Use of RTI Act in matrimonial cases

Sau. Sushama Vs. Shri Pramod
High Court of Bombay
AIR 2009 Bom 111, 2009(3) BomCR 753, 2009(111) BomLR 1804, 2009(4) MhLj 81
17.03.2009
Facts
Divorce by mutual consent is allowed under the Hindu Marriage Act, 1995, but several
requirements must first be satisfied. Section 13B(1) of the Act requires the parties to
live separately for at least one year.4 Section 23(1)(bb) of the Act requires the family
court to satisfy itself that the consent was not obtained by force, fraud, or undue
influence.5
Ms Sushama Taksande is the wife of Mr Pramod Taksande. Ms Sushama challenged a
judgement affirming an order granting divorce by mutual consent. Under this order,
Ms Sushama was recorded as giving custody of two sons to the father, and waiving her
right of maintenance. Ms Sushama contended that her signature in the petition for
divorce and supporting affidavits were obtained under false pretences and compulsion,
and the condition of one year’s separation had not been satisfied.
4 Section 13(1) of the Hindu Marriage Act, 1955 reads:
13B. Divorce by mutual consent. —(1) Subject to the provisions of this Act a petition for
dissolution of marriage by a decree of divorce may be presented to the district court by
both the parties to a marriage together, whether such marriage was solemnised before
or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976),
on the ground that they have been living separately for a period of one year or more,
that they have not been able to live together and that they have mutually agreed that the
marriage should be dissolved.
5 Section 23(1)(bb) of the Hindu Marriage Act, 1955 reads in part:
(1) In any proceeding under this Act, whether defended or not, if the court is satisfied
that—
(bb) when a divorce is sought on the ground of mutual consent, such consent has not
been obtained by force, fraud or undue influence, and…
RTI: An Aid for Litigation 23
Mr Pramod contended that Ms Sushama had an affair with another person during their
marriage. She had changed her position only recently as the third person had refused
to marry or reside with her. Mr Pramod submitted that Ms Sushama should be charged
with perjury and contempt of court.
Use of RTI
Mr Pramod claimed that he had obtained four documents under the Right to Information
Act, 2005. One of these documents was a statement given by Ms Sushama two months
after the divorce, stating that she had a love affair with another man, had applied for a
divorce because of this and wanted the case to be decided within a month so that she
could live with him. She would give her mother-in-law and father-in-law custody of her
two sons, and would waive the right to maintenance. The documents also showed that
she had not been able to contact the other man via mobile phone for over 2-3 months
in more recent times. However, the Court found that “unless and until all these facts
[in the documents] are proved on record, no reliance can be placed upon the same”.
(Para. 7).
Decision
The Court held that lower court failed to record satisfactory compliance with Section
23(B) of the Hindu Marriage Act. The Court decided that claim of perjury is premature,
Ms Sushama could appeal the lower court’s judgement, and there was “no compliance
with the provisions of Section 23[1][bb] of the Hindu Marriage Act.” (Para. 13). The
lower court’s judgements were quashed and set aside and the case was restored to
the Civil Judge for further trial.
2 4 RTI: An Aid for Litigation
Nandkishor Vs. Kavita and Anr.
and Atharva
High Court of Bombay
Criminal Application No. 2970 of 2008
05.08.2009
Facts
Nandkishor and Kavita are husband and wife, respectively, and have a son named
Atharva. Kavita, the aggrieved party presented an application seeking relief under
Section 23 of the Protection of Women from Domestic Violence Act, 2005 (Domestic
Violence Act).6 The trial judge passed an interim order directing Nandkishor to pay
Rs. 1,200 (approximately 24 USD) per month to his wife, Kavita, and Rs. 600
(approximately 12 USD) per month to his son, Atharva. Nandkishor filed an appeal but
it was dismissed, so he filed a criminal application before the High Court of Bombay.
Nandkishor argued that Section 12 of the Domestic Violence Act requires that a
domestic incident report must be taken into account before passing an
6 Section 23 of the Protection of Women from Domestic Violence Act, 2005 reads:
23. Power to grant interim and ex parte orders.
(1) In any proceeding before him under this Act, the Magistrate may pass such interim
order as he deems just and proper.
(2) If the Magistrate is satisfied that an application prima facie discloses that the respondent
is committing, or has committed an act of domestic violence or that there is a likelihood
that the respondent may commit an act of domestic violence, he may grant an
ex parte order on the basis of the affidavit in such form, as may be prescribed, of the
aggrieved person under section 18, section 19, section 20, section 21 or, as the case may
be, section 22 against the respondent.
RTI: An Aid for Litigation 25
order.7 Nandkishor also argued that he actually makes less than Rs. 1,000 (approximately
20 USD) per month, rather than the claimed Rs. 25,000 (approximately 500 USD) per
month, so the ordered maintenance amounts were unreasonable.
Use of RTI
Nandkishor obtained information under the Right to Information Act, 2005 (RTI
Act) that mentioned that Kavita was working as a junior stenographer for Rs. 8,000
(approximately 160 USD). The Court held that because this information was not
presented to the trial judge, it could not have been considered, and is thus irrelevant
to the Court’s consideration of the trial judge’s order. The Court suggested that if
Nandkishor wished to modify the order in light of the additional information, he could
do so by applying to modify the order.
Decision
The Court confirmed the trial judge’s interim order for payment of monthly maintenance.
The Court also declared that Nandkishor was free to apply for modification of the order
according to the provisions of the Domestic Violence Act.