"No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act (Protection of Women from Domestic Violence Act) but then it is not for this court to legislate or amend the law.
MRKGANDHI
wrote on 24 October 2010 In the Lawyers club India WebSite:
An excellent judgment by apex court. Even the advanced society never intended to bind the partners for their casual or one night relations. For arguments can a man demand restoration of relation, if woman deserts him. The law makers make popular legislation without long leading absurdity.
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From the above quoted Domestic Violence book of the NGO lawyers collective, the Author want to quote the following, than re-writing, because re-writing may reduce the comprehension:-
“Civil Remedies against Domestic Violence (Book written prior to enacting of Protection Women from Domestic Violence Act, 2005):- (a) That the spouse be restrained from further molesting or abusing you and your children; (b) that the spouse be restrained from ousting you and your children from the home; (c) that the spouse be restrained from entering the premises or any part of it, such as for example, the room occupied by you; (d) that you/ your children be restored to the home; (e) that you/ your children be granted exclusive possession of the home; (f) that the spouse be ordered no to enter a specified place such as your residence, the children’s school, or your place of employment; (g) that the spouse hand over temporary possession of personal property to you; (h) that the spouse be restrained from transferring the matrimonial home, or letting it out or inducting any third party into the home; and (i) in the case of Hindu women who have the right to reside separately, asking the spouse to pay the expenses for shelter u/s 18(1)(2) of the Hindu Adoption and Maintenance Act”.
“Courts will apply different considerations if the welfare of the children is in jeopardy. They are more likely to grant an order ousting a violent husband from the house, if violence to children is apprehended. This means that you should tell your lawyer and the Court of any threatening or abusive acts by your husband which in any way involve your children, either in the past or any you may fear in the future; your children are ‘involved’ if they have been abused directly by your husband or have seen his abusive behaviour towards you. In these situations, the Court is likely to focus on the welfare of the children above all else”. However, how can a wife who behave like this as reported in 1996 (63) DLT 704 : 1996 LE(Del) 476 : 1996 (3) AD(Del) 862 : 1996 (38) DRJ 636; can be tolerated ? Should the Husband wait till the Children get majority and file an Affidavit in his favour. The Affidavit by the daughter against her mother, in favour of her father is quoted supra. Relying upon that affidavit, her mother was ousted from a house which had been in her own name vide 1996 (63) DLT 704 : 1996 LE(Del) 476 : 1996 (3) AD(Del) 862 : 1996 (38) DRJ 636. It is a case of Gender equality. Persons who are reading this book is requested to send their comments with complete citation. Please note, many a females resort to harassing Husband only with a belief that, Legal Loop-holes may help her. Thus only the Daughter in the quoted Affidavit can stabilize the mother from destroying her own home.
“Part-2 Criminal remedies”, para 2: “usually, criminal charges are filed against someone you know when your relationship with that person is beyond retrival and you no longer wish to continue it”. “An Non-cognizable complaint filed with the Police Station can be used as evidence in a civil Court to show a history of violence and may enable you to get a civil injunction”.
Examples of cruelties under Section 498A IPC are:- “(1) Persistent denial of food. (2) Insisting on sexual conduct which is perverse. (3) Constantly locking a woman out of the house. (4) Denying access to children, thereby causing mental torture. (5) Repeated physical violence. (6) Taunting, demoralizing and putting down the woman with the intention of causing mental torture. (7) Confining a woman in the home and not allowing her normal social intercourse (= activities), (8) Repeatedly abusing children in the presence of the mother with the intention of causing mental anguish. And (9) Constantly denying the paternity of the children with the intention of causing mental pain”. Methods of Dowry harassments are:- “(a) throwing you out of the house and refusing to take you back unless you bring dowry. (b) Constantly taunting you that your parents/ relatives did not give dowry. (c) physically abusing or coercing you to meet a demand for dowry. (d) threatening divorce unless you give dowry. (e) demanding valuables such as a fridge, TV, VCR (in today’s circumstances DVD Player, Digital camera etc) or other consumer goods for the home. (f) demanding jewellary on the occasion of a relative’s marriage”. The conduct of husband and his relatives must be shown to be repeated and consistent. Isolated demands are not an offence. To quote further from that book: “Be precise in your complaint to the Police. Do not add or substract from the true facts. If the cruel conduct is not accompanied by demands for dowry, do not mention that there were any such demands. Remember your evidence in Court will have to tally with your statement to the police. If you have made a false statement which you cannot prove, you will lose an otherwise good case. Friends, relatives and even the Police may advice you to add in the complaint that there were demands for dowry, but do not do so, unless this is actually a fact”.
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CONCLUSION of the Chapter:- In this Chapter, a lot of new things had to be written, which were considered as Immoral by many parts of the society. However, once the Live-in relationship is legalized, and matrimonial rape is condemned; also sexual offences to the wife is also thoroughly defined, unless these things will be properly written, the duty to the society will remain incomplete. Efforts had been made that, while writing a new thing, relevant citation with Hon’ble Judge’s name is given so that the Author will not be accused of crossing any boundaries. However, once Pleadings are to be written to get relief to the client, how any Boundary can be found. Unless pleaded, it cannot be proved. A lay man will buy this book to let know how much limitations are observed by Judiciary to narrate Sexual relations. It is to decide the disputes between husband and wife and not to decide the dispute between brother and sister or mother and son.
Any suggestion to improve this chapter, may kindly be forwarded to the publisher which will be included in the next edition, with Acknowledgement to the person who send suggestion.
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CHAPTER 23 : MATRIMONIAL LAWS
EXPLANATIONS TO DRAFT PROPER PLEADINGS
1. PSYCHOLOGICAL justification to solemnization of marriages:- Shri. Soli J. Sorabjee, Senior Advocate, had written in his Column titled “Out of Court”, in the Times of India, Sunday, 21-1-2001, page-16; the following: “the tribe of lucky ones whose marriages are made in heaven is shrinking if the rate of divorces is any indication. According to one theory, second marriages are more happier and more lasting. … Apparently Elizabeth Taylor agrees with Dr. Johnson that “marriage has many pains, but celibacy has no pleasures”.”
2. Efforts made in this Chapter, is to enable the Readers to know how to prepare proper pleadings in their own/ their clients matrimonial disputes, so that both the parties will get “cute, intelligent, compassionate, adorable, and had a good sense of humour” for their future life, as desired by Elizabeth Taylor, in the above quoted Article about Law, written by the Senior Advocate.
3. If proper Pleadings (Plaint, Written Statements, Replication, Interlocutory/ Miscelleneous Applications etc) can be prepared, without any false or spicy allegations, keeping in view the real evidence available, it will be very easy to do mediation and reconciliation. Thus once the First marriage itself can be revived, there is no need to think of second or successive marriages. Efforts is made to ensure that, the person reading it will be able to learn the topics himself and draft a proper pleadings about those topics, relying upon the Facts present before him. Author also hope that, with reference to Acts and Statutes, he will be able to do further research relying on these examples, so that other Hundreds of Pleadings which can never be given as Specimen in any Text Book in this world also will be handled by him.
4. However the student of Pleadings should not get any hope to get a particular relief relying upon the facts in his case, merely by reading a news report. The reason is: “law relating to judicial separation, divorce and nullity of marriage is far, far from uniform”, judgement of Hon’ble Supreme Court of India, of the Bench Hon’ble Mr. Justices O.Chinnappa Reddi and RB Misra; on 10-5-1985, in the case Mrs. Jorden Diengdeh/ Wife Vs. SS Chopra/ Husband, reported as 1985 MLR 279(SC). Unless the Statute governing the parties are studied and compared with the News Report, neither any pleasentness can be had, nor money need to be spend to make photocopy of that document and produce in the Court.
5. Where the Family Court is not established, the Court in which the petitions should be filed is to be decided, relying upon the Religion of the spouses, unless they had married under the Special Marriage Act. Normally following petitions are filed, under any Religion's Marriage Acts:- (1) Maintenance of wife and children; in that, recently there are a few judgements, in which the husband if without job is given maintenance from his wife. (2) Custody of children. (3) Declaring marriage nullity for impotency, pre-marriage pregnency etc. (4) Restitution of conjugal rights. (5) Judicial separation. (6) Divorce. and (7) Divorce by Mutual consent.
6. Following are the grounds for which the Divorce will be granted:- (1) Adultery. (2) Desertion. (3) Cruelty. (4) Insanity. (5) Leprosy. (6) Veneral Diseases. (7) Converting to other religion or taking to Sanyas/ renouncing the world. and (8) When death is presumed, or imprisoned for 7 years. However, for Christians, the Act is Divorce Act and there are different grounds for husband and wife, to obtain Divorce.
7. In any type of litigation between the parties, whether the wife filed or husband filed, the person preparing pleadings should note the following: Miscelleneous Applications are normally filed by the wife for the following reliefs: (1) Maintenance pendentlite and litigation expenses. (2) Interim custody of children. And (3) Right to visit the children. In very rare cases the husbands also file this. In India, normally wife is housewife and husband is expected to work and earn money. Thus, where the wife is highly placed, only at that time the husband can claim money from her. Otherwise, even when wife is working in Private Sector, the normal habit is to file Application for Maintenance pendentlite and litigation expenses. In cases where there are children, normally the Judges insist for those Applications, even when parties are not in need of maintenance. The reason is psychological, the intention of the Judge, to preserve the marriage: (1) It will take years to decide that interlocutory application, which is sufficient to cool down the ego disputes between the parties and their parents. (2) Normally the husband will not preserve any “fund” in his salary to pay to wife and children, especially now he have to pay to Advocate also; but the money decree will be passed after a few years with retrespective operation, means out of financial difficulties there may be a reconciliation. (3) In case of unwillingness/ inability to pay entire amount and subsequently at every month, the defence of husband; that is, if he is the Plaintiff his plaint will be adjourned sine-die; or if wife is the plaintiff, the defence of the husband will be struck off; that may again persuade reconciliation.
8. It may be noted that, husband's defence that, he is not earning anything is not believed by the Courts, in that case, what is the Minimum wages according to law, that will be presumed to be his earnings and if he have dependent parents, that will be distributed into three parts, and one for the wife and children; otherwise, he should give half of that minimum wages to his wife and children. Thus, while drafting Replies to the Maintenance Application, it is adviced that, honestly state all the sources of income, so that the Judge will feel to believe that and direct less maintenance. The reason is, Minimum wages are paid only on collective bargaining and very rarely a person may get that.
9. CONSUMMATION OF MARRIAGE:- Explanation of this Word and Phrase, in the Matrimonial law. In each and every pleadings about a marriage the two initial averments are made: (1) Consummation of Marriage and (2) number of children. Hon’ble Ms. Justice Leila Seth had defined this word as follows: “Impotency is the lack of ability to perform sexual intercourse in a complete and full manner. Partial and imperfect intercourse is not consummation. However, the burden of proof is on the petitioner. This has not been discharged. Though Om Prakash has deposed that intercourse was not complete as there was only rubbing of the genital organs, (is also not consummation), this does not appear to be reliable in view of his own pleadings and the medical evidence. The medical evidence, as noticed above, indicates that Shakuntala was capable of sexual intercourse and the vagina admitted of a two finger examination (eventhough she was psychologically frigid and unwilling to get treated and cured)”. Para 54 of the Shakuntala Kumari Versus Om Prakash Ghai, 1983 AIR(Del) 53 : 1980 LE(Del) 258.
10. Whether husband files or wife files the Original Petition/ Plaint; for any of the Matrimonial Reliefs, the other party should file the Written Statement. Following Advice is very much important for all type of Litigations, whether under Matrimonial Laws or General laws. The Defendant, if interested to put an end to the controversy, and to ensure that the fees he gives to Advocate will not be wasted, should file COUNTER CLAIM.
11. Explain Counter-claim:- In reply to the Plaint/ Petition, the Defendant/ Respondent should file his Written Statement (= WS) within prescribed time. In the WS it can be pleaded that, a part of the claim is already paid, which is called “set-off”. The next point to remember is to make “Counter-claim”, vide Code of Civil Procedure, 1908 Order 8, Rules 6A to 6G. For this, separate Court Fees will have to be filed by the Defendant, like an original plaint. It will be given separate Suit Number and the Plaintiff in the first Suit will have the status of Defendant to this Counter claim and he will have to file his WS. Benefit of filing the Counter-claim is stated at Rule 6D of the Order 8, CPC: “If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with”.
12. The Author have experience of clients weeping after defending a Suit for 15 years, when the Plaintiff withdraws the Suit or when he gets that dismissed in default, that all the expenses incurred till now is wasted. Thus his advice is, always to file the Counter-claim. In the Matrimonial Acts also there is provision for Counter-claims. Even otherwise, the Code of Civil Procedure, 1908 provision quoted above is sufficient to move the Counter-claim. The Matrimonial Acts states the following:- Hindu Marriage Act, Section 23A is extracted: “In any proceedings for ..... the respondent may not only oppose the relief sought ... but also make a counter-claim for any relief under this Act...” Parsi Marriage and Divorce Act's Section 37 deals with this Right. Special marriage Act's Section 40 states that, CPC's proceedures will regulate this proceedings also, which includes the Right of counter-claim.
13. However, in matrimonial matters, the Counter-claim cannot be filed with any and every prayers. In a petition under Maintenance under HAMA Act, the prayers under HMA Act cannot be made.
14. Following are the Suggested modes of Counter-claims prayers:- Not withstanding the Original Plaint of the Petitioner may be for Divorce, Restitution of Conjugal rights, Judicial separation etc; the Respondent can make similar Prayers or any other prayers. A few demonstrations are:-
15. Husband's Matrimonial Petition to get Divorce for Cruelty. Wife can file counter claim, in her Written Statement for: (1) Divorce for Cruelty. (2) Divorce for Adultery. (3) Divorce for Desertion. (4) That she want Restitution of conjugal rights. (5) Judicial separation, etc etc. When the Wife is the petitioner, the husband can also file counter-claim for similar reliefs.
16. When the Original Petition or Plaint is only for Maintenance, the question can be of, what may be the counter-claim filed. The Answer is, husband can always file a Civil Suit for declaration that, wife is sufficiently earning, thus she do not deserve maintenance.
17. Who should be parties: Normally the wife/ husband alone need be parties. However, in case of Adultery, the person who had committed adultery also should be co-respondent. However, if he is not possible to be traced, or the respondent is highly immoral character, such respondent’s details cannot be traced and that should be pleaded and proved.
18. Place of suing:- Where the marriage had taken place, where the parties last resided as husband and wife or where the defendant resides had been the only place for suing, however, after the amendments of Matrimonial Laws, where the wife is residing, she can file any type of Matrimonial Petitions and the husband should be willing to go there to defend.
19. New problem for marriages:- Recently a new problem had commenced, that is wife's parents may want to become the dependents of their son-in-law. The threat of Separate Residence or Ghar-Jamai are already existing since generations. But the recent trend is, after departure of daughter from the house, the parent who is attached with her may play fraud to get herself a Cot at the daughter's nupital home. This is a new problem, being families with one or two children only, the emotional vaccum created by their pet child's marriage is filled in by destroying her nupital home. In the Villages, this Vaccum was restored in the past, by giving away first child of the newly wed couple to maternal grandparents, as good as in adoption. Where the parents themselves are of old age, now this Adopting grand children system is coming to an end, and what had commenced is destroying the nupital home of their daughter. While interviewing client, special attention should be paid about this. Normally only circumstantial evidence will be obtained to prove this point.
20. Whether the special provisions to protect the interests of females do destroy the nupital lives:- The Only answer is, no. The nature's law is that, females are weaker than males. During night 12'o clock if there is a knock in the door, even today it is the duty of the male only to enquire who is standing outside. After sun-set, if medicines are to be purchased, people prefer to send neighbour's son than own daughter to the shop. Thus, if a Husband will take a bold stand that, Fraud behaviours of the wife or her parents will not be permitted, the female/ wife's side is expected to behave themselves after a few efforts to misbehave. However, the husband should not be a fraud himself and he should be able to do justice between his own parents and wife, then only he can achieve this immunity. To say correctly, if the Husband is not having any difficulties in his Sexual duties to the wife, and will do no fraud to her, notwithstanding he is not tolerating any of her frauds, and not permitting her parents to enter his house, despite she have all the Legal protections, the Wife will not leave her husband. Thus, normally these legal protections are meant only for punishing that man, who may be sexually weak, but unwilling to get treated; or unable to maintain justice between his wife and his parents.
21. In this regard, the following to be remembered, which is similar to any conservative house-hold. The parents are always tensed that, their daughter should not get pregnant without/ prior to marriage. It is always the Girl's family which spend money to solemnise the marriage, because in future if their neighbours, relatives, friends etc will find the daughter with a child in the hand, should not get confused. In the News papers, two types of news-items can be read:- (1) Dowry death, and Court and police's news after each dowry harassment; and (2) Elopment and marriage of girls and boys. It means, if the Husband is not a fraud, he can very well conduct his house-hold, whether the wife want to bring her parents, or want to carry him with her as Ghar-Jamai. There are some cases, where the wife want to finish the husband and his parents = husband had been fraud in social and sexual life. In some other cases, after the break up, the wife is not willing to drag husband to Court or Police Station, or wife will sign in such a manner that, Advocate obtained Blank paper signatures = wife herself had been fraud in social and sexual life. Only in a few cases, where there had been fraud from both the parties, there will be a reconciliation and life commence 'afresh'.
22. As an example, in the work place, those who do not commit fraud in their duties, and sincere within their abilities, are given free hand by employers. The reason is, such persons generally do not tolerate “Rule of thumb” or fraud from their employers. After initial settlement period, such employees regulate their own rules and regulations. Once it is the case at any Office, why only a few husbands are suffering. The only reason is, they had been doing fraud to wife, either sexually or sociologically or both. It is very easy to identify such husbands, because they will do fraud to the Advocates also.
23. While drafting Petitions, Appeals, Revisions, Special Leave petitions etc, it will be necessary to criticise the Court Below's impugned order; how to do that is a matter to be demonstrated. To help in drafting matrimonial pleadings, following points will have to be explained:- Cohabitation : Its meaning, Consortium; Its meaning, Refusal of Sexual Intercourse, the faulty theory: that means petitioner should prove the faults of respondent to get divorce; the Breakdown theory, how started to get formulated, that without proving faults of other side also Divorce can be obtained, Concept of Breakdown in matrimonial laws at India, commonsense principles, The Test of Resumption of Cohabitation, Constitutional Law and Family Law, a marriage is not every casual commerce, Marriage is the very foundation of civil society, on marriage husband and wife became for many purposes one person in law, in marriage sex business is not horrid and beastly. It is a biological necessity, how to appreciate evidence for mother-in-law's misbehaviours, demand for dowry, asking wife to give entire salary to husband's house, husband not accompanying her to Doctor, wife's insistence that if husband will go separately from his parents she can rejoin. The Author had selected a very good landmark judgement which will explain these points, and added in this book, name of that case is: Harvinder Kaur Versus Harmander Singh Choudhry. Quoting/ reporting the entire case will be giving advantage that, person who read this can cite from that case. On the other hand, re-writing in the body of the book cannot be easily cited anywhere.
24. Specimen of a Petition for Section 9 Hindu Marriage Act, that is restitution of conjugal rights, by the husband is given below:- Heading, prayer etc are not made, being they are formal:
(a) The marriage was solemnised between the parties on date..., at Delhi and the parties resided together as husband and wife for about a year in Kishan Ganj, Delhi, and thereafter in Viney Nagar, New Delhi.
(b) A son was born to them from the wedlock.
(c) The respondent/ wife had without reasonable excuse withdrawn, from the society of the husband with effect from dated...
(d) The wife was again in the family way about the end of March, ..., when her mother came and requested the parents of the petitioner/ husband to send her to her parents' house for a short while to which the petitioner's parents consented.
(e) Before she was taken away by her mother on dated.... she had asked the petitioner to provide her with Rs. 300 to be paid to her parents to enable them to buy gifts to be presented to him in connection with some ceremony. He, however, expressed inability to provide the money.
(f) The petitioner's mother went to fetch the respondent/ wife, but her mother refused to send her back. Thereafter he himself, to bring her but she declined to come on the ground that her parents would not send her back till he provided a sum of Rs. 300 for the purpose mentioned earlier; and
(g) various efforts on the part of the petitioner and. his parents to bring her back proved abortive and even the letters written by him and his father evoked no response.
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25. Specimen of Written Statement to the above Restitution of Conjugal rights Petition is given below, only reply averments are made and not heading, counter-claim, prayer etc:
25.1. Prior to giving parawise comments to the Petition filed by the petitioner/ husband, the respondent/ wife have the honour to present the Facts in a more direct and accurate manner as follows, which can be admitted or denied by the petitioner in his replication:-
(a) Petitioner/ husband behaved with her nicely after marriage for about two months but started maltreating, abusing and beating her off and on thereafter.
(b) Father of the respondent/ wife gave suitable dowry at the time of marriage but every now and then the petitioner/ husband and his parents and relatives used to coerce her for demanding more money from her parents. (Note:- here the place from where he arranged money to be written; Provident Fund Loan, closing of FD account, personal loan etc. Shop from where the Gold, furniture, clothes etc were purchased to be written and their bills also to be enclosed/ annexed/ exihibited/ attached. All those documents and allegations will have to be proved in the Court at the time of leading of evidence. One client of the Author had purchased 'afresh' all such articles for which the Forged Bills were procured to produce in the Dowry Harassment com