It has to be candidly conceded by all of us that a Division Bench of Punjab and Haryana High Court comprising of Hon’ble Mr Justice Rakesh Kumar Jain and Hon’ble Mr Justice Harnaresh Singh Gill in a latest, landmark and extremely laudable judgment titled Ravinder Yadav Vs Padmini @ Payal in FAO-M-126-2019 (O&M) delivered on May 17, 2019 has categorically and convincingly held that mere aggressive behaviour and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home. Thus we see that the Punjab and Haryana High Court in this case dismissed a matrimonial appeal filed by a husband. The Division Bench was considering an appeal filed by a man against the Family Court order which dismissed his petition.

While the ball is set rolling in the first para of this notable and praiseworthy judgment authored by Hon’ble Mr Justice Harnaresh Singh Gill for himself and Hon’ble Mr Justice Rakesh Kumar Jain wherein it is pointed out that, “By way of present appeal, appellant-Ravinder Yadav has assailed the judgment and decree dated 03.04.2019 passed by the District Judge, Narnaul, vide which his petition filed under Section 13 of the Hindu Marriage Act, 1955 (for short ‘the Act’) against respondent-Padmini @ Payal was dismissed.” The appellant thus wanted the Division Bench of High Court to review the judgment and decree which went against him!

To recapitulate, it is then pointed out in the next para that, “The facts which need to be elaborated are that the marriage of the appellant and the respondent was solemnized on 09.03.2015 as per Hindu rites and ceremonies. The marriage was consummated but no child was born out of the said wedlock. As per the allegations in the petition, the respondent-wife always imbibed with independent and modern thoughts posing herself to be a broad minded lady. Right from the next day of marriage, respondent started quarrelling with the appellant and his parents and threatened them to do everything under her command. The respondent flatly refused to perform household work and alleged that if she was compelled to do so, she would commit suicide and create problems for appellant and his family members. It was alleged that the respondent used to consume liquor and take drugs and had illicit relations with one Kuldeep Shekhawat. She was in the habit of leaving matrimonial home without informing the appellant and his family members and on asking, she used to say that nobody was allowed to interfere in her personal life. The respondent often used to make phone calls on mobile No. 9521677437 (at some places the mobile number is mentioned as 9621677437) and whenever the appellant called her she would remain busy on whatsapp and facebook with strangers and friends. The respondent even refused to share bed with the appellant which had caused mental cruelty to him. As per the appellant, the respondent left her matrimonial home on 17.04.2015 without informing him and his family members. On 06.05.2015, her father along with other respectable came to the appellant’s place and used bad words against him and his family members. The respondent also broke the Mangalsutra (Necklace) in the presence of the Panchayat members and flatly refused to live with the appellant as his wife and left her matrimonial home on 13.05.2015.”

Needless to say, it is then pointed out in the next para that, “On the other hand, the respondent-wife, though admitted the factum of marriage yet specifically denied that she had ever raised her voice, rather asserted that she had followed all the social and religious customs in her matrimonial home. She alleged that the appellant is M.Sc., M.Ed. qualified and was doing job in a private school. It is also alleged that the appellant used to pressurize the respondent to bring more money from her parents and asked her parents to sell their land, but the respondent and her father did not accede to such demand of the appellant. It was the appellant and his parents, who harassed the respondent physically and mentally and used to call a Tantrik for doing black magic upon her. She had denied the factum of attempting to commit a suicide. She used to prepare the food for the appellant and his family members at proper time and used to serve the guests as well. It was also denied by the respondent that she was a wanderer or used to consume liquor or drugs. The incident dated 06.05.2015 was admitted by the respondent as her family members came to drop her back to her matrimonial home. However, she was never accepted by the appellant and his family. They tortured her and ultimately she was turned out of her matrimonial home.”

As things stand, it is then pointed out in the next para that, “In the present case, issues were framed on 09.05.2017 and the appellant had examined as many as five witnesses along with his mother, namely, Bhatteri Devi as PW-2.”

Moving on, it is then illustrated in the next para that, “On the other hand, respondent had appeared into the witness box as RW-1 along with his father and other witnesses. After taking into consideration the evidence on record, the petition under Section 13 of the Act was dismissed on the ground that marriage was solemnized on 09.03.2015 and the respondent-wife had been residing with her parents since 13.05.2015 and the present petition was filed by the appellant-husband on 25.02.2016. It was, thus, held that the allegations of cruelty remained unsubstantiated.”

After hearing both sides, it is then held in the next para that, “We have heard learned counsel for the parties and are of the view that there is no infirmity and illegality in the impugned judgment and decree passed by the trial Court.”

Furthermore, it is then held in the next para that, “PW-3, namely, Vartika, in her cross examination had testified that the respondent was having illicit relations with one Kuldeep Shekhawat and his name was told to her by her friend Raveena. This witness further stated that she had come in contact with the respondent while studying and staying as a Paying Guest and had made a complaint to the owner of the P.G. regarding the behavior and conduct of the respondent-wife. Neither the owner of the P.G. stepped into the witness box to throw light on the said aspect nor any link evidence in this regard was led. Thus, the oral evidence of Vartika, PW-3 will not advance the cause of the appellant/petitioner.”

What’s more, it is then pointed out in the next para that, “Though it is an admitted fact, as it had come through oral testimony, that the respondent-wife has been residing separately since 13.05.2015, but to our mind, it is the appellant, who alone is instrumental in ensuring that the respondent-wife stays away from her matrimonial home and there is no intentional cessation of cohabitation on the part of the respondent-wife nor there is any intention to desert the appellant-husband.”

It cannot be lost on us that it is then made clear in the next para that, “The statutory period of two years of desertion, as envisaged under the Act, immediately preceding the presentation of the petition, had not expired, before the filing of the divorce petition by the appellant. At this stage, it would be relevant to consider Section 13(ia) and (ib) of the Act which reads as under:-

13. Divorce

(1) Any marriage solemnised, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

[(i) xxx xxx xxx

[(ia) has after the solemnization of the marriage, treated the petitioner with cruelty; or

[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or”

To be sure, we thus see that it is then laid down explicitly in the next para that, “In Section 13(1)(ib) of the Act, it has been specifically laid down that desertion is to be considered for the continuous period of not less than two years, immediately preceding the presentation of the petition.”

As it turned out, it is then held in this new para that, “In the case in hand, the respondent-wife has allegedly left her matrimonial home on 13.05.2015 and the present petition was filed on 25.02.2016, thus, on the date of filing of the divorce petition, the statutory period of two years had not expired. Thus, the present divorce petition had rightly been rejected on this count by the Court below.”

To say the least, it is then held that, “Thus, the relief of divorce was denied because the legislation in its wisdom had framed the Act on the basis of “fault theory” and “break down theory” which was not proved in the present case.”

To put things in perspective, it is then pointed out that, “In Rajni Goyal versus Amit Kumar 2015 (2) R.C.R. (Civil) 871, the Hon’ble Court has held that “adultery is a serious charge and has to be proved beyond reasonable doubt. But at the same time it is difficult to procure direct evidence for procuring such a charge. It is only from the circumstances that an inference can be drawn that the spouse against whom complaint has been made was leading an adulterous life”.”

More importantly, it is then held that, “To our mind, in the present case there is ordinary wear and tear of the married life of the parties, which happens in day to day life. Mere aggressive behavior and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home.”

To put it succinctly, it is then aptly pointed out that, “It has been held by the Apex Court in Samar Ghosh versus Jaya Ghosh, 2007 (2) R.C.R. (Criminal) 515 that the concept of cruelty differs from person to person, depending upon his or her upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Therefore, it is essential for the party claiming the relief to prove that a particular conduct or behaviour has resulted into cruelty to him or her. The aggrieved party has to make specific case that the conduct of the spouse had caused cruelty to him/her. It is for the Court to weigh the gravity of alleged cruelty. It has to be seen whether the conduct was such that no reasonable person would tolerate it.”

Finally and perhaps most importantly, it is then very rightly held that, “In the present case, no cogent evidence has been placed on record that the behaviour of respondent is uncalled for. Regarding relationship of respondent-wife with Kuldeep Shekhawat the same had not been proved and above all Kuldeep Shekhawat had not been arrayed as party in the divorce petition so that he could join the proceedings and some light could have been thrown on the allegation. As a matter of fact adultery cannot be considered without impleading the alleged adulterer as per Rule 10 of Hindu Marriage (Punjab) Rules, 1956. Rather unsubstantiated and uncorroborated testimony associating the respondent with adulterer has caused mental cruelty to the respondent. Thus nuptial knots cannot be allowed to be broken on these types of unfounded allegations of cruelty, physical or mental. In view of the above, we do not find any illegality or infirmity in the order passed by the learned trial Court, which may warrant interference by this Court in the present appeal. Hence, the present appeal is dismissed. No order as to costs.”

In conclusion, the Division Bench of Punjab and Haryana High Court has made it explicitly clear in this latest, landmark and extremely laudable judgment that mere aggressive behaviour of wife cannot be a ground for divorce. There have to be strong grounds on which divorce can be granted. Just mere allegations of adultery also are not sufficient to constitute a ground of divorce. It must also be proved beyond a shadow of doubt for it to be admissible in a court of law. It was held in this case that the husband failed to produce cogent evidence against the wife and therefore his petition for divorce on the ground of cruelty was rejected! It was also very rightly held that mere aggressive behaviour wife and sadness of mood of wife does not mean that the wife is spoiling the atmosphere of her matrimonial home! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

To start with, a woman advocate named Ms Indu Kaul who is a regularly practising lady advocate duly entered on the roll of bar Council of Delhi under Advocates Act, 1961 has approached the Supreme Court by filing a Public Interest Litigation (PIL) seeking CBI enquiry in the murder case of Ms Darvesh Yadav who was the newly elected President of UP Bar Council and who was shot dead within just three days of her election right inside court premises! It merits no reiteration that her brutal murder in court premises itself has thrown up very serious questions regarding the security level and this has been taken very seriously even by the Allahabad High Court itself! Chief Justice Govind Mathur of Allahabad High Court has asked all the District Judges of the State to take necessary steps for security of court campuses across the state. The Registrar General of Allahabad High Court in the communication dated June 21 has asked all the District Judges to ensure that adequate security is provided to all the persons related to ‘dispensation of justice’ in the state.

Earlier a delegation led by acting Chairman of UP Bar Council Prashant Singh Atal had met the Chief Justice with regard to murder of advocate and Chairperson of UP Bar Council – Darvesh Yadav on the Agra court premises. The delegation had demanded security for office-bearers and members of the UP Bar Council and also earnestly requested the Chief Justice to ban entry of persons carrying weapons in court premises across the state. Why ban entry of persons carrying weapons in just UP alone? It should be banned uniformly all across India in all the courts in our country!

It must be mentioned here that in her PIL, advocate Indu Kaul has also sought a direction to the Bar Council of India to formulate a scheme towards the Social Security Measures for lady advocates and also for providing police security to lady advocates in court premises and its amenities beyond court working hours throughout the country. There is a lot of merit in what she has said so eloquently in her petition. The Supreme Court has agreed to hear the matter on June 25.

First and foremost, it is pointed out in the petition that, “The instant petition under Article 32 of the Constitution of India is in the nature of a Public Interest Litigation highlighting the dastardly murder of first chairperson of U.P. Bar Council and lady advocate Ms Darvesh Yadav practicing at Agra District Court on 12.06.2019 by her male colleague Manish Sharma inside the chamber situated in precinct of Agra district court, State of U.P. Late Darvesh Yadav got elected as Chairperson of the Bar Council of Uttar Pradesh on 09.06.2019 and immediately after that she propelled into the world of success being the first lady Chairperson of the state bar council. Prior to this no lady advocate in the country has earned this accolade in any Bar Council in the country. Darvesh was 38 years of age and was single and unmarried. The irony is that the scourge of her dastardly murder was none other than her male colleague Manish Sharma who had been her senior in law college also and thus an old acquaintance. It is claimed by several eyewitnesses to her murder as reported in livelaw.in on 12.06.2019 and the Times of India dated 13.06.2019 and other websites namely Bar and Bench, The First Post etc. that Manish Sharma was heard saying “Tu jeet gayi (You’ve won.)” before he shot her dead thrice minutes after the victory procession was taken out at Agra district court celebrating the victory of Darvesh Yadav’s on her becoming elected as the Chairperson of Uttar Pradesh Bar Council. As reported there had been a fallout between Darvesh and Manish recently and advocate colleagues were surprised to see Manish present at the celebrations. Manish Sharma shot her thrice and then shot himself. Darvesh Yadav succumbed to her injuries on the spot. Manish Sharma was taken to the hospital where he died later. Male insecurity has been a common feature from women placed at a higher position and in many instances this becomes a constant threat for successful women. While reporting this incident it has also been found on social media that this male insecurity might have been the motive for killing Darvesh Yadav as she broke the glass ceiling by intruding and trespassing into the men’s domain.”

Furthermore, it is then mentioned that, “It is germane to mention that Bar Council of India respondent no. 3 has made an appeal for Advocate Protection Bill. As reported in livelaw.in dated 12.06.2019 Chairman, Bar Council of India issued a Press Release demanding that a compensation of Rs. 50 lakhs be given to the family of the deceased besides strict security of members of the Bar across country. It is ironical that the Bar Council of India Respondent No. 3 instead of paying a suitable compensation to the deceased from its own Advocate Welfares’ Fund collected from the enrolment advocates’ across the country through respective state bar councils is issuing a Press release. In addition to this Bar Councils from different states and Bar Council of India collect a huge amount of money on the sale of Advocates’ Welfare Stamp affixed mandatorily on every Vakalatnama irrespective of the fact that the case is criminal, jail petition, of women, old and indigent persons and/or PIL.”

More importantly, it is then pointed out in the next para that, “This petition raises an important issue that there is no social security provided to the advocates either through bar councils or bar associations. Many a times in case of premature death or fatal illness some bar associations for e.g. Supreme Court Bar Association extends a paltry sum of Rs 50000/- to Rs. 1 lakh for illness and Rs 5 lakhs in case of death and it is not out of context to mention here that on the common appeal for financial assistance by advocates, there has been some occasions when senior advocates/advocates who are well off have made generous contributions/donations. Recently as per the newspapers and bar circulars Delhi Government has promised a sum of Rs. 50 lakhs to the Bar Council of Delhi but as per the information of the petitioner there is no uniform policy of disbursement of the ‘Advocate Welfare Funds’ to ill, indisposed of on death of an advocate. Neither the bar councils nor the bar associations have formulated any policy for providing social security to the advocate members. It will not be out of context to mention here that even after ‘one bar one vote’ advocates do take membership of different associations for availing the bar facilities in the court premises but may opt to cast their vote in a bar of their choice, the paradox is when they suffer illness or injury they are left at the mercy of their own funds. The petitioner by this writ petition vindicates the fundamental rights of ill, indisposed, indigent, old and lady advocates (young and married) as guaranteed under Article 21 of the Indian Constitution to lead a life with dignity in such conditions when they are not in active practice. For instance, the petitioner by way of this Public Interest Litigation raises an issue of national importance as to would there have been any source of sustenance of Darvesh Yadav if luckily she would have survived the attack but became physically indisposed for being able to continue in active practice? An advocate like any other citizen of India has to pay for medical treatment by taking life insurance, medi claim insurance, pension, disability allowance, non-practising allowance for looking after themselves, their old parents, children’s education etc. The present petition thus raises the issue of social security of advocates at large and particularly of lady advocates and protection of lady advocates in court premises, chambers, restrooms, car parking, bar offices and libraries after the court hours.”

What’s more, the sequence of events is then described in chronological order stating that, “The List of Dates is as follows:

09.06.2019 Darvesh Yadav was elected as the Chairperson of Bar Council of U.P.

12.06.2019 The last rites of Ms. Darvesh Yadav were performed in her native village Chandpur, Etah district, UP. State Law Minister Brijesh Pathak also attended the last rites of Darvesh Yadav.

12.06.2019 FIR No. 0390 dated 12.06.2019 has been lodged at P.S New Agra Distt. Agra, Uttar Pradesh by one informant Sunny Yadav, nephew of the deceased. It is reported that the chief minister of Uttar Pradesh gave instructions to the Distt. Authorities for investigation through SSP but no announcement has been made to give ex gratia amount to the deceased advocate.

19.06.2019 The petitioner invokes the extra ordinary jurisdiction of this Hon’ble Court by way of Public Interest Litigation under Article 32 of the Constitution of India praying for protection of lady advocates in the court precincts including her chamber and implementation of social security system by bar councils who have enormous funds in the name of Advocates’ Welfare Funds.”

Most importantly, the reasons why relief is sought is very rightly highlighted by the petitioner in para 9 stating, “That the present Writ Petition under Article 32 of the Constitution of India raises important issues pertaining to protection of lady advocates in court premises and also for having a uniform social security measure provided to them for sustaining themselves in case they suffer from any physical disability and premature death. The Petitioner thus invokes the extra ordinary civil writ jurisdiction for the issuance of the writ of mandamus on following amongst other:-

REASONS

I. BECAUSE the safety in court premises, chamber blocks, bar libraries, bar offices, car parking has no security provision like deployment of police personnels at these places.

II. BECAUSE for the safety of lady separate rest rooms for ladies at distanced locations in close proximity of chamber blocks need to be constructed.

III. BECAUSE there are combined chamber blocks for men and lady advocates, lady advocates fall easy prey to misbehaving male advocates including those who do not desist from consuming liquor inside the chambers and under the pretext of liquor loosely conduct themselves at public places like car parking, bar libraries and at times inside the bar offices.

IV. BECAUSE women by and large are still unsafe in this country post amendments in criminal law and as almost every day one finds reporting about incidents of rape, sexual assault, acid attack etc. The common psyche of men in general and male advocates in particular is a lady advocate working late hours and/or wearing modern dresses is an easy going person and often lewd comments are passed against her.

V. BECAUSE Lady advocates are found to be contesting elections in many bar associations and bar councils, the brutal murder of Darvesh Yadav in court chamber is a big deterrent for any lady advocate to dare to contest elections.

VI. BECAUSE such incidents of rape, sexual assault, voyeurism, eve teasing reflects gender disparity even after nearly 100 years of entry of lady advocates who still maintain the rule of ‘sunrise to sunset practice’ as they still do not find it safe to work beyond court hours.

VII. BECAUSE the women representation in the legal profession is abysmally low despite mushrooming law colleges all over the country as lady advocates still prefer corporate practice and law firms instead of litigations mainly due to lack of infrastructural facilities and security.

VIII. BECAUSE the young lady advocates who get into marriage and have to stay away from courts periodically when they are on family way, there is no social security measure introduced towards maternity benefits. In case of illness, indisposition, old age and her becoming indigent her situation is even worse for want of non practising allowance.

IX. BECAUSE there is no retirement age in the profession a lady advocate becomes pitiable in her old age when her practice diminishes due to her health condition and her family still nourishes the impression that being an advocate she must be capable of earning her livelihood. Through social security measures there must be a provision for pension when she opts out of active practice.

X. BECAUSE wide gender difference is found despite increased women participation due to the professional uncertainties. The requirement of legal professional coupled with societal expectations act as inherent barriers for women. One has to invest at least 12 hours every day to survive in the field. Under these circumstances, a lady lawyer has to slog for long hours in their chambers so without adequate security facilities it is not possible.

XI. BECAUSE if a lady advocate breaks the stereotype of being meek and that she can break the glass ceiling all circumstances start working against her such as hostility from male colleagues, insecurity in the court premises, lack of social security measures and family expectations. She has to fight it all alone.

XII. BECAUSE the Bar Council of India instead of paying a suitable compensation to the deceased from its own Advocates Welfares’ Fund collected from the enrolment advocates’ across the country through respective state bar councils is issuing a Press release. In addition to this Bar Councils from different states and Bar Council of India collect a huge amount of money on the sale of Advocates’ Welfare Stamp affixed mandatorily on every Vakalatnama irrespective of the fact that the case is criminal, jail petition, of women, old and indigent persons and/or PIL. Bar Council of India, state bar councils have not formulated any social security measures for the sustenance of the lady advocates in their non-active period in the profession despite having huge savings under ‘Advocates Welfare Funds’ as enrolment fee, verification of licence fee and earnings from welfare stamps.”

All said and done, the petitioner has raised very valid points in her writ petition by which lady advocates can stand to gain immensely if the Supreme Court grants her relief. The petitioner Indu Kaul who herself is a practicing lady advocate has very rightly sought direction to the Bar Council of India to formulate schemes towards the Social Security Measures for lady advocates and most importantly has very rightly sought police security to lady advocates not just in court premises but also beyond court premises in working hours throughout the country. It will be a major breakthrough if the Supreme Court accepts her writ petition and this will not just be her personal victory but it will be the victory of all lady advocates who under present circumstances are working in unfavourable conditions with no security available to them which some times even culminates in their gruesome murder also as we saw just recently in the case of UP Bar Council Chairperson Darvesh Yadav who was murdered right inside court premises shortly after attending the welcome ceremony of being elected as Chairperson! This burning issue directly concerning the security of lady advocates cannot be kept any longer in the cold storage! There can be no denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.