Wednesday, August 4, 2010

State sponsored legalising extortion of husband - Bill to add Irretrievable breakdown new ground for divorce amending the Hindu Marriage Act, 1955, Special Marriage Act, 1954

Bill to add Irretrievable breakdown new ground for divorce amending the Hindu Marriage Act, 1955, Special Marriage Act, 1954

Wed, Aug 4 08:02 PM

New Delhi, Aug 4 (PTI) Getting a divorce from marriage, which has broken down for all practical purposes, could become easier, as the government today introduced a bill in the Rajya Sabha to amend marriage laws. The amendments proposed in the Hindu Marriage Act and Special Marriage Act will also make divorce through mutual consent easier, according to the Marriage Laws (Amendment) Bill, introduced by Law Minister M Veerappa Moily.

The amendment bill also provides for an additional grounds for seeking divorce in case of "irretrievable breakdown of marriage". It seeks to do away with the provision of second joint appearance before the court after six to 18 months of filing of divorce petition, with mutual consent.

The present clause of joint appearance for seeking decree of divorce creates problem as often one of the parties fails to appear before the court on some pretext or the other. This leaves one of them "hapless and remediless", according to the objects and reasons of the bill.

The bill also seeks to insert a new clause under which either husband or wife can seek divorce if the couple have not lived together continuously for three years. However, in case the husband seeks divorce, the wife will be entitled to oppose it on the ground that the dissolution of marriage would result in financial hardship to her.

Similarly, a provision has been made to restrict grant of divorce on the ground of irretrievable breakdown of marriage in the absence of adequate provision for maintenance of children. The amendment bill has been prepared on the basis of recommendations of the Law Commission as well as the Supreme Court, Moily said.

The clause of irretrievable breakdown of marriage will be in addition to the existing grounds for divorce. At present, various grounds for dissolution of marriage are laid down in law.

These include adultery, cruelty, desertion, conversion to another religion and unsoundness of mind.


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NEW DELHI: A bill seeking to make divorce easier in case of "irretrievable breakdown of marriage" was introduced in the Rajya Sabha on Wednesday.
The Marriage Laws (Amendment) Bill, moved by law minister M Veerappa Moily, aims at mitigating hardships by allowing divorce in cases of complete failure of marriages.
At present, the petition for a divorce on the ground of mutual consent could be presented by the spouses together before the court under the Hindu Marriage Act 1955 and the Special Marriage Act 1954.
While both parties have to move a motion jointly before the court between six and 18 months of the original petition, it has been observed in several cases that one of them does not turn up.
This leaves parties desirous of obtaining decree of divorce hapless and remediless. In order to mitigate such hardships and to allow divorce in cases of complete failure of such marriages, the bill seeks to amend the Hindu Marriage Act and the Special Marriage Act.
The condition of moving the motion before the court subsequent to the first petition would be done away with, it said.
However, in case the wife happens to be the respondent to the petition, she is entitled to oppose it on the ground that the dissolution of marriage would result in grave financial hardship to her.
Similarly, a provision has been made to restrict grant of divorce on the ground of irretrievable breakdown of marriage if the court is satisfied that adequate provision for maintenance of children has not been made.
The amendment bill has been prepared on the recommendations of the Law Commission as well as the Supreme Court.
The clause of irretrievable breakdown of marriage will be in addition to the existing grounds for divorce.


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Domestic Violence Act: Women can be charged

TNN, Apr 12, 2010, 02.04am IST

NEW DELHI: In the wake of the raging debate on whether the Domestic Violence Act, enacted for the welfare of women, can be used against them or not, with different high courts expressing "conflicting views", a trial court has set the record straight by holding that female members of a family can be charged under the Domestic Violence Act in case of harassment of a woman.

While giving an interpretation of the provisions for protection of women in the Domestic Violence Act, 2005, the court has said that the law provided a wife can file complaint against her husband and his relatives (both males and females).

"Section 2 Clause (q) of the Act which provides that ‘an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner’. The provision includes both male and females," additional sessions judge Kamini Lau said.

The court passed these observations while rejecting a revision petition of certain women members of a family who challenged an order of a metropolitan magistrate dismissing the plea to remove their names from a complaint filed under the Domestic Violence Act.

Couple in 80s battles for divorce, property

Couple in 80s battles for divorce, property

Wednesday, Aug 4, 2010, 2:06 IST

Eighty-four-year-old JM Kohli is not only battling brain haemorrhage, but is also busy fighting his divorce case to separate from his 80-year-old wife Vimla.

Kohli and Vimla got married in 1953. But things soon turned sour between the two and the couple divorced in 1955. However, Vimla then decided to give the marriage a second chance and entered into a compromise with Kohli in 1967.

But Vimla’s greed for property led to the couple splitting ways. Senior advocate Geeta Luthra appearing for Kohli said, “Kohli was befooled by Vimla’s brother and other people and they all use tactics to stop his promotion and other benefits [Kohli worked as a senior officer in the Central Public Works Department]… In 1979, when Vimla’s brother got a DDA flat in Munirka, she asked Kohli to make all the payments and moved in there with her 25-year-old daughter.”

Few months later, Vimla and her daughter forced Kohli to leave the house. After remaining homeless for years, Kohli finally filed for divorce in 1983 in a trial court. The decree in Kohli’s favour was finally passed in 1994.

After divorcing Vimla, Kohli married Usha. The couple has a 10-year-old son.

But Vimla did not give up. She filed a property declaration suit against Kohli in a Delhi court, which he subsequently challenged in the Delhi high court. Vimla moved the high court in 2003 challenging the trial court’s verdict in the divorce case which ruled in Kohli’s favour.

Challenging Kohli’s declaration suit Vimla sought right to the Punjabi Bagh property. However, Luthra argued, “Kohli was forced to give the statement that Vimla has equal rights to the property and his statement was recorded by the court as well… Kohli remains very ill and has even suffered a brain hemorrhage, but it was Usha and not Vimla who took care of him.”

Therefore, the property should be given to the son and not Vimla, Luthra said.

Justice Kailash Gambhir, who was hearing the matter, said, “It is unfortunate that both the parties have to fight their cases at this age. However, both the kids [daughter and son] have equal rights to the property.”

The court has asked both parties to arrive at an amicable solution and has posted the matter for hearing on August 11.

What can we do, if our orders are not obeyed: Apex court

New Delhi, Aug 3

Hearing a plea seeking arrest of a politician's musclemen, the Supreme Court Tuesday said policing is not a part of its mandate and it could not help if its orders were not being executed by the law enforcing agencies.

"If our orders are not being obeyed, then what can we do? We are not police," said an apex court bench of Justice Markandey Katju and Justice T.S. Thakur.

The bench was disposing a petition seeking enforcement of its earlier order directing the arrest of alleged musclemen of former Rashtriya Janata Dal (RJD) MP and Bihar's criminal-turned-politician Rajesh Ranjan alias Pappu Yadav.

The petitioner Rabinder Nath Singh moved the apex court seeking direction for enforcement of its earlier order by which it had cancelled the bail of Pappu Yadav and had said that he should be taken into custody forthwith.

On May 3, the apex court cancelled the bail of Pappu Yadav who was earlier granted bail by the Patna High Court.

Appearing for the petitioner, senior counsel Amarendra Saran asked the court to issue direction for the immediate arrest of Pappu Yadav. He told the court that Pappu Yadav was absconding and the court should order his arrest.

At this, Justice Katju said that judges of the Supreme Court do not have a magic wand and could not be expected to do everything for the execution of their directions.

Justice Thakur said the petitioner could also move the high court for the implementation of the apex court's direction.

The bench asked the petitioner to approach the competent authority which would "do the needful" for the execution of the apex court's May 3 order directing the arrest of Pappu Yadav.

'Courts can move against state for acts against public good'

New Delhi, Aug 3

Higher courts have the power to issue writ to the state if its acts are contrary to the public good, the Supreme Court has ruled, while holding that a public sector bank also falls within the definition of the state.

"...if any action on the part of the state is wholly unfair and arbitrary, writ courts (high court and Supreme Court) can exercise their powers," the apex court said.

The apex court said that if a state authority or wing acts unfairly and contrary to the public good in discharge of its contractual or statutory obligations then a writ against its wrong doings is maintainable in the high court under article 226 of the constitution.

Under Article 226 of the constitution, the high courts have vast powers in the territory under their jurisdiction and can issue writ to any person or authority, including government, to protect of fundamental rights conferred on the citizens or for any other purpose.

If in a contract "there is clause for arbitration, normally, writ court should not invoke its jurisdiction" and the "existence of effective alternative remedy provided in the contract itself is a good ground to decline to exercise its extraordinary jurisdiction under Article 226," said the apex court bench of Justice P. Sathasivam and Justice Anil R. Dave.

"If the instrumentality of the State acts contrary to the public good, public interest, unfairly, unjustly, unreasonably discriminatory and violative of Article 14 of the constitution in its contractual or statutory obligations, writ petition would be maintainable," said the apex court judgment delivered July 30.

The court said this while dismissing an appeal by the Central Bank of India challenging the Calcutta High Court verdict directing it to handover the title deeds and other securities to a respondent company Devi Ispat Ltd.

In the instant case, Devi Ispat availed loans and credit facilities from the bank. Subsequently, the bank found frauds in the accounts.

The bank communicated to the company to look for another bank for its financial requirements.

The company started dealing with another bank and cleared all its dues with the Central Bank of India. However, the bank refused to part with the title deeds of its factory premises and other collateral securities of the company.

Against the bank's stand, the company moved the Calcutta High Court where the single judge decided the matter in its favour and directed the bank to hand over the title deeds and other securities.

The bank challenged the decision before the division bench which upheld the directions of the single judge.

Upholding the concurrent finding of the single judge and that of the division bench, the apex court said: "The appellant bank (Central Bank of India), being a public sector bank, discharging public functions is 'state' in terms of Article 12 of the constitution of India (thus is) amenable to the writ jurisdiction."

498a bail condition - Say sorry to your wife, HC orders cop husband

498a bail condition - Say sorry to your wife, HC orders cop husband

Court asks cop to apologise to wife


A high court division bench on Tuesday refused to hear the anticipatory bail plea of a Bengal police constable who had moved the court apprehending arrest on the charge of torturing his wife and directed him to apologise to her with “folded hands”.

“The police have been entrusted with the job of ensuring that no housewife is tortured by her husband or in-laws. But in this case, the accused himself is a policeman. He should be given an exemplary punishment. This court is directing the petitioner to beg his wife’s pardon with folded hands within seven days. After that the court will hear his petition,” the bench of Justice Asim Banerjee and Justice Raghunath Roy stated.

The judges also asked the constable Dinesh Chandra Roy’s lawyer to inform them whether his client had gone to his in-laws’ house and apologised.

If the cop does not obey the order within the stipulated period, the matter would be brought to the notice of his superiors and stern action would be prescribed, said the judges. The bench scheduled the next hearing of the case on August 10.

“Many cases of torture on housewives by their policemen husbands are coming to the court. The division bench’s unique decision will surely send a message to the protectors of law,” said advocate Pradip Roy, counsel appearing for the state.

The 27-year-old constable, posted in Cooch Behar, had married Tapasi Roy, 21, of Bhaktinagar in Jalpaiguri, on December 11, 2009.

“Dinesh took dowry at the time of marriage but still used to ask his wife to bring more money from her father. As Tapasi’s father, a trader, could afford to give more money, Dinesh used to torture Tapasi both mentally and physically,” Pradip Roy told the court during Tuesday’s hearing.

The lawyer told the bench that the constable had beaten up his wife mercilessly on June 11 and she had to be admitted to a nursing home in Cooch Behar.

Tapasi’s father Sunil Roy, after getting the information, travelled to Cooch Behar on June 18 and brought Tapasi back to Jalpaiguri. Sunil later lodged a complaint with Gokulbhita police station in Jalpaiguri against his son-in-law under section 498A of the IPC.


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KOLKATA: Dinesh Ray, a police constable posted at Cooch Behar, came all the way to Calcutta high court, praying for anticipatory bail. Ray feared arrest after his father-in-law lodged a complaint of wife torture under Section 498A of the IPC. The court asked Ray's counsel to ensure that the constable apologises to his wife by next Tuesday, failing which the court would take action against the accused.

The alleged wife torture began a month after Dinesh married Tapashi of Jalpaiguri in December, 2009. It continued for months till Dinesh recently thrashed his wife so much that Tapashi had to be rushed to a nursing home. Her father Sunil Ray lodged a complaint with the Gokulvita police.

When Ray's counsel Ranjana Talapatra moved the anticipatory bail, the division bench of Justice Ashim Kumar Banerjee and Justice Raghunath Ray held that it was shameful act on the part of the accused because he happens to be a police constable and is quite aware of the implication of the complaint under 498A. However, the bench did not turn down the bail application.

Family lawyers oppose fresh ground for divorce

A section of family court lawyers from Pune have written to the Law Commission and Union Law Minister Veerappa Moily protesting against the recent inclusion of “irretrievable breakdown of marriage” as fresh ground for divorce in the Hindu Marriage Act, 1955 and Special Marriage Act, 1954.

“The rule will deprive women of their rights to matrimonial home and property. It will also rob them of their negotiating powers during matrimonial litigation,” the letter said. The decision was taken at a meeting of family court lawyers practising in various courts in the state. The meet was organised by Majlis, a Mumbai-based centre for rights discourse and interdisciplinary arts initiatives.

The letter has been signed by advocate Flavia Agnes, one of the founders of Majlis along with lawyers from Pune. Women in western countries where a similar law has been implemented are facing hardships despite contributing special non-monetary-returns by working as housewives and raising children, it said.

“There should not be a blanket rule for granting divorce under such grounds. The Law Commission is creating grey areas for corrupt practices,” said advocate Asim Sarode, a human rights activist. Majlis has planned month-long discussions on the subject in various cities in the state in July.

On the other hand, some like advocate Rekha Koratkar, president, Pune Family Court Bar Association had a different take. “It is not that a new ground for divorce has been created. The addition of the clause will speed up the divorce process in cases where there is no way out,” she said. Advocate Asunta Pardhe, who is also an activist, agreed. “ It will help several women whose divorce petitions are pending,” she said. The Union Cabinet had approved the Marriage Laws (Amendment) Bill, 2010, two weeks ago.

A survey to straighten issues! … that’s what men’s organisations in the city are now looking to conduct

Seeking to counter certain “exaggerated” claims made by some women’s organisations and in a bid to draw the attention of the government to the plight of men victimised by lop-sided laws drafted on the basis of such claims, men’s organisations in the city have now embarked upon the task of conducting a massive domestic violence survey.

The results of the nationwide survey, widely believed to be the first of its kind for men in the country, will be used to find out if whether Indian men too are victims of domestic violence, the percentage of Indian men subjected to such violence and the kind of violence they are subjected to.

The need for the survey has been triggered, it seems, by the controversial Domestic Violence Act - 2005, which seems to have been drafted on the assumption that only women suffer domestic violence.

Says Suresh Ram, member of the All India Men’s Welfare Association (AIMWA), an NGO working for the rights of men and boys, “Certain women’s organisations have been stereotyping the issue of domestic violence. They have presented a picture that conveys the impression that only women are victims of domestic violence while we have with us global surveys and over 250 scholarly studies that show that women are at least as likely as men to engage in partner aggression and that partner violence is often mutual. This fact is established if one goes through the Domestic Violence Study conducted by a well known global organisation that has done the survey in over 32 countries including India. However, the Domestic Violence Act in India offers protection to only women and not men.” He further adds, “So, to set things right, we men’s organisations have joined hands to ensure that a credible and transparent survey on the issue is done.

Eight men’s organisations are involved in this effort which is being led by the AIMWA. We have begun negotiations with survey agencies to conduct the survey in certain cities of the country including Chennai, Delhi, Kolkata, Bangalore and Hyderabad. We intend to publish the results on Nov 19, the International Men’s Day.” So, what do they intend to achieve by conducting such a survey? Says Suresh, “We intend to create an awareness in society about the problems faced by men. We wish to present to them the real situation in society. We will also seek to draw the government’s attention to issues concerning men and reiterate our demand for setting up a National Commission for Men and a Men’s Welfare Ministry.” Men in the city are delighted with the move by the men’s organisations.

Welcoming such a survey, Shankar, a graphics designer, says, “I certainly welcome the move. It is high time that facts were presented on this issue.” Women too seem to be for such a survey. Says Dakshayini Sampath, a media professional, “While I think that more number of women suffer domestic violence, it’s also possible that men are victims. I think the law should hold good for both genders and if this survey is going to help bring about a uniform law, then I’m all for it.”

Supreme Court to examine maintenance issue in live-in relationships

Supreme Court to examine maintenance issue in live-in relationships

Monday, Aug 2, 2010, 21:46 IST

The Supreme Court today said a woman in a live-in relationship cannot be deserted without any security and decided to examine whether she can claim maintenance from a man with whom she was in such a relationship.

A Bench of the court said the issue regarding the maintenance of a woman in live-in relationship involves a larger question of law with the changes in the society.

"Live-in relationship is growing in the society. A live-in partner cannot be deserted without any security as with the changes in the time, live-in relationship is socially accepted now," a Bench of Justices G S Singhvi and A K Ganguly said.

The court appointed senior advocates Altaf Ahmed and PS Patwalia and counsel Shibu Shankar Mishra as amicus curiae in the matter to assist the court and give their suggestions on the issue within six weeks.

The court decided to adjudicate on the issue as the man, who was asked by the High Court to provide maintenance to the live-in partner, has challenged the decision.

The man has claimed that since they were not married, he was under no obligation under law to provide maintenance.

Live in relationship - Man seeks alimony from woman who filed dowry harassement Ipc 498a 506 on him

HYDERABAD: Giving gender equality a fresh twist, a jobless man has sought Rs 8,000 a month as alimony from his 'gainfully' employed partner.

This gender bender case, which has landed at the Andhra Pradesh High Court, however, gets even more curiouser in its detail. The couple in question are not legally wedded but have been in a live-in relationship for the last 10 years and even have a daughter.

The Mahbubnagar-based couple's happily ever after story hit a roadblock when the woman, who is 42, in a fit of rage filed a case of 'dowry harassment' against her jobless live-in partner, who is 51, alleging that he was physically assaulting her.

The woman, a multi-purpose health worker with a government hospital with a decent monthly salary of Rs 20,000 (especially in the context of a small town like Mahbubnagar), even moved out of the house with the child.

With sections 498 A, 506 and 509 of IPC pressed against him, the man moved the AP High Court seeking anticipatory bail stating that the charges were invalid since the two were never legally married. And then he served a googly — he filed a simultaneous petition seeking maintenance of Rs 8,000 from his live-in partner of 10 years.

When the case first came up for hearing at the High Court a few days ago, the counsel representing the man referred to a recent Supreme Court judgment wherein the apex court had granted alimony to a woman in a live-in relationship from her partner citing that the number of years the two had put together were 'considerable', akin to a marriage. The man in this case has now pinned his hope on the apex court verdict with his counsel arguing how he too has put in 10 years of his life into this relationship and is thus a 'considerable' time period for him to earn his alimony from the earning partner.

In the first hearing, the HC judge had asked the man's counsel to look into the merits of the case himself and also consider whether the SC judgment can apply here, given the difference in the gender of the alimony seeker.

A similar case was filed by a Tamil Nadu resident Kalaiselvan who had sought a whopping Rs 25 lakh from his ex-wife, a news story that flashes on many websites catering to aggrieved husbands. But the judgment on the case is awaited.

On Tuesday, the HC posted the Mahbubnagar man's alimony petition case for its next hearing on July 30. Clearly, an unusual gender test for the AP High Court.

Media entitled to fair criticism of court judgment: SC

Media entitled to fair criticism of court judgment: SC


02.08.2010 (UNI) The Supreme Court has said that media is entitled to fair criticism of the judgement delivered by the court and such criticism is part of the fundamental rights of freedom of speech and expression under Article 19 (1)(a) of the Constitution of India.

A bench comprising Justices J M Panchal and A K Patnaik in their judgement noted ‘national interest requires that all criticism of the judiciary must be strictly rational and sober and proceed from the highest motive without being coloured by any partisan spirit or tactics.’ ‘There is no manner of doubt that freedom of expressions contemplated by Article 19(1)(a) of the Constitution of India is available to the press and to criticise a judgement fairly albeit fiercely is no crime but a necessary right,’ the bench said.

The apex court, while dropping contempt of court proceedings against Union Human Resource Development Minister Kapil Sibal, leading English daily The Times of India and its former Supreme Court correspondent Rakesh Bhatnagar for criticising corruption in judiciary, further said ‘a fair and reasonable criticism of a judgement which is a public document or which is a public act of a judge concerned with administration of justice would not constitute contempt’.

In fact, such fair and reasonable criticism must be encouraged because after all no one, much less judges, can claim infallibility.
The message examined the evils prevailing in the judicial system and was written with an object to achieve maintenance of purity in the administration of justice and the message was exposition of Mr Sibal’s ideology.

Contempt of court proceedings were initiated against Mr Sibal and others for an article published in the leading English daily from Delhi on April 16, 1995 in which Mr Sibal, who was a senior advocate at that time, is alleged to have made a frontal attack on the corruption in judiciary.

The 27-page judgement has been written by Justice Panchal for the bench. UNI