498A cruelty

Section 498A. Husband or relative of husband of a woman subjecting her to

cruelty.

1[Whoever, being the husband or the relative of the husband of a woman, subjects
such woman to cruelty shall be punished with imprisonment for a term which may
extend to three years and shall also be liable to fine.
Explanation.—For the purposes of this section, "cruelty means"—
(a) anywilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet
such demand.]

refer family courts act

check jurisdication

order of cpc

check limitation act

conjugal rights sec 9

Section 9. Restitution of conjugal right.

1 When either the husband or the wife has, without reasonable excuse, withdrawn
from the society of the other, the aggrieved party may apply, by petition to the
district court, for restitution of conjugal rights and the court, on being
satisfied of the truth of the statements made in such petition and that there is no
legal ground why the application should not be granted, may decree restitution of
conjugal rights accordingly.
2 [Explanation.—Where a question arises whether there has been reasonable excuse
for withdrawal from the society, the burden of proving reasonable excuse shall be
on the person who has withdrawn from the society.]

There are three important requisites to be fulfilled for Section 9

Spouses must not be staying together.
Withdrawal of a party from the other must have no reasonable ground for such
withdrawal.
The aggrieved party must apply for restitution of conjugal rights.

Basis on which petition for Restitution of Conjugal Rights can be rejected

If the respondent is capable of claiming any matrimonial relief.
If the petitioner accepts that he has committed any matrimonial misconduct.
If the petitioner’s action makes it impossible for the respondent to stay with him.
Onus under Section 9 of Hindu Marriage Act
Primarily, the petitioner has the burden to prove that the respondent has left him.
When the petitioner successfully proves this, the burden shifts to the respondent
to prove there is a reasonable ground to support as to why the respondent went away
from the petitioner’s society./
cases

In the 1960s, the Punjab and Haryana High Court in the Tirath Kaur case, upheld
restitution of conjugal rights, noting that “a wife’s first duty to her husband is
to submit herself obediently to his authority and to remain under his roof and
protection”.

In 1984, the SC had upheld Section 9 of the Hindu Marriage Act in the case of Saroj
Rani v Sudarshan Kumar Chadha, holding that the provision serves a social purpose
as an aid to the prevention of break-up of marriage.

DIVORCE

The Hindu Marriage Act is based on the fault theory in which any one of the
aggrieved spouses (Section 13(1)) can approach the court of law and seek the remedy
of divorce. Section 13(2) provides the grounds on which only the wife can approach
the court of law and seek the remedy of divorce.

Grounds of Divorce as per The Hindu Marriage Act

Adultery
The concept of Adultery may not be considered as an offence in many countries. But
as per the Hindu Marriage Act, in the matrimonial offence, the adultery is
considered as one of the most important ground for seeking divorce. Adultery means
the consensual and voluntary intercourse between a married person with another
person, married or unmarried, of the opposite sex. Even the intercourse between the
husband and his second wife i.e. if their marriage is considered under bigamy, the
person is liable for the Adultery.

The concept of Adultery was inserted under the Hindu Marriage Act by the Marriage
Laws Amendment Act, 1976.

In Swapna Ghose v. Sadanand Ghose

In this case, the wife found her husband with other girl lying on the same bed and
the neighbour also confirmed that the husband has committed an offence. Here the
wife gets the divorce.

In Sachindranath Chatterjee vs Sm. Nilima Chatterjee

In this case, the petitioner and the defendant were married. After marriage, the
husband leaves the wife in his home town so that she can complete her studies and
go to another city for work. He visited twice or thrice a month to meet her. Later
he found that his wife commits the adultery i.e. to involve in sexual intercourse
with his own nephew, watchman etc. The plaintiff approaches the court to demand
divorce on the ground of adultery and his petition was accepted and the marriage
gets dissolved.

Essentials of Adultery
One of the spouses involved in the intercourse with another person, married or
unmarried, of the opposite sex.
Intercourse should be voluntary and consensual.
At the time of the act, the marriage was subsisting.
There must be sufficient circumstantial evidence to prove the liability of another
spouse.
Cruelty
The concept of cruelty includes mental as well as physical cruelty. The physical
cruelty means when one spouse beats or causes any bodily injury to the other
spouse. But the concept of mental cruelty was added as the spouse can also be
mentally tortured by the other spouse. Mental Cruelty is lack of kindness which
adversely affects the health of the person. Well it is easy to determine the nature
of physical cruelty but difficult to say about mental cruelty

What is considered as Mental Cruelty against Husband by wife:

Humiliating the husband in front of his family and friends.
Undertaking the termination of pregnancy without husband consent.
Making false allegation against him.
Denial for Martial Physical Relationship without a valid reason.
Wife having affair.
Wife living an immoral life.
The constant demand for money.
Aggressive and uncontrollable behaviour of Wife.
Ill-treatment to the husband parents and family.
In Balram Prajapati vs Susheela Bai

In this case, the petitioner filed the divorce petition against his wife on the
ground of mental cruelty. He proved that his wife that behaviour with him and his
parents was Aggressive and uncontrollable and many times she filed the false
complaint against her husband. The court accepts the petition and grants the
divorce on the ground of cruelty.

What considered as Mental Cruelty against wife by Husband

False accusation of adultery.
The demand for dowry.
Impotency of Husband.
Force to abort the child.
The problem of drunkenness of husband.
Husband having affairs.
The husband lives an immoral life.
Aggressive and uncontrollable behaviour of the husband.
Humiliating the wife in front of family and friends

Desertion
Desertion means the permanent abandonment of one spouse by the other spouse without
any reasonable justification and without his consent. In General, the rejection of
the obligations of marriage by one party.

Essentials
Permanent abandonment of the other spouse.
Rejection of the obligation of marriage.
Without any reasonable justification.
No consent of another spouse.
In Bipin Chander Jaisinghbhai Shah vs Prabhawati

In this case, the respondent leaves the house with the intention to abandon his
wife. Later the wife approaches the court, but the defendant proved that even
though he left the house with the intention to desert, but he tried to come back
and he was prevented from doing so by the petitioner. Here, the defendant cannot be
held liable for desertion.

Conversion
If one of the spouses converts his religion to any other religion without the
consent of the other spouse, then the other spouse can approach the court and seek
the remedy of divorce.

Illustration
A, a Hindu has a wife B and two children. One day A went to church and converted to
Christianity without the consent of B, here B can approach the court and seek for
divorce on the ground of conversion.

In Suresh Babu vs Leela

In this case, the husband converts himself into Muslim and marries another woman.
Here the wife Leela filed a case and demanded the divorce on the ground of
conversion without her consent and cruelty.

Insanity
Insanity means when the person is of unsound mind. Insanity as a ground of divorce
has the following two requirements-

The respondent has been incurably of unsound mind.

The respondent has been suffering continuously or intermittently from mental
disorder of such a kind and to such an extent that the petitioner cannot reasonably
be expected to live with the respondent.

In Vinita Saxena vs Pankaj Pandit

In this case, the petitioner filed a case to get the divorce from the respondent on
the ground that the respondent was suffering from Paranoid Schizophrenia which
means mental disorder. She came to know these after her marriage. Here, the court
grants the divorce on the ground of insanity of husband.

Presumption of Death
In this case, the person is presumed to have died, if the family or the friends of
that person does not hear any news about the person alive or dead for seven years.
It is considered as the valid ground for divorce, but the burden of proof is on the
person who demands the divorce.

Illustration

A was missing from the last seven years and his wife B does not get any news about
him of being alive or dead. Here B can approach the court and ask for the divorce.

Concept of Divorce with Mutual Consent

As per Section 13B, the person can file the petition for divorce by mutual consent
of both the parties. If the parties want to dissolve their marriage as a mutual
consent are required to wait for one year from date of marriage. They have to show
that they are living separately for one or more year and not able to live with one
another.

No petition for Divorce within one year of Marriage

As per Section 14, no Court will entertain the petition of divorce within the one
year of the marriage. But can be entertained if the matter is related to bigamy,
and where the consent of the spouse was taken through misrepresentation, fraud,
undue influence etc.

Remarriage of Divorced Person

As per Section 15, after the marriage gets dissolved and no further petition was
filed by any of the spouses against the order of the court and the time for appeal
has expired. At that time it is assumed that both the spouse are satisfied. Then
only the divorced person can marry again.
 REMARRY

Mostly, When Husband & Wife take divorce in presence of each other & neither
Husband nor wife appeals in court for 90 days, then Husband or wife can remarry.

Exparte Divorce can be called off and one can put an application for a chance of
justification in Court. The absent party can justify a valid reason for not
attending the date. In that case, Court may call off the Exparte decree of divorce
and case can be revived.

Order 9 Rule 13 read with Section 151 CPC was allowed and the ex-parte divorce
decree passed Family Court was set aside. The matter was remitted back to Family
Court. [R v. S.B.K., 2019 SCC OnLine Del 6929, dated 25-01-2019]

EXPARTEE DECREE

The court has jurisdiction to pass an ex-parte decree under Order 9 Rule 6 of the
CPC. The order states that if the defendant does not appear before the court
despite having summons served on him, the court can pass an ex parte decree. But if
the summons is not duly served, the court will issue another summons to the
defendant. When the summons is served properly but the defendant does not get
enough time to be present in court, the court will postpone the proceeding to a
future date. If the court finds that the summons was not served properly due to the
plaintiff’s fault, then the court will ask the plaintiff to pay the cost of
adjournment of the hearings.

In Bhanu Kumar Jain v. Archana Kumar & Anr (2004), the Supreme Court stated that it
is permissible for the defendant to argue that he had sufficient and reasonable
grounds for not being able to attend the hearing of the suit on a relevant day,
except to challenge the authenticity or otherwise of an order posting the matter
for ex-parte hearing.

Setting aside an ex-parte decree under Order 9 Rule 13 CPC

Summons duly not served well:

When the suit is filed in court, from the filing date of the suit to thirty days
afterwards, the summons must be served to the defendant. The summons is the
official notice that the defendant must appear in court on their behalf. But there
are certain scenarios, such as the postal address being incorrect or changed, where
the plaintiff has not paid the fees. When the summons is not served properly to the
defendant or the defendant does not get enough time to appear before the court.
Then the court may set aside the ex parte decree.

In Subodh Kumar v. Shamim Ahmed (2019), the Supreme Court held that if the
defendant proves that the summons had not been served properly, then the court
could set aside the ex parte decree passed against all the defendants.

In Sushil Kumar Sabharwal v. Gurpreet Singh and Ors (2002), the Court admitted that
the summons was not duly served to the defendant and that the defendant did not
have enough to be present in court.

In Gauhati University v. Shri Niharlal Bhattacharjee(1995), the Supreme Court

stated that when the summons was not served properly, the limitation period begins
when the appellant knew of the ex parte decree.
Sufficient cause:
When the court finds sufficient grounds for the non-appearance of the defendant,
the court will set aside the ex parte decree. The term ‘sufficient cause’ is not
defined in the code. The court will determine through its interpretation in
different cases. The defendant has the burden of proof to prove sufficient cause
for non-appearance in court.

In G.P. Srivastava v. Shri R.K. Raizada & Ors. (2000), the Court said that if the
party is not able to set any ‘sufficient cause’ for his nonappearance on the fixed
date then the ex parte proceedings will be initiated against him.

In New Bank of India v. M/S. Marvels (India) (2001), when the appellant was not
able to present sufficient cause in the court and was found negligent in presenting
his case, the court could not set aside the decree.

In Parimal v. Veena @ Bharti (2011), the Supreme Court stated that the term
‘sufficient cause’ means the defendant did not act negligently and genuinely wanted
to be present when the case was summoned for hearing and used his best effort to do
so.

Limitation for filing an appeal

After receiving the summons from the court, the defendant will have thirty days to
file his written statement against the plaintiff’s plaint. The defendant either
accepts the claims made in the plaint or rejects them. The defendant can also raise
new facts in his written statement. Order 8 Rule 2 of the CPC deals with the
written statement. A written statement can be filed by the defendant itself or by
its legal representative. If the defendant fails to file the written statement
within thirty days, then the defendant will have ninety days to file the written
statement. The reason for the time extension is recorded, and it will not be
extended anymore.

When there is more than one defendant in a suit, they can file one written
statement, which is duly signed by all the defendants. Defendants can also file
different written statements. If the defendant fails to submit the written
statement within one hundred twenty days(i.e., 30 days plus 90 days), then the
court will pass an ex parte decree and the defendant’s right to file a written
statement will be forfeited.

In the case of SCG Contracts India Pvt Ltd v. K S Chamankar Infrastructure (2019),
the Supreme Court held that the defendant has 120 days to file a written statement.
If the defendant fails to file, their rights will be forfeited. The court shall not
allow the recording of the statement under Order 8 Rule 1, and the court does not
have the power to accept the written statement after the expiry of 120 days as per
the provisions of Order 8 Rule 10.

Bigamy

According to Section 5 of the Hindu Marriage Act,1995 the conditions necessary at

the time of marriage is that both the partners getting married should not be having
a living spouse.
But there is an exception provided by Section 494 of IPC, it states that either of
the partners can contract a second marriage after the long absence of her partner
for a period of seven years.
Essentials of Section 494 of IPC
The first marriage should be according to the law i.e, it should be legal
Second marriage should have taken place
The first marriage should be existing
The spouse must be alive
Both marriages should be valid
Classification of offence
It is a non-cognizable offence.
It is a bailable offence

Section 494
This Section states that any person who is already having a husband or wife and
marries another person in existence of previous spouse, then the person shall be
punished with imprisonment which shall extend to seven years and would be liable to
fine.

In the case of Venugopal. K v. Union of India (2015), the court held that any
person who commits the offence of bigamy will be punished under Section 494 of IPC
regardless of what laws he/she is governed by.

But a person can not be convicted under this section when the marriage has already
been declared void by the court.
When one of the spouses is missing for a period of seven years and there is no
information about his existence then the other partner can contract another
marriage. But the spouse needs to open the facts before the person whom they are
getting married.

Where the second marriage has taken place according to the Hindu Marriage Act but
is invalid according to the provisions of this act, then the second wife has no
right to claim.

Bigamy under the Hindu Marriage Act, 1955

The enactment of the Hindu Marriage Act in 1955 changed the system of marriages
amongst the Hindus. Before the Act, polygamy was accepted amongst the Hindus. This
Act prohibited the practice of polygamy. Section 5(i) of the Act states that for a
valid marriage both the parties should not have spouses living at the time of
marriage. Further, Section 17 of the Act states that any marriage between two
Hindus will be void if, at the date of the wedding either party has a husband or a
wife living.

In the case Gopal Lal v. State of Rajasthan (1979), the appellant, belonging to the
Telli community, after parting ways with his first wife, married for the second
time. The first wife filed a complaint and ended the appellant’s conviction under
Section 494 of the IPC. The conviction was upheld by the Rajasthan High Court. The
case then went to the Supreme Court. It was held by the Supreme Court that a second
marriage is void under Section 17 of the Hindu Marriage Act.

Bigamy as a ground for divorce under the Hindu Marriage Act, 1955
Section 13 of the Hindu Marriage Act mentions the various grounds for divorce.
There are nine grounds for divorce. Bigamy is not included in these nine grounds.
It is because it is an offence that makes the marriage void. The parties involved
do not have to file for divorce again because it is understood that bigamy is
naturally a ground for divorce.

In this case, the appellants were punished under Section 494 of the IPC. it was
held that bigamy is non-cognizable, bailable, and thus a compoundable offence.

M.Saravana Porselvi v. A.R. Chandrashekar (2008)

In this case, the appellant was married to the respondent and they both were living
separately. The parties agreed to divorce and the appellant also received permanent
alimony. However, the respondent married again and also had two children. This fact
was not known to the appellant. Hence, she filed a petition against the respondent
stating that she came to know of the fact of the second marriage at a time when
divorce proceedings were still going on. The court held that the criminal
proceedings against the offence of bigamy can be set in motion at any time after
the registration of the second marriage. There is no limit to when action can be
taken against the offence of bigamy.

Sarla Mudgal v. Union of India (1995)

In this case, there were two petitioners. Both the petitioners alleged that their
respective husbands married for the second time and converted to Islam for the same
purpose thus, avoiding the provisions of Section 494 of the IPC. The Supreme Court
observed that a person who was a Hindu had converted to Islam and married again
despite not taking divorce from the first wife. Such a marriage is void, and the
person shall be punished under Section 494 of the IPC.

order 21 rule 32 33
1[25. Power of Supreme Court to transfer suits, etc.--(1) On the application of a
party, and after notice to the parties, and after hearing such of them as desire to
be heard, the Supreme Court may, at any stage, if satisfied that an order under
this section is expedient for the ends of justice, direct that any suit, appeal or
other proceeding be transferred from a High Court or other Civil Court in one State
to a High Court or other Civil Court in another State.