IMPORTANT RULINGS (CIVIL)

Hon'ble SC in Bhoginbhai v. State of Gujarat, AIR 1988 SC 753 = 1983 Cri.L.J. 1096 observed, “Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious—

• 1. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

  2. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

  3. The power of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind, whereas it might go unnoticed on the part of another.

  4. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

  5. In regard to exact time of an incident, usually people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the time sense of individuals which varies from person to person.

  6. Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take pace in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

  7. A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by the counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him – perhaps it is a sort of psychological defence mechanism activated on the spur of the moment.

Discrepancies which do not go to the root of the matter and shake the basic version of the witness, therefore, cannot be annexed with undue importance. More so when the all important “probabilities-factor” echoes in favour of the witness.”

MAINTAINABILITY OF A CIVIL REVISION : TEST

SHIV SHAKTI COOP. HOUSING SOCIETY, NAGPUR V. M/S. SWARAJ DEVELOPERS & ORS , AIR 2003 SC 2434 : [2003] INSC 243 (17 April 2003)

32 A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. There is marked distinction in language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.

CUSTODY OF THE CHILD: WELFARE OF THE CHILD IS THE MAIN CONSIDEERATION

Gaurav Nagpal v Sumedha Nagpal, AIR 2009 SC 557 (Civil Appeal No.5099 of 2007 with Cri. Appeal No.491 of 2006 dated 19.11.08 )

Dr. Arijit Pasayat and G.S. Singhvi JJ.

(A) Hindu Minority and Guardianship Act (32 of 1956). Ss 6, 13 – Guardians and Wards Act (8 of 1890), Ss 7, 17 – Custody of minor – Grant of – Welfare of child is paramount consideration – Not right of parents under Statute – Moral and ethical welfare of child – Also ought to be a consideration.

• 1. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the 'welfare of the child' and not the rights of the parents under a statute for the time being in force.

CONCEPT OF MAINTENANCE: MAINTENANCE INCLUDES PROVISION FOR RESIDENCE

Komalam Amma v. Kumara Pillai Raghavan Pillai & Ors., AIR 2009 SC 636

Hindu Adoptions and Maintenance Act (78 of 1956). S 3(b) – Hindu Marriage Act (25 of 1955) – S.25 – Maintenance – includes provision for residence – Estranged wife cannot be denied right of residence in matrimonial home.

Maintenance necessarily must encompass a provision for for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing for the course of wife's life, aresidence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property, the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Sec.14(1). Para 9.

The dismissal of appeal against decree for declaration of title and possession passed in favour of husband as regards property over which charge has been created in maintenance proceedings filed by the wife of plaintiff, on ground that an estranged wife cannot claim right of residence in matrimonial home so as to resist the a decree for possession is improper. Matter remanded back to High Court for reconsideration.

EXPRESSION MAINTENANCE AND SUPPORT: SPECIAL MARRIAGE ACT

Rajesh Burmann v. Mitul Chatterjee (Barman), AIR 2009 SC 651 (C.K. Thakkar and D.K. Jain, JJ) Civil Appeal No.6443 of 2008 (arising out of SLP (c.) 14183 of 2007), Dated 04.11.2008.

Special Marriage Act (43 of 1954), Ss. 36,37 – Expressions “Maintenance” and “Support” - Includes within their sweep medical expenses – Matrimonial Proceedings for dissolution of marriage by wife pending – Application by wife for reimbursement of medical expenses u/S.151 CPC – Maintainable – Order directing husband to pay – No interference in exercise of discretionary and equitable jurisdiction under Art.136, held, called for.

Constitution of India, Art.136. (Para 18, 29, 30)

23. Reading the scheme of the Act, it is clear that wife is entitled to 'maintenance and support'. In our considered opinion, the learned counsel for the respondent-wife is right in submitting that the two terms 'maintenance' and 'support' are comprehensive in nature and of wide amplitude.

30 As already indicated earlier, the right of the wife to claim interim maintenance has been upheld by the Court and the said decision has attained fiality. Apart from the provisions of Hindu Marriage Act, 1955 or Hindu Adoptions and Maintenance Act,1956, in our considered opinion, the two expressions, 'maintenance' and 'support' in the Act of 1954 are comprehensive and of wide amplitude and they would take within their sweep medical expenses.

MONTHLY INCOME OF THE HUSBAND

CHITRA V. DHRUBA JYOTI, AIR 1988 Cal 98

“Monthly income of husband may not very often be within the knowledge of the wife, particularly in a case like this where the relation is considerably strained and the spouses are living apart for a considerably long period of time, the wife staying in India and the husband in the United Kingdom. In a case like this, the amount of the husband's income would be within the special knowledge and when the issue before Court is the amount of such income, the onus under S. 106, Evidence Act, would be on the husband to disclose the same and if he fails to do so without any good reasons, the Court would be entitled to presume against him and so accept the allegations of the wife as to the amount of income derived from such reasonable sources as would be available to her....

We have reminded ourselves of the dictum of the Privy Council in Murugessam Pillai v. Gnana Sambandha Pandana, AIR 1917 P.C. 6 at p.8 where it was observed as hereunder:

' A practice has grown up in Indian procedure of those in possession of important documents lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for for its decision. With regard to third parties, it may be right enough: they have no responsibility for the conduct of the suit; but with regard to the parties to the suit, it is in their Lordship's opinion, an inversion of sound practice for desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition”

These observations were endorsed by the Privy Council again in Rameshwar Singh v. Bajit Lal Pathak, AIR 1929 P.C.95 at p.99 and have now been quoted with approval by the Supreme Court in Hiralal v. Badkulal, AIR 1953 SC 255 at p.227, “We are of opinion that as a matter of onus under S.106 Evidence Act and also otherwise under the principles enunciated in the aforesaid decisions of the Privy Council and the Supreme Court, it was for the husband to disclose his income and he not having done that and not having also specifically denied the amount alleged by the wife to be his income, we would have to go by such allegation for the purpose of this application.”

TALAQUE  HOW PRONOUNCED: SUPREME COURT

BY HON’BLE JUSTICES : R.C. LAHOTI AND P VENKATARAMANA REDDI.

Shamim Ara vs. State of U.P. 2002(4) CHN (S.C. Suppl.)182

Para 17. We are also of the opinion that talaq to be effective  has to be pronounced. The term ‘pronounced’ means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate (see Chambers 20th Century Dictionary, New Edition, p.1030). there is no proof of Talaq having taken place in the Written Statement and its communication to the wife by delivering a copy of the written statement on 5.12.1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the Written Statement to the wife. The respondent No.2 ought to have adduced evidence and proved the pronouncement of talaq on 11.07.1987 and if he failed in proving the plea raised in the W.S., the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the Written Statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the Written Statement.