ससुराल पर नहीं विवाहिता का हक

दिल्ली हाईकोर्ट ने एक अहम व्यवस्था देते हुए कहा है कि एक विवाहिता का अपने पति की संपत्ति पर तो हक हो सकता है, लेकिन वह ससुराल में रहने के अधिकार का दावा नहीं कर सकती। इस फैसले से उन बहुओं को निराशा हो सकती है, जिनकी नजर ससुराल की संपत्ति पर है।
नीतू मित्तल की एक याचिका को खारिज करते हुए जस्टिस शिवनारायण ढींगरा ने बुधवार को कहा,‘शादीशुदा महिला पति से बच्चों के लिए गुजारा भत्ता मांग सकती है। पति की जायदाद में हिस्सेदारी के लिए भी वह दावा कर सकती है,लेकिन अपने सास-ससुर की सहमति के बगैर ससुराल में रहने का हक नहीं मांग सकती।’इस मामले में नीतू के खिलाफ अस्थाई आदेश जारी किया था। इसके बाद नीतू ने यह कहते हुए हाईकोर्ट में अपील की थी कि बहू होने के नाते उसे ससुराल में रहने का पूरा हक है।
सुप्रीम कोर्ट भी सहमत
इससे पहले, सुप्रीम कोर्ट ने गुजरात की कई बहुओं द्वारा अपने बुजुर्ग सास-ससुर के खिलाफ दर्ज कराए गए प्रताड़ना के आपराधिक मामलों को खारिज कर दिया था। शीर्ष कोर्ट ने कहा था,‘विवाहिता का भरण-पोषण पति का व्यक्तिगत कत्र्तव्य है।
क्या था मामला : मई 2005 में नीतू के सास-ससुर ने कोर्ट से गुहार लगाई थी कि उनकी बहू पारिवारिक मामलों में दखलंदाजी कर उन्हें परेशान करती है। इस पर निचली कोर्ट ने नीतू को नीतू को एक अन्य मकान में रहने को कहा था।

Source:- Danik Bhaskar 2 Oct 2008

http://www.bhaskar.com/2008/10/02/0810020909_high_court.html

Govt to review anti-dowry law

For long, voices raised against the anti-dowry act were dismissed as those belonging to men desperately trying to retain their dominance over women. But now, an increasing number of women complaining against misuse of the act has forced the women and child development (WCD) ministry to initiate a review of the controversial legislation. Said WCD joint secretary Kiran Chadha, ‘‘We will be meeting a panel of lawyers and legal experts to review the law. We have been receiving so many complaints against the two laws — section 498A (harassment for dowry) and the domestic violence act.’’ The meeting is likely to be held on September 17. The Indian Penal Code’s section 498A had long been seen by women activists as one of the foremost legal weapons for a woman shunned by her in-laws and her parents. The government’s turnaround comes after an increasing number of complaints came from women themselves — mothersin-law and sisters-in-law who ironically have fallen victim to misuse of the two laws. The statistics are telling. Raksha, an NGO working on marital harmony and child welfare, has analyzed figures by the National Crime Records Bureau to deduce that 1.2 lakh women have been falsely implicated under 498A. ‘‘Every 21 minutes, an innocent woman is being arrested. While the number of arrests under 498A is increasing every year, what is not being considered is that the conviction rate in these cases is barely 2%,’’ Raksha spokesperson Anupama Singh said. Now, the official view has perhaps finally reflected a change in attitude towards a woman complainant.

WOMEN VICTIMIZED?

1.2 lakh women have been falsely implicated under the antidowry section, 498A, according to figures collated by NGO Raksha Every 21 minutes, an innocent woman is being arrested under 498A, the NGO states Study of 3,000 cases showed girls who misused anti-dowry law were mostly graduates living in both metros and small towns

NGO wants dowry offence to be made bailable

New Delhi: An increasing number of women complaining against misuse of the anti-dowry act has forced the women and child development (WCD) ministry to initiate a review of the controversial legislation. One of the most vocal NGOs, Mothers and Sisters Initiative (MASI), has submitted a charter of demands to the ministry that includes suggestions for a ‘‘modified 498A’’. MASI has suggested that in the section which says ‘‘husband or relative of husband of a woman subjecting her to cruelty,’’ the clause ‘‘relative of husband’’ be dropped. The NGO has also recommended that the law be made bailable and non-cognizable, and that its misuse be penalized. Singh says that misuse of the two laws isn’t restricted to the metros. ‘‘We have studied over 3,000 cases and found that girls who have misused the law are mostly graduates, not necessarily living in a metro city. They can be from small towns and have access to advice from lawyers. This is multi-crore industry that has even enveloped NRIs,’’ Singh said. The ministry has been at the receiving end of criticism for some time now. Earlier this year, it had organized a workshop to discuss issues related to women’s legislation that soon turned into a slanging match. In August, the ministry launched an aggressive media campaign on several issues including domestic violence. When queried on the occasion if the campaign was a defensive move following criticism of the law, WCD minister Renuka Choudhary said, ‘‘We are not being defensive. We are being pro-active. I have taken the bull by the horns.’’

With Thanks from The Times of India
Source :- The Times of India 4-09-2008 P.1 New Delhi

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दूसरी बीवी को मिलेगी फैमिली पेंशन:Second wife will get the pension-Supreme Court

माला दीक्षित, नई दिल्ली आठ साल की कानूनी लड़ाई के बाद तय हो गया है कि शकुन्तला चाहे दूसरी पत्नी ही क्यों न हो, फैमिली पेंशन उसे ही मिलेगी। सुप्रीमकोर्ट ने मंगलवार को शकुन्तला को पेंशन देने के हाईकोर्ट और सिविल जज के फैसले पर अपनी मुहर लगा दी। कोर्ट ने फैमिली पेंशन पर दावा पेश करने से पहले कानूनन पत्नी होने और पहली पत्नी से उसके पति के तलाक ले लेने का सबूत पेश करने की रिजर्व बैंक आफ इंडिया की दलीलें खारिज कर दीं हैं। न्यायमूर्ति अल्तमश कबीर व जीएस सिंघवी की पीठ ने आरबीआई के वकील जयदीप गुप्ता व एचएस परिहार की दलीलें ठुकराते विशेष अनुमति याचिका खारिज कर दी और कहा कि वह हाईकोर्ट के फैसले में दखल नहीं देना चाहते। हालांकि कोर्ट ने आरबीआई की याचिका में उठाया गया कानूनी मुद्दा भविष्य में तय करने के लिए छोड़ दिया है। महाराष्ट्र का यह मामला कुछ पेचीदा था। आरबीआई के रिटायर्ड कर्मचारी गोविन्दा परासू शिराले की मृत्यु के बाद फैमिली पेंशन पाने के लिए उसकी दो पत्नियों ने अलग-अलग दावे पेश किए। बैंक का कहना था कि आरबीआई एक्ट के मुताबिक सिर्फ कानूनन ब्याहता पत्नी को ही फैमिली पेंशन दी जा सकती है। पहली पत्नी तुलसा हिन्दू उत्तराधिकार अधिनियम के तहत उत्तराधिकार सर्टिफिकेट मांगने अदालत पहंुची। कंगल के सिविल जज ने कहा कि वह परासू शिराले की कानूनन ब्याहता पत्नी है लेकिन उसके हक में सक्सेशन सर्टिफिकेट जारी नहीं किया जा सकता क्योंकि वह अपने पति से जीवनभर के भरण पोषण का एक साथ 33 हजार रुपये ले चुकी है। दूसरी पत्नी शकुन्तला ने बैंक के सामने यह आदेश पेश कर उसके हक में पेंशन जारी करने का आग्रह किया। बैंक नहीं माना और उससे पहली पत्नी तुलसा और परासू के तलाक व अपने कानूनन ब्याहता पत्नी होने का कानूनी आदेश पेश करने को कहा। शकुन्तला अदालत पहंुची तो सिविल जज ने उसके हक में सक्सेशन सर्टिफिकेट जारी कर दिया। कोर्ट ने बैंक को फैमिली पेंशन का 1,84,444 रुपये अदा करने का आदेश दिया। लेकिन बैंक की दलील थी कि सक्सेशन सर्टिफिकेट मृतक की संपत्ति में कानूनी वारिस होने के लिए होता है। फैमिली पेंशन इस श्रेणी में नहीं आता। नियम के मुताबिक फैमिली पेंशन पर सिर्फ कानूनन ब्याहता पत्नी का ही अधिकार है। शकुन्तला ने डिक्री लागू कराने की कोर्ट में अर्जी डाली जिस पर अदालत ने एक्जीक्यूशन नोटिस जारी कर बैंक को पैसा देने का आदेश दिया।

With Thanks from the Danik Jagran
Source:- Danik Jagran 2 July 2008 P.1 Delhi

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Making any body a Muslim for marriage is crime-Darul Ulum शादी के लिए मुसलमान बनाना गुनाह : दारुल उलूम

दुनिया के मशहूर इस्लामी अध्ययन संस्थान, सहारनपुर स्थित दारुल उलूम देवबंद ने फतवा जारी कर कहा है कि सिर्फ शादी या वासना के लिए किसी हिंदू लड़की का धर्म परिवर्तन करना इस्लाम के खिलाफ है। इस तरह किसी को मुसलमान बनाने वाले व्यक्ति को अल्लाह का कहर झेलना पड़ सकता है। फतवे में कहा गया कि अल्लाह उस लड़की से भी खुश नहीं होगा जिसने सच्चे इरादे से इस्लाम कबूल नहीं किया, बल्कि मुसलमान लड़के से केवल शादी का रास्ता साफ करने के लिए ऐसा किया।

दारुल उलूम से एक व्यक्ति ने सवाल किया था, जिसके जवाब में फतवा जारी किया गया। फतवा मांगने वाले के अनुसार शरीयत में मुस्लिम गर्लफ्रेंड रखने की भी अनुमति नहीं है, जबकि उसके एक मुस्लिम दोस्त की हिंदू गर्लफ्रेंड थी। बाद में यह दोस्ती शादी में बदल गई और उस लड़की ने इस्लाम कबूल कर लिया। इस व्यक्ति ने अपने एक अन्य दोस्त का हवाला दिया, जो दोस्ती तो दूर किसी लड़की से आंख तक नहीं मिलाता। उनसे बात नहीं करता। उसे डर है कि ऐसा करना अल्लाह के निर्देशों का उल्लंघन होगा।

फतवा मांगने वाले ने कहा कि लेकिन ऐसे नेक लड़कों द्वारा किसी लड़की को मुसलमान बनाने जैसे नेक काम की सभी संभावनाएं भी खत्म हो जाती है। उसने सवाल किया कि ऐसे में अल्लाह को गैर-मुस्लिम लड़की से इश्क करके उसे मुसलमान बना शादी करने वाला ज्यादा अजीज़ होगा या वह दूसरा दोस्त जो किसी लड़की से दोस्ती नहीं करने के कारण किसी गैर-मजहब लड़की को मुसलमान बनाने की सारी संभावनाएं खो चुका है।

दारुल उलूम ने कहा कि निस्संदेह अल्लाह को किसी लड़की से इश्क करके उसे मुसलमान बनाने वाले से कहीं ज्यादा प्रिय वह लड़का होगा, जो किसी लड़की के इश्क या वासना का शिकार नहीं हुआ। उसने चरित्रवान रहने के अल्लाह के निर्देशों का पालन किया इसलिए वह उसे किसी हिंदू लड़की को मुसलमान बनाने वाले लड़के के मुकाबले कहीं अधिक प्रिय होगा। दूसरी ओर गैर-मजहबी लड़की को मुसलमान बनाने वाला लड़का वासना का शिकार हुआ और बड़ा पाप किया। ऐसा व्यक्ति अल्लाह का प्रिय होना तो दूर, उसके अभिशाप तक का शिकार बन सकता है।
With Thanks from the नवभारत टाइम्स

Source:-2 July 2008 नवभारत टाइम्स Delhi P. 1

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Proposal to amend Section 125 Crpc to provide Maintenance for live-in partner

A woman in a live-in relationship should be entitled to maintenance if she is deserted by her man, the National Commission for Women has said. In far-reaching recommendations to the ministry of women and child development, the commission has sought a change in the definition of ‘‘wife’’ as described in Section 125 of CrPC, which deals with maintenance and suggested that it include women involved in a live-in relationships.

The move aims to harmonize other sections of the law with the Protection of Women from Domestic Violence Act that treats a live-in couple’s relationship on a par with that between a legally married husband and wife. NCW also sought another significant amendment to Section 125, saying that said adultery should no longer be a ground for denying maintenance to a woman. ‘‘We have found in 70% of divorce cases, adultery is used to discredit the woman. Not only is she thrown out of the house, but is also disgraced and denied her rights,’’ NCW chairperson Girija Vyas said.

Section 125 provides for maintenance of wife, children and parents, who cannot maintain themselves. Maintenance can only be claimed by a woman who is a wife, has either been divorced or has obtained divorce, or is legally separated and is not remarried. Pointing to the need for broad-basing the definition of wife in the section, commission officials said there had been many cases where the man led the woman to believe that he was unmarried or was divorced or widowed and went through the formalities required by the Hindu Marriage Act or the custom governing him.

‘Long-term relationship valid to claim alimony’

The move by National Commission for Women to seek a change in the definition of ‘‘wife’’ is aimed at harmonizing other sections of law with the Protection of Women from Domestic Violence Act that treats a live-in couple’s relationship on a par with that between a legally married husband and wife.

NCW chairperson Girija Vyas said, ‘‘Even if the marriage is not registered, if the woman can provide enough proof of a long-term relationship, her claim will stand.’’

Children of such relationships can also claim maintenance from the father, according to the NCW suggestion. This has been supported by several Supreme Court orders too.

The commission has also suggested that parents seeking maintenance from their sons or daughters should be able to file a case from where they reside rather than from where their offspring live.
With thanks from The Times of India 30 June 2008 P. 1 Delhi

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Wealth no criterion to get child’s custody :हिंदू मैरिज एक्ट घरों को तोड़ रहा है! -SC

SC: Wealth no criterion to get child’s custody

The Supreme Court on Tuesday said the wealth gap between estranged parents or the promise of a luxurious lifestyle and quality education for their children could not be the primary factor in deciding custody battles, even as it lamented the growing divorce rate in the country.

A Bench comprising Justices Arijit Pasayat and G S Singhvi said that courts looked for guarantee of all-round welfare of the child when they assigned the task of bringing him up to one parent, while giving visitation rights to the other.

The remarks came during the hearing on the 10-yearold fight between estranged partners Gaurav and Sumedha over who gets custody of their only son. In the first round, Gaurav got custody of their son with the Supreme Court ruling in his favour when the child was less than three years old.

The battle was revived when Sumedha approached the High Court afresh, complaining that she was abused and even assaulted whenever she visited her estranged husband’s house to fetch the child. Gaurav, who was penalised by the high court, rushed to the apex court to appeal against the punishment.

The issue also saw the SC Bench express concern over the rising number of divorce cases. “The Hindu Marriage Act has broken a lot of homes. Courts never intend to break homes. But people these days seem adamant to seek divorce at every excuse,” the Bench said.

During the hearing, Gaurav’s counsel, senior advocate Shanti Bhushan, said that there had been no violation of the visitation rights of the mother and that the father, belonging to a business family, was looking after the son very well and had even put him in the most expensive school in Delhi, which was fully airconditioned.

What the father intended to inform the apex court was that he had the money to take good care of his son. The apex court said that neither of the estranged parents should flaunt his or her riches to seek custody of the child.

“Ultimately, it is the child who suffers. We are not so much concerned about the individual riches or the ego of the estranged parents. No amount of luxury or riches can give the child the affection and love of the father or the mother. We are more concerned about the human angles involved in such tricky problems,” the Bench said.

The Bench kept the matter for hearing on Wednesday seeking suggestions from both the father and the mother for an amicable settlement of the issue and stressed that for both, the child’s welfare should be of paramount consideration, as it was for the court.
With thanks from The Times of India 18 June 2008 P.1 7Delhi
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हिंदू मैरिज एक्ट घरों को तोड़ रहा है!

तलाक के बढ़ते मुकदमों के मद्देनजर सुप्रीम कोर्ट ने कहा है कि हिंदू मैरिज एक्ट परिवारों को जोड़ने के बजाय तोड़ने का काम कर रहा है। जस्टिस अरिजीत पसायत और जस्टिस जी . एस . सिंघवी की बेंच ने एक बच्चे की कस्टडी को लेकर पति और पत्नी के बीच चल रहे मुकदमे की सुनवाई के दौरान यह टिप्पणी की। बेंच ने कहा कि तलाक के बढ़ते मामलों का सीधा और बुरा असर बच्चों पर पड़ता है। अदालत ने कहा कि 1955 में बने कानून में कई बार संशोधन किया गया है। तलाक और दांपत्य जीवन बहाल करने का यह कानून अंग्रेजों के कानून पर आधारित है। बेंच ने तल्ख लहजे में कहा कि आजकल शादी के समय ही अग्रिम तलाक याचिका तैयार कर ली जाती है। अदालत का मत था कि बच्चे की खातिर मां - बाप को अपने अहं किनारे कर देने चाहिए। आपसी मतभेद भुलाकर बच्चे के भविष्य पर ध्यान केंद्रित करना चाहिए। अदालत ने साफ कहा कि अलग हुए पति - पत्नी की इच्छा के मुकाबले बच्चे का भविष्य ज्यादा महत्वपूर्ण है। अदालत बच्चे के भविष्य को ध्यान में रखकर ही अपना फैसला सुनाएगी। अदालत ने कहा कि मियां - बीवी की लड़ाई में खामियाजा बच्चे को भुगतना पड़ता है। अगर संतान लड़की है तो उसे अधिक पीड़ा से गुजरना पड़ता है। पैरंट्स से अलग हुई लड़की की शादी में कठिनाई आती है। सुप्रीम कोर्ट ने कहा कि कुष्ठ और मानसिक बीमारी से ग्रस्त होने के कारण तलाक का प्रावधान है। लेकिन इस प्रावधान का दुरुपयोग भी बहुत है। हमारे पुराने लोगों के सामने इस तरह की समस्या नहीं आती थी। वैवाहिक झगड़े घर की चारदीवारी के अंदर ही सुलझा लिए जाते थे। मौजूदा मामले में गौरव नागपाल ने अपने 11 साल के बेटे की कस्टडी के लिए याचिका दायर की है। ट्रायल कोर्ट और दिल्ली हाई कोर्ट ने बच्चे की कस्टडी उसकी मां सुमेधा नागपाल को सौंपने का आदेश दिया था। सुनवाई के दौरान भी पति ने बातचीत के जरिए मामला सुलझाने की कोशिश की। लेकिन पत्नी ने भरी अदालत में इस प्रस्ताव को ठुकरा दिया। सुमेधा ने पति पर मारपीट का आरोप लगाया। बेंच ने कहा कि अलग हुए पति - पत्नी के अलावा बच्चे से भी चैंबर में बात की जाएगी। मामले की अगली सुनवाई बुधवार को होगी।
With Thanks from the नवभारत टाइम्स
Source:-18 Jun 2008 नवभारत टाइम्स Delhi P. 1

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Happy couple gets divorce shock

Hisar: Virender Verma and Meena got the shock of their lives when a local court recently stated that the happilytogether couple got a ‘divorce’ 10 years ago. Married in 1989 and parents of two children, the two came to know about their separation on May 26. The couple accused Virender’s advocate brother for forging their divorce documents.

‘‘The matter came to our notice when Meena filed a petition under Protection of Women from Domestic Violence Act 2005 against her inlaws. The respondents informed the protection officer that Meena wasn’t entitled to file the petition since she had divorced me,’’ Virender told TOI. He has been recuperating from a back injury since 2000 and the family depends on Meena’s meagre income she earns by way of doing embroidery work.

‘‘The ‘divorce’ case pertains to when Meena and I were contemplating filing a criminal complaint against my brother and parents for cruelty and harassment for dowry. It seems the ‘divorce’ was doctored to defeat Meena’s possible complaint,’’ Virender added.

The couple moved the district sessions court under section 340 CrPC, praying action for false evidence, fabricating evidence and forgery against several persons, including Surinder Verma and four advocates who represented the parties in the divorce proceedings. The court has adjourned the hearing till July 19. Surinder Verma denied the allegations. ‘‘Virender has a property dispute with his parents and has been living separately. We never tried to fabricate their divorce documents. I am going to sue Virender, Meena and their advocate for defamation,’’ he said.

On April 15, Meena filed a petition under section 18 of Protection of Women from Domestic Violence Act against her father-in-law Ram Gopal, mother-in-law Parvati, brother-in-law Rajiv, besides advocate Surinder Verma. Additional chief judicial magistrate, Hisar, JB Gupta referred the matter to protection officer Poonam Raman.

When protection officer Poonam Raman called the opposite party to present its reply, Surinder reportedly produced a court document claiming Meena was no longer Virender’s wife. ‘‘A perusal of court records revealed that a petition for restoration of conjugal rights under section 9 of the Hindu Marriage Act was filed on behalf of Virender Verma against Meena in the court of district judge, Hisar” said the couple’s counsel.

With thanks from The Times of India 3 June 2008 P. 11 Delhi
With thanks from The Time of India
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HC: Separation not a ground for divorce

The Nagpur bench of Bombay high court dismissed a husband’s petition seeking divorce from wife living separately for last 19 years stating that it was not sufficient ground for a divorce. Single-judge bench of justice C L Pangarkar rejected the husband’s plea and said the petitioner ‘‘must first make out ground for divorce’’, just staying away for 19 years was not enough for judicial separation.

Petitioner Prabhakar Nikam is a resident of Bhalgaon in Buldhana and married Satyabhama on May 24, 1983. The couple have a son. In his petition, Prabhakar alleged that his wife did not desire to lead a happy life with him. ‘‘She was in the habit of frequently going to her parents’ house without any reason. She also used to pick quarrels and behave arrogantly with the inlaws,’’ the petition charged.

After meeting with an accident in 1989, Satyabhama went to her parents’ home and never returned, Nikam said adding that she treated him cruelly and drove him away when he tried to take her back. He asked for a relief under Section 13-A of the Hindu Marriage Act, 1955. However, Satyabhama categorically denied all the allegations. She claimed that it was Nikam who ill-treated her and forced her to bring dowry from her parents. She added that she had tried to end her life due to the ill-treatment meted out to her. She, however, did not disclose it to others as she did not want to severe the relations.

After hearing arguments, the court observed that a case for divorce was not made out and that Nikam had failed to prove the cruelty as well as desertion.

The Times of India 20 May 2008 P. 15 Delhi
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11-yr-old prefers rich dad to mom

When children speak, even judges listen. In a unique custody case, the Bombay high court removed a boy from his mother’s care after the 11-year-old told judges that although he loved both parents equally, he wanted to live with his father.

The division bench observed that in custody battles, the ‘‘wishes of the child must override all other considerations’’. Justice Ranjana Desai and R P Sondurbaldota interviewed the boy in their chambers and found that ‘‘for his age he showed a good amount of maturity’’. They also noticed how ‘‘stressed he was because of the discord between his parents’’. The boy’s name has been witheld to protect his identity.

The battle has been a bitter one. The mother, who has had custody of her son since her talaq in 1999, said the only reason he wanted to move was because the father was ‘‘extremely rich and offered him a very good lifestyle’’. The court acknowledged this and said that there was no doubt that the boy was drawn by the ‘‘comfortable lifestyle’’ of his father, a prominent real estate developer from Goregaon, but added that there were other reasons to be considered, such as the father-son bond. T

he mother also pointed out that there were a number of civil and criminal cases pending against the father and that he had even been in two weeks’custody for an economic offence. Moreover, she said that her exhusband was an Australian citizen and could easily take the boy out of the country and therefore should not be given custody.

The father, in his defence, said that he had been discharged from the cheating case and that the other matters were filed against him because he was the director of a real estate firm.

Father cites Muslim law to get son’s custody

Mumbai: In a unique custody case, the Bombay HC removed a boy from his mother’s care after the 11-year-old told judges that although he loved both parents equally, he wanted to live with his father.

The boy’s father, a prominent real estate developer in Mumbai, also sought to clinch his position by pointing out that under Muslim personal law, the guardian of a boy after he turns seven is the father.

The court was sympathetic to the mother, praised her for bringing up a child who ‘‘appeared well brought up and well groomed’’ and said no one could take a mother’s place in a child’s life. But the deal breaker was that the boy himself had asked to be with his father.

The mother will have access to her son on weekends while during school vacations the boy will divide his time equally between parents.

The father had first sought custody in 1999 but his plea was dismissed. This time it was different. ‘‘What has really weighed with us is the fact that the boy has said he wants to stay with his father...other things being equal we have no option but to direct that interim custody be given to father,’’ the order said.

The Times of India 16 May 2008 P.1 New Delhi
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HC grants custody of 2-yr-old boy to HIV+ mother

An HIV positive mother was restored the custody of her two-year- old child by Delhi High Court on Tuesday, which also asked a representative of NACO (National Aids Control Organisation) to counsel the woman so that she is able to take care of the child. Justice Geeta Mittal allowed Sunita Verma, an HIV positive patient to take custody of her child who was being brought up by Sunita’s in-laws after the death of the father from AIDS last year.

In proceedings held inside the judge’s chamber, attended by the aggrieved mother and her in-laws, the court directed the grandparents to hand over the custody of the child to the mother. Earlier, the Court had directed the grandparents to appear before it with the child, while observing that there was no law which could deprive a mother of her child because of AIDS. Justice Mittal also directed the Pediatrics department of All India Medical Institute to conduct medical examination of the child, and requested the NACO representative to ensure proper counselling of the mother after which the court will take stock of the situation on May 21.

Sunita, the 26-year-old mother, was allegedly thrown out of her in-laws home barely 13-days after her husband died due to AIDS and she was denied the custody of her child. The woman, now living with her old and ailing parents at Sagarpur in southwest Delhi, alleged that her son, who is not infected with HIV, was forcibly taken away by her inlaws, the day when the last rites of her husband were performed.

She was married to Satish Verma, a resident of Panipat in Haryana on June 20, 2005 and gave birth to the boy on July 20, 2006. She had then lodged an FIR against the in-laws for harassment and mental cruelty, which forced the latter to rush to HC for anticipatory bail. The court, after hearing the facts of the case, decided to suo moto broaden its intervention and ensure that the child’s interest are safeguarded. On the last date of hearing HC made it clear that Sunita cannot be deprived custody of her child and noted, ‘‘There is no law which can deprive a mother of her child because of AIDS.’’

The counsel for the in-laws, Ram Gopal Verma and Phoolwati, had contended that custody of the child cannot be given to their daughter-in-law as she was an AIDS patient. ‘‘You are only grandparents while she is the mother. She is already suffering, why do you want to make her suffer more by depriving custody of her child,’’ Justice Mittal had said.

The in-laws then alleged Sunita Verma, their daughter-in-law, was of bad character as she was suffering from the disease prior to marriage and it would have bad influence on the child. The court had however, taken strong exception to the allegations and told them the disease was not inflicted only through physical relation.

‘‘It is unfortunate that she has been deprived of her child. She cannot be deprived custody of her child just like a convicted father cannot be deprived custody of his child,’’ the court maintained.

With thanks from The Times of India 14 May 2008 P.7 Delhi
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बच्चे का डीएनए तय करेगा मां का गुजारा भत्ता

पति-पत्नी के बीच गुजारे भत्ते को लेकर चल रही कानूनी लड़ाई में बच्चे के असली पिता का पता लगाने के लिए दिल्ली हाई कोर्ट ने छह साल के बच्चे का डीएनए टेस्ट कराने का आदेश दिया है। भरी अदालत में पति ने यह कहकर सभी को चौंका दिया कि उसकी पत्नी जिस बच्चे की परवरिश के लिए उससे भत्ता मांग रही है, वह उसकी संतान नहीं है।

जस्टिस विपिन सांघी ने रोहिणी निवासी पति की याचिका पर बच्चे का एम्स में डीएनए टेस्ट कराने का आदेश दिया है। अदालत ने कहा कि पिता बच्चे की परवरिश की जिम्मेदारी से उसी सूरत में बच सकता है, अगर यह साबित हो जाए कि वह उसका वास्तविक पिता (बॉयोलजिकल फादर) नहीं है। इससे पहले मैजिस्ट्रेट ने बच्चे का डीएनए टेस्ट कराने की याचिका खारिज कर दी थी। पति ने अदालत में कहा कि उसकी पत्नी से शारीरिक संबंध नहीं हैं।

लिहाजा जनवरी 2001 में जन्मा बेटा उसका नहीं है। उसने अपनी पत्नी पर विवाहेत्तर संबंध का भी आरोप लगाया और कहा कि उसकी पत्नी के अपने जीजा से अवैध संबंध हैं। अदालत में पेश तथ्यों के अनुसार दोनों का विवाह सितंबर 2000 में हुआ था। लेकिन शादी के कुछ दिन बाद ही उनमें अनबन हो गई। पति ने आरोप लगाया कि उसकी पत्नी की एक शादी पहले भी हुई थी और उसके पूर्व पति की संदिग्ध परिस्थितियों में मौत हो गई थी।

पहली शादी की बात उससे छुपाई गई। पहली शादी से उसकी पत्नी के पास एक बेटा भी है। मियां-बीवी जुलाई 2001 में अलग हो गए। पति द्वारा दायर याचिका में कहा गया कि अलग होते समय दोनों ने यह तय किया कि अपने सामाजिक स्तर को देखते हुए मामला अदालत में नहीं ले जाएंगे। लेकिन अगस्त 2006 में पत्नी ने सीआरपीसी की धारा 125 के तहत गुजारे भत्ते की अर्जी मैजिस्ट्रेट की अदालत में दायर की। जून 2007 में मैजिस्ट्रेट ने पति को पत्नी और बच्चे के रहन-सहन के लिए धनराशि देने का आदेश दिया।

हाई कोर्ट ने मैजिस्ट्रेट के आदेश को निरस्त कर दिया। एम्स के चिकित्सा अधीक्षक से कहा गया है कि खून के नमूने लेकर बच्चे का बॉयोलजिकल फादर तय किया जाए।

With Thanks from नवभारत टाइम्स

Source:-नवभारत टाइम्स 14 May 2008 P. 6 New Delhi

‘Wife' shame for judge

A JUDGE from Bobbili in Andhra Pradesh is in the dock after a woman, who claimed to be his wife, released to the media a video showing him in compromising position with her.

Madagi Harika learnt that G. Surya Prakashwas was going to marry another woman on April 30. Before releasing the video, she lodged a complaint against Prakash in a Visakhapatnam police station. She said Prakash had married her on November 4 and her family was witness. She alleged that he wanted her to keep the marriage under wraps till he convinced his family .

Harika, who is a graduate, said she came in touch with Prakash, a distant relative, over five years ago, after her first marriage ended in divorce.

She told police Prakash's mother had arranged the match, adding that her efforts to contact him had proved futile. She wanted the police to register a case of cheating and bigamy against him.
A JUDGE from Bobbili in Andhra Pradesh is in the dock after a woman, who claimed to be his wife, released to the media a video showing him in com- promising position with her. Madagi Harika learnt that G. Surya Prakashwas was going to marry anoth- er woman on April 30. Before releasing the video, she lodged a complaint against Prakash in a Visakhapatnam police station. She said Prakash had married her on November 4 and her family was witness. She alleged that he wanted her to keep the marriage under wraps till he convinced his family . Harika, who is a graduate, said she came in touch with Prakash, a distant relative, over five years ago, after her first marriage ended in divorce. She told police Prakash's mother had arranged the match, adding that her ef- forts to contact him had proved futile. She wanted the police to register a case of cheating and bigamy against him.

With Thanks from the Hindustan Times
Source:-Hindustan Times 30th April 2008 P. 13 New Delhi

16 years on, couple still not divorced

WHILE THE trial court passed a divorce decree in Jagdish Singh's favour, the HC reversed it holding that the lower court had erred in relying upon the husband's evidence NOW ON SC's order the case will be up for 'fresh disposal' before the HC
ESTRANGED FROM his wife for 24 years Jagdish Singh has been fighting a legal battle for a decree of divorce. But a technical flaw in the Allahabad High Court judgement has Singh in a fix. In fact following a trial court verdict granting him divorce in 1999 the high court had reversed the order in 2004. Singh suffered a set back yet again on Monday when the Supreme Court remitted the case back to the high court on the ground that it did not pass a reasoned order. Singh had challenged the high court's verdict in the apex court in 2005 hoping to get a favourable order. He wanted to end the 16-year-old litigation but was not granted any relief. The case will be up for "fresh disposal" before the high court that would decide the matter in accordance with law, after appreciating the evidence. A bench headed by Justice C.K. Thakker said: "When the law has conferred the power of re-appreciation of evidence on facts and on law on the first appellate court (Allahabad High Court), it would not be appropriate for this court to undertake that task." Asking the high court to record the reasons for passing its judgment, the bench directed it to give priority to Singh's case. However, it did not fix any timeframe for the high court to decide the case. Singh's marriage was solemnized on May 27, 1974 according to Hindu rites and rituals. Within six years of their marriage, the couple had a girl. In 1984 Singh's wife left him when the child was just four years old but filed a case against her husband seeking an order to restrain him from entering a second marriage. When Singh's persuasive efforts to bring back his wife failed, he moved the trial court in 1994 seeking divorce on the grounds of desertion and cruelty - his wife had even refused to attend their daughter's wedding, he had claimed. While the trial court passed a divorce decree in his favour, the high court reversed it holding that the lower court had erred in relying upon the husband's evidence.
With Thanks from the Hindustan Times
Source:-Hindustan Times 30th April 2008 P. 10 New Delhi

A lover is not a relative: Court

The Aurangabad bench of the Bombay high court has ruled that a woman having an extramarital affair with a married man cannot be booked under Section 498-A of the Indian Penal Code which seeks to punish ‘‘cruelty to a married woman’’.

The order was passed by Justice V R Kingaonkar on Tuesday while quashing an FIR against a 28-year-old woman from Aurangabad who was hauled to the police station by the aggrieved wife of the man she was having an affair with. The high court held that the wording of the law made it clear that it was applicable only to ‘‘the husband and his relatives’’ who subjected a wife to cruelty, and another woman in a man’s life could not be considered a relative falling under its purview.

The complaint was filed at Gadgenagar police station in Amravati by Vishal Bhawar’s wife, Suhasini, who said that she had ‘‘noticed Bhawar having an extramarital affair with a woman called Rakhi’’. When she tried to dissuade him, he retorted that his ‘‘relations with Rakhi could not be snapped and would continue throughout his life’’. Suhasini subsequently alleged that she was subjected to cruelty by Vishal and his relatives, and filed a complaint under Section 498-A of the IPC in which Rakhi was also named as an accused. Suhasini’s advocate argued in court that Rakhi had been named because ‘‘she was the main reason why Suhasini was subjected to cruelty’’.

Justice Kingaonkar said that even if one assumed that ‘‘Rakhi was the cause of bickerings between the spouses (sic)... and Suhasini was being ill-treated or subjected to harassment because of the extramarital relation between Vishal and Rakhi’’, the police complaint against her was not maintainable under Section 498-A as Rakhi was not related to Vishal. (Names have been changed to protect the identities of those involved)

The Times of India 24 April 2008 P.3 New Delhi
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‘Husband can face action if wife fails to pay phone bill’

Pay the phone bills of your wife and children on time or else you could end up losing the phone connections in your name — both at the residence and business establishment — the Supreme Court ruled on Monday. This means, a service provider will be within its right to deactivate the mobile or landline connections taken by parents if they fail to pay the bills of phones being used by their children.

However, a person can’t be held responsible for the unpaid bills of his working wife or children. In that case, the service provider will have to initiate individual proceedings against them to recover the dues, a bench comprising Justices H K Sema and Markandey Katju said.

The ruling came against one Surjit Singh, who had taken the fight against MTNL to the apex court after an unsuccessful bid in the Delhi high court to challenge the service provider’s decision to disconnect phones in his name at his residence in Rajouri Garden and his shop at Jama Masjid. Singh had failed to clear the dues against a phone in his wife’s name at his residence. Justice Katju, writing the judgment for the bench, said when the wife or children did not have an independent income, non-payment of dues by them could lead to disconnection of the phones in the name of the head of the family.

‘‘If there is a telephone line in the name of a minor child, and another in the name of the father, and both of them are living in the same house, then obviously the bills of the telephone line in the name of the minor child is being paid by the father. Hence, in our opinion, for non-payment of bills in the name of the minor child, the telephone line of the father can be disconnected,’’ the bench said.

‘‘Similarly, there can be a case where the husband and wife have independent sources of income and the wife is paying the bills of the telephone line in her name, whereas the husband is paying the bills of his own phone. In such a case, for non-payment of the bills of the wife, the telephone line of the husband cannot be disconnected,’’ it said. The court also upheld MTNL’s decision to disconnect not only the residence phone but also the one at the husband’s business set-up to coerce him to pay the dues against his wife’s telephone.

The Times of India 22 April 2008 P. 11 New Delhi
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Couple told to reunite after 17-yr separation

SC Annuls Divorce Granted By Trial Court In ’99

An army man has learnt the hard way that marriages are made in heaven and marital ties are difficult to sever, with the Supreme Court asking him to resume married life despite an estrangement of 17 years, 14 of them spent in litigation.

The roller coaster ride has put Jatinderbir Singh in a piquant situation. Citing desertion and cruelty by wife Sukhwinder Kaur, he had moved a trial court in 1994 and a got a divorce decree in 1999. He had claimed that his wife had deserted him in May, 1991.

When Sukhwinder appealed against the divorce decree, the Punjab and Haryana HC initiated reconciliation process. While she agreed to live with him, Jatinderbir flatly refused. The HC ruled in favour of Sukhwinder and asked him to take her back.

Now, after 17 years of estrangement, the apex court anulled the divorce, refusing to apply its own ruling that when a marriage breaks down irretrievably, divorce should be granted. It asked Jatinderbir to start married life afresh with Sukhwinder.

At the time of his marriage in 1990, Jatinderbir was a BA final year student and Sukhwinder was working as a pharmacist. Three years later, he got commissioned in the army and soon thereafter brought a divorce petition against his wife on the ground that she had deserted him. The trial court granted divorce in 1999. The wife protested before the Punjab and Haryana HC, which tried but failed to resolve the differences. Sukhwinder pointed out that the differences between them were normal in married life and expressed willingness to live with her husband. In 2006, the HC reversed the trial court decision and anulled the divorce decree.

Not wanting to live with her, Jatinderbir moved the Supreme Court and cited its 2006 judgment which had ruled that if a marriage has broked down irretrievably, then divorce should be granted. He pleaded that the marriage had broken down without any chance of reconciliation and hence, be granted divorce.

Not convinced by his arguments about desertion and cruelty alleged against the wife, an apex court Bench comprising Justices B N Agrawal and G S Singhvi dismissed his appeal. This means, the husband has no option but to pick up the threads of his married life from where he left it 17 years ago. Jatinderbir had claimed before an Amritsar court that Sukhwinder had deserted him since May 1991 and that their differences were beyond reconciliation.

Sukhwinder, who gave birth to a daughter in November 1991, alleged that she was thrown out of the matrimonial home but expressed desire to live with her husband and opposed grant of divorce.

When the trial court granted divorce, she appealed before the HC which agreed with her that it was common in India to send the wife to her parents house for the first delivery and negated the husband’s claim that she had deserted him. After the HC reversed the trial court order, Jatinderbir moved the SC. The bench comprising Justices Agrawal and Singhvi, after hearing the appeal for two years, dismissed it on April 15.

TWIST OF FATE

Citing desertion and cruelty by wife Sukhwinder Kaur, Jatinderbir Singh had moved a trial court in 1994 and a got a divorce decree in 1999

Sukhwinder appealed against the divorce decree, the Punjab and Haryana HC initiated reconciliation process . After 17 yrs of estrangement, the SC anulled the divorce

The Times of India 18th April 2008 P. 12 Delhi
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SC rejects no-dowry plea, denies daughter share in property

The SC has drawn the curtains on a woman’s long fight against her five brothers — from the lower courts till the apex court — to get a share of her father’s landed property on the ground that she was not given any dowry at the time of her marriage over half a century ago. The woman — Shakuntala — argued before the apex court that her father was strongly opposed to the custom of dowry and ardently campaigned against it. “Consequently, at the time of marriage, he did not give anything by way of dowry,” she said and argued that as an implication she must have her due share in her father’s properties. A Bench comprising Justices A K Mathur and Aftab Alam, after examining the records found that the property, over which she was litigating against her brothers, was bought after her marriage in the year 1951.

The Times of India 15th April 2008 Delhi P15

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Yearlong separation must before divorce by mutual consent : HC

Contributed by Deepak Miglani

The provision(Section 13 B) relating divorce by mutual consent has been added in Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976. It provides for divorce by mutual Consent of both the parties to the marriage. This provision has been given a retrospective effect so as to make it applicable to marriages whether solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976.

The requirements for seeking divorce by mutual consent are given below:-
1. Petition for divorce has to be presented to the district court by both the parties to a marriages supported by affidavits of both the parties;
2. The parties should have been living separately for a period of one year or more;
3. The parties could not adjust with each other and had not been able to live together;
4. There should be mutual request by both the parties to a marriage to dissolve the marriage.

After the petition is presented , the parties have to wait for a minimum period of six months after which they have to move the court once again under sub-section (2) of this Section. If the parties do not move the court in the matter after six months and before eighteen months from the date of presenting the petition, the petition for mutual divorce would lapse. Either party can withdraw the petition during this period.

The Mumbai High Court has upheld the compulsory pre-condition of a yearlong separation between a husband and his wife before they could jointly file for divorce

The judgment of a bench of Chief Justice Swatanter Kumar and Justice J P Devadhar came on a first-ever challenge to the constitutional validity of the provision under Section 13B of the Hindu Marriage Act. The section imposes a year’s mandatory separation before a couple, who have registered their wedding under the Hindu Marriage Act, can seek a divorce by mutual consent on grounds of an irretrievable breakdown of marriage.

A young couple in their mid-20s had decided to call it quits after being married for four months and filed for divorce at the end of six months. The family court rejected their petition saying they hadn’t lived separately for a year as required under the law. They found this imposition ‘‘arbitrary’’ and in violation of their right to move on immediately.

The high court said married couples should not decide to split ‘‘in a hurried manner by impulsive decisions’’. ‘‘Objectivity and rationality should be the foundation of such vital decisions. Most differences can be amicably resolved,’’ the court said.


The Times of India 1st April 2008 Delhi P. 14
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Plea to quash Domestic Violence Act rejected

HC Stresses Its Need To Protect Women Even In Live-In Cases

Tossing out a petition which challenged the validity of Domestic Violence Act, the Delhi High Court on Tuesday justified the law, saying it was needed to protect women, be they married or in a live-in relationship.

‘‘We find no reason why equal treatment should not be accorded to a wife as well as a woman who has been living with a man as his commonlaw wife or even as a mistress,’’ a bench comprising Justices Vikramjit Sen and P K Bhasin observed while slapping a fine of Rs 3,000 on one Aruna Pramod Shah for ‘‘needlessly wasting public time’’ by insisting that HC examine the merits of the Act.

Shah had first approached HC for quashing criminal proceedings against him on the complaint filed by his livein partner under Domestic Violence Act but later insisted he wished to challenged the entire Act. He had also objected to the Act placing married and live-in relationships on the same footing. HC however said that even in a live-in arrangement, the relationship was ‘‘initiated and perpetuated by the male’’ and it was necessary to be mindful of the fact that in such cases social stigma always sticks to women and not to men.

‘‘Like treatment to both (wives and mistress) does not, in any manner, derogate from the sanctity of marriage since an assumption can fairly be drawn that a livein relationship is invariably initiated and perpetuated by the male,’’ HC noted.

The judges also pointed out that while there were sections under IPC dealing with dowry harassment and cruelty to women, the DV Act addressed the need to protect women from domestic violence resulting in her being thrown out of the home. ‘‘A woman who is facing the brunt of harassment in a domestic relationship is more concerned with being rendered destitute rather than punishment being handed down to the perpetrator of harassment. In this connection the DV Act is legally path breaking since it introduces the right of every women in a domestic relationship to reside in a shared household..,’’ the bench explained.Shah had claimed the Act jeopardises the rights of legally wedded women as the right of a wife stands diluted in accommodating the rights of a mistress. But HC was categorical and termed these ‘‘vicissitudes of marriage against which legal insurance and insulation is impossible.’’

The Times of India 9 April 2008, P 3 Delhi
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80-yr-old woman gets life in dowry case

A city court on Saturday sentenced an 80-year-old woman along with her son in a five-year old dowry harassment case, to life imprisonment for the murder of her daughter-inlaw. The court also imposed a fine of Rs 4,000 each.

Additional sessions judge D K Sharma, in the order while mentioning that it was difficult to sentence an 80-year-old woman, however held that it was an offence of a serious nature. ‘‘A young lady lost her life to the greed and lust of the accused,’’ the court added. What helped the court to nail the accused was the dying declaration of the deceased, Bharati Devi.

In the matter, the prosecution had submitted that, the 80-year-old woman Kausalya Devi and her son, Ashok Kumar had been harassing Bharti, wife of Ashok, to accede to their demands of dowry. Ashok had married Bharti in November 2000 and they had a daughter around a year later.

According to the prosecution, Bharti was sent back to her paternal home on April 20, 2002 with a demand of Rs 2 lakh by the convicts. She had however, returned around a week later without the dowry.

On April 28, 2002, the day of the incident, the prosecution said that Bharti’s mother-in-law, Kaushalya Devi and husband Ashok set her on fire, which later resulted in Bharti’s death.

In the declaration made before a sub-divisional magistrate on April 29, 2002, Bharti had said that her motherin-law had poured kerosene over her while, Ashok had set her afire.

The statement before the SDM by the deceased was depended heavily by the court, while convicting the mother and son duo in the case.

Bharti had died on May 5, 2002 around a week after the incident. A case was registered at the Timarpur police station here, under Indian Penal Code for murder and subjecting a woman to cruelty by husband or relatives of husband.

Based on the statement made by the father of the deceased, three sisters-in-law and a brother-in-law of Bharti were also made accused in the case. However, the court acquitted them due to lack of evidence.

Section 304-B of Indian Penal Code Dowry Death-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for , or in connection with , any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have cause her death.

Explanation-For the pupose of this sub-section , “dowry”,shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

This section was inserted in the Penal Code by an amendment in 1986. Sub section (1) of this section defines dowry death.
- Death must be caused by burns or bodily injury or it must occur otherwise than in normal circumstances.
- Death must occur within seven years of marriage;and
- It must be shown that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband.
- Such cruelty or harassment must be for or in connection with any demand for dowry.
- Here the dowry shall have the meaning as assigned to it under Section 2 of the Dowry Prohibition Act, 1961.

The Times of India 30 March 2008 Delhi P. 7
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