I-T returns not gospel for deciding maintenance to be paid by husband: Bom HC

I-T returns not gospel for deciding maintenance to be paid by husband: Bom HC 

TNN, Nov 29, 2010,

MUMBAI: Tax returns are not sacrosanct when it comes to calculating the maintenance paid by a man to his estranged wife and kids, the Bombay high court has ruled.

In two recent cases, the HC thwarted the attempt of two businessmen who challenged the maintenance awarded to their wives, pointing at their paltry earnings as shown in income-tax returns. However, Justice Roshan Dalvi said, "The consideration of the income contemplated under the (Hindu Marriage Act) does not mean that only the numerical figures shown in the tax returns of a party can be taken as the gospel. The ascertainment of the income has to be done judiciously, and sensibly, not arbitrarily." or only arithmetically." ,'' the judge added.

The court said, the tax returns might be only one side of the story. "It would be absurd to consider the net income of an assessee who has various sources of income some of which may not be taxable," at all,'' the judge said.

In the first case, Dilip Singh, a businessman in the has glass industry and has offices in Goregaon and Kandivli, challenged a family court's order to pay maintenance to his estranged wife. He claimed that according to his IT papers, his income was Rs 16,000 per month but going through his documents, the court could not agree with it. went through his financial documents to find a mismatch. "In this income, the man would not be expected to have the bank account that is shown to court (with large deposits and withdrawals), the car, the share in the joint-family property, that he has purchased, the exports that he has made and the electricity expenses, that he has paid the property taxes that he has incurred or the employees he pays," he supports in several firms,'' said the judge. The court refused to believe that the market value of his share in the family residence was merely Rs 3 lakh.

The second case related to another businessman, Deepesh Mehta, who objected to a family court's order of paying Rs 40,000 per month to his wife and two sons.

He claimed his monthly income, as per his IT returns, was Rs 20,000. "A person who earns that income, if that be his only income, would not be able to invest in shares of listed companies (to the tune of Rs 55 lakh), insurance, PPF accounts, government bonds, flat, shop," said the court, dismissing his application.

http://timesofindia.indiatimes.com/city/mumbai/I-T-returns-not-gospel-for-deciding-maintenance-to-be-paid-by-husband-HC/articleshow/7012039.cms#ixzz16lHT3PhU

 

FULL TEXT AVAILABLE AT

http://legalmanthandivorce.blogspot.com/2010/11/itr-not-gospel-for-deciding-maintenance.html

Man fighting for harassed husbands fined 1L by Gujarat HC

Man fighting for harassed husbands fined 1L by Gujarat HC

TNN, Nov 26, 2010, 03.32am IST

AHMEDABAD: The Gujarat HC on Thursday slapped a penalty of Rs 1 lakh on Dashrath Devda, president of Akhil Bharatiya Patni Atyachar Virodhi Sangh for protesting against alleged misuse of domestic violence laws. A division bench fined him for filing frivolous PIL and for wasting court's time.

Devda had approached the HC by way of filing a PIL demanding judicial interference in the alleged misuse of protection laws for women. He was demanding a protection in legislation for men, who are according to him henpecked by their wives.

Devda has been claiming that women have abused the laws, which are in favour of them, but certain protection for men is also required against the misuse of the legislation. He filed this PIL, which came up for hearing before a division bench. When Devda began arguments as party-in-person, the court asked him to withdraw his PIL because his demand was to amend the legislation. Refusing to pay any attention to what the court was hinting at, Devda continued to argue how women in this country are worshipped, and no law is required for their protection. However, the chief justice repeatedly asked him to withdraw the PIL.

Ultimately, the court imposed a fine of Rs 1 lakh on Devda and asked him to pay the money to the Self Employed Women's Association — an NGO working for women empowerment. The court has directed Devda to pay the amount of penalty within two months.

Devda and members of his association often stage demonstrations and take out rallies in the city in protest against the domestic violence laws. They also help men in court proceedings, who face charges of domestic violence from their spouses. In this PIL also, Devda tried to assert their views that different pieces of legislation favouring women are misused, and ultimate sufferers are the family members. The association has been protesting against anti-dowry law of Section 498A of IPC, alimony related provisions in Section 125 of CrPC and the Protection of Women from Domestic Violence Act.

 http://timesofindia.indiatimes.com/city/ahmedabad/Man-fighting-for-harassed-husbands-fined-1L-by-HC/articleshow/6991947.cms#ixzz16KwY9gFj

11 HC judges transferred ‘in public interest’

The government on Wednesday transferred 11 judges of six high courts who were recommended for relocation "in public interest" by the Supreme Court collegium.  HT was the first to report about the initiative of the Chief Justice of India (CJI), Justice S.H. Kapadia to shift judges, the biggest single shake-up since 1993.   

According to a Law Ministry notification, two judges each from Delhi, Allahabad and Andhra Pradesh High Courts have been transferred while three have been moved out of the Punjab & Haryana High Court and one judge each has been shifted out of the Madras and Orissa High Courts.

Justices V.M. Sahai and Poonam Srivastava of the Allahabad High Court have been transferred to the Gujarat and Jharkhand High Courts respectively.

Justices T. Meena Kumari and D.S.R. Verma of the Andhra Pradesh HC have been transferred to the Patna and Allahabad High Courts respectively.

Three judges from the Punjab and Haryana High Court — Justices Ashutosh Mahunta, Vinod Kumar Sharma and H.S. Bhalla — have been transferred to the Allahabad, Madras and Orissa High Courts respectively.

Justices S.N. Agarwal and Aruna Suresh from the Delhi High Court have been sent to the Madhya Pradesh and the Orissa High Courts.

Justice M.Jeyapaul of the Madras High Court and Justice B.P. Ray of the Orissa High Courts have been sent to the Punjab & Haryana and the Karnataka High Courts.

The collegium also recommended the transfer of Justice R.S. Mohite of the Bombay High Court to the Patna High Court, but he resigned last month.

http://www.hindustantimes.com/11-HC-judges-transferred-in-public-interest/Article1-612562.aspx

Apex court cautions high courts on use of powers

Apex court cautions high courts on use of powers

Tuesday, October 12, 2010 7:24:14 PM by IANS

New Delhi, Oct 12 (IANS) The Supreme Court has said that though high courts enjoy vast powers for administration of criminal justice (under Section 482 of Code of Criminal Procedure) but the same was not unbridled and should be exercised cautiously and sparingly.

“It needs little emphasis that although the jurisdiction of the high court under the said provision (Section 482 of Cr.P.C.) is very wide but it is not unbridled,” said an apex court bench of Justice D.K. Jain and Justice H.L. Dattu in a judgment Oct 8.

The provision confers extra ordinary powers on high courts in relation to the administration of criminal justice.

Under the provision, the high court in order to meet the ends of justice can pass any order even in situations where there is no statutory backing for such an order in the Cr.P.C.

The court sounded its caution while setting aside the Bombay High Court order of Oct 9, 2007, by which it had declined to quash criminal complaint against the then chairman of the Maharashtra State Electricity Board (MSEB) by a company, Switchgear Limited. Asoke Basak was heading the board when the complaint was filed.

The company entered into various contracts for the installation of low tension load management system for the MSEB and deposited Rs.five lakh as security.

In the course of the time, some dispute arose between the two and the company withdrew from its deal with the MSEB.

It sought the refund of its security which was declined on the grounds that the same has been adjusted against the dues payable by the company. Against this a criminal complaint was a filed before a magistrate which the Bombay High Court declined to quash.

Pronouncing the judgment, Justice Jain said: “The high court is required to exercise its inherent powers under Section 482 of the code sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice to prevent the abuse of the process of court.”

“One of the situations when the high court would be justified in invoking its powers is where the allegations in the first information report or the complaint, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged,” the judgment said.

Referring to an earlier verdict of the apex court, the judgment said that the exercise of the said powers was a “serious matter” for the accused, thus, the high court should not superficially examine the matter under its consideration.

The high court should exercise the inherent powers under Section 482 of the Cr.P.C. in accordance with the guidelines laid down by the apex court, the judgment recorded.

http://www.thaindian.com/newsportal/uncategorized/apex-court-cautions-high-courts-on-use-of-powers_100443396.html

Hiding a prior divorce from husband also amounts to cheating: Gujarat high court

Hiding a prior divorce from husband also amounts to cheating: Gujarat high court

The Gujarat high court recently gave two significant judgements in cases lodged by an NRI couple after their divorce. Justice Akil Kureshi of the high court ruled that if a woman conceals her previous marital status (including a marriage that had ended in a divorce), it amounted to cheating. In such a case, the husband can file a police complaint against his wife, the court said.

The judge also held that a woman can file a criminal complaint against her husband if he does not return her belongings after their marriage had ended in a divorce in a foreign country.

According to the case details, Mitesh and Tanya, who are currently citizens of the US, originally hail from Kheda district. They had got married with the consent of their respective families but their marriage soon ran into trouble and they divorced in the US in 2007. But the bad blood between the two did not end there.

Tanya filed a complaint in Nadiad under the dowry act among others, alleging that Mitesh had not returned her belongings which amounted to Rs20-Rs 25 lakh. These were given to her by her father at the time of the marriage but they were still with Mitesh's family, Tanya claimed. She demanded that Mitesh and his family return her belongings as she had divorced Mitesh in the US.

Mitesh had also filed a complaint at the same police station alleging that Tanya had cheated him as she had not disclosed the fact that prior to their marriage she was married to another boy and had divorced him too.

In his judgement, Justice Kureshi gave the green signal for filing of a police complaint against Tanya for not disclosing to Mitesh the details of her previous marriage and divorce. But the court turned down Mitesh's plea that Tanya's police complaint against him and his family for not returning her belongings be quashed.

The court also refused to entertain Tanya's argument that even if Mitesh's allegation was accepted as true, it did not constitute an offence as her previous marriage had been annulled by the competent court in the US.

On the other hand, Mitesh in his complaint had argued that Tanya had concealed details of her previous marriage even in the marriage form. This amounted to cheating and forgery, he said.

"Tanya had made a false declaration saying that she was unmarried, after which he had agreed to marry her," Mitesh declared in his complaint.

In her complaint demanding the return of her belongings, Tanya stated Mitesh and his family had not returned what belonged to her. As per the terms of their divorce settlement, the two parties were supposed to return each other's property, she stated, adding that Mitesh was now saying that he and his family did not have any of Tanya's belongings.

Can't say husband impotent without proof: Guj HC

Can't say husband impotent without proof: Guj HC

Ahmedabad, August 25:  Gujarat High court hearing a divorce case has rejected the family court ruling granting divorce to a couple on the ground of impotency.

However, the high court upheld the family court order of divorce between the same couple on grounds of desertion and cruelty.

One Rajendra Dalal had challenged a family court's order granting divorce to his wife Dharmishta on the ground of impotency and cruelty, in the Gujarat High Court.

A division bench of Justice Jayant Patel and Abhilasha Kumari, last week, rejected the man's appeal, saying that the petition was devoid of merits.

The court, however, observed that there was no conclusive evidence to prove that the man was impotent or the marriage was not consummated. "The finding of the Family Court on this point, therefore, cannot be endorsed," it observed.

It said that the decree of dissolution of marriage has been passed by the Family Court under the provisions of Section 13(1) of the Hindu Marriage Act, on the ground of cruelty and desertion and not under Section 12 (impotency).

Also, the Family Court, while granting divorce had recorded cogent findings on the ground of desertion and cruelty against the man, the court added.

(with PTI inputs)

http://www.zopag.com/news/cant-say-husband-impotent-without-proof-guj-hc/25786.html

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HC: Can’t say husband impotent without proof

Ahmedabad, August 25, PTI:

The Gujarat High Court has observed that specific medical proof was required to determine whether a husband was impotent or his marriage cannot be consummated when a wife seeks divorce on this count.

A division bench of the HC comprising Justices Jayant Patel and Abhilasha Kumari has set aside the grounds for a verdict passed by a family court vis-à-vis a divorce petition. In the case involving an earthquake victim husband and his wife, the family court had granted divorce on the grounds of impotency and consequent ‘cruelty’.

Rejecting a family court ruling that granted divorce to a couple on the ground of impotency, the HC, however, upheld the family court order of divorce between the same couple on grounds of desertion and cruelty. Rajendra Dalal had challenged the family court’s order granting divorce to his wife Dharmishta on the ground of impotency and cruelty. It said the decree of dissolution of marriage has been passed by the family court under provisions of Section 13(1) of the Hindu Marriage Act, on ground of cruelty and desertion and not under Section 12 (impotency).

http://www.deccanherald.com/content/91446/hc-cant-say-husband-impotent.html

How HC FIRed away at courts, erring police officers

How HC FIRed away at courts, erring police officers

Aug 23 2010

This month, High Court issued a series of verdicts aimed at rectifying the judicial and police systems

Now that the Delhi High Court has entered the scene, lodging an FIR may become much easier for the common man. No longer will he have to run helter-skelter for getting the police to act on his complaint, or search for the right connections in the Capital’s officialdom to get the work done.

Striking a balance between its verdicts, the High Court also maintained that people caught in the wrong end of an FIR should not be subjected to undue harassment.

The court, in a string of rulings delivered in August, handed out a list of do’s and don’ts to the city police and lower courts, which reportedly resort to a “hyper-technical” approach while handling complaints.

Verbal complaint

The first landmark judgment in the series of recent verdicts came when Justice S N Dhingra held that a person need not essentially file a written complaint to get heard by a magistrate for registering an FIR. So, when a victim appears before a trial court and raises a complaint on the commission of an offence, the judge cannot dismiss his plea by saying he must first submit his complaint in writing and then produce the evidence and record his testimony. The High Court order obligates a magistrate to record the victim’s statement and order the police to probe into the matter after lodging an FIR, if the statement recounts a serious offence.

http://www.indianexpress.com/news/How-HC-FIRed-away-at-courts--erring-police-officers/663681

HC accepts that Dowry Act is being misused

HC accepts that Dowry Act is being misused

22 Aug 2010

BANGALORE: The High Court has strongly condemned the investigating officers for blindly registering cases of dowry harassment, without looking into the provisions under section 498A of Indian Penal Code (IPC).

While quashing the criminal proceedings initiated against the petitioners under 498A of IPC at the court of the chief metropolitan magistrate, Bangalore, Justice Subhash B Adi observed that the police had not taken into consideration section 498A of IPC to know whether the allegation amounted to cruelty, the court observed.

To prevent unscrupulous persons from misusing the law, a scrutiny of the complaint at the inception stage is advisable, the court told the investigating officers.

"Before proceeding with the criminal complaint, the investigating officer or the court must look into the allegation to find out whether it makes out a prima facie case to proceed.

"In most of the cases, the police use 498A of IPC more for harassment rather than it's real purpose. The police must use its authority to subserve the purpose for which the provision is made instead of misusing it," the HC told the investigating officers.

It is a common feeling that irrespective of the involvement or nexus to the alleged offence, even friends and distant relatives are implicated. This happens, because of non-application of mind by the police to the contents of the complaint and the offence alleged, which results in harassment of a person who is unconnected with the alleged offence.

Scrutiny of the complaint is necessary at least to know what offence is alleged. Particularly in the case of offence under section 498A of IPC and offence connected with matrimonial disputes, due care is necessary. In some cases, without even allegation, entire family, relatives and friends are made parties, the court observed.

PO Raju, Susamma, Joman Raju and Jolly Raju, all residents of Pathanamthitta in Kerala, filed a criminal petition challenging criminal proceedings initiated against them by Yelahanka New Town police station in a dowry harassment case filed by Raju's wife Jayashree.

Jayashree had alleged that her in-laws, residing in Kerala, threatened her not to come to Kerala after her husband had left the house in Bangalore.

She alleged that her in-laws instigated her husband to leave her company. Jayashree filed a complaint in jurisdictional police station against her in-laws. However, the petitioner's counsel stated that the allegations in the complaint did not constitute cruelty within the meaning of section 498A of IPC. The court upheld the contention and quashed the proceedings.

http://expressbuzz.com/cities/bangalore/hc-accepts-that-dowry-act-is-being-misused/200181.html

Let us live in: Man who married first cousin moves court

Let us live in: Man who married first cousin moves court

The Bombay High Court will now decide if the right to a live-in relationship can be extended to two consenting adults and first cousins.

Inderpal Walia, a 37-year-old merchant navy officer who married his first cousin Harmandeep in 2009, has moved a writ petition of habeas corpus in the HC after his wife was forcibly taken away by her family in September 2009.

Walia’s counsel Bhavesh Parmar, while admitting, that their marriage is null and void under the Hindu Marriage Act (HMA, 1955), argues that while as cousins they may not be allowed to marry, they have the right to live together as consenting adults.

“After all,” he argues, “There has been a plethora of judgments by the Supreme Court which has allowed consenting majors to live together. We have pleaded the same in our arguments that will be submitted across the bench.”

Walia claims, despite his efforts to establish contact with his 19-year-old wife, he has not seen or heard from her since September 13 last year. The primary concern, adds Parmar, is to produce Harmandeep in court.

In his petition he has detailed the dramatic circumstances under which they met and married according to Arya Samaj rituals in Mumbai. However, he alleges, on September 13, she was whisked away by her mother and relatives pretending to orchestrate a reunion with her ailing father.

When Walia tried to stop them by pulling the chain of the Frontier Mail, in which they were travelling, he was fined. The family, with Harmandeep, disappeared after the train reached Surat.

Parmar adds, “The girl’s family has filed a divorce proceeding in the district court at Amritsar where they have admitted the marriage took place at the insistence of some relatives.

As per law, the marriage is void and there is no question of divorce. But she is a major and as per the Supreme Court judgment she can be in a live-in with my client, who is also a major.”

It may be noted that a division bench of Justice B H Marlapalle and Justice Roshan S Dalvi which heard the matter has already issued notices to the girl’s family including her father to produce Harmandeep before the court and they were supposed to do the same on August 9, but none were present in the court on Monday.

When contacted, Harmandeep’s mother did not allow us to talk to her, but said, “We could not make it because my husband is not keeping well. Our daughter was not happy with him.”

The HC will now deliberate on the matter, which could seriously challenge the way society has traditionally defined incest and intimacy between two consenting individuals.

Harmandeep and Inderpal Walia after they got married in Mumbai

Over 5,000 matrimonial cases pending in Delhi alone

Over 5,000 matrimonial cases pending in Delhi alone

By Praveen Kumar
New Delhi, Aug 17 (IANS) More than 5,000 matrimonial cases have been pending since 1995 in various courts in Delhi. This was revealed during the hearing on a public interest litigation (PIL) filed in the Delhi High Court.

Justice Dipak Misra and Justice Manmohan issued notices to the central and Delhi governments on the PIL which sought directions for the speedy disposal of these cases filed under the Hindu Marriage (HM) Act.

The petition mentioned that there were a large number of pending cases in various district courts as the government had failed to provide exclusive courts to deal with cases related to marital discord and divorce, among others.

There are a total of eight district courts in the city that deal with cases under the act and 4,687 cases since 1995 have been pending in these courts. In Delhi High Court alone, 369 such cases are pending, said the petitioner who collected the data using a right to information (RTI) application.

Till May this year 846 new cases gave been filed in the high court, of which 609 have been disposed of.

The petition, taken up for hearing by the high court on Aug 11, said that the delays in these cases have been taking place as the courts are flooded with other types of cases as well.

The petition alleged that the courts have failed to implement provisions of the act which provide for speedy disposal of cases.

“The courts are adjourning matters without assigning any special reasons as prescribed under the provisions of section 21 B of the HM Act,” said the petition.

According to the act, the trial of a petition filed under it should be held on a day-to-day basis until its conclusion, unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

“Every petition under the act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent,” the petition said, quoting the act.

The petition also highlighted that in cases of divorce with mutual consent, the courts give six months’ time to both husband and wife to reflect on their move and seek advice from relations and friends.

“But even after this period is over, long dates are given by courts to come to final conclusion” the petition said.

According to the petition, a person filing a case under the act has to wait for a minimum of five years for its disposal before the district courts and a minimum of five years before appellate courts.

“During all these years when the couples are engaged in filing applications after applications, attending hearings, facing adjournments, the golden period of their life is lost in contesting the matter,” said Sarvesh Bisariya, the petitioner and counsel in the case.

This denies them an opportunity to live with dignity and honour, he said.

(Praveen Kumar can be contacted at praveen.k@ians.in)

http://www.thaindian.com/newsportal/uncategorized/over-5000-matrimonial-cases-pending-in-delhi-alone_100413524.html#ixzz0wrL31Hfr

HC refuses decree of divorce to a Muslim woman who married a Hindu but failed to prove the conversion- slammed the woman for taking advantage of the situation

No divorce as Woman fails to prove conversion

A Muslim woman who claimed to have converted to Hinduism failed to secure divorce and a maintenance order from the Delhi High Court under the Hindu Marriage Act after she  failed to prove that she had changed her religion. The court said the right will be available when both the parties

were Hindus and they continued to embrace the religion at the time of presentation of the petition in the court.  Dismissing Rehana alias Sushma Sharma’s petition (name changed),

Justice Kailash Gambhir expressed  concern at the reason for which people change religious in the present day when once it was only to attain spiritual advancement.

“These days, religious conversions are being increasingly made for anything but the primary reason for conversion —spiritual advancement”.

“The basic focus to convert from one religion to another is to seek God from another platform but unfortunately today it is increasingly being done to reap benefits and in cases like the present one,” the court said.

The woman and the man Sourav (name changed) were working as a clerk and an officer, respectively. She claimed they married in December 3, 1988 at an Arya Samaj Mandir, according to Hindu rites. She said she was seeking divorce owing to certain acts of cruelty and also alleged that he had married another woman.

Sourav on his part denied she had converted and also denied they were married.

 

http://www.hindustantimes.com/No-divorce-as-Woman-fails-to-prove-conversion/Article1-586942.aspx

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HC refuses decree of divorce to a Muslim woman who married a Hindu but failed to prove conversion

PTI

Hindu New Delhi, Aug 13 (PTI) The Delhi High Court today declined to grant decree of divorce to a Muslim woman, married to a Hindu, after she failed to prove her conversion from Muslim to Hinduism under the Hindu Marriage Act.

Justice Kailash Gambhir upheld a lower court's order and dismissed GA Arife alias Arti Sharma's petition for granting a decree of divorce against husband Gopal Dutt Sharma in March this year. The court also dismissed an application for permanent alimony to her daughter.

"The appellant (Arife) throughout her arguments failed to give any convincing reply to satisfy the court that she was successful in proving her conversion from Islam religion to Hinduism with the help of any documentary or oral evidence," Justice Gambhir said. "The basic focus to convert from one religion to another is to seek God from another platform but unfortunately today proselytisation is increasingly done for reaping benefits," the court said and slammed the woman for taking advantage of the situation.

Referring to the ruling of the apex court, the HC said "apostasy produces far-reaching results in the relations of husband and wife, where it is also a ground of divorce under the Hindu Marriage Act, and raises controversies like the present case demanding a mechanism in place to stop people from fishing in troubles waters."

Filing an appeal, Arife, alias Arti, said she got married to Sharma, her senior officer in the Directorate of Financial Planning in Air Ltd, against the wish of both the families in 1988 at the Arya Samaj temple. Seeking a decree of divorce, she alleged her husband had suggested her to go for abortion, to which she had objected and got to know about her husband's second marriage in 1989. She claimed her divorce petition was dismissed by a family court, after which she had filed her appeal in the High Court.

PTI PNM PNM

http://ibnlive.in.com/generalnewsfeed/news/hc-refuses-decree-of-divorce-to-a-muslim-woman-who-married-a/231114.html

New divorce law needs watertight safeguards: Delhi HC

New divorce law needs watertight safeguards: Delhi HC

New Delhi, Aug 9 (PTI)

Irretrievable breakdown of marriage should be brought within the folds of law as a ground for divorce with safeguards and message that it (divorce) is not a ''cakewalk'', the Delhi High Court has said.

The High Court said the legislatures in their wisdom can amend the Hindu Marriage Act to bring in its fold the irretrievable breakdown of marriage as a ground for divorce as recommended by the Law Commission.
However, it is expected that watertight safeguards are introduced so as not to send the message that divorce has now became a cakewalk, the court said.
"The ground of irretrievable breakdown of marriage cannot be resorted as a straight jacket formula leading to the institution of marriage becoming so fragile that the wrong- doer abuses it for his selfish ends leaving the other party in the lurch," Justice Kailash Gambhir said in a recent judgement.
Suggesting that there should be a minimum period before such ground can be invoked, the judge said "divorce on the ground of irretrievable breakdown of marriage might be contrary to common perception and the idea of marriage being a holy union for seven births...".
The court said that while invoking the ground of irretrievable breakdown of marriage for divorce by the husband, "the grant of divorce should be subject to the provision of adequate financial provision for wife".
It said there should be adequate provision for maintenance, education and upbringing of children whose custody  should be decided at the very stage of divorce.
The court's order came while dismissing a petition filed by Subhash Chandra Sharma challenging the lower court's March 2003 order dismissing his plea for divorce from his wife on the ground of cruelty and desertion.
The court rejected Sharma's argument that he had tried several times to resolve the differences with his wife but failed and at this stage the court can grant divorce on the ground of irretrievable breakdown of the marriage.
"The High Court in the exercise of its inherent powers cannot grant divorce on the ground of irretrievable breakdown of the marriage as it is not yet a ground of divorce under the Hindu Marriage Act," said the court.

http://www.deccanherald.com/content/87368/divorce-law-needs-watertight-safeguards.html

Justice Dhingra slams Delhi Police for filing dowry cases without proper probe

Delhi Police rapped for filing dowry cases without proper probe

Posted On: 06-Aug-2010 08:50:45 PM Source: IANS

A day after the Supreme Court held that a person cannot be convicted for merely demanding dowry, the Delhi High Court Friday pulled up the Delhi Police for registering a case of dowry against a person without carrying out a proper probe.

While granting bail to a person arrested under the dowry act, Justice S.N. Dhingra observed that before registering an FIR, the police must investigate the allegations levelled against a person in a detailed manner.

As per the prosecution, the complainant in the case, Ramesh Chand had alleged his daughter Geeta's brother-in-law, Jaipal and sister-in-law used to physically harass her. Geeta had married Mahadev Feb 16.

In his complaint, Ramesh Chand mentioned that during marriage, his daughter's father-in-law demanded a car which they could not give. After two months of the marriage, Mahadev started beating her. Also according to prosecution, Geeta's brother-in-law also harassed her, asking her to bring more dowry. Geeta committed suicide June 26.

While submitting his bail plea before the court, Jaipal contended that he did not demand anything either from Geeta or from any other member of her family.

'He was not involved in any act pertaining to the cruelty for any demand of dowry. There is absolutely no allegation in the entire prosecution story that the petitioner was involved in committing any act which can be covered under the four corners of the sections 498-A (Husband or relative of husband of a woman subjecting her to cruelty) and 304-B (dowry death) of IPC (Indian Penal Code),' submitted Amit Sahney, his counsel.

He also said that the police registered a case against him only on the allegations of Ramesh Chand. 'Police could not find anything incriminating against him. The entire story of the prosecution is based on surmises and conjectures and there is absolutely nothing on record against him,' he submitted.

http://sify.com/news/delhi-police-rapped-for-filing-dowry-cases-without-proper-probe-news-national-kigvadcjjjh.html

Don't do paternity test routinely: SC

Don't do paternity test routinely: SC

5 Aug 2010, 0420 hrs

NEW DELHI: In a significant judgement, the Supreme Court has said that paternity test to determine the identity of the child should not be done in a routine manner as it infringes on the right to privacy and may also render the child as bastard.

Such test should be done after taking into account various balancing acts and when it eminently required, said the apex court, setting aside the order of the Orissa High Court which had ordered for a DNA test to determine the paternity of a child in a matrimonial dispute.

“In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA is eminently needed.

DNA in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects, including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test”, said a bench comprising Justice Aftab Alam and Justice RM Lodha.

The court said, “in a matter where paternity of a child is in issue before the court, the use of DNA is an extremely delicate and sensitive aspect. One view is that when modern science gives means of ascertaining the paternity of a child, there should not be any hesitation to use those means whenever the occasion requires.

The other view is that the court must be reluctant in use of such scientific advances and tools which result in invasion of right to privacy of an individual and may not only be prejudicial to the rights of the parties but may have devastating effect on the child. Sometimes the result of such scientific test may bastardise an innocent child even though his mother and her spouse were living together during the time of conception”.

The court also expressed serious concern over the order of the Orissa State Commission for Women which had roped into matrimonial dispute to determine the rights of the parties and had passed certain directions.

“No power or authority has been given to the state commission to adjudicate or determine the rights of the parties”, said court
It said, the act of 1993 has not entrusted the state commission with the power to take up the role of a court or an adjudicatory tribunal and determine the rights of the parties. The state commission is not a tribunal discharging the functions of a judicial character or a court.

The court passed the judgement on the appeal filed by Bhabani Prasad Jena.

On May 15, 2007, the appellant and Suvashree Nayak got married. The certificate of marriage was issued by the marriage officer, Khurda, Bhubaneswar on June 30, 2007. However, in less than three months, on August 7, 2007, the appellant filed a petition under Section 25(iii) of the 1954 Act for a declaration that the marriage between him and Nayak was nullity as such marriage was consummated which is pending in the court.

However, on December 30, 2008, Nayak filed a complaint before Orissa State Commission for Women alleging that she was married to the appellant and due to torture meted out to her by the appellant and his family members and other issues, they have separated. She claimed that she was pregnant.

The commission ordered that maintenance was compulsory for the petitioner, as she has to have safe delivery and take care of the baby besides other directions.

The appellant then challenged the order of the commission in the high court. It had ordered for a DNA test of the appellant and the child. Against high court order, the appellant had came to the apex court. “The High Court instead of correcting that order went a step further and directed that DNA of the child as well as the appellant shall be conducted”, said Justice Lodha writing the judgement for the bench.

http://economictimes.indiatimes.com/News/Politics/Nation/Dont-do-paternity-test-routinely-SC/articleshow/6259104.cms?curpg=1

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.

http://www.dnaindia.com/india/report_couple-in-80s-battles-for-divorce-property_1418521

'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."

http://www.prokerala.com/news/articles/a156201.html