. By T.V. Antony Raj .
“High Courts and the Supreme Court are courts of principles. The judges should not speak anything beyond the principles of a particular case. Let us not give lectures to the society. The problem is sometimes we judges impose our own values; our own likes or dislikes on the society.”
– Chief Justice S H. Kapadia
The responsibilities of judges to the public begin and end with their evaluation of the current law and its precise usage, without having to preach their very own beliefs, philosophies or preferences.
Honourable Dr. Justice K. Bhaktavatsala of the High Court of Karnataka seems to have overlooked this advice. Even so, some hail him as a judge clearly wearing a different judicial cloth.
Whereas other judges will definitely perceive an abusive and irresponsible marriage as good enough factor for permitting a divorce, he believes that it is his moral duty to play the role of a peacemaker in the matrimonial cases which often come before him.
Justice K. Bhaktavatsala Says, “Girl Under 21 must Get Parents’ Consent for Marriage”
Source: High Court of Karnataka
Last year, on February 2, 2011, Avinash, a resident of Bangalore, eloped with a minor girl to Krishnagiri. Five days later, the girl’s parents lodged a complaint of kidnapping against Avinash with the Wilson Garden Police, Bangalore.
Avinash too filed a habeas corpus plea. In his petition, Avinash said that he knew the girl, Ms. Sanghavi, for two to three years and they were in love for two to three months. However, their parents did not approve their marriage. Therefore, they left Bangalore and got married on March 2, in a Temple at Tali Village, Tenkanakote Taluk, Krishnagiri District, Tamil Nadu. When he came to know that the father of the girl lodged a missing complaint with Wilson Garden Police Station at Bangalore, he brought the girl to the Police Station. The custody of the girl was given to the girl’s father and her maternal uncle after they agreed to allow him to speak to the girl twice daily, but in vain. On April 4, 2011 he along with his friend Ajay went to the house of the girl’s maternal uncle inquiring about the whereabouts of the girl for which the maternal uncle abused him and threatened with dire consequences.
This Writ Petition (HC) filed under Article 226 of the Constitution of India, praying to issue a writ or order in the nature of habeas corpus directing the respondents to produce the corpus of the detenu Mrs. Sanghavi came up for hearing before the bench of Honourable Dr. Justice K. Bhaktavatsala and Justice K. Govindarajulu at the Karnataka High Court.
Sri K. N. Puttegowda, learned counsel appearing for the father of the girl, submitted on February 4, 2011 that Avinash, the petitioner kidnapped the girl, who was a minor. He alleged that on March 3, 2011, the petitioner had not completed the age of 21 years and therefore the petitioner’s claiming that the girl was legally his wedded wife, is not correct. He also submitted that it was the third love affair for the the petitioner.
On May 12, Honourable Dr. Justice K. Bhaktavatsala and Justice K. Govindarajulu pronounced judgement on the case. Here are some excerpts from this judgement.
6. The girl, who is present before us, submits that she was studying II Year PUC (2010-11) in NMKRV College, Jayanagar, Bangalore, and on 4.2.2011 when she was going to the College, the petitioner, who is friend of her brother, kidnapped and took her to Tamil Nadu and she did not marry the petitioner and she is happily living with her parents.
11. We have seen many cases of run away love marriages and untold misery and hardship of the parents of the girls. All the love marriages are not successful. In the event of failure of the love marriage of the girl, it is the girl and her parents have to suffer for their life long. The girls, later on, realise their mistake that they were hasty in love marriage and repent at leisure.
12. … In our opinion, the girls below the age of 21 years are not capable of forming a rational judgment as to suitability of the boy, who is in love. It is relevant to mention that those girls, who are suffering from harmonal imbalance easily fall prey to the boys and fall in love, marry and repent at leisure. The parents of the girl are interested in selecting a suitable boy and see that the girl leads a happy married life. … Hence, We suggest that in the case of love affair of a girl, who is below the age of 21 years, there shall be a condition that the parents of the girl should approve the marriage, otherwise such marriages shall be declared void or voidable.
13. Now, We refer to Section 361 of the Indian Penal Code. According to Section 361, whoever takes or entices a girl, who is under the age of 18 years out of the keeping of the lawful custody of such minor, without consent of such guardian, is set to kidnap such minor from lawful custody. The offence under Section 361 of the Indian Penal Code is punishable under Section 363 of the Indian Penal Code. From the above facts, We notice that the petitioner has kidnapped the girl, who was minor. It is an offence under Section 361 of the Indian Penal Code. We cannot close our eyes when it is brought to our notice the offence committed by the petitioner under the Penal Code. Therefore, We have to direct the Police to apprehend the petitioner, who is present before the Court, and he shall be dealt with, in accordance with law.
14. In the result, the Petition fails and the same is hereby dismissed, imposing costs of `10,000/-, which amount shall be deposited by the petitioner with this Court, within a month from today. Statement of Ms. Sanghavi made before us shows that the petitioner has kidnapped her. Hence, the Wilson Garden Police is directed to register a case against the petitioner. Further, the Wilson Garden Police is directed to apprehend the petitioner, who is present in the Court, and he shall be dealt with, in accordance with law. …”
Justice K. Bhaktavatsala Says, “Unmarried Lawyers Are Unfit to Argue Matrimony Cases”
A couple, both software engineers, after their marriage lived together for only a few months. They have a daughter who now lives with the mother.
On March 9, 2010, a family court rejected a divorce plea filed by the husband and advised the couple to forget the past and minor differences and live happily. However, the husband filed another appeal.
In September last year, a division bench said that “learned counsel for both parties have submitted that, in spite of granting enough time, they could not settle the matter amicably and, therefore, this matter may be heard on merits”.
On August 9, 2012, the case came up before the division bench of Justice K. Bhaktavatsala and Justice B.S. Indrakala. A young woman advocate took up the case on behalf of the estranged wife while the husband had taken the services of a senior designate – advocate M.T. Nanaiah.
While the woman advocate was citing the allegations against the husband, Justice Bhaktavatsala stopped her midway and asked, “Are you married?”
When she replied in the negative, the judge said, “You are unfit to argue this case. You do not know real life. Why are you arguing like this? He is your (client’s) partner, not a stranger. Family matters should be argued only by married people, not spinsters. You should only watch. Bachelors and spinsters watching family court proceedings will start thinking if there is any need to marry at all. Marriage is not like a public transport system. You better get married and you will get very good experience to argue such cases.”
The judge then asked the other advocate who was also appointed on behalf of the wife whether he was married. He said he was. The judge said it would be better if he argued the case.
The wife then said she was willing to go with the husband immediately. Even so, the husband’s advocate said they would rather live together for three months and then decide if they were compatible. The judge said he would have none of it, and asked the husband and wife to go out for lunch together and return immediately.
The judge said, “We feel very bad when such cases come before us. Think of the child and that will be the link between you both.”
He told the husband, “Take your wife out. Take her out for a coffee or better for lunch. Will you take her to Capitol Hotel?”
Then he turned to the wife and said, “Go with him.”
He asked them to speak to each other and solve their differences, and come back after lunch. He then asked, “You want money? I will pay for the expenses.”
When the couple came back after lunch, the judge asked them how much the bill was and who had paid it. The husband said he paid the bill of about Rs 500. The wife said she was willing to pay the amount to her husband. This indicated that they had not resolved their differences.
The wife said her husband wanted her to quit her job but she could not at this point of time as she was working in the US and was on leave for three months. The husband’s counsel insisted that they had to wait for three months before living together again.
Justice Bhaktavatsala said to the couple, “You will be happy together. In every family there are differences. You have a young daughter and both of you are software engineers. But if you separate, don’t think you will have a great time outside. Nobody will respect both of you. I have seen the case of two doctors who divorced. Both did not get good partners later. You will repent at leisure.”
The court ordered that the two appear again in court the following week along with their daughter.
Justice K. Bhaktavatsala Tells Abused Wife to ‘ADJUST’
A 37-year-old husband approached the High Court, stating that his wife had deserted him and had taken their two sons along with her. On August 17, both the parties were asked to be present before the court on August 31.
Both parties presented themselves before the bench of Justice K. Bhaktavatsala and Justice B.S. Indrakala on August 31,
The 28-year-old wife stated that her husband used to beat her and had driven her out of the house.
Justice Bhaktavatsala went on to advise the woman. He said: “Women suffer in all marriages. You are married with two children, and know what it means to suffer as a woman. Yesterday, there was a techie couple who reconciled for the sake of their child. Your husband is doing good business. He will take care of you. Why are you still talking about his beatings? I know you have undergone pain. But that is nothing in front of what you undergo as a woman. I have not undergone such pain. But madam (Justice B.S. Indrakala) has.”
When the woman’s advocate produced photographs showing her swollen face, Justice Bhaktavatsala said, “You have to adjust. Are you just behind money? There is nothing in your case to argue on merits. You have to give him a divorce or go with him. Have you read about actor Darshan. He spent 30 days in jail after beating his wife. But they are living together now. What is on your mind and what is on your agenda?”
The court directed the couple to go out and talk to each other. The man was told to speak to his son, and the judge asked, “What have you got for your son?”
When the boy refused to go near his father, the judge asked the woman, “Have you told him not to speak to his father?”
The woman replied that her husband had never spoken to their son. Therefore, the child feared him.
The court adjourned the case to a later date.
The Honourable Dr. Justice K. Bhaktavatsala of the High Court of Karnataka seems to be an enigmatic person indeed. NOW, YOU BE THE JUDGE…