to come and stay with
him. The wife had throughout the case taken contradictory positions. Her initial
stand was that she was left by the husband at her parents place and always
wanted to live with him but later she herself opposed the restitution petition and
despite its grant to the husband refused to join him even as her and her husband's
residence was at a distance of merely five kilometers. On top of it she filed
criminal cases against him implicating his brother also that were disbelieved by
the court and the proceedings were quashed. At the stage of the pronouncement
See s. 19 of the Act.
Sujatha Christiana v. C Thomas, AIR 2002 Mad 6.
www.ili.ac.in The Indian Law Institute
Vol. XXXVIII] Family Law and Succession 341
of the judgment at the high court level 12 years had already passed since the
filing of the case and the child whose custody petition was yet to be decided had
become 17 years old and was continuously living with the mother despite the
trial court's order. The high court observed that "the court cannot in every case
when the wife withdraws from the society of the husband pass a decree for
restitution of conjugal rights against her unless she has done so without reasonable
cause. y
The court held:10
The subsequent events such as filing a criminal complaint and examining
both the petitioner and the respondent by the police will clearly show
that the relationship between the petitioner and the respondent has
become strained and that they reached a point of "no return". Inasmuch
as the respondent gave a criminal complaint and harassed the petitioner
in the criminal case it will show that the respondent would have
entertained reasonable apprehensions in her mind that she would not be
properly treated by her husband if she resumes cohabitation with the
petitioner. If really the respondent left the house of the petitioner without
reasonable excuse the petitioner should have filed this petition without
any delay. On the other hand the petitioner filed this application after
a lapse of nearly five years.
The main reasons for the court to refuse the restitution decree and custody
of the child to the husband was that long time had passed since they separated;
questioning by the police in pursuance of the criminal case filed by the wife had
further strained their relationship and the child was under the undisturbed custody
of the mother.
It may be submitted that the excessive time consumed in a contentious
matrimonial litigation of late has become a tool in the hands of the guilty party
to successfully circumvent the court orders. Despite the trial court's verdict in
favour of the husband both with respect to the custody and the restitution of
conjugal rights the wife successfully denied the husband both hers as well as the
child's company. The courts apparently based their judgment on the fact that the
wife had a reasonable apprehension in her mind that she would not be treated
well after her misbehaviour; and thus rejected the plea of the husband. The
reasoning appears to be strange as the apprehensions of the wife were due to her
own misbehaviour and not because of the husband's conduct and if despite what
all she had done the husband still wanted her company and the child back the
court should have done exactly that as at no point of time was the wife able to
establish any kind of matrimonial misconduct on the part of the husband. The
whole issue should have been adjudged keeping in mind the petition of the
husband; his interests his conduct and his prayer. It was he who as the aggrieved
party had approached the court for a remedy apparently with clean hands.
9 Id. at 11.
10 Id. at 12.
www.ili.ac.in The Indian Law Institute
342 Annual Survey of Indian Law [2002
Secondly, the observation of the court with respect to the relations between the
parties coming to an end because of an interrogation by the police again poses
a problem. This approach of the judiciary may send a wrong signal to women
and may deter them to approach police if they have a genuine problem as that
may mean an end to their marital relationship. Even otherwise with respect to
any complaint filed with the police, be it the crime against women cell, an
examination or an interrogation by the police, is an inevitable necessity. Does it
mean that all cases of complaints would necessarily culminate in putting an end
to the relationship as the parties now would not be able to live together? If
despite an interrogation by the police the husband wanted to continue the marital
relationship and the court could not find fault with his conduct at any point of
time such a denial was not proper. Thirdly, even if the parties cannot reasonably
be expected to live with each other a denial of the restitution petition does not
help them to resolve the issue. It does not bring the marriage to an end but keeps
them tied to each other which may be even more frustrating for the parties
resulting sometimes in dire consequences. The court should have concentrated
on the reasons behind wife's living separately and her conduct to adjudge the
reasonableness of her withdrawal. It appeared as if the whole case was decided
keeping in mind the interests of the wife who was proved to be the guilty party,
which appears to be incorrect.
Ill DOWRY PROHIBITION ACT, 1961
Mere demand of dowry prior to marriage is an offence
The evil of dowry which dowry seekers attempt to justify by quoting examples
from Hindu scriptures has percolated all religions as is evident from the growing
number of cases filed in the court by members of various religious communities.
Presently governed purely by market forces and greed for money it has no
customary or religious sanctity attached to it. Under the Dowry Prohibition Act,
a demand of dowry before the solemnization of marriage would amount to an
offence despite the fact whether the marriage was later solemnised or not. The
parties had a love affair11 and the mother of the girl arranged a betrothal ceremony
at Bangalore. The parties were Christians and the marriage was scheduled to
take place at Imaculate Heart Church again at Bangalore. The boy demanded
Rs. five lakhs as dowry and threatened that he would not go ahead with the
marriage if the amount was not paid. The mother of the girl filed an FIR at the
police station where the girl was studying and later a complaint at the place
where the betrothal ceremony took place. The accused raised a preliminary
objection with respect to the jurisdiction of the court and contended that as the
marriage had never taken place no offence on his part was made out. The court
held that certain aspects of the crime had taken place at both the places ie, at
the place where the girl studied and at the palce of engagement. The registration
of the complaint at the place where the betrothal ceremony took place and
investigation conducted by them couldn't be assailed as illegal. The court also
11 Ivan Anand D'Souza v. State of Karnataka, 2002 Cri U 4395 (Kant).
www.ili.ac.in The Indian Law Institute
Vol. XXXVIII] Family Law and Succession 343
turned down his plea of not being guilty on ground that the marriage was not
solemnized as mere demand of dowry is a crime and the language used in the
Act does not in plain and simple words necessitate the solemnization of marriage
as a pre-requisite for filing a complaint of dowry.
Nexus between DP Act and section 498A, Indian Penal Code
Both the Dowry Prohibition Act (DP Act) and section 498A of the Indian
Penal Code (IPC) deal with dowry related harassment of a married woman. In
addition section 498A also provides for punishments in cases of cruelty to married
women at the hands of her in-laws. Thus an acquittal under the DP Act on
account of failure to prove dowry related harassment does not necessarily mean
a release from the charges of matrimonial cruelty under section 498A of the IPC
as there is not always a direct nexus between offences under the two sections.
At the time of the wedding the groom and his parents12 demanded
Rs 50,000/- from the bride's father which he promised to pay later. His inability
to pay this amount led to the torture of his daughter who after being kept without
food and water and assaulted returned to her father's place. An assurance of
good behaviour by the husband to the father of the wife saw her back at the
matrimonial home but the torture continued and she returned again to her natal
home. Husband repeated his assurance a second time but not only did she meet
with the same fate but he also threatened to kill her. She managed to escape from
his house subsequent to which a panchayat was held but rather than reaching an
amicable settlement the parents of the husband threatened to get their son
remarried. The court held that no offence under the DP Act was made out but
that does not mean that he will be absolved of the charges of committing
matrimonial cruelty. However, the court noted that the wife herself was recalcitrant
to some extent in resolving the dispute between the parties and, therefore, the
sentence of three years was reduced to rigorous imprisonment to six months.
The husband had absconded and had not faced the trial.
The approach of the court that the wife was now hesitant to go back and,
therefore, the husband deserves leniency is not surprising and is in conformity
with the typical patriarchal attitude whereby even after facing threats to her life
following repeated assaults by a violent and dowry hungry husband the court
still expects the wife to be eager to join him. Hesitation on her part to attempt
reconciliation for the fourth time should not have been used by the court to show
clemency to the husband. The conduct of the husband weighed in comparison
to the conduct of the wife was enough indication to prove his guilt. The wife
was sent thrice to the husband's residence but had to come back all the three
times in order to save her life. In complete contrast during the entire trial the
husband absconded and did not face it. Yet the court concluded that "the wife
was recalcitrant to some extent" in resolving the dispute between the parties. It
failed to note that the wife had tried three times to resolve the dispute but for
a woman to go back to the same place from where she had to escape the clutches
of death not once but thrice will not be a logical decision on her part. Her
12 Basanti Devi v. State of Bihar, 2000 Cri LJ 161 (Pat).
www.ili.ac.in The Indian Law Institute
344 Annual Survey of Indian Law [2002
hesitation at the time of the trial does not reduce her torture that formed the basis
of the case as it was subsequent. The conduct of the accused prior to the
commencement of the trial was sufficient to convict him as was also concluded
by the court. But to reduce his sentence when he not only failed to appear before
the court during the entire trial but was also found guilty of matrimonial violence
against the wife on the ground that she was hesitant to resolve the dispute
appears to be without any convincing and cogent reason.
Death of wife by burns
In yet another gruesome case13 the wife died of 98 per cent burns. Parents
alleged they were made to pay the dowry of cash and ornaments. In the dying
declaration the wife had implicated the husband as the main culprit and the
doctor attending on her also certified that it was recorded in his presence. The
court observed:14
We are pained at the fact that the percentage of acquittal in dowry
deaths and wife burning cases is still hovering in the high nineties in
the state and it will be very necessary to ensure that the lacunae that are
contributable to this unsatisfactory state of affairs will have to be
rectified.
Noting that till the girl is alive her parents are hesitant to take any action
for fear of spoiling the relations and hope for the situation to improve the judge
conceded that "delicate family disputes if taken to police authorities would lead
to a total blast up of marriage,"15 and observed that there are many other channels
such as village panchayat, elders of family of both sides and other well wishers
who can attempt reconciliation. But if there is total inaction on part of the
parents to approach outsiders for help when the girl is facing problems at the
matrimonial home on account of lack of dowry or dowry demand and dies,
dowry allegations appear to be an after thought on part of the parents of the
victim.
Thus, according to the judge where the girl is in trouble her parents should
explore options for a remedy that may involve members from within and even
outside her family such as friends, well wishers and panchayat etc rather than
merely providing her with shelter. However, the judiciary has failed to note that
in many cases matrimonial dispute of the daughter in the family is not openly
talked about even amongst close friends and neighbours as the parents still hope
for the possibility of an amicable solution. Involving others for talks, including
panchayat or any other local body is making public a family grievance that
many families would shy away from. Further, while the girl is still in her
matrimonial home attempted negotiations with outsiders may have a negative, in
fact a disastrous, effect and aggravate the situation exposing her to grave physical
13 State of Karnataka v. Neelawwa, 2002 Cri LJ 3981.
14 Id. at 3986.
15 Id. at 3983.
www.ili.ac.in The Indian Law Institute