Be Your Own Lawyer

Kush Kalra, Luv Kalra

• Publisher: VIJ Books (India) Pty Ltd
• Year: 2013
• ISBN:
  9789382573654
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

It is essential for the layman to have at least a broad prospective of the provisions of law which come into play in our daily lives and work. The Lay reader will surely find this book very useful as the most interesting judgments of courts are put in this book in a very simple and effective manner. One can profitably read through this book and also dip into its pages when confronted with a legal problem." Be Your Own Lawyer" book is an attempt to provide a forum for discussion and debate on all kinds of legal and social issues that confront us today. In the first issue of the book varied subjects like Criminal Law, Constitution Law, Right to Information, Civil law and Family Law have been covered. Various Judgments of Courts are presented in this book which will help common man in their day to day life. This book will be an asset for all those who are keen to know about Law.

1

Abortion Without Consent is A Ground For
Divorce¹

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

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

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

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

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

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

Decision by Supreme Court: Confirming the decree of divorce on the ground of mental cruelty³ as held by both the courts, i.e. the trial Court as well as by the High Court, no relief can be granted so far as the reversal of decree of the courts below is concerned. At the same time, however, in Supreme Court Judges opinion, the respondent-husband should not have re-married before the expiry of period stipulated for filling Special Leave to Appeal in this Court by the wife. Therefore to meet the ends of justice the respondent -husband to pay an amount of Rs Five lakhs to the appellant wife.

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¹ Appellants: Suman Kapur Vs. Respondent: Sudhir Kapur AIR2009SC589, 2009(1) ALD33(SC) Hon’ble Judges: C. K. Thakker and D. K. Jain, JJ.

² Section13 of Hindu Marriage Act, 1955 Divorce.-

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) is living in adultery; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or

(iv) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or

(v) had, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; or

(viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or

(ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

³ In V. Bhagat v. MANU/SC/0155/1994 : D. Bhagat (Mrs.) AIR1994SC710, the Court observed;

Mental Cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse.

2

Benefit of Maintenance Cannot be Denied to
Minor ¹

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

Decision by High Court: The court held that Even a wife who has been divorced under Muslim Law is entitled to claim maintenance under Section 125 Cr.P.C.³ after Iddat period. The court makes it crystal clear that even a Muslim divorced woman would be entitled to claim maintenance from a Muslim husband till she has not married.

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

Reference by High Court to Supreme Court Judgment: Supreme Court in Shabana Bano v Imran Khan⁴ had observed that petition under Section 125 Cr.P.C would be maintainable (for the wife) before Family Courts so long as she does not remarry and the amount of maintenance to be awarded under Section 125 Cr.P.C. cannot be restricted for Iddat period only.

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¹ Appellants: Gulam Rashid Ali Vs. Respondent: Kaushar Parveen and Anr. 171(2010)DLT340 Hon’ble Judges: Shiv Narayan Dhingra, J.

² Section 3. Mahr or other properties of Muslim woman to be given to her at the time of divorce. - (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-

(b) where she herself maintains the children born to before or after the divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective date of birth of such children;

³ Section 125 Cr.P.C., 1973: Order for Maintenance of wives, children and parents (1) If any person leaving 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

(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.

⁴ Crl. Appeal No. 2309/2009 decided on 4^th December, 2009

3

Infertility is Not a Ground for Divorce¹

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

Table of contents

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