Showing posts with label Divorce. Show all posts
Showing posts with label Divorce. Show all posts

Son can divorce wife if she tries to separate him from aged parents

The Supreme Court of India, has held, in recent judgment,on OCTOBER 06, 2016.

A Hindu son can divorce his wife for the cruelty of trying to pry him away from his “pious obligation” to live with his aged parents and provide shelter to them.

Insisting her husband to live separately from his parents is a western thought alien to our culture and ethos, observed Justice Anil R.Dave, who wrote the judgment.

The court was confirming the divorce of a Karnataka-based couple in a recent judgment. Married in 1992, the lower court granted the husband divorce after he alleged cruelty on his wife’s part. He quoted instances of her constant suspicions about him having illegal affairs with a maid. It was later found that no such maid as described by the wife ever worked in the couple’s home

In another instance, the apex court found that the wife had attempted to commit suicide but was rescued in the nick of time. She wanted to separate the man from his parents who were dependent on his income.

However, the High Court had set aside the decree of divorce, saying the wife had a “legitimate expectation” to see her husband’s income used for her and not his family members.

Shuddering at the thought of the legal tangles in which the “poor husband” would have found himself caught in had she succeeded in committing suicide, the Supreme Court concluded: “The mere idea with regard to facing legal consequences would put a husband under tremendous stress.”

In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family, the court said. In normal circumstances, a wife is expected to be with the family of the husband after the marriage.

“She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her,” Justice Dave observed.

“It is not a common practice or desirable culture for a Hindu son in India to get separated from his parents on getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income,” Justice Dave wrote.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3253 OF 2008
NARENDRA … APPELLANT
VERSUS
K. MEENA … RESPONDENT
.J. (ANIL R. DAVE)
J. (L. NAGESWARA RAO)
NEW DELHI
OCTOBER 06, 2016.

Living Separately 13B

In all the three Acts, it is one of the condition that both the parties must have been living separately for a period of one year though under the Christian Divorce Act the period is of two years.

Living Separately for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation, the parties must have been living separately. The expression 'living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude, they have been living separately for a period of one year immediately preceding the presentation of the petition.

In Kirtibhai Girdharbhai Patel v. Prafulaben Kiritbhai PateI,
A joint petition filed by both the parties. It was a common contention that on account of broken marriage, the spouses have been residing separately and their relation, as husband and wife, has not been consummated since 1986. However, the trial court dismissed the petition holding that one of the conditions that spouses must have been living separately for one year or more was not satisfied as the spouses stayed together. However, the High Court did not agree and held that this condition have been living separately for a period of one year will be fulfilled even if they have been living under one roof, but the marriage has not been consummated.

Living separately for one year is sine qua non for filing a petition under section 13B of the Act. These words "living separately" for a period of one year came up for interpretation before the Bombay High Court in Miten v. Union of India where the petitioners were married on 29-4-2007 according to Hindu rites and customs. The marriage between the parties was registered in accordance with law. After the marriage, they cohabited together in Bombay till 2-8-2007, when matrimonial differences arose between them. They were living separately since 2-8-2007. Attempts for reconciliation failed. To put an end to their marriage, they applied for divorce by mutual consent under section 13B of the Act. On 30-10-2007, when the matter came up before the Principal Judge of the Family Court, vide order dated 13-10-2007, the petition was rejected. The petitioners assailed the order of the Family Court by way of writ petition before the Hon'ble High Court.

The ground of rejection by the Family court was that the marriage took place on 29-4-2007 i.e.; only six months back and section 13B, does not allow the parties to come to the Court for divorce by mutual consent unless they complete one year or more separation. The parties contended before the Hon'ble High Court that the pre- condition that they should have lived separately for a period of one year or more for obtaining divorce by mutual consent under section 13B of the Act was unconstitutional, arbitrary and tantamount to an artificial classification which was impermissible and such a pre-condition was contrary to the object of insertion of section 13B of the Act.

The primary contention raised before the Court was that:

the condition No. (i) they have been living separately for a period of one year, and

condition No. (ii) they have not been able to live together were merely directory and can be suitably waived or altered by the Court depending upon the facts and
circumstances of the case and compliance of these conditions was not mandatory.

The Hon'ble High Court while taking note of divergent views of the different High Courts with regard to waiver of six months period as mandatory or directory, held that period of one year "living separately" is sine qua non for filing of petition under section 13B. Its waiver was not permissible as per any settled corner of interpretation.

It observed:

"the Legislature in its wisdom and being aware of other existing provisions of the Act, other laws and the opinion of the society, opted for insertion of section 13B in its present form without any intent to convert divorce from statutory satisfaction to whim of the parties. The period of one year 'living separately' is sine qua non to the filing of the petition under section 13B and as such, its waiver would be impermissible as per settled corner of interpretation. The Court gets jurisdiction to entertain and decide the petition only after these ingredients are satisfied: Non-compliance of these provisions may even affect the jurisdiction of the Court as the petition would lie beyond the statutorily specified essentials and, thus, in law, be a defective or an incomplete petition.

It also held that while interpreting statutory provisions, Court would not add or subtract words from section nor would it give meaning to language of section other than what is intended on plain reading of provision.

This case shows that period of one year prescribed under section 13B for "living separately" is sine qua non for filing of the petition under section 13B. It cannot be waived by the Court. Not only this, this case also shows that even the period of six months which has been held by some of the Courts as Directory is not so. It is mandatory period and the same also cannot be waived.

Divorce by Desertion - What to prove?

Desertion is also ground for divorce in India, but the most difficult part is how to prove desertion in court of law. A layman may think desertion as his/her spouse is living separately for the period of 2 years that's it. But actually what courts in India require are the 4 things which are to be established by the spouse who is seeking divorce on this ground.
1. Animus deserendi - This means the intention to desert, if husband or wife decides to leave the martial co habitation as they does not want to continue with martial obligations or may be called husband/wife under the eyes of the society this means they have developed animus deserendi, once this intention is formed this fulfills one criteria for proving desertion. Now this intention can be from both sides or may be a constructive animus deserendi, In constructive animus deserendi when one of the spouse asks the other spouse to leave the house or leave him/her that is constructive animus deserendi other the other form is that the a spouse can leave the other spouse with his/her own will that is willful desertion. in both the situation the affected spouse i.e the spouse which was made to leave in the case of constructive animus deserendi or the spouse which was left alone can pursue the proceeding for divorce if other requirements are satisfied.
2. Separation - Now the  Animus deserendi is followed by actual separation, now this separation can be physical or mental one, normally itrs the physical one here the actual action takes place merely forming an intention or telling a spouse that I will leave you is not suffice if it is not followed by some action. Merely an action without the intention is also not suffice both intention to leave and followed by action is mandatory in proving desertion.Sometime there is first physical separation and then followed by intention and sometimes its vice versa, both should takes place for a continuous period of 2 years.
3. No reasonable just cause to leave - There not be any reasonable cause available to the spouse who is leaving the matrimonial ties, generally cruelty is alleged by defending spouse to defeat the proceedings of desertion in such cases the burden is on the defending spouse to prove cruelty by examining witnesses and medical examinations etc. But if defending spouse fails to prove any of the just causes then this ingredient stand proved.
4. without the consent - If the deserting spouse does not consents such desertion this final ingredient also stands proved, but how to prove this ingredient? now let us suppose a spouse leaves then there must be continuous efforts from the other side to b ring back the spouse, it should not be the case where the other spouse sits mutely while the other spouse has deserted. efforts should be made to render reconciliation. here contact with parents, mother father or other relatives are essential. reconciliation at its own level at first and then involvement of relative is essential, this would satisfy the court that deserted spouse never consented for such a desertion.
Proving all the aforementioned ingredients are essential to prove desertion in court, if any one element is missing divorce cannot be granted. Genereally cases fall short in 3rd and 4th ingredient. merely living separately even willfully does not guarantee divorce to deserting partner.