Place of Filing Divorce - where to file a Divorce case?

Where can a case of divorce be filed?

          After having decided to seek a divorce, the very next question comes to the mind is “Where should/could I file my divorce case?”, or “Which Court should I file my Divorce case?” or “Which Court has jurisdiction to grant me a Divorce?”

          Luckily, the Law provides for options to choose from, as far the place of filing divorce case is concerned. The places can be opted in accordance with one’s comfortableness and accessibility. 

          Any divorce case can be filed in any one of the following places; 

• Based on Place of Marriage! – Divorce case can be filed at the Place where the marriage was solemnized i.e. took place. If its in a temple the receipt issued by the temple in acknowledgement of the marriage would be a vital document. If the marriage is at one district and marriage reception at another district, the district at which marriage took place to be considered  or

  Based upon Place of Residence! (Three types )   

• (i) Where respondent resides – i.e. the petitioner can file the case in the district where the spouse (other party) resides, if it’s away from his own district, or  

• If the petition is filed by the wife, she has the option of filing it at her place of residence i.e. in her own District, or 

 

• If the spouse (other party – either husband or wife) resides at a foreign country, then the person seeking divorce can file it at his/her place of residence i.e. in his/her own District, or 

• Based upon last resided place! – A divorce case can be filed in the district where the husband and wife last resided together i.e The place where they resided at the time of separation. The couple would have resided together at numerous places after marriage due to various reason, but the only last resided place is to be considered her.
  
  

The District court of that particular district (if the district has dedicated Family Court, then in that Family Court) has power to entertain the divorce cases so filed.

When woman is not entitled to get residence order in domestic violence Act?

 A reading of the aforesaid provisions show that it creates an entitlement in favour of the woman of the right of residence under the "shared household" irrespective of her having any legal interests in the same. The direction, inter alia, can include an order restraining dispossession or a direction to remove himself on being satisfied that domestic violence had taken place.
 The facts of the present case are that the Respondent has never stayed with the Appellant in the premises in which she has been directed to be inducted. This is an admitted position even in answer to a court query by the Respondent during the course of hearing. The "domestic relationship" as defined Under Section 2 (f) of the D.V. Act refers to two persons who have lived together in a "shared household". A "shared household" has been defined Under Section 2(s) of the D.V. Act. In order for the Respondent to succeed, it was necessary that the two parties had lived in a domestic relationship in the household. However, the parties have never lived together in the property in question. It is not as if the Respondent has been subsequently excluded from the enjoyment of the property or thrown out by the Appellant in an alleged relationship which goes back 20 years. They fell apart even as per the Respondent more than 7 years ago. We may also note that till 22.2.2010 even the wife of the Appellant was alive. We may note for the purpose of record that as per the Appellant, he is a Christian and thus there could be no question of visiting any temple and marrying the Respondent by applying "kumkum", and that too when the wife of the Appellant was alive.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2500 and 2502 of 2017

Decided On: 14.07.2017

 Manmohan Attavar Vs. Neelam Manmohan Attavar

Hon'ble Judges/Coram:
Rohinton Fali Nariman and Sanjay Kishan Kaul, JJ.
Citation: (2017) 8 SCC 550

1. The Appellant is 84 years old and the Respondent is 62 years old. The Respondent seeks to establish her status as the wife/companion of the Appellant who has been left high and dry by the Appellant while on the other hand the Appellant categorically denies any such status.

2. The admitted facts are that the Respondent was married to one Shri Harish Chander Chhabra. That marriage did not work out and ultimately a consent decree for divorce was obtained on 10.10.1996. Even in the interregnum period, the Respondent claims to have developed a relationship with the Appellant starting from their introduction in 1987. It is her case that there was continuous interaction between the two and the Appellant even proposed to her in December 1993. The Appellant earned a National Award on 16.10.1996. The Respondent also claims to have been requested to travel with the Appellant to Bangalore on 30.10.1996. The Appellant's wife was alive when the Respondent claims that the Appellant took her to No. 38/1, Jayanagar, Bengaluru and that the Appellant's wife was apparently also aware of the relationship between the two parties. The Respondent claims that she resigned from the job with ICAR at the behest of the Appellant. On 10.1.1998, the Respondent claims that the Appellant applied "kumkum" to her forehead and soon thereafter he was conferred with the Padma Shri Award and the Respondent accompanied the Appellant for the felicitation ceremony on 21.3.1998.

3. It is the Respondent's claim that from 2002-2008 the Respondent was made to stay in different residences hired by the Appellant. But apparently the relationship soured. The endeavors for reconciliation, however, did not succeed. The wife of the Appellant was incidentally alive at that time and she passed away on 22.2.2010. The endeavor, prior to this, by the Respondent seeking remedy for what she claims to be her neglect, through the Women and Child Welfare Department of State of Karnataka, also did not succeed.

4. The Respondent claims to have made various efforts by approaching authorities and high dignitaries apart from police authorities but to no avail.

5. The Respondent initiated proceedings Under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the D.V. Act') on 16.9.2013 being Criminal Misc. Petition No. 179 of 2013. This case is stated to have been re-numbered as Crl. Misc. Application No. 139 of 2015. The endeavor of the Appellant seeking quashing of these proceedings before the High Court vide Criminal Writ Petition No. 6126/2013 Under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code of Criminal Procedure) did not succeed and petition was dismissed on 2.1.2015. The trial went on and at the request of the Respondent made Under Section 410 of the Code of Criminal Procedure, the application was transferred from the Court of the Metropolitan Magistrate-VI to the Court of Metropolitan Magistrate-II at Bangalore. This application was finally dismissed by the learned Metropolitan Magistrate on 30.7.2015.

6. The Respondent, aggrieved by the said order, filed Criminal Appeal No. 1070/2015 Under Section 29 of the D.V. Act on 18.8.2015 which was assigned to the learned Addl. Sessions Judge presiding over Court 67. The interim relief prayed for in this petition was, however, rejected by the learned Addl. Sessions Judge on 5.11.2015.

7. The Respondent again sought a transfer from that court and the appeal was transferred to the Court of the learned Additional Sessions Judge presiding over Court No. 53 vide order dated 16.2.2016. A second application was filed by the Respondent for stay of the impugned order for interim maintenance. The Respondent was once again aggrieved by the conduct of the proceedings during the hearing of the interim application and submitted a complaint to the High Court of Karnataka. In terms of an administrative order of the Registrar General of the High Court, the application was called upon to be decided on or before 30.4.2016. The application was rejected on 21.4.2016 as being not maintainable. The applications filed for additional evidence by the Respondent also met an adverse fate.

8. It is in the aforesaid scenario that the Respondent filed Writ petition No. 49153 of 2016 Under Articles 226 and 227 of the Constitution of India before the High Court of Karnataka praying for the transfer of Criminal Appeal No. 1070 of 2015 to the High Court itself on the ground that the order for rejection of the applications for additional evidence did not inspire faith.

9. Learned Single Judge of the High Court by an ex-parte order dated 19.9.2016, while issuing notice in the petition, stayed all further proceedings and permitted the Respondent to occupy the premises No. 38/1, 30th Cross, 3rd Main, 7th Block Jayanagar, Bengaluru, 560082 belonging to the Appellant. This interim order is subject matter of challenge before us in SLP (C) No. 32783/2016 now numbered as Civil Appeal No. 2500 of 2017.

10. On service being effected on the Appellant, the writ petition was opposed along with the prayer for vacation of the ex-parte order. It is the case of the Appellant that instead of deciding the Interlocutory Application, the Appellant was compelled to pay a lump sum amount of Rs. 30,000/- as a onetime payment. This order is stated to have been challenged in SLP No. 33150 of 2016. In fact the declining of interim relief by the appellate court was not even specifically challenged before the High Court and yet the High Court granted an ex parte order.

11. Learned Single Judge vide the subsequent order dated 24.10.2016 sought to withdraw the appeal proceedings from the learned Addl. Sessions Judge to the High Court itself and this order has been assailed in SLP No. 32534/2016 now numbered as Civil Appeal No. 2502 of 2017.

12. We have heard the contentions of the learned senior Counsel for the Appellant and have also heard the Respondent appearing in person, quite elaborately. Written submissions were filed both by the Appellant and by the Respondent. We have noticed that a large part of the submissions of the Respondent relate to the merits of the claim as to why the learned Metropolitan Magistrate fell into error while dismissing the application filed by the Respondent on 30.7.2015 Under Section 12 of the D.V. Act.

13. We may note at this stage itself that it would neither be advisable nor proper to dwell into the controversy on merits because the appeal filed by the Respondent is yet to be decided. Any observations by us at this stage could affect either of the parties in the appeal proceedings. The controversy before us is in a very narrow compass. We thus set forth the controversy-

(i) Whether an interim order could have been passed on 19.9.2016 permitting the Respondent to occupy the premises of the Appellant;

(ii) Whether the learned Single Judge was right in withdrawing the proceedings pending before the learned Addl. Sessions Judge to the High Court vide the impugned order dated 24.10.2016.

14. Insofar as the first question is concerned, reliance has been placed by the Respondent on the provisions of the D.V. Act and the desirability to construe the provisions liberally in favour of women seeking relief, as it is in the nature of a social legislation meant for protection of women's rights. In order to appreciate the controversy, we reproduce the relevant provisions as under:

17. Right to reside in a shared household.-

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the Respondent save in accordance with the procedure established by law.

................................................

19. Residence orders.-(1) While disposing of an application Under Sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-(a) restraining the Respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the Respondent has a legal or equitable interest in the shared household;

(b) directing the Respondent to remove himself from the shared household;

(c) restraining the Respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the Respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the Respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the Respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order Under Clause (b) shall be passed against any person who is a woman. ............................................................

15. A reading of the aforesaid provisions show that it creates an entitlement in favour of the woman of the right of residence under the "shared household" irrespective of her having any legal interests in the same. The direction, inter alia, can include an order restraining dispossession or a direction to remove himself on being satisfied that domestic violence had taken place.

16. The factual matrix of the present case is such that one would have to look to the definition clauses relevant for the determination of the controversy contained in Section 2 as under:

2(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

.................................................

2(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the Respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the Respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the Respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the Respondent is a member, irrespective of whether the Respondent or the aggrieved person has any right, title or interest in the shared household.

.................................................................

17. The facts of the present case are that the Respondent has never stayed with the Appellant in the premises in which she has been directed to be inducted. This is an admitted position even in answer to a court query by the Respondent during the course of hearing. The "domestic relationship" as defined Under Section 2 (f) of the D.V. Act refers to two persons who have lived together in a "shared household". A "shared household" has been defined Under Section 2(s) of the D.V. Act. In order for the Respondent to succeed, it was necessary that the two parties had lived in a domestic relationship in the household. However, the parties have never lived together in the property in question. It is not as if the Respondent has been subsequently excluded from the enjoyment of the property or thrown out by the Appellant in an alleged relationship which goes back 20 years. They fell apart even as per the Respondent more than 7 years ago. We may also note that till 22.2.2010 even the wife of the Appellant was alive. We may note for the purpose of record that as per the Appellant, he is a Christian and thus there could be no question of visiting any temple and marrying the Respondent by applying "kumkum", and that too when the wife of the Appellant was alive.

18. We are thus unequivocally of the view that the nature of the ex-parte order passed on 19.9.2016 permitting the Respondent to occupy the premises of the Appellant cannot be sustained and has to be set aside and consequently Civil Appeal No. 2500 of 2017 is liable to be allowed.

19. Now turning to the second controversy, a perusal of the impugned order shows that the learned Single Judge found the remedy sought for by the Respondent to be "misconceived". However, the learned Judge found it appropriate to treat the petition as one Under Section 407 of the Code of Criminal Procedure The learned Single Judge has expressed the view that the appellate court ought to have called upon the Respondent to argue the appeal rather than spend time on interim reliefs, which was not maintainable in the face of the earlier order resulting in a predictable order.

20. We fail to appreciate the aforesaid observations when the Respondent herself sought once again to press for interim relief and applications to adduce additional evidence. Learned ASJ can hardly be faulted on this account. The learned Single Judge has also given latitude to the Respondent on account of her appearing in person whereby she may not have documented the bits and pieces of her past with the intention of initiating the proceedings which she was pursuing. In the conspectus of the same, the appeal has been withdrawn to the High Court itself.

21. The grievance of the Appellant against this order is that the valuable rights of the Appellant of an additional forum to ventilate his grievance would be lost as against any decision in appeal. A remedy of revision Under Section 327 of the Code of Criminal Procedure would be available or a writ petition Under Article 227 of the Constitution of India. In this behalf reliance has been placed on what is claimed to be a settled legal position, more particularly, the Constitutional Bench judgment of 7 Judges of this Court in A.R. Antulay v. Ram Naik MANU/SC/0002/1988 : (1988) 2 SCC 602.

22. It is also the contention of the Appellant that such transfer cannot take place at the whims and fancy of the Respondent. The Respondent, whenever she fails to obtain a favourable order, chooses to file proceedings for transfer whether it be before the MM or before the appellate court. It is submitted that this approach ought not to be encouraged.

23. On examination of the issue, we tend to agree with the submission of the learned senior Counsel for the Appellant that there was no reason for the proceedings to be withdrawn from the appellate court to the High Court itself. There is not only absence of the reason for the same but it would also result in the deprivation of valuable rights of the Appellant against the order of an appellate authority and thus an additional forum for scrutiny was being negated.

24. We are unable to agree with the reasoning of the learned Single Judge nor can we fault the appellate authority on any account which could have necessitated such withdrawal of the proceedings to the High Court.

25. We may also note the concession made by the learned senior Counsel for the Appellant in court that in the scenario the matter can be entrusted to any ASJ in Bangalore as there are a large number of the same holding court.

26. We thus set aside even the order dated 24.10.2016 and allow Civil Appeal No. 2502/2017. We request the learned Chief Justice of the High Court on the administrative side to nominate any of the ASJs in Bangalore to hear the appeal of the Respondent and the appellate authority shall endeavor to conclude the proceedings as expeditiously as possible.

27. The appeals are accordingly allowed leaving the parties to bear their own costs with the hope that there would be an early end to this contentious dispute between the two parties.
 A reading of the aforesaid provisions show that it creates an entitlement in favour of the woman of the right of residence under the "shared household" irrespective of her having any legal interests in the same. The direction, inter alia, can include an order restraining dispossession or a direction to remove himself on being satisfied that domestic violence had taken place.
 The facts of the present case are that the Respondent has never stayed with the Appellant in the premises in which she has been directed to be inducted. This is an admitted position even in answer to a court query by the Respondent during the course of hearing. The "domestic relationship" as defined Under Section 2 (f) of the D.V. Act refers to two persons who have lived together in a "shared household". A "shared household" has been defined Under Section 2(s) of the D.V. Act. In order for the Respondent to succeed, it was necessary that the two parties had lived in a domestic relationship in the household. However, the parties have never lived together in the property in question. It is not as if the Respondent has been subsequently excluded from the enjoyment of the property or thrown out by the Appellant in an alleged relationship which goes back 20 years. They fell apart even as per the Respondent more than 7 years ago. We may also note that till 22.2.2010 even the wife of the Appellant was alive. We may note for the purpose of record that as per the Appellant, he is a Christian and thus there could be no question of visiting any temple and marrying the Respondent by applying "kumkum", and that too when the wife of the Appellant was alive.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2500 and 2502 of 2017

Decided On: 14.07.2017

 Manmohan Attavar Vs. Neelam Manmohan Attavar

Hon'ble Judges/Coram:
Rohinton Fali Nariman and Sanjay Kishan Kaul, JJ.
Citation: (2017) 8 SCC 550

1. The Appellant is 84 years old and the Respondent is 62 years old. The Respondent seeks to establish her status as the wife/companion of the Appellant who has been left high and dry by the Appellant while on the other hand the Appellant categorically denies any such status.

2. The admitted facts are that the Respondent was married to one Shri Harish Chander Chhabra. That marriage did not work out and ultimately a consent decree for divorce was obtained on 10.10.1996. Even in the interregnum period, the Respondent claims to have developed a relationship with the Appellant starting from their introduction in 1987. It is her case that there was continuous interaction between the two and the Appellant even proposed to her in December 1993. The Appellant earned a National Award on 16.10.1996. The Respondent also claims to have been requested to travel with the Appellant to Bangalore on 30.10.1996. The Appellant's wife was alive when the Respondent claims that the Appellant took her to No. 38/1, Jayanagar, Bengaluru and that the Appellant's wife was apparently also aware of the relationship between the two parties. The Respondent claims that she resigned from the job with ICAR at the behest of the Appellant. On 10.1.1998, the Respondent claims that the Appellant applied "kumkum" to her forehead and soon thereafter he was conferred with the Padma Shri Award and the Respondent accompanied the Appellant for the felicitation ceremony on 21.3.1998.

3. It is the Respondent's claim that from 2002-2008 the Respondent was made to stay in different residences hired by the Appellant. But apparently the relationship soured. The endeavors for reconciliation, however, did not succeed. The wife of the Appellant was incidentally alive at that time and she passed away on 22.2.2010. The endeavor, prior to this, by the Respondent seeking remedy for what she claims to be her neglect, through the Women and Child Welfare Department of State of Karnataka, also did not succeed.

4. The Respondent claims to have made various efforts by approaching authorities and high dignitaries apart from police authorities but to no avail.

5. The Respondent initiated proceedings Under Section 12 of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'the D.V. Act') on 16.9.2013 being Criminal Misc. Petition No. 179 of 2013. This case is stated to have been re-numbered as Crl. Misc. Application No. 139 of 2015. The endeavor of the Appellant seeking quashing of these proceedings before the High Court vide Criminal Writ Petition No. 6126/2013 Under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code of Criminal Procedure) did not succeed and petition was dismissed on 2.1.2015. The trial went on and at the request of the Respondent made Under Section 410 of the Code of Criminal Procedure, the application was transferred from the Court of the Metropolitan Magistrate-VI to the Court of Metropolitan Magistrate-II at Bangalore. This application was finally dismissed by the learned Metropolitan Magistrate on 30.7.2015.

6. The Respondent, aggrieved by the said order, filed Criminal Appeal No. 1070/2015 Under Section 29 of the D.V. Act on 18.8.2015 which was assigned to the learned Addl. Sessions Judge presiding over Court 67. The interim relief prayed for in this petition was, however, rejected by the learned Addl. Sessions Judge on 5.11.2015.

7. The Respondent again sought a transfer from that court and the appeal was transferred to the Court of the learned Additional Sessions Judge presiding over Court No. 53 vide order dated 16.2.2016. A second application was filed by the Respondent for stay of the impugned order for interim maintenance. The Respondent was once again aggrieved by the conduct of the proceedings during the hearing of the interim application and submitted a complaint to the High Court of Karnataka. In terms of an administrative order of the Registrar General of the High Court, the application was called upon to be decided on or before 30.4.2016. The application was rejected on 21.4.2016 as being not maintainable. The applications filed for additional evidence by the Respondent also met an adverse fate.

8. It is in the aforesaid scenario that the Respondent filed Writ petition No. 49153 of 2016 Under Articles 226 and 227 of the Constitution of India before the High Court of Karnataka praying for the transfer of Criminal Appeal No. 1070 of 2015 to the High Court itself on the ground that the order for rejection of the applications for additional evidence did not inspire faith.

9. Learned Single Judge of the High Court by an ex-parte order dated 19.9.2016, while issuing notice in the petition, stayed all further proceedings and permitted the Respondent to occupy the premises No. 38/1, 30th Cross, 3rd Main, 7th Block Jayanagar, Bengaluru, 560082 belonging to the Appellant. This interim order is subject matter of challenge before us in SLP (C) No. 32783/2016 now numbered as Civil Appeal No. 2500 of 2017.

10. On service being effected on the Appellant, the writ petition was opposed along with the prayer for vacation of the ex-parte order. It is the case of the Appellant that instead of deciding the Interlocutory Application, the Appellant was compelled to pay a lump sum amount of Rs. 30,000/- as a onetime payment. This order is stated to have been challenged in SLP No. 33150 of 2016. In fact the declining of interim relief by the appellate court was not even specifically challenged before the High Court and yet the High Court granted an ex parte order.

11. Learned Single Judge vide the subsequent order dated 24.10.2016 sought to withdraw the appeal proceedings from the learned Addl. Sessions Judge to the High Court itself and this order has been assailed in SLP No. 32534/2016 now numbered as Civil Appeal No. 2502 of 2017.

12. We have heard the contentions of the learned senior Counsel for the Appellant and have also heard the Respondent appearing in person, quite elaborately. Written submissions were filed both by the Appellant and by the Respondent. We have noticed that a large part of the submissions of the Respondent relate to the merits of the claim as to why the learned Metropolitan Magistrate fell into error while dismissing the application filed by the Respondent on 30.7.2015 Under Section 12 of the D.V. Act.

13. We may note at this stage itself that it would neither be advisable nor proper to dwell into the controversy on merits because the appeal filed by the Respondent is yet to be decided. Any observations by us at this stage could affect either of the parties in the appeal proceedings. The controversy before us is in a very narrow compass. We thus set forth the controversy-

(i) Whether an interim order could have been passed on 19.9.2016 permitting the Respondent to occupy the premises of the Appellant;

(ii) Whether the learned Single Judge was right in withdrawing the proceedings pending before the learned Addl. Sessions Judge to the High Court vide the impugned order dated 24.10.2016.

14. Insofar as the first question is concerned, reliance has been placed by the Respondent on the provisions of the D.V. Act and the desirability to construe the provisions liberally in favour of women seeking relief, as it is in the nature of a social legislation meant for protection of women's rights. In order to appreciate the controversy, we reproduce the relevant provisions as under:

17. Right to reside in a shared household.-

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the Respondent save in accordance with the procedure established by law.

................................................

19. Residence orders.-(1) While disposing of an application Under Sub-section (1) of Section 12, the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order-(a) restraining the Respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the Respondent has a legal or equitable interest in the shared household;

(b) directing the Respondent to remove himself from the shared household;

(c) restraining the Respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the Respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the Respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the Respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order Under Clause (b) shall be passed against any person who is a woman. ............................................................

15. A reading of the aforesaid provisions show that it creates an entitlement in favour of the woman of the right of residence under the "shared household" irrespective of her having any legal interests in the same. The direction, inter alia, can include an order restraining dispossession or a direction to remove himself on being satisfied that domestic violence had taken place.

16. The factual matrix of the present case is such that one would have to look to the definition clauses relevant for the determination of the controversy contained in Section 2 as under:

2(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

.................................................

2(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the Respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the Respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the Respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the Respondent is a member, irrespective of whether the Respondent or the aggrieved person has any right, title or interest in the shared household.

.................................................................

17. The facts of the present case are that the Respondent has never stayed with the Appellant in the premises in which she has been directed to be inducted. This is an admitted position even in answer to a court query by the Respondent during the course of hearing. The "domestic relationship" as defined Under Section 2 (f) of the D.V. Act refers to two persons who have lived together in a "shared household". A "shared household" has been defined Under Section 2(s) of the D.V. Act. In order for the Respondent to succeed, it was necessary that the two parties had lived in a domestic relationship in the household. However, the parties have never lived together in the property in question. It is not as if the Respondent has been subsequently excluded from the enjoyment of the property or thrown out by the Appellant in an alleged relationship which goes back 20 years. They fell apart even as per the Respondent more than 7 years ago. We may also note that till 22.2.2010 even the wife of the Appellant was alive. We may note for the purpose of record that as per the Appellant, he is a Christian and thus there could be no question of visiting any temple and marrying the Respondent by applying "kumkum", and that too when the wife of the Appellant was alive.

18. We are thus unequivocally of the view that the nature of the ex-parte order passed on 19.9.2016 permitting the Respondent to occupy the premises of the Appellant cannot be sustained and has to be set aside and consequently Civil Appeal No. 2500 of 2017 is liable to be allowed.

19. Now turning to the second controversy, a perusal of the impugned order shows that the learned Single Judge found the remedy sought for by the Respondent to be "misconceived". However, the learned Judge found it appropriate to treat the petition as one Under Section 407 of the Code of Criminal Procedure The learned Single Judge has expressed the view that the appellate court ought to have called upon the Respondent to argue the appeal rather than spend time on interim reliefs, which was not maintainable in the face of the earlier order resulting in a predictable order.

20. We fail to appreciate the aforesaid observations when the Respondent herself sought once again to press for interim relief and applications to adduce additional evidence. Learned ASJ can hardly be faulted on this account. The learned Single Judge has also given latitude to the Respondent on account of her appearing in person whereby she may not have documented the bits and pieces of her past with the intention of initiating the proceedings which she was pursuing. In the conspectus of the same, the appeal has been withdrawn to the High Court itself.

21. The grievance of the Appellant against this order is that the valuable rights of the Appellant of an additional forum to ventilate his grievance would be lost as against any decision in appeal. A remedy of revision Under Section 327 of the Code of Criminal Procedure would be available or a writ petition Under Article 227 of the Constitution of India. In this behalf reliance has been placed on what is claimed to be a settled legal position, more particularly, the Constitutional Bench judgment of 7 Judges of this Court in A.R. Antulay v. Ram Naik MANU/SC/0002/1988 : (1988) 2 SCC 602.

22. It is also the contention of the Appellant that such transfer cannot take place at the whims and fancy of the Respondent. The Respondent, whenever she fails to obtain a favourable order, chooses to file proceedings for transfer whether it be before the MM or before the appellate court. It is submitted that this approach ought not to be encouraged.

23. On examination of the issue, we tend to agree with the submission of the learned senior Counsel for the Appellant that there was no reason for the proceedings to be withdrawn from the appellate court to the High Court itself. There is not only absence of the reason for the same but it would also result in the deprivation of valuable rights of the Appellant against the order of an appellate authority and thus an additional forum for scrutiny was being negated.

24. We are unable to agree with the reasoning of the learned Single Judge nor can we fault the appellate authority on any account which could have necessitated such withdrawal of the proceedings to the High Court.

25. We may also note the concession made by the learned senior Counsel for the Appellant in court that in the scenario the matter can be entrusted to any ASJ in Bangalore as there are a large number of the same holding court.

26. We thus set aside even the order dated 24.10.2016 and allow Civil Appeal No. 2502/2017. We request the learned Chief Justice of the High Court on the administrative side to nominate any of the ASJs in Bangalore to hear the appeal of the Respondent and the appellate authority shall endeavor to conclude the proceedings as expeditiously as possible.

27. The appeals are accordingly allowed leaving the parties to bear their own costs with the hope that there would be an early end to this contentious dispute between the two parties.

Defamation cases

Requirements and conditions 

There are certain basic requirements for a successful defamation suit: 

*First,* 
The presence of defamatory content is required. Defamatory content is defined as one calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule. However, the test for such content is the ordinary man test where meaning of the content is considered to be what a common, ordinary man will comprehend it to be. 

*Second,* 
The claimant should be identified in the defamatory statement. The content must be clearly addressing a particular person or a very small group for it to be defamation. General statements like “All lawyers are thieves or all politicians are corrupt” are too broad a classification and hence no particular lawyer or politician can consider it to be personally attributed to them. Therefore, such statements are not defamation. 

*Third,*
 There must be a publication of the defamatory statement in either oral or written form. Unless the content is published – made available to someone other than the claimant, there can no defamation. Under a civil suit, once all these conditions are satisfied, a defamation suit subsists, and the defendant has to plead a privilege or take up a defense. If the defendant fails to do so satisfactorily, the defamation suit is successful. Under a criminal suit, intention to defame is an important element. In the absence of intention, the knowledge that the publication was likely to defame or is defamatory becomes essential. All this is further subject to the normal standard of proof in criminal cases, beyond reasonable doubt.

*Some* *Common* *Defenses* *to* *Defamation*

*Truth*

As a general rule, it is not defamation to impute anything, which is true, concerning any person. In India, truth is an absolute defense in Civil Cases however; in Criminal cases, the true statement must also be an imputation for public good. Therefore, irrespective of the intentional of an individual, no defamation suit can be brought against someone if he imputes something true (and for public good under section 499, IPC).

*Privilege*

Individual may be protected from claims of defamation under tort or even criminal defamation by a privilege conferred on them by law. Absolute privilege irrespective of intention to defame is conferred upon Government officials, Judges and other such public officials in discharge of their public functions by the law. Journalists are however given Qualified privilege, valid only if made without the intention to defame. Exception 10 under section 499 IPC further expands on this and allows exception for good faith imputation to caution other or the public.

*Fair* *Comment*

In case of defamatory opinions, the exception of fair comment is allowed. The publication has to be clearly expressed as an opinion and should not mixed up with facts. Also, the opinion should be one that a fair-minded person is capable of holding such opinion even if the reasoning is illogical. These are the broad categories of defense under Defamation. There is a lot of other categories which are generally offshoots of these broader ones.

Advocate office instructions - on a lighter note

An Advocate wrote this in his office for his clients

My expectations from my client

• Please bring your old case records but don't bring your opinion about your old advocate... I am no better than him/her...

• Wait patiently in the queue...

• My phone is for EMERGENCY...

• If you want, please do wish me when u meet me in a marriage or birthday party or a hotel but don't discuss your matter problems there also...

• Don't praise me that I saved you, because I didn't do anything extra, it's my duty to work . It is God who heals, but when there is a complication please understand it's also His wish... Many complications, adverse effects of law are not my work... It's sometimes your own instructions which responds in a peculiar way...

• If you are not happy with my work, go away to my brother or sister colleague, don't just waste your time...

• Take my advice, don't read internet and decide about your Matter *, I *don't repair my computer seeing instructions on internet, so also you can't get advice on Google...

• Come prepared with your complaints... I am happy if you write and bring especially points and I can answer your points well...

• Don't answer your mobile in my cabin, keep it on SILENT mode and LISTEN to me...

• I end acknowledging that I am called an Advocate only because of you... When you are in my cabin, you are only my "CLIENT" and NOT an Officer or Minister or Media Man or Teacher

• and in the end I remind you that I too am a Human Being like you...

Thank You...

Secondary Evidence

Landmark judgment on secondary evidence

Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.

Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.

The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases

Evidence Act, 1872--Sections 63 and 65 (a)--Secondary evidence--Admissible only in absence of primary evidence--If original itself found to be inadmissible through failure of party--Same party not entitled to introduce secondary evidence of its contents--In order to enable party to produce secondary evidence--It is necessary for party to prove existence and execution of original document--Conditions laid down in Section 65 must be fulfilled before secondary evidence can be admitted.

Supreme Court of India

Smt. J. Yashoda vs Smt. K. Shobha Rani on 19 April, 2007
Citation; AIR2007SC1721, 2007(3)ALLMR(SC)823,
Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta

Cruelty as a Ground of Divorce

What is Divorce?

Divorce means a Decree (order of court) whereby the Court orders for the Dissolution of Marriage.  

What are the grounds of Divorce?

          Under Section 12 of the Hindu Marriage Act the following are the grounds of Divorce.

(i)               Adultery

(ii)            Cruelty – Physical and Mental

(iii)          Desertion – One of the spouse have moved away from other

(iv)          The spouse is of unsound mind/Mental disorder

(v)             The spouse is suffering from incurable form of leprosy

(vi)          The spouse is suffering from venereal disease

(vii)        The spouse had renounced the world

(viii)     The spouse is unheard as being alive for seven preceding years.

Cruelty is a voluntary and uncalled-for act, causing danger or fear of danger to Life, or causing injury or fear of causing injury, physical or mental.  

            Cruelty can be either Physical Cruelty or Mental cruelty. In the case of physical cruelty the effects would be tangible i.e. Visible and the Proving of the same before the Court of Law would be easy as the Court would easily ascertain whether the ground of Divorce is proved or not.

            Mental cruelty can and should be proved by the circumstances. The Supreme Court of India have consistently with its Judgements have enlarged the scope of Mental Cruelty as a ground for Divorce. There is no Hard and fast rule as to what constitutes Mental Cruelty. Further, a single incident causing mental agony can’t also be termed as mental cruelty. A consistency should be prevalent to prove the case of Mental Cruelty.

            Following are the few incidents which The Court has held as to facts constituting Metal Cruelty.

(i)          Mere lack of love or affection will not amount to cruelty. But, "Rude behaviour, using filthy or abusive language" showing indifference in the way the spouse treats and neglecting for no reason consistently for long period would amount to cruelty.

(ii)        Consistent humiliating behaviour/ treating disrespectfully, intended to torture and agonize mentally would amount to Cruelty. 

(iii)     If the wife without the consent or approval of the Husband undergoes abortion without any valid medical reasons, or undergoes vasectomy operation without the consent or approval of the Husband then that would amount to act of cruelty. Similarly if the husband without the consent or approval of the wife undergoes an sterilization operation without any valid medical reasons then that would amount to act of cruelty 

(iv)      When the Husband/Wife makes ‘false allegations’ against the other of having illegal/illicit relationship or extramarital affairs with some other person (in their written statement) then such act Constitutes Mental Cruelty. The Court held that The Husband or Wife can’t be reasonably expected to continue the Matrimonial relationship after Such False allegation has been made.

(v)        When the Wife makes a "false complaint" about the Husband and or about his parents or relatives and as a result they were put behind the Bars then in such a situation though the Cruelty couldn’t be proved, the Court held that the Husband can’t be reasonably expected to live with the wife and as such the Divorce was granted.  

(vi)      Threatening to commit suicide often also amounts to Committing cruelty on the other spouse. The Court has held that such threats should be consistent and it should not be out of the domestic tiff or tussle, in the normal course of matrimonial Bond. The threat should be intentional so as to cause mental agony and suffering to the other.

(vii)    When one of the Spouses refuses to have sexual intercourse for a considerable period without any valid reasons (due to any medical reasons or physical incapacity) then such act would constitute Mental Cruelty.

(viii) When one of the Spouses decides to not have a child out of the Wedding lock and acts in furtherance of the same without the consent of the other, would amount to mental cruelty.

(ix)      The husband after stating that he doesn’t like to be in the company of the wife but forces her to stay with him in the matrimonial home to keep with the social status amounts to mental cruelty.

(x)        When one of the Spouses is seriously ill and the other spouse neglects to take care of the seriously ill husband /wife then such act of neglect would constitute mental cruelty.

(xi)      The Conduct of one spouse is such that it causes fear in the mind of the other spouse about his or her mental welfare, then such conduct shall be termed as Mental Cruelty.

(xii)   The Demand of Dowry is Mental Cruelty. Treating the wife with disrespect or torturing her with a view to obtain dowry  is also a ground for divorce. The act of Demand when made by the family members of the husband and the Husband doesn't object to the same would also constitute mental cruelty.