High Court Judgments Book in 4th Regional Conference

MISCELLANEOUS judgments

38. Hindu Marriage Act, only states that the parties to the lis must have domiciled in the territories to which
the Act extends. It is not the case of the petitioner that he had never domiciled in the territories of India
nor he is governed by the personal law of the country, which he has chosen as his domicile. As stated
supra, for all purposes, like marriage divorce, succession, legitimacy, he is governed by the personal law
of the domicile of origin, which is that form of origin, imposed by operation of law on every person at
birth.

39. The domicile of origin continues to operate throughout his life and the Hindu Marriage Act merely states
that it would be applicable to all Hindus domiciled in the territories to which the Act extends, even if they
are outside the territory. Therefore, while adjudicating the dispute between the parties, it is necessary to
lay emphasis in the form of Marriage and the intention of the parties to be governed by the personal law
of domicile. Reading of the provisions of Section 2(c) of the Act contemplates extra territorial operation
in the sense that the persons domiciled in other country to which the Hindu Marriage Act may extend,
are governed by the Hindu Law and not any other personal law. Citizenship or nationality or domicile of
the husband would not be an imperative qualification in adjudicating the dispute, as both the contracting
parties are Hindus, whose marriage is admittedly solemnized as per Hindu Vedic Rites and Customs. It
is should be noted that in Narasimha Rao' s case, the Supreme Court observed that the bondage of the
tyrannical and servile rule that wife's domicile follows that of her husband is no more in existence.

40. Reading of the Act in entirety does not indicate that the provisions would be applicable only if the
marriage is solemnized in the territories to which this Act extends, whereas the Act provides for extra
territorial operation. Sub-Section 2 of Section 1 of the Act deals with two aspects, viz., (1) it deals with
the territory to which the Hindu Marriage Act extends and (2) the persons to whom the Act is applicable.
Therefore, in the light of the principle to be followed in construing the word `domicile' as laid down in
Dulbnath Prasad's case, [(2002) 2 SCC 50], place of residence by itself would not estab- lish domicile of
an individual, but it should be understood in the context of the Statute, viz., personal law applicable to
the parties.

41. Interpretation of a Statutory provision should be to find out the intention of the legislature and that has
to be understood with due regard that the object of the legislation also. The word employed in the Statute
will acquire meaning and content depending upon the context in which they are used. The word should
not be torn out by the context and by interpretation, it would make another provision Otiose/redundant
and such interpretation should not be adopted. The interpretation to the words employed in Section 1(2)
of the Hindu Marriage Act should be consistent with the working of the enactment, keeping in mind the
object of the Act. Reference can be made to the decision in Marya Teresa Martin v. E.Martin, Madras
reported in AIR 1994 Kerala 264.

42. In Anwar Hasan Khan v. Mohd. Shafi reported in 2001 (8) SCC 540, the Supreme Court, at Paragraph 8,
held as follows: "For interpreting a particular provision of an Act, the import and effect of the meaning
of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-
matter and the purpose and intention of the statute. It is a cardinal principle of construction of a statute
that effort should be made in construing its provisions by avoiding a conflict and adopting a harmonious
construction. The statute or rules made there under should be read as a whole and one provision should
be construed with reference to the other provision to make the provision consistent with the object
sought to be achieved. The well-known principle of harmonious construction is that effect should be
given to all the provisions and a construction that reduces one of the provisions to a "dead letter" is not
harmonious construction."

43. The marriage between the parties was solemnized on 17.04.2002 and after three months, it was said to be
registered before the Marriage Officer. There are no details in the counter statement filed by the husband
as to whether the marriage was solemnized before the Marriage Officer, in accordance with the procedure
contemplated under the Foreign Marriage Act, in particular, Sections 4 to 6 of the Act. Excepting the

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R. Sridharan Versus The Presiding Officer, Principal Family Court, Chennai

Marriage Certificate said to have been enclosed with the counter statement, there is nothing on record
to prove that the parties have intended to adopt the law of that country or the Special Marriages Act. A
marriage performed under the Hindu form of Marriage under the Hindu Marriage Act is different from
the Civil Marriage under Foreign Marriage Act or the Special Marriage Act. A marriage solemnized as
per Vedic Rites and Customs, personal law applicable to the parties has its own rights and obligations,
and mere registration of the marriage for the purpose of recognition under the Foreign Marriage Act
would not deprive the second respondent of her right to seek for matrimonial reliefs provided under
Hindu Marriage Act. The case laws relied on by the learned counsel for the petitioner would not lend
support to her contention in view of the subsequent pronouncements of the Supreme Court on the issue
of domicile. The contentions opposing the jurisdiction of the Family Court to entertain the petition
under the Hindu Marriage Act are not accepted.
44. It is the law of the land that Writ of Prohibition will be issued as soon as inferior court/tribunal proceeds
to apply a wrong principle of law when deciding a fact on which jurisdiction depends. Prohibition
is primarily and principally preventive rather than remedial remedy. The effect of the remedy is an
injunction against the court or tribunal commanding it to cease from the exercise of jurisdiction to
which it has no legal claim. Prohibition is not a writ of right granted exdebito justice. But one of sound
judicial discretion to be granted or withheld according to the consideration of the particular case. When
there is entire absence of jurisdiction over the subject matter of adjudication and this is apparent on the
face of the proceedings, the granting of reliefs by prohibition is not a matter of discretion, but one of
absolute right.
45. In the light of the decisions of the Courts dealing with matrimonial matters with reference to domicile
of the parties, I am of the considered view, the Family Court or any other competent Court has got
jurisdiction to adjudge any dispute between the contracting parties, one of whom is a foreign national,
said to have acquired domicile of his choice.
46. For the forgoing reasons, the Writ Petition is dismissed. No costs. Consequently connected Miscellaneous
Petition is also closed.

qqq

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R. Sukanya Versus R. Sridhar & Others

Madras High Court

R. Sukanya
Versus

R. Sridhar & Others

Bench : Hon'ble Mr. Justice S. Manikumar

C.R.P.(PD) No.1695 of 2004

Decided on 18-08-2008

The revision petitioner has filed O.P. No. 569 of 2004 on the file of the Principal Family Court, Chennai
for divorce. She filed an Application in I.A. No. 848 of 2004, in the above O.P., to restrain the respondents
2 to 5 in any manner, printing or publishing the proceedings relating to the institution of the Petition filed
by her before the Family Court or carry any other recital as news item in the telecast or their respective
publication and to punish them for any such violation. The Trial Court dismissed the said I.A., on the
ground that the respondents have not contravened the provisions of

Section 22 of the Hindu Marriage Act and that they are not liable for any punishment under the provisions
of the said Act and if they contravene the said provision, action has to be taken before the appropriate
forum. Before this Court, the first respondent has agreed that the proceedings may be conducted "in
camera" and that no publicity be given. On the other hand, the press had contended that the provisions
of Section 11 of the Family Court will have an overriding effect on Section 20 of the Hindu Marriage Act.

• Right of privacy has been recognised by Indian Courts. In Gobind v. State of Madhya Pradesh and
another, 1975(2) SCC 148, Their Lordships of the Supreme Court held as follows :

"24. Any right to privacy must encompass and protect the personal intimacies of the home, the family,
marriage, motherhood, procreation and child rearing. This catalogue approach to the question is
obviously not as instructive as it does not give analytical picture of the distinctive characteristics of
the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying
the concept has been assertion that a claimed right must be a fundamental right implicit in the
concept of ordered liberty."

• "Right" is an interest recognised and protected by moral or legal rules. It is an interest the violation
of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond
has defined "right". In order, therefore, that an interest becomes the subject of a legal right, it has
to have not merely legal protection but also legal recognition. The elements of a "legal right" are
that the "right" is vested in a person and is available against a person who is under a corresponding
obligation and duty to respect that right and has to act or forbear from acting in a manner so as to
prevent the violation of the right. If, therefore, there is a legal right vested in a person, the latter can
seek its protection against a person who is bound by a corresponding duty not to violate that right."

• Thus it is manifestly clear that the legislature has intended to guard the right of privacy in relation
to matrimonial matters and it is a settled legal position that the real meaning and effect should be
given to the words employed in the Statute. In the light of language employed in the Statute, the right
of privacy is so fundamental to the individual excepting to the extent provided under the Marriage
Acts. Of course, we should not forget the role of our independent press and media in coming out

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R. Sukanya Versus R. Sridhar & Others

with revelations of public interest, resulting in societal changes. As the freedom of the press is for the
dissemination of information of public interest and public affairs, those which are not related to the
above, but involving the marital relationships of the parties to a litigation should not be published
or telecast, as it is prohibited under law. Publication of the proceedings meant to be in camera will
affect the constitutional liberty guaranteed to the individual and it would be an invasion of his right
of privacy. When Section 22(1) of the Act prohibits printing or publishing any matter in relation to
any such proceeding arising under the Act, the Family Court or any other competent Court dealing
with matrimonial matter, under the Hindu Marriage Act, has inherent jurisdiction to issue an
order of injunction or any such direction to give full effect to the statutory provision. Therefore, the
contention of the respondents 2 to 5 that they are not parties to the Original Petition and therefore,
no injunction can be granted against them, cannot be countenanced.

Judgment

1. This Civil Revision Petition is directed against the order and decretal order dated 21.07.2004 made in I.A.
No. 848 of 2004 in O.P. No. 569 of 2004, on the file of the Principal Family Court at Chennai.

2. Facts leading to the Civil Revision Petition are as follows:

The revision petitioner has filed O.P. No. 569 of 2004 on the file of the Principal Family Court, Chennai
for divorce. She filed an Application in I.A. No. 848 of 2004, in the above O.P., to restrain the respondents
2 to 5 in any manner, printing or publishing the proceedings relating to the institution of the Petition
filed by her before the Family Court or carry any other recital as news item in the telecast or their
respective publication and to punish them for any such violation. The Trial Court dismissed the said
I.A., on the ground that the respondents have not contravened the provisions of Section 22 of the Hindu
Marriage Act and that they are not liable for any punishment under the provisions of the said Act and
if they contravene the said provision, action has to be taken before the appropriate forum. Before this
Court, the first respondent has agreed that the proceedings may be conducted "in camera" and that no
publicity be given. On the other hand, the press had contended that the provisions of Section 11 of the
Family Court will have an overriding effect on Section 20 of the Hindu Marriage Act.

3. Even at the stage of Interim Application of stay, this Court after considering the scope and extent of
Section 22(1) of the Hindu Marriage Act and the provisions of the Family Courts Act, 1984 at Paragraphs
12 to 16, has held as follows:

"12. The Family Courts Act is only a procedural law and the substantive law relating to family matters
may vary from person to person depending on the religion and the respective personal laws. When
a Family Court deals with the matrimonial disputes of Hindu it has to only enforce the provisions
of the Hindu Marriage Act and Section 22 of the said Act in this regard is mandatory. If other
personal laws like Christian, Parsi or Mohamedan laws do not provide for in camera proceedings,
whether there can be ban on publication or not will have to be decided on the basis of Section
11. The section confers a discretion on the Judge and also grants a right to the parties to have the
proceedings held in camera. In fact Section 11 confers a special right on the party to demand in
camera proceedings and there is no discretion vested with the Court when such a request is made
by either party to the dispute. This only strengthens the arguments of the learned counsel for the
petitioner that even under the Family Courts Act, there is no scope for any publication or printing
or the proceedings under the said Act on the violation of the Press and other electronic media.
Therefore, the contention of the learned counsel for the respondents 2 to 5 that the Family Courts
Act, 1984 has got overriding effect on the Hindus Marriage Act, 1955 is not sustainable.

13. Section 22 of the Hindu Marriage Act, 1955 recognizes the "right to privacy" between the parties in
a proceedings conducted under the Hindu Marriage Act. It has been clearly mentioned in Section
22 of the said Act that the proceedings under the Act should be conducted in camera and shall not

545

MISCELLANEOUS judgments

be lawful for any person to print or publish any matter relatng to such proceedings and if any one
contravenes such bar he is liable for punishment with a fine which may extend to one thousand
rupees.
14. Right of privacy has been recognised by Indian Courts. In Gobind v. State of Madhya Pradesh and
another, 1975(2) SCC 148, Their Lordships of the Supreme Court held as follows :
"24. Any right to privacy must encompass and protect the personal intimacies of the home, the
family, marriage, motherhood, procreation and child rearing. This catalogue approach to the
question is obviously not as instructive as it does not give analytical picture of the distinctive
characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying
principle underlying the concept has been assertion that a claimed right must be a fundamental
right implicit in the concept of ordered liberty."
15. As far as this case is concerned, it is divorce proceedings between the petitioner and the first
respondent and the petitioner is a cine actress and the first respondent is an employee in United
States of America. The first respondent is on leave to attend his case. He is unable to leave for
America without the case being heard. Therefore, the interim stay of all further proceedings in the
Original Petition ought to be vacated in the interest of justice. At the same time the interest of the
petitioner also has to be taken note of as publication or telecast of the proceedings conducted in
Court will harm her reputation and cause injury.
16. In the above circumstances, C.M.P. No. 16153 of 2004, taken out by the first respondent is allowed
in part and the interim stay already granted by this Court on 29.09.2004 in C.M.P. No. 15875 of
2004 is vacated only with regard to conduct of further trial in the original petition. However, the
respondents 2 to 5 are restrained from publishing or telecasting the matrimonial proceedings
relating to the revision petition in any way in view of Section 22 of the Hindu Marriage Act, 1955."
4. The order of this Court restraining them from publishing or telecasting the matrimonial proceedings
relating to the revision petitioner has not been challenged on Appeal. In addition to what is stated above,
I would like to add few paragraphs on the issue of right of privacy, in relation to matrimonial matters
between the litigating parties.
5. The Universal Declaration of Human Rights in Article 12 states that, "No one shall be subjected to
arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour
and reputation. Everyone has the right to the protection of the law against such interference or attacks."
6. Freedom of speech and expression, includes right not only to speak, but includes right to print, publish,
distribute, receive information. But whether this right is unrestricted, unlimited and the journalists
and the media are given a total freehand to publish or telecast anything they desire ? Whether right of
freedom of speech and expression guaranteed under Article 19(1) of the Constitution of India can simply
be exercised to invade into the privacy of life, which is exclusively reserved to an individual ? Whatever
transpires in between the litigants to a matrimonial dispute in a Court of law can it be made public ? The
answer to all the queries would be that rights guaranteed under Article 19(1)(g) are subject to reasonable
restrictions imposed in the Constitution of India and the laws framed thereunder.
7. A reader of a newspaper, magazine or a person who watches the television or internet would be too
curious to know what's happening in other's life, but would he expect something to be flashed about his
own matrimonial life in press or other form of media ? Information can be collected by the press or any
other media, like photographs, videotapes, printed matter, etc., or it could be even information through
interviews either from the parties to the marriage or from any body else.
8. Faced with a situation, whether the pressman/journalist would like to publish any matter pertaining his
own matrimonial affair, without his consent or matter relating to any matrimonial litigation, affecting his

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R. Sukanya Versus R. Sridhar & Others

right of privacy ? The Supreme Court in Mr. X v. Hospital Z, 1998(8) SCC 296, at Paragraph 15, explained
what is meant by 'right' in legal parlance and it is extracted :
"15. "Right" is an interest recognised and protected by moral or legal rules. It is an interest the violation
of which would be a legal wrong. Respect for such interest would be a legal duty. That is how Salmond
has defined "right". In order, therefore, that an interest becomes the subject of a legal right, it has to have
not merely legal protection but also legal recognition. The elements of a "legal right" are that the "right"
is vested in a person and is available against a person who is under a corresponding obligation and duty
to respect that right and has to act or forbear from acting in a manner so as to prevent the violation of
the right. If, therefore, there is a legal right vested in a person, the latter can seek its protection against a
person who is bound by a corresponding duty not to violate that right."
9. While dealing with the right of privacy vis-a-vis the right of the press, the Supreme Court in R. Rajagopal
v. State of T.N., 1995(1) R.R.R. 352 : 1994(6) SCC 632, has held as follows :
"26. (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this
country by Article 21. It is a 'right to be let alone'. A citizen has a right to safeguard the privacy of his own,
his family, marriage, procreation, motherhood, child-bearing and education among other matters. None
can publish anything concerning the above matters without his consent whether truthful or otherwise
and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person
concerned and would be liable in an action for damages. Position may, however, be different, if a person
voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy."
10. 'Privacy' has been defined as "the rightful claim of an individual to determine to which he wishes to share
himself with others and control over the time, place and circumstances to communicate with others". It
means the individual's right to control dissemination of information about himself. It is his own personal
possession. It is well accepted that one person's right to know and be informed may violate another's
right of privacy. In other words, disclosure of certain facts, events, actions, photographs, videotapes, in
any form of media, print or celluloid, internet would cause embarrassment, agony emotional stress, to a
person of reasonable sensitiveness. 'Right of Privacy' in other words can be said "to be let alone". What is
an information to others according to a journalist, could be a personal and sensitive information to an
individual in a litigation relating to a matrimonial dispute. The boundary between freedom of press and
privacy of individual is the "Lakshman Rekha" and if the media crosses the line of boundary, the invasion
starts. To strike a balance between these two competing interests is difficult. Right of privacy, vis-a-vis
right of information to be furnished to the general public, in other words, the right of the media, should
be with reference to the kind of information which the law permits. We all know that Constitution does
not guarantee absolute freedom or absolute protection to the media. Provisions of certain enactments
would amply demonstrate the inherent restrictions on freedom of speech and expression, like the one
prescribed under Article 19(1)(g) of the Constitution of India. Reasonable restrictions imposed in certain
statutes as follows :
11. Section 337 of the Criminal Procedure Code deals with Court to be open and it reads as follows:
"(1) The place in which any Criminal Courts held for the purpose of inquiring or trying any offence

shall be deemed to be an open Court, to which the public generally may have access, so far as the
same can conveniently contain them :
Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any
inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall
not have access to, or be or remain in, the room or building used by the Court.
(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an
offence under Section 376, Section 376-A, Section 376-13, Section 376-C or Section 376D of the
Indian Penal Code (45 of 1860) shall be conducted in camera :

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MISCELLANEOUS judgments

Provided that the Presiding Judge may, if he things fit, or on an Application made by either of the
parties, allow any particular person to have access to, or be or remain in, the room or building used
by the Court.

(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to
print or publish any matter in relation to any proceedings, except with the previous permission of
the Court."

12. Sections 3 and 4 of the Indecent Representation of Women (Prohibition Act), 1980, reads as follows :
"3. Prohibition of advertisements containing indecent representation of woman. - No person shall publish,

or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement
which contains indecent representation of women in any form.
4. Prohibition of Publication or sending by post of books, pamphlets, etc., containing indecent
representation of women. - No person shall produce or cause to be produced, sell, let to hire, distribute,
circulate or send by post any book, pamphlet, slide, film, writing, drawing, painting, photograph,
representation or figure which contains indecent representation of women in any form :
Provided that nothing in this Section shall apply to-
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or

figure -
(i) the publication of which is proved to be justified as being for the public good on the ground

that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph,
representation or figure is in the interest of science, literature, art, or learning or other object
of general concern; or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in, -
(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological
Sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious
purposes;
(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952),
will be applicable."
13. Section 7(1)(c) of the Medical Termination of PRegulation ncy Act (34 of 1971) is extracted hereunder:
"(c) Prohibit the disclosure, except to such persons and for such purposes as may be specified in such
regulations, of intimations given or information furnished in pursuance of such regulations."
14. Section 22 of the Hindu Marriage Act deals with the proceedings to be held in camera and they shall not
be printed and published and it reads as follows :
"(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any
person to print or publish any matter in relation to any such proceeding except a judgment of the
High Court or of the Supreme Court printed or published with the previous permission of the
Court.
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-
section (1), he shall be punishable with fine which may extend to one thousand rupees."
15. Section 33 of the Special Marriage Act (43 of 1954) deals with the proceedings to be in camera and may
not be printed or published and it is extracted below :

548

R. Sukanya Versus R. Sridhar & Others

"(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any
person to print or publish any matter in relation to any such proceeding except a judgment of the
High Court or of the Supreme Court printed or published with the previous permission of the
Court.

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-
section (1), he shall be punishable with fine which may extend to one thousand rupees."

16. Section 36 of the Children Act, 1960 deals with the Prohibition or publications of names, etc., of children
involved in any proceeding under the Act and it reads as follows :
"(1) No report in any newspaper, magazine or news sheet of any inquiry regarding a child under this
Act shall disclose the name, address or school or any other particulars calculated to lead to the
identification of the child, nor shall any picture of any such child be published :
Provided that for reasons to be recorded in writing the authority holding the inquiry may permit
such disclosure, if in its opinion such disclosure is in the interest of the child.
(2) Any person contravening the provisions of sub-section (1) shall be punishable with fine which
may extend to one thousand rupees."

17. Visualising the adverse effect on the women and children and exploitation of the vulnerable Section of
the society, the legislators have imposed reasonable restriction on the freedom of the media and press.
Reading of these provisions makes it clear that the intention of the legislation is to maintain secrecy in
respect of certain proceedings or inquiry and protect women and children from invasion of their right of
privacy. These statutory restrictions are to protect their basic human right to lead life without hindrance
from anyone in such of those enumerated matters and the media should not impinge upon the right of
privacy, in otherwords, they should be allowed "to be let alone". "Right of Privacy" is now recognised as
a right which flows from right to life and liberty under Article 21 of the Constitution of India.

18. Media attention should be towards exposing corruption, nepotism, law breaking, abuse or arbitrary
exercise of power, law and order, economy, health, science and technology, etc., which are matters
of public interest. The "Lakshman Rekha" or the "line of control", should be that the publication of
comments/information should not invade into the privacy of an individual, unless outweighed by bona
fide and genuine public interest. Right of information is a facet of freedom of speech and expression,
enshrined in Article 19(1)(a) of the Constitution of India. Right of Information has been recognised as a
Fundamental Right and the Right of Press to furnish the information or facts or opinion should be only
to foster public interest and not to encroach upon the privacy of an individual. The public at large has no
fundamental or legal right to get any information or intrude into the personal life of the other individual.
Statutes empower the authorities to examine the parties, under exceptional circumstances, contained
therein. When the public at large has no legal right to impinge upon the marital privacy, the press or any
other media cannot claim a better right to publish in newspaper, magazine or any other form of media,
in exercise of freedom of speech and expression.

19. Shroud's Judicial Dictionary, Vol. 4 (IV Edition), defines "Public Interest" as "A matter of public or
general interest, does not mean that which is a interesting as gratifying curiosity or a love of information
or amusement but that in which a class of community have a pecuniary interest, or some interest by
which their legal rights or liability are affected."

20. In Black's Law Dictionary (Sixth Edition), 'Public Interest', is defined as follows :
"Public Interest - Something in which the public, the community at large, has some pecuniary interest,

or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow
as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in
question. Interest shared by citizens generally in affairs of local State or national Government.................."

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21. Section 22(1) of the Hindu Marriage Act states that every proceeding under this Act shall be conducted
"in camera" and it shall not be lawful for any person to print or publish any matter in relation to any such
proceeding except a judgment of the High Court or of the Supreme Court, printed or published with the
previous permission of the Court. The Supreme Court in Babu Lal v. Hazari Lal Krishori Lal, 1982(1)
SCC 525, held that the word "proceeding" is a very comprehensive term and generally speaking means
a prescribed cause of action for enforcing a legal right. It is not a technical expression with a definite
meaning attached to it, but one the ambit of whose meaning will be governed by the statute. Again
in P.L. Kantha Rao v. State of A.P., 1995(3) S.C.T. 44 : 1995(2) SCC 471, the Apex Court held that the
word, "proceeding" would depend upon the scope of the enactment wherein the expression is used to a
particular context to which it occurs. It means a course of action for enforcing a legal right.

22. The expression "any matter in relation to any such proceeding" should be given the widest import and it
has to be given full effect to, when it is read in conjunction with the words "every proceeding" occurring
in the beginning of the Section. Considering the scope of the Act, i.e., Hindu Marriage Act, which
governs marriage between the Hindus, relief of divorce and Judicial separation, alimony, temporary or
permanent, the lis being purely inter se, reading of the Section in its entirety in its context, reflect the
intention of the legislation, primarily sought to be achieved. The language employed in Section is plain
and unambiguous and it covers every proceeding under the Act.

23. The right of privacy created by the statute has to be preserved. The very inception of the provision,
Section 22 in the Hindu Marriage Act makes it clear that matters pertaining to matrimonial affairs are
intended to be conducted 'in camera' and not intended to be divulged to others, except publication of
the judgment with the leave of the Court. Right of privacy in matrimonial matters between the parties
in a litigation under Marriage Acts is personal to the litigating parties. Thus it is manifestly clear that the
legislature has intended to guard the right of privacy in relation to matrimonial matters and it is a settled
legal position that the real meaning and effect should be given to the words employed in the Statute. In
the light of language employed in the Statute, the right of privacy is so fundamental to the individual
excepting to the extent provided under the Marriage Acts. Of course, we should not forget the role of
our independent press and media in coming out with revelations of public interest, resulting in societal
changes. As the freedom of the press is for the dissemination of information of public interest and public
affairs, those which are not related to the above, but involving the marital relationships of the parties to a
litigation should not be published or telecast, as it is prohibited under law. Publication of the proceedings
meant to be in camera will affect the constitutional liberty guaranteed to the individual and it would be
an invasion of his right of privacy. When Section 22(1) of the Act prohibits printing or publishing any
matter in relation to any such proceeding arising under the Act, the Family Court or any other competent
Court dealing with matrimonial matter, under the Hindu Marriage Act, has inherent jurisdiction to issue
an order of injunction or any such direction to give full effect to the statutory provision. Therefore, the
contention of the respondents 2 to 5 that they are not parties to the Original Petition and therefore, no
injunction can be granted against them, cannot be countenanced.

24. In view of the above discussion, the Civil Revision Petition is allowed. No costs. Consequently, connected
Miscellaneous Petition is also dismissed.

Petition allowed.
qqq

550

LANDMARK JUDGMENTS
OF HON'BLE MR. JUSTICE KURIAN JOSEPH
ON FAMILY MATTERS



Cholamarakkar versus Pathummamma @ Pathumma

Cholamarakkar versus Pathummamma @ Pathumma

Kerala High Court

Bench : Hon'ble Mr. Justice Kurian Joseph & Hon'ble Mr. Justice Harun-Ul-Rashid

Cholamarakkar
Versus

Pathummamma @ Pathumma

MFA.No. 985 of 2002(E)

Decided on 12 August, 2008

One of the main questions arising for consideration is whether legitimate or illegitimate child who has
attained majority is entitled to maintenance. There cannot be any dispute that the said question can be
tackled only under Section 125 of the Code of Criminal Procedure, 1973.

The provision makes no difference as to whether the child is legitimate or illegitimate, since what is sought
to be prevented is vagrancy of children and whether legitimate or illegitimate, the child is a human being.
However, if such a child is a married daughter, there is no obligation on the father, as such situation under
law is expected to be handled by the husband.

The provision in contradistinction to Section 125(1)(b) makes no difference as whether the child is minor
or major, again because no person who is physically or mentally challenged or injured and thus unable to
maintain himself or herself shall not suffer on account of the neglect or refusal on the part of the father.
The only precondition under Section 125(1)(c) is that the major and unmarried child, excluding a married
daughter, is unable to maintain himself or herself owing to any physical or mental abnormality or injury.

Unless it is pleaded and established before the court that on account of such mental injury, the child is unable
to maintain itself, she cannot maintain a valid claim before the court for maintenance. Since the Family
Court has not addressed the issues in the proper perspective, we set aside the order in M.C.No.413/2002
and remit the matter to the Family Court for fresh consideration, in accordance with law. We make it clear
that it will be open to the parties to amend the pleadings and adduce fresh evidence.

JUDGMENT

Hon'ble Mr. Justice Kurian Joseph
Vagrancy is the fruit of a sin and the sin is capital where the root is the parent. It is this painful thought that
lingers in the background while analysing the facts of these cases.
2. One of the main questions arising for consideration is whether legitimate or illegitimate child who has

attained majority is entitled to maintenance. There cannot be any dispute that the said question can be
tackled only under Section 125 of the Code of Criminal Procedure, 1973.
To the extent relevant, the provision reads as follows: Section 125: Order for maintenance of wives,
children and parents.- (1) if any person having sufficient means neglects or refuses to maintain -

(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself,

or

553

landmark judgments OF HON'BLE MR. JUSTICE KURIAN JOSEPH ON FAMILY MATTERS

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority,
where such child is, by reason of any physical or mental abnormality or injury unable to
maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class
may, upon proof of such neglect or refusal, order such person to make a monthly allowance
for the maintenance of his wife or such child, father or mother, at such monthly rate, as such
magistrate thinks fit, and to pay the same to such person as the Magistrate may from time
to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied
that the husband of such minor female child, if married, is not possessed of sufficient means

Provided further that the Magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under this subsection, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother,
and the expenses of such proceeding which the Magistrate considers reasonable, and to pay
the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance
and expenses for proceeding under the second proviso shall, as far as possible, be disposed
of within sixty days from the date of the service of notice of the application to such person
Explanation - For the purposes of this Chapter,-

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of
1875) is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.

[(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding
shall be payable from the date of the order, or, if so ordered, from the date of the application for
maintenance or interim maintenance and expenses of proceeding, as the case may be.]

3. In the factual background of the instant case, it is Section 125(1)(c) that is relevant. The provision makes
no difference as to whether the child is legitimate or illegitimate, since what is sought to be prevented is
vagrancy of children and whether legitimate or illegitimate, the child is a human being. However, if such
a child is a married daughter, there is no obligation on the father, as such situation under law is expected
to be handled by the husband.

4. The provision in contradistinction to Section 125(1)(b) makes no difference as whether the child is minor
or major, again because no person who is physically or mentally challenged or injured and thus unable
to maintain himself or herself shall not suffer on account of the neglect or refusal on the part of the
father. The only precondition under Section 125(1)(c) is that the major and unmarried child, excluding a
married daughter, is unable to maintain himself or herself owing to any physical or mental abnormality
or injury. There may not be much of a dispute or lack of clarity regarding physical or mental abnormality
or physical injury. But what exactly is the scope and ambit of mental injury is yet a grey area under law in
the matter of entitlement for maintenance. For analyzing the above position, we have to refer to the facts.

5. Pathumma is the first petitioner in O.P.No.188/2000 and the second petitioner is her daughter. The
respondent is Cholamarakkar who, according to the first petitioner, is her husband and the father of the
second petitioner. Parties are described as above. The said original petition was filed for a declaration
that a legally valid marriage as per muslim religious rites was performed on 07.02.1974 between the
first petitioner and the respondent and for a further declaration that the respondent is the father of the

554

Cholamarakkar versus Pathummamma @ Pathumma

second petitioner. There is also a consequential prayer for maintenance to both. It is not in dispute that
Pathumma was the wife of elder brother of Cholamarakkar and that she has two children born out of
that wedlock. After the divorce, she was married to one Kunhalan Haji. According to Pathumma, since
Cholamarakkar wanted her to live with him, he forced her to divorce Kunhalan Haji and marry him.
Pathumma agreeing to the persuasion, married Cholamarakkar on the strength of a vakkalath executed
by Cholamarakkar as he could not be expected to be personally present on that day. The allegations were
totally denied by the respondent. We shall first tackle the question of maintenance of the child.
6. The word 'injury' is defined under Section 44 of the Indian Penal Code, which reads as follows: "Section
44: "Injury".- The word "injury" denotes any harm whatever illegally caused to any person, in body, mind,
reputation or property".
'Injury' has been defined in the Blacks Law Dictionary (5th Edition) as "any wrong or damage done to
another, either in his person, rights, reputation or property; the invasion of any legally protected interest
of another". It is the case of the petitioners that dispute on the paternity of the second petitioner by the
respondent has affected the reputation of the child and hence she could not get any marriage alliance
and she is still remains unmarried. It is also indirectly pleaded that the child is hence unable to maintain
herself. Placing heavy reliance on the observations in Noor Saba Khatoon vs. Mohammed Quasim (AIR
1997 SC 3280), it is submitted that under Section 125 Cr.P.C, an unmarried female child is entitled to get
maintenance. The observation referred to above appears in paragraph 11 of the judgment of the Supreme
Court and the same is extracted below.
"Thus our answer to the question posed in the earlier part of the opinion is that the children of Muslim
parents are entitled to claim maintenance under S.125 Cr.P.C. for the period till they attain majority
or are able to maintain themselves, whichever is earlier, and in case of females, till they get married,
and this right is not restricted, affected or controlled by divorcee wife's right to claim maintenance for
maintaining the infant child/children in her custody for a period of two years from the date of birth of
the child concerned under S.3 (1)(b) of the 1986 Act. In other words S.3(1)(b) of the 1986 does not in
any away affect the rights of the minor children of divorced Muslim parents to claim maintenance from
their father under S.125 Cr.P.C. till they attain majority or are able to maintain themselves or in the case
of females, till they are married". (emphasis placed by counsel on the words underlined).
7. There cannot be any dispute that a legitimate or illegitimate child, who is not a married daughter, who is
suffering from any physical or mental abnormality or injury and thus unable to maintain itself, is entitled
to maintenance from the parent, in case the parent is having sufficient means. The loss of reputation
is mental injury causing adverse impact on the capacity of a child to maintain itself. But the further
question is even without any such mental injury, whether the daughter who is unable to maintain itself
and who remains unmarried is entitled to claim maintenance based on the observation of the Supreme
Court in Noor Saba Khatoon's case. In order to analyze the above position, it will be fruitful to refer
to the position regarding maintenance in the old Code as appearing under Section 488. To the extent
relevant, Section 488(1) Cr.P.C. reads as follows:
"If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or
illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-
divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order
such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly
rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same
to such person as the Magistrate from time to time directs".
Whether legitimate or illegitimate, if a child is unable to maintain itself it was entitled to get maintenance
in case the parent is having sufficient means, under the 1898 Code. In Nanak Chand vs. Chandra Kishore
Aggarwal and others (AIR 1970 SC 446) it has been held that the 'child' under Section 488 of the old
Code does not mean a minor son or daughter. It is used in conjunction with parentage and the expression

555

landmark judgments OF HON'BLE MR. JUSTICE KURIAN JOSEPH ON FAMILY MATTERS

is not to be understood in terms of the age. Hence the children even after attaining majority, if unable
to maintain themselves, were entitled to claim maintenance. When the Code was amended in 1973, the
statute itself took note of the fate of children who are unable to maintain themselves even after attaining
majority and introduced a provision in express terms under Section 125(1)(c). However, the entitlement
under the 1973 Code is subject to certain restrictions in the case of those who attained majority: (1)
the child is not a married daughter; (2) the child is unable to maintain itself on account of physical or
mental abnormality or injury. Thus the physical or mental abnormality or injury leading to the inability
to maintain itself is a precondition for a child who has attained majority and also in the case of an
unmarried daughter to claim maintenance from the parents.
8. In Noor Saba Khatoon's case, the Supreme Court considered the liability of a Muslim father to pay
maintenance to his children under Section 3(1)(b) of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 vis-a-vis the entitlement to claim maintenance under Section 125 Cr.P.C. The
contention was that liability of a Muslim father was only to provide maintenance for a period of two
years from the birth of the children. It is in that context, the Supreme Court held that beyond the age of
two years also, the children born to Muslim parents who are unable to maintain themselves are entitled
to claim maintenance under Section 125 Cr.P.C. The issue as to the right to claim maintenance after
attaining majority but before marriage of female children did not arise before the court and hence not
considered also. We find that the question was considered by a Single Bench of this Court in Muhammed
vs. Kunhayisha (2003(3)KLT 106) wherein it has been rightly held as follows:
"The language of S.125, according to me, does not at all permit a construction that the status of a major
daughter as an unmarried person can by itself be construed as "physical or mental abnormality or injury"
sufficient to bring her case within the sweep of S.125(c). Whatever be the religion of the parties, the language
of the Statute does not permit an unmarried major daughter to be brought within the purview of S.125(c)
on that sole reason/ground of her being an unmarried daughter. She has to prove further that she is unable
to maintain herself and such inability to maintain herself is attributable to physical or mental abnormality
or injury, if any, which she is afflicted with. If the intention of the Legislature were to grant maintenance to
unmarried female children, solely on the ground that they are unmarried female children, nothing prevented
the Legislature from making express provisions imposing liability on the parents to provide maintenance
to their female children till they are married. Their disability - if that be one, of remaining unmarried alone
was definitely not reckoned by the Legislature as sufficient to entitle them claim maintenance under S.125
Cr.P.C. That evidently is the reason why the Parliament which must be presumed to have been conscious
of the rights of the unmarried daughters under the Hindu and Mohammedan personal law (statutory and
customary) to claim maintenance from their parents till they are married, did not choose to confer such
right on them under S.125 Cr.P.C. Under S.125 Cr.P.C a major unmarried daughter is not entitled to claim
maintenance from her parents unless her inability to maintain herself is attributable to her physical or
mental abnormality or injury and that her mere status as an unmarried daughter- whatever be her religion-
does not entitle her to claim maintenance under S.125 Cr.P.C."
However, the said decision does not deal with the evolution of Section 125. As we have already
discussed above, placing reliance on Nanak Chand's case, while enacting 1973 Cr.P.C, a deviation is
consciously made by the Parliament from 1898 Code. Coming to 1973 Code, unless the child satisfies
the precondition of the inability being on account of any physical or mental abnormality or injury, the
child who has attained majority and an unmarried daughter are not entitled to get maintenance. The
married daughter has been expressly excluded also from the claim for maintenance from parents; it is
the husband who is to maintain her. Therefore, the observation in Noor Saba Khatoon's case regarding
the entitlement for maintenance to unmarried daughters of a Muslim parent will not help the petitioners.
That observation regarding entitlement of the females for maintenance till they are married can only be
read and understood as entitlement for maintenance in the case of female children till they are married,

556

Cholamarakkar versus Pathummamma @ Pathumma

in case they are unable to maintain themselves on account of any physical or mental abnormality or
injury.
9. Learned counsel appearing for the respondent inviting attention to Article 141 of the Constitution of
India submits that law declared by the Supreme Court is binding on all courts. We have no quarrel with
the proposition and we cannot have also. But the question is whether the Supreme Court has declared
the law with regard to entitlement of unmarried daughters to claim maintenance for the only reason that
they are not married.
10. As we have already held above, Section 125 Cr.P.C gives an unambiguous picture regarding entitlement
of unmarried daughters restricting the scope of inability to maintain themselves on account only of
mental or physical abnormality or injury. Placing reliance on the decision of the Supreme Court in Lt.
Col. P.R.Chaudhary vs. Municipal Corporation of Delhi [(2000) 4 SCC 577], it is further contended that
interpretation of law even by way of any obiter by the Supreme Court cannot be brushed aside on the mere
assertion that it does not confirm to statutory provisions. The observation of the Supreme Court in Noor
Saba Khatoon's case regarding entitlement for maintenance to unmarried daughters is not an interpretation
of law by the Supreme Court on the scope and ambit of Section 125 Cr.P.C. The Supreme Court only
considered the entitlement of Muslim children who are unable to maintain themselves beyond the age of
two years. In that context, laying down the law that the liability to pay maintenance under the provisions
of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is not limited to two years of age, the
Supreme Court held that in the case of children, they are entitled to claim maintenance till they attain
majority in case they are unable to maintain themselves and in the case of females, till they are married
meaning thereby that in the case of those married daughters, the liability is only of their husbands and
in the case of those unmarried, the parents are liable till they are married if such unmarried children are
unable to maintain themselves on account of any physical or mental abnormality or injury. The observation
made by the Apex Court is thus not the interpretation of law by the Supreme Court on the point. Any
observation made by the Supreme Court interpreting the legal provision and laying down the legal position
is certainly binding on all courts in India. But a general observation made without reference to the statutory
provision has no binding value. It will be profitable to refer to the decision of the Supreme Court itself on
such observations, in Director of Settlements A.P. and Others vs. M.R. Apparao and another [(2002)4 SCC
638]. The relevant portion as appearing at paragraph 7 of the judgment reads as follows:
"A judgment of the Court has to be read in the context of questions which arose for consideration in the
case in which the judgment was delivered. An "obiter dictum" as distinguished from a ratio decidendi
is an observation by the Court on a legal question suggested in a case before it but not arising in such
manner as to require a decision. Such an obiter may not have a binding precedent as the observation was
unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a
precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under
Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a
given case".
In the instant case, the entitlement of an unmarried daughter after attaining the age of majority and
belonging to Muslim community was not an issue either raised or decided by the court and hence the
observation under reference has no authority as a binding precedent.
11. The next question to be analyzed, in the facts as pleaded in the claim for maintenance, is whether the second
petitioner is entitled to claim maintenance. As we have already stated above, unless it is established that the
inability to maintain herself is on account of the physical or mental abnormality or injury, she will not be
entitled to claim maintenance. From the pleadings, we find that more stress is given to the mental injury
leading to the situation of the child remaining unmarried, on account of the dispute on paternity. That is not
the requirement. Unless it is pleaded and established before the court that on account of such mental injury,
the child is unable to maintain itself, she cannot maintain a valid claim before the court for maintenance.

557

landmark judgments OF HON'BLE MR. JUSTICE KURIAN JOSEPH ON FAMILY MATTERS

Since the Family Court has not addressed the issues in the proper perspective, we set aside the order in
M.C.No.413/2002 and remit the matter to the Family Court for fresh consideration, in accordance with law.
We make it clear that it will be open to the parties to amend the pleadings and adduce fresh evidence.
12. As far as the declaration regarding paternity is concerned, the main contention is that D.N.A test
conducted as ordered by the Family Court is not foolproof. When the matter was before us, on 23.01.2008
we passed the following order:
"The appellant in M.F.A.No.985/2002 is not satisfied with the D.N.A. test already conducted. The 1st
respondent in M.F.A.No.985/2002 has no objection even for undergoing another D.N.A. test; if the
expenses are met by the appellant. In the nature of the disputes raised by the appellant we are of the view
that a fresh test can be conducted at Hyderabad under the supervision of an Advocate Commissioner
deputed from this Court. An amount of Rs.50,000/- will be the approximate expenses, including travel
and boarding of the parties. Accordingly we direct Sri.Cholamarakkar to deposit an amount of Rs.50,000/-
towards such expenses within two weeks from today".
Thereafter, it was submitted before us that the first respondent is not interested in going for another
test. In this context, it is also to be noted that Exhibit A2 birth certificate still contains the name of
Cholamarakkar as the father. The birth was registered on 07.12.1977, three days after the birth of the
child. In such circumstances, we have no hesitation in confirming the declaration granted by the Family
Court on the paternity of the second petitioner.
13. As far as the declaration regarding marriage is concerned, we find that the first petitioner has miserably
failed in establishing her case before the court. She has no consistent case regarding the factum of the
alleged marriage. In 1981 she maintained the position that the marriage took place in 1976. But before the
Family Court, according to her, the marriage took place on 07.02.1974. The person in whose favour the
written authorization was executed for entering the contract of marriage namely, Kollencheri Alikutty,
being the most competent person to speak of the marriage, was not examined. Before the Family Court,
there was no evidence for the authorization given to Alikutty. Exhibit A1 marriage certificate was issued
on the basis of the entry in Exhibit X1 register. However, according to Abdul Khader Musliar, Khasi of
Juma Masjid, Karinkappara, there was no practice of maintaining marriage register in the Masjid. Exhibit
X1 register only shows the amount received at the time of marriage for payment to the khasi and other
employees of the Masjid. When those details are given, the name of the bridegroom and bride is also
entered in the register. That register contains other accounts also. The Family Court further found that
the register itself was not kept properly. There is no chronological order for the entries and the disputed
entry itself is suspected to be mutilated by spreading ink. Going thus through the evidence, there is
every reason to sustain the finding of the Family Court that the entry in Exhibit X1 is not genuine. All
that apart, the only person available on the side of the first petitioner at the time of the alleged marriage,
admittedly, is one Aboobacker and he too was not examined.
14. In view of the above factual matrix, we are of the view that the Family Court is justified in entering the
finding that there is no valid marriage between the first petitioner and the respondent. Therefore, we
confirm the said finding.
In the result, M.F.A.985/2002 filed by Cholamarakkar is dismissed. M.F.A.No.1114/2002 filed by
Pathumma and Bushra is partly allowed to the extent of declaration that Cholamarakkar is the father of
the second petitioner-Bushra. The order in M.C.No.413/2002 on the file of the Family Court, Manjeri,
impugned in R.P.(FC)No.99/2003, is set aside and the case is remitted to the said court with a direction
to dispose of the same, expeditiously. The parties will appear before the court on 29.09.2008.

KURIAN JOSEPH JUDGE

HARUN-UL-RASHID JUDGE

qqq

558

Milka Jose versus C.O.Francis

Milka Jose versus C.O.Francis

Kerala High Court

Bench : Hon'ble Mr. Justice Kurian Joseph & Hon'ble Mr. Justice Harun-Ul-Rashid

Milka Jose
Versus

C.O.Francis

WP(C).No. 33348 of 2007(S)

Decided on 3 September, 2008

During the pendency of this Writ Petition, we directed the parties to appear before us. We had several
rounds of mediation, conciliation and talks with the assistance of various counsel practicing before this
Court. Both of us tried our best to purchase peace between the parties. Unfortunately, the ego of the
parents apparently does not help the Court to arrive at any solution. Two unfortunate children are torn
between their W.P.(C)NO.33348/2007 parents. Both the parents think that they love the children and out of
love they fight. But the fact is otherwise. It is their imprudent selfishness which has lead to this litigation.
They are not bothered about the welfare of the children, they are bothered only about their litigation.
Apparently, they want to win the case even if they lose the children.

Until O.P. No.1285 of 2007 is disposed of by the Family Court, the elder child Rose shall be entrusted with
the respondent/father at 8 a.m. on all Sundays. The respondent Sri. Francis will collect the child from the
house of the petitioner. In case there is any resistance or difficulty, it will be open to him to report the
matter to Thrissur Town East Police Station and the Station House Officer shall render necessary police
assistance and protection to Sri. Francis to get custody of the elder child. Sri. Francis shall return the child
to the residence of the petitioner before 8 p.m. iii.The respondent/father is also permitted to interact with
the younger child Ruth for about one hour at the residence of the petitioner when he goes there to pick up
the elder child for which also, if necessary, the Station House Officer will render assistance.

JUDGMENT

Hon'ble Mr. Justice Kurian Joseph
O.P. No.1285 of 2007 filed by the petitioner seeking custody of her children is pending before the Family Court,
Thrissur. The petitioner has two children in the respondent. The elder child is around seven years and the
younger one is now aged two years. Learned counsel appearing for the respondent submits that the elder child
was with the father and the mother got custody of the child only in November, 2007 and that though it was only
on a temporary basis, the child was never returned to the father.
2. During the pendency of this Writ Petition, we directed the parties to appear before us. We had several

rounds of mediation, conciliation and talks with the assistance of various counsel practicing before this
Court. Both of us tried our best to purchase peace between the parties. Unfortunately, the ego of the
parents apparently does not help the Court to arrive at any solution. Two unfortunate children are torn
between their W.P.(C)NO.33348/2007 parents. Both the parents think that they love the children and
out of love they fight. But the fact is otherwise. It is their imprudent selfishness which has lead to this
litigation. They are not bothered about the welfare of the children, they are bothered only about their
litigation. Apparently, they want to win the case even if they lose the children.

559

landmark judgments OF HON'BLE MR. JUSTICE KURIAN JOSEPH ON FAMILY MATTERS

3. In the above factual situation, we do not think that this Court should any more keep this Writ Petition
pending. Even when an interim order was passed regarding custody of the children during weekends,
the petitioner has come up with I.A. Nos. 10175 of 2008 and 11272 of 2008 with unfortunate, painful and
unfounded allegations. Instead of teaching and encouraging the children to love both parents despite
the fight between husband and wife, what the children are now being taught is to hate the parents. The
grand parents are also parties to such unfortunate, disturbing and painful situation. Having regard to the
entire facts and circumstances of the case, we dispose of the Writ Petition and the Review Petition with
the following directions:
i. There will be a direction to the Family Court, Thrissur to dispose of O.P. No.1285 of 2007 in
accordance with law in the normal course, needless to say, untrammelled by any of the W.P.(C)
NO.33348/2007 observations contained in this judgment since that petition will have to be
considered taking note of the circumstances at the time when the case is taken up for trial.
ii. Until O.P. No.1285 of 2007 is disposed of by the Family Court, the elder child Rose shall be
entrusted with the respondent/father at 8 a.m. on all Sundays. The respondent Sri. Francis will
collect the child from the house of the petitioner. In case there is any resistance or difficulty, it will
be open to him to report the matter to Thrissur Town East Police Station and the Station House
Officer shall render necessary police assistance and protection to Sri. Francis to get custody of the
elder child. Sri. Francis shall return the child to the residence of the petitioner before 8 p.m. iii.The
respondent/father is also permitted to interact with the younger child Ruth for about one hour
at the residence of the petitioner when he goes there to pick up the elder child for which also, if
necessary, the Station House Officer will render assistance.
iv. There will also be a direction to the Headmistress, St. Johns L.P. School, Parappur to issue the
Transfer Certificate of Rose as and when requested by her mother.
v. It is also made clear that in case Sri. Francis requests for the custody of the child at day time during
school holidays, the same shall be granted in the manner indicated above. It is further made clear
that when the father collects the child from the house of the petitioner, he shall be with the child
and he shall not entrust the child with others.

W.P.(C)NO.33348/2007 In that view of the matter nothing survives in the Writ Petition and the Review
Petition. The Writ Petition and the Review Petition are disposed of as above.

(KURIAN JOSEPH, JUDGE)

(HARUN-UL-RASHID, JUDGE)

qqq

560

T.Vineed versus Manju S.Nair

T.Vineed versus Manju S.Nair

Kerala High Court
Bench : Hon'ble Mr. Justice Kurian Joseph & Hon'ble Mr. Justice Harun-Ul-Rashid

T.Vineed
Versus
Manju S.Nair
WP(C) No. 36610 of 2007(S)
Decided on 29 January, 2008
Motivated and inspired, we have also realized that by settling one case in this court, quite a few litigations
between the parties and their families before various other courts or forums can also be either closed or
settled.
One case settled is ten cases avoided because in settlement, peace is purchased and both parties part as
friends. Attempt for alternate redressal is hence not only the statutory obligation of the court under Section
89 of the Civil Procedure Code, but it is their duty to the public also; since being judicial officers they have
the expertise in peace making.
JUDGMENT
Hon'ble Mr. Justice Kurian Joseph
"My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human
nature and to enter men's hearts. I realized that the true function of a lawyer was to unite parties riven asunder.
The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as
a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby - not
even money, certainly not my soul." [M.K.Gandhi-An Autobiography or The story of My Experiments with
Truth (page 133)].
Motivated and inspired, we have also realized that by settling one case in this court, quite a few litigations
between the parties and their families before various other courts or forums can also be either closed or settled.
The recent litigation trend in matrimonial disputes indicates that a matrimonial dispute between the parties
could generate at least half-a-dozen cases. Access to justice shall not be a handle to multiplication of litigations
by taking recourse to all possible legal remedies before all available forums. Easy access to the remedies shall
not be permitted to be used as a weapon for harassing the other party. The attempt and effort should be to
avoid a possible litigation. But unfortunately, the trend seems to be as to how to multiply the litigation between
the parties. The case we are dealing with is a classic example for the same. Within one year, there were eleven
litigations before various forums. Unless we had arrested that unhealthy competition, at this pace and by this
time they would have been parties to at least another eleven cases. We have also realized that one case settled
is ten cases avoided because in settlement, peace is purchased and both parties part as friends. Attempt for
alternate redressal is hence not only the statutory obligation of the court under Section 89 of the Civil Procedure
Code, but it is their duty to the public also; since being judicial officers they have the expertise in peace making.
Once the parties to litigations are objectively able to realize the strength and weakness of their cases, get a fairly
realistic picture of the legal position, and when they also realize that what is morally wrong cannot be legally
right, they would normally opt for settlement. In the process, as Mahatmaji said, ..."....both sides are happy and
they rise in the public estimation".

561

landmark judgments OF HON'BLE MR. JUSTICE KURIAN JOSEPH ON FAMILY MATTERS

2. The petitioner married the respondent on 20.6.1995. It was a love marriage against the stiff opposition
of the parents. A child was born to them on 14.5.1999. The parties continued their studies and sought
employment in different places. The initial infatuation, it appears, slowly faded and the relationship got
strained, leading to O.P.642/07 filed by the respondent before the Family Court, Nedumangad seeking
permanent custody of the child Adithya. The respondent also filed O.P.641/07 before the said court for
dissolution of marriage alleging matrimonial cruelty. She filed a criminal complaint before Judicial First
Class Magistrate Court-II, Thiruvananthapuram under Section 23 of the Protection of Women from
Domestic Violence Act, as M.C.26/07. Yet another complaint was filed before the police alleging offence
under Section 498A of the Indian Penal Code. Thereafter, the petitioner filed O.P.744/07 before the
Family Court, Nedumangad for declaring him as permanent guardian and custodian of the child Aditya
V.Nair born to the petitioner in the respondent. The respondent filed O.P.799/07 before the Family Court,
Nedumangad for recovery of gold ornaments, cash etc. She also filed O.P.1071/07 before the Family
Court, Nedumangad for permanent prohibitory injunction. In turn, the petitioner filed O.P.1126/07
before the Family Court praying for recovery of money and articles. At the instance of both parties, the
following complaints were registered by the police : (1) FIR 258/07 of Peroorkkada police station, (2)
FIR 355/07 of Peroorkkada police station, (3) FIR 555/07 of Peroorkkada Police Station, (4) FIR 603/07
of Medical college police station and (5) FIR 553/07 of Peroorkkada police station. The mother of the
petitioner filed a complaint before the Kerala Women's Commmission. The mother of the respondent
also filed a complaint before the same Commission.

3. It is in the above mentioned litigating mood of the parties, the petitioner approached this court aggrieved
by an order passed by the Family Court, Nedumangad. As per the said order, the custody of the child
was given to the petitioner/father for two hours on all Saturdays except second Saturdays. In the interim
application, the prayer was for custody of the minor at least for 8 hours on Saturdays or Sundays. On
going through the pleadings, we felt that instead of treating the symptoms, we should catch at the root
cause. We issued a direction to the parties to be present before this court on 17.12.2007. On that day, we
appointed Adv.Smt.Prabha R.Menon as conciliator. After an initial round of talk with the conciliator and
after elaborate discussions with the parties, we felt that the entire litigations between the parties are to be
and can be put an end to. The case was again posted on 21.1.2008, 22.1.2008, 23.1.2008 and finally to this
day. In the light of the discussions the court and the conciliator had between the parties and thanks to the
cooperation extended by the learned counsel appearing on both sides, it is heartening to note that peace
could be purchased not only between the parties to the marriage, but also between the families of both
parties. True, they have agreed to disagree. But we could convince them that on disagreement also, the
parties to the marriage can still be friends. For the only reason that the matrimonial bond is terminated
and the marriage is dissolved, the parties to the marriage need not be strangers and enemies; they can
still continue to be friends, and they have to continue as good friends in this case for the additional
reason that they have a child. The husband loses the wife and wife, the husband in a dissolution. But the
child does not lose either father or mother. He has only one father and one mother, and he is entitled to
have love, care and protection of both parents. The parents in such situation should educate the child that
difference of opinion and the inevitable parting between the parties to the marriage shall not in any way
affect the status of the child. The child should be taught and trained to acknowledge, respect and love
both the father and mother.

4. We are happy to note that both parties have mutually agreed to settle the disputes with regard to the
custody of the child also. After several rounds of discussions, we directed the parties to reduce the terms
of compromise to writing and file a compromise petition. Accordingly, they have filed I.A.1215/08
incorporating the terms of compromise. We have recorded the terms of compromise. In terms of the
compromise, O.P.Nos.641/07, 642/07, 799/07, 1071/07, 744/07 and 1126/07 are struck off from the files
of the Family Court, Nedumangad. FIR Nos.258/07, 355/07, 555/07 & 553/07 of Peroorkkada police
station are also quashed. Since peace has been purchased between the parties, we are of the view that

562

T.Vineed versus Manju S.Nair

for securing the ends and in the interests of justice, the proceedings in FIR 603/07 of Medical College
Police Station, Thiruvananthapuram and the proceedings in M.C.No.26/07 before the JFCM Court-II,
Thiruvananthapuram are to be quashed. Ordered accordingly.
5. As part of the settlement, the parties have filed a petition under Section 28 of the Special Marriage Act,
1954. We are convinced that the said interlocutory application satisfies all the ingredients of Section
28 of the Special Marriage Act, 1954. In the background of the long pending disputes between the
parties we are of the considered opinion that a further lie over period is not necessary or required in
this case. Therefore, we allow I.A.1216/08 and the marriage between the petitioner and the respondent
is dissolved by a decree of divorce on mutual consent. I.A.Nos.1215 and 1216 of 2008 will form part
of this judgment. Registry is directed to communicate a copy of this judgment to the Family Court,
Nedumangad and also to the Peroorkada and Medical College Police Stations, Thiruvananthapuram and
JFCM-II, Thiruvananthapuram.
6. Before we part, we would like to mention that, advocates have a great role and a vital role too in the
process of settlement of the cases. But for the sincere cooperation of the advocates on both sides, we
could not have succeeded in settling these cases. To a great extent, it is for them to convince their parties
that it is in their better interest to go for a settlement and give a quietus to the litigations. In the process
they are in fact conciliators and mediators. By settling a case they do not lose anything. They gain the
goodwill and appreciation also of the opposite side, since both sides go with the satisfaction that they
have not lost but won their case. We also record our appreciation for the earnest efforts taken by Smt.
Prabha R.Menon as conciliator in this case.

KURIAN JOSEPH, JUDGE.

HARUN-UL-RASHID, JUDGE

qqq

563

landmark judgments OF HON'BLE MR. JUSTICE KURIAN JOSEPH ON FAMILY MATTERS

V.Geetha versus O.K.Radhakrishnan

Kerala High Court

Bench : Hon'ble Mr. Justice Kurian Joseph & Hon'ble Mr. Justice Harun-Ul-Rashid

V.Geetha
Versus

O.K.Radhakrishnan

Mat Appeal No. 386 of 2006()

Decided on 19 March, 2008

• Petition filed under Section 13(1)(ia)and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred
to as "the Act") for dissolution of the marriage between the petitioner and the respondent on the
grounds of desertion and cruelty. The above grounds canvassed for a decree of divorce were negatived
by the Family Court. Hence, this appeal.

• The marriage between the parties was solemnised on 29.8.1993. The petitioner lived with her husband
only for two to three months and she became pregnant during the said period.

• The fact that the parties are living separately for the last 14 years and the fact that the respondent was
not performing the duties of a husband as well as father are sufficient to establish animus deserendi
for granting divorce in favour of the appellant.

• Desertion is an act which implies abandonment against the wish of the person charging it.

• Fourteen years have elapsed since the petitioner and respondent have been separated. We find that
there is no possibility of the parties resuming normal marital life. There has been an irretrievable
breakdown of marriage between the husband and the wife. A workable solution is certainly not
possible.

JUDGMENT

Hon'ble Mr. Justice Harun-ul-Rashid
The petitioner in O.P. No.108 of 2004 on the file of the Family Court, Kannur is the appellant. O.P. No.108 of
2004 was filed under Section 13(1)(ia)and (ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the
Act") for dissolution of the marriage between the petitioner and the respondent on the grounds of desertion
and cruelty. The above grounds canvassed for a decree of divorce were negatived by the Family Court. Hence,
this appeal.
2. The parties herein are referred to as the petitioner and respondent as in the Original Petition. The brief

facts pleaded in the petition for divorce are as follows:
The marriage between the parties was solemnised on 29.8.1993. They lived together as husband and wife

for 2-3 months. During this time, the petitioner begot a child and immediately, the respondent took her
to her parental house and left her there. The petitioner gave birth to a female child on 25.9.1994 and
after five months of the delivery, the respondent took the petitioner and the child to his house. Her stay
in the matrimonial home for the second time lasted only for a few days and she was again taken to her
parental home. It is the case of the petitioner that for the last ten years, she is living separately. According
to the petitioner, her stay in the matrimonial home was tense and that her husband and his relatives
behaved very badly and rudely towards her. It is her further case that the respondent/husband did not

564

V.Geetha versus O.K.Radhakrishnan

take care of her and the child and that it was her father who used to attend to her needs. The respondent
turned a blind eye to her needs and evaded his duties and responsibilities as a husband and father. It is
further alleged by the petitioner that the respondent is residing in his own house for the last ten years
without discharging his obligations and that he has deserted her. According to her, there is no meaning in
continuing the marital relationship and, therefore, filed the application for divorce under Section 13(1)
(ia)and (ib) of the Act.
3. The respondent denied the allegations of the petitioner/wife inter alia contending that the petitioner
wanted to reside along with her parents and since he was not agreeable to this, she started residing
separately on her own accord. According to the respondent, for over two months, he had to suffer the
adamant attitude of the petitioner and finally he had to prevail upon his mother to get permission to take
the petitioner to her house. The respondent further contended that after the petitioner started residing
separately, he used to visit her twice a week and used to take her to the doctor whenever the need arose.
The petitioner has been residing in her family house for the past ten years and the respondent was
making his weekly visits till recently. He denied the allegation that he had no love or affection towards
the petitioner or that he was unconcerned about her welfare. The respondent also denied the allegation
that he was not providing her maintenance. He further contended that he intents to continue the marital
relationship with the petitioner and that no valid grounds are made out by the petitioner for seeking
divorce.
4. The petitioner and the respondent were examined as AW.1 and RW.1 respectively in support of their
respective contentions and Exts.B1 and B2 were marked on the side of the respondent. The Family Court
found that the petitioner failed to establish the grounds of desertion and cruelty. The Family Court
further found that there is no proper pleadings and evidence on the part of the petitioner to substantiate
the ground of cruelty. The Family Court also noticed that the facts spoken to by the petitioner are only
touching the wear of a normal marital life. On the basis of the above findings, the Family Court held that
the petitioner was not entitled to get a decree of divorce.
5. The marriage between the parties was solemnised on 29.8.1993. The petitioner lived with her husband
only for two to three months and she became pregnant during the said period. The petitioner as AW.1
testified that the doctor had advised her to take bed rest and prolonged treatment and that on coming to
know about the advice given by the doctor, the respondent/husband took her to her house. According to
the petitioner, the respondent was not prepared to attend to her during the period she was advised to take
bed rest and that was the reason for taking her to her house. The respondent, according to the petitioner,
was not dutiful in attending her and that it was her father who used to take her to the hospital. She also
deposed that her daughter is physically disabled due to an abnormal growth of bone and that the child
also requires continuous and permanent medical treatment. She further deposed that the respondent
is not maintaining her and the child and that she and her child are under the care and protection of
her father and their expenses are also met by her parents for the past several years. The petitioner also
spoke about her mental tension and cruelty of her husband during the period of three months that
they resided together. According to her, the mother of the respondent and other family members were
bent upon making quarrels and that they abused her many times using filthy language. She also stated
that her life in her matrimonial home was full of misery. She further testified that she was unable to get
along with the atmosphere in her matrimonial home due to the bad behaviour of her husband and the
other family members. She explained several instances of mental cruelty meted out to her. According
to her, she developed a feeling that her husband is not able to protect her and their child. Therefore,
after marriage she continued her studies and passed B.A., M.A., B.Ed and M.Phil. courses. She also
testified that the respondent had not given her any amount towards her education or other expenses.
Since the said state of affairs continued for about ten years, according to her, she was constrained to send
a lawyer's notice for ending the marital life. She also deposed that on coming to know about the filing of
the petition for divorce, the respondent/husband filed O.P. No.539 of 2004 seeking custody of the child.

565

landmark judgments OF HON'BLE MR. JUSTICE KURIAN JOSEPH ON FAMILY MATTERS

The petitioner has stated that her daughter is suffering from a peculiar disease of abnormal growth of
bone which requires regular treatment. She has been continuously attending to her child who is suffering
from excrutiating pain. She has dedicated her life for attending and protecting her child. The Original
Petition filed by the respondent for custody of the child after ten years itself is a cruel conduct.
6. The fact that the parties are living separately for the last 14 years and the fact that the respondent was
not performing the duties of a husband as well as father are sufficient to establish animus deserendi for
granting divorce in favour of the appellant. During the period of separation,the respondent/husband
never attempted or offered to have a joint living as husband and wife. This Court made every effort for a
reconciliation. The appellant and her daughter attended the Lok Adalat on 20.2.2007 as directed by this
Court and the Lok Adalat after conciliaton on 20.2.2007 and 5.3.2007reported that there is no possibility
for settlement. This Court, therefore, directed the parties to be present on 1.6.2007. This Court found
that reunion was not possible due to the attitude of the parties. For the last 14 years, the parties are living
separately. The facts and circumstances of the case conclusively prove that the parties are living separately
with the intention to end the marital life. The conduct of the parties and the facts and circumstances of
the case reveal that the parties have made up their mind to put an end to the marital relation and co-
habitation permanently.
7. Desertion is an act which implies abandonment against the wish of the person charging it. In this case,
the respondent left the matrimonial home and started residing separately. The question raised is will the
conduct amount to desertion on the part of the respondent. The Supreme Court in the decision reported
in Bipinchandra Jaisingbhai Shah v. Prabhavati, AIR 1957 SC 176 held that where the wife is forcibly
turned out of her marital home by the husband, the husband is guilty of constructive desertion. The test
is not who left the matrimonial home first. If one spouse by his words and conduct compels the other
spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who is
physically separated from the other and has been made to leave the marital home. There is no evidence
in this case to find that the wife was forcefully turned out of her matrimonial home by the husband.
The available evidence discussed above shows that the respondent/wife had put an end to the marital
relationship and co-habitation.
8. Fourteen years have elapsed since the petitioner and respondent have been separated. We find that there
is no possibility of the parties resuming normal marital life. There has been an irretrievable breakdown
of marriage between the husband and the wife. A workable solution is certainly not possible. The parties
cannot in the background of their disputes at this stage reconcile themselves and live together forgetting
their past. Because of the irretrievable breakdown of the marriage, the marriage between the parties has
been rendered a dead wood. Learned counsel appearing for the appellant submitted before us that no
purpose will be served by keeping such a marriage alive on paper which would only aggravate the agony
of the parties.
9. Irretrievable breakdown of marriage is not a ground by itself for divorce. But, while scrutinising the
evidence on record to determine whether the grounds alleged are made out and in determining the
relief to be granted, the said circumstance can certainly be borne in mind, as held by the Supreme Court
in the decision reported in Durga Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353. The
Supreme Court in the above decision, on finding that 14 years have elapsed since the husband and wife
had separated, held that there has been irretrievable breakdown of marriage between the parties and that
reunion was impossible and that the parties cannot at this stage reconcile themselves and live together
forgetting their past. The Supreme Court, therefore, held that there is no other option except to allow the
appeal and set aside the judgment of the High Court and affirm the order of the Family Court granting
decree of divorce.
10. We are convinced that no useful purpose will be served by keeping such a marriage alive on paper, it
would only aggravate the agony of the parties. In Anjana Kishore Vs. Puneet Kishore( 2002 (10) SCC

566

V.Geetha versus O.K.Radhakrishnan

194) and in Swati Verma Vs. Rajan Verma (2004 (1) SCC123 ) the Supreme court held that the marriage
between the parties has irretrievably broken down and has been rendered a dead wood. Exigency of the
situation demands the dissolution of such a marriage by a decree of divorce to put an end to the agony
and bitterness of the parties.
11. The Supreme Court observed that once the parties are separated and the separation has continued for
sufficient length of time and one of them has presented a petition for divorce, it can well be presumed
that the marriage has been broken down beyond repair. It would be unrealistic for the law not to take
notice of that fact and it would also be harmful to the society and injurious to the interests of the parties.
In the result, the appeal is allowed. The marriage between the petitioner and the respondent is dissolved
with effect from today. There will be no order as to costs.

(KURIAN JOSEPH, JUDGE)

(HARUN-UL-RASHID, JUDGE)

qqq

567

landmark judgments OF HON'BLE MR. JUSTICE KURIAN JOSEPH ON FAMILY MATTERS

568

High Court of Delhi Reconciliation is not always the restoration of status quo
ante; it can as well be a solution as acceptable to both parties.

Hon’ble Mr. Justice Kurian Joseph
Transfer Petition (Civil) No. 1278 of 2016 Santhini vs. Vijaya Venketesh

High Court of Judicature at Hyderabad

For the State of Telangana and the
State of Andhra Pradesh

Madras High Court

High Court of Karnataka High Court of Kerala

Compiled by
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Year of Publication : 2018