Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Divorce petition – Transfer of -- Weightage ought to be given to the convenience of the wife in the transfer applications, relating to the matrimonial dispute -- Parents of respondent-husband can look after the children – Custody petition filed by wife, petition u/s 125 Cr.P.C. and the petition u/s 12 of the DV Act are pending in the Courts at Gohana and the complaint for registration of FIR u/s 498-A IPC is pending with the police authorities, Gohana – Divorce petition transferred from Meham to Gohana.

(Para 7-9)

Specific Relief Act, 1963 (47 of 1963), Section 16 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 8 -- Guardians and Wards Act, 1890 (8 of 1890), Section 9 -- Agreement to sell – Minor’s interest – Suit for specific performance -- Agreement to sell executed by defendant-respondent No.1/ one of heir of deceased -- No power of attorney executed by the other heirs in favour of defendant-respondent No.1 -- Power of attorney produced was executed after the execution of the agreement to sell -- Further, defendant-respondent Nos.6 and 7 were minors, without any permission from the Guardian Court their share could not in any case be sold, no such permission by the Guardian Court is forthcoming – Ld. Appellate Court held “said agreement being opposed to public policy and law could not be treated as a valid agreement to give rise to the cause of specific performance” – No ground to interfere, appeal dismissed.

(Para 9, 10)

Constitution of India, Article 227 – Hindu Marriage Act, 1955 (25 of 1955), Section 13, 21B – Long pendency of Divorce petition – Speedy disposal – Mandate of -- Suit of year 2020 -- Direction issued to the Principal Judge, Family Court to decided case in accordance with law maximum within a period three months in light of Section 21-B of Act, 1955 after providing opportunity of hearing to opposite party and without granting any unnecessary adjournment to either of the parties.

(Para 2-4)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Maintenance to wife -- Divorce petition pending – Applicant is to be treated as the legally wedded wife of the respondent till the marriage between them is dissolved by a valid decree of divorce -- Maintenance cannot be denied to her simply on the ground that the respondent has filed a petition for declaring the marriage as a nullity – Husband earning Rs. 2,47,661/- and he was getting Rs.1,38,546/- after the deduction of PF and income tax -- Maintenance of Rs. 25,000/- per month cannot be said to be excessive.

(Para 16, 19)

Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(a), 26, 27, 21B -- Divorce petition instituted on 16.10.2023 – Expedite disposal – Contention that respondent-husband has taken six adjournments in a year to delay the proceedings and as per Section 21-B (2) all endeavors should be to decide the matrimonial suit within six months – Principal Judge, Family Court directed to decide the Original Suit within a period of six months from the date of production of certified copy of order.

(Para 1-5)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18 – Interim maintenance to wife – Challenge to -- In the affidavit of assets and liabilities, the petitioner claimed his monthly pension as Rs.32,000/- -- Respondent placed on record, injunction order reflecting him a beneficiary in respect of the land measuring 17-14-08 bighas, which he claimed (therein) to be in his ownership and joint possession -- It was clearly evident that the petitioner had not revealed the details of his immovable properties -- Respondent is aged more than 70 years -- Award of maintenance at the rate of Rs.10,000/- per month cannot be said to be at the higher side -- No interference is called for.

(Para 4, 5)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce – Desertion -- Merely because the parties may have remained separated for reason of their separate jobs with one working at Jhansi and the other at Auraiya, the fact occurrence of desertion may never be sustained on the strength of such vocational/ employment compulsion faced by the parties.

(Para 6)

Hindu Marriage Act, 1955 (25 of 1955), Section 11, 13(1A)(i) – Divorce -- Judicial separation -- If no cohabitation arises within the statutory period, it becomes open to the affected party to apply for dissolution of marriage for reason of no cohabitation arising within the prescribed statutory period -- Decree granted by the learned trial court for reason of matrimonial relationship having not revived within the statutory period of one year from the date of decree of judicial separation granted is justified.

(Para 1, 6, 7)

Hindu Succession Act, 1956 (30 of 1956), Section 14 – Limited estate of lady – Property of female Hindu to be her absolute property -- Defendant no.1 was married in the year 1959-60, much after coming into force the Hindu Succession Act, 1956, on 17.06.1956 -- As such, her limited estate enlarges into absolute estate and she becomes full owner on the date of coming into force the Hindu Succession Act.

(Para 41)

Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of minor child – Sisters of deceased wife -- Natural father – Right of -- Child, who lost her mother at tender age, cannot be deprived of the company of her father and natural brother -- At the relevant time, the appellant had no other option but to look upon the sisters of his deceased wife to nurture his infant child -- Merely because of the unfortunate circumstances faced by the appellant as a result of which, respondent Nos. 5 and 6 were given the temporary custody of the minor child and only because they  looked after her for few years, the same cannot be a ground to deny the custody of the minor child to the appellant, who is her only natural guardian -- Respondent Nos. 5 and 6 directed to handover the custody of the minor child forthwith – Meeting rights given for every Wednesday between 04:00 pm and 06:00 pm.

(Para 13-17)

National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India by Indian Council of Medical Research, 2005, Guideline No.3.12.1, 3.16.1 -- Surrogacy (Regulation) Act, 2021 (47 of 2021), Section 2(r), 2(zd), 2(zg), 3, 4, 53 -- Assisted Reproductive Technology (Regulation) ACT, 2021 (42 of 2021), Section 31 -- Birth by surrogacy in 2019 – Altruistic surrogacy through an egg donor --   Right of Donor -- Guidelines of 2005 are applicable --  Under Guideline No.3.12.1 and the Surrogacy Agreement dated 30.11.2018, it is clearly stated that a child born through ART shall be presumed to be the legitimate child of the couple as having been born from the wedlock and with the consent of both the spouses -- Though the younger sister of Petitioner is the oocyte  donor, she has no legitimate right to claim that she is the biological parent/ mother of the twin daughters -- She may qualify to be a genetic mother and nothing more, but by such qualification she would have no intending legal right whatsoever to claim to be the biological mother of the twin daughters as the law clearly does not recognise so.

(Para 7.7, 9.2, 9.9, 9.10, 12, 17)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievably breaking down of marriage – Ground of -- Boggy of irretrievably breaking down of marriage cannot be used to the advantage of a party who is solely responsible for tearing down the marital relationship.

(Para 6)

A. Constitution of  India, Article 226 -- Custody of children -- Writ of habeas corpus – Maintainability of -- Effort to secure temporary custody of the children through a Writ of Habeas Corpus, especially when both the children are girls and are living with their mother, can neither be entertained nor appreciated.

(Para 1)

B. Code of Civil Procedure, 1908 (V of 1908), Section 13(f) -- Custody of children – Order of Foreign court – Compliance of -- Compliance to an order claimed to have obtained from the District Court, Family Court Division, State of Minnesota, U.S.A -- A foreign judgment violative of Indian law is not conclusive between the parties and thus, Indian Courts are not bound to follow it -- This principle is also statutorily recognized by Section 13(f) of the Civil Procedure Code, 1908 – Hence, the aforesaid order is not binding on the respondents or the children.

(Para 3)

A. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 20 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Family Courts Act, 1984 (66 of 1984), Section 7 -- Maintenance -- Family court has jurisdiction for trying cases both under Section 125 Cr.P.C. as well as under Section 20 of the Act of 1956.

(Para 50)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 20 – Family Courts Act, 1984 (66 of 1984), Section 7 -- Maintenance to major daughter u/s 125 Cr.P.c. granted by Family court – Challenge to – Section 20(3) of Hindu Adoptions and Maintenance Act, 1956 makes it statutory obligation of a Hindu to maintain his or her daughter, who is unmarried and is unable to maintain herself out of her own earnings or other property -- Section 125 Cr.P.C. limits the claim of maintenance of a child until he or she attains majority -- Held, since the order has been passed by the family court which has jurisdiction to entertain the application u/s 125 Cr.P.C. as well as application under Sub-clause (3) of Section 20 of Act of 1956, no purpose will be served in interfering with the revision and relegating the daughter to move a fresh application before the same court under different provision of law i.e. Section 20(3) of Act of 1956 -- No interference is required with the order impugned.

(Para 36, 51-53)

Hindu Marriage Act, 1955 (25 of 1955), Section 9, 13 – Divorce – Decree of restitution of conjugal rights – Appellant did not agree to cohabitation –  Upon failure of cohabitation for a period of one year after grant of decree of restitution of conjugal rights, the respondent held entitled to dissolution of the marriage.

(Para 6)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Divorce -- Adultery -- Adulterer as party – Requirement of -- Rejection of plaint -- Alleged adulterer is not a necessary party as a decree can be passed in his/ her absence -- Likewise, the adulterer is not a proper party since the issue concerning adultery can be adjudicated without making the adulterer a party to the cause -- Proof of adultery need not be conflated with who should be arrayed as a party to a divorce action – Application for rejection plaint dismissed.

(Para 2, 11, 11.1, 17)

B. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 11 – Divorce petition -- Rejection of plaint – Petition cannot be rejected in a piecemeal manner upon an application being moved under Order VII Rule 11 of CPC.

(Para 11, 15)

A. Hindu Succession Act, 1956 (30 of 1956), Section 6, 8 -- Coparcenary property -- Mutation was sanctioned in accordance with Section 8 of the Hindu Succession Act, 1956 -- The property can no longer be claimed to be a coparcenary.

(Para 4.5)

B. Indian Succession Act, 1925 (39 of 1925), Section 63 – Drafting of Will -- Attestation of Will – Presence of witnesses – Knowledge of contents – Requirement of -- Will is required to be executed in the presence of witnesses or they should receive acknowledgment from the testator that he has signed it.

-- Drafting of the Will and the typing of the Will in the presence of witnesses is not necessary.

-- Will shall be attested by two or more witnesses, each of whom has either seen the testator’s sign or affixed his mark to the Will or has received acknowledgment from the testator that he has signed the Will.

-- Both the witnesses are not required to be simultaneously present at one place.

-- Witnesses are not required to know the contents of the Will -- They are required to attest the signatures of the testator.

(Para 4.17)

C. Hindu Succession Act, 1956 (30 of 1956), Section 6, 8 -- Coparcenary property – The property not come through male lineal descendants -- In between, there was a civil court decree, transfer deed of some property – The Property was inherited u/s 8 of the Hindu Succession Act, 1956 and not as a coparcenary property – The property received from different sources including ownership by way of adverse possession as well as receipt of the property from aunt – Held, the property is not coparcenary.

(Para 4.21, 4.22)

Hindu Succession Act, 1956 (30 of 1956), Section 6 – Co-parcenery property – No son – Right to alienate -- Suit for declaration challenging the consent decree dated 22.07.1981 -- In the absence of any fraud having being played, the power to alienate the suit property despite being ancestral property could not be challenged as the property in his hand would be treated as separate property in the absence of a son.

(Para 1, 10-14)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce -- Cruelty -- Denial of the appellant/ wife for making physical relationship with respondent/ husband amounts to cruelty with respondent.

(Para 11)

A. Constitution of India, Article 226 -- Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of child -- Writ of Habeas Corpus – Maintainability of -- Habeas corpus is a prerogative writ which is an extraordinary remedy -- Recourse to such a remedy should not be permitted unless the ordinary remedy provided by the law is either not available or is ineffective -- In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody -- In child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law -- There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is summary in nature -- What is important is the welfare of the child -- Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court -- No hard and fast rule can be laid down insofar as the maintainability of a habeas corpus petition in the matters of custody of a minor child – It will depend on the facts and circumstances of each case.

(Para 16)

B. Constitution of India, Article 226 -- Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 -- Custody of child -- Writ of Habeas Corpus – It is not a case that the appellant-grandmother had illegally kept the custody of the minor child -- It is the respondent-father who had placed the custody of the minor child with the appellant-grandmother -- High Court ought not to have entertained the habeas corpus petition under Article 226 of the Constitution of India -- Compelling a minor child at the tender age of 7 years to withdraw from the custody of his grandparents with whom he has been living for the last about 5 years may cause psychological disturbances – Paramount interest of the welfare of the minor child would be required to be done -- Such an exercise would not be permissible in the extraordinary jurisdiction under Article 226 of the Constitution of India – Order of High Court set aside.

(Para 18-23)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 7 – Ceremonies of Hindu marriage -- Saptapadi -- Marriage certificate -- The word “solemnised” means to perform the marriage with ceremonies in proper form -- Unless and until the marriage is performed with appropriate ceremonies and in due form, it cannot be said to be “solemnised” -- Requisite ceremonies for the solemnisation of the Hindu marriage must be in accordance with the applicable customs or usage and where saptapadi has been adopted, the marriage becomes complete and binding when the seventh step is taken -- Unless the parties have undergone such ceremony, there would be no Hindu marriage according to Section 7 of the Act  -- Mere issuance of a certificate by an entity in the absence of the requisite ceremonies having been performed, would neither confirm any marital status to the parties nor establish a marriage under Hindu law.

(Para 16)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 7 -- Ceremonies of Hindu marriage – Marriage certificate – Contents of -- Marriage certificate states that ‘marriage’ between the parties has been solemnised according to Hindu Vedic rites and customs -- Certificate issued by Vadik Jankalyan Samiti (Regd.) in the absence of any indication as to the rites and customs that were performed and as to whether the requirements u/s 7 of the Act was complied with would not be a certificate evidencing a Hindu marriage in accordance with Section 7 of the Act.

(Para 17)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 7, 8 – Registration of marriage -- Legitimacy to the marriage -- If there has been no marriage in accordance with Section 7, the registration would not confer legitimacy to the marriage -- A certificate of marriage is a proof of validity of Hindu marriage only when such a marriage has taken place and not in a case where there is no marriage ceremony performed at all.

(Para 19)

D. Hindu Law – Hindu marriage -- Hindu marriage is a sacrament and has a sacred character -- Saptapadi in a Hindu marriage, according to Rig Veda, after completing the seventh step (saptapadi) the bridegroom says to his bride, “With seven steps we have become friends (sakha) -- May I attain to friendship with thee; may I not be separated from thy friendship” -- A wife is considered to be half of oneself (ardhangini) but to be accepted with an identity of her own and to be a co-equal partner in the marriage -- There is nothing like a “better-half” in a marriage but the spouses are equal halves in a marriage -- In Hindu Law, marriage is a sacrament or a samskara -- It is the foundation for a new family.

(Para 20)

Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Hindu Marriage Act, 1955 (25 of 1955), Section 12 – Annulment of marriage – Transfer of case – Kolkata to Jharkhand – Petitioner-wife has filed a petition for maintenance etc., the respondent-husband has filed the subject suit u/s 12 of the Hindu Marriage Act, 1955 for annulment of the marriage -- Grounds taken that wife is staying with her parents at Dhanbad, Jharkhand; she has no source of livelihood; she has apprehension of physical violence and mental torture in the event of visiting Alipore etc. – Case ordered to be transferred to the Family Court at Dhanbad, Jharkhand.

(Para 1-5)

Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Code of Civil Procedure, 1908 (V of 1908), Section 25 -- Transfer of divorce petition – Jharkhand to Bihar – Petitioner employed at Bengaluru -- Stated that it would be difficult for her to defend the subject-case at Ranchi, Jharkhand as she has no family support either at Bengaluru or at Ranchi -- It is specifically submitted that most of the time, she is working from Katihar, where her parental home is situated -- It would be expedient for the ends of justice to transfer the subject-case as asked for by the petitioner -- Transfer Petition allowed.

(Para 3-7)

A. HUF as proprietor -- Proprietorship is not governed by any statute, there is no bar on a Hindu Undivided Family becoming a proprietor.

(Para 15)

B. HUF -- One person cannot form a Hindu Undivided Family.

(Para 15)

C. Legal Services Authorities Act, 1987 (39 of 1987), Section 22C -- Loan to Proprietorship/ HUF – Exemption from payment of foreclosure charges to individual – Applicability of -- Application for loan signed with stamp “Proprietor/HUF” -- In the PAN details of applicant/borrower, details of the sole proprietor alone have been mentioned -- Application for loan was submitted for and on behalf of the Individual borrowers/ sole proprietorship and not in any capacity as a Hindu Undivided Family -- Merely because the wife and son become “Co-applicants”, it would not automatically term the borrowing as one by Hindu Undivided Family, which is a separate entity for assessment and the Hindu Undivided Family never submitted an application -- Meaning of “/” has to be read as “either/or”, hence, the interpretation of the stamp has to be in the context in which the application had been submitted -- Foreclosure charges along with the processing charges charged by the respondent/ Finance Company directed to be refunded to the petitioner with interest @ 6% per annum.

(Para 15-24)

D. Legal Services Authorities Act, 1987 (39 of 1987), Section 22C -- Permanent Lok Adalat -- Public Utility Services -- Authorised representative – Permissibility of -- There is no mandate in law that only the sole proprietor could have preferred an application before the Permanent Lok Adalat (Public Utility Services) and that he could not have authorised any other representative to pursue the application u/s 22-C of the Legal Services Authorities Act, 1987 -- No adverse inference can be drawn only on the strength that the proprietor has come before High Court whereas the application had been preferred before the Permanent Lok Adalat (Public Utility Services) through the authorised representative.

(Para 22)

Hindu Marriage Act, 1955 (25 of 1955), Section 13, 13-B -- Code of Civil Procedure, 1908 (V of 1908), Section 25 – Constitution of India, Article 142 -- Divorce – Transfer petition -- Settlement arrived between parties – Pending cases quashed -- Joint Application filed by the parties under Article 142 of the Constitution -- Terms of the settlement are lawful and there is no legal impediment in accepting the same -- Consequently, invoking jurisdiction under Article 142 of the Constitution of India, the marriage between the parties dissolved by a decree of divorce by mutual consent -- Transfer Petition disposed of.

(Para 8-16)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Constitution of India, Article 142 -- Divorce -- Irretrievable breakdown of marriage -- Parties are residing separately since February, 2011 -- No contact between them during long period of almost 13 years -- Respondent-wife is not even responding to the summons issued by the courts -- It seems she is no longer interested in continuing the marital relations with the appellant – Appeal allowed, marriage between the parties dissolved on the ground of irretrievable breakdown in exercise of powers under Article 142(1) of the Constitution of India.

(Para 15)

Hindu Marriage Act, 1955 (25 of 1955), Section 13B -- Constitution of India, Article 142 – Divorce by mutual consent – Waiver of period – Quashing of all pending proceedings-- Parties have recorded their statements before the Registrar(Judicial) on oath as regards compliance of conditions stipulated in Section 13-B of the Hindu Marriage Act -- Order waiving the timeframe stipulated in Section 13-B(2) of the Hindu Marriage Act, 1955 passed considering the fact that they have been living separately for more than two years -- Direction given that a decree be passed dissolving their marriage on mutual consent -- Cases involving the parties mainly arising out of their matrimonial dispute, quashed.

(Para 1, 2)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Punjab Courts Act, 1918 (6 of 1918), Section 41 – Regular Second Appeal – Substantial question of law -- In the States of Punjab and Haryana, it is the provisions of the Punjab Courts Act, 1918 would be applicable and, therefore, Section 100 CPC would not hold the field -- There would be no requirement of framing substantial questions of law in second appeal.

(Para 15)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6, 8 – Ancestral property – Once the property had been acquired by way of succession, it would lose its ancestral character.

(Para 16)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(1a) – Cruelty – Divorce -- False allegation of extra-marital affair -- Appellant-wife made serious and scandalous allegations regarding adulterous life of her husband, learned court below rightly arrived at a conclusion that false allegation of adultery constitutes mental cruelty -- No scope to interfere with the Decree of Divorce granted by the learned Family Court in favour of the respondent-husband – Appeal dismissed.

(Para 26-29)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(1a) -- Cruelty – False allegation of extra-marital affair -- Leveling disgusting accusations of indecent familiarity with a person outside wedlock and allegations of extra marital relationship constitute grave assault on the character, honour, reputation, status of the spouse -- Definitely such aspersions amount to worst form of insult and cruelty, which itself is sufficient to substantiate cruelty in law.

(Para 26)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(1a) -- Cruelty -- Though word “cruelty” has not been defined in the Hindu Marriage Act, but it has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations -- It is a course of conduct of one which is adversely affecting the other -- Cruelty can be mental, physical, intentional or unintentional -- If it is physical, it is a question of fact and degree, but if it is mental, the inquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse -- There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal – The absence of intention should not make any difference in the case, if any ordinary sense in human affairs, the act complained could otherwise be regarded as cruelty.

(Para 27)

D. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(1a) -- Cruelty -- Intention is not a necessary element in cruelty -- Relief to the party cannot be denied on the ground that there has been no deliberate or willful ill-treatment.

(Para 27)

A. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child – Welfare of child -- What is 'welfare of the child' depends upon several factors -- It has to be measured not only in terms of money and physical comfort, but also in view of the age of the child and the manner, in which, 'needs' can be fulfilled, more particularly, moral and ethical aspects of the shaping of the minor's personality -- Legal right or the financial affluence is not decisive, but the welfare of the minor is decisive for the claim of the custody.

(Para 8)

B. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child – Wish/ Desire/ Welfare of child -- It has to be borne in mind that the question ‘what is the wish/  desire of the child’ is different and distinct from the question ‘what would be in the best interest of the child’ --  Certainly, the wish/ desire of the child can be ascertained through interaction but then, the question as to ‘what would be in the best interest of the child’ is a matter to be decided by the Court, while taking into account, all the relevant circumstances.

(Para 9)

C. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of child – Welfare of child -- Unless and until, there is proven bad conduct of one of the parent, which makes him/ her unworthy to claim the custody of the child concerned, the question can and shall be decided, solely looking into the question as to, ‘what would be the best interest of the child concerned’.

(Para 9)

D. Guardians and Wards Act, 1890 (8 of 1890), Section 25 -- Custody of girl child – Visiting rights -- Aspect of age of the child weighs in the mind of the Court – Mother is qualified doctor, girl child being of 10-11 years is passing through the formative stage of life -- At this stage, the mother can be the best friend, guide and mentor for the growing daughter -- She is already residing with the mother and therefore, no further change in the arrangement, already existing, shall be beneficial to the child -- Girl child allowed to meet the petitioner, her father, twice a month.

(Para 10-16)

Punjab Civil Service Rules Vol. 2, Chapter VIII, Rule 8.35 -- Constitution of India, Article 226 -- Family pension – Karewa Marriage with Dewar – Effect of – Petitioner solemnized Kareva marriage with his brother-in-law (Devar) -- On request, the family pension was transferred in the name of son – Second husband also passed away and petitioner requested to restore her family pension -- Respondent-department denied family pension to the petitioner because she got re-married and stopped of her son because he got job – In Amrit Kaur @ Paramjit Kaur’s case 2014 (2) PLR 192 benefit of family pension was extended to widow of a deceased employee though said lady solemnized marriage with his brother-in-law -- Petition disposed of with a direction to the respondent-authorities to reconsider claim of the petitioner and pass an appropriate order within three months.

(Para 2-5)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18, 20 – Family Courts Act, 1984 (66 of 1984), Section 7 -- Court Fees Act, 1870 (7 of 1870), Section 7 – Ad-valorem court fee – Charge for maintenance -- Suit for grant of maintenance and for declaration that the plaintiffs have charge and creating charge over the properties and further for declaration that transfer deeds with regard to immovable property are illegal and null and void -- Proceedings initiated before the Family Court for the purpose of maintenance are petition in nature and not suit -- Petitioners are not liable to pay the ad valorem court fee.

(Para 2, 12, 15)

A. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Temporary injunction -- Before grant of temporary injunction, the plaintiff is required to satisfy three tests namely:-

i. Prima facie in his favour;

ii. Balance of convenience in this favour; and

iii. Irreparable loss and injury, if the injunction is not granted.

(Para 10)

B. Code of Civil Procedure, 1908 (V of 1908), Order 39 Rule 1 & 2 – Specific Relief Act, 1963 (47 of 1963), Section 41(h) – Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Temporary injunction against Karta --  Appellate court held that plaintiff cannot restrain the karta (his father) to alienate the property -- Moreover, the defendant No.1 disputes the fact that plaintiff is his biological son -- It would not be appropriate to restrain the defendant No.1 from alienating the property particularly when the doctrine of lis pendens is applicable in view of Section 52 of the Transfer of Property Act, 1882 and the plaintiff shall not suffer any prejudice if alienation is made during the pendency of the suit -- No ground to interfere is made out – Revision dismissed.

(Para 12, 13)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce petition -- Burdon of proof – Nature of evidence -- Degree of probability is not one beyond reasonable doubt, but of preponderance.

(Para 10)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce -- Cruelty – Long separation – Allegation of adultery -- Marriage solemnized in the year 2002 -- Disputes started between the parties from 2006 onwards -- Appellant–Wife registered a complaint u/s 498A of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 -- Respondent-Husband had questioned the character of the appellant-Wife -- Respondent-Husband also demanded a medical examination of the appellant–Wife, alleging she was living in adultery and had given birth to a child during the period of non-cohabitation -- Said request was nullified by the Order of the High Court – For a decade and half, the parties have been living separately -- Marriage does not survive any longer, and the relationship was terminated otherwise except by a formal decree of divorce – Status quo continues, awaiting an approval from the Court – Decree of divorce allowed.

(Para 16-20)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13A -- Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Transfer of matrimonial dispute case – While considering the transfer of a matrimonial dispute/case at the instance of the wife, the Court is to consider family condition of the wife, custody of the minor child, economic condition of the wife, her physical health and earning capacity of the husband and most important, convenience of the wife i.e. she cannot travel alone without assistance of a male member of her family, connectivity of the place as well as bearing of the litigation charges and travelling expenses.

(Para 5)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13A -- Code of Civil Procedure, 1908 (V of 1908), Section 24 -- Transfer of divorce petition – Karnal to Sonipat -- Petitioner-wife residing with three minor children at Sonipat – Petition filed u/s 13-A of the Hindu Marriage Act, pending before the Family Court, Karnal transferred to the competent Court of jurisdiction at Sonepat.

(Para 6)

Hindu Succession Act, 1956 (30 of 1956), Section 6, 8 – Co-parcenery property – Notional partition -- Testamentary or intestate succession -- When a male Hindu died after the commencement of the Act of 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in that property shall devolve by survivorship upon the surviving members of the coparcenary -- If the deceased left behind him a surviving female relative specified in Class I of the Schedule or a male relative specified in that class who claimed through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act of 1956 and not by survivorship -- Interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim such partition or not.

(Para 11)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18 -- Code of Civil Procedure, 1908 (V of 1908), Order 18 Rule 17A, Order 41 Rule 27, Section 151 – Maintenance @ Rs.5,000/- per month -- Additional evidence in appeal -- Notwithstanding the deletion of Order 18 Rule 17-A of CPC, the Court has inherent powers to permit parties to lead additional evidence on such terms as may appear to be just – One opportunity granted subject to costs of Rs.5,000/- -- Respondent shall also be given an effective opportunity to rebut the evidence produced by the petitioner by way of additional evidence, if so required.

(Para 5)

Code of Civil Procedure, 1908 (V of 1908), Order 21 Rule 32, Section 25 – Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of Conjugal rights – Transfer petition – Dadra & Nagar Haveli to Gujarat -- Non-participation in case – Effect of -- It cannot be said that non-participation in a proceeding of a restitution of conjugal rights, of the party who seeks for transfer of such proceeding is absolutely impact-less infact, it has civil consequences – Considering the distance between place of proceedings and place of residence of wife, transfer petition allowed.

(Para 3)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce – Impotency -- Inability to bear a child – Ground of -- Inability to bear a child is neither impotence nor any ground for dissolving the marriage -- Divorce is not provided as per the Hindu Marriage Act in such circumstances -- Family Court has rightly dismissed the matrimonial case of the appellant seeking divorce -- Appeal dismissed.

(Para 11)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Cheque by Karta of HUF – Summoning of members of HUF – Quashing of complaint/ summoning order -- When cheque was issued by “karta” in the name of HUF and liability of the HUF is not disputed, in the absence of “Karta”, it cannot be denied that liability of HUF on account of cheque issued in its name still remains, which will obviously devolve on its members or upon the one who shall become “Karta” – At this stage, pending proceedings before the trial Court cannot be quashed -- Petition dismissed.

(Para 2-13)

Hindu Succession Act, 1956 (30 of 1956), Section 8 -- Indian Succession Act, 1925 (39 of 1925), Section 372 – Retiral benefits of deceased employee – Legal heirs -- Succession certificate -- Deceased nowhere mentioned in his entire service record of the petitioner being his wife – Retiral benefits can be settled only after a competent Civil Court gives a declaration -- Procedure for obtaining succession certificate in this regard has been laid down under the Indian Succession Act, 1925 as well as Hindu Succession Act, 1956 -- Petitioner would have to get the said competent declaration from the competent court.

(Para 4, 6)

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 – Co-parcenery property -- Right and liabilities of co-parceners daughter – She carries the same liabilities and disabilities as a son does -- Coparceners have right to alienate for consideration, to demand partition, to joint possession and usufruct, to maintenance, to make Will of one’s interest, to restrain unauthorized disposal, to surrender one’s interest and to survivorship -- Similarly, every coparcener is liable to repay the loans which were raised for the purposes of the family -- This obligation exists to the extent of his own interest in the joint family property -- His personal or separate property is not bound by this obligation.

(Para 8)

B. Odisha Land Reforms Act, 1960 (16 of 1960), Section 19(1)(c) -- Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Co-parcenery property -- Right and liabilities of co-parceners daughter – A woman will have an equal share in undivided family property -- Sons and daughters of a coparcener become coparceners by virtue of birth -- A female heir or male relative of such female heir have same rights and liabilities – Claims Commission has committed error apparent on the face of the record by passing the order impugned denying benefit to the daughter – Daughter has a right to get the property of her father from the date the Amendment Act came into force, i.e., in 2005 – Order set aside, matter remitted back to the Claims Commission for its re-adjudication by giving opportunity of hearing to all the parties.

(Para 10-13)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Desertion --  Divorce petition by husband -- Husband and his witnesses tried to emphasize the fact that respondent-wife was of quarrel some nature and had left the matrimonial home of her own and despite efforts by husband and his family members, she did not return back -- Statements of husband and his father as PW-1 and PW-2 were in general terms without specifying any particular incident, which cannot be held sufficient for discharging the burden of the husband as petitioner.

(Para 12)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Desertion --  Divorce petition by husband -- Long separation – Respondent-wife residing separately from her husband since 1995 – Respondent-wife alleged that the husband had married another lady, and had begotten two sons from such relationship -- In his examination-in-chief, husband has not uttered even a single word regarding such allegation -- He simply denied the suggestions made to him during his cross-examination that he had married another woman named ‘L’ and had two children from her – Respondent-wife and her witnesses had been categoric in asserting the factum of husband having married another lady -- Standard of proof required in matrimonial disputes is of preponderance of evidence – Thus respondent had justifiable ground to live separately as no wife can be forced to live in matrimonial home with husband keeping another lady with him -- Hence the ground of desertion not proved.

(Para 13-16)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(iii) – Divorce -- Unsoundness of mind -- Standard of proof -- Standard of proof in such case is very high -- Depending on the social set up of the parties and surroundings in which the parties live, the allegations can also be established by preponderance of evidence.

(Para 15)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(iii) – Divorce -- Unsoundness of mind -- Mental disorder cannot be a sole ground to grant decree of divorce, but it must further be proved that it is of a such nature as the appellant/ husband cannot reasonably expected  to live with the respondent -- There has been abnormal aggressive and serious irresponsible conduct done by the wife -- Husband cannot live with the wife because of periodical mental illness, which is rash behaviour, order to stay by force would amount to mental cruelty – Photographs admitted to be that of wife reflects that it was an aggressive expression, not normal, which corroborates the statement given by the husband -- Marriage solemnised between the parties dissolved by decree of divorce.

(Para 18, 19)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(iii), 25 – Divorce -- Permanent alimony -- Husband getting salary of Rs.40,000/- per month, daughter is with the appellant/husband -- Considering the inflation; circumstances; and also to avoid multiplicity of the proceedings, court deemed it appropriate that Rs.8,000/- per month maintenance to the wife henceforth as a permanent alimony -- Deduction shall be made from source and would be paid to the account of wife -- As and when the salary is reciprocally increased, subsequently the amount of maintenance shall also be increased proportionally to the percent and extent of increase in future salary.

(Para 20, 21)

A. Constitution of India, Article 142 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievable breakdown of marriage -- Grant of divorce on the ground of irretrievable breakdown of marriage by Supreme Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties.

(Para 33)

B. Constitution of India, Article 142 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievable breakdown of marriage – Factors to be considered

-- Period of separation should be sufficiently long, and anything above six years or more will be a relevant factor.

-- But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children.

-- Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations – Exercise of jurisdiction under Article 142(1) of the Constitution of India is situation specific.

Some of the factors mentioned can be taken as illustrative, and worthy of consideration.

(Para 33)

C. Constitution of India, Article 142 – Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(i-a), 13B -- Divorce -- Irretrievable breakdown of marriage – Held, decisions of Supreme Court in Manish Goel (2010) 4 SCC 393, Neelam Kumar (2010) 13 SCC 298, Darshan Gupta (2013) 9 SCC 1, Hitesh Bhatnagar (2011) 5 SCC 234, Savitri Pandey and others (2002) 2 SCC 73 have to be read down in the context of the power of Supreme Court given by the Constitution of India to do ‘complete justice’ in exercise of the jurisdiction under Article 142(1) of the Constitution of India – Held, power to do ‘complete justice’ is not fettered by the doctrine of fault and blame, applicable to petitions for divorce under Section 13(1)(i-a) of the Hindu Marriage Act -- Court’s power to dissolve marriage on settlement by passing a decree of divorce by mutual consent, as well as quash and set aside other proceedings, including criminal proceedings, remains and can be exercised.

(Para 40)

D. Constitution of India, Article 32, 142, 226 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievable breakdown of marriage:

Whether a party can directly canvass before Supreme Court the ground of irretrievable breakdown by filing a writ petition under Article 32 of the Constitution.

-- In Poonam’s case (2010) 4 SCC 460, a two judges’ bench of Supreme Court has rightly held that any such attempt must be spurned and not accepted, as the parties should not be permitted to file a writ petition under Article 32 of the Constitution of India, or for that matter under Article 226 of the Constitution of India before the High Court, and seek divorce on the ground of irretrievable breakdown of marriage.

-- Parties should not be permitted to circumvent the procedure by resorting to the writ jurisdiction under Article 32 or 226 of the Constitution of India, as the case may be.

-- Secondly, and more importantly, relief under Article 32 of the Constitution of India can be sought to enforce the rights conferred by Part III of the Constitution of India, and on the proof of infringement thereof -- Judicial orders passed by the court in, or in relation to, the proceedings pending before it, are not amenable to correction under Article 32 of the Constitution of India.

Therefore, a party cannot file a writ petition under Article 32 of the Constitution of India and seek relief of dissolution of marriage directly from Supreme Court.

(Para 41)

E. Constitution of India, Article 32, 142, 226 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievable breakdown of marriage:

Scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India.

“This question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered in terms of paragraphs 8 to 13, inter alia, holding that this Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. While deciding whether to exercise discretion, this Court must consider the substantive provisions as enacted and not ignore the same, albeit this Court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a ‘cause or matter’.”

(Para 42(i))

F. Constitution of India, Article 32, 226 142 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce – Quashing of Ancillary proceedings -- Scope of Article 142 of Constitution of India :

Power to quash and dispose of other/connected proceedings under the Domestic Violence Act, Section 125 of the Cr.P.C., or criminal prosecution primarily under Section 498-A and other provisions of the I.P.C. under Article 142 of the Constitution of India.

Held, Supreme Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.

(Para 42(ii))

G. Constitution of India, Article 32, 226 142 – Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Irretrievable breakdown of marriage:

Whether Supreme Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?

“…… this question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.”

(Para 42(iii))

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Cruelty -- Irretrievable breakdown of a marriage -- A marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides -- A marriage which has broken down irretrievably, spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty -- It is therefore a ground for dissolution of marriage u/s 13 (1) (ia) of the Act.

(Para 16)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Cruelty -- Irretrievable breakdown of a marriage – Both barely stayed together as a couple for four years, living separately for the last 25 years, no child out of the wedlock -- Matrimonial bond is completely broken and is beyond repair -- Long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act – Marriage dissolved.

(Para 18, 19)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia), 25 -- Divorce -- Appellant/husband is an employee in Life Insurance Corporation, and his present salary is more than Rs.1,00,000/- per month – Court deemed it fit and proper that he gives an amount of Rs.30,00,000/- to the respondent/wife as permanent alimony.

(Para 19, 20)

Succession law -- Disinheritance notice in newspaper – Registered Will bequeathing equal share to plaintiff and defendant -- Courts below found that such notice was not sufficient to disinherit defendant from the property -- Will Ex.D1, duly executed by the testator/ father was not revoked by him during his life time – Held, findings given by the Courts below are based upon proper appreciation and correct interpretation of law.

(Para 10-12)

Hindu Succession Act, 1956 (30 of 1956), Section 14, 15(1)(c) – Arrears of maintenance – Death of wife – Mother of wife impleaded as party -- In view of Section 15(1)(c) of the Hindu Succession Act, mother is entitled to the property of her daughter -- Arrears of maintenance accrued till the death – Ld. Judge rightly impleaded the mother of the deceased daughter (wife of the petitioner) in the petition for arrears of maintenance – Revision against impleadment as party dismissed.

(Para 1, 2, 15)

Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 16 – Adoption deed – Proof of adoption – Panchayatnama (Ex.P1), produced as evidence of the alleged adoption, is neither signed by the adoptive parents nor by the natural parents -- In the absence of the signatures of the adoptive parents as well as the natural parents on Ex.P1, the same cannot be treated as a document of adoption -- In the job card issued by MGNREGA (Ex.DW6/A), the plaintiff-appellant is recorded as being the son of MS – Date of registration much after the alleged adoption by the deceased – Ration card (Ex.D4) also shows the plaintiff-appellant as son of MS -- In the absence of the adoption deed and in view of the evidence led by the defendant-respondents, the plaintiff-appellant cannot be held to be the adopted son of deceased

(Para 8)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Indian Evidence Act, 1872 (1 of 1872), Section 112 – Divorce on the ground of desertion and cruelty -- DNA test of child – Legitimacy of child – Presumption -- Divorce petition  by husband – In pleading husband did not deny access to wife – Admitted that he used to stay with his wife during weekends -- Presumption u/s 112 of Evidence Act gets attracted -- Baby was born to the couple having access to each other and during subsistence of valid marriage between them -- It is conclusive proof of baby’s legitimacy -- Paternity of the child cannot be allowed to be ascertained in the manner sought by the husband -- He cannot be allowed to fill up the lacuna, if any, in his evidence by seeking to conduct the DNA test of the child and the parties.

(Para 5)