News Articles

Divorcees can retain Surnames

Victory at Last... When passport authorities refused to let divorced women use their married surname based on a misreported High Court judgment Majlis initiated a campaign to address the constitutional validity of the same. With have been vindicated with additional solicitor general upholding our claim. "Darius Khambata has ruled that the wife has a fundamental right to use any name including her married name notwithstanding the fact that her marriage has been dissolved."

 

The Concubine and Notions of Constitutional Justice

A recent Supreme Court ruling, which denied maintenance to women in marriage-like relationships with married men, has undone gains made by landmark rulings that attempted to provide constitutional justice for these women. The ruling has also exposed the weakness of the Protection of Women against Domestic Violence Act in such situations. Flavia Agnes


What fits the bill — a hope or a mirage?

With the Communal Violence Bill coming under a lot of criticism, it is political will that will drive it on to the path to success. Flavia agnes

 

Please adjust...

 Aug 10, 2010. It isn't unusual for parents in India to urge their daughters to stick around in abusive relationships. 

 

Man calls wife unfaithful, faces jail or Rs 1 L fine

Levelling baseless allegations of adulteryagainst one's wife amounted to mental cruelty, said the Bombay high court while pronouncing a city resident guilty of the charge. 

 

Family turns prayer meet into counselling session

Family of HDFC manager Komal Chheda, who allegedly committed suicide on Sunday afternoon, roped in three community counsellors to address the problems faced by young women in the community. 

 

“It’s often felt that the girl’s parents act like their responsibility towards their daughter is over once she is married. She is then advised to be tolerant and adjusting, even to the extent of being asked to suppress her feelings to keep the peace at her marital home. This attitude should be avoided,” she added.

 

Illegitimate children have a right in ancestral property

Justice Ganguly has referred the matter to a larger bench in view of the conflicting judgments on the issue and change in societal attitudes.

 

The mother, the child and the marriage

Are children of invalid marriages entitled to property rights? This is a difficult question with which our courts are constantly bogged down.  Flavia Agnes, Fri Apr 08 2011, Indian Express

Case Law

Judgements that have tried to do ‘constitutional justice’ to destitute women in fault marriages - Click Here

In an important ruling in 2005 in Daga v. Daga, the  Supreme Court had commented, The facts of this case tell the tragic tale of an Indian woman, who, having gone through two marriages with a child born to her, apprehends destitution as both marriages have broken down”.  Further, the Apex Court observed that prior to the 1955 enactment, Hindu marriages like Muslim marriages, were bigamous and that this factual reality has not changed. Therefore, though illegal, they are not ‘immoral’ and maintenance cannot be denied on this basis rendering the woman a destitute. This judgement came as a boost to women confronting a similar situation.

 

The Bombay High Court in 2009 in  Suman Nivrutti Satav v Nivrutti Dattu Satav: When the wife was thrown out of the matrimonial home along with her minor daughter, and filed for maintenance, the husband pleaded that the marriage was not valid since the woman is his second wife. The wife contended that she was the first wife and that a year after their marriage, he remarried. The magistrate’s court and the Sessions Court upheld the husband’s contention and denied her maintenance. Since paternity was not denied, the daughter was awarded Rs.200/- p.m. as maintenance which was enhanced to Rs.400/- by the Sessions Court. The wife appealed to the High Court which upheld her claim and awarded Rs.500/- p.m. as maintenance from the date of filing the application i.e.1991. The court commented that the fact that both had stayed together as husband and wife and that a daughter was born to them was sufficient evidence of marriage for the  purpose of awarding maintenance under S.125 Cr.PC. 

In another case, Rajlingu v Sayamabai, when the wife filed for maintenance, the husband alleged that she is his second wife and hence the marriage is void. He produced the earlier wife and  a daughter born through that marriage as witnesses to prove his case. The present application was filed in 1993. But, the wife had earlier filed for maintenance twice in 1971 and in 1973 and on both occasions, compromise  was reached and the parties agreed to live together amicably.  At that time, the husband did not raise the plea about his earlier marriage. This contention was raised for the first time in 1993 which the court held was a mere afterthought.  While dismissing his appeal, the High Court held that the conduct of the parties in such matters plays a very dominant role in determining the existence of a relationship of husband and wife. 

Even earlier, in Govindrao v Andandibai, Justice Kania of the Bombay High Court (who later became the Chief Justice of India), while upholding the rights of a woman in a bigamous marriage under the Hindu Marriage Act had held that since the Act is a social legislation, it could not have been the intention of the legislature that even in a case where a Hindu woman was duped into contracting a bigamous marriage, she should be deprived of her right to claim maintenance.

 

 Justice A. K. Sikri and Justice Aruna Suresh of the Delhi High Court in Suresh Khullar v Vijay Kumar Khullar, while deciding this issue, held: “If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.”  

 

In 1978, in Captain Ramesh Chandra Kaushal v Veena Kaushal, Justices V.R. Krishna Iyer and D. A. Desai observed, “The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts.”

 

In October, 2010 (the same month as Velusamy ruling) another bench of the  Supreme Court upheld the  right of women in technically  defective marriages by holding that the term ‘wife’ must be given a broad and expansive interpretation. The court stated that cases where a man and woman have been living together for a reasonable period of time should be included within the scope of S.125 Cr.PC and a strict proof of marriage should not be a pre-condition for maintenance so as to fulfill the true spirit and essence of the beneficial provision of maintenance under S.125 Cr.PC.

 

The recent Supreme Court ruling in Revanasiddappa v Mallikarjun  (March, 2011) upheld the right of inheritance of illegitimate children. 

Supreme Court upheld the right of illegitimate children to the father’s share in ancestral property - Judgement

Revanasiddappa v Mallikarjun

Supreme Court Decided on 31st  March, 2011.  

from the Bench of Justice G.S. Singhvi  and Justice Asok Kumar Ganguly

 

In a historically  ruling, the  Supreme Court upheld the right of illegitimate children to the father’s share in ancestral property.  The ruling dissented from  the earlier position held  in Jinia Keotin  v. Kumar Sitaram Manjhi, (2003) 1 SCC 730 and Bharatha Matha v. R. Vijaya Renganathan,  AIR 2010 SC 2685 which had constrained the rights of illegitimate children to the separate  property of the father and had held that a child born in a void or voidable marriage was not entitled to claim rights in ancestral  property.

 

While referring the issue to a larger bench in the context of the contradictory positions between the earlier rulings and the present one,  the Court held: ““The Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children.”

 

The Court relied upon Article 39 (f) of the Constitution which mandates that all children must be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth must be protected against exploitation and against moral and material abandonment.