When Man can be said to be in 'Death Illness or Marzul Maut'

Advertisements:

 


In order to establish a 'Marzul Maut' (illness of Death) there must be atleast the following conditions.

i. Proximate with danger of death; so that there is apprehension that the death is more probable than life

ii. Apprehension should in the mind of sick man and not in the mind of others.

iii. There must be some degree of subjective apprehension of death in the mind of sick man and

iv. There must be some external indication.

Case laws

a. Husband is pleading and stated that wife was to live separately and used to behave rudely with every. She left not has learning her 4-5 age daughter and never took care of the daughter. She filed fake case of bigamy against husband. She did not attend her daughter's marriage.

Court granted divorce on the ground of desertion and cruelly. High court set it aside without giving reasons. Supreme Court held that High Court order is liable to be set aside. However, Supreme Court then dispose to appeal but since law was conferred power on High court to decide on appreciation of evidence mother remitted high court. Jagdish Singh vs. Madhuri Devi (2008) 10 SCC 49)

b. Though registration of marriage itself cannot be a proof of marriage per-se and would not be in determinative factor regarding validity of a marriage. Yet, it has great evidentiary value in family matters. As natural consequences, effect of non-registration would be that the presumption is liable for registration of marriages would not register. If record of marriage is kept to a large extent, the dispute concerning marriage often is avoided. Seema vs. Asnwin Kumar (2006)2 SCC 578:1158.

c. The marriage took place in England on 5th May 1966. Therefore, it was a foreign marriage within the meaning of Foreign Marriage Act, 1969. The said marriage was solemnized under the British Marriage Act, 1949. The marriage was thus governed by the Foreign Marriage Act of 199, which is a monogamous secular marriage. Therefore, it will have to be seen as to whether there is any Indian Law available in the field, which can apply to such monogamous secular marriage. No such law was available till the Special Marriage Act, 1954 was enacted.

It was contended that the parties are Indian citizens and, therefore, personal law of husband would govern the present marriage, viz. Muslim Law, because principle of lex domicilii would apply to them. But once it is held that the marriage took place in England, which is monogamous and secular and since such a marriage in India is in the form of Special Marriage Act, 1954, the personal law of Husband would not apply - Abdul Rahim (Dr) Undre v/s Smt. Padma, AIR 1982 Bom. 341.

There cannot be any comprehending definition of mental cruelty within which all kinds of mental cruelty can be covered, yet it deemed appropriate to enumerate some instances. These are only illustrative and not exhaustive.

i. On considerate of complete matrimonial life of parties, acute mental pain, agony, suffering that would not possible for parties to live with each other could come within the broad parameters of mental cruelty.

ii. On a comprehensive approval of the entire matrimonial life of the party, if it becomes abundantly clear that situation is such that the party cannot reasonably be asked to put up with such conduct and continue to live with other party.

iii. Mere boldness or lack of affection cannot amount to cruelty but frequent rudeness of language, parlance of manner, indifference and neglect may reveal such a degree that it makes the married life absolutely intolerable.

iv. ) Mental cruelty is a state of mind. The feeling of deep anguish disappointment, frustration, by conduct of the other spouse for a long time may lead to mental cruelty.

v. A sustain course of abusing and humiliating treatment collateral to torture discourage or render miserable life of the spouse.

vi. Sustained unjustifiable conduct or behaviour of one spouse actually affecting the physical and sound health of the other. The treatment complained of and the resultant danger or apprehension must be very grove, substantial and weightage.

vii. Sustained reprehensible conduct, studied neglect, indifference, or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

viii. The conduct must be more than jealousy, selfishness, possessiveness which cause unhappiness and dissatisfaction and emotional upset but may not be a ground for grant of divorce on the ground of mental cruelty.

ix. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on mental cruelty.

x. The married life should be reviewed as a whole and a few isolated instances are a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of spouse, the wronged party finds it extremely difficult to living with the other party any longer may amount to mental cruelty.

xi. If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes tubal ligation or abortion without medical reason or without consent or knowledge of the husband such an act of the spouse may lead to mental cruelty.

xii. Unilateral decision of either after marriage not to have child from marriage may amount to M.C.

xiii. Unilateral decision of refusal to have intercourse for considerable period without there being a physical incapacity or verbal reason may amount mental cruelty.

xiv. Where there has been long period of continuous separation, ii may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. The party refusing to severe the marriage tie shows scant regard for the feelings and emotions of the parties. Samir Ghosh vs. Jaya Ghosh (2007) 4 SCC 511.

1. If the girl on attaining puberty can plead the repudiation of her marriage in defence of her husband's suit for restitution of conjugal right, she is deemed to have exercised her option of puberty - Batloon vs Zuhurshah, AIR 1952 M.B. 30 and Nizamuddin vs Hussain, AIR 1960 MP 212 BUT SEE CONTRA Sahib Ali vs. Biswas vs Jinnathan Nahar, AIR 1960 Cal. 717

2. If wife is beaten inside the husband's house, it would be impossible for wife to produce witness to the beating. Therefore, corroboration is not an absolute requirement to enable the Courts to believe the Petitioner's evidence - Sakina Banu vs. Gulam Mustufa, AIR 1971 Bom. 166.

3. •In absence of provision to seek divorce for not maintaining wife, innumerable Muslim women were put to unspeakable misery. This was the reason for passing the Dissolution of Muslim Marriage Act so as to enable the Muslim Women to seek divorce on this ground - Jordan Diengden vs S.S.Chopra, AIR 1985 SC 935

4. A reference to 'Kabulnama' would show that the groom had bound himself with the condition that his wife would be in a position to give Talaq ex-parte. If he has agreed on his own will, it is binding on him - Manjali Bibi vs. Noor Husain, 1991 (2) SCC 731

5. Talaq is required to be given in Arabic under Shia and as suth, if it is not given in Arabic, it is not valid. Advocates are not 'Adil' witnesses of Talaq and as such, Talaq given in presence of Advocate is without witnesses and hence invalid - Dishad Masa vs. Mustufa. AIR 1986 JK 80

6. There is nothing in Law to support the proposition that Talaq comes into effect from the time when wife comes to know about it Mohd. Shamshuddin vs. Noor Jehan Begum AIR 1955 Hyd. 144

7. Talaq is to be given during the period when wife is in a state of 'Tuhur'. However, if husband is living separately and away from wife, he is not expected to know about the period of Tuhur and in such cases, the condition is inapplicable - Banu vs. Kamruddin Suleman 1995 (2) Mah. L.J. 56

8. A mere statement in the Written Statement cannot be treated as Oral Talaq and neither it can be treated as Deed of Talaq - Shaikh Mobin vs. State of Mah. 1995 (2) Mah. L.J. 810 AND Shamim Ara vs. State of UP, (2002) 7 SCC 518


Advertisements: