The Union Cabinet today approved the introduction of a Bill in the Budget Session of Parliament to amend the Registration of Births and Deaths Act, 1969 to include registration of marriages as well, so that the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.
The Cabinet also approved introducing a Bill in Parliament to further amend the Anand Marriage Act, 1909 to provide for registration of marriages under the Act.
The proposed Bills will be beneficial for the women from unnecessary harassment in matrimonial and maintenance cases. It will also provide evidentiary value in the matters of custody of children, right of children born from the wedlock of the two persons whose marriage is registered and the age of the parties to the marriage.
The Hon`ble Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denominations should be made compulsorily registerable in their respective States where such marriages are solemnized and inter alia directing that as and when the Central Government enacts a comprehensive statute, the same shall be placed before that Court for scrutiny.
The Committee on Empowerment of Women (2006-2007) in its Twelfth Report (Fourteenth Lok Sabha) on “Plight of Indian Women deserted by Indian husbands” has viewed that all marriages, irrespective of religion should be compulsorily registered and desired that the Government to make registration of all marriages mandatory, making the procedure simpler, affordable and accessible.
The 18th Law Commission of India in its 205th Report titled” Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws” vide paragraph (iv) recommending that “registration of marriages within a stipulated period, of all the communities, viz. Hindu, Muslim, Christians, etc. should be made mandatory by the Government”.
The 18th Law Commission of India further in its 211th Report titled “Laws on Registration of Marriage and Divorce- A proposal for consolidation and Reform”, recommending for a Parliamentary Legislation on Compulsory Registration of Marriages by enacting of a “Marriage and Divorce Registration Act” which may be made applicable to the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions”.
The Registration of Births and Deaths Act, 1969 (18 of 1969) is an Act to provide for the regulation of registration of births and deaths and for the matters connected therewith. Accordingly, provisions have already been provided in the said Act for Registration establishment consisting of Registrar-General, Chief Registrar and Registration Division, District Registrars and Registrars. Further, procedures for registration of births and death and for maintenance of records and statistics are provided for in the said Act. Also, by virtue of the powers conferred under section 30 thereof, rules for compulsory registration of births and deaths have been framed by all the State Governments and Union territory Administrations. Therefore, if the said Act is suitably amended to include registration of marriages as well, then the existing administrative mechanisms will be able to carry out such registration of marriages in accordance with the specified procedures and be able to maintain necessary records and statistics for registration of marriages also.
The registration of marriages of the parties under the proposed amendment would not affect any right recognized or acquired by any party to marriage under any law, custom or usage.
A Hindu woman cannot be evicted out of the matrimonial home after divorce except through procedure established by law, as there is no provision for her automatic eviction, the Supreme Court has ruled. A bench of justices G S Singhvi and S D Mukhopadhyay, in a judgement, said that though a woman may not have a legal right to continue in the house of the ex-husband, yet the latter cannot forcibly evict her. The apex court gave the ruling while upholding an appeal filed by Ranjit Kaur challenging the decisions of the Punjab and Haryana high court which had upheld her eviction from the house of a disputed property upon a decree of divorce granted to the husband Major Harmohinder Singh, an Army officer. “Learned counsel is right in his submission that even though in the decree of divorce, the appellant has not been given a right of residence and her occupation of the suit property can be treated as unauthorised, respondent No 1 (Singh) cannot evict her except after following the procedure established by law. “The material placed on record shows that the appellant had entered into the property as the wife of respondent No. 1. Therefore, even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, respondent No. 1 cannot be given liberty to forcibly evict her,” the bench said.
Compulsory Registration of Marriages The Supreme Court vide its judgment dated 14.02.2006 in Seema Vs. Ashwani Kumar (AIR 2006 S.C 1158) has directed the State Governments and the Central Government that marriages of all persons who are citizens of India belonging to various religious denomination should be made compulsorily registerable in their respective States where such marriages are solemnized.
Giving this information in written reply to a question in the Rajya Sabha this week, ShriSalman Khurshid, Minister of Law & Justice, said that it is not correct to say that the process of registration of marriages is cumbersome. The process for compulsory registration of marriage is worked out by respective State Governments and the Union Territory Administrations by making suitable legislation/ rules or by amending existing legislation/ rules on the basis of the situation obtained in their respective territories to make the process simple and easier. Hence, no separate action by the Central Government is considered necessary, Shri Khurshid said.
The sanctity of marriage cannot be allowed to be undermined by the whims of one of the annoying spouses. The law allows divorce by mutual consent, but its intent is not to facilitate the dissolution of marriage. To save marriage and not to hasten its dissolution should be the core concern of courts
“Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before with us.” (emphasis added) This is how a Bench of the Supreme Court consisting of D.K. Jain and H.L. Dattu, JJ., prefaced its judgment in the case of Hitesh Bhatnagar v. Deepa Bhatnagar delivered on April 18, 2011.
Hitesh and Deepa got married in 1994. The following year they were blessed with a daughter. Sometime in 2000 due to “differences in their temperaments”, they began to live separately from each other and have been living thus ever since. In 2001 they filed a petition under section 13-B of the Hindu Marriage Act, 1955, seeking divorce by mutual consent. Subsequently, before the court could consider their case for a divorce decree, the wife withdrew her consent. This resulted in the dismissal of the petition by the district court.
The High Court through its “well considered order” dismissed the appeal of the husband against the decision of the trial court. On further appeal, the husband again failed to get the desired divorce decree from the Supreme Court.
Why it is tough
One reason that applies to the resolution of matrimonial disputes generally is of course the inherent complexity of human nature and behaviour defying the application of set standard formulas. The other reason is the persistent misconceptions or misgivings about the very nature, scope and ambit of the remedy of divorce by mutual consent itself.
The apex court in the Hitesh Bhatnagar case has not just decided the dispute but undertaken fairly an extensive survey of the law developed through judicial decision-making. A juridical analysis of this decision would, therefore, be instructive in unfolding the various nuances. The following misgivings often come into vogue.
A close reading of section 13-B of the Hindu Marriage Act, 1955, shows that a divorce decree by mutual consent is not really a divorce decree by mere consent of parties. In effect, it is with the consent of the court. It becomes operational “with effect from the date of the decree” granted by the court and not from the date of filing of the petition “by both the parties to a marriage together.” To this extent, the expression “divorce by mutual consent” seems to be a misnomer. Literally speaking, it seems to imply that as there is “marriage by mutual consent” by taking seven steps around the sacred fire, say, in clockwise direction, so is “divorce by mutual consent” as if taking seven steps in anti-clockwise direction!
Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13B are rather more stringent. Under the mutual consent provision, the parties intending to dissolve marriage are required to wait, not only for at least one year from the date of marriage, termed as the “trial period” under section 14 of the Act, but also obligated to show further that they have been living separately for a period of one year or more before the presentation of the petition, and during this period of separation “they have not been able to live together” as husband and wife. Besides, after filing the joint petition they must wait further for at least another six months, usually termed as the “cooling off period”. In short, mere filing the joint petition does not by itself snap the marital ties.
After the lapse of six months, if the said petition is not withdrawn in the meanwhile either singly or jointly, both the parties may move the court by way of joint motion within the stipulated period of 18 months from the initial date of filing of the joint petition. The interregnum is obviously intended to give more time and opportunity to the parties “to reflect on their move”, give a second thought or otherwise seek advice and counsel from relations and/or friends for maintaining their marriage.
Withdrawal of consent
For pursuing divorce by mutual consent, it is imperative that mutual consent should continue till the decree is granted by the court. In case, even if one of the parties to marriage withdraws his or her consent initially given, the court instantly loses the jurisdiction to proceed further and grant relief under section 13-B of the Act. In this respect, the Supreme Court in the Hitesh Bhatnagar case reaffirmed its earlier decision in Sureshta Devi v. Om Prakash (1991), which overruled the view of the High Courts of Bombay and Delhi that proceeded on the premise that the crucial time for giving mutual consent for divorce is the time of filing petition and not the time when they subsequently move for a divorce decree.
The statutory expression “they have not been able to live together” under section 13-B(1) of the Act, is to be construed not just as a trite statement of pure volition. It bears a deeper connotation. It indicates, as the apex court has expounded, “the concept of broken down marriage”’ implying thereby that reconciliation between them is not possible. In this respect, the court is duty bound to satisfy itself “after hearing the parties and after making such inquiry as it thinks fit” about the bona fides and the consent of the parties, and then and then alone the court shall consider the grant of divorce decree.
The purpose of the period of 18 months from the date of presentation of the joint petition under Section 13-B (2) of the Act is for re-think and reconciliation. If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed at the threshold on this very count.
In view of the long separation of more than a decade from his wife, the husband, as a last resort, urged the apex court to dissolve his marriage by exercising its special jurisdiction under Article 142 of the Constitution. To buttress his claim he specifically cited a proximate decision of the Supreme Court itself – Anil Kumar Jain v. Maya Jain (2009) – wherein though the consent was withdrawn by the wife, yet the court found the marriage to have irretrievably broken down and granted a decree of divorce by exercising its special constitutional power.
However, in the instant case the apex court refused to invoke its special power in favour of the husband mainly for two reasons. One, the special power is to be used very sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions cannot bring about complete justice between the parties.
Generally such a power is exercised neither in contravention of statutory provisions nor merely on grounds of sympathy. Two, the sanctity of the institution of marriage cannot allowed to be undermined merely at the whims of one of the annoying spouses, more specially in the situation and circumstances, as in the present case, wherein the wife has stated that she wants this marriage to continue “to secure the future of their minor daughter”.
Invariably it is found that a petition for divorce on fault grounds under section 13 is replaced by the remedy of dissolution of marriage by mutual consent under section 13-B of the Act. This is advisedly done as if the purpose of the latter provision is to facilitate divorce by effecting compromise between the parties in respect of ancillary matters. This in our view is perhaps the most erroneous construction of the provisions of section 13-B of the Act. The purpose of the remedy of mutual consent, we repeat, is not to facilitate the dissolution of marriage, inasmuch as even the provisions of section 13-B are subject to the other provisions of the Act.
Thus, to save marriage and not to hasten its dissolution should be the core concern of the court. Spouses may think of dissolving their marriage if they so fancy provided the court is satisfied that any of the grounds for granting relief exists, and that in court’s view it is not possible to make them reconciled!
Divorce with Mutual Consent- What it is all about
Section 13-B of the Hindu Marriage Act, 1955, deals with divorce by mutual consent
Compared to the grant of divorce on grounds like adultery, cruelty, desertion, etc. under section 13 of the Act, the conditions for the grant of decree under section 13-B are rather more stringent
A divorce decree by mutual consent is not really a divorce decree by mere consent of the parties. In effect, it is with the consent of the court
The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage
They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife
After filing the joint petition they must wait further for at least six months
It is imperative that mutual consent should continue till the decree of divorce is granted by the court
If the consent is withdrawn by either party to marriage, the petition becomes instantly ineffective and is liable to be dismissed on this very count.
The writer is the Director (Academics), Chandigarh Judicial Academy.
THE recent judgement of the Bombay High Court setting aside the parallel proceedings for divorce of the Family Court, Pune, and upholding a divorce decree passed by the Court of Oakland, State of Michigan, USA, dissolving a Hindu marriage on the principle of breakdown, has evoked a new stream of thought with which this writer differs. The verdict, Kashmira Kale vs. Kishore Kumar Mohan Kale, 2011 (1) Hindu Law Reporter (HLR), 333, lending sanctity to a US Divorce decree in preference to proceedings under the Hindu Marriage Act between the same parties upsets the settled law.
The parties married in Mumbai in 2005 according to Hindu rites lived in the US and intermittently visited Mumbai and Pune. In September 2008, the wife filed divorce proceedings in the US whose jurisdiction was challenged by the husband in the US. Simultaneously, in October 2008, the husband filed a divorce petition in the Pune Family Court, claiming it to be the competent forum for adjudication of their dispute. The husband did not pursue the wife’s divorce petition in the US any further and in January 2009, the US court dissolved the marriage and divided the assets of the parties.
However, the Pune Family Court in September 2009 held that it still had the jurisdiction to try the husband’s petition for divorce in India. In appeal, the Bombay High Court set aside the Family Court order and upheld the US divorce decree dissolving the Hindu marriage.
The conclusions drawn by the Bombay High Court that the parties were domiciled in the US and hence the Hindu Marriage Act (HMA) cannot apply to them is per se erroneous. The HMA’s non-application to Hindus was misconstrued and the application of the breakdown principle without considering the written statement of the husband challenging the US court’s jurisdiction were factors which did not lend a imprimatur to the foreign decree which did not take into consideration the HMA’s provisions under which the parties were married.
Noticing that Section 1 (2) of the HMA applies only to Hindus in the territories to which it applies but not considering that it also “applies to Hindus domiciled in the territories to which this Act extends who are outside the said territories” left the contention only half noticed. In addition, Section 2 of the HMA prescribing application of the Act to Hindus, irrespective of domicile, nationality or citizenship, renders the judgement fallacious. Earlier precedents on the point enunciated by different High Courts stipulate that the HMA applies to all Hindus irrespective of domicile or residence if they have married in India according to Hindu rites. Thus, it has been held that the HMA has extra-territorial application as a Hindu carries with him his personal law of marriage and courts in India have jurisdiction to try their matrimonial disputes regardless of change of nationality or new domicile.
The Bombay High Court in Sondur Rajini Vs. Sondur Gopal, 2006(2) HLR 475, had held that the HMA provisions do not cease to apply on change of domicile which is determined when the parties tie the nuptial knot under the HMA and not on the date when an application is made for matrimonial reliefs. In Naveen Chander Advani Vs. Leena Advani 2005 (2) HLR 582, the Bombay High Court held that the Pune Family Court wrongly declined to entertain a matrimonial petition relating to a marriage where parties who last resided and married in the US according to Hindu rites and ceremonies as the Family Court has jurisdiction to deal with matters under the HMA.
Equally flawed is the Bombay High Court’s view that since the parties last resided together in Michigan, the US court has territorial jurisdiction to decide their divorce dispute. This conclusion falls foul of the settled law laid down by the Supreme Court in Jagir Kaur vs. Jaswant Singh, AIR 1963 SC 1521 that prescribing the limits of jurisdiction, speaking of last residence of a person with his wife, can only mean his last residence in India. It does not imply his residing with her in a foreign country for an Act cannot confer jurisdiction on a foreign court.
The Bombay High Court in Meera vs. Anil Kumar 1992 (2) HLR 284 held that “last resided” in Section 19 of HMA implies last residence in India and the High Court in India within whose jurisdiction the parties last resided together can take cognisance of the matter.
Flowing from the same stream of thought, the Punjab and Haryana High Court has held that any temporary residence would confer jurisdiction to try the matrimonial dispute. This settled view militates against the erred conclusion of the Bombay High Court that temporary stay at Pune or Mumbai could not mean last residence in India as parties last resided together in the US.
Above all, the Bombay High Court’s view disagrees with the Supreme Court’s celebrated view in Y. Narasimha Rao vs. Y. Venkata Lakshmi, 1991 (3) SCC 451 that the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.
Three exceptions were culled out to this rule by the Supreme Court. First, permanent foreign residence and invoking of relief on a ground available in matrimonial law under which parties were married. Secondly, voluntary submission to foreign jurisdiction coupled with contest on merits abroad on grounds available under matrimonial law under which parties were married. And thirdly, parties unconditionally consent to grant of relief although the jurisdiction of foreign court is not in accordance with the provisions of matrimonial law of parties.
The Apex Court in Neerja Saraph vs. Jayant Saraph 1994 (6) SCC 641, thereafter had suggested feasibility of a legislation to hold that “no marriage between an NRI and an India woman which has taken place in India may be annulled by a foreign court”. Not noticing the Supreme Court’s above precedent, the recent view of the Bombay High Court per se appears to be disagreeable if not per incuriam.
With due deference, the Bombay High Court order does not agree with the precedent, adapt to Hindu law of marriage of the parties or is it conclusive. Parties may be treated as divorced in the US and still married in India. The line of action adopted in a number of matrimonial disputes in the Punjab and Haryana High Court is most useful to quote. Limping marriages are taken before the Mediation and Conciliation Centre at the High Court premises where the hatchet is peacefully buried and matters are amicably compromised to convert the matrimonial feuds to divorce petitions by mutual consent. Matters thereafter rest without contest on written settlements. Warring claims are put to sleep harmoniously.
This is the better path than allowing foreign courts to decide on Hindu marriage disputes without conflict of laws. Indian courts are better suited to decide them without foreign interference. Domestic law must prevail.
Author of “India, NRIs and the Law”, and co-author of “Acting for Non-resident Indian Clients,” the writer is Supreme Court Advocate and Member, UT NRI Cell, Chandigarh.
“Merely spending weekends together or a one-night stand would not make it a domestic relationship,” said a bench of Justices Markandey Katju and TS Thakur, cautioning that in future, claims for financial relief arising out of live-in link-ups would increase in India. The Supreme Court of India has noted that just any ‘live-in relationship’ does not entitle a woman to alimony. To make a ‘live-in’ legal the Supreme Court says that the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; and they must have voluntarily cohabited for a significant period of time. Making an attempt to iron out certain ambiguous situations, the judges also said that if a man has a ‘mistress’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship “in the nature of marriage.”
Conscious that the judgment would exclude many women in live-in relationships from the benefit of the PWDVA, the apex court further said it is not for this court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live-in relationship’.
Considering the increasing number of live-in relationships in our times in India, the Supreme Court wants the scope of the provision for maintenance under section 125 of the criminal procedure code (Cr.P.C.) expanded, so that women in such relationships do not face economic deprivation after living in a domestic set-up for long periods of time.
The issue has assumed and rightly so huge dimensions that Justice GS Singhvi and Justice AK Ganguly have urged the Chief Justice SH Kapadia to set up a larger bench to consider whether “the living together of a man and woman as husband and wife for a considerable period would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under section 125 Cr.P.C.?’’ Secondly whether proof of marriage is essential for a claim of maintenance under the section? Also whether a marriage performed according to customary rites, without strictly fulfilling the requisites of the Hindu Marriage Act, or any other personal law, would entitle the woman to maintenance under the section?”
The bench also wanted an expansive interpretation of the term ‘wife’ to include cases where a man and woman have been living together as husband and wife for a reasonably long period. The judges said the PWDVA gave a very broad definition of the term ‘domestic abuse’, which must include economic abuse.
The law traditionally has been biased in favour of marriage. Public policy supports marriage as necessary to the stability of the family, the basic societal unit. To preserve and encourage marriage, the law reserves many rights and privileges to married persons. Cohabitation carries none of those rights and privileges. It has been said in the context that cohabitation has all the headaches of marriage without any of the benefits.
What the PWDVA does is that it deters men from having ‘live-in-relationships’ for the fear of providing maintenance to his partner. On the other hand if a married man provides maintenance to his partner he is denying what was the economic right of his legal wife and children.
What needs to be understood is that the institution of marriage and issues that emerge from it is essentially a concept that needs to be perceived in a time frame and specific context. A set of norms valued and acceptable in one context cannot easily or rather should not easily be planted in another context. Today’s India is changing at a pace that was socially unimaginable say 50 years ago. Issues like ‘live-in relationship’ that were taken up by the western society are gradually percolating into our social norms. The most obvious contributing factor being the transformed urban life which itself is growing from factors associated with urbanisation and increased income, long hours of work, often late in the night and virtually no time for family.
But the issue that needs our conscious attention is that is Indian society ready for this trend? It needs to be noted that whatever one may say the fact is that women will ultimately emerge as the most vulnerable and possibly the greatest losers. Children that result from such relationships are also to be kept in mind. The conventional argument that has always been cited in favour of India’s unique concept of the family being responsible for looking after the young and the aged is also an issue of concern.
The PWDVA is silent on the status of children out of a ‘live-in relationship’. Finally it must also be appreciated that laws and legal obligations notwithstanding foundations of a relationship are based on commitment.
Marriage is just another commitment. If people are shying away from marriages – one reason could be that people are scared of commitments that grow from marriage and are worried– what if it does not work out? Divorce procedures in our country are cumbersome and taxing. May be they need a more liberal reframing so as to decrease the element of fear.
ON October 21, 2010 a Two-Judge Bench of Supreme Court comprising Justices Markandey Katju and TS Thakur in D Veluswamy vs D Patchaiammal ruled that in their opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the PWDVA, 2005.
Merely spending weekends together or a one-night stand would not make it a “domestic relationship.” If a man has a “keep” whom he maintains financially and uses mainly for sexual purposes and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage. No doubt, the view we are taking would exclude many women who have a live-in relationship from the benefit of the PWDVA Act, but then it is not for this court to legislate or amend the law. Parliament has used the expression “relationship in the nature of marriage” and not “live in relationship”.
Dispel Confusion – BY Hemant Kumar
THE diverse societal opinion on the growing trend of “live-in-relationship” apart, the judicial viewpoint over the same has been rather cautious. Of course, things have undergone a change after the enactment of Protection of Women from Domestic Violence Act, 2005 (PWDVA) whose provisions also extend to women living-in a relationship in the nature of marriage. By doing so, albeit in a veiled manner, the legislature has finally endeavored to accept the contemporary global phenomena appreciated and attempted by some persons among the Gen Next.
In August this year, a Division Bench of the Supreme Court ruled that a live-in which has been long lasting will be considered as marriage and children born out of it are not illegitimate. This verdict came just days after a Delhi High Court ruling which laid down that a partner in a live-in relationship can walk out of it at any point of time without any legal consequence and neither of the partners can complain of infidelity if one deserts the other. It held that “live-in is a walk-in and walk-out relationship. There are no strings attached to it nor the same creates any legal bond between the parties. Such a thing is a contract of living together which is renewed every day by the parties and can be terminated by either without consent of the other party.”
In mid-2008, the National Commission for Women recommended that a woman in a live-in relationship should be entitled to maintenance if she is deserted by her partner. The commission sought a change in the definition of ‘‘wife’’ as described in the Section 125 of Criminal Procedure Code (CrPC), which deals with maintenance and suggested that it should include women involved in a live-in relationship. The move aims at harmonising other sections of the law with the PWDVA that treats a live-in couple’s relationship on a par with that between a legally married husband and wife. The state of Maharashtra also okayed this proposal in 2008 but it requires the final nod of the Centre. Section 125 provides for maintenance of wife, children and parents, who cannot maintain themselves. As of now maintenance can only be claimed by a woman who is a wife, has either been divorced or has obtained a divorce, or is legally separated and is not remarried. It is hoped that the Supreme Court would urgently interpret the whole issue thoroughly in order to ensure that there is no room for any ambiguity for lower courts in the country while dealing with issues related to live-in. Until the concept is granted statutory recognition by Parliament, it is imperative for the judiciary to clear its stand over the same so as to protect the interests of women in such relationships.
(The writer is an advocate Punjab and Haryana High Court)
Is it an offence to cohabit with a woman after inducing a belief of marriage in her? Is it an offence to back out of such a relationship? Supreme Court (SC) judges Markandey Katju and Gyan Sudha Mishra are divided and want a larger bench to decide the matter. Chief Justice of India (CJI) SH Kapadia will soon take a call on setting up such a bench to put at rest the controversy over an ‘illegal’ act and ‘indecent’ behaviour. Katju and Mishra differences have emerged over an appeal filed by Ram Chandra Bhagat, who was convicted by a trial court and the Jharkhand high court for committing an offence under IPC section 493 (cohabitation by a man after deceitfully inducing a belief of lawful marriage in a woman). The section also says every man who by deceit cohabits with a woman who is not his wife on the assurance that they are a legally married couple is liable to be punished with imprisonment up to 10 years.
Mishra found no ambiguity in this provision. She agreed with Katju on the limited issue that law and morality might stand on different footings. But in her perception they are “inextricably linked”. Mishra also said a legal decision could not be based purely on morality.Katju, however, said often an act may be regarded immoral by society, but it may not be illegal. He offered a different interpretation of section 493 IPC that it is meant for couples legally married under Hindu Marriage Act.Revenue officer Bhagat lived like a couple with Sunita Kumari for years and they had two children. Sunita accompanied him wherever he was posted. He had filed an affidavit with the authorities that they were a married couple. The voters list too shows this. However, he kicked her out of home in 1990. She lodged a criminal complaint and the courts convicted Bhagat, saying he had committed fraud and cheated Sunita.
Bhagat has not behaved like a “gentleman”. He lived with Sunita for nine years and had two children with her and “hence as a decent person he should have married her, which he did not do”, they said.
Katju, however, said Bhagat didn’t commit an illegal act and that there was a difference between law and morality.“If we say something is illegal, we must point to some specific section of IPC or some other statute which has been violated,” he said, adding, “Merely saying that the person has done something improper will not necessarily make the act illegal.”