In matrimonial dispute, secret recording is admissible in evidence if found to be relevant

Electronic Evidence obtained illegally - Petition for divorce u/s. 13(1)(ia) of The Hindu Marriage Act - CCTV footage recorded without knowledge of wife - In recording wife was found to be talking on phone with her lady friend in a manner derogatory and defamatory to the husband - Husband produced CD of this recording as the evidence in divorce proceeding - Wife in her written statements opposed that CD to be tampered with and inadmissible as it is procured in breach of her right of privacy - After this objection husband made an application to family court to get the genuineness of CD examined from Forensic Lab - Family allowed that application and the same challenged by wife before High Court

Can CCTV audio-video secretly recorded by a spouse be permitted to be used against other spouse in a matrimonial dispute?

Held: In matrimonial dispute, secret recording is admissible in evidence if found to be relevant to the facts-in-issue; and the other party can initiate legal action action the party for adopting illegal means; but such action would not render the illegally obtained evidence inadmissible if it is otherwise relevant for the  purpose of deciding the matrimonial dispute between the parties.

   The sequitur to the aforesaid constitutional and legal landscape is that :

(a) The settled rule, purely from the standpoint of the law of evidence, is that evidence is admissible so long as it is relevant, regardless of how it is collected. Digressing from this settled position would have wide ramifications and consequences; and would be a serious hindrance to judicial proceedings across the board, in several foreseeable and unforeseeable ways. On the other hand, the possible misuse of this rule of evidence, particularly in the context of the right to privacy, can be addressed by prudent exercise of judicial discretion by a court not at the time of receiving evidence but at the time of using evidence at the stage of adjudication ;

Deposition of witness and certificate u/s.65B is sufficient to prove electronic evidence

How to prove photos and screenshot sent by one person to another? (Mode of proof)

Can snapshot of chat from a mobile handset be read in evidence without producing that mobile handset?

Matrimonial dispute - divorce sought by husband - Ground of adultery - Husband received photos, telephonic conversation and snapshot of chat between wife and her lover - Electronic evidence - Mode of proof - compliance to be made 

Held: Witness produced certificate u/s.65B and deposed that he had taken the print outs from the mobile phone, deserves to be read in evidence.

   Learned counsel for the wife contended that the photographs placed on the file as Annexures A-1 to A-8, do not stand duly proved on the record as required under Section 65-B of the Indian Evidence Act, 1872 (for short 'the Act of 1872') and in support of this contention, he relied upon Anvar P.V. vs. P.K. Basheer and others, 2015(1) SCC (Civil) 27, wherein the Hon'ble Apex Court observed that "in case of CD, VCD, chip, etc., the same would be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, was inadmissible."[Para No.9]

   However, we do not find this contention to be tenable because PW-4 Sunil Kumar, the photographer, tendered the original certificate under Section 65B of the Act of 1872 on the record as Ex.PW-4/A and he also specifically deposed that he had taken the print out of the photographs, i.e. Annexures A-1 to A-8, from the internal memory of the mobile phone brought to his shop by the husband. Moreover, in a subsequent verdict, as rendered by the Hon'ble Supreme Court in the case titled as State by Karnataka Lokayukta Police Station, Bengaluru vs M. R Hiremath, 2019 (3) SCC (Cri) 109, it has been held while referring to the above- discussed observations, as made in Anvar P.V.'s case (supra), that :-

No need to file appeal against every interlocutory order, it can be challenged in appeal against final decree

Does an interlocutory order becomes final if appeal is not preferred against it?

Is it open to a party to challenge the interlocutory order in an appeal against final decree?

Can appellate court direct the appellant to file revision to challenge the interlocutory order?

Held:

An interlocutory order which had not been appealed from, either because no appeal lay or even though an appeal lay, an appeal was not taken, can be challenged in an appeal from a final decree or order.

In Achal Misra (supra), the High Court had allowed the writ petitions filed by the allottees on the ground, that the landlord not having challenged the original order notifying the vacancy then and there, was precluded from challenging the order notifying the vacancy in revision against the final order or in further challenges to it in the High Court. When the judgment of the High Court came up for consideration before the two learned Judges of this Court, it was noticed, that it could not be said that the question of vacancy, if not challenged by a separate writ petition on its notification, could not be questioned along with the final order, in the revision filed under Section 18 of the Act. It was observed, that the question of vacancy pertained to a jurisdictional fact and can be challenged in the revision filed against the allotment order passed by the District Magistrate. It was further observed, that in case it was found, that there was no vacancy, the order of allotment had to be set aside. As such, the learned two Judges referred the matter to a larger Bench. The learned three Judges in the judgment in Achal Misra (supra) observed thus:

“11. On the scheme of the Act, it is clear that the preliminary step is to declare a vacancy. At this stage, an enquiry has to be made including an enquiry involving at least two respectable neighbours. It is thereafter that the vacancy has to be notified and objections invited. This is followed by either dropping of the proceedings on the objections being upheld that there was no vacancy, or by allotment to a tenant on finding the vacancy, or in ordering a release of the building, in case a landlord was found entitled to have such a release under the Act. Therefore, the notifying of a vacancy is only a step in the process of making an allotment of the building to a tenant.
The Act contemplates that no building should be let out by a landlord except through the process of allotment by the Rent Control Authority. Since the order notifying a vacancy is only a step in passing the final order in a proceeding under the Act regarding allotment, it is clear that the same could be challenged while challenging the final order, unless there is anything in the Act precluding such a challenge or conferring a finality to the order notifying a vacancy. It was held long ago by the Privy Council in Moheshur Sing v. Bengal Govt. [(1859) 7 Moo IA 283] (Moo IA at p. 302) “We are not aware of any law or regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting forever the benefit of the consideration of the appellate court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities.”
12. In Sheonoth v. Ramnath [(1865) 10 MIA 413] the Privy Council reiterated that a party is not bound to appeal from every interlocutory order which is a step in the procedure that leads to a final decree. It is open on appeal from such final decree to question an interlocutory order.
13. This principle is recognised by Section 105(1) of the Code of Civil Procedure and reaffirmed by Order 43 Rule 1­A of the Code. The two exceptions to this rule are found in Section 97 of the Code of Civil Procedure, 1908, which provides that a preliminary decree passed in a suit could not be challenged in an appeal against the final decree based on that preliminary decree and Section 105(2) of the Code of Civil Procedure, 1908 which precludes a challenge to an order of remand at a subsequent stage while filing an appeal against the decree passed subsequent to the order of remand. All these aspects came to be considered by this Court in Satyadhyan Ghosal v. Deorajin Debi [(1960) 3 SCR 590 : AIR 1960 SC 941. Ed.: See also(1981) 2 SCC 103, (2004) 12 SCC 754 and (2005) 3 SCC 422] wherein, after referring to the decisions of the Privy Council, it was held that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken, can be challenged in an appeal from a final decree or order. It was further held that a special provision was made in Section 105(2) of the Code of Civil Procedure as regards orders of remand where the order of remand itself was made appealable.
Since Section 105(2) did not apply to the Privy Council and can have no application to appeals to the Supreme Court, the Privy Council and the Supreme Court could examine even the correctness of an original order of remand while considering the correctness of the decree passed subsequent to the order of remand. The same principle was reiterated in Amar Chand Butail v. Union of India [AIR 1964 SC 1658] and in other subsequent decisions.
14. It is thus clear that an order notifying a vacancy which leads to the final order of allotment can be challenged in a proceeding taken to challenge the final order, as being an order which is a preliminary step in the process of decision­making in passing the final order. Hence, in a revision against the final order of allotment which is provided for by the Act, the order notifying the vacancy could be challenged. The decision in Ganpat Roy case[(1985) 2 SCC 307] which has disapproved the ratio of the decision in Tirlok Singh and Co.[(1976) 3 SCC 726] cannot be understood as laying down that the failure to challenge the order notifying the vacancy then and there, would result in the loss of right to the aggrieved person of challenging the notifying of vacancy itself, in a revision against the final order of allotment. It has only clarified that even the order notifying the vacancy could be immediately and independently challenged. The High Court, in our view, has misunderstood the effect of the decision of this Court in Ganpat Roy case [(1985) 2 SCC 307] and has not kept in mind the general principles of law governing such a question as expounded by the Privy Council and by this Court. It is nobody's case that there is anything in the Act corresponding either to Section 97 or to Section 105(2) of the Code of Civil Procedure, 1908 precluding a challenge in respect of an order which ultimately leads to the final order. We overrule the view taken by the Allahabad High Court in the present case and in Kunj Lata v. Xth ADJ [(1991) 2 RCJ 658] that in a revision against the final order, the order notifying the vacancy could not be challenged and that the failure to independently challenge the order notifying the vacancy would preclude a successful challenge to the allotment order itself. In fact, the person aggrieved by the order notifying the vacancy can be said to have two options available. Either to challenge the order notifying the vacancy then and there by way of a writ petition or to make the statutory challenge after a final order of allotment has been made and if he is aggrieved even thereafter, to approach the High Court. It would really be a case of election of remedies.”

Setting aside of the arbitral Award in rejecting the counter-claims of the respondent does not result in the same being decreed in its favour

Arbitration proceeding - Counter claim by respondent - counter claim dismissed - Award challenged u/s. 34 in District Court - District Court set aside that dismissal-award - consequences of such decision:

Held:

The Court which exercises jurisdiction u/s. 34 of The Arbitration and Conciliation Act is not a court of first appeal under the provisions of the C.P.C. hence the setting aside of an arbitral award rejecting a claim/counter claim does not result in the claim/counter claim which was rejected by the Arbitrator being decreed as a result of the judgment of the court in a petition under Section 34 of The Arbitration and Conciliation Act.

So, it follows that the Award of the Arbitral Tribunal ensures to the benefit of the petitioners being a successful party. It is the successful party who can seek its enforcement under Section 36 of the Act and also secure the Award under section 9 of the Act and not the respondent being the losing party. This position of law is well settled by the judgment of the Bombay High Court as upheld by the Supreme Court in case of Dirk (Supra) wherein in paragraphs 13 & 14, the Court has held as under:

Divorced Muslim woman cannot claim maintenance under Section 125 of the Cr.P.C. from her husband

Muslim divorced wife - entitlement of maintenance - sec.125 of CrPC - Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 - jurisdiction and power of family court to convert an application filed u/s.125 of CrPC into an application u/s. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Held: A divorced Muslim woman cannot claim maintenance under Section 125 of the Cr.P.C. from her husband after the enactment of the 1986 Act for Muslim Women. However, under Section 3  read with Section 4 of the 1986 Act for Muslim Women, a divorced Muslim woman is entitled to an order of maintenance, if she is unable to maintain herself after the Iddat period and has not remarried.

Family Court would have jurisdiction under Section 7 of the Family Courts Act to entertain an application under Section 3 and 4 if The Muslim Women (Protection of Rights on Divorce) Act, 1986.

It is now settled that a divorced Muslim woman cannot claim maintenance under Section 125 of the Cr.P.C. from her husband after the enactment of the 1986 Act for Muslim Women. However, under Section 3 read with Section 4 of the 1986 Act for Muslim Women, a divorced Muslim woman is entitled to an order of maintenance, if she is unable to maintain herself after the Iddat period and has not remarried. Section 5 of the 1986 Act for Muslim Women provides that a divorced woman and her former husband might decide by an affidavit or any other declaration in writing, that they would prefer to be governed by the provisions of Section 125 to 128 of the Cr.P.C.[Para No.56]

Sub-section (2) of Section 3 is an enabling provision which enables a divorced Muslim woman to make an application to a Magistrate for an order for payment of maintenance or mehr or dower or delivery of properties, as the case may be. The non- obstante clause is restricted to sub-section (1) of Section 3 and does not cover sub-section (2) of Section 3 of the 1986 Act for Muslim Women. There is no conflict between Section 3(2) of the 1986 Act for Muslim women and the Family Courts Act. On the other hand, Section 20 of the Family Courts Act, 1984 gives overriding effect to the Family Courts Act notwithstanding anything therewith contained in any other law in force. The Family Court is to exercise all the jurisdiction exercisable by any District Court or any other subordinate Civil court in respect of a proceeding for maintenance.

Daughter-in-law is merely a licensee in house owned by in-laws

Necessary party to suit - Sec. 2 (s) of Protection of Women from Domestic Violence Act - Scope of definition of Shared Houshold - House property is exclusively own by father-in-law - After marriage daughter-in-law started to live in that house with her husband - Daughter-in-law started harassing her in-laws - father-in-law asked his son to vacate the house - Son alongwith wife left the house - After sometime daughter-in-law came bake and forcibly entered in that house and refused to vacate the house - Father-in-law filed a suit for eviction against his daughter in law without impleading his son as defendant.

• Is the son necessary party to eviction suit filed against daughter-in-law?

• Does the property owned by in-laws; in which their son was permitted to live with his wife, falls under the definition of Shared Household as defined u/s.2(s) of PWDV Act?

Held:

In-laws can evict Daughter-in-law from their house without seeking decree of eviction against their son. House exclusively owned by in-laws is not Shared Houshold under PWDV Act. Daughter-in-law is merely a licensee.

No government servant has a legal right to be posted forever at any one particular place or at a place of his choice

Even if the order, impugned in the Writ Petition, is, as held by the learned Single Judge, a transfer order, it is well settled that transfer from one place to another is an incidence of service, and is made in the exigencies of administration. No person can claim that he should not be transferred from one place to another. No government servant has a legal right to be posted forever at any one particular place or at a place of his choice. (Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey (2004) 12 SCC 299; Major General J.K. Bansal v. Union of India (2005) 7 SCC 227 ; Union of India v. Janardhan Debanath (2004) 4 SCC 245; National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan (2001) 8 SCC 574). Transfer of an employee, appointed to a particular cadre of transferable posts, is an incident of service and is made in administrative exigencies. No government servant has neither a legal right to be posted at any particular place nor any choice in the matter. Transfer is necessary in public interest and efficiency in public administration, and is, normally, not to be interfered with by Courts/Tribunals. (Gujarat Electricity Board v. Atmaram Sungomal Poshani (1989) 2 SCC 602; Public Services Tribunal Bar Association v. State of U.P (2003) 4 SCC 104).[Para No.7]

For claiming payment of agreed amount, claimant need not prove any actual loss

Failure to make payment of compensation payable under contract is not equal to breach of contract.

   Paragraph 1103 of Halsbury's distinguishes between kinds of money payments. Damages, as dealt with earlier, are said to be distinguishable from debts and from a sum of money payable under a contractual liability to pay a sum on a given event. In fact, damages are sought to be distinguishable from compensation and from a penalty and from costs. In the present case, once we come to the conclusion that the amount awarded is not damages and for breach of contract, the petitioner-Niko has no case whatsoever to challenge the award. It will be also beneficial to consider Anson's on the Law of Contract, which, in Chapter 18, deals with actions to recover an agreed sum. The claim in that case was for a liquidated amount and the defendant was obliged under the contract to pay money. Although in that sense, it is said to be similar to specific performance, it is distinguishable and does not attract the same bar in law. The Law of Contract draws a clear distinction between a claim for an agreed sum and a claim for damages for breach of contract. The claimant need not prove loss where a claim is for payment of an agreed sum and remoteness of damages and mitigation of loss are irrelevant in such situations. In the instant case, the formula is meant to provide for such payment. The application of the formula is a matter which was before the tribunal and which the tribunal has considered. The formula was admittedly applicable being within the contractual scope and was not extraneously sourced. There is no question of any further proof of loss caused. [Para No.54]

Bar of period of limitation is a mix question of facts and law

Plaint can not be rejected on the ground of bar by limitation

   Whether plaint can be rejected under Order 7 Rule 11 of CPC if defendant claims the suit to be barred by limitations and disputes the time of accrual of cause of action?

Held:

   Plain can not be rejected under Order 7 Rule 11 of C.P.C. if accrual of cause of action as mentioned in the plaint is disputed to be beyond period of limitation.

   Genuineness of assertion in respect of accrual of cause of action is a mix question of facts and law.

Muslim mother is not guardian of minor's property

• Whether consent of mother is necessary to alienate property of minor?

• Whether father is required permission of District Court for alienating property of minor?

   Grand mother gave property to minor grandson as a gift - Father without consent of mother of minor and without permission of court executed agreement to sale with third-party - before execution of sale deed, minor attained majority - Notice for specific performance of agreement given to the owner who has attained the majority - suit for specific performance filed against owner who was minor at the time of execution of agreement to sale by his father - Trial court hold that father of the minor was the legal guardian, however, he did not have the authority to execute the agreement, as the defacto guardian was the mother - Suit dismissed - First appellate court reversed the judgment of trial court - Second appeal filed in High Court.

Held: Under Mohammedan Law the mother cannot act or be the guardian of the property of the minor. Consent or permission neither of mother nor of District Court is necessary for father, being natural guardian to alienate property of minor.

Retirement of one partner amounts to dissolution of partnership if there are only two partners

• Is retirement of partner and dissolution of partnership firm is the same thing?

• What the difference between retirement and dissolution?

• When retirement of partner amounts to dissolution of partnership firm?

 Sec.37 and 48 of The Partnership Act

   There is a clear distinction between ‘retirement of a partner’ and ‘dissolution of a partnership firm’. On retirement of the partner, the reconstituted firm continues and the retiring partner is to be paid his dues in terms of Section 37 of the Partnership Act. In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement [See – Pamuru Vishnu Vinodh Reddy v. Chillakuru Chandrasekhara Reddy and Others, (2003) 3 SCC 445]. In the present case, there being only two partners, the partnership firm could not have continued to carry on business as the firm. A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm [See – Erach F.D. Mehta v. Minoo F.D. Mehta, (1970) 2 SCC 724]. [Para No.12]

Transfers during pendency of suit by a party to the suit is not void, such transfer is subservient to the decision in the suit.

What is the status of transaction and purchaser of property during the pendency of suit?

   It is settled legal position that the effect of Section 52 is not to render transfers effected during to pendency of a suit by a party to the suit void, but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendente lite purchaser would be entitled to, or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court. The mere pendency of the suit does not prevent one of the parties to the suit from dealing with the subject matter of the suit. The Section only postulates a condition that the lis pendens alienation will in no manner affect the rights of the other party under any decree, which may be passed in the suit unless the property alienated with the permission of the Court.

When secondary evidence can be permitted to be adduced

In what situation secondary evidence can be permitted to be adduced? Does such permission amounts to proof of that document?

   Sec.65 and 66 of Evidence Act - Proof by leading secondary evidence - Original will deposited to revenue officers for registration - notice issued to revenue officers for production of original will - they failed - court rejected permission to allow secondary evidence observing that the pre-requisite condition of existence of Will is not proved, hence Will cannot be permitted to be proved by allowing the secondary evidence - Witness deposed “I have seen the Will dated 24.01.1989 which bears my signature as scribe and as well as witness.”

Disability Certificate is a public document which can not be doubted

 Motor Vehicle Accident Claim - how to appreciate Disability Certificate and how to fix quantum of compensation?

    Disability certificate issued by the Medical Board of Government Medical College is a public document, it cannot be doubted.

   The disablement certificate issued by the Medical Board of a Government Medical College is a public document. The disablement of 50% as in the certificate is to be supported by other evidence either documentary or oral for the purpose of strengthening the cause before an appropriate court of law.[Para No.24 & 25] 

    The law with respect to the grant of compensation in injury cases is well-settled. The injured is entitled to pecuniary as well as non-pecuniary damages. Pecuniary damages also known as special damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money whereas non-pecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the non-pecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc.[Para No.9]

Weakness in the defense cannot be the basis to grant relief to the plaintiffs

Can weakness of defense be a ground to decree a suit?

   The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden can not be shifted on the defendants. [Para No.16]

Civil suit for declaration of nullity of Revenue Officers' order is maintainable

The land was recorded in the name of Government - Plaintiff is in possession and paying taxes - Defendant obtained order from revenue officer to the effect that defendant is the owner of that land - order is passed without issuing notice to plaintiff and without following due procedure and without following principals of natural justice - Defendant is taking advantage of the said order and trying to remove the plaintiff from the land - suit for declaration - bar to jurisdiction - Sec. 36, 36(A) and 36(B) of The Maharashtra Land Revenue Code.

   If the order is ultra virus the parties entitled to ignore it and to go to the Civil Court for declaration that the order is a nullity and no action should be taken against under that order, which would prejudice his right.[Para No.22]

  In view of the specific allegation that without following due procedure and without following principals of natural justice, the revenue authorities have passed the orders in favour of the defendant No.6/petitioner and further in view of the other reliefs prayed in the plaint, other than declaring the orders of the Revenue Officers as ultra virus, which are very well permissible in a civil suit, I do not find any merit in the present petition. Further I have no hesitation to hold that no infirmity of law or error has been committed by the learned trial Court while holding that the suit is maintainable. [Para No.23]

Mere service of notice would not give rise to a cause of action

Cause of action' implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. It has been interpreted to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. [Para No.20]

   As cause of action is the bundle of facts to examine the issue of jurisdiction it is necessary that one of the interlinked fact must have occurred in a place where the case has been instituted. All necessary facts must form an integral part of the cause of action. The fact must have direct relevance in the lis involved. It is not that every fact pleaded can give rise to a cause of action so as to confer jurisdiction on the Court in whose territorial jurisdiction it has occurred.[Para No.21]

Plaintiff must plead and prove specific instances of cruelty or intention of desertion for obtaining divorce

Section 13 (I) (i-a) clearly provides for grant of decree of divorce on the ground of cruelty which can be physical or mental.

Plaintiff in order to succeed in a suit for divorce on the ground of cruelty must plead and prove specific instances of cruelty or allege and prove such allegations, which if considered singularly or cumulatively make cohabitation impossible.Section 13 (i) (i-b) of Hindu Marriage Act 1955, on the other hand provides for grant of decree of divorce on the ground of 'desertion'. However, in order to seek decree of divorce on the ground of 'desertion', plaintiff must prove that he/she has been deserted for a continuous period of not less than two years immediately, preceding the presentation of the petition. Therefore, what implies from plain reading of Section 13 (i) (i-b) of Act 1955 is that defendant must have deserted petitioner for a continuous period of two years prior to the date of institution of suit. The aforesaid requirement can be termed as a necessary pre- condition for seeking a decree of divorce on ground of desertion. Therefore, it is imperative on the part of plaintiff to plead and prove that defendant has deserted plaintiff and has continued doing so uninterruptedly for a period of two years, prior to the institution of suit. Apart from aforesaid, the issue relating to separate living, (factum deserdendi) and intention of committing desertion (Animus deserdendi) have to be established.[Para. No.31]

Allegations made in plaint are vague and general and do not give specific instances of cruelty. Further allegation of cruelty alleged in plaint if considered either singularly or cumulatively do not lead to the conclusion that co-habitation is not possible.

No infirmity in the dismissal of suit for divorce.

Family Court has jurisdiction to award permanent alimony to Muslim wife while granting the decree of divorce in her favor

The point to be stressed is that the relief of maintenance whether to the wife or the children is incidental to the relief of 'dissolution of marriage'. Merely because 'The Dissolution of Muslim Marriages Act, 1939', does not mention that the Court is also having the jurisdiction or power to grant such relief, it cannot be said that the Court is not having the jurisdiction to grant it, if it is incidental, claimed and the Court finds it necessary to grant the same. Moreover, the right of maintenance given to wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father.

The law expects that the parties should not be driven to approach the different forums but in one forum itself they should be granted whatever reliefs to which they are entitled.[Para No.56]

   
The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage. In other words, the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding.[Para No.79]

   The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much an integral part of the decree of 'dissolution of marriage'. The Law contemplates that the husband has two separate and distinct obligations; (I) to make "reasonable and fair provision" for his divorcee wife and (ii) to provide "maintenance" for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.

   The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.

   When the Family Court makes an order of permanent alimony or for one time payment in the proceedings instituted by the wife for divorce, it is not founded on any stipulation that any part of the sum would be refunded either in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. It is something different from the obligation to her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the husband from her future liabilities unconditionally.[Para No.80]

Gujarat High Court

Tarif Rashidbhai Qureshi

Vs.

Asmabanu Alimohmmad Idarbhai Qureshi

Decides on 19/03/2020

Tenant is not protected if he fails to pay rent after receipt of notice and during the trial as well as appeal proceeding

Maharashtra Rent Control Act - Eviction of tenant on the ground of default in payment of regular rent and illegal subletting - No rent is paid even after receipt of notice for eviction - Tenant disputed the standard rent but has not filed application for fixation of standard rent - Tenant made default in payment of regular rent in trial court and appellate court - Court commissioner report in respect of subletting filed but tenant has not filed his say thereon.

   The above enunciation, clarifies beyond doubt that the provisions of Clause (b) of Section 12(3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim for eviction on the ground of default in payment of rent is to be defeated. The word "regularly" in Clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterized by reasonable punctuality, that is to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clock like precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of Clause (b), tender or pay it every month as it falls due, or at his discretion in advance. If he persistently default during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months as is the case before us the Court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this Clause irrespective of the fact that by the time the Judgment was pronounced all the arrears had been cleared by the tenant.

{Mranalini B. Shaha and another Vs. Baplal Mohanlal Shaha (1980) 4 SCC 251} [Para No.16]