Top News Headlines 8th April 2022: Divorce By Mutual Consent Valid Under Muslim Law, Can Be Declared By Court

Divorce By Mutual Consent Valid Under Muslim Law, Can Be Declared By Court: Bombay HC

• In the case of Shaikh Taslim Sahikh Hakim vs State of Maharashtra and anr. the Hon’ble Bombay HC has held that a Family Court can dissolve a Muslim marriage by way of mutual consent following an amicable settlement between the parties. 
• In the instant case, the husband sought quashing of the FIR registered with the Parbhani Police for the offences punishable under sections 498A, 323, 504 and 506 of the IPC. in addition to this, he also sought for the quashing of the consequential chargesheet on the grounds that the parties have reached an amicable settlement. 
• The Counsel for the applicant (husband) submitted that the couple had separated by mutual consent and had approached the Family Court for the declaration of their marital status in accordance with section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with section 7(1)(b) of the Family Courts Act, 1984. 
• In March of 2022, the Family Court declared that the two parties were no longer husband and wife in accordance with the mutual agreement between them. The wife had given her consent for quashing the criminal proceedings and had accepted Rs.5 lakh as a full and final satisfaction of her claim. 
• In the instant case, the Court observed that section 2 of the Shariat Act, 1937 states that all the questions about property, marriage, dissolution of marriage including taaq, ila, zihar, khula, mubarat. Maintenance, dower, guardianship, gifts, etc. where the parties are muslims shall be considered according to Shariat. 
• The Court also observed that section 7(1) of the Family Courts Act states that a suit for declaration of the status of a marriage or its validity can also be a subject matter before a Family Court.
• The Court referred to the decision of the Apex Court in Mst. Zohara Khatoon vs. Mohd. Ibrahim (1981) SCC wherein it was held that mubarat is a form of extra-judicial divorce based on mutual consent. The same is valid and is untouched by the Dissolution of Muslim Marriage Act.
• The Court also observed that the relevant part of the decision of the Punjab and Haryana HC in Kulwinder Singh vs State of Punjab (2007) CTC had been reproduced by the Apex Court in Gian Singh vs State of Punjab and ors (2012) SCC it was observed that the HC can quash an FIR in exercise of its inherent powers only to secure the ends of justice or to prevent the abuse of the process of the Court. In cases arising out of matrimony relating to dowry or family disputes where the wrong is private or personal in nature, and the parties have resolved their disputes, the High Court may quash the criminal proceedings if in its opinion, due to the compromise between the parties, the chances of conviction are very bleak and great prejudice would be caused to the accused by not quashing the criminal proceedings despite a full and complete settlement between the accused and the victim.  
• Thus, the HC observed that the Family Court had rightly applied the provisions of the Shariat Act to the parties, and that it had acted within its jurisdiction. The marriage stood dissolved by mutual consent. 

Ad Hoc Payments Made In Compliance Of Interim Orders Of The Court Cannot Form Part Of ‘Wages’ Under Payment Of Gratuity Act: SC

• The Hon’ble SC, in Chairman-cum-MD Fertilizer Corporation of India Ltd and anr vs Rajesh Chandra Shrivastava and ors. has observed that the ad hoc payments made in compliance with the interim orders of the Court do not form the part of wage within the meaning of section 2(s) of the Payment of Gratuity Act, 1972 for the purpose of calculating gratuity. 
• In the instant case, the scale of pay of the employees in various PSUs were revised with effect from 1-1-1992. When the benefit of the revised pay scale was not given to the employees of Fertiliser Corporation of India Limited and Hindustan Fertilizer Corporation Limited, their employees moved writ petitions in the various HCs in the year 1996 (first round of litigation). At the instance of the Union of India, all these writ petitions were transferred to the Apex Court. 
• By an interim order dated 18-8-2000, Apex Court directed an ad hoc monthly payment of Rs. 1500, 1000, 700 and 500 respectively to four different classes of employees as an interim measure, which was subject to the final outcome of the writ petitions.
• In its final order after the implementation of the Voluntary Separation Scheme, the Court noted that the interim relief that had been ordered was purely an ad hoc measure. 
• The employees then started filing petitions before the Controlling Authority and in their applications they included the ad hoc payments as a part of the wages.
• The issue that was raised was whether an ad hoc payment made to the workers pursuant to an interim order that was passed by the Supreme Court could form a part of wages within the meaning of section 2(s) of the Payment of Gratuity Act, 1972. 
• The Court observed that the said definition of ‘wages’ can be divided into three parts, the first part indicates the meaning of the expression, the second part indicating what is included therein and the third part indicating what is not included. In the first part of the definition, what is emphasised is what is earned by the employee in accordance with the terms and conditions of his employment. 
• The Court also referred to the case of Straw Board Manufacturing Co. Ltd. vs Its Workmen (1977) SCC where the Apex Court had clarified that wages under section 2(s) of the Act includes basic wages and dearness allowance and nothing else. 
• The Court observed that it is a fundamental principle of law that a party who is in enjoyment of an interim order is bound to lose the benefit of such order if the final outcome of the case is against him. 
• Thus, the orders of the HC and the Controlling Authority which held that the ad hoc payments made pursuant to the interim orders by the Apex Court will be a part of the wages was set aside.

Child Adopted After Husband’s Death Not Entitled To Father’s Property: Bombay HC

• In Rajesh, Dnyanoba and Godavaribai vs Parwatibai and ors. the Bombay HC has held that if a woman adopts a child after the death of her husband, then the adopted child cannot claim any share in the property owned by the dead father as he cannot be considered as the child of the dead father. 
• The Court further held that the doctrine of relation back as was envisaged by the old Hindu law has been done away with by the enactment of section 12 of the Hindu Adoption and Maintenance Act.
• In the instant case, Shivaji was adopted in the year 1973 by Kausalyabai. Her husband Sopanrao had passed away in 1965. They had one daughter named Parwatibai, who was their biological daughter.
• Shivaji had sold properties belonging to the late husband of his adoptive mother. He contended that he shall be deemed to be a child of the adoptive parents and that all the ties of the child in the natural family are deemed to be severed from the date of the adoption and are replaced with those of the adoptive family. 
• He relied upon the decision in Hiralal vs Board of Revenue AIR 2001 Raj. and contended that as soon as the widow of a coparcener adopts a son, the adoptive son becomes a coparcener with all the surviving coparceners and consequently, would acquire the same interest which his adoptive father would have in the coparcenary property. The child adopted by the widow of the coparcener becomes the child of the deceased coparcener from the date of his demise. 
• The Court observed that section 12 of the Hindu Adoption and Maintenance Act  clearly states that the adopted child will be deemed to be the child of the adoptive parents from the date of the adoption for all purposes and it is from this date that all the ties of the child in the family of his birth shall stand severed and shall be replaced by those created by the adoption in the adoptive family. 
• While deciding the question as to whether the doctrine of relation back would be applicable to the instant case in light of section 12 of the Act, the Court placed reliance on its decision in Banabai and Ors vs Wasudeo AIR 1979 Bom. wherein it was held that adoption takes effect only from the date of the adoption. Under the old Hindu law, adoption had the effect of relating the adoption back to the date of the death of the father, and the adopted son was deemed to be in existence on the date of the death of the father. This fiction of relation back has been done away with by section 12. 
• In Banabai’s case, the Court also reiterated the principle which was enunciated by the Apex Court, which was that the adopted child shall not divest any person of any estate which vested in him/her before the adoption. Thus, we can see that though the adopted child enjoys all the rights in the adoptive family as though he was born into that family, he cannot divest any person of any rights which had vested in him/her before the adoption took place. 
• Having regard to this legal position, the Court was of the view that the contention of the Counsel for the appellant that the adopted child would acquire all the rights in the property right from the date of the demise of the adoptive mother’s husband. 
• Since the adoptive mother had passed during the pendency of the suit, the Court held that Parwatibai would be entitled to ¾ of the share in the suit property (since both she and her mother were entitled to ½ of the property after her father’s demise, and after the mother’s demise, her share was split between the Parwatibai and Shivaji)  while the adopted son Shivaji would be entitled to ¼ of the share.