Discord in Marriages

Black is the colour of power, Black is the Colour of Dark,

Black is the Colour of Style, Black is the Colour of Sorrow,

Black is also the Colour of Pain, Black is also the Colour of fear,

Black is also the Colour of Horror, Black is also the Colour of failure,

Black is also the Colour of losers, Black is also a Colour of Success,

Black is the Colour which is inevitable in your life, you have to know and understand that such colour either can show your prosperity or show your failure. Life is full of ups and down, after marriage your life really depends on how your partner is and on that basis your life moves in upward or downward direction. I have come across many cases in my limited experience in field of law where I see the matrimonial disputes between husband and wife becoming gruesome. It is so awful to see that Court has to interfere/intervene in someone else life. I am not saying that Court should not interfere in cases where one is deprived of his/her basic rights but ultimately over empowering and weakening any gender is dangerous proposition for socio-economics. So court has immense responsibility to strike a balance in society and thus Article 14 of Indian Constitution may always be considered by any Court before passing any order. Institution of marriage requires many niceties but among them the most important is Trust and Love for each other, understanding is mere an adjustment which one makes just to live peacefully. In some cases it is observed that a partner disturb the mental peace of the other partner and enters a very personal space of other human, which can annoy any stable human being. One can get disturbed, be perturbed, angry, responsive and some time responsively violent and it can be termed as domestic violence. So I always wondered that is it only that a violence can be done by male to female in marriage, I wonder and ask myself that aren’t some situation as given below occurring in the contemporary society, which could also be considered or termed as domestic violence:

1. Not talking properly, rudely or being arrogant to her partner
2. Not having cordial relation with in-laws
3. Having a verbal dispute unnecessarily with partner or family
4. Being violent and abusive towards her partner (yes this is possible a girl with good physique and self-defence trained can use it when they seem necessary)
5. Being self-centred and not focusing towards having a family life
6. Not helping in house hold chores
7. Insulting a partner in front of others
8. Not being helpful towards finances despite a wife being earning partner
9. Having a extra-martial affair
10. Not being mentally fit for marriage (These days such test has become very essential, it is as important as to get a HIV test before marriage)
11. Being over ambitious and not spending time for family
12. Not taking care of old aged in laws or asking a separate living 

These examples may not be an exhaustive list and there could be many more such examples faced by a male. As enumerated above in all such circumstance a male could also face domestic violence and thus if he does not have any remedy to these then it can be a great catastrophe. There is a saying in Hindi “Talli ek haat se nahi bajti” which means a sound of clap cannot be made with one hand thus it all depends how two individuals live and how they want to live and holding a male responsible/liable for any act of disturbance in family does not always amount to domestic violence and does not attract maintenance. The provisions of 498A of The Indian Penal Code has been frequently and rampantly been misused and there are many male who are aggrieved and there are many family and senior citizen who have broken apart with false criminal prosecution and burden of heavy maintenance, as found in some cases. I am thankful that pursuant to Hon’ble Supreme Court took a decision in Rajesh Sharma Vs. State of U.P. [AIR 2017 SC 3869 : 2017 (8) SCALE 313], there might be some relief at least to some in cases of 498A. Therefore when I came to know about an Act i:e The Protection of Women Against Domestic Violence Act, 2005 which gives exclusive power to women to seek for a help before a Court if she is deprived of her rights if she has faced a domestic violence, I wondered that why is Domestic Violence Act is absolutely violative of Article 14 of Constitution of India and why did the legislators not anticipate any such scenario for a male. I am happy that this law empowers a women but it just cannot be gender specific. So does a male have to be scared before marriage that if he gets married then he might not get Equality before the law, he might not get Equal Protection of Law, a male may be discriminated because he is male. It is often felt and seen that there are many laws and implementation of it are seldom, however it is often seen that abuse of process of law is often made by a party. I wonder a woman living in rural areas are also equally benefitted with these laws, on the contrary there might be instances where a woman is abused and succumbed to physical and mental violence but they never see or approach a Court due to societal stigma, yes it is strange but it does happen. There might be instances in rich and affluent family where a women succumbs and suffers to mental and physical abuse continuously but she does not approach a Court because to support her family financially. Thus sometime rather than doing Justice in case it is more important to see whether truth and Justice will prevail or not (Bonus judex secundum aequum et bonum judicat et aequitatem stricto juri praefert- A good judge decides according to justice and right and prefers equity to strict law), therefore it is very important to strike a balance.  

A recent Judgement of Hon’ble Supreme Court has tried to strike a balance in case of Rajnesh Vs. Neha in Criminal Appeal 730 of 2020 [2020 GLH (4) 727 : 2020 SSCOnline SC 903 ] where the Hon’ble Supreme Court has cleared various ambiguities arising in matrimonial cases and determining quantum of maintenance, the date from which maintenance is to be awarded and enforcement of orders of maintenance. The below given is a gist of interpretation on the Judgment by the Hon’ble Judges of Supreme Court in case of Rajnesh Vs. Neha, which is to be followed by the Family Court/ District Court/Magistrate Courts throughout the Country. The views and interpretations given hereinunder are independent in nature though the language may have been adopted from said Judgement.

• It has now become mandatory for all the applicant to disclose the details of previous proceeding including the orders passed in cases for maintenance, any party who wishes to seek any modification or variation to be done in any order then such modification and variation can be done only in that same proceedings.

• Where successive claims for maintenance are made by a party under different statutes  (such as S.125 of Code of Criminal Procedure, S.20 of the Protection of Women under Domestic Violence Act, S.24 of The Hindu Marriage Act, S.18 of The Hindu Adoption and Maintenance Act) then in such cases the Concerned Court where a subsequent application for maintenance is preferred would consider an adjustment or set-off, of the amount awarded in the previous proceeding, while determining whether any further amount is to be awarded in the subsequent proceeding.    

• For getting an order on interim maintenance, the applicant shall have to initially file an affidavit of disclosure of Assets and Liabilities, the respondent must submit the reply along with the affidavit of disclosure within maximum period of four weeks, the Court may not grant more than two opportunities to respondent for submission of such affidavit of Assets and Liabilities, the Court shall have power to strike off the defence of the respondent if the respondent is found to be wilfully and contumaciously adopting a dilatory tactics and is seeking more than two opportunities to file such disclosure affidavit. On failure to file the disclosure affidavit the family Court may proceed to decide the application for maintenance on the basis of the affidavit filed by the applicant and the pleadings on record. In case the parties belong to Economically Weaker Sections (“EWS”), or are living below the Poverty Line (“BPL”), or are casual labourers, the requirement of filing the Affidavit would be dispensed with. (The format of such disclosure affidavit is given at the end of the judgment, the same can be downloaded at end of this article.)

• The Concerned Family Court/ District Court/ Magistrate’s Court must make an endeavour to decide the Interlocutory Application for Interim Maintenance by a reasoned order within a period of four to six months at the latest, after the affidavit of disclosure have been filed before the court.

• If there is any dispute with respect to the declaration made in the affidavit of disclosure, the aggrieved party may seek permission of the Court to serve interrogatories, and seek production of relevant documents from the opposite party under Order XI of the Code of Civil Procedure(CPC); 

• The pleadings made in the applications for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding u/S. 340 of Cr.P.C. and for contempt of Court.

• The Family Court across the country shall ensure that a professional marriage counsellor is made available in every such Family Court premises and due procedure for amicable resolution to the dispute in marriage can be resolved between the parties

• Interestingly the Hon’ble Supreme Court has also observed that in cases where a marriage do not last for a reasonable length of time, it may be inequitable to direct the contesting spouse to pay permanent alimony to the applicant for the rest of the life. The duration of the marriage would be relevant factor to be taken into consideration for determining the permanent alimony. The parties shall be entitled to lead oral and documentary evidence with respect to income, expenditure, standard of living, etc. before the concerned Court, for fixing the permanent alimony payable to the spouse.

• The Hon’ble Supreme Court has also categorically observed that several ambiguities are seen while awarding and fixing the period from which the maintenance is to be awarded and thus the Hon’ble Supreme Court vide this Judgment held that the right to claim maintenance must be awarded from the date of filing of such application, since the period during which the maintenance proceeding remained pending is not within the control of the applicant. 

• The Hon’ble Supreme Court has also observed that the Concerned Court before which application of maintenance is preferred shall take into account a) Age and employment of parties b) right to residence c) if wife is earning some income d) maintenance of minor child e) serious disability or ill health, the Hon’ble Apex Court held that obligation of the husband to provide maintenance stands on higher pedestal than the wife. It shall be presumed that an able-bodies husband is capable of earning sufficient money to maintain his wife and children, however the Court shall also consider before awarding the quantum of maintenance the serious disability or ill health of spouse, child/children from marriage/ dependant relative who require constant care and recurrent expenditure. Maintenance of expenses of a child must be borne by the father and if the wife is working and earning sufficiently then in that cases it may be shared proportionately by both husband and wife. 

• Any recovery of pending maintenance amount may be enforced like a decree of a Civil Court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order XXI.