Order or curse
Querist :
Anonymous
(Querist) 22 September 2011
This query is : Resolved
Dear Experts,
First of all thanks to all LCI team for such a great site a helpful site.
need ur valuable advice regarding the case.
HC ORDER:
The petetioner is the wife of the respondent. she filed OP NO - XX of xxxx in the family court, with a prayer to declare the move of the respondent to contact second marriage as illegal and opposed to law. she also filed I.A No - xxx of xxxx under order 29 Rules 1 and 2 CPC with a prayer to restrain the respondent from contracting the second marriage. The IA was dismissed on 2010 the petetioner filed CRPMP No - xxxx before this court challenging the order in the IA she also filed CRPMO - no - xxxxx. the court granted an order of interim injunction to be in force for a period of six weeks the respondent filed IA No - xxxx with a prayer to vacate the interim order. observing that the petetioner was absent on the date of hearing, the court vacated the order. the petetioner filed CMP No xxxxxx for setting aside the order, dated xxxx. the said CMP was allowed on 31-12-2010 and the order dated 10-12-2010 was recalled.
This contempt case is filed stating that the respondent contracted second marriage on 20-12-2010. according to the petetioner, the said act of the respondent amount to be contempt of court, since the marriage was contracted before expiry of the time for filing an application to set aside the order, dated 10-12-2010 and even while CRP was pending.
There are clear provisions under the hindu marriage act (section 15) and indian divorse act (section 57), which prohibit marriage by any of the spouses,upto certian periond in the event of the procedings of divorse being allowed. the prohibition operates till the expiry of the period of limitation for availing the further remedy or if such proceding are filed, till the dismissal thereof.
it is true that the parties herein governed by personal law. however, the question as to wheather the principle that a spouse, who is a party to the procedings before a family court, cannot contract another marriage during the pendency of the procedings in a superior forum, applies to the to the petetioners needs to be examined, since the matter is of general importance and the judgements rendered by various courts are required to be considered , it is felt that the matter deserves to be heard in division bench.
PLS NOTE :
1.WE ARE MUSLIMS MARRIED AS PER SHARIAT LAW
2. I DIVORSED HER IN THE YEAR 2009 AS PER PERSONAL LAW.
3.THE INTERIM INJUNCTION ORDERS WERE NOT EXISTING AT THE TIME OF REMARRY.
4.SHOULD I NOT REMARRY WHEN CRP/OP IS PENDING.
Pls guide me if any judgement is there that the court cannot interfere in the personal laws.
thanking you all in advance.
Shonee Kapoor
(Expert) 22 September 2011
No there is no such judgement
Querist :
Anonymous
(Querist) 22 September 2011
PLS HELP ME GUIDE ME TO GET OUT FROM THE SAID ISSUE.
Querist :
Anonymous
(Querist) 22 September 2011
WILL THE BELOW INFO WILL BE USEFUL TO DEFEND THE CASE :
Refusal of the Supreme Court to interfere
In Krishna Singh v. Mathura Ahir (AIR 1980 SC 707) a two judge Bench of the Supreme Court was considering weather a shudra could become a sanyasi. While holding that if the custom and usage permitted he could so become, the Court held that in the absence of such usage or custom he could not be so ordained. The High Court had held that any handicap suffered by a Shudra according to the personal law would be in violation of Articles 14 and 15 of the Constitution. It would be violative of the equality clause as also it would be discrimination on the basis of caste. Frowning upon this observation the Supreme Court stated,
" In our opinion, the learned judge failed to appreciate that part III of the Constitution does not touch upon the personal laws of the parties. In applying the personal laws of the parties, he (the High Court judge) could not introduce his own concepts of modern times but should have enforced the law as derived from recognised and authoritative sources of Hindu laws, i.e. Smritis and commentaries referred to, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or abrogated by statute."
In this case curiously there is no discussion whatsoever as to why Part III of the Constitution does not touch upon the personal laws of the parties. Personal laws are as much laws as any other laws. Just because they may be derived (at least at times) from some religion or the other they do not cease to be laws. In fact much of what passes as personal law does not even have any basis in religion.
In Maharshi Avdhesh v. Union of India (1994 Supp (1) SCC 713) the Petition was filed under Article 32 of the Constitution seeking (a) enactment of the Uniform Civil Code; (b) for a declaration that Muslim Women (Protection of Rights on Divorce) Act, 1986 was void as being in violation of Articles 14 and 15 of the Constitution and (c) For a direction against the Respondents from enforcing the Shariat Act. The Petition was dismissed by a two-judge Bench of the Supreme Court with an observation that these are issues for the legislature. Again, there is no detailed reasoning provided even in this order. But effectively therefore the Supreme Court held that even codified personal law cannot be tested on the touchstone of fundamental rights. Of course subsequently in the case of Daniel Latifi, the Supreme Court did test the Muslim Women (Protection of Rights on Divorce) Act, 1986 on the touchstone of fundamental rights.
The third and latest decision on this issue is a decision of a three judge Bench given in Ahmedabad Women Action Group & Ors. v. Union of India (1997 3 SCC 573). Different organisations had challenged through various Petitions a number of discriminatory aspects of personal laws - both codified and uncodified across religions. The Court, relying on the earlier decisions held that the matters pertained to legislative action and the Court could not interfere. Again, in this case no independent reasons were given as to why personal laws could not be susceptible to Part 3 of the Constitution. The Court relied on the following judgments while dismissing the Petitions:
(a) Maharshi Avdhesh v. Union of India (already discussed above)
(b) Reynold Rajamani v. Union of India (1982 2 SCC 474).The excerpts of this judgment on which reliance was placed upon by the Supreme Court in the AWAG case pertain to prayers by the parties to increase the grounds available for divorce under the Indian Divorce Act. It was also argued in that Petition that divorce by mutual consent should be available even under the Indian Divorce Act. It was in this context that the Supreme Court observed that adding provisions to a Statute was a legislative act. The case did not deal with challenge to personal laws as being discriminatory to women.
(c) Pannalal Pitti v. State of A.P. (1996 2 SCC 498). This case dealt with validity of provisions of A.P. Charitable Hindu Religious and Endowments Act, 1987 and the argument was that laws should be made which are uniformly applicable to all religious or charitable endowments run by persons professing all religions. It was in this context that the Supreme Court observed that in a pluralistic society like ours making uniform laws cutting across religions could only be achieved in a phased manner and it was inappropriate to think "all laws have to be made uniformly applicable to all people in one go."
(d) Krishna Singh v. Mathura Ahir (already discussed above).
(e) Anil Kumar Mhasi v. Union of India (1994 5 SCC 704). In this case, additional grounds given to a woman for claiming divorce under the Indian Divorce Act were challenged as being discriminatory towards men. The challenge was rebuffed by holding that women did require special protection. What is significant about this judgment is that the Supreme Court did test the validity of some sections of the Indian Divorce Act (a personal law for Christians) on the touch stone of fundamental rights but on merits found the challenge to be unsustainable.
The approach of the Supreme Court is clearly wrong and flies in the face of the Constitution.
Biswanath Roy
(Expert) 22 September 2011
Unless I get a chance to go through your case records It is not possible to opine you. Your case is a complicated one mere referring some case laws will not suffice to solve your problem.
Raj Kumar Makkad
(Expert) 22 September 2011
You have been replied various times by various experts against the same query raised by you under various threads. I have nothing to add in my previous replies.
