Daily Archives: August 16, 2015

2 decades of misery & isolation is breakdown. Madras HC orders divorce, though wife ready 2 live wid husband

Highly educated parties do NOT see eye to eye from the very beginning

“…..8. The parties are highly educated and hail from affluent and respected family. But they miserably failed, rather refused to understand the basic and fundamental requirements of leading a family life with minor adjustments with each other. They virtually spent 20 years of youthful life in isolation by living apart. Even during the shortest period they lived under one roof, silence was the only language of conversation between them. Even sporting a smile to each other was unknown and unheard of and virtually they have led a robotic life for no tangible reason. Of-course, it is often said, passage of time would heal the wound in the mind of the people, but in the case of the parties here, the adage worked otherwise about  the gap in the marital life has widened as huge as the years rolled on. ….”

“…..Taking note of enunciation of law in the above referred to cases and also taking into consideration of the fact that the appellant and the respondent in this case have been living separately since the year of marriage, i.e., for two decades, we are of the view that it is impossible and impracticable to preserve the marriage and any further effort to keep the marriage alive, would prove to be totally counter-productive and in order to do complete justice and to shorten the agony of the parties engaged in a long-drawn legal battle, we are of the view that the order of the Family Court ordering restitution of conjugal rights has to be set aside and it is accordingly set aside. There shall be a decree of dissolution of marriage between the appellant and the respondent which took place on 10.06.1988. …..”

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 01.07.2008

Coram :

THE HONOURABLE MR.JUSTICE K.RAVIRJA PANDIAN

and

THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA

Civil Miscellaneous Appeals Nos.611 and 612 of 2007

Dr.Gopal Ramanathan    Appellant in both the appeals

v.

Jayashree            Respondent in both the appeals.

Civil Miscellaneous Appeals filed under section 19 of the Family Court Act against the judgment and decree dated 12.07.2006 made in O.Ps. Nos.595 and 995 of 2001 on the file of the II Additional Principal Judge, Family Court, Chennai.

For appellant        :    Mrs.Hema Sampath

For respondent    :    Mr.T.Mohan

JUDGMENT

K.RAVIRAJA PANDIAN, J.

The appellant-husband, who is a doctor filed O.P. No.595 of 2001 against the respondent wife under section 13(1)(ia)(ib) of the Hindu Marriages Act seeking a decree of divorce by dissolving the marriage that took place between the parties on 10.06.1988 at Chennai and the respondent-wife filed O.P. No.995 of 2002 before the same Court for restitution of conjugal rights. Both the cases were disposed of by the II Additional Family Judge, Chennai by a common order dated 12.07.2006 by dismissing the O.P. filed by the appellant-husband and as necessary corollary the O.P. filed by the respondent wife was allowed directing the appellant-husband to restore to the respondent-wife all the comforts and bliss of married life. The correctness of the said order is canvassed in these appeals by the appellant-husband. For the sake of convenience, the husband is referred to as the appellant and wife is referred to as the respondent.

2. The material facts of the case proceed as follows :

The marriage between the appellant and the respondent took place on 10.06.1988 at Hotel Kanchi, Chennai, as per the Hindu rites and customs. It is the case of the appellant that the respondent had negative attitude and was pessimistic not only with the appellant, but also with the other family members of the appellant. The appellant thought that the respondent would change in due course of time and gave her a long rope. Even after seven years of marriage, the respondent has not changed her attitude. However she was interested to spend more time with her parents. The appellant used to take the respondent out of city for three to four weeks in a year with the fond hope that the respondent’s attitude towards the appellant would change and they could lead a normal life. The respondent never took any initiatives to have intercourse with the appellant to develop the family ever after lapse of years of marriage. All the initiation taken by the appellant to make the respondent to lead a normal family life ended in vain. The respondent’s parents took no initiatives to rectify the indifferent attitude of the respondent, when it was informed to them. It is the case of the appellant that even though the appellant and the respondent lived under the same roof, for a year or more, they had no conversation among themselves. When the appellant wanted to sort out the problem, the respondent mistook and left the matrimonial home on 07.04.2000 along with her belongings. Both of them had a counselling before the famous Pshychiatrist Dr.Mathrubutham. He expressed that the marriage between the appellant and the respondent would not work out and the marriage has irretrievably broken down and advised them to part with each other.

3. On the above stated facts, the appellant filed a petition for divorce on the ground that the respondent caused mental cruelty by adopting a peculiar way of behaviour which is not expected of a wife; that there was no conversation between the husband and the wife for a year or more though they lived under one roof; that thereafter they lived apart from the year 2000; that the respondent’s adamant attitude of not giving the appellant marital pleasures; that the attitude of the respondent reaching the position of not meeting the ends at any point of time, which resulted in the breaking down of the marriage irretrievable.

4. The respondent, the holder of Master degree in pharmacy from the Government college of Pharmacy, working as a tutor in the department of pharmacology at Kilpauk Medical college in Chennai. The respondent has denied the allegations of negative attitude and pessimistic views and also alleged that their sexual life was satisfactory. It is the case of the respondent that the attitude of the appellant towards her changed in and around 1989. The appellant indicated that both of them were incompatible to each other and wanted her to leave her matrimonial home and thus, the respondent left the matrimonial home on 07.04.2000 against her wish. It is true that the parties underwent counselling of a psychiatrist, but because of the mind set up of the appellant, no useful fruit came out of counselling. During February 2001, the respondent’s colleagues Mrs. Revathy Kalyanakrishnan and Dr.Muthulakshmi Bharathi and the respondent’s relatives Mrs. Lalitha Kalyan and K.A. Jayalakshmi attempted to make the appellant to stand to reason for his allegation of cruelty. All the attempts made by the respondent failed. The appellant failed to make out a case of divorce on the ground of cruelty. On that premise the respondent sought to dismiss the petition for divorce and sought for a decree for restitution of conjugal rights. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. As stated earlier in the preamble portion, the II Additional Principal Judge, Family Court, Chennai dismissed the petition filed by the appellant for divorce and allowed the petition filed by the respondent for restitution of conjugal rights.

6. When the matter was taken up for orders some months back, learned counsel on either side stated that the Bench may directly find out the views of the parties so that the parties would be in a position to have their disputes resolved in an amicable manner. As the matter involves the relationship between the husband and the wife, which is delecate in nature, the Bench also accepted the request of the counsel and asked the parties to be present in Court and express their mind so as to enable this Court to pass a suitable order. Accordingly, the parties were present in the Court and both of them stuck to their respective stand. Counsel on either side expressed their inability to bring the parties to have an amicable settlement and left the dispute to be decided by the Court in accordance with law. Again, more than five times, the case was adjourned so as to enable the respective counsel to counsel their respective parties to reach an amicable settlement.

7. We heard the learned counsel on either side and perused the materials available on record.

8. The parties are highly educated and hail from affluent and respected family. But they miserably failed, rather refused to understand the basic and fundamental requirements of leading a family life with minor adjustments with each other. They virtually spent 20 years of youthful life in isolation by living apart. Even during the shortest period they lived under one roof, silence was the only language of conversation between them. Even sporting a smile to each other was unknown and unheard of and virtually they have led a robotic life for no tangible reason. Of-course, it is often said, passage of time would heal the wound in the mind of the people, but in the case of the parties here, the adage worked otherwise about  the gap in the marital life has widened as huge as the years rolled on. The wife is also highly educated and she, after spending more than two decades of youthful life by living in isolation from her husband, however, expressed that she is willing to live with the appellant, who is hating her and made her stay away from him for such a long number of years. When the Court suggested the appellant to start a new life with the respondent, as she is willing, he expressed his difficulty with emotion to the effect that it is highly impossible for him even to think of it.

9. On the above stated factual situation, the one and the only conclusion that could be arrived at is there had been a long period of continuous separation, the marriage bond has broken beyond any possible repair. The marriage became a fiction though supported by a legal tie. The denial of marital comforts to each other for long period of years led to mental cruelty.

10. In matters relating to matrimonial disharmony leading to filing of the divorce petition, the decision of the Supreme Court in the case of Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675, needs to be noted. In the said decision, where both the spouses had been living separately for a fairly long number of years and could not reconcile themselves to live together, forgetting their past, the apex Court granted the decree of divorce. It has been the view of the apex Court in a line of decisions that though irretrievable marriage is not a ground for dissolution of marriage under the Hindu Marriage Act, 1955, and irretrievable marriage cannot be used as a formula to gain relief of divorce automatically (Chetan Dass v. Kamala Devi, (2001) 4 SCC 250), that the words ‘conduct of cruelty of the spouses cannot be decided on the basis of the sanctity of the marriage between the parties, if after endeavour to reconcile the parties, the breakdown is irreparable, then divorce should not be withheld. (Naveen Kohli’s case cited supra). The apex Court in the case of Naveen Kohli further held that it would be unrealistic for the law not to take notice of that fact and it would be harmful to society and injurious to the interest of the parties. Where there being a long period of continuous separation, it may fairly be surmised that the irretrievable bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage, on the contrary, it shows scant regard for the feelings and emotions of parties. Taking note of the fact that the parties in that case had been living separately for more than ten years and the number of proceedings initiated by one party against the other, the apex Court found that the marriage between the parties was only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentiality more prejudicial to the public interest than a dissolution of the marriage bond. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. The apex Court once again in the case of Samar Ghosh v. Jaya Ghose, (2007) 2 MLJ 1185 had an occasion to consider a similar situation. Referring to various case laws on the subject including Naveen Kohli, the Supreme Court held that, “under the breakdown theory, divorce should be seen as a solution and an escape route out of a difficult situation. Such a divorce unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances”. On the question of cruelty, the apex Court further observed that there can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. Yet, the apex Court, by way of illustration, listed out the instances of mental cruelty, as follows :

“(i) On consideration of complete matrimonial life of the parties,
acute mental pain, agony and suffering as would not make possible for
the parties to live with each other could come within the broad
parameters of mental cruelty.

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

(iii) Mere coldness or lack of affection cannot amount to cruelty,
frequent rudeness of language, petulance of manner, indifference and
neglect may reach such a degree that it makes the married life for
the other spouse absolutely intolerable.

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

(v) A sustained course of abusive and humiliating treatment
calculated to torture, discommode or render miserable life of the
spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse
actually affecting physical and mental health of the other spouse.
The treatment complained of and the resultant danger or apprehension
must be grave, substantial and weighty.

(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 much more than jealousy, selfishness,
possessiveness, which causes unhappiness and dissatisfaction and
emotional upset 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 the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few
isolated instances over 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 a spouse, the wronged party finds it extremely
difficult to live 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 vasectomy or abortion
without medical reason or without the consent or knowledge of her
husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for
considerable period without there being any physical incapacity or
valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage
not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation,
it may fairly be concluded that the matrimonial bond is beyond
repair. The marriage becomes a fiction though supported by a legal
tie. By refusing to sever that tie, the law in such cases, does not
serve the sanctity of marriage; on the contrary, it shows scant
regard for the feelings and emotions of the parties. In such like
situations, it may lead to mental cruelty. “

10. Taking note of enunciation of law in the above referred to cases and also taking into consideration of the fact that the appellant and the respondent in this case have been living separately since the year of marriage, i.e., for two decades, we are of the view that it is impossible and impracticable to preserve the marriage and any further effort to keep the marriage alive, would prove to be totally counter-productive and in order to do complete justice and to shorten the agony of the parties engaged in a long-drawn legal battle, we are of the view that the order of the Family Court ordering restitution of conjugal rights has to be set aside and it is accordingly set aside. There shall be a decree of dissolution of marriage between the appellant and the respondent which took place on 10.06.1988. The appeals are allowed. But, in the circumstances of the case, there shall be no order as to costs.

(K.R.P.,J.) (P.P.S.J.,J.) 01.07.2008

Index : Yes

Internet : Yes

mf

K.RAVIRAJA PANDIAN, J.

And P.P.S.JANARTHANA RAJA, J.

CMAs. Nos.611 & 612/2007 01.07.2008

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Early morning he wanted VIOLENT SEX. When refused he asked 2lakhs! Wife loose case & NO alimony ! Madras HC gem

Ablaa naari, the beacon of love, embodiment of culture has the following false allegations in addition to saying husband wanted VIOLENT SEX and when refused he threatened to bring call girls and have sex with them in front of the wife !!! On yet another day , “…husband forced the petitioner-wife for sex in the early morning and when she was not willing, the respondent assaulted her severely and threw her from matrimonial home by saying that she was not useful for his sexual life and also asked to bring Rs.2 lakhs from her parents !!!..”

Here is the ablaa’s list !!

“… (1) The entire family of the respondent/husband was depending upon the income of the respondent and his elder brother Kirubakaran who was married and having children was unemployed and the respondent’s father had chosen the petitioner in the interest of income from her employment and the petitioner was treated by cruelty.

(2) The respondent-husband forced the petitioner/wife to collect money from her parents …. and the respondent/husband beaten the petitioner/wife black and blue everyday for not asking money from her parents and the respondent/husband went to the extent of dashing the face and head of petitioner/wife on wall by holding her hair in his hands ……

(3) After vacating the respondent/husband and petitioner/wife from the own house, the respondent’s father constructed shops and at that time, the respondent, his brother and father have jointly humiliated and harassed the petitioner …….

(4) the respondent had behaved brutally in sexual life and he used to wake up the petitioner during the mid-night and had violent sex with her and when the petitioner refused and expressed her tiredness due to over work, the respondent-husband kicked and assaulted his wife and also the respondent blackmailed the petitioner to subject herself for violent sexual life otherwise he will bring call girls home and he will have sex with them in the presence of petitioner-wife.

(5) The respondent was always suspicious and teased the petitioner and the respondent doubted each and every act of the petitioner and also the respondent refused to purchase necessary provisions for the family.

(6) On 25.4.2003, the respondent-husband forced the petitioner-wife for sex in the early morning and when she was not willing, the respondent assaulted her severely and threw her from matrimonial home by saying that she was not useful for his sexual life and also asked to bring Rs.2 lakhs from her parents otherwise he will not accept her.

(7) On 27.4.2003, when the petitioner-wife was standing in Villivakkam Railway Station, the respondent shouted at her in most indecent manner by using unparliamentary words and ……

The Principal family court Chennai does NOT appreciate the evidence and accepts the stories of the wife !!!

The Honourable HC sees thru each of these false complaints and decrees

“…42. From the above discussion, we are of the view that the petitioner/wife has not proved the alleged incidences of cruelty by her husband by adducing reliable evidence and the Trial Court has erroneously held that the alleged incidences of cruelty were proved and granted divorce and therefore the above said order of the Trial Court on the ground of cruelty is liable to be set aside.

43. We are also of the considered view that the petitioner wife is not entitled to any amount as permanent alimony since the petition filed by the petitioner/wife for divorce is not maintainable as already discussed in earlier paragraphs. Therefore the petitioner is not entitled for permanent alimony as prayed for in the petition and we answer the points accordingly……”

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IN  THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :      16 .8.2012

CORAM:

THE HONOURABLE  MR.JUSTICE  C.NAGAPPAN
and
THE HONOURABLE  MR.JUSTICE  R.KARUPPIAH

C.M.A No.887 of 2010
and
MP.No.1 of 2010

A.Sukumar                    .. Appellant/Respondent

Vs.

K.S.Chitra                    .. Respondent/Petitioner

Prayer:  This Civil Miscellaneous Appeal is preferred against the fair and decretal order, dated 27.10.2009, passed  in  F.C.O.P.No.918 of 2003 on the file  of  the  Principal  Family Court, Chennai.

For Appellant            :   Mr.S.Soundararajan for  Mr.K.S.Natarajan

For Respondent         :   Mr.D.J.Venkatesan

**************

JUDGMENT

R.KARUPPIAH,J.

This Civil Miscellaneous Appeal is directed against the fair and decretal order, dated 27.10.2009, passed in F.C.O.P.No.918 of 2003 on the file of the Principal Family Court, Chennai. The respondent in the petition is the appellant herein. In this Judgment, for the sake of convenience, the parties are referred to as arrayed in the petition.

2. The respondent/petitioner, who is the wife of the appellant, has filed petition for divorce on the ground of cruelty under Section 13(1)(i)(a) of the Hindu Marriage Act, 1955 and also for permanent alimony of Rs.10 lakhs.

3. Briefly, the case of the petitioner/wife is that the marriage between the petitioner and the respondent was solemnised on 26.1.1996 according to Hindu rites and customs and out of wedlock, a daughter viz. Varshini, aged 6 years and a son viz. Sanjay, aged 1 = years, were born. The respondent is employed as Reservation Clerk in Southern Railway and the petitioner is employed as Clerk in Indian Bank, Perambur.

4. According to the petitioner, at the time of marriage, the respondent’s father informed that all his sons were settled in life and they were all living in their own house and on believing the abovesaid fact, the petitioner’s parents consented for the marriage, but his elder brother Kirubakaran, who was married and having children, was unemployed and the entire family was depending upon the respondent and the respondent’s father had chosen the petitioner in the interest of her income from employment. Further, the respondent’s father and brother insisted the petitioner and the respondent to vacate the house since they wanted to rent out that portion and to utilise the rental income for the said Kirubakaran’s family.

5. It is further stated in the petition that the respondent raised loan and purchased house at No.49, Janagiram Reddy Colony, Villivakkam and as there was insufficiency of funds to purchase the house, he forced the petitioner to collect money from her parents and he had beaten up the petitioner black and blue everyday for not asking money from her parents. The petitioner has further stated that the respondent went to the extent of dashing the face and head of the petitioner on wall by holding her hair in his hands and unable to bear the torture, the petitioner requested her parents, who had helped her by giving Rs.1 lakh from their pension. It is further stated that the petitioner was not even permitted to see or handle the pass-book or cheque books and her jewelleries in the bank locker maintained by the respondent and thus the petitioner was subjected to cruelty both physically and mentally by the respondent.

6. It is further stated in the petition that after vacating from own house, the respondent’s father constructed shops in the building and arranged for permanent income to the said Kirubakaran and for those construction, the respondent, his father and brother jointly humiliated the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner severely and also the respondent’s father and brother threatened the petitioner in indecent manner even in the presence of the respondent.

7. The petitioner has further averred in the petition that the respondent had behaved brutally in the sexual life and he used to wake up the petitioner during mid night and had violent sex with her and when the petitioner refused or expressed her tiredness due to over work, the respondent kicked and assaulted the petitioner and also blackmailed the petitioner to subject herself for violent sexual acts otherwise he will bring call girls to home and he will have sex with them in the presence of the petitioner. It is further stated that the respondent was always suspicious and teased the petitioner and also doubted each and every act of the petitioner and the respondent has refused to purchase the necessary provisions for family and also refused even to give Rs.10 extra as pocket money to the petitioner and on many occasions, inspite of ill-health and tiredness, the petitioner was not able to have a cup of coffee or tea at her working place. The petitioner has further stated that harassment and tortures were increasing day by day and the petitioner was waiting with confidence that the respondent will realise his mistakes and correct himself, but the respondent had taken advantage of the goodness and he started her teasing her through the female child by persuading the child.

8. It is further stated in the petition that on 25.4.2003, the respondent forced the petitioner for sex in the early morning and when the petitioner was not willing, he assaulted her severely and threw her out from the matrimonial home by saying that she was not useful for his sexual life and she has to bring Rs.2 lakhs from her parents, otherwise he will not accept her and therefore the petitioner was living with her parents.

9. The petitioner has further stated that on 27.4.2003, when the petitioner was standing in Villivakkam Railway Station, the respondent shouted at her in most indecent manner by using unparliamentary words and hence the petitioner returned her home and took her brother and escorted her to reach her work place and on the same day, after the petitioner left the house, the respondent’s father and brother entered her parents’ house and abused them in the filthy language and threw their chappals on the petitioner’s parents. While the petitioner’s maternal uncle tried to prevent the situation, he was assaulted by the respondent’s father and brother and hence the petitioner lodged police complaint on 28.5.2003 with W-5 All Women Police Station, Anna Nagar, Chennai which has been proved futile and therefore the petitioner has filed this petition to grant a decree of divorce dissolving the marriage between the petitioner and the respondent and also to grant permanent alimony of Rs.10 lakhs for children.

10. The respondent-husband has filed detailed counter and denied the averments in the petition and stated that there are no sufficient grounds for the grant of divorce and according to Hindu Law, marriage is a sacrament and the relationship of the husband and wife cannot be severed on such flimsy and frivolous allegations. According to the version of respondent, the marriage was held only after enquiring about status of the respondent by petitioner’s father. Further, respondent’s brother viz. Kirubakaran is a technically qualified person and at the time of marriage, he was working in private concern at Ambattur Industrial Estate and his earning was more than sufficient for entire family expenses and he was never depending upon the income of the respondent and therefore the allegations that Kirubakaran was unemployed and his family was depending upon the respondent are all false. The respondent has also denied the allegation that the petitioner was treated by the respondent’s elder brother Kirubakaran and his father as a money lending machine. According to respondent, his father was a retired Railway employee and he is getting pension and also agricultural income and it is sufficient for his retired life and he is not dependent either on the petitioner or respondent’s income.

11. It is further averred in the counter that at the time of marriage, the petitioner was working at Golden Rock Railway Station, Tiruchirapalli till March, 1998 and the respondent was in Chennai and during the weekends, the respondent used to visit Trichy and similarly the petitioner also used to visit Chennai to spend holidays with the respondent. It is further stated in the counter that the petitioner got transferred in April 1998 and thereafter both the petitioner and the respondent stayed together and led a happy life.

12. The respondent has further stated in the counter that the allegations made in the petition that the petitioner was beaten up by the respondent black and blue every day for not asking money from her parents and he went to the extent of dashing the face and head of the petitioner against the wall are all absolutely false and the respondent never been any rude or atrocious behaviour and in fact the respondent on several occasions has shown his love and affection towards the petitioner in abundance. The respondent has further denied the averment that the petitioner was not even permitted to see or handle the pass book, cheque book and jewellery in the bank locker and the petitioner was never restricted to operate her bank account by the respondent being an Either or Survivor account. It is further stated in the counter that the respondent’s father sold his agricultural land of 3 acres at Magarai village and out of the above said amount and also the loan of Rs. 3 lakhs from Ramakrishnapuram Building Society Limited, Villivakkam, he constructed shops near the existing building and it is false to state that the respondent availed loan for the construction and it is constructed for providing a permanent income to the respondent’s brother Kirubakaran. The respondent has also denied the allegation that the respondent’s father and brother jointly humiliated and harassed the petitioner and insisted her to ask money from her parents and the petitioner never suffered any cruelty through the respondent or by his relatives and also denied the averment that the respondent was always suspicious and teased the petitioner without any limitation. It is further stated in the counter that the respondent had never made any harassment and torture to the petitioner and also denied the allegation that the respondent teased her through female child by pampering the child.

13. The respondent has further stated in the counter that since the petitioner had an aversion in joint family, the respondent availed housing loan of Rs.3 lakhs on 5.8.1998 from his bank, Rs.75,000/- from Ind Bank Housing Limited, received Rs.50,000/- from petitioner’s mother as a hand loan and received Rs.40,000/- from his father and purchased a flat for Rs.4,65,000/- and occupied on 6.9.1998 and the petitioner and the respondent jointly lived for five months from April, 1998 to August, 1998. It is further stated that the respondent had repaid the hand loan obtained from the petitioner’s mother and his father. The respondent has further stated that he availed another housing loan of Rs.1,50,000/- during November, 2001 from his employer for alteration and interior decoration of his flat and repaid the loan amount as Rs.2,200/- pm. The respondent has specifically denied the averment made in the petition that the respondent forced the petitioner to collect money from her parents either for purchase of flat or for repayment of loan and also denied the allegation that petitioner’s parents gave Rs.1,00,000/-.

14. The respondent has further stated in the counter that the alleged incidents happened on 25.4.2003 are false and cooked up for the petition. According to respondent, on 25.4.2003, the respondent planned to go to Thiruttani Temple along with his family and he requested the petitioner to accompany them but the petitioner refused and asked him to take only her children and the respondent requested again and again but the petitioner shouted and quarreled with the respondent. It is further stated that the petitioner has no faith in Hinduism and therefore the respondent had cancelled the programme and went to his office and the petitioner also went to her office without preparing any food and on that day, she went to her parents’ house. The respondent has further stated that he tried to talk with the petitioner over phone but the petitioner refused. It is further stated that besides humiliating the respondent, the petitioner gave strict instruction to her parents not to talk with the respondent and it is clear proof for her bad behaviour with the respondent.

15. It is further stated in the counter that on 27.4.2003, being a holiday, the respondent met the petitioner at Villivakkam Railway Station on her way to office and tried to compromise but she refused to talk with him and returned to her parents’ house. The respondent has further denied the allegation in the petition that the respondent’s father and brother entered the petitioner’s parents’ house and abused them in filthy language and threw chappals on the petitioner’s parents and in fact, the petitioner’s father went to petitioner’s house to persuade the petitioner to live with the respondent and lead a happy married life. The respondent has further stated that the petitioner, on a strong influence of her parents, does not desire to continue the marital tie with ulterior motive.

16. The respondent has also stated in the counter that the petitioner lodged a false police complaint on 28.4.2003 and the police conducted enquiry and tried to compromise them but it failed since the petitioner was adamant. It is further averred in the counter that the female child S.Varshini was staying with the respondent and another male child S.Sanjay was staying with the petitioner and the petitioner never allowed to see the child and it clearly shows the amount of cruelty caused to the respondent by the petitioner. The respondent has further stated in the counter that inspite of various allegations against the respondent, the respondent is for reunion only and the petitioner is not showing any indication to live with the respondent. It is further stated by the respondent that the permanent alimony claimed in the petition is only to harass the respondent and put in mental agony and torture on the petitioner’s hands and at any rate, the claim of permanent alimony is high and not maintainable and therefore prayed for dismissal of the above said petition.

17. Before the trial Court, on the side of the petitioner/wife, she has examined herself as PW.1 and marked 4 documents as Exs.P1 to P4 and on the side of the respondent/husband, he has examined himself as RW.1 and marked 13 documents as Exs.R1 to R13. The Trial Court, after analysing the entire pleadings and evidence on record, came to the conclusion that the contention of the petitioner/wife that the respondent/husband has caused mental and physical cruelty to the petitioner/wife is proved and therefore the petitioner/wife is entitled for divorce on the ground of cruelty. The Trial Court has further held that the petitioner/wife is entitled for permanent alimony of Rs.5 lakhs from the respondent/husband. Aggrieved with the above said order, the respondent/husband has preferred this appeal.

18. The points for determination in this appeal are:

“1. Whether the petitioner-wife is entitled to divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955?

2. Whether the petitioner-wife is entitled to permanent alimony as claimed by her in the petition?”

19. Heard the learned counsel on either side and perused the entire materials on record.

20. The learned counsel for the respondent/husband has submitted that the Trial Court came to erroneous conclusion that the respondent/husband continued to demand more money from the petitioner/wife without any oral and documentary evidence and the trial Court without applying its mind and believing the evidence of petitioner-wife, without any proof to the same, has held that the respondent has doubted the act of the petitioner and also the respondent/husband had behaved brutally in sexual life and violent with her. He has further submitted that the Trial Court has failed to consider the evidence of the respondent/husband that the respondent/husband was leading marital life as dutiful husband as well as much abundant of love and affection towards his wife and children beyond doubt, but the Trial Court only based on the police complaint dated 28.4.2003 came to the conclusion that the alleged incidence of cruelty was proved by the petitioner/wife. The learned counsel for the respondent/husband has further contended that the respondent has not caused any mental or physical cruelty to the petitioner as alleged in the petition and the petitioner/wife has failed to prove the alleged incidences of cruelty by any sufficient oral and documentary evidence. He has further submitted that the Trial Court has failed to consider the fact that petitioner/wife was Central Government employee and other material facts and arbitrarily awarded Rs.5 lakhs as permanent alimony and therefore prayed for setting aside the above said order and decree passed by the Trial Court.

21. Per contra, the learned counsel for the petitioner-wife has submitted that the petitioner has alleged several incidences of cruelty in the petition and the petitioner has deposed to prove the same and since the above said incidences happened between the husband and wife, the petitioner-wife alone is competent to speak about the alleged cruelty and the Trial Court has correctly discussed and held that the petitioner-wife has proved the alleged cruelty and granted divorce on the ground of cruelty and also the permanent alimony awarded by the Trial Court is just and reasonable and no need to interfere with the above said findings of the Trial Court.

22. It is not in dispute that the marriage between the petitioner and respondent was solemnised on 26.1.1996 according to Hindu rites and customs and out of wedlock, a daughter viz. Varshini and a son viz. Sanjay were born and it is also not in dispute that both the husband and wife were employees and lived together as husband and wife till 25.4.2003.

23. The incidences of cruelty alleged by the petitioner/wife are as under:

(1) The entire family of the respondent/husband was depending upon the income of the respondent and his elder brother Kirubakaran who was married and having children was unemployed and the respondent’s father had chosen the petitioner in the interest of income from her employment and the petitioner was treated by cruelty.

(2) The respondent-husband forced the petitioner/wife to collect money from her parents when the respondent raised loan and purchased house at No.49, Janagiram Reddy Colony, Villivakkam as there was insufficiency of funds to purchase the house and the respondent/husband beaten the petitioner/wife black and blue everyday for not asking money from her parents and the respondent/husband went to the extent of dashing the face and head of petitioner/wife on wall by holding her hair in his hands and unbearable with the above said tortures, the petitioner-wife requested her parents, who had helped her by giving Rs.1 lakh from their pension.

(3) After vacating the respondent/husband and petitioner/wife from the own house, the respondent’s father constructed shops and at that time, the respondent, his brother and father have jointly humiliated and harassed the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner-wife severely so that she will collect money from her parents.

(4) the respondent had behaved brutally in sexual life and he used to wake up the petitioner during the mid-night and had violent sex with her and when the petitioner refused and expressed her tiredness due to over work, the respondent-husband kicked and assaulted his wife and also the respondent blackmailed the petitioner to subject herself for violent sexual life otherwise he will bring call girls home and he will have sex with them in the presence of petitioner-wife.

(5) The respondent was always suspicious and teased the petitioner and the respondent doubted each and every act of the petitioner and also the respondent refused to purchase necessary provisions for the family.

(6) On 25.4.2003, the respondent-husband forced the petitioner-wife for sex in the early morning and when she was not willing, the respondent assaulted her severely and threw her from matrimonial home by saying that she was not useful for his sexual life and also asked to bring Rs.2 lakhs from her parents otherwise he will not accept her.

(7) On 27.4.2003, when the petitioner-wife was standing in Villivakkam Railway Station, the respondent shouted at her in most indecent manner by using unparliamentary words and hence the petitioner-wife returned back home and took her brother to escort her to reach her work place and on the same day, after the petitioner-wife left the house, the respondent’s father and brother entered the petitioner-wife’s parents house and abused them in filthy language and threw chappals on the petitioner-wife’s parents and therefore the petitioner-wife lodged a complaint on 28.4.2003 with W.5 All Women Police Station.

24. The learned counsel for the appellant/respondent has relied on the following decisions:

“1. DR.N.G.DASTANE Vs. MRS. S. DASTANE (AIR 1975 SC 1534)

2. P.ABIRAMI Vs. D.E. TAMILARASAN (2012 (2) CTC 607) and

3. SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464)”

and contended that the burden of proof lies only on the petitioner to establish her case and also contended that mere trivial irritations, quarrels and normal wear and tear of married life, which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty and the petitioner has not pleaded with material particulars like date and month and also not pleaded and proved the specific acts of cruelty and therefore the petitioner-wife is not entitled to the relief of divorce on the ground of cruelty.

25. Per contra, the learned counsel for the petitioner-wife relied on the following decisions:

“1. SATISH SITOLE Vs. SMT. GANGA (AIR 2008 SC 3093)

2. SAPNA Vs. B. PRADEEP KUMAR (MANU/TN/0823/ 2012 = II (2012 DMC 35)

3. VISHWANATH S/O SITARAM AGRAWAL Vs. SAU. SARLA VISHWANATH AGRAWAL (MANU/SC/0513/2012) and

4. SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464)”

and would submit that the petitioner-wife has clearly stated the incidences of mental and physical cruelty in the petition and also the petitioner has testified the above said facts at the time of evidence and further submitted that the marriage between the petitioner and the respondent was solemnised on 26.1.1996 and on 25.4.2003 onwards the petitioner and respondent were not living together and the petition was filed on 14.5.2003 and it would not be possible for them hereafter to live as husband and wife unitedly and the marriage between the petitioner and the respondent had completely broken down beyond repair and therefore it is a clear case of irretrievable break down of marriage between the parties and therefore the petitioner-wife is entitled to obtain a decree of divorce and the trial Court has correctly dissolved the marriage by granting divorce on the ground of cruelty.

26. In the decision relied on by the respondent-husband in DR.N.G.DASTANE Vs. MRS. S. DASTANE (AIR 1975 SC 1534), it is observed in para No.23 as under:

“23. …. First, as to the nature of burden of proof which rests on a
petitioner in a matrimonial petition under the Act. Doubtless, the
burden must lie on the petitioner to establish his or her case for,
ordinarily the burden lies on the party which affirms a fact, not on
the party which denies it. This principle accords with commonsense as
it is so much easier to prove a positive than a negative. The
petitioner must therefore prove that the respondent has treated him
with cruelty within the meaning of Section 10(1)(b) of the Act. “

In the above said decision, the Honourable Supreme Court has clearly laid down the principle that the burden of proof lies on the petitioner to establish his or her case and therefore the petitioner must prove that the respondent has treated her with cruelty.

27. The learned counsel for the respondent-husband has relied on another decision of a Division Bench of this Court in P.ABIRAMI Vs. D.E. TAMILARASAN (2012 (2) CTC 607), in which, para 16 reads as under:

“16. As far as the allegation of mental cruelty is concerned, as
rightly submitted by the learned counsel for the Appellant, the acts
alleged against the Appellant, which according to the Respondent,
amounts to causing mental cruelty, have not been pleaded with
material particulars like the date and month. No specific acts which
amounted to causing mental cruelty have been pleaded with material
particulars. Only general allegations have been made against the
Appellant by the Respondent in the Petition. In the Petition before
the Court below, it has not been stated that due to the Appellant’s
higher education and wealth and due to superiority complex what was
the nature of the behaviour and what was the activity of the
Appellant, which caused mental cruelty to the Respondent. Though it
has been alleged in the Petition that the Appellant failed to act as
a dutiful wife from the date of marriage till the date she left the
matrimonial home, the Petition is silent as to what was the duty that
was not performed by her.”

In the above decision, this Court has clearly held that as far as the allegation of mental cruelty, the alleged acts have not been pleaded with material particulars like date and month and no specific acts which amounted causing mental cruelty have been pleaded with material particulars and only general allegations have been made and therefore this Court has set aside the decree of divorce granted on the ground of mental cruelty.

28. Further, in the decision of the Honourable Supreme Court in SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464), relied on by both the learned counsel for the petitioner/wife and the respondent/husband, it is held in para 74 as under:

“74. …. (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 the ground of mental cruelty. ….”

In the above said decision, the Honourable Supreme Court has held that 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 the ground of mental cruelty.

29. In the instant case, the petitioner-wife has filed petition for divorce on the ground of cruelty and therefore as per the law laid down by the Honourable Supreme Court in the above decision relied on by the respondent/husband, the petitioner/wife has to prove the alleged incidences of cruelty by adducing reliable evidence.

30. Admittedly, to prove the above said incidences of cruelty, on the side of the petitioner/wife, she has not examined any other witness except the interested testimony of the petitioner. Further, on the side of the petitioner, she has marked the marriage invitation as Ex.P1, marriage photo as Ex.P2 and the copy of alleged police complaint dated 28.4.2003 as Ex.P3, given by the petitioner 16 days prior to filing of the petition for divorce and copy of receipt dated 29.4.2003 as Ex.P4 and therefore the oral testimony of the petitioner alone is available to prove the alleged incidences of cruelty. On the side of the respondent/husband, to falsify the contention of the petitioner, the respondent has deposed as RW.1 and also marked Exs.R1 to R13. Admittedly, the marriage was solemnised after six months of betrothal and both the petitioner and respondent’s parents’ houses are situated nearby. Further, the petitioner herself has admitted in her evidence that the petitioner and respondent were not living along with other family members and immediately after marriage, a separate portion was allotted for them and the parents of the respondent and one brother of the respondent viz. Ravikumar were living in another portion and another elder brother of the respondent viz. Kirubakaran was living in upstair portion separately and both the petitioner and the respondent were living only for six months in the above said house and then constructed a new house and lived separately.

31. Further, it is an admitted fact that the respondent’s father viz. Appadurai is a retired Railway employee and getting his pension and also having agricultural lands. It is also revealed that the elder brother of the respondent viz. Kirubakaran is a technically qualified person and he was working in private concern at Ambattur Industrial Estate. Further the petitioner has admitted in her evidence that there is no quarrel between her and the parents of the respondent while living separately in respondent’s parents’ house and after shifting to new house also, the parents of the respondent came there and the petitioner and respondent also used to visit the respondent’s parents’ house and also admitted that even after vacating the house, only the brother of the respondent viz. Kirubakaran was living in the portion and not rented out to anybody. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

32. In the above circumstances, on the side of the petitioner, she has not stated any specific incident of demanding money from the petitioner by the family members of the respondent, particularly, by the respondent’s elder brother Kirubakaran. Therefore the allegations of the petitioner that the respondent’s father has chosen the petitioner only in the interest of her income from employment and the entire family of the respondent was depending upon the income of the respondent are not proved by reliable documentary evidence except the interested testimony of the petitioner and as rightly contended by the learned counsel for the respondent, the particulars of demand of money from the petitioner like date, month etc. are not stated in the petition and also not deposed at the time of evidence by the petitioner and therefore the above said incidences of cruelty alleged by the petitioner are not proved.

33. The second and third incidences of cruelty alleged by the petitioner are that the respondent had beaten the petitioner black and blue everyday for not asking money from her parents at the time of purchasing the house at No.49, Janagiram Reddy Colony, Villivakkam and also the respondent went to the extent of dashing the head of the petitioner on the wall by holding her hair in his hands and tortured the petitioner and hence the petitioner requested her parents, who helped by giving Rs.1 lakh from the pension and the respondent and his parents humiliated the petitioner and beaten severely. To prove the above said allegations, except the oral testimony of the petitioner, there is no other oral and documentary evidence. The petitioner has not stated any reason for non-examining the parents of the petitioner to prove the above said demand of money and payment of Rs.1 lakh amount as demanded by the respondent. Further, a perusal of oral evidence of the petitioner reveals that she has deposed completely contradictory with the averments in the petition. In one place, she has stated that before registering document, as demanded by respondent, Rs.25,000/- and after that another Rs.25,000/- was given by her mother and Rs.50,000/- was given by her father and totally Rs.1 lakh was given and after retirement, her father had given Rs.50,000/- i.e., after 2002. The above said fact is not stated in the petition. The same petitioner had again deposed contrary to the above said fact that at the time of purchase of the above said house, the father of the petitioner has not given any amount and only after retirement, he has given amount to the respondent. Admittedly, the above said flat purchased in the year 1998 and the father of the petitioner was retired only in the year 2002 and hence out of retirement benefits, Rs.1 lakh was given to purchase flat is proved as false. The parents of the petitioner alone are competent persons to speak about the facts but they were not examined by the petitioner. Therefore a perusal of oral testimony of the petitioner reveals that the petitioner has falsely deposed about the demand of money as alleged in the petition. The learned counsel for the respondent has further submitted that in the year 1998, the flat was purchased for Rs.4,65,000/- by availing housing loan for Rs.3 lakhs on 5.8.1998 from respondent’s bank under the capacity of an employee and to prove the same, Ex.R2 loan sanction letter has been marked and the respondent has availed Rs.75,000/- from Ind Bank Housing Limited on 17.8.1998 and to prove the same, Ex.R3 was marked and the petitioner’s mother gave hand loan of Rs.50,000/- and the respondent’s father gave hand loan of Rs.40,000/- and the respondent has repaid the hand loan of the petitioner’s mother and also the respondent’s father on instalment basis. The oral and documentary evidence adduced by the respondent reveal that the allegation of the petitioner that Rs.1 lakh was paid for purchase of the above said flat is false and therefore the alleged second and third cruelties are not proved.

34. With regard to fourth and fifth incidences of cruelty are concerned, except the oral testimony of the petitioner, no other evidence was adduced to prove the above said allegations.  The learned counsel for the petitioner would contend that the above said incidences happened between the husband and wife and therefore the petitioner alone is competent to speak about the said fact. Per contra, the learned counsel for the respondent has submitted that if really the above said incidences happened, certainly the petitioner would have informed her parents or relatives or co-workers, but in this case, except the petitioner nobody was examined to prove the above said allegations.

35. Further, the petitioner has stated in her evidence that the respondent assaulted the petitioner and caused injuries and taken treatment in the hospital but she has not produced any document and not examined the doctor or parents of the petitioner or neighbour to prove the above said incident. It is further contended that the petitioner was forced to collect money from her parents and the respondent has beaten black and blue everyday for not asking money from her parents and also alleged that the respondent, his brother and father have jointly humiliated and harassed the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner to collect money from her parents. The above allegations are all not proved by adducing reliable evidence. Therefore the fourth and fifth incidences of cruelty are not proved by the petitioner as rightly contended by the learned counsel for the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

36. With regard to sixth and seventh incidences of cruelties are concerned, except the oral testimony of the petitioner, no other evidence like parents, brother, neighbour, co-worker who are competent witnesses was adduced to prove the above said allegations. As already discussed, the marriage between the petitioner and the respondent was held on 26.1.1996 and they were living as husband and wife till 25.4.2003. During the above said period, no complaint of any harassment or any complaint to the police was filed and therefore as contended by learned counsel for appellant/respondent the above said allegations have been made in the petition only for filing the petition for divorce and therefore the above said sixth and seventh cruelties are also not proved.

37. The Trial Court, only relying on the oral testimony of the petitioner, who is interested witness, granted divorce as if the alleged incidences were proved. The Trial Court has not considered the contentions of the respondent and the oral and documentary evidence adduced on the side of the respondent to disprove the contentions of the petitioner. Therefore, a careful reading of oral and documentary evidence adduced by both sides reveal that the petitioner has not proved the alleged incidences of cruelty by reliable oral and documentary evidence, but the Trial Court has wrongly held that as if the petitioner has proved the alleged incidences of cruelty.

38. At the time of argument before this Court, the learned counsel for the petitioner has contended that the marriage was held on 26.1.1996 and from 25.4.2003 onwards both husband and wife were not living together and therefore the marriage between the petitioner and the respondent has completely broken down beyond repair and it is a clear case of irretrievable break down of marriage between the parties and on that ground, he prayed for divorce. To substantiate the above said contention, he relied on two decisions as already stated. In the decision reported in SATISH SITOLE Vs. SMT. GANGA (AIR 2008 SC 3093), the Honourable Supreme Court has observed in para 12 as under:

“12. In the said circumstances, following the decision of this Court in Romesh Chander’s case (supra) we also are of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved, subject to the appellant paying to the respondent a sum of Rupees Two lakhs by way of permanent alimony. In addition, the appellant shall also pay the costs of this appeal to the respondent assessed at Rs.25,000/-. The appeal is disposed of accordingly.”

39. As rightly contended by the learned counsel for the respondent, the Honourable Supreme Court has exercised the power under Article 142 of the Constitution and held that since for 14 years the appellant and respondent lived separately and all attempts for re-union failed, the marriage has been broken down irretrievably and dissolved the marriage in the above decision.

40. In another decision in SAPNA Vs. B. PRADEEP KUMAR (MANU/TN/0823/ 2012 = II (2012 DMC 35), relied on by the learned counsel for the petitioner, this Court also held that the marriage between the wife and husband has completely broken down beyond repair and it is clear case of irretrievable break down of marriage between the parties and therefore granted divorce.

41. In the instant case, the marriage was held on 26.1.1996 and both the respondent and petitioner were living together till 25.4.2003 as husband and wife and out of the said wedlock, they have two children. On the side of the petitioner, she has not proved the fact that the marriage has broken down irretrievably and on that ground alone the petitioner is not entitled to divorce.

42. From the above discussion, we are of the view that the petitioner/wife has not proved the alleged incidences of cruelty by her husband by adducing reliable evidence and the Trial Court has erroneously held that the alleged incidences of cruelty were proved and granted divorce and therefore the above said order of the Trial Court on the ground of cruelty is liable to be set aside.

43. We are also of the considered view that the petitioner wife is not entitled to any amount as permanent alimony since the petition filed by the petitioner/wife for divorce is not maintainable as already discussed in earlier paragraphs. Therefore the petitioner is not entitled for permanent alimony as prayed for in the petition and we answer the points accordingly.

44.  In the result, the Civil Miscellaneous Appeal is allowed and the order and decretal order dated 27.10.2009 passed by the          Trial Court in F.C.O.P.No.918  of 2003  are set aside and the petition in  F.C.O.P.No.918  of 2003  is dismissed.   Considering the relationship of the parties, there shall be no order as to costs.  Connected  MP.No.1 of 2010 is  closed.

(C.N.J.)          (R.K.J.)
16.8.2012
Index   : yes

Internet: yes

vks

Copy  to:

The Registrar,
Family Court,
Chennai.

C.NAGAPPAN, J.

and

R.KARUPPIAH, J.

vks

Pre-delivery Judgment in
C.M.A No.887 of 2010
and
MP.No.1 of 2010

16.8.2012.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Beating MIL, taking MIL’s house, wife’s brother beating husband, false dowry stmt ALL cruelty ! Raj HC

In this classic case the poor woman, the beacon of love, beats her mother in law and drives her away from the matrimonial home to usurp her hard earned house, when husband is on a training !! The husband is also beaten and thrown out with the help of ablaa’s brother. Not contended with these she also raises false dowry allegations and resists divorce. The HC sees thru her game and decrees all such acts as cruelty !!

* Parties get married in 1985
* Mother in law is working as a staff nurse and has a house built on loan and her hard earned income
* Right from the start wife tries to take away Mother in law’s house.
* Wife beats Mother in law
* When husband goes out of city on training, wife and father in law, beat and drive away mother in law & father in law (husband’s mother & father)
* When husband goes to his (own mother’s house) , wife asks her brother to beat the husband & wife’s brother beats up husband and
* Then ablaa nari wife files Sec 125 maintenance case
* Looks like 498A was NOT famous those days, so she just stops with Sec 125 case and taking over the house !!
* husband files for divorce and wins in lower court
* wife appeals to HC and HC decrees that wife beating mother in law, wife’s brother beating husband, wife usurping MIL’s property and making false dowry claims etc are cruelty. The Hon Hc ALSO denies the woman any maintenance !!

Excerpts and Emphasis / explanations
****************

“……..The reason being that the relation between the husband and wife, is primarily a human relationship which has been granted legal recognition and is sought to be regulated by the provisions of the Hindu Marriage Act, 1955. There is a basic distinction between a human relationship and legal relationship. A legal relationship is brought Into existence by law but a human relationship, can be brought into existence only by the deliberate will of both the parties to create such a relationship and subsequent conduct on their part in conformity with the requirement of the relationship which they intend to create. The conduct, which is necessary for the creation of human relationship, involves, voluntary obedience of several taboos and voluntary performance of several duties in relation to one another even when such taboos and such duties have not been codified by law. ……”

“…...23. After carefully considering the facts and circumstances of the case. 1 am of the opinion that it cannot be said that the respondent’s mother Smt. Kamala had voluntarily left her house with a view to live in the quarter situated in hospital campus. It is against human nature to abandon the property which a person has constructed by utilising the money, which has been collected by making several sacrifices or by taking loan. The story set up by the appellant-non-petitioner in her reply as well as her evidence, is completely unreliable. I am, therefore, of the view that statement of Smt. Kamala (A. W. 2) inspires confidence and it shows that she was asked to transfer the house to the appellant-non-petitioner and when she refused to do, she was harassed and maltreated by the petitioner-appellant and her brother and, that she was forced to shift her residence to the quarter which was allotted to her in the hospital…..”

“…….25. It is also alleged by the respondent that when he went to the house where the appellant-non-petitioner was residing, the appellant’s brother gave him a beating in presence of the appellant and in place of objecting to such act of her brother, the appellant asked her brother to beat the respondent. On a careful consideration of the evidence on record, I am of the opinion that this statement of respondent Vijay Kumar (A. W. 1) appears to be correct. …………

“….26. There is another act of cruelty which is manifested by her reply as well as her statement and the statement of her father. She has alleged that she was asked to bring dowry and that on two occasions, she brought the amount of Rs. 10,000/- on each occasion and that on the third occasion, she was asked to bring a sum of Rs. 50,000/- and when she refused to fulfil this demand, she was harassed and given a beating. These allegations have not been proved by reliable evidence. The allegations of this nature are easy to be made but unless they are proved, as required by Section 3 of the Evidence Act. the allegations must be treated as not proved. Making false allegations is no doubt an act of cruelty if the object behind the making of false allegations is to lower the dignity or self-esteem or destroy the reputation or to bring some harm to the person against whom the allegations are made. Therefore, any one who makes allegations which are detrimental to the dignity, self-esteem, reputation or well being of the persons against whom they are made, must be careful in making such allegations. in other words, such allegations may not be made unless there is sufficient evidence to prove them. Anyone who makes allegations of serious nature against any one without sufficient evidence to prove them, must bear responsibility for making such allegations. If the allegations are made falsely or without sufficient evidence to prove them, the act of making allegations against either party may amount to cruelty….”

“…29. For the reasons mentioned above, this appeal has no force. It deserves to be dismissed and is hereby dismissed…..”

^ meaning husband’s hard won divorce IS confirmed and the above Ratio / reasoning will help other 498a hit, beaten husbands !!

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Rajasthan High Court

Smt. Pramila Bhatia vs Vijay Kumar Bhatia

19 May, 2000

Equivalent citations: AIR 2000 Raj 363

Author: A Singh

Bench: A Singh

JUDGMENT A.K. Singh, J.

1. Heard the learned counsel for the parties.

2. On a petition filed by the respondent under Section 13 of the Hindu Marriage Act. 1955 the District and Sessions Judge, Sri Ganganagar, granted the decree for divorce. Feeling aggrieved, the appellant-non-petitioner, has filed this appeal.

3. According to the averment made in the petition, the marriage between the parties was celebrated on 15-12-1985 according to Hindu rites at Sri Ganganagar. After marriage, the appellant gave birth to a daughter Shobhna who was about 7 years of age on the date of the filing of the petition. The respondent in his petition, prayed for the decree for divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty. It was alleged in the petition that the respondent’s mother was the owner of house No. 5A/38 situated at Jawahar Nagar and the appellant asked the respondent’s mother to transfer the house to her and threatened that if the house was not transferred to her, a report would be lodged at the Police Station, Sri Ganganagar alleging cruelty and dowry. The house was constructed by the respondent’s mother by spending her hard earned money. On 18-7-1986, the respondent went to Jaipur in order to obtain training. He returned from Jaipur on 7-1-1987. On his return, he came to know that in his absence the appellant-non-petitioner, with the help of her father Bhoor Singh and some others, forcibly entered into house No. 5A/38 situated at Jawaharnagar in which the respondent’s parents were residing and after giving beating to the respondent’s parents and terrifying them turned them out of the house and unlawfully occupied the house. This incident occurred sometime in January 1987 before the respondent returned from Jaipur. As a consequence of the above Incident, the respondent’s parents suffered physical and mental pain and they started residing in a quarter constructed in the hospital where respondent’s mother was serving. After returning from Jaipur, respondent contacted the appellant-non-petitioner. She made a false statement before him to the effect that his parents had gone away to the quarter situated in hospital campus after giving the beating to her parents. On the same day, the respondent with some well-wishers went to the house of his mother and found that the appellant-non-petitioner’s father BhoorSingh and his helpers were there They misbehaved with the respondent, assaulted him and turned him out of the house. The appellant non-petitioner was present at that time but she did not make any protest against the conduct of his father. It was also alleged in the petition filed by the respondent that on 6-2-1987, the appellant-non-petitioner filed a petition under Section 125 of the Criminal Procedure Code in the Court of Chief Judicial Magistrate. Sri Ganganagar. That petition was dismissed by the Chief Judicial Magistrate. Sri Ganganagar by order dated 23-12-1989, A revision petition was filed in the Court of Additional District Judge No. 2 and the revision petition was dismissed by the Additional District Judge No. 2 by order dated 10-10-1991. It was alleged by the respondent that in her application the appellant-non-petitioner, with a view to bring bad name to the appellant and his parents made a false allegation to the effect that the petitioner and his parents used to harass with the object of forcing her to bring money from her parents and it was also falsely alleged by her that she had brought a sum of Rs. 20,000/- from her father and that a further sum of Rs. 50,000/- was demanded from her. These allegations, according to the averments made in the petition filed by the respondent were false. It was also alleged in the petition that the appellant-non-petitioner filed a Civil Suit No. 77/87 in the Court of the Munsif, Sri Ganganagar. The suit was decreed on 6-2-1991 and an appeal was filed in the Court of Additional District Judge No. 1, Sri Ganganagar against the decree passed by the Munsif, Sri Ganganagar. In appeal, the Additional District Judge No. 1, Sri Ganganagar, set aside the decree passed by the Munsif and allowed the appeal by judgment and decree dated 20-5-1994. When the respondent’s mother Kamla Devi filed a suit for recovering the possession of the house No. 5A/38 belonging to her, an objection as to the deficiency of the Court-fee was raised by the appellant-non-petitioner and, therefore, a Court-fee of Rs. 3945/- was paid. The suit was ultimately decreed on 5-8-1993 and an appeal against that decree is pending before the High Court. The case set up by the respondent in his petition under Section 13 of the Hindu Marriage Act was that the appellant-non-petitloner is guilty of committing cruelty and that he is entitled to a decree for divorce on the ground of cruelty.

4. In reply, it was admitted by the appellant-non-petitioner that her marriage had taken place on 15-12-1985 according to Hindu rites. She denied the allegation that she asked the respondent’s mother to transfer the house No. 5A/38 situated in Jawaharnagar to her and gave any threat to her for the purpose of the obtaining the house in her reply, the appellant-non-petitioner alleged that in her marriage, her parents gave dowry beyond their means and that after that she was harassed. With a view to bring money from her parents and when she refused to comply with the demand, she was beaten. It was also alleged that on two occasions, her father gave Rs. 10,000/- on each occasion and these amounts were forcibly taken away by her mother-in-law and further demand of Rs. 50,000/- was made and when she could not comply with this demand, she was subjected to harassment in her reply, the appellant-non-petitioner further pleaded that her mother-in-law voluntarily left the house and went to live in the quarter situated in the hospital campus and this was done with a view to make false allegations against her in short, the allegation of cruelty as alleged in the petition by the respondent was denied.

5. A rejoinder was filed in which all the allegations made by the appellant-non-petitioner were denied by the respondent.

6. The learned District and Sessions Judge framed three issues. The first issue was whether the non-petitioner was guilty of cruelly as alleged in para Nos. 3 to 10 of the petition and the petitioner was entitled to obtain a decree for divorce on the ground of cruelty. The second issue was regarding the question whether the marriage between the parties has irretrievably broken, if so, to what effect. The third issue was regarding relief.

7. The respondent Vijay Kumar Bhatia (A.W. 1) was examined himself and produced her mother Smt. Kamala (A.W. 2) in support of the allegations made by him. The appellant-non-petitioner Smt. Pramila (N.A.W. 1) examined herself and produced her father Bhoor Singh (N. A. W. 2) in support of the case set up by her in the written statement. The certified copies of the statement recorded in earlier proceedings and the certified copies of some other documents were also produced by the parties.

8. The learned District and Sessions Judge, after considering the evidence of both the parties, decided issues Nos. 1 and 2 in favour of the respondent-petitioner and granted decree for divorce under Section 13 of the Hindu Marriage Act, 1955 on the ground of cruelty.

9. The learned counsel for the appellant has submitted that the learned District and Sessions Judge has not appreciated the evidence of the parties in the proper perspective and has committed grave error by deciding issues Nos. 1 and 2 together because they deal with different questions. Regarding the allegation of cruelty made by the respondent in his petition as well as in his statement, the learned counsel for the appellant has submitted that the allegations of cruelty are completely false and there is absolutely no ground for grant of divorce under Section 13 of the Hindu Marriage Act. He has prayed that the appeal be allowed and the judgment and decree of divorce granted by the District and Sessions Judge be set aside. On the other hand, the learned counsel for the respondent has submitted that the allegations of cruelty have been proved by oral as well as documentary evidence produced by the respondent-petitioner and the learned District Judge has committed no error in coming to the conclusion that the Issues Nos. 1 and 2 should be decided in favour of the respondent. He has, therefore, prayed for dismissal of this appeal.

10. The expression ‘cruelty’ has not been defined in the Hindu Marriage Act. in Smt. Meera v. Vijay Shankar Talchidia AIR 1994 Rajasthan 33. Hon’ble the Chief Justice ob- served (Para 13, 14, 15, 16, 17) :

“Cruelty is a ground for divorce under Section 13(1)(ia) of the Hindu Marriage Act . Whether particular conduct amounted to cruelty would be determined in each case. It has not been defined in the Act as it was not possible to do so. Section 13(1)(ia) has undergone a change by 1976 amendment made by the Parliament.

Before the amendment of 1976, the Act contained a different formulation of cruelty. At that time, the petitioner was required to show that the respondent had treated him or her with such cruelly as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the respondent. The change in the formulation of cruelty under the Hindu Marriage Act brings it at par with the Special Marriage Act. It has also simplified it. Cruelty in such cases has to be of the type which should satisfy the conscience of the Court to believe that the relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible for them to live together without mental agony, torture or distress.

Cruelty as a ground of divorce under Section 13(1)(ia) is a conduct of such type that the petitioner could not reasonably be expected to live with the respondent. Now, the act or omission or conduct which constitutes cruelty need not cause any sort of apprehension in the mind of the petitioner.

No rigid meaning can be assigned to cruelty in order to come under Section 13(1)(ia). What may amount to cruelty in one case may not amount to cruelty in another case. in order to consider whether a particular act complained against amounted to cruelty or not, the Court has to take into account the social status, the environment, the eduction, the mental and physical conditions and the susceptibilities of the innocent spouse as also the customs and manners of the parties.

The Court dealing with a petition for divorce under Section 13(1) is expected to bear in mind that the problem before it is that of human beings and that all psychological changes in a man’s conduct has to be borne in mind before granting or rejecting the petition. It is not that every insignificant or trifling conduct would constitute cruelty of one on the other.

11. In V. Bhagat v. Mrs. D. Bhagat AIR 1994 SC 710, in para 13. the Hon’ble Supreme Court observed (Para 13):

“Cruelly contemplated by the Sub-Clause is both physical and mental. We are concerned herein with the latter. It is not possible to define ‘mental cruelty’ exhaustively. As observed by Lord Reid in Gollins v. Gollins, 1964 AC 644 :

“No one has ever attempted to give a comprehensive definition of cruelty and I do not intend/try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirements that the party seeking relief must show actual or probable injury to life, limb or health. It is easy to see that the origin of this requirement is the decision in the well known case of Russel v. Russel (1987 AC 395)”

To the same effect are the observations of Lord Pearce (at 695) :

“It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty, if a reasonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it……………

I agree with Lord Merriman whose practice in cases of mental cruelty was always to make up his mind first whether there was injury or apprehended injury to health. in the light of that vital fact the Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable person’s point of view, after a consideration of any excuse which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called on to endure it ………….

The particular circumstances of the home, the temperament and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the act or conduct complained of may all be relevant.”

12. The Hon’ble Supreme Court further considered the amendment brought in 1976 and observed (Paras 15, 16, 17 of AIR 1994 SC 710) :

“The change of law brought about by the Hindu Marriage Laws (Amendment Act), 1976 deserves notice. Prior to the said Amendment Act, cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was a ground only for claiming judicial separation under Section 10. By the said Amendment Act, cruelty was made a ground for divorce as well as evidently in recognition of the changing mores of the society. While doing so, it is significant, the words “as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party” qualifying the expression “cruelty” in Section 10(1) (b), were omitted by the Parliament. It is therefore, not necessary for the party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension — a reasonable apprehension — in his/her mind that it will be harmful or injurious for him/her to live with the other party. Now what does this change mean? Surely, the deletion of the said words could not have been without a purpose. The cruelty of the nature described in Section 10(1) (b) has been explained in this Court’s decision in N.G. Dastane v. S. Dastane, AIR 1975 SC 1534. Chandrachud. J. speaking for the Bench, held that where an allegation of cruelty is made, the Inquiry has to be “whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.” The learned Judge held further : “it is not necessary, as under the English Law, that the cruelty must be of such a character as to cause “danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or Injurious for one spouse to live with the other ….. But under Section 10 (1) (b) harm or injury to health, reputation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English Law, but whether the petitioner proves that the respondent had treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.” This requirement is no longer present in Section 13(1)(ia).

If so, the question arises what kind of cruel treatment does Clause (ia) contemplate ? in particular, what is the kind of mental cruelty that is required to be established? While answering these questions, it must be kept in mind that the cruelty mentioned in Clause (ia) is a ground now for divorce as well as for judicial separation u/Section 10. Another circumstance to be kept in mind is that even where the marriage has irretrievably broken down, the Act, even after 1976 (Amendment) Act, does not permit dissolution of marriage on that ground. This circumstance may have to be kept in mind while ascertaining the type of cruelty contemplated by Section 13(ia).

Mental cruelty in Section 13(l)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other in other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of the case. If It is a case of accusations and allegations, regard must also be had to the context in which they were made.”

13. Their Lordships of the Supreme Court referred to the judgment given by the Supreme Court in Shobha Rani v. Madhukar Reddy, AIR 1988 SC 121. In that judgment the Hon’ble Supreme Court had observed (Paras 4 & 5) :–

“Section 13(l)(ia) uses the words “treat the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the Court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. First, the inquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of spouse. Whether it caused reasonable apprehension that it would be harmful or Injurious to live with the other. Ultimately it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then impact or the injuries effect on the other spouse need not be inquired into or considered in such cases, the cruelty will be established if the conduct Itself is proved or admitted.

It will be necessary to bear in mind that there has been marked change in the life around us in matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaints about the treatment of cruelty by the partner in life or relation, the Court should not search for standard in life, A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon (1966) 2 All ER 257, 259 “the categories of cruelty are not closed”. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.”

14. Hon’ble the Supreme Court also referred to the observations made by Hon’ble Mr. Justice Shetty, at page 127, wherein it was observed (para 17 of AIR 1988 SC 121):–

“Section 13(l)(ia) of the Hindu Marriage Act provides that the party has after solemnization of the marriage treated the petitioner with cruelty. What do these words mean? What should be the nature of cruelty? Should it be only intentional, wilful or deliberate? is it necessary to prove the intention in matrimonial offence? We think not. We have earlier said that cruelty may be of any kind and any variety. It may be different in different cases. It is in relation to the conduct of parties to a marriage. That conduct which is complained of as cruelty by one spouse may not be so for the other spouse. There may be instances of cruelty by the unintentional but inexcusable conduct of any party. The cruel treatment may also result by the cultural conflict of the spouse. in such cases, even if the act of cruelty is established, the intention to commit suicide cruelty cannot be established. The aggrieved party may not get relief. We do not think that that was the intention with which the Parliament enacted Section 13(l)(ia) of the Hindu Marriage Act. The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty, could be easily established. But the absence of intention should not make any difference in the case, If by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.”

15. In Smt. Chanderkala Trivediv. Dr. S.P. Trivedi (1993) 3 Scale 541, the wife filed a written statement. In reply thereto, the husband put-forward another allegation against the wife that she was having undesirable association with the young boys. Considering the mutual allegations, R.M. Sahai, J. speaking for Division Bench observed :

“Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three Courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife.”

It was argued on behalf of the husband that the wife has failed to establish the charge of adultery levelled against him and that the charge of adultery must be proved beyond reasonable doubt. Dealing with the argument, the learned Judge observed :

“But we do not propose to examine it as we are satisfied that the marriage is dead and the findings of fact cannot be set aside by this Court except that the appeal can be sent back to Division Bench to decide it again, which would mean another exercise in futility leading to tortuous litigation and continued agony of the parties”

16. It is not necessary to cite other authorities to find out the meaning of word ‘cruelty’ which is a ground for divorce under Section 13(l)(ia) of the Hindu Marriage Act. 1955.

17. After carefully going through the observations made by the Hon’ble Supreme Court and the High Courts, it appears necessary to consider the question of cruelty in the context of all the circumstances of the case. The reason being that the relation between the husband and wife, is primarily a human relationship which has been granted legal recognition and is sought to be regulated by the provisions of the Hindu Marriage Act, 1955. There is a basic distinction between a human relationship and legal relationship. A legal relationship is brought Into existence by law but a human relationship, can be brought into existence only by the deliberate will of both the parties to create such a relationship and subsequent conduct on their part in conformity with the requirement of the relationship which they intend to create. The conduct, which is necessary for the creation of human relationship, involves, voluntary obedience of several taboos and voluntary performance of several duties in relation to one another even when such taboos and such duties have not been codified by law. in the preamble to the Constitution of India, fraternity has been regarded as one of the four basic objectives of the Indian Constitution and the expression “fraternity”, deserves to be interpreted in such a manner as to include within it all kinds of human relationships among the human beings. How these relationships can be brought into existence; how they can be preserved and perpetuated, is a matter on which very little work appears to have been done because it is primarily the function of the people as well as those who specialise in the study of human relationships to find out the ways in which human relationships may be created and perpetuated. The Courts, are primarily concerned with law as enacted by the Legislature and, therefore, the entire attention of the Court is ordinarily drawn to the ascertainment of law and to apply the law to the facts proved before the Courts. Issues concerning human relationships, are seldom directly agitated before the Courts except in those cases where the consideration of a human relationship, becomes essential for the purpose of dispensing justice as is the case when a prayer for divorce is made on the ground of cruelty.

18. The bond of human relationship between husband and wife, owes its origin to their determination to create and perpetuate and their deliberate efforts to do that which is necessary and to abstain from doing that which is harmful for such relationship. If they do not have the determination to create or perpetuate the relationship or they have no desire to do that which is necessary for creating or perpetuating it, or they do not desire to abstain from doing that which is harmful for the relationship, it is obvious that the human relationship can neither be brought into existence nor it can be perpetuated notwithstanding the legal relationship which is brought into existence by performance of certain ceremonies of marriage as required by Section 6 of the Hindu Marriage Act, 1955.

19. The object of the provisions of the Hindu Marriage Act, 1955 is to grant recognition to the human relationship between husband and wife and to regulate the conduct of the parties to the relationship in such a manner as may benefit them as well as the society. But the Legislature has its limitations. The laws do not have any power to create a human relationship though law can create legal relationship, the reason being that a legal relationship is a creature of law but a human relationship can be created only by determination of the parties and obedience of taboos as well as the performance of duties necessary for creation and perpetuation of the human relationship. As soon as the parties, give up the desire to maintain the relationship or they, avoid observance of taboos and performance of duties necessary for the human relationship, the human relationship between them is imperilled and cannot be saved by anything. in these cases, it is said that the marriage between the parties has irretrievably been broken even if the ground for divorce under Section 13 of the Hindu Marriage Act are not established. The performance of the duties and observance of certain taboos necessary for creating and perpetuating the relationship of husband and wife is so important for the relationship that even an unintentional violation of the taboo or unintentional neglect in commission of the duty, creates danger to the relationship.

20. In Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, the Hon’ble Supreme Court pointed out that the relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment,

21. If the ground for divorce made under Section 13 of the Hindu Marriage Act are considered in light of the fact that the relationship between husband and wife is primarily a human relationship which can be created and perpetuated only if they have the intention to create and perpetuate it and they deliberately observe the taboos and perform their duties which are necessary for creating and perpetuating this relationship, then it will not be difficult to say that if the parties are wanting in determination to continue the marriage or they have by their conduct, violated the taboos or omitted to perform the duties expected of them, the human relationship of husband and wife cannot perpetuate. The act of giving up of the determination to continue the marriage as well as violation of taboos necessary for the relationship and omission to perform the duties necessary for relationship may, in appropriate cases, be held to be amounting to act of cruelty which is the ground for divorce under Section 13 of the Hindu Marriage Act.

22. In the instant case, both the parties belong to middle class families. The respondent’s mother is a Nurse in the maternity department of the hospital run by the local authorities. The petitioner earns his livelihood by cutting and polishing semi-pieces stones. The appellant (non-petitioner) is neither in service nor she is carrying any trade or business of her own, It is an admitted fact that the house in dispute which is presently in possession of the appellant (non-petitioner) was constructed by respondent’s mother Smt. Kamala (A. W. 2). Unless it is proved that any other person who wants to deprive her of the whole or any part of the house, is entitled to do so, Smt. Kamala cannot be deprived of her title and right to possession over the house in dispute. The allegation made by the respondent and her mother is that respondent’s mother Smt. Kamala was forcibly turned out of the house by the appellant-non-petitioner and her father and therefore, she started living in the quarter situated in the hospital campus. The story set up by the appellant non-petitioner is that Smt. Kamala herself left the house because the hospital itself requires her to be available in the hospital campus for attending emergency cases. Smt. Kamala (A. W. 2) admitted that the employees of the hospital are required to live in the quarters situated in the hospital campus but she has stated in the examination-in-chief that right from the date of marriage, Smt. Pramila (the appellant) was asking her to transfer the house to her and she did not do so and, therefore, Smt. Pramila used to quarrel with her and gave her beating with the help of her brother and, therefore, she left (he house in the year 1986. Smt. Pramila (N. A. W. 1) has denied this fact and Bhur Singh (N. A. W. 2) has said that Smt. Pramila’s mother-in-law left the house and went to the quarter situated in maternity ward with her luggage in order to live there.

23. After carefully considering the facts and circumstances of the case. 1 am of the opinion that it cannot be said that the respondent’s mother Smt. Kamala had voluntarily left her house with a view to live in the quarter situated in hospital campus. It is against human nature to abandon the property which a person has constructed by utilising the money, which has been collected by making several sacrifices or by taking loan. The story set up by the appellant-non-petitioner in her reply as well as her evidence, is completely unreliable. I am, therefore, of the view that statement of Smt. Kamala (A. W. 2) inspires confidence and it shows that she was asked to transfer the house to the appellant-non-petitioner and when she refused to do, she was harassed and maltreated by the petitioner-appellant and her brother and, that she was forced to shift her residence to the quarter which was allotted to her in the hospital.

24. The crucial question is whether the act of demanding from Smt, Kamala to transfer the house to the appellant-non-petitioner and on her refusal to do so, causing of harassment to her, in any manner amounts to cruelty mentioned in Section 13(l)(ia) of the Hindu Marriage Act.

25. It is also alleged by the respondent that when he went to the house where the appellant-non-petitioner was residing, the appellant’s brother gave him a beating in presence of the appellant and in place of objecting to such act of her brother, the appellant asked her brother to beat the respondent. On a careful consideration of the evidence on record, I am of the opinion that this statement of respondent Vijay Kumar (A. W. 1) appears to be correct. The question is whether the act of the appellant-non-petitioner, as alleged by the respondent amounts to cruelty which is the ground of divorce. It is true that cruelty has not been defined every where but in view of the fact that the relation between the husband and wife is primarily a human relationship which needs the determination on the part of the parties to create and perpetuate the relationship and to avoid doing any such thing as is harmful to the relationship and to deliberately perform the duties which are necessary for relationship, it may be said without any hesitation that any conduct of either party to the marriage, which manifests, a contrary intention may amount to cruelty if it is proved and is of such a nature, as to lead to the inference that living together of the parties as husband and wife, would be harmful to them, having regard to all the facts and circumstances of the case. The appellant’s act of asking the respondent’s mother to transfer her house to the appellant and on her refusal to do so causing of harassment to the respondent’s mother in such a manner, as to force her to leave the house and start living in the quarter allotted in the hospital campus, in the facts and circumstances of the case, does amount to cruelty. Besides, the conduct of the appellant asking her brothers to give a beating to the respondent and not to stop them from beating the respondent must be regarded as an act of cruelty. The human relationships are required to be peaceful and free from any hostility. When any party to the marriage, instigates another person to cause any kind of harm, particularly the physical harm to the cither party to the marriage, it must be said that such instigation for causing of harm, manifests hostility as well as an attempt to cause harm and it amounts to cruelty. I therefore, have no doubt in it, that the appellant has been proved to have committed the abovementioned acts of cruelty.

26. There is another act of cruelty which is manifested by her reply as well as her statement and the statement of her father. She has alleged that she was asked to bring dowry and that on two occasions, she brought the amount of Rs. 10,000/- on each occasion and that on the third occasion, she was asked to bring a sum of Rs. 50,000/- and when she refused to fulfil this demand, she was harassed and given a beating. These allegations have not been proved by reliable evidence. The allegations of this nature are easy to be made but unless they are proved, as required by Section 3 of the Evidence Act. the allegations must be treated as not proved. Making false allegations is no doubt an act of cruelty if the object behind the making of false allegations is to lower the dignity or self-esteem or destroy the reputation or to bring some harm to the person against whom the allegations are made. Therefore, any one who makes allegations which are detrimental to the dignity, self-esteem, reputation or well being of the persons against whom they are made, must be careful in making such allegations. in other words, such allegations may not be made unless there is sufficient evidence to prove them. Anyone who makes allegations of serious nature against any one without sufficient evidence to prove them, must bear responsibility for making such allegations. If the allegations are made falsely or without sufficient evidence to prove them, the act of making allegations against either party may amount to cruelty.

27. In Omprakash v. Shakuntala. 1980 Raj LW 388. a learned single Judge of this Court considering the question whether accusation made in the reply filed by the non-petitioner against the petitioner and his father amounts to cruelty. The learned single Judge has observed :–

“The matter is now required to be viewed as to whether the accusations and aspirations made by the non-petitioner No. 1 against the petitioner and his father amount to mental cruelty to the petitioner?……….. Such accusations cannot be lightly ignored by simply stating that when accusations were made against the non-petitioner No. 1, so in turn the non-petitioner No. 1 as well, retorted in the same manner. in my opinion, such accusations and aspersions do amount to mental cruelty and they can certainly be taken into consideration.

in Parihar (Priti) v. Parihar (Kailash Singh) there were two letters sent by the wife to the Air Force Authorities of her husband and certain allegations were made in cross-examination of the husband regarding his sister’s doubtful character. Such conduct on the part of the wife was considered to amount to causing mental cruelty to the husband and in respect of the two letters It was observed that the letters were the act of cruelty not slight enough to effect revival only but per se constitute cruelty in the first instance and it was observed that the complaint which the wife made against the husband to his officers could have even cost him his Job and is certainly an act which would bring about mental cruelty, These acts on the part of the wife took place after the presentation of the petition and a question arose as to whether they could be taken into account and It was also considered whether in the circumstances these acts were provoked by the husband himself and, therefore, do not amount to mental cruelty. After consideration of the case law and the evidence it was found that these acts on the part of the wife amounted to mental cruelty. It was observed in that case that It is not correct to say that the subsequent cruelty is on account of wrong committed by the husband.

28. The accusation made by the appellant-non-petitloner in her reply as well as in her statement, that dowry was demanded from her and on two occasions, she brought Rs. 10,000/- on each occasion and a sum of Rs. 50,000/- was further demanded from her and that she was harassed when she failed to fulfil the demand, must be held to be untrue. These allegations, in view of the decisions referred to above amount to cruelty. I, therefore, have no hesitation in coming to the conclusion that finding on Issue No. 1 given by the learned District and Sessions Judge is correct and does not call for any Interference. As regards finding on issue No. 2, the facts and circumstances of this case clearly show that since January, 1987 the parties are living separately and their is no chance of reconciliation between them. Therefore, the finding on issue No. 2, as given by the learned District and Sessions Judge, does not appear to be incorrect.

29. For the reasons mentioned above, this appeal has no force. It deserves to be dismissed and is hereby dismissed.

30. During the pendency of the appeal, an application was filed by the appellant under Section 24 of the Hindu Marriage Act praying that maintenance allowance at the rate of Rs. 2,000/- per month be granted to her and her daughter Shobhna. The reply has been filed by the respondent. The respondent has filed his affidavit in support of the reply and the affidavit shows that previously he was employed as a Trainee Professional Sales Officer on a salary of Rs. 1200/- per month with M/s. Penzy Pharmaceuticals Pvt. Ltd., Delhi but his services have been terminated and he is presently out of his job and is dependent on his mother for his day to day needs and that the appellant is earning a sum of Rs. 2000/- by letting the house belonging to his mother on rent. There is no counter affidavit to controvert the fact that the respondent is unemployed and is not earning any money and is dependent on his mother in view of these circumstances, the appellant cannot be granted any maintenance allowance under Section 24 of the Hindu Marriage Act.

31. The application under Section 24 of the Hindu Marriage Act is, therefore, dismissed.

32. The parties are directed to bear their own costs.

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Bombay HC Full bench overturns Madanlal Sharma Vs Santosh Sharma. Cruelty under Sec 13(1) (1a) of HMA defined.

This is a landmark case defining Cruelty under Sec 13(1) (1a) of HMA. In this case, as per the Hon Bom HC Full bench, cruelty as envisaged under the amended Sec 13(1)(1a) of HMA does NOT attract the old English doctrine of danger nor the statutory limits embodied in old S. 10(1)(b).

Excerpts :

“….14. To conclude, in our view, the cruelty contemplated under S. 13(1)(i-a) of the Act neither attracts the old English doctrine of danger nor the statutory limits embodies in old S. 10(1)(b). the cruelty contemplated is a conduct of such type that the petitioner cannot reasonably the expected to live with the respondent, and, therefore, Madanlal’s case 91980 Mah LJ 391) does not lay down the law on the point correctly…..”

 

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Bombay High Court

Keshaorao Krishnaji Londhe vs Nisha Londhe on 23 March, 1984

Equivalent citations: AIR 1984 Bom 413, (1984) 86 BOMLR 339

Author: Mohta

Bench: Chandurkar, Mohta, Dhabe

JUDGMENT Mohta, J.

1. Has Madanlal sharma v. Smt. Santosh Sharma 1980 Mah LJ 391 correctly laid down the law relating to “cruelty” as a ground for divorce as envisaged by S. 13(1)(I-a), Hindu Marriage Act, 1955 (“The Act” for short) is a point which needs answer in this reference to the Full Bench.

2. First of all, the factual back ground. Appellant Dr. K. K. Londhe, married the respondent Mrs. Nisha Londhe in the year 1950. The respondent is Christian by birth but she was converted to Hinduism and the marriage was performed according to Hindu rites. During the period of 16 years of marital life, the couple was blessed with three children. The married life unfortunately was unhappy. The respondent had gone to Bangalore some time after May 1966. In September 1966. She gave a notice to the appellant for restitution of conjugal rights to which no response was given. She therefore, filed a petition for custody of the children and also filed a civil suit for maintenance. In the year 1967, the appellant filed a petition for judicial separation under old S. 10(1)(b) of the Act on the ground of cruelty. The substance of the appellant’s contention was that the respondent was uncultured, she entertained uncultivated ideas of behaviour and had not developed any emotional bond requisite for a happy married life. She was dogmatic, quarrelsome, selfish, arrogant and had no emotions of affection and love even towards the children. She obtained complete control over the financial situation of the family, insulted the appellant from time to time, exhibited inhuman behaviour towards the children, prevented the children from following Hindu religion, exhibited total lack of attention to the family affairs and gave threats to commit suicide and falsely alleged illegitimate relationship between the appellant and a nurse by name Chellamma. The respondent contended in defence that unhappiness in the family life in only when the appellant became was serving as a medical Officer in the refugee camp at Chandrapur. She denied the allegations of cruelty.

3. The learned trial Judge came to the conclusion on evidence that the appellant had failed to prove such cruelty “as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party” as contemplated under old S. 10(1)(b) of the Act. He further held that the petition was based on the ground of incompatibility and the examples given were of moral cruelty not contemplated under that provision and that unless the cruelty alleged is shown to have endangered appellant’s health, no relief could be granted. He also held that the appellant was having illicit love affair with Chellamma and was leading an adulterous life. The petition was dismissed but the custody of the children was given to the appellant. Both parties filed an appeal which cam eto be dismissed by the Assistant Judge in the year 1971. Reliance was placed on the case of Dr. Narayan Dastane v. Mrs. Sucheta Dstane which had taken a view , as many other High Courts had taken, that cruelty contemplated under old s. 10(1)(b) meant legal cruelty as understood in English Law, namely, injury causing danger to lilfe or limb or health or reasonable apprehension of such injury. The appellant filed the present second appeal in the year 1972. During the pendency of the second appeal, the Marriage Laws (Amendment) Act 1976 (Act No.68 of 1976) was passed. It introduced drastic changes and obliged the Courts to decide pending petitions as if they had been originally instituted under the Act s amended. The Act No. 68 of 1976, inter alia, provided also for divorce on the ground of cruelty as mentioned in the amended provision, viz. S. 13(1)((i-a). The appellant sought an opportunity to amend the pleadings as contemplated under S. 39(2) of the Act No.68 of 1976. This amendment claiming relief of divorce under the new provision was allowed by this Court and thereafter hearing commenced in the second appeal. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com

4. One development having bearing on the question may be noticed at this stage. The decision given by this Court in Dastane’s case (supra) was reversed by the Supreme Court in Dr. Dastane v. Mrs. Dastane decided on 19th Mar. 1975. The Supreme Court took view that it was risky to rely on foreign decisions on this question, the old English principles of doctrine of danger could not be applied and that the cruelty contemplated was such cruelty as qualified in old s. 10(1)(b), namely, “as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent”. It was further held that danger to life, limb or health or a reasonable apprehension of it is the higher requirement than a resonable apprehension that it is harmful or injurious for one spous to live with the other.

5. Now legislative background. The Act originally provided cruelty as a ground only for judicial separation under S. 10 and not for divorce under S 13. It was by the Hindu Marriage (Amendment) Act, 1964 (Act No. 44 of 1964) that the change was introduced in the form of S. 13(1A) by which it became posible to obtain a decree for divorce two years after passing of the dcree for judicial separation provided the parties did not resume cohabitation during that period. Old S. 10(1)(b) read as under:

“10(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district Court praying for a decree for judicial separation on the ground that the other party –

…………………..

has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party.”

By Act No. 68 of 1976, as mentioned earlier, drastic changes were brought about in the Act. A provision for divorce by mutual consent was introduced. Waiting period for obtaining divorce was reduced from one year right of repudiation of marriage to girls subjected to child marriage was conferred and the Amending Act was applied also to pending proceedings with a view to avoiod multiplicity of suits and consequent appeals. New S. 13 is subsituated for the former section and sub-s. (1) (I-a) reads thus :–

“13(1) Any marriage solemnized, whether before or after the commencement of this jAct, may, on a petition presented by either the husband or the wife, lbe dissolved by a decree of divorce on the ground that the other party –

……………………..

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty ;

(i-b) ……………………………….”

The net effect of the amending Act is that any of the spouses can calim either judicial separation or divorce on the ground of cruelty as contemplated under the aforesaid clause. It may be mentioned that there is an analogous provision, viz., S. 27(1)(d) in the Special Marriage Act, 1954, for obtaining divorce on the ground of cruelty. This provision was also interpreted by various High Courts before Dastane’s becision in Supreme Court by applying the old English concept of doctrine of danger as was applied while interpreting old S. 10(1)(b) of the Act.

6. Before the learned single Judge it was contended one behalf of the respondent that cruelty contemplated under the Act as amended meant cruelty, as it is lunderstood under the old English concept, as the object of the amending Act was to nullify the effect of the decision of the supreme Court in Dastane’s case and to restore the ratio laid down by various Courts prior to the decision and to bring the new provision at par with s. 27(1)(d), Special Marriage Act. proposition on Madanlal’s case 91980 Mah LJ 391) (supra). The learned Judge hearing this appeal did not agree with the view taken in the said decision as a result, the matter was referred to the Division Bench, being unaware of the fact that decision redered in Madanlal’s case was confirmed by other Division bench in Letters Patent Appeal No. 28 of 1980 decided on 10th Mar. 1980. The Division Bench to which the matter was referred also did not agree with the view taken in Madanlal’s case as according to it the intention of the Amending Act was to liberalize the law of divorce in accordance with the modern trend and not to restore the doctrine of danger which now is discared even in England and hence this reference to the Full Bench.

7. We are inclined to take a view that Madanalal’s case (1980 Mah LJ 391) does not correctly lay down the position of law. Here are our reasons. In Madanlal’s case the learned Judge refused to took into the recommendations of the Law Commission as contained in its 59th Report and the Statement of Objects and Reasons of the Amending Act in order to examine the legislative intention, on the ground that this was impermissible except for purposes of finding out what the state of affairs was before the amendment. It was also held that even though the Amending Act generally intended to make and has actually made some provision relating to divorce liberal it may not be liberal “on a particular aspect”. It is observed –

“Mr. Vora, however, invited my attention to the statement of objects and reasons accompanying the bill which ultimately amended the Hindu Marriage Act in 1976. The concluding senence in the statement of objects and reasons reads as follows :–

“The objects of the legislation are mainly. (1) to liberalise the provisions relating to divorce, (2) to enable expeditious disposal of proceedings under the Act; and (3) to remove certain anomalies and handicaps that have come to light after the passing of the Acts”. 9See Gazette of India, Extraordinary, Part II, Jan-April 1976, page 780).

Mr. Vora contends that the view which I am taking militates against the intention of the Legislature as is expressed in the Statement of Objects and Reasons. I am unable to accept this contention of Mr. Vora. In the first place, the statement of objects and reasons cannot be referred to except for the purpose of finding out what the state of affairs was before the amendment. It cannot be referred to for under standing the meaning of any particular words in the state itself. The statement of objects and reasons has always been held to be an unsafe guide while interpreting the substantive provisions of lany enactmnet. Secondly, even though the Act intended to make and has actually made liberal some provisions relating to divorce, on a particular aspect a provision may not be made liberal. If the provision of cruelty as a ground of divorce were to be liberal, then in view of the decision of the Supreme Court in Dastane v. Dastane, , it was not even necessry to amend the Act. The fact that the Parliament though it fit to amend the ground relating to cruelty and bring it on par with the language used in the Special Marriage Act shows that on this aspect the intention of the Legislature, as it revealed through the words, was not to liberalise the ground relaing to cruelty. Furthermore, “where a word has been construed judicially in a certain legal area, it is, I think, right to give it the same meaning if it occurs in a statute dealing with the same general subject matter, unless the context makes it clear that the word must have a different construction”. (See Maxwell on The Interpretation of Statutes, 12th Edition, page 278). I have, therefore, no hesitation in holding that the expression to be found in S. 13(1)(i-a), Hindu Marriage Act, endorses necessarily the concept of cruelty as it is understood under the English law.”

In the first place, the view that either the recommendations of the Law Commission or the statement of objects and reasons cannot be looked into for judging the legislative intention even in case of doubt, is not correct. The law on the point is no more res integra. No more the old approach is held valid either in India or in Western countries. In the case of Sagnata Investment Ltd. v. Norwich Corporation (1971) 3 WLR 133 (CA) Lord Denning freely referred to the report of the Royal Commission on Betting, Lotteries and Gaming and to the Minister’s speech in the House of Commons on the bill for construing the Betting, Gaming and Lotteries Acts of 1963 and 1964. The decision of the House of Lords in Fothergill v. monarch Air lines Ltd. (1980) 2 All ER 696 (HL) is an indication of the shift in favour of more liberal use of legislative materials. The position is in no way different in India. In the case of union of India v. Steel Stock Holders syndicate, Poona free use of the statement of objects and reasons was made while interpreting some of the provisions of the Indian Railways Act pertaining to the provision relating to breach of contract. In K. P. Varghese v.l Income-tax Officer, Ernakulam , not only the Statement of Objects and Reasons of the bill was referred but even the speech made by the mover of the bill was referred. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com

8. This takes us to the examination of 59th Report and the statement of objects and reasons of the relevant bill. Before we do so, we would like to refer to the social back ground against backdrop of which the bill was introduced. In the Shastrik Hindu Law divorce was unknown. Then came the Act which permitted judicial separation and divorce on some different grounds. On the ground of cruelty only judicial separation was permissible before 1964, after which divorce was permitted after waiting for a period of two years of the passing of decree for judicial separation and that too lon certain conditions. Examination of the grounds either for divorce or for judicial separation would reveal that the “fault theory” predominated. After the passing of the Act as well as the Special Marriage Act, various suggestions for their amendment all directed towards liberalization of law relating to divorce were put forth by members of Parliament as well as the general public. New trend of thinking had developed in society. The thinking was that there is no use maintaining the marriage as a facaee in the absence of emotional and other bonds which are the very essence of the marriage. It was considered better in the interest of healthy society to dissolve the marriage than meaninglessly to try it to limp along. The fault theory was thus considered as outdated and the “requested to examine the matter and the Commission presented the 59th Report of the Union Law Minister on 6th Mar. 1974. The committee on Status of Women in India generally supported the amendments proposed by the Law Commission.

9. The Statement of Objects and Reasons in terms refers to all these matters and the 59th Report of the Law Commission. The topic of cruelty as a ground for divorce is contained in paras 2.12. to 2.17 of the Report. It reads thus :

10. A draft on the following lines was suggested during our discussion :

“that the respondent has, since the solemnisation of the marriage, treated the petitioner with such cruelty that the petitioner cannot reasonably be expected to live with the respondent.”

We do not, however, think it necessary to add such limiting words, because we consider that the court would, even in the absence of such words broadly adopt the same approach.

It may incidentally be mentioned here that in many countries, matrimonial relief is provided to the aggrieved spouse on the ground of cruelty. This redress is usually justified on the ground of the principle of production.

to 2.16. Having considered all aspects of the matter, we have come to the conclusion that it is sufficient to provide for cruelty as a ground of divorce, and it should be left to the courts to determine on the facts of each case whether the conduct amounts to cruelty.

Accordingly, we recommended that in S. 13(1), Hindu Marriage Act, a new clause should be added as follows :–

“has treated the petitioner with cruelty”.

It would be seen that the above Commission is bodily lifted and put in S. 13(1)(i-a). It is sufficient to notice that the suggestion to add even certain limiting words contianted in para 2.12 was rejected because the Commission considered “that the Court would even in the absence of such words broadly adopt the same approach”.

In Dastane’s case the standard of cruelty was watered down from doctrine of danger to the “reasonable apprehension that it is harmful or injurious for one spouse to live with the other” as envisaged in old S. 10(1)(b). Even this legislative standard of cruelty – on which Supreme Court laid great stress – is made to disappear by Act 68 of 1976. Cruelty as a matrimonial offence has now no specified caveat tagged to it. It is now cruelty simpliciter. It is a well-known canon of interpretation that every amendment is intended to bring about a change in the existing law and is not an exercise in futility. This position is indeed not debated before us. The contention is that intention was to bring back the concept of cruelty on par with the age old English concept of doctrine of danger and to nullify the effect of Dastane’s case. We find it difficult to accept. In the first place, there is not even a Wisper in the Statement of Objects and Reasons directly or indirectly about Dastane’s case or the view that prevailed before that decision. Secondly the bill in terms refers to the recommendation contained in 59theREport which itself is submitted on 6th Mar. 1974 i.e. more than one year before the decision in Dastane’s case. When entire gneral trend of the Amending Act is towards a forward step of liberalization of divorce it is fallacious to hold that only with relation to cruelty as to ground for divorce intention was to make the law more stringment and to move backward. Indeed in view of law laid down in Dastane’s case, earlier decisions interpreting S. 27(1)(d), Special Marriage Act, are no longer good law and deserve to be reviewed.

11. There is yet another aspect to the question. The whole of the English Law relating to cruelty is judge made. The first Divorce, 9th Edition, page 123, para 79 states the law as under:

“Legal cruelty’ may be defined as conduct of such a character as to have caused danger to life, limb or health (bodily or mental) or as to give rise to a reasonable apprehension of such danger. Where conduct over a period of years is relied on as constituting cruelty, it is very difficult to prove to the satisfaction of the court that there was reasonable apprehension of danger to health where actual injury is not proved. The fact that a marriage had broken down is no reason in itself for a finding of cruelty.”

This definition of cruelty was consistently applied in India while interpreting either provisions of the Act or the Special Marriage Act before Dastane’s case. Legislative history of law in England will indicate that egen there, the aforesaid concept has become outdates. Sweeping changes made in England in the law relating to divorce is a pointer matrimonial causes Act, 1965, was amended by the Divorce Reforms Act, 1969, permitting divorce on the sole ground of irretrievable breakdown of marriage. Section 2(1) of the said Act says –

“the Court hearing the petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –

that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent ;

(c) that the respondent has deserted the petitioner for a continous period of at least two years immediately preceding the presentation of the petition ;

that the parties to the marriage have lived apart for a continous period of at least two years immediately preceding the presentation of the petition and the that the parties to the marriage have lived apart for a continous period of at least five years immediately preceding the presentation of the petition.”

The Matrimonial Causes Act, 1973, which repealed the 1969 Act contains analogous provisions. The behaviour of a type that the petitioner cannot reasonably be expected to live with the respondent is a valid ground for divorce even in England. This change in the approach cannot be ignored and it cannot be reasonably held that Indian Parliament in 1976 was oblivious of those development. It is pertinent to notice that changes suggested by the Law Commission and accepted by the Parliament are on almost similar lines. In this background also it is not possible to attribute intention to restore the higher standard of cruelty contemplated under the old concept, viz., danger to life, limb or health or reasonable apprehension thereof.

12. What is cruelty simpliciter? It is not possible to comprehend the human conduct and behaviour for all time to come and to judge it in isolation. A priori definition of cruelty is thus not possible and that explains the general legislative policy – with sole exception of the Dissolution of the Muslim Marriage Act – to avoid such definition and leave it to the Courts to interpret, analyse and define what would constitute cruelty in a given case depending upon many factors such as social status, background, customs, traditions, caste and community, upbringing, public opinion prevailing in the locality etc. It is in this background that the suggestion contained in para 2.12. of the 59 report was turned down and the limiting words, namely, “such cruelty that the petitioner cannot reasonably be expected to live with the respondent” were not incorporated on the view that “the Court would even in the absence of such words broadly adopt the same approach”. After referring to the fact that the divorce on the ground of crelty is “usually justified on the ground of principle of protection’ the final draft as mentioned in para 2.17 was suggested and which, as referred to above, was accepted by the therefore, that will have to be applied in interpreting S. 13(1)(i-a) has to be whether the cruelty is of such type that the petitioner cannot reasonable be expected to live with the respondent or living together of the spouses had become incompatible.

13. Now brief survey of precedents to which our attention was drawn. A single Judge of this Court in the case of Kalpana Shripati Rao v. Shripati V. Rao (1983) 1 DMC 483 has also taken a view of the matter similar to the one we are taking. The bare reading of the judgement will indicate that the view taken in Madanlal’s case (1980 Mah LJ 391) has not been approaved in this judgement. However, lwithout referring the matter to the larger Bench it has been held that by Act, l68 of 1976, not only there is no reversion to the old English concept but there is a forward march towards liberalisation of the divorce on the ground of cruelty and even the statutory limitations have now been done away with. In ashwini Kumar Sehgal v. Smt. Swatantar Sehgal 1979 Mat LR 26 (Punj & Har) taking a view that Act, 68 of 1976, has simplified the concept of cruelty, the Pubjab and Haryana High Court has aptly observed :–

“Cruelty in such cases has to be of the type which should satisfy the conscience of the court to believe that the relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible for them to lilve together without mental agony torture or distress.”

In Balbir Kaur v. Dhir Dass it has been held that cruelty admits in its ambit and scope such acts that might even cause mental agony. Almost on the same lines is the view taken in Dr. Srikant Rangacharya Adya v. Smt. Anuradha . In Sulekha Bairagi v. Kamala Kanta Bairagi Calcutta High Court has taken a view that the cruelty need not be of such a character as to cause danger to life, limb or health or to give a rise to and that it has to be of the type contemplated under S 10(1)(b). However, according to this High Court, Act, 68 of 1976 has made no change in the law as declared in Dastane’s case by the Supreme Court. For the reasons which need not be repeated we are not in agreement with the latter part of the view, In Raj Kumar Manocha v. Anskuka Manocha 1983-1 DMC 448 Punjab & Haryana High Court has followed in terms the view take in Madanlal Sharma’s case (1980 Mah LJ 391), without giving any additional reasonings. In P. v. P. also decision in LPA No. 28 of 1980 has been followed in substance.

14. To conclude, in our view, the cruelty contemplated under S. 13(1)(i-a) of the Act neither attracts the old English doctrine of danger nor the statutory limits embodies in old S. 10(1)(b). the cruelty contemplated is a conduct of such type that the petitioner cannot reasonably the expected to live with the respondent, and, therefore, Madanlal’s case 91980 Mah LJ 391) does not lay down the law on the point correctly.

15. Reference answered accordingly. The Second Appeal be now placed before the single Judge for decision according to law. No order as to costs.

16. Answer accordingly.

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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