A. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Ancestral property -- Plaintiff has miserably failed to prove the nature and character of the property as ancestral for want of (i) Original excerpt (ii) Pedigree table – Bare pleading in the plaint that “S” had sold the ancestral property and purchased another property for proving the property to be ancestral is not sufficient -- Plaintiff ought to have proved that he was fourth generation in lineage.

(Para 15-17)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Ancestral property -- Property not ancestral -- Collusive decree – Challenge to – If the property has not been proved to be ancestral, the suit instituted against the father during his life time challenging the collusive decree suffered by him is not maintainable.

(Para 21)

Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Co-parcenery property – Partition of land during lifetime of father – Declaration of -- Appellant has set up a case that the land in question was Joint Hindu family, coparcenary, ancestral property in the hands of her father -- Jamabandies, mutation and pedigree table indeed do not advance the case of the appellant to prove the ancestral nature of the land -- It does not reflect devolution of the property from three immediate paternal ancestors -- Appellant had sought declaration against her father who was alive at that time whereas it is a settled position that no son or daughter being coparcener can file a suit against his/her father for partition during the life time of the father.

(Para 11)

Hindu Marriage Act, 1955 (25 of 1955), Section 13-B – Divorce by mutual consent – Waiver of six months -- Parties have settled their disputes because the marriage between them has broken -- Disputes have been settled by way of lump-sum, for, the wife would not be entitled to take any maintenance from the second party -- It has also been stated that there were no chances of reconciliation or rapprochement -- All the aforementioned facts are sufficing the principles culled out in the Amardeep Singh’s case, 2017 (4) R.C.R. (Civil) 608 -- Period of six months is waived -- Trial Court is directed to proceed with the matter in accordance with law.

(Para 6,7)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 7, 12 – Void marriage – Decree of – Husband stating that photographs of marriage clicked by ‘P’ and ‘M’ – ‘M’ has not been examined, ‘P’ examined however, after tendering his affidavit towards his examination-in-chief, he never turned up for his cross-examination and thus his statement remained incomplete – Nor is there any scientific evidence to establish that the aforesaid photographs are genuine -- Affidavit of wife before Human right Commission within a week stating that she never agreed for so-called marriage and that she is living happily with her parents causes a dent in case of husband -- No date of marriage is mentioned in the certificate -- Held, husband has been unable to establish performance of ceremonies of the marriage especially the ceremony of Saptapadi -- Neither the photographs relied upon by the appellant stand proved, nor there is any testimony of the Priest who had allegedly performed ceremonies of the marriage – Finding of Ld. Lower court to the effect that there was not a valid marriage between the parties, upheld.

(Para 8-10)

B. Indian Evidence Act, 1872 (1 of 1872), Section 137 – Cross-examination of witness – Requirement of -- A statement bereft of cross-examination is an incomplete statement and cannot be read in evidence.

(Para 8)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 8 – Special Marriage Act, 1954 (43 of 1954), Section 15 -- Marriage Registration Certificate – Whether proof of valid marriage -- Marriage Registration Certificate would be of no consequence when the appellant has been unable to establish the essential ceremonies of the marriage -- When factum of marriage is disputed, then registration of marriage under the Hindu Marriage Act or the Special Marriage Act cannot constitute proof of a valid marriage.

(Para 10)

Hindu Marriage Act, 1955 (25 of 1955), Section 13, 24 – Divorce petition -- Maintenance Pendentlite -- ITR of Advocate-husband -- Income Tax Returns may not reflect the true income -- Minimum income of husband cannot be less than Rs.1,00,000/- per month -- Wife is highly qualified, she was previously working in Australia – Order passed by learned Addl. District Judge disallowing any maintenance pendente lite is set aside -- Husband is ordered to pay Rs.25,000/- per month as maintenance pendente lite to the wife from the date of filing of the application until she is shown to have got a job in private/public sector or till the decision of the divorce petition, whichever is earlier.

(Para 3-13)

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 – Co-parcenery right of daughter -- Amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth -- The section uses the words in the same manner as the son -- It should therefore both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth -- Right to partition has not been abrogated -- Right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.

(Para 24-26)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 – Co-parcenery right of daughter -- Suit for partition was filed in the year 2002 -- However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007 -- Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court.

(Para 27,28)

A. Hindu Succession Act, 1956 (30 of 1956), Section 14 – Absolute property/Restricted estate of Hindu Female -- Ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a “restricted estate” in the property.

(Para 41)

B. Hindu Succession Act, 1956 (30 of 1956), Section 14 – Absolute property/Restricted estate of Hindu Female -- Where property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a “restricted estate” in the property.

(Para 41)

C. Hindu Succession Act, 1956 (30 of 1956), Section 14 – Absolute property/Restricted estate of Hindu Female -- Self acquired house – Life interest to wife by Will – Right of -- Case of wife does not fall under Section 14 (1) of the Act but it squarely falls under Section 14 (2) of the Act -- Wife received only “life interest” in the suit house by the Will from her late husband and such “life interest” was neither enlarged nor ripened into an absolute interest in the suit house and remained “life interest”, i.e., “restricted estate” till her death under Section 14(2) of the Act. For the reasons:--

--       First, the testator being the exclusive owner of the suit house was free to dispose of his property the way he liked because it was his self earned property.

--       Second, the testator gave the suit house in absolute ownership to his son and the daughter and conferred on them absolute ownership -- At the same time, he gave only “life interest” to his wife, i.e., a right to live in the suit house which belonged to son and daughter. Such disposition, the testator could make by virtue of Section 14 (2) read with Section 30 of the Act.

--       Third, such “life interest” was in the nature of “restricted estate” under Section 14(2) of the Act which remained a “restricted estate” till her death and did not ripen into an “absolute interest” under Section 14(1) of the Act. In other words, once the case falls under Section 14(2) of the Act, it comes out of Section 14(1). It is permissible in law because Section 14(2) is held as proviso to Section 14(1) of the Act.

--       Fourth, the effect of the Will once became operational after the death of testator, the son and the daughter acquired absolute ownership in the suit house to the exclusion of everyone whereas the wife became entitled to live in the suit house as of right. Wife became entitled in law to enforce her right to live in the suit house qua her son/daughter so long as she was alive. If for any reason, she was deprived of this right, she was entitled to enforce such right qua son/daughter but not beyond it. However, such was not the case here.

--       Fifth, the testator had also given his other properties absolutely to his wife which enabled her to maintain herself. Moreover, a right to claim maintenance, if any, had to be enforced by the wife. She, however, never did it and rightly so because both were living happily. There was, therefore, no occasion for her to demand any kind of maintenance from her husband.

--       Sixth, it is a settled principle of law that the “life interest” means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the “life interest” only during his/her lifetime which is extinguished on his/her death. Such is the case here. Her “life interest” in the suit house was extinguished on her death.

(Para 42-50)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 23 – Divorce by mutual consent -- Parties should be residing separately for at least a period of one year preceding the institution of the petition -- What is expected and required of the Court, is to ascertain as to whether one year has actually passed by since the parties have been residing separately and have not been cohabitating -- Court is expected and required to satisfy itself that the said assertion was correct and there is no connivance or collusion and the consent has not been obtained by force, fraud or undue influence.

(Para 16)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 23 – Divorce by mutual consent -- Section 23 of the H.M. Act relates to the power and duty of the Court -- It puts fetters upon the relief which can be granted under the H.M. Act -- Proceedings under the H.M. Act have thus been put on a higher pedestal as compared to ordinary suits as regards the standard of proof required for establishing the ground for relief which should be beyond reasonable doubt and that too to the satisfaction of the Court – Even if a party is able to establish the ground for granting relief, the said relief can be denied in a case where the Court is satisfied that the said party is taking advantage in any manner of his or her own wrong or disability and/or has connived, colluded, condoned the act, cruelty complained of or improperly delayed or had been accessory to in any manner for the purpose of getting relief.

(Para 17)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B, 23 – Divorce by mutual consent – Setting aside of -- Marriage of the parties was solemnised on 02.03.2008 -- As per petition, they had been living separately since June, 2009 -- Male child was born on 10.12.2009 -- Delivery of the said child took place in Amritsar and husband was the person who had got her admitted there and had given the residential address of Amritsar, which is the matrimonial house -- Entry of birth of the child of the parties in the Municipal records of Amritsar – Wife was thrown at the gate of her parental house on the night intervening 26/27.04.2011 after snatching her son, FIR was registered – Held, on the day when the petition was presented i.e. 18.09.2010 and the statements on first motion were recorded, one year had not elapsed since they were living separately -- Rather even on the second motion stage i.e. 21.03.2011 when the statements were recorded, they were residing together in the matrimonial house -- Mandate u/s 13-B of the H.M. Act having not been fulfilled, the judgment and decree dated 21.03.2011 cannot sustain and deserves to be set aside.

(Para 18-24)

A. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 3 – Customs – Ingredients to prove -- As per the settled law under Section 3(a) the Act, the following ingredients are necessary for establishing a valid custom --

a.       Continuity.

b.       Certainty.

c.       Long usage.

d.       And reasonability.

(Para 13)

B. Customs – Proof of –

--     Customs, when pleaded are mostly at variance with the general law, they should be strictly proved.

--     Generally, there is a presumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the plea of existence of any custom has to discharge the onus of proving it, with all its requisites to the satisfaction of the Court in a most clear and unambiguous manner.

 --    It should be noted that, there are many types of customs to name a few-general customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depend on the type and the extent of usage. It must be shown that the alleged custom has the characteristics of a genuine custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant.

(Para 13)

C. Customs – Judicial decisions – Reliance upon – A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment -- When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.

(Para 14)

D. Customs – Pleadings of – Evidence of -- Appellant did not plead in his written statement about existence of any custom as such -- Parties to a suit are always governed by their pleadings -- Any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties.

(Para 18)

E. Adoption – Evidence of -- Burden of proving adoption is a heavy one and if there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence.

(Para 19)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce -- Mental cruelty – Non-appearance in court – Respondent-wife did not appear before the trial court after filing of written statement, did not respond to the request made by the High Court for personal appearance -- In spite of service of Notice, the Respondent did not show any interest to appear in Supreme Court also -- Conduct of the Respondent by itself would indicate that she is not interested in living with the Appellant --  Refusal to participate in proceeding for divorce and forcing the appellant to stay in a dead marriage would itself constitute mental cruelty

(Para 7)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Family Courts Act, 1984 (66 of 1984), Section 27 – Constitution of India, Article 142 -- Appellant and the Respondent have been living separately for more than 17 years and it will not be possible for the parties to live together and there is no purpose in compelling the parties to live together in matrimony -- Daughter of the Appellant and the Respondent is aged about 24 years and her custody is not in issue -- In order to do complete justice between the parties, divorce allowed under Article 142.

(Para 8,9)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Section 24 – Transfer of divorce petition -- Children born out of the wedlock are being taken care of by the respondent-husband and family residing at Ludhiana -- In case the petition is transferred from the Court at Ludhiana to a Court of competent jurisdiction at Yamuna Nagar, the children would be the sufferer in absence of their father -- It is appropriate if the petition is allowed to proceed at the place where the same is filed.

(Para 5)

A. Constitution of India, Article 142 – Notice on limited issue – Power of Court to adjudicate -- When the court initially issues a limited notice but subsequently grants leave, the scope of the appeal does not raise a matter of jurisdiction but of judicial discretion -- Since it constitutes a matter of discretion and not of jurisdiction, the guiding principle has to be the advancement of substantial justice.

(Para 17)

B. Hindu Succession Act, 1956 (30 of 1956), Section 29 -- Principle of escheat – Section 29 comes into operation only on there being a failure of heirs -- Failure means a total absence of any heir to the person dying intestate -- When a question of escheat arises, the onus rests heavily on the person who asserts the absence of an heir qualified to succeed to the estate of the individual who has died intestate to establish the case.

(Para 18)

C. Hindu Succession Act, 1956 (30 of 1956), Section 29 -- Principle of escheat – Even in a situation where a founder or his line of heirs is extinct, and the properties escheat to the state, the state which receives a dedicated property is subject to the trust and cannot treat it in the manner of a secular property.

(Para 18)

D. Succession of Math/Religious Institution -- Court must also bear in mind the settled principle that unless the founder of a math or religious institution has laid down the principle governing succession to the endowment, succession is regulated by the custom or usage of the institution.

(Para 19)

E. Hindu Succession Act, 1956 (30 of 1956), Section 29 -- Principle of escheat – Escheat is a doctrine which recognises the state as a paramount sovereign in whom property would vest only upon a clear and established case of a failure of heirs -- This principle is based on the norm that in a society governed by the rule of law, the court will not presume that private titles are overridden in favour of the state, in the absence of a clear case being made out on the basis of a governing statutory provision.

(Para 21)

F. Hindu Succession Act, 1956 (30 of 1956), Section 29 -- Principle of escheat – Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Escheat – Power of Collector to adjudicate – Jurisdiction of civil Court -- To allow administrative authorities of the state, including the Collector, to adjudicate upon matters of title involving civil disputes would be destructive of the rule of law -- Civil court has the jurisdiction to adjudicate upon all matters involving civil disputes except where the jurisdiction of the court is taken away, either expressly or by necessary implication, by statute -- Adjudication on titles must follow recourse to the ordinary civil jurisdiction of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure 1908.

(Para 20, 21)

A. Hindu Widow’s Remarriage Act, 1856 (15 of 1856), Section 2 – Death of Husband – Re-marriage of widow in 1952 – Succession of -- Status of – All rights and interests, which any widow may have in her deceased husband's property or to his lineal successors shall upon her re-marriage cease and determine as if she had then died -- Thus, on remarriage, the widow is divested with any right which she may have in the husband's property or property of husband's lineal successors.

(Para 11)

B. Hindu Succession Act, 1956 (30 of 1956), Section 8 -- Hindu Widow’s Remarriage Act, 1856 (15 of 1856), Section 2 – Widow re-married in 1952 – Son from first husband died in year 1972 – Succession as a mother -- Right of -- Succession shall be governed by Section 8 of the Hindu Succession Act, 1956 -- By Section 8, the mother being described in Class I of the Schedule shall inherit the property excluding other heirs -- Even after remarriage, she shall continue to be the mother of his son, who was born to her from her first husband -- Succession under Section 8 to the estate of son shall not be controlled or prohibited by Section 2 of the Hindu Widow's Remarriage Act, 1856 -- Section 2 shall not govern or regulate any future succession to which she may be entitled under law.

(Para 12)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B – Divorce by mutual consent – Waiver of 6 months for second motion -- Whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations -- Period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

(Para 1, 18-20)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B – Divorce by mutual consent – Waiver of 6 months for second motion -- Held, where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

i)     the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii)    all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii)   the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv)    the waiting period will only prolong their agony.

Waiver application can be filed one week after the first motion giving reasons for the prayer for waiver -- If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

(Para 1, 18-20)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13-B – Divorce by mutual consent – Procedure of -- In conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.

(Para 22)

A. Specific Relief Act, 1963 (47 of 1963), Section 34 -- Hindu Succession Act, 1956 (30 of 1956), Section 6 – Joint property – Sale of -- Suit for declaration as to joint possession – Maintainability of -- Suit against the son who claims to have got the exclusive rights over the joint property by way of some transfer deeds allegedly executed by the father -- Plaintiffs challenged those transfer deeds to reclaim the status of the property as a joint property and therefore, the claim for joint possession over the property -- Suit was very much maintainable.

(Para 11)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34, 42 -- Ancestral property – Jamabandi entries – Relevancy of – Once jamabandies regarding the ownership, showing the successive inheritance of the parties, are proved on record, the nature of the property have to be deemed to have been proved as per the revenue record – Jamabandi is the statutory revenue record of rights – Even the certified copy of the same is admissible in evidence.

(Para 12)

C. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34, 42 -- Ancestral property – Jamabandi entries – Relevancy of – Appellant has failed to point out any transaction of transfer, sale, Will or any other instrument of transfer regarding the suit property in favour of his father -- On one hand revenue record shows the property to be ancestral property and on the other hand, the appellant has not shown any transaction in favour of his father by which the property might have been acquired by him as self-acquired property – Held, it is conclusively proved on record that the property in question is the ancestral property between the parties.

(Para 13)

A. Family Courts Act, 1984 (66 of 1984), Section 9 – Family Court – Settlement of – Duty of -- It a mandatory duty of the Family Court to make efforts for settlement.

(Para 7)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 23, 26 -- Custody of children -- It is mandatory for the Court to ascertain the wish of the children as well before taking a decision on the custody.

(Para 14)

C. Family Courts Act, 1984 (66 of 1984), Section 9 – Hindu Marriage Act, 1955 (25 of 1955), Section 23 -- Reconciliation – Meaning of -- Principal thrust of the law in family matters is to make an attempt for reconciliation before processing the disputes in the legal framework -- Reconciliation is not mediation -- Neither is it conciliation -- In mediation, the role of the mediator is only to evolve solutions whereas in reconciliation, the duty-holders have to take a proactive role to assist the parties to reach an amicable solution -- In conciliation, the conciliator persuades the parties to arrive at a solution as suggested by him in the course of the discussions -- In reconciliation, the duty-holders remind the parties of the essential family values, the need to maintain a cordial relationship, both in the interest of the husband and wife or the children, as the case may be, and also make a persuasive effort to make the parties reconcile to the reality and restore the relationship, if possible.

(Para 17)

D. Family Courts Act, 1984 (66 of 1984), Section 9 -- Hindu Marriage Act, 1955 (25 of 1955), Section 23 -- Family matters – Reconciliation – Concept of -- The Family Courts Act expects the duty-holders like the court, counsellors, welfare experts and any other collaborators to make efforts for reconciliation -- However, reconciliation is not always the restoration of status quo ante; it can as well be a solution as acceptable to both parties.

(Para 17)

E. Family Courts Act, 1984 (66 of 1984), Section 9 -- Hindu Marriage Act, 1955 (25 of 1955), Section 23 -- Reconciliation – Concept of -- Role of a counsellor in Family Court is basically to find out what is the area of incompatibility between the spouses, whether the parties are under the influence of anybody or for that matter addicted to anything which affects the normal family life, whether they are taking free and independent decisions, whether the incompatibility can be rectified by any psychological or psychiatric assistance etc. -- Counsellor also assists the parties to resume free communication.

(Para 18)

F. Family Courts Act, 1984 (66 of 1984), Section 9 -- Hindu Marriage Act, 1955 (25 of 1955), Section 23 -- Custody of child -- Reconciliation – Concept of -- In custody matters also the counsellor assists the child, if he/she is of such age, to accept the reality of incompatibility between the parents and yet make the child understand that the child is of both parents and the child has a right to get the love and affection of both the parents and also has a duty to love and respect both the parents etc. -- Essentially, the counselor assists the parents to shed their ego and take a decision in the best interest of the child.

(Para 18)

G. Family Courts Act, 1984 (66 of 1984), Section 9 -- Hindu Marriage Act, 1955 (25 of 1955), Section 13, 22, 23, 26 – Code of Civil Procedure, 1908 (V of 1908), Order 32A – Matrimonial dispute -- Reconciliation by video-graphy – Viability of -- It is difficult in video conferencing to maintain confidentiality -- Footage in video conferencing becomes part of the record whereas the reconciliatory efforts taken by the duty-holders are not meant to be part of the record -- In reconciliatory efforts, physical presence of the parties would make a significant difference -- Having regard to the very object behind the establishment of Family Courts Act, 1984, to Order XXXIIA of the Code of Civil Procedure and to the special provisions introduced in the Hindu Marriage Act under Sections 22, 23 and 26, the directions issued by Supreme Court in Krishna Veni Nagam 2017(3) L.A.R. 5 need reconsideration on the aspect of video conferencing in matrimonial disputes -- Matter requires consideration by a larger Bench.

(Para 19, 20)

Hindu Succession Act, 1956 (30 of 1956), Section 14 -- Specific Relief Act, 1963 (47 of 196), Section 37 – Permanent injunction – Husband purchasing property in the name of wife – Wife’s right as absolute owner -- Contention of husband was that since he purchased the suit property, i.e, residential house, spending money from his own pocket for his wife-defendant/respondent, she cannot be said to be an absolute owner – Held, right of defendant-respondent qua the suit property by way of sale deed was not a restricted one in any manner – Respondent-wife would be the absolute owner of the suit property in terms of the provisions of law contained in Section 14 of the Hindu Succession Act, 1956 -- Plaintiff-appellant could not have sought an injunction against true owner. Om Prakash Sharma @ O.P. Joshi’s case 2015 (4) RCR (civil) 758 relied.

(Para 7,11)

Hindu Succession Act, 1956 (30 of 1956), Section 25 – Indian Penal Code, 1860 (45 of 1860), Section 300, 302, 304 (Part-1) – Culpable homicide not amounting to murder -- Murderer – Interpretation of – Succession of -- It hardly makes any difference that the petitioner has been sentenced u/s 302 IPC or has been given the benefit of sudden and grave provocation to bring his case within the ambit of Section 304 (Part-1) IPC for the purpose of reducing his sentence from life imprisonment to 10 years rigorous imprisonment -- Word “murderer” has to be understood in common parlance as a person who commits murder or abets commission of murder – Held, petitioner shall not succeed to the property of the deceased testator on the basis of the registered Will in his favour, whom he had killed, even under sudden and grave provocation and has been sentenced under Section 304 (Part-1) IPC and not under Section 302 IPC.

 (Para 9-11)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Civil Procedure, 1908 (V of 1908), Section 25 – Transfer petition -- Matrimonial dispute – Summoning of -- Video conferencing -- In matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice -- Order incorporating such safeguards may be sent along with the summons -- The safeguards can be:-

i)   Availability of video conferencing facility.

ii)  Availability of legal aid service.

iii)   Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC.

iv)    E-mail address/phone number, if any, at which litigant from out station may communicate.

(Para 18)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – False FIR – Acquittal from – Divorce -- Whether the acquittal of the appellant/husband as also his parents in a trial under Sections 406/498-A IPC can serve the foundation for grant of a decree of divorce – Appellant/husband as also his parents have faced the pain, anguish and agony of a criminal trial on the basis of allegations which was false and manufactured by the respondent/wife and were even sent to jail -- Under such circumstances, there is a clear inference of cruelty inflicted at the hands of respondent/wife upon the appellant/husband as also his parents – Divorce granted.

(Para 12-22, 26)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – False FIR – Acquittal from – Divorce -- Cruelty -- Acquittal by giving benefit of doubt -- Where the acquittal is for want of any evidence to prove the criminal charge, mere mention of 'benefit of doubt' by the criminal Court is superfluous and baseless -- Husband cannot be denied his right of raising the ground of cruelty seeking dissolution of marriage on account of having been acquitted.

(Para 23)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – False FIR – Acquittal from – Divorce -- Cruelty – Irrevocable breakdown of marriage -- Parties have lived separately for more than a decade -- Such a separation is bound to create an unbridgeable distance between husband and wife -- It may also be said that the marriage has irretrievably broken down – Held, irretrievable break down of marriage is not a ground for divorce under the Hindu Marriage Act, 1955 but certainly be taken as a weighty circumstance while considering severance of the marital tie – Divorce granted as wife has caused mental cruelty to the appellant/husband.

(Para 25,26)

A. Indian Evidence Act, 1872 (1 of 1872), Section 107, 108 -- Civil Death – Effective from -- Issue relating to date or time of death has to be determined on the basis of evidence direct or circumstantial led by the parties -- “J” has not been seen by anybody after September 1989 -- Even his father has alleged in his complaint, which was dismissed that “J” was taken away in the month of September, 1989 and was not seen thereafter -- Though, there is no direct evidence about the date of death of “J” but from the above evidence, plaintiff and defendants are in unanimity that “J” has not been heard of after September 1989 -- September/October, 1989 can be taken as month of death of “J”.

(Para 36, 37)

B. Indian Evidence Act, 1872 (1 of 1872), Section 108 – Hindu Succession Act, 1956 (30 of 1956), Section 8, 9 -- Civil death – Effective from -- Succession of – Marriage by wife before 7 years – validity of -- Presumption of death is drawn u/s 108 Evidence Act on the expiry of 7 years from the day he was not heard of -- “J” is presumed to be died in September/October, 1989, his succession opened immediately thereafter -- Marriage of wife with “K” on 17.11.1991 was illegal null and void – Being the wife of “J”, she continued to be legal heir of her husband “J” on the day presumption of his death arise.

(Para 39)

Hindu Marriage Act, 1955 (25 of 1955), Section 9, 13 – Divorce -- Desertion – Cruelty -- Petition for restitution of conjugal rights – Effect of -- While the petition u/s 9 of the Act was pending, it meant that the appellant had condoned all acts of cruelty on the part of the respondent as he wanted her to join company with him – Till the time the said petition was withdrawn, the presumption would be that the appellant wanted to live with the respondent.

(Para 7,8)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 5(1), 11, 29 -- Void marriage on ground of existence of earlier marriage of husband -- Customary divorce with first wife – Validity of -- Existence of custom has to be proved in terms of pleadings and evidence – Pleadings are conspicuously silent about the prevailing custom of the area -- Heavy onus was rested upon the appellant to plead custom which was in existence, prior to coming into force of the Act and operation of custom throughout the area -- Recognition of custom by the Courts is based on cogent material on record and it cannot be presumed on vague pleadings and evidence – Protection in terms of Section 29 (2) of the Hindu Marriage Act, declined.

(Para 7-12)

B. Indian Evidence Act, 1872 (1 of 1872), Section 57(1) -- Customary law -- When a custom has been recognized by the Court, it passes into the law and the proof becomes unnecessary under Section 57(1) of the Evidence Act.

(Para 17)

Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6,8 -- Guardians and Wards Act, 1890 (8 of 1890), Section 25 – Hindu Marriage Act, 1955 (25 of 1955), Section 26 -- Custody of daughter – Visitation right to father – Whatever be the background of the case, it cannot be so acrimonious so as to deny the right of the father to see his daughter – Direction given respondent to produce the child in the Family Court, on the 3rd Saturday of every month at 11.00 AM and permit the child to interact with the father upto 01.00 PM -- It will be open to the grand parents also to be present along with the father.

 (Para 3, 4)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Cruelty -- Allegation of cruelty should not be based on trivial matters -- General allegations of cruelty cannot constitute cruelty in the eyes of law so as to part ways in matrimonial house -- Cruelty has not been defined strictly anywhere, and it has to be gathered from attending circumstances of each case -- Allegations of cruelty without specific particulars with regard to time, date and manner of committing cruelty cannot form cruelty in strict sense -- It should be wilful and unjustifiably conduct of the spouse of such degree which may endanger the life of other spouse and may cause bodily injury to the spouse and the spouse has a reasonable apprehension of such danger.

(Para 16-18)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Mental cruelty -- Mental pain, agony and suffering as would not make possible for the parties to live with each could come within the broad parameters of mental cruelty -- Mere coldness or lack of affection cannot amount to cruelty -- Mere filing of criminal cases cannot be sufficient to construe an act of cruelty unless and until such cases are found to be false -- Use of liquor on some occasion cannot be held to be a continuing misconduct on the part of the husband.

(Para 20, 21)

Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Joint Hindu ancestral Coparcenary property – Sale of – Challenge to -- Appellant/Plaintiff failed to prove that the nature of the suit property was Joint Hindu ancestral Coparcenary property – So far as legal necessity is concerned, a vendee is not supposed to see in every case that the amount earned from sale of land is spent for the purpose for which it has been sold -- There is no allegation that the vendor-alleged karta of the family was an alcoholic, gambler, extravagant or otherwise man of vices -- There is no proof that the entire family was joint in mess, residence and worship -- So, it cannot be termed as Joint Hindu Family -- If a person sells his unprofitable agricultural land for starting business of transportation or for plying the trucks, it is for the welfare of the family and is an act of good management – It is also not explained as to how the suit which was filed on 23.12.2004 is maintainable as the sale deed in question is dated 03.06.1975 – Concurrent finding of Courts below dismissing the suit, affirmed.

(Para 1, 6)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 25 – Divorce – Permanent alimony -- Trial Court is competent to determine the maintenance to be paid by the spouse concerned while passing any decree exercising jurisdiction under the above Act -- But such an exercise can be invoked by the trial Court only based on an application made to it for the aforesaid purpose.

(Para 5)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 25 – Divorce – Permanent alimony -- Respondent-wife never asked the trial Court to fix the maintenance to be paid to her nor was any separate application filed by the respondent before the trial Court to fix permanent alimony u/s 25 of the Act while passing a decree for divorce -- Trial Court passed the conditional order for dissolution of marriage subject to the deduction of 40% of salary of the appellant by the Army Authorities – Held, trial Court has passed the above conditional order against the spirit of Section 25 of the Hindu Marriage Act, 1955 -- Trial Court has to determine the permanent alimony payable by the appellant to the respondent, only on moving of a necessary application under Section 25 of the Hindu Marriage Act, 1955.

(Para 6-9)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce – Mental agony and torture -- Appellant is found to be an addict person having involved in narcotics, is undergoing sentence -- Conduct of the appellant amounts to mental agony and torture to the respondent-wife -- Factum of involvement of appellant in narcotics and undergoing sentence remains unrebutted and unchallenged on record – Decree of divorce granted by the Trial Court, affirmed.

(Para 1, 9-11)

Hindu Marriage Act, 1955 (25 of 1955), Section 9 – Restitution of conjugal rights -- Section 9 appears to have been resorted to by the appellant just to avoid his liability to pay maintenance and also to harass and humiliate the respondent-wife for her lodging FIR against the appellant and his family members -- Bona fide of the husband cannot be inferred, at this stage -- Section 9 of Hindu Marriage Act cannot be resorted to for solving personal vendetta of the appellant and to allow the respondent-wife to face further vagaries of matrimonial life, which she has successfully avoided to face at this juncture – Petition for restitution of conjugal rights dismissed by Trial Court affirmed.

(Para 16)

A. Hindu Succession Act, 1956 (30 of 1956), Section 4,6,8,19 – Joint Hindu family property – Division of -- Law, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could be summarized as follows:-

(i)    When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).

(ii)   To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.

(iii)  A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.

(iv)  In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property.

(v)   On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.

(vi)  On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.

(Para 20)

B. Hindu Succession Act, 1956 (30 of 1956), Section 4,6,8,19 – Joint Hindu family property – Division of -- Suit for partition -- Death of J.S. in 1973, the joint family property which was ancestral property in the hands of J.S. and the other coparceners, devolved by succession u/s 8 of the Act -- This being the case, the ancestral property ceased to be joint family property on the date of death of J.S. and the other coparceners and his widow held the property as tenants in common and not as joint tenants -- On the date of the birth of the appellant-grandson in 1977, the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable.

(Para 5,21)

Hindu Marriage Act, 1955 (25 of 1955), Section 7, 13 -- Marriage Registration Certificate – Though a presumption would go in favour of the contents of the said certificate, however, whether or not that certificate was issued from production of any photographs and other proof of any marriage that took place is not on record anywhere -- Neither was any official from the office of the Registrar of Marriages examined by the appellant, as a witness before the trial Court, nor was the Marriage Certificate Register produced -- Hence, per se, the said certificate is not admissible in evidence, in any case, not even having been duly exhibited in any proceedings – Matter remitted back to the trial Court to come to a more substantive conclusion by way of evidence led, as to whether any actual marriage took place or not.

(Para 19-21)

Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce petition by husband -- Cruelty and desertion – Acquittal in criminal case – Effect of – In criminal case a spouse, who levels allegations is absolutely required to explain the allegations, but the allegation must be of such a nature as would, if proved to be false, raise an inference of mental cruelty – Wife has not levelled any allegation assassinating the character of the appellant or his family members much less any allegation which pricks conscience of the society -- It cannot  be held that mere acquittal of the appellant in criminal proceedings must be inferred as cruelty in civil proceedings, particularly where the allegations are neither scandalous nor sacrilegious.

(Para 18-20)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Divorce -- Cruelty -- Cruelty has not been defined in the Act -- Cruelty may be mental or physical or both -- Mental cruelty can cause more serious injury than the physical one -- It is to be determined by taking into consideration the entire facts of the case and the matrimonial relations between the spouses -- To constitute cruelty, there must be such willful treatment of the party which caused suffering of body and mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.

(Para 12)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Divorce -- Cruelty -- Respondent (wife), a doctor by profession, told her husband about his genetic composition in the year 1996 – It cannot constitute a ground for divorce -- On the contrary, the husband is guilty of levelling unfounded allegations of extra marital relation of the respondent -- As the husband has raised false and baseless allegations assassinating his wife's character, he otherwise disentitles him to pray for a decree of divorce, on the basis of an incident which took place way back in the year 1996, by filing a petition in the year 2010.

(Para 17)

C. Hindu Marriage Act, 1955 (25 of 1955), Section13, 23 – Cruelty – Condonation of -- Long cohabitation of the parties as husband and wife for a period of about 12 years since 1996 would suffice to conclude that the appellant has condoned the alleged acts of cruelty purportedly occurred in the year 1989, 1991, 1993 and 1996.

(Para 18)

Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 – Mother as Natural guardian – Mother was granted permission by competent court to sell minor’s property – Father did not challenged the validity of wife to act as guardian of minor – Held, the word 'after' need not necessarily means 'after the life time', it means 'in the absence of', the words 'absence' refers to the father's absence from the care of the minor's property or person for any reason whatever -- If the father is wholly indifferent to the matters of the minor even if he is living with the mother or if by virtue of mutual understanding between the father and the mother, the latter is put exclusively in charge of the minor, in such like situation, the father can be considered to be absent and the mother being a recognized natural guardian can act validly on behalf of the minor as the guardian – Mother is competent to sell the land in question. Githa Hariharan’s case 1999(2) RCR (Civil) 59 (SC) relied.

(Para 22, 23)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 9 -- Restitution of conjugal rights – Decree of – Execution of -- Only a symbolic execution of a decree, is provided for -- There is no provision by which the physical custody of the spouse who has suffered the decree can be made over to the spouse who obtained the decree for restitution of conjugal rights.

(Para 10)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 9, 13 – Decree of Restitution of conjugal rights – Divorce -- She did not comply with decree and never cohabited with her husband compelling the respondent to file a petition under Section 13 of the Act for dissolution of the marriage -- Respondent-husband has succeeded in proving desertion on the part of the appellant, who has been unable to prove any reasonable or sufficient cause to withdraw from the company of the appellant – Divorce granted.

(Para 1, 2,10-12)

Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 8 -- Hindu minor – Natural guardian – Power of -- Natural guardian has power to do all acts which are necessary or reasonable and proper for the benefit of the minor or his estate -- Civil Court has granted the permission to sell the property of minors on certain terms and conditions that the property will be sold on proper market price and the sale consideration will be kept in fixed deposit in some nationalized bank and the amount will not be withdrawn without prior permission of the Court or unless and until minors-respondents attain age of majority and the guardian/mother of respondents has been granted permission to use the interest part of the fixed deposit for the benefit of the minors -- Notice was duly published in newspaper and names of minors and their mother have been mentioned and defect, if any exists in the publication notice, cannot be a ground to dismiss the case of the minors-respondents.

(Para 9-11)

A. Indian Evidence Act, 1872 (1 of 1872), Section 58 -- Admission in pleadings – Evidential value -- Admission in the pleadings is conclusive so as to attract the property to be ancestral coparcenary property and such admission cannot be withdrawn -- Property is rightly held to be ancestral property.

(Para 13, 33)

B. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Co-parcener property – Collusive Decree – Value of -- “G” being coparcener acquired right in the property by birth and that right could not have been snatched by way of any collusive decree passed on alleged family settlement in the absence of “G” -- Decrees being collusive in the absence of “G” could not have been treated to be valid and binding on the rights of the heirs of “G”.

(Para 2,13, 34)

C. Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1(3) -- Framing of issue -- Parties knew the case of each other, therefore, framing of issue was not required at all.

(Para 35)

D. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Co-parcener property – Gift of undivided share – Permissibility of -- Gift in respect of undivided share of Hindu coparcenary property could not have been made by the Karta.

(Para 36)

E. Specific Relief Act, 1963 (47 of 1963), Section 34 -- Co-parcener joint property -- Simpliciter Suit for declaration – Maintainability of -- Once the plaintiffs are proved to be co-sharers in joint possession, simpliciter suit for declaration is maintainable as the concept of possession is in-built mechanism in a suit for declaration based on co-sharership -- Each co-sharer would be deemed to be in possession of every inch of land till such land is partitioned by metes and bounds -- Since “G” was one of the coparceners, he was having birth right in the property and after his death his widow and minor daughter have inherited the share of “G” -- Being co-sharers in the property they have every right to seek declaration and they would deemed to be in joint possession of every inch of land.

(Para 38)

A. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18(2)(a)(b) – Maintenance to the wife – Separate residence to wife -- Under sub-section 2 (b), the wife is entitled to live separately without forfeiting her claim to maintenance, if the husband has treated her with cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband -- Under Clause (a), desertion or abandoning the wife is also ground to live separately.

(Para 5)

B. Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18(2)(b) – Cruelty – Voice sample -- Proof of -- So far as production and proving the original audio cassette and transcript thereof required, it can be done only during the evidence of the defendant -- Further the Court is not powerless to summon any witness at the instance of the defendants to prove certain facts -- Defendant is allowed to summon and produce the original audio cassette, file the transcript thereof and then ask the wife to give the voice samples before the Court for the purpose of comparison -- However, it will always be at the option of the wife and the said witnesses whether they are willing to give the sample or not.

(Para 8,9)

A. Hindu Succession Act, 1956 (30 of 1956), Section 14(1)(2) – Absolute right of woman in property -- Sub-section (2) of Section 14 of the 1956 Act is to be read as a proviso or an exception to sub-section (1) of Section 14 and it operates only in a case where the right in property is created for the first time and there was no pre-existing right in favour of female Hindu -- Contrarily, if there was a pre-existing right, be it a life estate only, sub-section (1) of Section 14 applies with full force irrespective of the cloak created on such right and the female Hindu acquires absolute right in such property.

(Para 14)

B. Hindu Succession Act, 1956 (30 of 1956), Section 14(1)(2) – Absolute right of woman in property -- Maintenance to wife – Husband died, widow had a right to be maintained out of the properties of her deceased-husband -- That pre-existing right stood crystallized into an absolute right by virtue of Section 14(1) when the 1956 Act came into force -- Revenue authorities rightly recorded widow as one of the owner of suit-property -- Hindu woman has legally enforceable right to seek maintenance and the husband owes a duty to maintain her even if he does not own any property -- Since the husband has got a personal obligation to maintain his wife, his properties can be put under a charge by way of a decree for maintenance though right to maintenance per-se does not create such charge on his properties.

(Para 15)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13 (1)(1a) -- Divorce -- Cruelty – Nature of -- To constitute cruelty, the conduct complained of should be 'grave and weighty' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse -- It must be something more serious than ordinary wear and tear of married life -- Conduct has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions etc.

(Para 14)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 (1)(1a) -- Divorce -- Cruelty – Nature of -- Cruelty must be of the type as to satisfy the conscience of the Court that the relationship between the parties has deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.

(Para 14)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13 (1)(1a) -- Cruelty – Husband alleged that the wife forced him to resign from army service and start a Karyana shop -- No particulars much less the date, time, year and person in whose presence such a demand was raised has been elicited – Wife in the written statement as well as in her statement on oath has emphatically denied if any such demand was ever raised by her – Court refused to accept the plea of cruelty by coaxing the husband to leave the job in army.

(Para 15)

D. Hindu Marriage Act, 1955 (25 of 1955), Section 13 (1)(1a) -- Cruelty – Husband-wife opened a joint account, the wife had an authority to operate the said account and make withdrawal from it – Wife withdrew Rs. 2.5 lacs from joint account -- Husband failed to adduce any tangible evidence that the wife is guilty of mis-utilizing that amount – Conduct of husband in getting an FIR registered against his wife amounts to cruelty on his part.

(Para 16)

E. Hindu Marriage Act, 1955 (25 of 1955), Section 13 (1)(1a) -- Punjab and Haryana Rules and Orders Volume II, Chapter-I Part-E, Rule 4 – Divorce -- Cruelty – Pleadings -- Husband failed to establish his plea in regard to misbehaviour of the wife with his old aged parents -- No specific date, month and year of any such misconduct on the part of the wife has been incorporated in the petition in compliance with the provisions of Rule 4 of Punjab and Haryana Rules and Orders Volume II, Chapter-I Part-E -- Not only this, the husband has failed to lead evidence to establish his plea in this regard – Divorce declined.

(Para 17-19)

F. Hindu Marriage Act, 1955 (25 of 1955), Section 13 (1)(1a) -- Divorce -- Cruelty – Wife is residing in a part of the matrimonial house -- Proceedings under Domestic Violence Act 2005 are pending -- Criminal proceedings against the husband and his family members are pending -- Wife is persistent in her demand to stay in the matrimonial home, it is beyond imagination as to how the plea of the appellant can be accepted that the respondent wife is either guilty of desertion or depriving him of conjugal bliss – Husband failed to prove that the wife is a guilty spouse or has subjected the husband to cruelty of 'grave and weighty' nature so as to form the basis of a decree of divorce – Divorce declined.

(Para 18,19)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 23(1)(a) – Divorce – Desertion – Own wrong -- Ex parte decree of restitution of conjugal rights against wife but husband neither filed an application for its execution nor otherwise initiated any steps in this regard -- Said ex parte decree was set aside and wife filed an application u/s 24 of the HMA -- Application for restitution of conjugal rights was later withdrawn -- Claim of the respondent to seek restoration of conjugal rights lacked bonafide -- Husband cannot be allowed to take advantage of his own wrong and seek a decree of divorce by accusing his wife being guilty of desertion or cruelty for depriving him of conjugal rights.

(Para 23)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13 – Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Divorce – Desertion – Wife was denied maintenance under Section 125 Cr.P.C. on the premise that she has withdrawn from society of the respondent -- Proceedings u/s 125 Cr.P.C. have not attained finality -- In addition, those proceedings are not exactly civil in nature -- Husband has failed to prove one of the essential ingredients of desertion, he cannot prove the said ground on the basis of findings recorded in proceedings under Section 125 Cr.P.C.

(Para 24)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13, 23(1)(d) – Divorce – Desertion – Delay in proceedings -- Clause (d) of Section 23(1) of the HMA provides that there should not be any unnecessary or improper delay in instituting the proceedings -- Parties are residing separately since August 1993 -- Husband has admitted during his cross examination that there was no impediment in filing the petition for divorce from 1993 to March 2009 -- No explanation for delay of 16 years in filing the petition for divorce either on the ground of desertion or cruelty -- Ld. trial court has not adverted to the provisions of Section 23(1)(d) of the HMA while holding in favour of the husband – Judgment and decree passed by the Trial court set aside.

(Para 25, 27)

D. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Irretrievable break down of marriage – Divorce -- Though irretrievable break down of marriage is not a ground for divorce but if marriage is beyond repairs on account of bitterness created by the Acts of the husband or the wife or both, the courts take irretrievable break down of marriage as a weighty circumstance amongst others necessitating severance of marital ties.

(Para 26)

E. Hindu Marriage Act, 1955 (25 of 1955), Section 13 -- Irretrievable break down of marriage – Divorce -- Mere fact that the parties are staying away from each other for the past more than 20 years alone is not sufficient to conclude that the marriage is beyond repairs -- Two children born out of the wedlock and both of them have received good education up to graduation or post graduation -- Children stayed with the mother and were being maintained by parental family of the wife -- Children of the parties are of marriageable age -- Judgment and decree passed by the trial court is set aside, petition for divorce dismissed.

(Para 26,27)

Hindu Succession Act, 1956 (30 of 1956), Schedule 1 -- Punjab Civil Services Rules (Vol.II), Rule 6.16 AA(1)(2), Rule 6.16 B – Death gratuity – Right of widow/mother – Nomination of wife -- In view of the Rule and keeping in view the fact that the widow was the nominee, the entire amount of the death gratuity of deceased be disbursed to the widow of the deceased.

(Para 6, 7)

Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(1a) – Cruelty as ground of divorce – Acquittal in criminal case – Effect of -- Acquittal in criminal case u/s 353, 332, 186 IPC at the instance of appellant-wife -- Appellant had filed an appeal against the judgment of acquittal which was still pending -- An appeal amounts to continuation of the case and the respondent cannot derive any benefit from the judgment of acquittal -- Otherwise also, the yardstick of proof of charges in a criminal case is much higher than the standard of proof required for proving a factum in a civil matter – Evidence led by appellant undoutedly proved that the respondent-husband was guilty of treating her with utmost cruelty – Divorce granted to appellant-wife.

(Para 20-27)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Divorce – Mental cruelty -- False criminal complaint -- It is now beyond cavil that if a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce.

(Para 1)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Divorce by husband – Mental cruelty -- False criminal complaint by wife -- Wife has admitted in her cross-examination that she did not mention all the incidents on which her Complaint is predicated, in her statement under Section 161 of the Cr.P.C -- It is not her case that she had actually narrated all these facts to the Investigating Officer, but that he had neglected to mention them – This is clearly indicative of the fact that the criminal complaint was a contrived afterthought -- Criminal complaint was “ill advised” -- Adding thereto is the factor that the High Court had been informed of the acquittal of the Husband and members of his family -- In these circumstances, the High Court ought to have concluded that the Wife knowingly and intentionally filed a false complaint, calculated to embarrass and incarcerate the husband and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1)(ia) of the Hindu Marriage Act.

(Para 5)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 13(1)(ia) -- Divorce by husband – False criminal complaint by wife lateron – Whether mental cruelty and ground for divorce -- Criminal complaint was filed by the wife after filing of the husband’s divorce petition, and being subsequent events could have been looked into by the Court -- In any event, both the parties were fully aware of this facet of cruelty which was allegedly suffered by the husband -- When evidence was lead, as also when arguments were addressed, objection had not been raised on behalf of the Wife that this aspect of cruelty was beyond the pleadings – Held, wife had filed a false criminal complaint, and even one such complaint is sufficient to constitute matrimonial cruelty – Marriage of parties dissolved.

(Para 6-8)

Hindu Marriage Act, 1955 (25 of 1955), Section 5,9,10,11,12,13 -- Bigamous marriage – Void declaration – Maintenance pendentlite – Permanent alimony -- Held, when the legislature has used such wide expression as ‘at the time of passing of any decree,’ it encompasses within the expression all kinds of decrees such as restitution of conjugal rights u/s Section 9, judicial separation u/s 10, declaring marriage as null and void u/s 11, annulment of marriage as voidable u/s 12 and Divorce u/s 13 -- Keeping into consideration the statutory Hindu Law, a bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and economically dependent.

(Para 13)

Insurance Act, 1938 (4 of 1938), Section 39 – Government Savings Certificates Act, 1959 (46 of 1959), Section 6, 7, 8(2) – Indian Succession Act, 1925 (39 of 1925), Section 370 -- National Saving Certificates – Nominee -- Effect on succession -- Language of Section 39 of the Act is not capable of altering the course of succession under law – It is difficult to treat a nominee as being equivalent to an heir or legatee -- Though language and phraseology of Section 6 of the Act is different than the one used in Section 39 of the Insurance Act, yet, the effect of both the provisions is the same -- Any amount paid to the nominee after valid deductions becomes the estate of the deceased -- Such an estate devolves upon all persons who are entitled to succession under law, custom or testament of the deceased holder -- Nominee becoming entitled to the payment of the amount on account of national savings certificates received by him u/s 6 read with Section 7 of the Act who in turn is liable to return the amount to those, in whose favour law creates beneficial interest, subject to the provisions of sub-section (2) of Section 8 of the Act, 1959. Hindu Succession Act, 1956 (30 of 1956), Section 8, 15.

(Para 11, 13)