Upgrad LLM

divorce decree set aside: hc judgement

NA

This judgement I have taken from LCI file section, posted by Jasmeet. Thank you Jasmeet. Why I am placing is here is to make sure those of us who sometimes do not visit files sections also should be benefitted with the contents in the judgment. 

The judgement is a lesson for those who openly advise for live in relationships (here ofcourse it is a case of second marriage, but it can be applied for live in relationship also when an order for  Resttuion of conjugal rights has been issued by the court on one of the spouses). Another court may overrule it, but the interpretation of the implicaiton of  being in a relaitonship which inhibits the spouse to resume the cohabitaiton, is a clear sign that such relationship, before the divorce decree is granted should not be openly supported and recommneded by the members of LCI.

The judgment can be downloaded from the link below

http://www.lawyersclubindia.com/files/14_14_very_important_citation_mrs_kanchan_sanjay_gujar_vs_mr_sanjay_bhikan_gujar_on_17_july_2009.pdf

To again borrrow TajjaobsIndia ji's expression: 

I am open for correction if my reading of this judgement has been wrong...


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propra

Good post..

 

Thanks

 

Also one needs to be wary of 'Constructive IRBM' !!

 

Similar to above case where 'wife's attempts of restitution were made to look futile by hostile acts of husband' .............

One can't take advantage one's own wrongs to prevent other spouse from trying to diffuse the marital dispute.....One can't unilaterally proclaim that there is 'IRBM'!!!

One can't frustrate the other spouse's sincere attempts to save marriage!!! Otherwise its like taking advantage of one's own wrongs!!!

 

IRBM is going to give a legal sanctity to'unilateral whims' of one unsatisfied/annoying spouse!!

 

and 'IRBM' is going to legitimise the 'wrongs' of a spouse willing to walkout irrespective of his/her own faults!!!

 

And thus it is going to abrogate the previous provisions in law!!! And the IRBM amendments to the statute would deem to be illegal and constitutionally challegable!!!

 

 

If something is not allowable (as implied directly in a statute) can not be overruled/waived by any 'loose' amendments of the statute made laterwards!!! The stricter interpretation amongst the two is upheld!!!

 


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NA

Yeah, Jamai of Law, when IRBM pandora's box opens out, many interpreataitons are bound to follow. One has to wait and see...

 
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Senior Partner

@

1.
It is view of one HC not 'gospel binding precedent"
Reasoning: Here the wife is Appellant, had it been husband case and he had RCR and wife without waiting for Decree in Divorce would have started living the Rajasthan HC decision would have applied. In Re. Rajasthan HC decision the wife didn’t wait for 1 year and even afterwards but went and started living with her ex lover and she also married him before the decree. Rajasthan HC just passed an order saying if two couple can't live together then you can't expect wife to follow RCR of husband etc. etc.



2. The bottom as theory as in-practice is 'when two adults did not took Courts permission to marry themselves then they should not be bound by a Court Order later"



3. A illustration:
Husband and wife got married in their youth (say mid 20's) Afterwards in their prime 30's divorce and or rcr proceedings and may be along with few IPC / CrPC banquet of family law cases between them and now they are in their extreme late 40's still no light at the end of their legal battles emerging (leave aside the issues and or why it is not there blah blah kar key these are besides the point).
So readers tell me for my understanding what one is supposed to comment on such pathetic three decades saga of average middle class Indian couples post Star TV era which I often call as first generation of youths? Now if you say divorce and IPC cases finish in 4-5 years then tell me which case you have seen as in-person finishing under 5 years when both heavily contesting / countering and or going in for appeal and or review or some or the other scenarios emerging? I also mean here that do you expect these well informed youth's to just give in so easily without counter cases and or not buzzing from their stand - no way is my view. Youths are aware of their "rights" and who want to give a damn to "duties" come in between exploiters in the dress code of black coat / yellow uniforms (no offence intended) and so called gyani "mediators" ...........


4. Hence live-in is the 'need' of evolving Indians in prime of their mid life crisis is my painful view. You and I can't stop this emerging 'trend' and say hey you fight it out till death in court but don't enjoy your life when case on floor of any Court. kar key.  He and she can't be asked to stop their biological and mental cravings (needs) other than that 'security' needs which is obviously present in both gender and not that it is present only in a lady as you are trying to built up rally of ayes........... But, the beauty of Indian live-in as per my talks with several such couples with background cases not yet finished is that they are getting into it on 'some amount of give and take security' so it is all so mixed up a scenarios thanks to pending Courts cases all over India that no amount of your and mine preaching and or encouragement in any degree may help readers. End of the day they know their survival instincts better than these internet gyans It is life of a individual who wants to lead his/her life the way he wants and Law should not pervade but yes rainbow glasses should not be worn when entering into such engagements is what I can say.


I am aware tons of posts may come up for and against this live- in views of mine but I don't see any harm in such "'economics of arrangements of two adults in divorce and IPC case pending scenarios is what I stressed here not general un-married folks in such arrangements' if they do it with full knowledge of its ifs and buts / pre and post etc. then it is fine for me.


BTW, I say honestly I havenot read Arup's posts on live-in as heavily commented / analysed by that well-healed "the brigade" !


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propra

Tajobsindia,

 

You are referring to a case which is not relevant to content and hence it is wrongly matching to context.

 

In Rajasthan HC case, probably......

Husband had filed habeas corpus petition against wife to compell her to live with him and to prevent her from living with her lover although her behavior was socially unethical.....

 

 

Had the wife filed for divorce, by justifiying her unethical behaviour and if the court had given a verdict in her favour then...it would have  been a matching case!!!! But nothing of this sort is present in that case.

 

HC suggested to husband that he can apply for divorce, but can't compell wife to cohabit against wish...

 

In the above case of wife........Bomaby HC could also have suggested to wife to apply for divorce (on the same lines with Rajasthan HC) but even Bombay HC could NOT have compelled the husband to leave his mistress and live with wife and kids, if his wife had filed haebus corpus petition!! Wife was delivered justice because she contested the husbands initiative to break-up where he is tainted!

 

In Rajasthan HC court, wife never filed for any divorce, and being a WOMAN (law is drated in that way) she is not liable to to be prosecuted for adultery, but if her husband had the evidence of her second marriage without fist being broken up, even that woman would have face the music, but husband had the proofs of adultery but no proofs of bigamy!!!

 

Husband, in Rajasthan HC case, should have waited for her to get married ...................and actually should have collected the evidence of that marriage .....................and then he could have taught the lesson to her!!!!

 

 

 


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NA

Yes, these cases are on different pages. ...

 
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Senior Partner

@ Jamai

I accept your point and apologise. I was thinking of another case but ended up adding a totally ir-relevant re. to a Judgment of Raj. HC.

 

 
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Eye Specialist

Ambika,   Thanks..........a   lot    @    you    for   the     Nice   Judgment.   It   will   be    helpful   to   LCI   Members.

 
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