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Ambika (NA)     09 February 2011

Divorce can't be purchased

 

‘Divorce can’t be purchased’ – Indian Supreme Court

The Supreme Court has ruled that divorce cannot be purchased by a spouse by paying a lumpsum amount to the other party and said courts cannot pass any decree in violation of the Hindu Marriages Act. “No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under section 13 of the Act, unless of course the consenting parties proceed under section 13B (mutual consent) of the Act.

“A Hindu marriage can be dissolved only on any of the grounds plainly and clearly enumerated under section 13 of the Hindu Marriage Act. The law does not permit the purchase of a decree of divorce for consideration, with or without the consent of the other side,” a Bench of Justices Aftab Alam and R M Lodha said in a judgement.

The apex court passed the judgement while upholding the appeal filed by Sanjeeta Das challenging a Calcutta High Court judgement which had granted divorce to her husband Tapan Kumar Mohanty even though she had not given her consent. The husband had accused the wife of cruelty and sought divorce which was rejected by the family court.

The High Court however, on September 2, 2009 on the basis of an affidvit filed by the husband that he was willing to pay her a permanent alimony of Rs 10 lakh granted him divorce. Aggrieved the wife appealed moved the apex court.

Section 13 enumerates various conditions like cruelty, incurable disease, mental illness, adultery and certain other grounds on which the divorce can be granted under the Hindu Marriage Act, 1955. The apex court upholding the wife’’s plea set aside the High Court order with a direction to it to hear the matter afresh in accordance with the statutory provision.



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 17 Replies

Tajobsindia (Senior Partner )     09 February 2011

@ Ambika

Quite hilariously Roshini’s and (erstwhile) Aishwarya’s style of posting has caught upon you (BTW never felt they posted something wrongly but it is amusing) and or I doubt you same person reincarnated just (Wednesday evening) doubting not making a verdict so chill pill ;-)


Madam, SC also said some years back that it is their prerogative to grant IrBM but Uttarakhand HC afterwards i.e. nearly a year back already granted IrBM (clearly mentioning so in the decree) to a couple in which husband paid some (plus) 3 L as largesse to his parting spouse so now re-read my earlier posting on What is Law ?


Well I am not blaming you or authors of such posts, the problem here is Upper Courts donot know what is happening under their bottom and lower Courts don’t want to stretch limbs to scratch someone else roller blades. So ultimately it is apani dhapali apana raag. Till both ex Spouse are smilingly living welloff after parting ways everything before SC is gr8 guns and then the time comes, especially when a bala challenges before SC then they sound a big farse so who is to blame not the ex husband but in my opinion the same highest Judiciary who all needs to go back to law school once again on keeping closed eyes to media postings.


Did not the SC Lordships read blogs and paper news on Re. UTH HC decision (that also it was a division bench decision) till date and are they so powerless to reprimand the division Bench of UTH HC who passed that decree overuling the very Law of the land as per Art. 141 / 142 COI as laid by Hon'ble SC??????


I think there are lots of things wrong in Judiciary especially lowest Court which needs a major overhauling.


Well do you agree to any or some of the above ?


No na……………..koi baat nahi jaldi milenge issi discussion board mei eik our gyan bhari baat ke saath

3 Like

(Guest)

Living coditions of social life is different as compared to legal provisions. Ther are so many possibilities out of court proceedings that affects legal provisions also. Solemnization of marriage in Indian society is very costly and living conditions are so poor as they compelled a women to surrender and  to made compromises against legal provisions too ,in other words in that case divorce is not purchased but some times offered for sale.

3 Like

Tajobsindia (Senior Partner )     09 February 2011

@ ex Hon'ble Naresh Chandra Dubey


Sure retd. ADJ sahib....I am glad and thankful that, NOW - A - DAYS you are making full use of your retired life otherwise the fate of the other spouse before your THEN Courts could be well understood in retrospect..........



BTW, I love to know from which trial Court (District / City) you retired just to read some of your then state of mind (means Judgments favouring all the naris who approached your then trial Court)............



I am also amazed to know that you still keep on wearing rainbow glasses to have seen only the one side of the coin and for you living condition of wife is comment able and you still pray that all Indian husbands should live in gutters irrespective of dowry given by wife's side which for you is called customary gifts in some of your past Judgments I believe………....wow great ex. legal mind (justification) I see in your above statements at this retirement age Sir.


Because of you nearing octogenarian (now thankfully rtd.) Judges today’s YOUTH is suffering………

I have few question for you Sir:


Que.1: Being retd. Now do you have anything to say to TODAY’S YOUTH on Marriage?  


Que.2: If you have a Son (may be) will you encourage him to get married?


Que.3: Do you still believe Indian Family Laws are gender neutral?



Let we the youth (your first generation whom you want to see living in gutters just bze we committed the crime to get married) hear your gr8 retirement truth Sir............... 



Aab dil khol ke kahieyaga..............
yeh nation key (so called) productive population ka sawal hai apsey............

3 Like

Ambika (NA)     09 February 2011

I always like your sense of humour....your Muhavaro ka prayong is commendable, TajbasIndia ji...No incarnation, Ambika is Ambika...so chill pill:)

To me all judgements posted here ultimately are thoughts for food for both husbands and wives...

Agree with your Apni Dapali Apni Raag...and enjoyed reading your post, which I always do whether I agree with you or not...

1 Like

Tajobsindia (Senior Partner )     09 February 2011

chalo bhai logo eik to fan hai yaha (read painfully) ha ha

 

3 Like

manjit kalra (system eng)     09 February 2011

A bit old but good judgement indeed by SC, THIS WAS A CASE WHERE WIFE NEVER CONSENTED EVER FOR DIVORCE BUT divorce was granted in basis of mutual consent just on affidavit by husband's willingness to pay alimony.

 

Bench: A Alam, R Lodha

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8196-8197 OF 2010

(Arising out of S.L.P. (Civil) Nos.5289-5290 of 2010) Sanjeeta Das ....Appellant Versus

Tapan Kumar Mohanty ....Respondent JUDGMENT

AFTAB ALAM, J.


1. Leave granted.

2. The order of a division bench of the Orissa High Court that is before us in this appeal, though passed in a judicial proceeding, appears to us to be completely alien to the law. The relevant facts to see the impugned order in perspective may be stated thus.

3. The respondent and the appellant were married in accordance with the Hindu religious rites. About three years after the marriage, he filed a petition (Civil Proceeding No.136 of 1997) before the Family Court, Rourkela for 2

dissolution of his marriage with the appellant on grounds of cruelty and desertion [clauses (ia) and (ib) of section 13(1) of the Hindu Marriage Act, 1955]. The appellant strongly resisted the grounds taken by the respondent for dissolution of their marriage and took the plea that in reality she had been deserted and subjected to cruelty by the respondent. For the purpose of the present appeal, there is no need for us to go into the details of the allegations made by the respondent in his petition or the counter-allegations made against him in the written statement filed by the appellant. Suffice it to note that on the basis of the evidences adduced before it, the Family Court in its judgment dated October 29, 2005 arrived at findings against the respondent on both the issues of desertion and cruelty. Invoking, however, the provision of section 23A of the Act, it directed the appellant to resume cohabitation with her husband, the respondent, within 3 months from the date of the judgment. The operative order of the Family Court is as follows: "In the ultimate analysis, while rejecting the prayer of the petitioner seeking for grant of dissolution of his marriage with the respondent by a decree of divorce, I pass a decree of restitution of the conjugal life of the parties. Accordingly, the respondent-wife is directed to restitute her conjugal life with the petitioner-husband within 3 months, hence on the event of the respondent coming to the fold of the petitioner to restitute her conjugal life with the latter, he shall co-operate with the former and that consequent upon success of the restitution of conjugal life between the parties, the impact/gravity of the criminal proceeding u/s. 498A IPC started against the petitioner and his 3

family members at the instance of the respondent shall be loosen"

4. Against the judgment and order passed by the Family Court, the respondent preferred appeal (MATA No.59 of 2005) before the Calcutta High Court. The appeal was disposed of by a division bench of the High Court by order dated September 2, 2009. From that order it appears that the respondent filed an affidavit before the court declaring his willingness to pay a sum of Rs.10,00,000.00 (rupees ten lakhs only) as life term maintenance of the appellant and for the expenses of marriage of their daughter Kumari Ayushi Mohanty (Richi), in consideration of the dissolution of his marriage with the appellant by a decree of divorce and compounding of a criminal case instituted against him by the appellant. The respondent further stated in the affidavit that he would pay the sum of Rs.5,00,000.00 (rupees five lakhs only) within 4 months from the date of passing of the decree of divorce and the balance amount of Rs.5,00,000.00 (rupees five lakhs only) in 4 equal installments spread over a period of 2 years from the date of the passing of the decree of divorce. The High Court in its order dated September 2, 2009 simply paraphrased the statements made in the affidavit filed by the respondent and made it the order of the court. The order dated September 2, 2009 was later modified by order dated November 20, 2009 to the further advantage of the respondent. It was clarified that the payment of 4

Rs.10,00,000.00 (rupees ten lakhs only) was not only for the lifetime maintenance of the appellant but also for the maintenance of the daughter, Kumari Ayushi Mohanty (Richi) till she got married besides the expenses that might be incurred for her marriage.

5. These two orders passed by the High Court, by which it purported to grant a decree of divorce for dissolution of the respondent's marriage with the appellant are now before us in appeal and plainly speaking we are unable to put any meaning to the order of the High Court. The marriage between the respondent and the appellant was admittedly solemnized in accordance with the Hindu religious rites. A Hindu marriage can be dissolved only on any of the grounds plainly and clearly enumerated under section 13 of the Hindu Marriage Act. The law does not permit the purchase of a decree of divorce for consideration, with or without the consent of the other side.

6. Leaned counsel appearing for the respondent urged us not to interfere in the matter submitting that the respondent and the appellant had lived together barely for four months. He stated that the marriage had taken place on April 29, 1994 and from August 24, 1994 they are living separately. He also tried to argue that the order of the High Court was passed with the consent of the parties and for that reason also this Court should not interfere in the matter. We are not prepared to accept the submission for a moment. 5

First, there is nothing to indicate that the order was passed with the consent of the appellant. All that is said in the order is as under: "On consideration of such affidavit and the submission of the learned counsel appearing for the parties, we dispose both these appeals with the following directions" (Emphasis added)

7. The affidavit referred to in the order is the one filed by the respondent and consideration of submission of counsel for the parties does not indicate that the appellant had given her consent for dissolution of her marriage with the respondent on payment of Rs.10,00,000.00 (rupees ten lakhs only). Secondly, and more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties de hors the grounds enumerated under section 13 of the Act, unless of course the consenting parties proceed under section 13B of the Act.

8. In the light of the discussions made above, we find the order of the High Court completely unsustainable. It is set aside and the appeal against the judgment and order passed by the Family Court is restored to its file. The High Court must now hear and dispose of the appeal along with the connected appeal afresh, in accordance with law. Since the matter is somewhat old, the High Court may give the appeals some priority and dispose them of at an early date.

6


9. In the result, the appeals are allowed with costs, quantified at Rs.15,000.00 (rupees fifteen thousand only).

.....................................J

(AFTAB ALAM)

.......................................J

(R.M. LODHA)

New Delhi

September 22, 2010.

2 Like

Ambika (NA)     09 February 2011

Soory Food for thought, not thought for food!!!!

Ambika (NA)     09 February 2011

Oh these wretched spellings ....

Arup (UNEMPLOYED)     09 February 2011

IT IS SELDOM HAPPENED UNDER section 13B (mutual consent) of the Act..

2 Like

(Guest)

Experts are not expected  to reply personal questions . you may or may not agree with views expressed by experts.Besides querries there are other items like Artcles,and files available for study . these are descripttive and meaningfull, that can be utilized to understand the subject well

2 Like

Tajobsindia (Senior Partner )     09 February 2011

Originally posted by :Naresh Chandra Dubey
"
Experts are not expected  to reply personal questions . you may or may not agree with views expressed by experts.Besides querries there are other items like Artcles,and files available for study . these are descriptttive and meaningfull, that can be utilized to understand the subject well
"

 

Oh sure....bacha samjha hai apney aaz key YOUTH ko ki eik lollipop de denge articles and Files Section ka !


No matter what you try to say now, the irony of your generation will remain embedded in tombstone Sir for us to set it right, it is  a fact that your generation still do not know what to do with your first generation, which also includes me who is still tryign to copeup with-in nuleus first generation. Recall your 9 AM to 6 PM work 6 days a week cushioned in safety, security of a joint family system carrying a homely tiffen to work and when we come to you for solving our generations issues you are clueless what to do and look at us as useless products ! Whose, yours in the making only, I still vehimently say so.


Anyhow, it is honor to have seen a post from you after a very long gap.


Still I will give rgds to you, but don't push us away to files and articles section which is making of our own phantom of mind, instead take us to the rightly wealth of Ganges of your mind if you can...............

3 Like

(Guest)

 

"Oh sure....bacha samjha hai apney aaz key YOUTH ko ki eik lollipop de denge articles and Files Section ka !"     ---By A professional person 

Everybody having  rights to give their opinions but not on attacking others or giving comments like this especially someone who is elder Retd.Addl. Distt.Judge .Give your opinion but not personal,thats why he said ,"Experts are not expected  to reply personal questions . you may or may not agree with views expressed by experts."

2 Like

Roshni B.. (For justice and dignity)     10 February 2011

Originally posted by :tajobsindia

"

 

 

 

 

 

 


@ Ambika

Quite hilariously Roshini’s and (erstwhile) Aishwarya’s style of posting has caught upon you (BTW never felt they posted something wrongly but it is amusing) and or I doubt you same person reincarnated just (Wednesday evening) doubting not making a verdict so chill pill ;-)
 

 

 

 

 

 

Oh Oh Oh!

 

Taj uncle,

 

If you feel Ambika is my reincarnation,kindly ask the admin to check this.All website owners are aware of IP addresses of all people who visit or becoming members in their website.It's wiser to first clarify from the admin,instead of publically declaring your suspicions.Simple!

Earlier some one had thought that Kushan Vyas and I are same persons......

........................................................................................................................................................................................................

Vaise aapne D.Arun kumar ko kahi dekha hai?

Kyu?:D

 

 

 

2 Like

Tajobsindia (Senior Partner )     10 February 2011

@ Kushan

I stand by my comment on Rted. ADJ and he is welcome to sue me for defamation or admin. may ban me. I am not rude by making this end voice.


Atleast the voice of next generation should be heard and readdressed properly by ‘experts’ and not diverted to some files and articles section which itself are written by whom you keep guessing now, which is what he missed the point sitting on a retired busy middle class seat.


The issue which made me comment in such a way is straightforward simple; many a 'experts' donot wish to reply to second or third message of a author of a post once they have given their first reply that is the end of their expertise and divert author with lame excuse; 'hey it is from our precious time for free we are giving you advise and no one is paying us to give you advise, you liek it take it, don't like it then also you are going to come to one of us' is what you indirectly expressing here and thus claim to be yet another expert. Now, this is not a comment to you so don’t lift a mountain out of a ant back being third party to this rally of messages.


Truth when hits hard always sound like 'abuse' / 'harassment' / 'threaten to my life' / 'suicidal attach' / 'that is not the way to speak to elders' and similar sounding wordings which we all are quite familiar with now. Let us face the truth first then call ourselves as 'expert' in front of a common public.


Just bze of giving this so called respect the next generation is unfortunately unable to handle their life and are precious lost productive population we see around! Lift the veil from just a 'wife's issue sometime and be cautious to this productive workforce fixed by reaching octogenarian Judiciary to become impotent for nothing.

Also note @ Kushan before being a 'advocate' you too are 'human being" if in doubt then do a self reality check or allow me to ask you few (just 6) questions on same lines as this end sentence para suggests to you !

No Thanks................

2 Like

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