(65) IT is increasingly felt that a theory based on fault, guilt, or offence, has the effect of deepening marital wound and renders the possibility of reconciliation increasingly more difficult. Even if both parties are innocent they may not be able to click. Even the most fervent and sincere hope of one spouse that there will be a reconciliation cannot create : possibility of reconciliation where the other spouse is irreconcilable. Whatever may be the cause of breakdown, if there is withdrawal from the matrimonial obligation with the Men of destroying the matrimonial consortium, as well as physical separation, there is clear proof that the marriage is at an end.
(66) MERE physicial separation can never constitute living apart, even. if long continued. There must also be demonstrated, on the part of one or both spouses, a mental attitude averse to cohabitation. "A husband and wife are living together not only when they are residing together in the same house, but also when they are living in different places, even (when) they are separated by the high seas, provided the consortium has not been determined (= provided the consortium has not been destroyed)" [R v. Cremer (1919) I KB 564 (569)].
(67) THERE are, broadly speaking, two grounds: the 'fault followers' and the 'breakdown believers'. Fault theory is more and more losing ground to the breakdown theory. The Indian Act is a curious mixture of (1) the fault theory, (2) the breakdown theory and (3) mutual consent theory. It is a piece of mosaic work. In 1976 the Indian Legislature introduced divorce by mutual consent by enacting section 13B. In 1964 the Legislature enacted section 13(1-A) permitting either part to the decree of restitution of conjugal rights or Judicial separation to claim divorce on the expiry of two years (reduced to one year in 1976) of the passing of the decree. This provision is an "undeclared adherence to the breakdown theory". (R.K. Aggarwal Reform of Matrimonial Law p. 96 in Studies in the Hindu Marriage 'and the Special Marriage Acts published by the Indian Law Institute). Divorce by mutual consent is in truth an extension of the breakdown theory. It will be unrealistic and inhuman to order maintenance of a union in which the parties have agreed to cut as under the nupital tie. Section 9 serves a useful purpose because in a society like ours it gives a cooling-off period. Prof. Derrett sees practical utility in this remedy. Mr. K.C. Srivastava of Lucknow University also takes the same view. (See his paper on the Hindu Marriage Act p. 102 in the Studies of I.L.T.). So section 9 is not without its advocates.
(68) ACCORDING to the Law Commission of England the objectives of a good divorce law are: (1) to buttress, rather than undermine the stability of marriage and (ii) when, regretably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humilitation." Field of Choice (Commd. 3123 Para 15).
Section 9 seeks to achieve the first objective. It aims at the stability of marriage. It is a fundamental principle in matrimonial law that one spouse is entitled to the society and comfort of the other, and where one abandoned the other without just cause, the old Ecclesiastical Courts, upon the petition of the other, would grant a decree for the restitution of conjugal rights. The court is enforcing the matrimonial cohabitation. Though the duty of matrimonial intercourse cannot be compelled by the court, matrimonial cohabitation may. [Forster v. Forster (supra)].
(69) THE second objective is achieved by section l3(l-A) (ii). A disobeyed decree of restitution will enable either party to seek divorce. This is the introduction of the breakdown theory in the Act. Section 13(1 A)(ii) is founded on section 9. It presupposes a restitution decree under section 9. That decree is passed against the guilt party. But both parties can petition for divorce. The Legislature is looking at the state of the divorce market. If it finds that. there is more demand for divorce than it can meet it adds newer and newer grounds of divorce. And the list becomes longer and longer. The Law Commission of India in its 71st Report of 1978 has recommended the irretrievable breakdown of marriage as an additional-ground of divorce. The trend towards greater freedom appears to assert itself increasingly. From 1955 to 1976 there has been a remarkable liberalisation of divorce law in India.
(70) WHAT is surprising is that everyone denounces the remedy of restitution but welcomes the ground of divorce based on it in section l3(l-A) (ii). The latter provision is praised as a wholesome provision. Because it introduced the breakdon theory in Indian law for the first time a theory which is most favoured today in the countries of the West recently there has been a strong plea for the abolition of the restitution remedy. This movement drew its inspiration from the Matrimonial Proceedings and Property Act 1970 which by section 20 abolished 'the right to claim restitution of conjugal rights in England.
(71) WHAT is often forgotten by the abolitionists is that sections 9 and 13(1-A) are of a piece. You cannot abolish section 9 without abolishing section 13(1-A) (ii). So the good will be thrown away with the bad. What has to be remembered is that it is not given to the judges to rewrite the statute. It is for the legislature to amend and abrogate the law. As long as it does not-change the law we must learn to live with it.
(72) In England the restitution remedy was abolished after more than 150 years, after the Parliament introduced the irretievable breakdown of marriage as the sole ground for divorce. The Indian Parliament has not so far enacted this law though it is engaging its attention.
(73) IN conclusion I think that the arguments which found favour with the learned judge in holding that section 9 is constitutionally void are not sound. They, are a dangerous and fallacious line of arguments, I cannot agree that section 9 is unconstitutional however the remedy may be outmoded or out of tune with the times. The restitution decree in the scheme of the Act is a preparation for divorce if the parties do not come together. But the Legislature first believes in coaxing 'and cajoling the withdrawing spouse to return to cohabitation, a value it prizes most. Whether the wife is a top actress as was Sareetha in the case before the learned judge or an ordinary wife, the marriage in each case has she same legal consequences.
(74) THE result of constitutional logic is an astonishing conclusion reached by a research inspired by curiosity. The learned judge thought that restitution remedy achieves nothing. "Section 9 of the Act does not subserve any social good", he said. In the legislative scheme it has a purpose to serve and a role to play. It allows the parties a cooling-off period. "People should be able to marry again when they can obtain a death certificate in respect of a marriage already long since dead". This is a road to divorce.
(75) IT appears to me that restitution decree serves a legislative purpose in family law. As the poet has said: "There is a soul of goodness in things of evil, Would men observingly distill it out."
(76) I might add that it may be that law is not always logical, but neither is human behaviour. Law is much more concerned with human behaviour than with logic. If human behaviour ceases to be logical, than the law has to keep pace. with human behaviour, such as it is, and not as it would be in a logical world.
(77) IN the end I will repeat what I have said before. It is for the Legislature to abolish the remedy of restitution and not for the courts to strike down section 9 on the ground that it is unconstitutional. In my opinion section 9 is perfectly valid.
The appeal: Facts
(78) NOW I turn to the appeal These are the facts. The appellant, Harvinder Kaur, was married to the respondent, Harminder. Singh Chaudhary, on 10th October, 1976. The wife is a working woman. So is the husband. The wife is employed in Indian Petro-Chemical Limited. She was getting a salary of Rs. 600 at the time of the marriage. The husband is working as a traffic manager in Sita Travels. His present salary is about Rs. 2000 per month. There is a child of the marriage. A son was born to them on 14th July. 1978. According to the husband the wife left the matrimonial home in May, 1978. So he brought a petition under section 9 of the Hindu Marriage Act on 14th February, 1979.
(79) IN her written statement the wife has given a catalogue of her grievances to show that she was maltreated by the husband and his mother. Finally she said that she was prepared to join the company of the husband if he was willing to set up an independent residence.
(80) IN the catalogue of her coroplain's (sic. complaints) she has mentioned a number of incidents to show that the husband and his mother were cruel to her and that she was turned out of the house by the husband on 19th January, 1978. The burden to prove that there was sufficient cause for withdrawal from the society of the husband lay on her. She examined a number of witnesses. To rebut the case of the wife the husband examined himself and his parents. In a careful judgment the learned judge has discussed the entire evidence. He disbelieved the evidence of the wife. He found her evidence discrepant and unreliable. On the whole he was of the view that she and her witnesses were not trustworthy. finding that there was no reasonable cause, he granted a decree of restitution of conjugal rights to the husband. From that decree the wife appeals to this court.
(81) IN the category of complaints the wife has mentioned the following incidents:
IN the first place she says that on the first day of marriage she went to a fete with her husband, his two married sisters, his brother-in-law and younger brother. They all persuaded her to accompany them to fete. She agreed. On her return from the fete the wife's, mother-in-law in a "stern and commanding voice" asked her not to leave the house without her prior permission. She has described the mother-in-law as an "absolute dictator" wielding "dictatorial powers in the home". The husband, she says, remained silent when the mother-in-law rebuked her. In her evidence she has referred only to be husband and his sister having accompanied her to the fete and none else. She goes on to say "when I returned back my mother-in-law abused me as to why I did go with my husband and sister." When she was cross-examined, she admitted that she went to the fete in the presence of her mother-in-law. A hide later she added that she did not know whether mother-in-law was there or not. On this evidence the learned judge came to the conclusion that her evidence was unreliable and that no such incident happened.
(82) SECONDLY, the wife said that within 2 or 3 days of the marriage she was asked to bring from her father's house cash memos regarding the furniture which had been given in marriage so that this furniture could be resold and cash may be pocketed. Her case was that this furniture was not liked by the husband's parents as it was below their standard and they did not want to keep it in the house. On this point there is no trustworthy evidence. It has not been proved as to what was the furniture that was given in marriage. It has not been established as to what furniture was sold to wife's father before marriage and what was resold by the husband's parents. The wife's positive case is that a dressing table was returned to its seller. Balwant Singh, a witness of repurchase, was produced. He said that he had repurchased a dressing table from the husband which he had originally sold to wife's father of the value of Rs. 1070. The witness has been disbelieved. He did not produce his bill book. Neither has he proved the initial sale of furniture nor the subsequent repurchase. This witness says that he knew the wife's father because he was meeting him in a Gurdwara at Karol Bagh. The judge thought that this was not possible because the wife's father was living in National Park and the witness was living at Malka Ganj. Gurdwara at Karol Bagh is far away from the residence of these two persons.
(83) THE third complaint of the wife is that her entire salary used to be taken by the mother-in-law and she was given a paltry sum of Rs. 50 per month out of which she had to spend Rs. 40 on transport. She was left with Rs. 10 only and that was insufficient for her. It was admitted by the wife that the husband took her with him on his moter cycle and left her at the office. In September 1977 she says the husband purchased a car and took her in car to her office. She admitted that their offices were very near and they used to have lunch together. So the learned judge rejected this theory that the wife was being given only Rs. 50 for her expenses.
(84) FOURTHLY, the wife complained that she had to prepare in the house breakfast, lunch and dinner, and was made to do other household work including dusting. This is cited by her as an example of ill-treatment. It was admitted by the wife in her evidence that there was a part-time servant in the house. If the wife is asked to do some household work and prepare food for the family when the servant is not available there seems to me nothing wrong in this. This was one of the most trivial excuses she could make, in my opinion.
(85) FIFTHLY, she complained of bleeding from the vagina on three occasions when the husband did not take care of her and did not provide, medical help in time. The first occasion was a month after the marriage. One night, she narrated, the husband had sexual intercourse with her. Thereafter she started bleeding. The husband went to sleep. He did not care for the wife. In the morning her brother came and took her away and then she was given medical treatment. The second occasion when she bled was in March 1977. On this occasion she started bleeding in the office. She borrowed Rs, 10 from one Mr. Arora, a colleague in the office, and went to her father's house straight from the office. If there is any complaint it can be only for the first occasion and not the second. On the second occasion she straightway went to her father's house. It appears to me on evidence that her complaints are without substance. Dr. Sethi (RW 10) was produced by her. From his evidence it appears that he was treating her from 1975.
(86) THE third occasion of bleeding was in December, 1977. She was taken to Mool Chand Hospital and Doctor Shiela Mehra, a specialist, examined her at that time. Dr. Mehra, she says, gave "hell" to the husband on the ground that they had brought her very late and there could have been a miscarriage in the meanwhile. The doctor advised rest. But the wife was not allowed to take rest because she was asked to do the houshold work. Her evidence did not inspire confidence, in the judge. The wife admits that she remained in the hospital for about a week. "It is correct that my mother-in-law stayed with me in the hospital for a day." She admits that food was coming from husband's house for some time. She admits that she was treated by Dr. Shiela Mehra. On this evidence it does not appear to me that the husband or his mother were callous and indifferent to the wife's illness. The mother-in-law stayed in the hospital at least for a day if not more. She sent food from home. She took her to the hospital. On the evidence it does not appear that this complaint is justified.
(87) SIXTHLY, the wife said that the husband wanted to grab her plot of land which has been allotted to her in Kohat Cooperative Society on 9-2-1979. Her case is that the petition for restitution of conjugal rights was filed in February l979 to grab the plot which had been allotted a few days before to the wife. On this issue there is no worthwhile evidence. One Purshottam Singh RW 7 was produced. In his oral testimony he deposed about the allotment of plot. But he has not produced any record of the society. If there was any allotment a registered document, whether of lease or sale, must have been executed. No such document has been produced to prove that the plot was really allotted on 9-2-1979, as is the wife's case. On a draw of lots on 27-11-77 she became entitled to a plot of land. No record has been produced either of the draw of lots or of allotment or of ownership or even of the wife's membership of the society.
(88) SEVENTHLY, the wife in her evidence said that she was asked to bring old clothes from her mothers house which she wore before marriage. This was done, according to her, to humiliate her. But what was the real purpose of this humiliation I have not been able to understand. The wife went to her mother. She gave new clothes instead of old which she brought to the husband's house. I think it is a most trivial excuse and the judge was right in discarding it.
(89) THERE was considerable debate before me on one other point. It is not in dispute that the wife left the matrimonial home in 1978. But the parties are at variance on the date of leaving. According to the wife the husband left her at her father's house on 19-1-1978. According to the husband she went away from the matrimonal home in May 1978. In my opinion nothing turns on this. That they are living apart is clear. That there is a withdrawal from the society of the husband is evident. The only question is : Is there reasonable excuse by the wife for withdrawing from the husband's society ? This she has signally failed in proving.
(90) THEN another excuse was put forward. This was about separate residence. In her written statement the wife pleaded that she was prepared to join the husband if he "sets up an independent house to live happily." During the proceedings she said on 26-11-79 to the Judge that "she is not willing to go to live with the petitioner where his parents are also residing." In her statement as a witness she deposed : "I am ready and willing to live with the petitioner but not in the same house." It appears to me that this is the real dispute. The evidence of the mother-in-law on this point suggests that she warn (sic. she went away) from the matrimonial home of her own accord and not because of any ill-treatment. Now she refuses to return to the matrimonial home because the concept of a separate residence has entered her imagination.
(91) COUNSEL for the wife referred to Bhagat Ram v. Smt. Santosh. Kumari. 1981 PLR 46 in support of her contention that this was a good excuse for the wife and until and unless the husband sets up an independent house she has a sufficient cause for not joining her. This question was raised before the judge in the court below. He was of the view that the husband's parents are aged and dependent on him and it would not be right for him to leave them because "after all the parents have some right upon their children and children correspondingly owe some duty to their parents. A balance has to be struck by the husband in his love towards the parents and that towards his wife". It cannot, in my opinion, be urged by the wife as a ground for living apart. The casting vote is not with her. Nor with the husband. It is a matter which has got to be decided mutually and amicably between them. By both in co-operation. There may be cases where the husband may have to choose between his parents and his wife. But that is a question for the husband and the wife to resolve together. The wife. cannot dictate to the husband that unless and until he sets up an independent residence she will not join him. That will be a unilateral decision. If it is unilateral without regard to the wishes and desires of the husband it must be termed as 'unreasonable'.
(92) THERE is one another point in this case. The husband and wife lived together till January 1978, as is the wife's own case. She has admitted that there were normal sex relations between them during this period. "It is correct that I had normal sexual relations with my husband". There is a child of the marriage. This is strong evidence of cohabitation. There was consortium. There was company, assistance, affection and fellowship between the spouses. When the wife left the matrimonial home consortium was broken.
(93) AFTER November 1977 when the wife conceived there are only three surviving complaints. One is bleeding on the occasion of December 1977. the second is that she was required to do the household work till January 1978 when she left the matrimonial home; and the third is about the husband's attempt to grab her plot of land. I have dealt with these complaints separately. I find that there is no dependable evidence in support of these complaints.
(94) ON the whole case it appears to me that the wife deliberately broke up the matrimonial home and brought to an end the matrimonial life, so far as she was able to bring those results about. The breaker-up of the home is the wife. She has disrupted the matrimonial home without sufficient cause. There is withdrawal not only from intercourse but from cohabitation without just cause.
FOR These reasons the appeal is dismissed. The decree of the trial judge dated 20-4-1981 is affirmed. The parties are left to bear their own costs.
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CHAPTER 24 : SPECIMEN MATRIMONIAL PLEADINGS
NOTE:- In all Pleadings, there should be VERIFICATION at the end of pleadings, about which Specimen are already provided in other Chapters. Besides that, there should be Affidavit, List of Documents, List of Witnesses, Index, Address Form of Plaintiff/ Defendant etc. All those things are not prepared for the following pleadings, to save space to print necessary things than printing repeated points – Author.
Regarding Matrimonial Law, there is a word of advice to avoid confusion. For an ordinary man, the Abbreviation “DMC” is stand elaborated to Delhi Municipal Corporation. However, while studying Matrimonial law, this also mean “Divorce and Matrimonial Cases”, Owner, Printer, Publisher and Editor Shri Pradeep Bahl, Delhi Law Times office, Delhi-7.
There are different Matrimonial Laws, like Hindu Marriage Act, The Divorce Act, 1869; Foreign Marriage Act etc. Different High Court had framed different Rules under these Acts. Those Rules specify different types of Formats. Only by referring to the particular High Court’s Rules, the finalization of Drafting of the Pleadings should be done. The same applies for various other Acts also. Thus the Readers are requested to consider these Specimens only as Guide lines. In this Book the only efforts made is how to write Facts and Grounds. Accurate informations can be obtained either from Rule Books or an Advocate Practicing in that particular Court or any Typist of the Typing Pool of that Court.
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DECLARATORY SUIT UNDER HAMA Act.
Question:- Your client had already sued his wife for Divorce. He is knowing that, now she will file Application for Maintenance at Divorce Court, Magistrate Court etc. Instead of defending a large number of Maintenance petition, he want to handle all the things at single Proceedings. Draft a Petition/ Suit.
Normally following points should be alleged and proved to deny giving any money to the wife who is staying separately:- (1) She is sufficiently earning money by legal means, thus she do not require her husband’s money as maintenance. (2) Husband did not make her life miserable so as to let her leave him, and even now he is willing to give her Shelter and food, thus even if she is earning, she is not eligible to get compensation.
No Short-cut allegations:- It is not advisable to allege bad character with the woman, to deny Maintenance and Compensation. Reason is, it is not possible to prove that allegation, especially in India, where each person is surrounded by Families and Villages. If that allegation is made, and could not be proved beyond reasonable doubts, she will be entitled to reside separately and claim money from the husband.
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BEFORE THE FAMILY Court NO:…. AT THE PLACE ….
Civil Suit No…. of year ….
Mr.aaa VS. Mrs.ccc & Ors.
Mr.aaa, Aged 36 yrs, Son of Sh.bbb, Resident of:...
..... Plaintiff
VERSUS
1. Smt. ccc, Aged 30 yrs, Wife of Mr.aaa, D/O Sh.ddd.
2. Master eee, aged 10 years, son of Mr.aaa.
3. Kumari fff, aged 7 years, daughter of Mr.aaa.
All three persons Resident Of:-Permanent Address: ......, New Delhi.
..... Defendant 1 to 3.
CIVIL DECLARATORY SUIT ABOUT MAINTENANCE
TO THE DEFENDANT/ Wife AND CHILDREN OF THE PLAINTIFF
JURISDICTION UNDER Section 7(1)(f) of the FAMILY COURTS ACT, 1984.
TO DETERMINE THE RIGHTS OF THE PARTIES UNDER SECTIONS 18 AND 20 OF THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956
MOST RESPECTFULLY SHEWETH:-
1. A marriage was solemnized between the Plaintiff and the Defendant, according to Hindu Rites and Ceremonies including Saptapadi, on date .... (date in words ...), at NDMC (New Delhi Municipal Council) Community Centre, Khan Market, Lodhi Road, New Delhi-110003; which is within the administration of NDMC Office located near Jantar Mantar, Connaught Place, New Delhi-1. An Affidavit of the Plaintiff, duly attested, is annexed herewith as Exihibit/ ANNEXURE P-1, for the kind perusal of this Hon'ble Court. Also attested photocopy of the Certificate issued by the Priest/ Panditji from his Temple’s Register is annexed herewith as Exihibit/ ANNEXURE P-2.
1.1. The Plaintiff beg to state that, it was an arranged marriage, the match was searched by the parents of the plaintiff and Defendant. It was a No-Dowry marriage in which even gifts were not given between families of parties.
2. The status and place of residence the parties to the marriage, before the marriage and at the time of filing the petition were as follows:-
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Husband Wife