Judgments regarding Divorce, Remarriage under Hindu Marriage Act in Family Courts

Smruti Pahariya vs Sanjay Pahariya
DOD : 11 May, 2009 (SC)
Question: Preponement of proceeding u/s 13-B at back of one of the parties
Held – A Court’s proceeding must have a sanctity and fairness. It cannot be conducted for the convenience of one party alone. In any event, when the Court fixed the matter for a particular day, it could not pre-pone the matter on an ex-parte prayer made by one of the party and grant the decree of divorce on that day itself by treating the matter on the board in the absence of the other party. This is a flagrant abuse of the judicial process. On the question of how to ascertain continuing consent in a proceeding under Section 13B of the said Act. Further held – There should be mutual consent when they move the Court with a request to pass a decree of divorce and there should be consent also at the time when the Court is called upon to make an enquiry, if the petition is not withdrawn and then pass the final decree.

Ravinder Kumar vs Rekha Rani
FAO No. 8318 of 2014 (O&M),
DOD 12.02.2016 (P&H)
Question: Where a party to a petition u/s 13-B HMA withdraws consent in second motion – Question of restitution of amount received as lump sum maintenance.
Held – jurisdiction to make restitution is inherent in every Court and is to be exercised whenever the justice of the case so demands. A litigant cannot use the process of Court so as to surreptitiously obtain a benefit on the representation to do a certain act and thereafter retract from the representation that had been given but at the same time retain the benefit by taking a different, changed and a contradictory stand. wife having received an amount of Rs.6.25 lacs on the representation that she agrees to give divorce at the time of first motion of the proceedings of the joint petition but later on her refusal for divorce at the second motion, though legal, would necessarily imply that the benefit of Rs.6.25 lacs that she received on her representation for divorce is to be refunded and restored. Therefore, the amount which has been received by the appellant in consequence of the statements made at the first motion is liable to be restored to the respondent.

Jaspreet Kaur Dhaliwal vs Kulwinder Singh
FAO-M-492-2015, (P&H)
DOD 11.01.2016
Section 13-B HMA
Qus: Whether the parties can record statements in second motion though attorney?
Held – where trial court did not doubt the bonafides of the parties or legality of the prayer for dissolution of marriage, to insist upon the personal presence of parties, particularly where parties admittedly reside abroad, would perpetuate injustice, wastage of time and money.  In such circumstances trial court should not insist upon personal presence of the party to record statement in second motion.

Vikas Verma Vs Harpreet Kaur
2016 (1) Law Herald 688; Law Finder Id # 748984 (P&H)
Appeal against dismissal of petition u/s 13-B HMA
Held – Where parties filed a petition for grant of divocre my mutual consent and recorded statements in first motion, and wife received Rs.3 lacs as permanent alimony, wife however withdrew her consent in her second motion compelling the District Judge to dismiss the petition, it was held that the aggrieved spouse cannot maintained an appeal against the dismissal order. The only remedy available is to file appropriate application before district judge praying for refund of alimony.

Punam Vs Naveen
2016 (1) RCR (Civil) 995; (P&H)
Law Finder Id # 739189
Annulment of decree of divorce my mutual consent
Held – Decree of divorce my mutual consent passed by a court cannot be annulled by an assertion of any party later that the decree was meant to be sham for facilitating employment in a foreign county. Proceeding of court cannot be brought under thick clouds of irreverence if a party knows what was stated in the court was meant to be untruth and not to be acted upon.

Deepak Singh Vs Pooja
2016 (2) RCR (Civil) 742; (P&H)
Law Finder Id # 746959
Petition under Section 13-B – wife withdraws consent at second motion
Held – petition u/s 13B is founded upon mutual consent. An adverse inference or inference of consent cannot be withdrawn against a party which refuses to make statement at second motion. If the party that receives money retracts from mutual consent, such a party would be required to restitute the amount so received. A duty is caste upon the court seized of such disputes to restore parties to the position on the date of filing the petition.

Ramola Mander Vs Charanjit Singh Mander
2015 (3) Law Herald 2556; (P&H)
Law finder Id # 702882
Whether absence of one of the parties to joint petition, should entail dismissal of the petition outrightly
Held – where one of the party is absent during the course of second motion, the trial court should afford at least one opportunity to the party to appear for second motion before dismissing the joint petition as the same is moved jointly by the parties u/s 13B HMA.

P. Sunderraj Vs P Sarika Raj
AIR 2015 (P&H) 83;
Law Finder Id # 667859
Waiting period of 6 months u/s 13-B HMA
Held – the waiting period of six months from the presentation of the petition for divorce by mutual consent is mandatory and cannot be waived. Family court granted divorce on the basis of compromise petition, by dispensing waiting period of six months – such an order is in violation of Section 13-B

Harinderpal Singh Vs Ramandeep Kaur
2015 (4) RCR (Civil) 210; Law finder Id # 667881 (P&H) 
Divorce by mutual consent, trial court directed that minor daughter will retain lien over ancestral property of her father and grandfather
Held – it is settled provision of law that unless parties are directed to address a particular issue arisen in the lis, no court can pass any direction affecting the interest of anyone or the other. Trial court cannot traverse beyond mutual consent aggrieved between the party while passing decree u/s 13B. Trail court can pass order for maintenance u/s 25 and 26 only on agreed terms.

Mandeep Kaur Bajwa Vs Chetanjit Singh Randhawa
AIR 2015 (P&H) 160; Law Finder id # 708092
Condonation of period of one year u/s 14(1)
Held – on a combined reading of Section 13-B and 14 it is clear that before filing a petition a period of one year should elapse from the
date of marriage. The proviso to Section 14 (1) is an exception. The proviso can be exercised where the case is one of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.

Sakshi Vs Abinandan Sharma
2015 (2) RCR (civil) 876; Law Finder id # 654972 (P&H)
Condonation of period of one year u/s 14(1)
Held – Statutory period of one year u/s 14, can be condoned if the party are able to make out that it was a case of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.

Ashim Sethi Vs Meena Sethi
2015 (4) RCR (Civil) 807; Law finder id # 714432 (P&H)
Amendment of divorce petition to convert the same into consent petition under section 13-B
Held – though the law is well settled that amendment of plaint relates back to the date of filing the plaint.  However, amended joint petition for divorce would be taken to be filed and effective from the date it is filed. Doctrine of relation back would not apply.

Pooja Deswal Vs Sagar Deswal
2014 (3) RCR (Civil) 539; Law Finder Id # 558008 (P&H)
Wavier of statutory period u/s 13-B
Held – court has not power to waive statutory period of six months referred to in Section 13-B or condoned the said period.

Rajwant Singh Bains Vs Kulwant Kaur Bains
2014 (3) PLR 320; Law Finder id # 554596 (P&H)
Non appearance of the party at second motion – appearance through power of attorney
Held – merely because wife did not appear in person at second motion, ought not be a ground to disentitled her for matrimonial relief.  As per law party in a divorce petition can appear through power or attorney who is also a relation of the party. Statement can be recorded through power of attorney.

Gagan Sethi Vs Shilpa Sethi HLR 490; Law Finder Id # 428156 (P&H)
Withdrawal of consent on
Held – Withdrawal of consent second motion on second motion by wife does not amount of making false statement or resiling from first statement so as to amount to cheating. There is no bar u/s 13-B for either of the party to withdraw consent on second motion. Where the parties do not make statements at second motion no court can pass decree of divorce.

A.C. Mathivanan vs. B. Sathyabama
2016 SCC OnLine Mad 8884 –
DOD: 03.08.2016
S.13-B(2) of the Hindu Marriage Act Sub-Section (2) of Section 13-B only wanted the Court to satisfy as to whether the marriage has been solemnized and that the averments in the petition are true. In case the parties have been living separately one year before the initiation of joint petition for divorce and there was no scope for re-union, normally, the Court has no other option than to grant a decree of divorce Court cannot enlarge the scope of an enquiry under Sub-section (2) of Section 13-B of the Hindu Marriage Act and act like a fact finding authority once it is convinced that it would not be possible for the parties to live together and that they have opted to dissolve the marriage peacefully, the endeavour of the Court must be to grant a decree of divorce rather than compelling the parties to live separately even thereafter.

Mehul Mahendra Thakkar Vs Meena Mehul Thakkar
2009 (14) SCC 48
Matrimonial Dispute under Hindu Marriage Act, 1955, Section 27 Disposal of property- Interim Order – By the impugned order, the Court has directed the court Receiver to take possession of the flat from the appellant and induct respondent – wife in the flat during the pendency of the appeal. Family Court has reached the conclusion that both the husband and wife are joint owners of flat. Even before giving a verdict on the findings and the conclusions reached by the Family Court, by way of interim relief, the court has granted the main relief itself. This is unsustainable by way of interim relief. Final relief should not be granted till the matter is decided on way or the other.

K.A. Abdul Jaleel vs T.A. Shahida
Appeal (civil) 3322 of 2003, (SC)
DOD : 10 April, 2003
Whether the Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties
Held – It is now a well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation I appended to Section 7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up.

Balkrishna Ramchandra Kadam Vs Sangeeta Balkrishna Kadam
AIR 1997 SC 3562; 1997 (4) Section 27 of Hindu Marriage Act, RCR (Civil) 157; 1998(1) BCR 462(SC)
Jewellery and other property of divorced wife
The property as
contemplated by Section 27 is not the only property which is given to the wife at the time of marriage. It includes the property given to the parties before or after marriage also so long as it is relatable to the marriage. The expression at or about the time of marriage has to be properly construed to include all such properties The family court has to adjudicate upon to ascertain the property of the wife before passing a decree against the husband and cannot decline claim of wife for want of jurisdiction to adjudicate upon the issue of property. Case remanded to family court.

Urmila Rani (Smt) Vs Raj Kishan Gupta LAWS(SC)-1993-8-57 Decided on August 04,1993 (SC)
Hindu Marriage Act, 1955, Sections 27 and 13 Application under Section 27 filed by the wife in divorce petition filed by the husband under Section 13. Appellant had made no claim over the properties in the civil suit filed claiming alimony. Application even if filed long after the filing of the divorce petition and when the evidence of parties in the divorce petition was over and the case was due for final arguments is maintainable. Trial Court directed to dispose of application under Section 27.

Anita Vs Rakesh
2010(5) Law Herald 3579 Hindu marriage Act,1955, (P&H) Section 27-Disposal of Property Application for recovery of dowry articles on basis that stridhan articles belonged exclusively to wife. Court found that the plaintiff had failed Ito establish which particular articles were still in the custody of the respondent as stridhan. Direction for disposal of property that a matrimonial court could grant shall be only in relation to property which may belong jointly to both husband and wife. An exclusive property to one of spouses could not be a subject of a direction Under Section 27 of Hindu Marriage Act. Application not sustainable-Revision dismissed.

Vijay Kumar Duggal Vs Kamlesh Kumari
2005(2) R.C.R. (Civil) 271 (P&H)
Hindu Marriage Act,1955, Section 27-return of articles Entire articles including gold ornaments, clothes, cash, utensils directed to be returned to wife. Held, no order for return of gold ornaments, wrist watch, clothes and cash can be passed under Section 27 of act. No case for return of utensils is made since marriage took place 17 years ago. Order can be passed in respect of iron petti, sewing machine, ceiling fan, sofa set, double bed and dining table which are joint property for joint use of parties.

Bohti Devi Vs Karma 1996 (1) HLR 221 (P&H)
Section 13 & Section 27 of HMA
No order of return of dowry articles can be passed after lapse of long time of marriage. However husband can be directed to pay cash in lieu of dowry articles

Neel Kanth  Family Courts Act, 1984,
AIR 2011 Hindu Marriage Jaiswal Vs. Manju Lata Jaiswal Chhattis-garh 6 Act,1955, Sections 27 & 13 – issue of return of Stridhan, Civil Procedure Code,1908, Section 11-Resjudicata- Section 7(1) Explain 2I. Recovery of stridhan – Family Court dealing with the divorce 4roceeding under the Hindu Marriage Act is not competent to decide the issue relating to return of stridhan in terms of Section 27 of the Act.  An independent suit claiming return of stridhan is maintainable in accordance with Section 7 of Family Courts Act. Matter directly and substantially in issue of return of Stridhan decided by the court in previous divorce 4roceeding. Subsequent suit claiming return of stridhan. Issue of return of stridhan before both the courts cannot be said to be directly and the substantially one and same as previous suit was for divorce. Subsequent suit ‘for return of stridhan held not barred on the principles of resjudicata.

Lalita Devi Vs Laxminarayan
(2008) DMC 351 (MP)
Maintainability of Application u/s 27 of Hindu Marriage Act, 1955; Hindu marriage Act,1955, Section 27-Application for disposal of Property-Maintainability of. Application of appellant Under section 27 dismissed by family court on the ground that no 4roceeding under the act are pending between parties-
Held as per section 27 in any pending proceeding under Act, Court may make such provisions in decree as it deems just and proper with respect to any property presented, at or about time of marriage. Held – that application u/s 27 is not maintainable independently. As per Section 27 in any pending proceeding under this act court may make such provisions in the decree as it deems just proper with respect to any property presented, at or about time of marriage. It is mandatory that 5roceeding between the parties must be pending for maintainability of application u/s 27 of the act.

Nirmala Rawendra Gupta Vs Rawendra Kumar @ Munna Gupta
1996 MPLJ 1128; AIR 1996 MP 227
Suit for recovery of ‘Stridhan’ Section 27 of HMA Order 7 Rule 7 of CPC Section 151 of CPC.  In appeal, Court holding that property claimed by wife belonged to her exclusively and it did not belong jointly to both husband. Even though Section 27 of the Act is limited to article of both husband and wife jointly belonging to them and may not apply to stridhan of wife. There is nothing in Section 27 which prevents Court from adopting procedure Under Section 151 of Civil Procedure Code to restore the property to the wife.

Arun Kumar Vs Smt.Indira
AIR 2005 Allahabad
406 Hindu Marriage Act,1955, Section 27-Scope-Disposal of Property All properties given in connection with the marriage either at the time of marriage or before the marriage or after the marriage can be dealt with Under Section 27 of the Act. View of presiding Officer that ornaments and wearing apparels could not be dealt with Under Section 27 of the Act erroneous.

Shakuntala Vs Mahesh Atmaram Badlani
AIR 1989 Section 27 Hindu
Disposal of property-Claim of Bombay 353; MANU/MH/0272/ 1989 Marriage Act, Section 42 of Parsi Marriage and Divorce Act. wife that it was her exclusive property. Held – that the court has no jurisdiction to dispose of such property under Section 27 which confines the jurisdiction of court to dispose of only such property that has been presented at or about the time of marriage and which belongs jointly to husband and wife. Merely because under the consent terms both the parties had prayed to the court to decide the, question, that by itself cannot confer jurisdiction Under Section 27 to the court.

Ashok Kumar Vs Usha Rani Kad
1984(26)DLT 398; 26 (1984) DLT 398; MANU/DE/0386/1984 U/s 27 Hindu Marriage Act, 1955
Disposal of property given at the time of marriage-Nature of the property which the court can order Under Section 27 to be returned-Held that the appellant cannot be directed to refund the amount of Rs.1,100.00 which was given to him at the time of engagement ceremony-Although he is liable to refund the other cash presents which were given to both him and the respondent on the occasion of other ceremonies. Hindu Marriage Act,1955, Section 27-Disposal of property given at or about the time of marriage-Price Of various articles-No receipt showing the price paid-Order 8, Rules 4 & 5 Civil Procedure Code require that the pleadings should be specific-Half admission or half denial would be termed as evasive and deemed admission.

Kanwalvir Singh Kang vs Amanpreet Kaur And Anr
CR No.4109 of 2016 (O&M), (P&H HC)
DOD: 14 June, 2016
On an application filed by one of the parties under Section 21-B of the Hindu Marriage Act for issuing appropriate directions to the trial Court to expedite the decision of HMA Case
Held – the Statute itself mandatorily requires the disposal of the divorce petition, preferably within a period of six months.

Rupak Rakhi Vs Anita Chaudhary
2014 (3) PLR 407; (P&H)
Law Finder Id # 542104
Hindu Couple married in India according to Hindu Rights and set up matrimonial home in united kingdom Whether foreign court can grant decree of divorce to Hindu couple married under HMA Held – Hindu Couple married under Hindu Marriage Act – settled in a foreign country – foreign court can grant decree of divorce on ground available under HMA with consent of the parties. A decree of divorce by foreign court on ground irretrievable break down of marriage is not valid in India because this is no ground of divorce under HMA. No decree of divorce can be obtained from foreign court on ground not available under HMA. Where parties confer jurisdiction on the foreign court, the said court will assume jurisdiction available to matrimonial court in India and would remain confine to adjudicate the action in accordance with matrimonial law of the parties. Detailed guidelines have been issued by this judgment to the court in India dealing with execution of the foreign court decree.

Court On Its Own Motion vs Munish Son Of Madan Lal, Nilokheri
COCP No.2187 of 2014, DOD 17.11.2015 (P&H)
Remarriage by husband during pendency of appeal against a decree for dissolution of marriage.
Held – if an appeal is filed by the wife within the period of limitation and if the husband had no knowledge nor summons were served upon him by the Court and he solemnizes his second marriage, then he would be guilty of disobedience to the “other process of the Court”, a civil contempt, within the ambit of Section 2(b) of the Contempt of Courts Act, 1971.

Balram Yadav vs Fulmaniya Yadav
AIR 2016 SC 2161
Over riding effect of Family Courts Act over other laws Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws.

Shamima Farooqui Vs Shahid Khan
AIR 2015 SC 2025
Approach of Family Court Judge Family Courts have been established for adopting and facilitating the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. Further held – Family judges expected to be sensitive to the issue pertaining to the marriage and issues ancillary thereto. Family judge should remember that procrastination is the greatest assassin of the list before it. Further held – There has to be a pro active approach in this regard and the said approach should be instilled in the family court judges by the judicial academies functioning under the High Court.

Surya Vadnan Vs State of Tamil Nadu & Ors
AIR 2015 SC 2243
Judgments of Foreign Court If there exists pre existing order of foreign court of competent jurisdiction and the domestic court decides to conduct elaborate enquiry, it must have special reasons to do so Elaborate enquiry must not be ordered as a matter of course While deciding whether summary or elaborate enquiry should be conducted, domestic court must take into consideration full factors Nature & effect of interim or interlocutory order passed by foreign court Existence of special reasons for repatriating or not, the child to jurisdiction of foreign court That repatriation of child does not cause any moral or physical ,social or cultural or psychological harm to the child Nor should it cause any legal harm to the parent with whom the child is in India The electricity with which the parent moves the concerned foreign court or concerned domestic court is also relevant If time gap is unusually large and is not reasonably unexplainable and child has developed firm roots in India- domestic court may be well advised to conduct elaborate enquiry.

Bhuwan Mohan Singh Vs Meena and others
AIR 2014 SC 2875;
(2015) 6 SCC 353 Maintenance Section 125 Crpc Whether the Family Court while deciding an application under Section 7 of the Family Court Act, should allow adjournments in an extremely liberal manner. Held – Family Courts have been established for adopting and facilitating the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. Further held – Family judges are expected to be sensitive to the issue pertaining to the marriage and issues ancillary thereto. Family judge should remember that procrastination is the greatest assassin of the list before it.

P. Sunderraj Vs P Sarika Raj
AIR 2015 P&H 83; Law Finder Id # 667859
Jurisdiction to set aside decree passed by family court of another place Judgment and decree passed by Family Court at Hyderabad dissolving the marriage on the ground of cruelty. District Judge Family Court Gurugaon vide impugned judgment and decree, cancelled the judgment and decree passed by Family Court Hyderabad. Held – according to Section 7(1) of the Family Courts Act, Family Court is a civil court and has all the powers, jurisdiction and trappings of a civil court. The family court has the jurisdiction to set aside of nullified a decree passed by it or by a co-ordinate court. A decree of a family court cannot be set aside in a declaration suit before a regular civil court.

Kusum Sharma Vs Mahinder Kumar Sharma
AIR 2015 Delhi 53
Procedure to be adopted – The Family Courts Act adopts a less formal procedure. Although Section 10 of the Act makes the procedure laid down under the Code of Civil Procedure, 1908 applicable to Family Court proceedings, it also lays down that the Family Court is free to evolve its own rules of procedure. Section 10(3) of the Family Courts Act specifically uses the word ‘truth’ and casts a duty on the Family Court to lay down procedure to determine the truth of the facts alleged by one party and denied by the other Truth should be the Guiding Star in the Entire Judicial Process It is the duty of the Court to ascertain the true income of the parties and then pass the appropriate order relating to maintenance. Truth is the foundation of justice. Dispensation of justice, based on truth, is an essential feature in the justice delivery system. People would have faith in Courts when truth alone triumphs.

Davu Gopal Lunani Vs. Siva Gopal Lunani
AIR 2014 AP 29; 2014 (1) ALT 396
Section 7 of Family Courts Act vis-à-vis jurisdiction of Civil Court With reference to Section 7 (1) of Family Courts Act. A suit for declaration filed a person claiming that defendant was the father and that plaintiff was born to defendant No.2 out of a long cohabitation between defendant No.1 and defendant No.2 as man and wife.
Question – Jurisdiction of Family Court under Family Courts Act. Held – a suit or proceeding between parties to marriage alone is dealt with under Clause (a) to Section 7 (1). To come within clause (e) – that third party, who has filed the suit, should be obviously be off spring of persons having a matrimonial relationship. Family Court cannot entertain any suit or proceeding for a declaration as to legitimacy of any person without establishing validly any claim of marital relationship of parents. Therefore, matter will not fall under the purview of Clause (e) to Sub Section (1) of Section 7. Jurisdiction of the Civil Court is not barred by Section 8 of Family Courts Act.

Syamala Devi Vs Sarala Devi
2009 (5) RCR Civil 421 (Kerela HC)
Declaration of Status as legally wedded wife. Dispute between two parties, seeking declaration that plaintiff is legally wedded wife of a deceased. Even if the dispute is not between parties to alleged marriage, or even after the death of either or parties to marriage. Such dispute falls within purview of Section 7 (b) of Family Courts Act. The husband, during the pendency of the proceedings, if dies, the proceeding does not become abated or cease to be triable by the Family Court. It will be continued by the heirs of the husband claiming themselves to step into the shoes of the husband or by those interested to prosecute the matter. Such proceedings will certainly fall under the jurisdiction of the Family Court.