Top News Headlines 19th Apr 2022: Denial Of Sex ‘Cruelty’ But Not ‘Exceptional Hardship’ For The Purpose Of Section 14 Of HMA

Denial Of Sex ‘Cruelty’ But Not ‘Exceptional Hardship’ For The Purpose Of Section 14 Of HMA: Cooling Priod Cannot Be Waived: Delhi HC

• In the case of Rishu Aggarwal vs Mohit Goyal the Delhi HC has held that the denial of conjugal relationship does not amount to ‘exceptional hardship’ or ‘exceptional depravity’ and thus, cannot be a ground for waving of the mandatory cooling period of one year provided under section 14 of the Hindu Marriage Act, in a case of divorce by mutual consent. 
• The Court observed that once the Parliament, in all its wisdom, has legislated that the denial of cohabitation/conjugal relationship over a period of one year would amount to cruelty, it cannot be said that the denial of sex simpliciter within a period of one year, would be a case of exceptional hardship. 
• In the instant case, the marriage between the parties was solemnised on 4-4-2021. However, differences cropped up between the parties and from 14-4-2021  the parties were living separately, although in the same house. On 29-7-2021 the wife left her matrimonial home and started living with her family. An MOU was executed between the parties and they decided to amicably part ways by filing a petition for divorce by mutual consent under section 13B and section 14 of HMA. It was alleged that the denial of sex would amount to exceptional harship under section 14 of the Act.
• The Family Court, however, refused to grant the relief stating that the exception provided under section 14 of HMA was not made out in the present case. The Court had also observed that the leave to file a petition before the expiry of one year is an exception and not a rule. The said provision had been enacted by the Legislature with a particular objective, and the proviso to section 14(1) HMA should be invoked with utmost caution. 
• The learned Counsel for the appellant had, before the HC, placed reliance on the decision of the Punjab and Haryana HC in Shivani Yadav vs Amit Yadav (2021) wherein the Court had observed that since the couple in question had stayed together for only two days, this is a sufficient ground to allow their application filed under section 14 HMA for waiving off the mandatory period of one year. 
• Reliance was also placed by the learned Counsel on Ratheesh M. vs Dhanya K.V. (2019) SCC wherein the Kerala HC had observed that denial of sex is a conduct which would fall under the category of exceptional hardship to the other spouse. This order of the family Court was upheld by the HC.
• The Delhi HC observed that the word ‘exceptional’ means something that is out of the ordinary, which cannot be expected in a general situation or scenario. The non-indugence in sexual intercourse by a married couple owing to temperamental differences, would not be regarded as ‘exceptional’ so as to attract immediate dissolution of the marriage without waiting for the one year period which contemplates an opportunity for reconciliation. 
• The Court also observed that mere denial of sex cannot be denied as immoral or wicked behavior, or a perverse behaviour lacking in moral decency. It may amount to matrimonial misconduct, but that was not the subject of the present case.
• Thus, in light of the above observations, the Court rejected the appeal and upheld the decision of the Family Court. The parties were free to approach the appropriate Court after the expiry of one year of separation.

Decision Of The District Court Given In Appeal/Revision Are Beyond The Revisional Jurisdiction Of The HC: Orissa HC

• In the case of Kailash Chandra Panda and ors. vs. State of Orissa and ors. the Orissa HC has held that a revision petition under section 115 of the Code of Civil Procedure (CPC) is not maintainable before the HC against the order of the District Court which is passed in its appellate or revisional jurisdiction. It was clarified that the order must have been made under ‘original jurisdiction’ to attract the applicability of section 115 CPC.
• In the instant case, the petitioners had filed a civil suit valued at Rs.49,000 in the Court of Civil Judge, Dharamgarh for the declaration of their right, title and interest and confirmation of possession over the suit scheduled tank. They also prayed for declaration of their right to fish, water for irrigation purposes and possession of the tank. They also prayed for a permanent injunction against the opposite parties so as to prevent them from interfering with the possession and ownership of the plaintiffs. The said suit was decreed. 
• The respondents challenged the judgement and decree by way of a regular first appeal before the ADJ, Dharamgarh along with a petition under section 5 of the Limitation Act for the condonation of delay. The application under section 5 for the condonation was allowed, and the present civil revision petition was filed challenging the same.
• The Counsel for the petitioners had contended that the order in question was clearly covered by the phrase ‘other proceedings’ appearing in section 115 CPC, and the said order cannot be said to be an order passed in appeal as no appeal exists in the eyes of law unless the petition under section 5 of the Limitation Act is allowed, and the delay is condoned. Thus, he was of the opinion that the present revision petition is maintainable. 
• In support of his arguments, the Counsel for the petitioner relied upon the decision of the Apex Court in  Vishnu Awatar vs Shiv Awatar and ors (1980) SCC and the decision of the Orissa HC in Smt. Banarasi Devi Saha vs Basudev Lal Dhanuka (1992) OJD.
• The Orissa HC relied upon the decision of the Apex Court in Vishnu Awatar’s case wherein it was held that the phrase ‘other proceedings’ occurring in section 115 of CPC  can only mean proceedings of an original nature and it would not cover decisions pronounced in appeal or revision. 
• While referring to the language of section 115 of the Code of Civil Procedure (Amendement) Act, 1978 which is almost in pari materia with the provisions of section 115 of CPC as in force in Orissa, the SC clearly pronounced that the decision of the District Court rendered in appeal or revision are beyond the revisional jurisdiction of the HC.
• Relying upon the decision of the Orissa HC in Banarasi Devi Saha vs Basudev Lal Dhanuka (1992) the Court observed that where the District Court acts in the exercise of its original jurisdiction, the HC’s revisional power will come into play. 
• To the contention of the petitioner that the order allowing for the condonation of delay cannot be construed to have been passed in appeal, the Court held that a limitation petition has no independent existence bereft of appeal. Thus the order passed therein cannot be segregated from the appeal, and it cannot be said that the order passed in the limitation petition was passed in any independent or original proceeding. 
• Thus, the present revision petition was dismissed. 

Under Chapter VIIA CrPC, Indian Courts Are Unapproachable By Private Parties For Seeking Attachment Of Properties In Foreign States : Kerala HC

• In Muhammed Hasheer Poolakkal v. United Arab Bank & Anr. (2022), Justice Ziyad Rahman AA observed, while evaluating the legislative intent behind implementing Chapter VIIA of the CrPC, that allowing any individual or institution to file an application would equate to reading into the provision that was never intended to be envisaged. Furthermore, it was observed that direct requests from private parties or institutions to initiate proceedings for attachment of properties in foreign states can only be made by the Centre or appropriate authorities under 105C (1) as well as 105D (1) of the Code of Criminal Procedure (CrPC). Since the Indian Courts cannot appease any direct request from private parties or institutions.
• In the present case, the petitioner had failed to repay the loans he obtained from the respondent bank for his business in the United Arab Emirates as certain cheques issued towards the repayment of the loan had been dishonoured. As a result, the respondent filed a criminal case in the UAE court in which the petitioner was found guilty and sentenced to three years of imprisonment.
• Following this, an application under Sections 105C to 105J of CrPC was filed by the respondent before the Judicial Magistrate, who ordered the Station House Officer to determine all the petitioner's properties that were emanated. Consequently, this order was challenged by the petitioner on the grounds that an individual or institution does not have the authority to approach the Court in India directly under Section 105 CrPC just by presenting an application for the same. On the other hand, the respondent bank maintained its contentions while referring to Section 105D (1).
• Chapter VIIA of CrPC discusses reciprocal arrangements for help in specific issues and the attachment and loss of property procedure.
• Section 105C (1) of the CrPC states that if a Court in India has probable cause to believe that any property acquired by any person is derived, directly or indirectly, from the commission of an offense, the Court can issue an order of attachment or forfeiture of such property as it deems fit under the provisions of Sections 105D to 105J.
• 105D (1) of the CrPC states that under Sub-Section (1), or on receipt of a letter of request under Sub-Section (3) of section 105C the Court shall order any police officer not below the rank of Sub-Inspector of Police to take all means required for tracing and identifying such property.
• Section 105J of the CrPC states that if any property referred to in the said order is conveyed by any mode after making an order under Sub-Section (1) of Section 105E or Section 105G, such transfers shall be overlooked for the reasons of the proceedings under this Chapter. If such property is consequently forfeited to the Central Government under Section 160H, then the transfer of such property shall be deemed void.
• In a relevant case, State of Madhya Pradesh v. Balram Mihani and Others [(2010) 2 SCC 602], the scope of the provisions of the aforesaid Chapter was observed. It was held that the aforementioned clause applies solely to offenses with worldwide repercussions or those connected to terrorist activity.
• The Hon'ble Court stated, after hearing both parties and referring to the aforementioned case and legislation, that an impression may be produced about the Court if it considers 105C (1) coupled with Section 105D (1) on being satisfied with the presence of reasonable grounds for the same. Nevertheless, it was observed that when the objective of Chapter VIIA is considered as a whole, the stipulated provisions in Section 105C (1) cannot be viewed in isolation.
• Furthermore, it was observed that accepting any request directly from any party by the courts in India without carrying out the procedure as intended by the guidelines would contradict the purpose of the enactment. As a result, it was determined that allowing any individual or institution to approach the Court directly through an application would be detrimental to the State's interests because the Court would have to decide whether it has an implication on India's sovereignty, security, public order, or essential public interest or a foreign country, which may lack the necessary inputs for sanctioning the same.
• Therefore, the Hon'ble Court ruled that the petition before the Judicial First-Class Magistrate Court was not maintainable as it was filed by an institution without being forwarded by the Central Government or any other authorities. 
• Thus, the Hon'ble Court granted the plea after noting that this does not bar the respondent from contacting the Centre or any other authorized body to use the provisions of Chapter VIIA.