Be Your Own Lawyer

Be Your Own Lawyer

by Kush Kalra, Luv Kalra

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Product Details

ISBN-13: 9789382573654
Publisher: VIJ Books (India) PVT Ltd
Publication date: 09/01/2013
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 352
File size: 499 KB

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CHAPTER 1

Abortion Without Consent is A Ground For Divorce

Facts in Nutshell: The matrimonial alliance was entered into between Suman Kapur and Sudhir Kapur the parties as per Hindu rites and rituals in Delhi on March 04, 1984. The marriage was inter-caste marriage. Though initially parents of both the parties were opposed to the marriage, subsequently, they consented. The parties have no issue from the said wedlock. Ms Suman Kapur conceived for the first time in 1984, within a period of about one month of the marriage, but on account of being exposed to harmful radiations as a part of lab work of her Ph.D. thesis, she decided to terminate the pregnancy. It was also mentioned by her that termination of pregnancy was done with the knowledge and consent of the husband.

Again, in 1985, she conceived. But even that pregnancy was required to be terminated on the ground of an acute kidney infection for which she had to undergo an IVP, which entailed six abdominal X-rays and radiometric urinary reflect test with radioactive drinking dye. She claimed that even the second pregnancy was terminated with the knowledge and consent of husband. Third time she became pregnant in 1989, but she suffered natural abortion on account of having a congenitally small uterus and thus prone to recurrent miscarriages.

The husband submission before the court, on the other hand was that since solemnization of marriage between the parties, the attitude, conduct and behaviour of the wife towards him and as well as his family members was indignant and rude. He also alleged that first pregnancy was terminated in 1984 by his wife without consent and even without knowledge of him. Same thing was repeated at the time of termination of second pregnancy in 1985. He was kept in complete dark about the so-called miscarriage by the wife in 1989. The husband was thus very much aggrieved since he was denied the joy of feeling of fatherhood and his parents were also deprived of grand-parenthood of a new arrival.

Action by Respondent (Husband): The respondent-husband, herefore, filed HMA No. 322/2001/96 in the Court of Additional District Judge, Delhi under Section 13(1)(ia) and (ib)2 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') for getting divorce from the appellant-wife. Two grounds were taken by the respondent-husband in the said petition, i.e. (i) cruelty and (ii) desertion.

Decision by Trail Court: The trial Court after hearing the parties held that the husband was not entitled to a decree of divorce on the ground that the wife had deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the petition. The Court, however, held that it was fully established by the husband that there was cruelty on the part of the wife. The wife without the knowledge and consent of the husband got her pregnancy terminated twice - firstly in 1984 and secondly in 1985. The husband was also not informed about natural miscarriage in 1989.

Decision by High Court: The wife preferred an appeal in the High Court of Delhi. The High Court again appreciated the evidence on record and confirmed the decree of divorce passed by the trial Court. The High Court, however, held that it was not necessary for the Court to consider mental cruelty so far as termination of pregnancy was concerned, since in the opinion of the High Court, even otherwise from the letters and entries in diary, it was proved that there was mental cruelty on the part of the wife. Accordingly, the decree of divorce passed by the trial Court was confirmed by the High Court.

Decision by Supreme Court: Confirming the decree of divorce on the ground of mental cruelty as held by both the courts, i.e. the trial Court as well as by the High Court, no relief can be granted so far as the reversal of decree of the courts below is concerned. At the same time, however, in Supreme Court Judges opinion, the respondent-husband should not have re-married before the expiry of period stipulated for filling Special Leave to Appeal in this Court by the wife. Therefore to meet the ends of justice the respondent -husband to pay an amount of Rs Five lakhs to the appellant wife.

CHAPTER 2

Benefit of Maintenance Cannot be Denied to Minor

Facts in Nutshell: This case was an appeal by petitioner against order dated 2nd March, 2009 passed by the Learned Metropolitan Magistrate granting of Rs. 2000 per month for the minor daughter of the petitioner who is living separate from petitioner with the mother. The sole Contention raised by the petitioner before High Court is that in view of Section 3(1)(b) of Muslim Women (Protection of Rights on Divorce) Act, 19862 the right of the child to claim maintenance from father after two years of divorce of the mother does not survive.

Decision by High Court: The court held that Even a wife who has been divorced under Muslim Law is entitled to claim maintenance under Section 125 Cr.P.C. after Iddat period. The court makes it crystal clear that even a Muslim divorced woman would be entitled to claim maintenance from a Muslim husband till she has not married.

The court also held that benefit under Section 125 Cr.P.C. cannot be denied to a minor daughter. The petition was dismissed by court.

Reference by High Court to Supreme Court Judgment: Supreme Court in Shabana Bano v Imran Khan had observed that petition under Section 125 Cr.P.C would be maintainable (for the wife) before Family Courts so long as she does not remarry and the amount of maintenance to be awarded under Section 125 Cr.P.C. cannot be restricted for Iddat period only.

CHAPTER 3

Infertility is Not a Ground for Divorce

Facts in Nutshell: In this matter wife filed an appeal challenging the judgment and decree passed by the Family Court, Pune. Wife challenged: the judgment and decree of nullity under Section 122 of the Hindu Marriage Act on the ground of impotency under Section 12(1)(a), and also the judgment and decree of divorce on the ground of cruelty and desertion under Section 13(1)(ia)(ib)3 of the Hindu Marriage Act, 1955.

One petition was filed by husband for nullity and alternatively for divorce. One petition was filed by wife for restitution of conjugal rights. Both petitions were jointly heard and by the common judgment the marriage between the parties was annulled and also divorce was granted. Petition for restitution of conjugal rights was dismissed.

Court Observation on laws delays (Paragraph 3): It is rather a disturbing state of affair that there is laws delay. This Family Court Appeal has reached final hearing after about 18 years of the dissolution of marriage. The spouses then in the year 1992 were 42 years (husband) and 45 years (wife), when the petitions were filed. However, presently both the parties have become or about to become senior citizens.

Decision by Family Court: Family court held that inability to give birth to a child presupposes that the woman is impotent and as such a valid ground as contemplated by Section 12 of the Hindu Marriage Act, 1955 for divorce.

Case cited by Learned Advocate: V. (Wife) vs. S. (Husband)4 in which Impotence is defined as physical incapacity of accomplishing the sexual act, while sterility means inability for procreation of children. Impotence in males is the persistent inability to develop or maintain a penile creation sufficient to conclude coitus to orgasm and ejaculation.

Impotence has been described in Halsbury's Laws of England to be such a state of mental or physical condition which makes consummation of the marriage a practical impossibility.

Decision by High Court: Court held that Family court committed an error by treating impotency and infertility at par. Family Court committed an error by giving divorce on ground of impotency. High Court also set aside the judgment of family court where family court granted divorce and annulled the marriage between husband and wife on grounds of impotency . Petition by husband was dismissed with costs quantified at Rs 10,000 to be paid to the wife.

CHAPTER 4

Muslim Girl Can Marry At the Age of 15 without the Parental Consent

Facts in Nutshell: The petitioner seeks a writ of habeas corpus for the production of her daughter (Shumaila). It was alleged that Shumaila was a minor (aged 15) when she was kidnapped by Mehtab on 12.04.2011 along with Rs. 1,50,000. The petitioner's husband reported the kidnapping to the Gokalpuri police and on 14.04.2011 got FIR registered. It was alleged that after the abduction of Shumaila, the petitioner received telephonic threats from Mehtab stating that if the petitioner took any legal action against him, he would kidnap her other daughter. The police did not take any action and hence the petitioner approached Court through writ petition. Petitioner relies on the birth certificate on record of Shumaila issued by the Delhi Government which shows that her date of birth was 10.06.1996. It was submitted by the petitioner that the age of her daughter at the time of kidnapping was 15 years.

Shumaila statement in Court: Shumaila told the Court on 18 April, 2012 that she did not wish to go back to her parents and that she wanted to continue to stay with her husband. According to available records, Shumaila's age was 15 years, 10 months and 23 days.

Issue to be decided by the Court: Issue to be decided by this Court, in view of these developments is, whether Shumaila should be directed to return to her parental home. Court notes that according to Mohammedan Law a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18.

Case Refereed: In Vivek Kumar @ Sanju and Anjali @ Afsana vs. The State and another observed that: There is no law which prohibits a girl under 18 years from falling in love with someone else. Neither falling in love with somebody is an offence under IPC or any other penal law. Desiring to marry her love is also not an offence. A young girl, who is in love has two courses available to her one is that she should marry with the consent of her parents after obtaining the consent of her parents. If her parents do not agree to persuade them or to wait for attaining the age of majority and then exercise her right as a major to marry the person of her own choice.

If a girl around 17 years of age runs away from her parents house to save herself from the onslaught of her father or relatives and joins her lover or runs away with him, it is no offence either on the part of girl or on the part of boy with whom she ran away and married.

Decision by Court: It is clear that a Muslim girl who has attained puberty i.e. 15 years can marry and such a marriage would not be a void marriage.

However, she has the option of treating the marriage as voidable, at the time of her attaining the age of majority, i.e 18 years. Direction was give to Mehtab, Shumaila and either of her in-laws to be present once in six months, in order to ascertain Shumaila well being till she attains the age of majority before the Child Welfare Committee. Shumaila was allowed to live with Mehtab, in the matrimonial home. The writ petition was disposed.

CHAPTER 5

Marriage with Minor under Hindu Law

Facts in Nutshell:

A letter was addressed by Smt. Lajja Devi to the Hon'ble the Chief Justice of Delhi High Court. In the letter, it was alleged by Smt. Lajja Devi that her daughter named Ms.Meera, who was around 14 years of age (date of birth being 6.7.1995) was kidnapped by Promod, Vinod, Satish, Manoj S/o Shri Raj Mal. On the basis of the information, an FIR bearing No. 113/2008 under Section 363 IPC had been registered. The letter was treated as a Writ Petition.

Statement of Girl (Meera who was Minor):

The girl made a statement under Section 164 of Cr.P.C., 1973 before the learned Metropolitan Magistrate, Rohini Courts Delhi that she had gone along with the accused Charan Singh of her own free will as her Uncle and Aunt were marrying her against her wishes.

Question of Law:

1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of less than 21 year could be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?

2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?

Definition of Child under Prohibition of Child Marriage Act, 2006

According to Section 2 (a) of the Prohibition of Child Marriage Act, 2006, a "child" means a person who, if a male, has not completed twenty-one years of age, and if female, has not completed eighteen years of age.

Marriage with a minor child would not be valid but voidable and would become valid if within two years from the date of attaining 18 years in the case of female and 21 years in the case of male if she or he elects to accept the marriage, the marriage shall become a full-fledged valid marriage. Until such an event of acceptance of the marriage or lapse of limitation period, the marriage shall continue to remain as a voidable marriage.

Case Referred: In Amnider Kaur and Anr. v. State of Punjab and Ors., decided by Punjab and Haryana High Court, the Single Judge of the said Court has taken a view that having regard to the provisions of Section 12 of the PCM Act, 2006 marriage with a minor girl would be void.

Ill-effects of child marriage can be summarized as under (Para 41 of the Judgment):

(i) Girls who get married at an early age are often more susceptible to the health risks associated with early sexual initiation and childbearing, including HIV and obstetric fistula.

(ii) Young girls who lack status, power and maturity are often subjected to domestic violence, sexual abuse and social isolation.

(iii) Early marriage almost always deprives girls of their education or meaningful work, which contributes to persistent poverty.

(iv) Child Marriage perpetuates an unrelenting cycle of gender inequality, sickness and poverty.

(v) Getting the girls married at an early age when they are not physically mature, leads to highest rates of maternal and child mortality.

Decision by High Court:

Marriage which has been solemnised by petitioner No. 2 with petitioner No. l, who is child and a minor, is unsustainable in the eyes of law and is thus, declared as void. Court also held where the allegation against the husband is of enticing away minor girl from the lawful keeping of guardian/ parents and a case has been registered under Sections 363 / 366-A IPC, no protection under Section 482 Cr.P.C., 1973 can be granted by Court because in that eventuality police protection has to be granted to a fugitive of law.

Since girl has not attained majority and is residing with her parents, arrangement would continue. When girl becomes major it would be for her to exercise her right under the PCM, Act 2006 (Section 3) if she so desires and future course of action would depend threon. Petition was disposed of.

(Continues…)


Excerpted from "Be Your Own Lawyer: Book For Layman"
by .
Copyright © 2013 Kush Kalra.
Excerpted by permission of Vij Books India Pvt Ltd.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Family Law,
1 Abortion Without Consent is A Ground For Divorce,
2 Benefit of Maintenance Cannot be Denied to Minor,
3 Infertility is Not a Ground for Divorce,
4 Muslim Girl Can Marry At the Age of 15 without the Parental Consent,
5 Marriage with Minor under Hindu Law,
6 DNA Test and Powers of the Court,
7 Women can get Divorce if Husband Aboard,
8 Cruelty by Wife,
Criminal Law,
9 Acid Throwers May Get Life Sentence,
10 Live-in Relationships among adults fine,
11 Duty of Husband to Protect His Wife when harrased by In-Laws,
12 Indian Committing Crime abroad can be tried in India,
13 Bail is the Rule Jail is an Exception,
14 Citizens need not be Coward,
15 Right to Life includes Right to live with Human Dignity,
16 Senior Citizens held for Playing Cards,
17 Right to life includes right to marriage,
18 Abuse of the Process of Courts,
19 De-criminalisation of consensual - same - sex acts,
20 Duty of driver in case of accident and injury to a person,
21 Methods of Executing Death Sentence,
22 Every doctor has professional duty to protect human life,
23 Arresting a woman in night in absence of lady police,
24 Phone Tapping,
25 Guidelines regarding Ragging,
26 People Charged for Minor Offences Languishing in Jails,
27 Right against self incrimination,
28 Duty of care by 5 star hotels,
29 Do's and Don't's under Armed Forces Special Powers Act, 1958,
30 Impounding of Passport,
31 Parents will Pay if Minor Causes Accident Constitution Law,
32 No School if Building Not Fire-safe,
33 Caste of a person depends upon birth,
34 Freedom of Speech & Right to Fly National Flag,
35 Right to Sleep,
36 No use of fire crackers in silence zone,
37 Public Trust Doctrine,
38 Fundamental Right to Education,
39 Eleven Guidelines to be followed in all cases of Arrest and Detention,
40 Any member of public acting bona fide can file writ petition,
41 Banning Slaughter of Cows,
42 Sexual Harassment of Women at Workplace,
43 What Cricket Means to India,
44 Handcuffing should not be forced on Prisioners,
45 Capitation Fees,
46 Prohibition of Smoking in Public Areas,
47 Who can File a PIL,
48 Working Hours of child not more than four to six hours a Day,
49 Right of the employer to terminate the services of Permanent Employees,
Civil Law,
50 Hawking and Vending a Fundamental Right,
51 Medical negligence and the liability of Medical Professionals,
52 Death due to Pothole and Maintenance of Roads,
53 No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation,
Right to Information,
54 Under RTI Candidate is Entitled to have a Copy of Answer Sheet,
55 RTI do not apply to Judgments,
Miscellaneous (Right to Education, Consumer law),
56 Court Cannot Award Marks,
57 Non Lawyers Can appear for others under Consumer Protection Act (CPA),

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