SECTION 9 : Restitution of Conjugal Rights

By ANUPRIYA AGRAWAL, ADVOCATE

Restitution of conjugal rights 

When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Implications of Restitution Of Conjugal Rights 

Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights. The aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights.

One of the important implications of Section 9 of the Hindu Marriage Act, 1955 is that it provides an opportunity to an aggrieved party to apply for maintenance under Section 25 of the Hindu Marriage Act, 1955. 

Maintenance can also be obtained by the party in case when the action is pending under Section 25 of the Hindu Marriage Act, 1955. So, a wife who does not want a judicial separation or disruption of marriage can attain maintenance from her husband without filing a suit for the same under the Hindu Adoptions and Maintenance Act, 1956. 

Another important implication of the section is that it provides a ground for divorce under Section 13(1A) of the Hindu Marriage Act, 1955 on a condition that there has been no restitution of conjugal rights between them for a period of one year or more after the passing of a decree for restitution of conjugal rights.

Sufficient Cause for Withdrawal and Burden of Proof

The fundamental rule of matrimonial law that one spouse is at liberty to the society and comfort of the other spouse, forms the foundation of the right to bring a suit for the restitution of conjugal rights. The court has the duty of granting a decree for restitution in the cases where either spouse has abandoned or withdrawn from the society of the other. When the question arises whether there has been reasonable excuse for the withdrawal of the respondent from the society of the aggrieved party, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. But this concept is only secondary in nature. The primary object of showing proof or onus rests with the petitioner. Once the petitioner has proved his/her case, the burden of proof then shifts to the other party to prove the defence of a ‘reasonable excuse or cause’. Here the term ‘society’ corresponds to cohabitation, and ‘withdrawal’ signifies cessation of that cohabitation and bringing to end consortium. This must be a voluntary act of the respondent.

In Sushila Bai v. Prem Narayan, the husband deserted his wife and thereafter was totally unresponsive towards her. This behaviour was held sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed. The defence to this principle lies in the concept of a ‘reasonable excuse’. If the respondent has withdrawn from the society of his spouse for a valid reason, it is a complete defence to a restitution petition. The court will normally order restitution of conjugal rights if:

     i. The petitioner proves that the respondent spouse has without reasonable excuse withdrawn from his/her society

    ii. The statements made by the aggrieved spouse in the application are true, and

    iii. There is no legal ground why the petitioner’s prayer should not be granted

Role of Mediation in settlement of Matrimonial Disputes: Supreme Court ruling in K. Srinivas Rao v. D.A. Deepa

BY  ANUPRIYA AGRAWAL, ADVOCATE

Mediation refers to a form of alternative dispute resolution (ADR) in which the parties to a lawsuit meet with a neutral third-party in an effort to settle the case. The third-party is called a mediator. It is this person’s job to listen to the evidence, help the litigants come to understand each other’s viewpoint regarding the controversy, and then facilitate the negotiation of a voluntary resolution to the case. The purpose of mediation is to avoid the time and expense of further litigation by settling a lawsuit early on in the process.

In the recent case of K Srinivas Rao v. D.A. Deepa, Supreme Court considered the importance of mediation as a means for settling a marriage dispute amicably. The case that, by special leave, came before the Court was related to a dispute whereby husband had sought divorce on the ground of mental cruelty. While granting divorce, Justice Ranjana Prakash Desai referred to the case of Samar Ghosh v. Jaya Ghosh, in which Supreme Court had laid down some guiding principles for determining mental cruelty. In the instant case of K Srinivas Rao, wife filed criminal cases against the husband and his family members (including a case under Section 498-A). She also made an allegation that the mother of the husband asked her to sleep with the father of the husband. After discovering the presence of mental cruelty, court also opined that the marriage had broken down irretrievably.  

Purpose of Mediation

The cause of the misunderstanding in a matrimonial dispute is usually trivial at first, the same, in the opinion of the court, can be sorted out by a mediator before it takes the shape of a furious legal battle. 

Following observation was made by the bench: 

        “We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation. Section 9 of the Family Courts Act  enjoins upon the Family Court to make efforts to  settle the matrimonial disputes and in these efforts,  Family Courts are assisted by Counsellors. Even if the Counsellors fail in their efforts, the Family Courts  should direct the parties to mediation centres, where trained mediators are appointed to mediate between the parties. Being trained in the skill of mediation, they produce good results”

At the same time, court also observed that there can, very often, be situations when one of the parties files a case under Section 498A of IPC. Since offence under Section 498A is non-compoundable, it is usually not possible to circumscribe it by means of a settlement (“A successful mediation results into a settlement”). In fact, Supreme Court, in Ramgopal & Anr. v. State of Madhya Pradesh & Anr.[ (2010) 13 SCC 540], had requested the Law Commission and the Government of India to  examine whether offence punishable under Section 498-A of the IPC could be made compoundable.

As an interim solution to this problem, the court can approve the result of mediation (“even in the presence of a case under Section 498A of IPC”) by using its inherent powers. If a dispute can be solved amicably and marriage can be saved, there is no point in dragging up the issue in a litigation. In B.S. Joshi & Ors. v. State of Haryana & Anr.[ AIR 2003 SC 1386],  Court had held that

“...complaint involving offence under Section 498-A of the IPC can be quashed by the High Court in exercise of its powers under Section 482 of the Code if the parties settle their dispute.”

In the instant case, court made the following final observation: 

“In terms of Section 9 of the Family Courts Act, the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre

The criminal courts dealing with the complaint under Section 498-A of the IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing..”

However, from my own experience at a Family Mediation Centre, I have seen the success of mediation in matrimonial disputes largely depends on the co-operation between the parties. In my opinion mediation at an early stage of Matrimonial dispute saves time, money and off course the mental harassment that both the parties have to undergo during the long process of litigation.

  

Dishonour of Cheque – Section 138 of the Negotiable Instruments Act

Section 138 of the Negotiable Instruments Act, 1881 (henceforth referred as the Act) provides for conception of criminal proceedings against a person, whose cheque has been dishonoured, deeming it to be an act alike cheating. There is a plethora of judgements on the subject delivered by Supreme Court and various High Courts and is a growing apace and is a source of considerable perplexity, and we often find ourselves in a quandary.

138. Dishonour of cheque for insufficiency, etc., of funds in the  account:

 Where any cheque drawn by a person on an account  maintained  by  him  with a banker for payment of any amount of money  to  another  person  from  out of that account for the discharge, in  whole  or  in  part, of any debt or other liability, is returned by the bank  unpaid,  either  because of the amount of money standing to the credit of  that  account  is insufficient to honour the cheque or that it  exceeds  the  amount  arranged  to be paid from that account by an   agreement  made  with  that  bank,  such person shall be deemed to  have  committed  an  offence  and shall, without prejudice. to any other provision of  this  Act, be punished with imprisonment for a term which may extend to  two  years, or with fine which may extend to twice the amount of the cheque,  or with both: 
   Provided  that  nothing  contained in this  section  shall  apply  unless-
          (a) the  cheque  has been, presented to the bank  within  a period  of six months from the date on which it is  drawn  or  within the period of its validity, whichever is earlier;
          (b) the payee or the holder in due course. of the cheque as the  case may be, makes a demand  for  the  payment  of  the said  amount of money by giving a notice, in writing,  to
the  drawer  of the cheque, within thirty days of the receipt  of information by him from the bank regarding the return of  the cheque as unpaid; and
          (c) the drawer of such cheque  fails to make the payment of the said amount of money to the payee or, as the case may be, to  the  holder in due course of the cheque,  within  fifteen  days of the receipt of the said notice.

Explanation.-For  the  purposes of this section, “debt  or  other  liability” means a legally enforceable debt or other liability.

INGREDIENTS OF OFFENCE UNDER SECTION 138

1. The cheque should have been issued for the discharge , in whole or part, of any debt or other liability
2. The cheque should have been presented within a period of six months or within its validity period whichever is earlier.
3. The payee or holder in due course should have issued a notice in writing to the drawer within 30 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid.
4. After receipt of the said notice from the holder in due course, the drawer should have failed to pay the cheque within 15 days of receipt of the said notice.

Law Pertaining To Cheque Bouncing

We received various queries from people about cheque bouncing. What we advice to all is to immediately send a notice otherwise proceedings under Negotiable Instruments Act before a Magistrate cannot commence. A person has other remedies as well. Like filing a civil suit for recovery for the amount. But the criminal proceedings before a Magistrate are an excellent option for getting the amount recovered faster because of the implications of criminal sentencing.

This post also presumes that the cheque was issued towards a debt or a legally enforceable liability. In other situations, like gifts, donations, present, etc., an offence under Negotiable Instruments Act, 1881 cannot be made out for a bounced cheque. Another important aspect is that a cheque has a shelf-life / validity of only three months from the date of issue–this used to six months earlier.

For Instance, if you deposited a cheque on May 31st and should you come to know on Monday, June 03, that the cheque has bounced for reasons like “insufficient funds” “payment stopped” “refer to drawer” etc., you need to inform the person who issued the cheque.

It is mandatory that you send a demand notice of the amount of the cheque to the person who issued the cheque within 30 days from the day you received the information of the bouncing. Hence, on or before July 02, your notice should have been dispatched to this person.

Misuse of Domestic Voilence Act

The Domestic Violence Act was formed to stop the Domestic Violence against women but now it is being misused to such an extent that women suffering from its misuse have far outnumbered the women suffering from Domestic Violence. It is necessary to take steps to stop the misuse of this Act to prevent the family system of India from breaking down and at the same time ensure justice to genuinely abused women.

 MISUSE OF DOMESTIC VOILENCE ACT

It is important to protect women from Domestic Violence. And hence for the same, a law was formulated through which a woman can not only seek protection but also financial support in terms of maintenance.
 
There used to be a time when a lot of women were dependent on their husbands and due to lack of self-dependency and being less educated, these women had no options but to endure the torture done on them, but today a lot of examples of qualified women misusing the law provisions and torturing their in-laws are coming to front. Many women misuse this law and put false allegations on husband’s mother-father and siblings. This destroys the lives of many a families. In fact, a lot of contemporary women are suffering due to misuse of a law meant for women. Even after doing all this torture, the complainant woman can get maintenance from the husband and by the time the family proves its innocence the complainant woman stands to gain a lot financially. In a nutshell, it can be said that even after levying false allegations and endangering the lives of so many people, the complainant woman stands to gain only something, not loose. Eyeing such benefits, greedy women are ever ready to file cases with false allegations. In order to take advantage of the law many a qualified women are leaving their jobs deliberately. This is not only a hindrance to their growth but also to the national economic growth.

The Govt. has formulated many policies for the girl child, due to the success of which today women are progressing in every sphere of life. In fact, urban woman has no need to depend on anyone today and she can well maintain herself. In such a situation, only socially and economically backward woman must get support from the law. In fact, seeing other examples of women performing will inspire many a woman to prosper in life.In order to stop the misuse of law, it is pertinent that only suffering women should get help. In order to curb misuse many more steps can be taken like:

1. Prima-facie a woman should not get any interim relief if there are no visible signs of torture.
2. If the complainant woman has alleged against all/many family members from her in-laws’ side then reasonable doubt can be cast on the genuineness of the complaint. Even if a single innocent man/woman has been wrongly implicated than that should be a fact enough to punish the complainant woman. She should not get any financial assistance because that will further encourage the bad behavior of the woman and it will set precedence to waste the precious time of courts and innocent people by such women.
3. If the complainant woman is educated, then she should be encouraged to be self-dependent. In fact, it is an indirect torture on such a woman to keep her dependent on someone else. Educated and qualified women should not be eligible for any financial assistance from their husbands.

It is very crucial to uproot the misuse of the Domestic Violence Act in order to safeguard our culture and ensure progress of our country and to severely punish the people who misuse the law. Only then will innocent families and genuinely abused women get justice and they will be protected from this growing torture.

Divorce by Mutual Consent as per Indian Law

Divorce by Mutual Consent is the fastest way or procedure of getting divorce in India.For filing for a divorce under mutual consent, it is necessary for the husband and wife to have lived separately for at least a year. 

Divorce by mutual consent is fastest because parties can get divorce in six months only and can be shortened if the parties are living separately since long time spam. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce”.

A Hindu marriage cannot be dissolved by compromise or consent except to the extent expressly permitted under section 13B of the Hindu Marriage Act, 1955.

Insertion of Section 13B in the Hindu Marriage Act was made perhaps as a response to an overwhelming demand in society for such a provision.

The felt necessities of our changing society require that there should be no insistence on the maintenance of a marriage which has broken down and thus a marriage in which parties cannot live together should be dissolved.

 

13B.Divorce by mutual consent

  (1) Subject to the provisions of this Act:

 A petition for dissolution of marriage by a decree of divorce may  be  presented  to the district court by both  the  parties  to  a marriage  together,  whether such marriage was  solemnized  before  or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of  1976.) on the ground that they have been living separately  for  a period  of  one  year or more, that they have not been  able  to  live together and that thy have mutually agreed that the marriage should be dissolved.

(2)  On the motion of both the parties:

The parties made no earlier than  six  months after the date of the presentation of the petition referred  to  in  sub-section (1) and not later than eighteen months after the  said  date,  if  the petition is not withdrawn in the  meantime,  the  court  shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and  that the averments in the petition are true, pass a decree of  divorce  declaring the marriage to be dissolved with effect from the  date of the decree.

However, not all estranged couples agree on the desirability, grounds or the conditions of divorce. In such cases, one party files for divorce in the court, but the other contests it. This forms the case for the filing of a contested divorce.

A mention must be made in the petition that the parties have not been able to live together and have been living separately for a period of at least one year. This period is mandatory.  Therefore, no application for divorce by mutual consent can be filed within a period of one year from the date of marriage.

Petition under section 13B must also mention that the parties have mutually agreed that marriage should be dissolved. This statement is also mandatory. The petition under section 13B should be filed only after both the parties appreciating their circumstances come to the conclusion that they cannot live together as husband-wife.

This conclusion must be arrived at independently by both the parties to the marriage and without any coercion of pressure. The decision to get the divorce should be only theirs and the application cannot be filed if one of the parties is not ready for divorce or if the parties are filing the application on someone else’ instigation.

A petition for mutual divorce once presented before the Court of District Judge is taken up on the motion of the parties only after a period of six months has expired from the date when the petition was first presented before the Court. For instance, if the petition was presented on 01/01/2013, it will be taken up by the Court on the motion of the parties made after the expiry of at least six months.

Therefore, the parties can move their motion for the taking up of their petition only on 02/07/2013 and not earlier. However it is to be remembered that this motion should be made after six months from the date of presentation of the petition but before the expiry of 18 months from the said date, i.e. the date of presentation. Hence in the above example as has already been stated, the parties can move a motion for taking up of their petition only on or after 02/07/2013 but this motion must be made before the expiry of 18 months from the date of presentation, i.e. before 01/07/2014.

The Court has to be satisfied that the parties cannot live together as husband-wife and also that the petition is filed only as per the prescribed time and that both the parties have filed the petition voluntarily with their respective free consents and not under any fraud, coercion, undue influence or force and only after fully understanding the implication.

Once the Court arrives at this satisfaction, decree of divorce under section 13B shall be passed in favour of the parties. The Supreme Court has held that mutual consent must continue till divorce decree is passed and revocation of consent by either of the parties at any time before the decree is passed is fatal to the proceedings [AIR 1992 SC 1904].

Section 498A in The Indian Penal Code

    498A. Husband or relative of husband of a woman subjecting her to cruelty —  Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. 

Explanation.—For the purpose of this section, “cruelty” means— 

 (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.