Wife can’t be simply evicted from home after divorce: Supreme Court

Supreme Court of India

PTI NEWS

 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.

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DIVORCE BY MUTUAL CONSENT

VIRENDRA KUMAR IN THE TRIBUNE

Divorce

Divorce

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.

Special 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. 

http://www.tribuneindia.com/2011/20110625/edit.htm#6 

NCW to SC: Is it cruelty to threaten divorce?

The National Commission for Women (NCW) wants the Supreme Court to rule on whether a woman can be held liable for cruelty under dowry law if she threatens to “force” her son to take divorce.

“Whether threatening a daughter-in-law that she (the mother-in-law) would force the son to take a divorce not amount to mental cruelty thereby clearly attracting Section 498A (dowry harassment) of the IPC?” the commission has sought a judicial clarification from the apex court. It has further asked the court to decide if “advising” a daughter-in-law to take divorce by mutual consent and inducing her with a monetary compensation amounts to cruelty as defined under Section 498A.

The top women’s body has sought these clarifications in a curative petition filed before a Bench headed by Justice P Sathasivam against a July 27, 2009 Supreme Court judgment.

The National Commission for Women (NCW) wants the Supreme Court to rule on whether a woman can be held liable for cruelty under dowry law if she threatens to “force” her son to take divorce.

“Whether threatening a daughter-in-law that she (the mother-in-law) would force the son to take a divorce not amount to mental cruelty thereby clearly attracting Section 498A (dowry harassment) of the IPC?” the commission has sought a judicial clarification from the apex court. It has further asked the court to decide if “advising” a daughter-in-law to take divorce by mutual consent and inducing her with a monetary compensation amounts to cruelty as defined under Section 498A.

The top women’s body has sought these clarifications in a curative petition filed before a Bench headed by Justice P Sathasivam against a July 27, 2009 Supreme Court judgment.

“In this judgment, this court has held that (a) kicking a daughter-in-law; (b) constantly threatening her that they (in-laws) would convince their son to take divorce does not amount to cruelty as under Section 498A (dowry harassment) of the IPC,” states the NCW petition filed by advocate Aparna Bhat.

The commission said it had, during the “course of its work”, found dowry harassment and domestic violence “more of a norm than an aberration and the law has to be interpreted in a manner beneficial to women in distress”.

The 2009 judgment of Justices S B Sinha and Cyriac Joseph had quashed dowry harassment charges instituted against Bhaskar Lal Sharma and his wife by their daughter-in-law, Monica, who accused them of physically harming her and threatening her with divorce.

Section 498A says it amounts to ‘cruelty’ if a husband or his relative wilfully subjects a woman to actions that may drive her to commit suicide or cause grave injury to herself. A person is liable to undergo a maximum imprisonment of three years if found guilty.

The petition asks the court whether “constantly interfering in the marriage of a newly married couple by advising a daughter-in-law to give divorce, kick her, and criticise her on a regular basis” match the definition of cruelty under Section 498A of the IPC.

India divorce just got easier — for some

By Hanna Ingber Win — GlobalPost  Published: June 26, 2010 08:45 ET in Asia

MUMBAI, India — Irrespective of class or caste, a fundamental aspect of Indian society remains: marriage is a must. Children are seen as giving women value, and uniting with a husband in order to produce those children is still often seen as the only option, say gender specialists. And yet, as more women become better educated, financially secure and independently minded, their ideas and expectations as to what marriage should look like are changing.While it is hard to make generalizations about a country as vast as India, “there is definitely a churning and a change that is taking place in the realm of marriage,” said journalist and columnist Kalpana Sharma who covers developmental issues and gender. “Women are not willing to put up with stuff that their mothers were willing to put up with.”

Women’s ideas and expectations are changing, often faster than Indian society can keep up, and an inevitable clash has arisen. As a result, more Indian couples are deciding to divorce.

The Indian government has responded to a rise in marital breakups and a backlog in court cases by proposing an amendment this month to make it easier to get divorced. In the past, couples have had to prove mutual consent, adultery or abuse. If, as expected, parliament approves this amendment to what is known as the Hindu Marriage Act 1955 and Special Marriage Act 1954, couples must only show “irretrievable breakdown” of the marriage or “incompatibility.”It can currently take couples anywhere from six months to 20 years to obtain a divorce, Supreme Court advocate Kamini Jaiswal told AFP. There are 55,000 divorce cases pending in courts across the country, according to Union Law Minister M. Veerappa Moily, as reported in the local press.

Despite the rise in number, divorce continues to be rare in India as it carries with it tremendous social stigma against the couple and families involved. Experts say 11 in every 1,000 marriages in India end in divorce, whereas the rate in the United States is about 400 in every 1,000.

While the stigma of divorce appears to have decreased in some communities, the woman is still almost always blamed for the breakup, journalist Sharma said. “There’s a feeling that the woman should ‘adjust.’ You have to adjust, which means basically you have to accept all kinds of crap,” she said.Leena Joshi, the director of Apnalaya, an organization working with women and families in Mumbai’s slums, said the women she works with are more likely to put up with husbands who are abusive, adulterous or alcoholics than go through the public humiliation of getting divorced. “Divorce is the the the the the last resort,” she said.

Society is unsympathetic to single women, whether they are unmarried, divorced or widowed. In some communities, widows are not allowed to attend wedding ceremonies because it is believed they would bring bad luck.“If married, [women] have more security, and society respects them,” Joshi said. When people meet a married woman, they think, “‘She’s married, she’s somebody’s property, so treat her respectfully.’”There are also practical realities that make divorce for poor women close to impossible, Joshi said. The women likely have no place to go as they had been living with their in-laws, and their own parents are unlikely to support them if they disagreed with the divorce. There are also few homes or affordable housing options in Mumbai for single women, especially those with children.

“A lot of women stay in marriage because they have nowhere to go,” Joshi said.Furthermore, while the change in the law will make it easier for those who married under Hindu or civil marriage law to get divorced, it will not impact women who had another type of marriage such as a Muslim one. For those women, it is almost impossible to get divorced, Joshi said.Muslim personal law in India stipulates that there are nine grounds on which a woman can file for divorce, and those do not include “irretrievable breakdown.” In practice, most Muslim women in India have little option for divorce, according to Noor Jehan of Bharatiya Muslim Mahila Andolan (Indian Muslim Women’s Movement).

Men can divorce by reciting the talaq, which translates as “I divorce you,” three times. A Supreme Court judgment prohibits this type of oral, unilateral divorce without an accompanying arbitration. And yet, most of the Muslim community’s ulemas or clerics believe this to be a valid form of divorce, and the practice continues, Jehan said.Afsha, 21, who asked to only be referred to by her first name, was working as a high school teacher while continuing her own studies when she married in December. Before marriage she told her husband and in-laws she would continue her education.

“They said I’d have the freedom to do everything and on that condition only I got married,” she said.But after getting married, everything changed. Her husband does not allow her to work, get her master’s degree, leave home or visit her mother without his permission, she said. Her job is to cook, clean and produce babies.“I cannot see any more future for myself,” she said while holding back tears. “My certificates are all in the cupboard.”Afsha said she considers leaving her husband, but she cannot get divorced because in her community, the only option is for the man to say the talaq three times.

”There is no way, he has to say it,” she said softy. “I have to convince him to say that.”For those married under Hindu or civil law, the ability to get divorced is likely to get much easier soon. The law will be on their side. Next hurdle: society.

http://www.globalpost.com/dispatch/india/100625/marriage-divorce-hindu-muslim-brides?page=0,1