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CHAPTER 5
JUDICIAL RESPONSE

"Do not take a marriage for granted. There has to be an effort, there has to be an endeavor, and
there has to be a constant attempt to sustain it. The moment people take marriage for granted,
there is a disaster." Justice Dipak Misra

5.1 The Bigamy Rulings:

Could an individual change his faith for second marriage contract?
In “Sarla Mudgal v. Union of India” 356 The Indian Apex court ruled in its landmark
judgement “where any man (not Muslim initially) converts his religion into Islam for the sole
purpose of contracting a second marriage without legally divorcing his first wife), the marriage
shall be regarded as void and illegal and he shall be punished in the similar manner as he
would have been punished had he not converted his religion.”

The offender shall be punished with imprisonment as well as a fine, and the penalty provided
for in Sec 494 shall not be compounded with the penalty provided for in sec- 495. The new
wife will not be eligible for any right or interest in her spouse's assets; however, she may
demand “interim maintenance against her husband.”

“Laxmibai v. Ayodhya Prasad” 357, the Court ruled that the 'wife' and 'husband' included in
Sec- 24 of the "Hindu Marriage Act" do not have a strict specific sense. The word can indicate
an individual who appears to be a party's wife or husband.

B. The prerequisite of legitimate evidence of Bigamous marriages:

“In Kanwwl Ram and others v. The Himachal Pradesh Administration 358”
It was laid down in the verdict that “the witnesses have not proved that the essential ceremonies
had been performed in the second marriage. It was contended that an admission made by the
accused regarding the second marriage is conclusive of the fact of a second marriage has taken
place and that without any other evidence a conviction could be based on such admission”.
As mentioned in above case, the Apex Court upheld the fundamental principles set down in the
previous decisions rendered on "Bigamy" in which it said-

356
(1995 AIR 1531 SC)
357
AIR 1991 MP 47
358
1966 AIR 614
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• “For the indictment of bigamy, the second marriage must be proven as truth, and it must
also be proven that the requisite rituals have been conducted.
• Another argument made in that judgment, which says that, the declaration of marriage
by the convicted is not a confirmation of marriage for the sake of proof, an offense of
bigamy.”
The Court dismissed the argument, which claimed, “it is clear that in law such admission is
not evidence of the fact of the second marriage having taken place. In a bigamy case, the
second marriage as a fact, that is to say, the ceremonies constituting it must be proved.”

In “Priya Bala Ghosh Vs Suresh Chandra Ghosh”359: It was stated that if the supposed
second marriage were not legal under the statute relevant to the spouses; it would not be null
and invalid because it takes place within the life of the spouse or partner of the individual
marrying in such a manner as to attract I.P.C. 494.
Consequently, in terms of holding that the second marriage was honored so that Sec- 17 shall
be brought into action. The second marriage must be performed with essential rituals and in
proper manner. In that judgment, "The Court further decided whether it was necessary to
establish that, concerning the alleged second marriage, the essential ceremonies must be
performed for a valid marriage" had been replied in the positive.

In “Trailokya Mohan v State of” Assam 360 –The applicant has been already married and had
a wife, named Subarna Bala Nath, however he had contracted Shefali Debi for the 2nd time
and therefore violated the law of bigamy punished under the Penal code, reading the clauses of
the “HMA 1955,” as well as the offender himself accepted the crime under Sec- 342 of the
"Code of Criminal Procedure" that “he had wed B during A's lifetime, and the statement was
corroborated.”
Therefore, it was stated that the assumption of a legitimate marriage, and if there was clear
sufficient and convincing proof to contradict the hypothesis, was completely absent in the case,
had to be formed in the case of a legal second wedding and, in those cases, the foundation of
the admissions rendered by the accused may be depended upon.

What is the lawful position of these bigamous relationship?

359
1965 AIR 1564
360
AIR 1968, Assam 22
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In a traditional Indian culture, the second wife is not usually viewed in the same manner as the
reverence granted to the very first woman. Along with this societal stigma arises the problem
of a null marriage. The immense agony of being cheated in matrimony will undoubtedly be
utterly heartbreaking for every female.
Although there is no lawful sanction granted to a second wife, she can have a possibility of
obtaining support from her husband and, after changes to the rules of the family law, a provision
has been made on the validity of marriage matters, as provided for in "section 16 of the Hindu
Marriage Act 1955," as per this provision the children born of a large-scale union shall be
handled appropriately.
Besides, as the lack of any specific guarantees under the statute, kids are entitled to obtain
maintenance from their parents. Still, the odds of claiming her (second wife) privileges rely
entirely on the courts' discretion.

5.2 The cruelty Rulings:

Cruelty, which is the foundation for the termination of marriage, may be described as willfully
and inexcusable actions of such character as to trigger threat to life, limbs or wellbeing, bodily
or emotional, or to eventually lead to a rational anticipation of such threat. The topic of mental
cruelty must be regarded in the context of the standards of the marital relations of the individual
community of which the parties belong, their cultural beliefs, their position and the
environment wherein they reside. Cruelty doesn't have to be physical. If the behavior of the
spouse is formed or a conclusion may reasonably be made that the care of the partner is such
that it induces anxiety in the mind of the other spouse regarding his or her emotional well-
being, the behavior leads to cruelty; Maya Devi v. Jagdish Prasad 361,
Throughout her formal report, making bogus charges against the husband of possessing an
intimate relationship and extra-marital affair entail emotional abuse of such a kind that the
husband cannot fairly be asked to remain with the woman. Husband is subject to a divorce
decree; Sadhana Srivastava v. Arvind Kumar Srivastava 362,
The word "Cruelty," as proposed “under section 13 of the Act,” specifically acknowledges in
its nature and scope in actions which can also cause a mental anguish distressed party. The
purpose to be cruel is not an integral aspect of cruelty as envisioned in Sec “13(1) (ia) of the

361
AIR 2007 SC 1426.
362
AIR 2006 All 7.
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Act. It is sufficient that if brutality is such that it is difficult for couples to live together; Neelu
Kohli v. Naveen” Kohli 363
(iv) The leveling of the baseless claim by one partner on the other of supposedly having illicit
connections with various people outside the union was a question of mental cruelty; Jai Dayal
v. Shakuntala Devi 364,
The mental illness for relief referred to in point (iii) of section 13(1) ought to be such that it is
unfeasible to live a wonderful married life or it is unrealistic to assume a individual to have
such a situation with a husband or wife; B.N. PandurangaShet vs. S. N 365.,
On the grounds of a “criminal complaint lodged by the woman, the husband lived in custody
for 63 days, as well as his father and brother for 20 to 25 days. Thus, while the case of abuse
might not have been proven, but the evidence which arises from the record suggests that the
life of the two as husband and wife will not only be challenging but unlikely, the court has little
alternative however to issue a divorce decree; Poonam Gupta v. Ghanshyam Gupta 366,”
(vii) Because the whole nature of the quarrels through which one of the partners attempts to
take “his or her life” is brought before the court, the mere fact that there is a danger in the
course of a quarrel could be perceived in seclusion or regarded as psychological abuse to the
“other spouse; Nalini Sunder v. G.”V 367.
(viii) A husband cannot ask his spouse not to like her company but can or should live with
other close relatives in a married house. Such a mentality is brutality on the husband's part;
Yudhishter Singh v. Sarita 368,
(ix) The elimination of mangalsutra by her husband's wife does not lead to mental cruelty;
Hanumantha Rao vs. S. Ramani 369,
(x) The threat of a woman committing suicide leads to the infliction of psychological abuse on
her “husband, but should not be pronounced in a domestic brawl; Pushpa Rani v. Vijay Pal
Singh 370,”
(xi) A solitary example of brutality does not warrant cruelty to issue a divorce settlement.
Instead, the other partner's actions must be constant and consistently handled by the other

363
AIR 2004 All 1.
364
AIR 2004 Del 39.
365
AIR 2003 Karn 357
366
AIR 2003 All 51.
367
AIR 2003 Kar 86, Sundar.
368
AIR 2002 Raj 382.
369
1999 AIR SC 1318.
370
AIR 1994 All 220.
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partner with sufficient brutality to trigger a rational fear in the mind of spouse that it would be
dangerous or harmful for “him or her to remain with the other party.”
In the specific instance of Swati v. Arvind Mudgal, 2015 371, that decision was taken by the
Court that To constitute physical cruelty, single or multiple incidents are more than sufficient,
even though a single event would be too severe that the text of cruelty could be fulfilled, which
leads to physical brutality.
In another instance of Smt. Uma Wanti v Arjan Dev 372, the court states “although the wife
is not an unsound person but her peculiar way of behavior towards him is sufficient to constitute
legal cruelty”.

Attempts to undertake suicide

Numerous attempts to commit suicide or threats have been deemed adequate to cause
substantial mental stress on the other spouse. Throughout Harbhajan Singh Monga v.
Amarjeet Kaur's 373case, High Court of Madhya Pradesh states “threats of committing suicide
by one spouse constitutes cruelty to others thus it is valid legal ground to seek divorce”.

Rendering baseless claims

Forming false allegations regarding the other partner's character appears to be personal reasons
for obtaining a divorce. Throughout the case of “Jay Dayal v. Shakuntala Devi,” 374the Court
held that “making a false allegation of physical and mental torture against husband amounts to
mental cruelty”.

The complete unwillingness of sexual intercourse

Sexual intimacy brings a really significant function in a stable and balanced marriage
partnership. In account of “Anil Bharadwaj v. Nirmlesh” Bharadwaj 375, the Court ruled that
“if either party to a marriage with a safe physical state refused to have sexual intercourse for
no excuse whatsoever or, in particular, if the parties were young and freshly married, it would
lead to brutality and would empower the other side to a divorce” order.

Defamation

371
[Link]
372
AIR 1995 P H 312
373
AIR 1986 MP 41
374
II (2003) DMC 497
375
AIR 1987 Delhi 111
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Frequently upsetting and humiliating a partner in front of a culture that brings misery and
emotional agony to the other will lead to emotional brutality. In account of “Vishwanath S/or
Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, 376 the Court made the decision that
the purpose was to stigmatize the husband's name in public by calling him a drunk sex addict
and a guy of poor habit. It represents emotional abuse, as this conduct of the wife has frozen
the sentiment and completely wiped out the bright candle of the happiness of the man, so it is
apparent that because of this mental anguish, misery, and suffering, the husband will not be
willing to stay with the wife, therefore qualified to a divorce order.”

5.3 Deceitful marriages and fraudulent marriages

The details of Ram Chandra Bhagat v Jharkhand State, 377 is that a man had agreed a female
to marry her and decided to marry her ultimately. On the grounds of that vow, the woman had
been staying with the guy for 9 years. The court considered whether the commitment was an
invitation to trust in a marriage or not. The court ruled that it was not an opportunity to believe
in marriage and that man was not held accountable.
The truth of Ravinder Kaur v Anil Kumar 378 that a husband had received an ex-parte divorce
order and had not told his partner about it. The matrimonial partnership between them was
brought to an end by that decree, and the woman was not informed of the truth. She decided to
remain with him under the assumption that she was indeed committed to him. The wife came
to realize the facts as her husband married another female.

The court ruled that it could not be claimed that the husband had misled his wife to think that
she had been legitimately married to him and that the guy had not been held responsible for the
crime under Section 493 of the IPC. However, I have sincerely questioned the understanding
of this decision. It was clearly visible that the husband had misled his wife by not telling her
that the marital relations between them had ended. This inevitably caused the wife to assume
that she was legitimately married to him and cohabited with him.

In the case of MoideenKutty Haji v Kunhikoya 379, the court ruled that, as per this Clause, a
man is not responsible only for cohabitation or sexual activity with a female not legally married
to him. For the purposes of this Portion, it must be founded that such an individual has caused

376
[Link]
377
(2013) 1 SCC 562
378
AIR 2015 SC 2447 is
379
AIR 1987 Ker 184,
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a female to cohabit or have sexual relations with him in the expectation that she is legally
married to him.

Throughout the issue of “Ram Chandra Bhagat v. State of Jharkhand” 380, Deception was
defined as a “false statement of fact made by a person knowingly or recklessly with the intent
that it shall be acted upon it and thereby suffers an injury 381.”

5.4 Adultery is no longer an offence

The jurisprudence lays out prima facie unfair treatment to male and female; This ends up
making this misdemeanor “punishable for males but not the wife, to penalize the man gravely
and to let the females who were an equal share to go scot-free is unrealistic on the forehead of
it, it is exclusionary that for the very act the man becomes the manifestation of wickedness
however the female still is regarded to retain her qualities and is viewed as a victim.”
It is inexplicable why the statute believes the male has a mens rea for the same unjust act when
no such assumption is attributed to the woman.
The woman's permission or desire is not an obstacle to the implementation of this provision.
As usually occurs, she is fully informed of the reason for which she is leaving her spouse and
is a participant in it as an assented.
Unthinkingly presuming that “man is the seducer and not women” would be a scary prospect,
the jacket is on the other leg these days, in a range of contexts, comparing the current situation
and the vast transition that society has experienced. In limiting the Class of criminals of persons
where woman or mothers are equal associates, the law imposes an arbitrary distinction among
males and females, in violation of the fundamental requirements laid down in Articles 14,15,
and 21 of the constitution.
The rationale given by the Writers of the Code and the lobby of the retentionists for this
anomaly is that it would not be right & appropriate to prosecute women since they were an
oppressed and marginalized bunch due to the atypical social circumstances. I am constrained
to admit that it was relevant in that period, but now history.
The IPC was quiet on the penalty for adultery until it took shape in 1860, with Lord Macaulay
stated, "There are some peculiarities in the state of society in this country which may well lead
a humane man to pause before he determines to punish the infidelity of wives."

380
(2013) 1 SCC 562,
381
India, l. (2021). Family Courts in India. Retrieved 1 March 2021, from [Link]
article/[Link]
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However, recently “in Joseph Shine vs. Union of India382 Joseph Shine, a non-resident of
Kerala, instituted a public interest lawsuit under Art-32 of the Constitution in Oct 2017. The
petition questioned the constitutionality of adultery's crime under Sec 497 IPC and Sec- 198(2)
of the CrPC corresponding to Sec 497 of the IPC. By enforcing liability on a male who engages
in sexual relations with another person's wife,” Sec- 497 IPC criminalized adultery. With a
maximum duration of 5 years, adultery was punished. Females were protected from arrest; even
they are consenting parties. Furthermore, when her husband was involved in sexual relations
with a single female, a married woman could not complain under Sec- 497 IPC. It was also in
the sight of CrPC Section 198(2) that defined how a complainant would bring charges for
crimes committed under IPC Sections 497 and 498.

Intervenor Vimochana was represented by Lawyer Jayna Kothari, CLPR's Executive Director.
In citing the universal “right to privacy,” as acknowledged by the Supreme Court in
Puttaswamy, she attacked the clause that categorized adultery as an offense. She contended
that an aspect of privacy that is secured under the "Constitution is the right of intimate
association."Sec-497 was illegal as the very reason for criminalizing adultery was the
hypothesis that a wife is treated as the husband's property and is forbidden to have affairs
beyond marriage. Even so, in the situation of the husband, the same limitations were not
applicable. Sec- 497 infringes both the right to privacy and females' rights by discrimination
against married females and by committing gender stereotypes.

On 27th July 2018, 5 Judges Bench of the Apex Court unanimously ruled that Sec-497 IPC
violates Arts- 14, 15, and 21 of the Indian constitution. Adultery is fundamentally related to
the practice of matrimony. The handling of infidelity and a crime will be analogous to a State
breaching an actual private domain. Cheating in married life is not part of the definition of
violence. It's safer to be left as a basis for separation. There could be no shred of doubt that
adultery can be a basis for some civil error, even the "dissolution of marriage."
5.5 Significant problems of concern: Are the Criminal justice system & Family Court
systems working effectively towards accomplishing their objective concerning marriage-
related matters?
“Marriage is an institution to save us from the tyranny of sex and also for the progression of
the human race. This is the status of the Institution of marriage. The Institution cannot be
degraded. The Institution cannot be denounced and it is the duty and obligation of every

382
2018 SCC OnLine SC 1676.
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generation to try and to sustain the Institution. The Institutions are not maintained; the
Institutions are sustained. The marriage being an Institution, it is to be sustained.” Justice
Dipak Misra
A widely agreed marriage concept is that of matrimony or wedlock, wherein a social sanction
of the partnership between two persons is traditionally acknowledged. This union aims to
define rights and responsibilities between two persons and their kids and in-laws, who come
together in this relationship. This sacrosanct marriage practice has been in operation for ages
and has absorbed varying twisted representations of the same in itself.
Numerous rules and precedents have been adopted by various courts to remedy the wrongdoing
concerning them, with the most insightful ones coming from the Hon'ble Supreme Court. Such
misconduct, including, among other items, adultery, desertion, or cruelty, is believed to
constitute crimes against marriage or marital offenses. The number of marital violations tends
to increase steadily. What's worse is that several of these incidents go unreported because of
the inability of culture to accept its morbid elements and victim-shaming. When it is clubbed
with fear and an unknown future, the scenario moves further south. The prime focus of the
Criminal & “Family Courts is to aid with the practical and controlled disposition of family cases
and grievances. However, specific issues are a matter of issue whenever it comes to these
courts' functioning, just like any other system. One dilemma like this is that of consistency.
For instance, in the family courts of Tamil Nadu, counselors are transferred after 3 months.
Therefore, where situations extend over a duration of time that is longer than this, the woman
or” the aggrieved party must adapt with new counselors and repeatedly retell their tale.

A critical feature of the "Family Courts Act" It's doesn't specifically authorize courts to grant
injunctions for domestic violence defense. Although improvement has been achieved, the
introduction of the "Protection of Women from Domestic Violence Act, 2005" now applies to
sentencing people for acts of aggression; jurisdiction concerns are yet to be resolved. It must
be recognized that the "Family Courts Act" be interpreted in its entirety, that is, Complying
with the terms of such laws, such as those of the Principles of Legal Practice on Jurisdictional
Issues.

Because the Family Court has the restrictive authority and may not have the ability to determine
contempt matters, persons do not appear to treat the court as strictly as a judge or a civil court
in the city might. It was also set down in the "Family Courts Act" that females ought to be the
bulk of judges. This clause has not, nevertheless, been complied with. During the workshop
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organized in "March 2002 by the National Commission for Women", it was observed "that out
of 84 judges in all the 84 courts" that operated at the period, only 18 female judges throughout
“the Family Courts India until then.”

The Government is allowed to lay down laws, including any extra credentials. The Central
Government has little place to function in this Act's operation, except recommending the
qualification of the Judges of Family Courts. Various High Courts have set down multiple
codes of practice. Such lack of standardization may also be one of the factors for the fact that
civil courts prefer to hear family conflicts. Therefore, “family courts need to align with
women's organizations and NGOs” concerned with protecting communities, women, and
infants.

Another matter of misunderstanding is that, according to Section 13, the Act states that a
claimant to the Family Court is not allowed to be served by a legal attorney as a matter of right.
However, the court can include the support of a legal professional, such as amicus curiae, in
the interests of justice. It is an instance in why, regardless of the bureaucratic lapses, the family
court's purpose is undermined. The idea that the hearings are conciliatory does not rid them of
the challenging legal questions that might result from the family conflict.

The concern is whether appointing of Lawyer can be helpful or averse to the performance of
family courts. At this critical issue, during the conference, it was stated that the "Women's
Commission" should analyze whether legislation could be proposed to encourage the
contribution of lawyers in compliance with a provision allowing the court the power to bring
an end to his vakalatnama if undue adjournments were used to prolong tactics. The lawyers
would not be eligible to receive adjournments if any oversight is provided to the judge. In
comparison, a layperson will be entirely ignorant of the legal language that, throughout the
trials, inevitably falls into action.

In comparison, it is not necessary to neglect the statute's factual nature since it is what lawsuits
are composed of. A realistic illustration of a functional law dilemma is that the husband
sometimes returns to mediation in a divorce situation, mostly because he wishes to avoid the
burden of supplying his wife with maintenance.

One prima issue with criminal courts regarding family matters that it takes yrs to bring
punishment, and thus, it has stopped deterring offenders. A lack of synergy occurs between the
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courts, the prosecutors, and the police. In a substantial majority of cases, a considerable
proportion of guilty criminals are left unpunished. On the opposite, numerous innocent
parties remain captives of the under trial. According to NCRB reports, 67.2 percent of our
current inmate population consists of inmates under inquiry.