Monthly Archives: December 2015

Happy Newyear 2016. 39 cases where truth triumphed & husbands won divorce on cruelty ! 39 from the 500+ !

We welcome the new year with prayer, hope and determination ! We start this year with an unshaken belief that truth shall triumph, and truth alone shall triumph ultimately. Though Sun’s light may temporarily seem to be hidden by clouds, we know that the mighty Sun is far more powerful than these temporary clouds… ! May truth triumph ! May honest men and families find peace, wealth and happiness this year and after! Happy and prosperous new year 2016

39 cases where truth triumphed and wife’s cruelty was proven (just a sample from the few hundreds blogged @ https://vinayak.wordpress.com !!)


Cruelty&Divorce#1:

Early morning he wanted VIOLENT SEX. When refused he asked 2lakhs! Wife looses case & NO alimony to her! Madras HC gem

Ablaa naari, the beacon of love, embodiment of culture has the following false allegations in addition to complaints about husband’s abuses and ill treatments
“….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.
xxx
(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…..”

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……”

HIGH COURT OF JUDICATURE AT MADRAS
C.M.A No.887 of 2010  and  MP.No.1 of 2010
A.Sukumar Vs. K.S.Chitra
Link : http://wp.me/p7s7-1L8


Cruelty&Divorce#2:

Filing false criminal cases, breaking & throwing mangalsutra, getting husband arrested, neglecting household, ill treating husband etc are cruelty. Divorce granted. P & H HC affirms lower court decree.

  • Wife leaves matri home on many occasions
  • Wife breaks mangalsutra throws it on ground during quarrel
  • Wife has written letters to husband’s employer urging them to take action against husband
  • Wife files false 406, 498a case wherein the husband was arrested but the final outcome resulted in acquittal of husband and other accused by the trial court vide judgment dated 23.2.2013
  • The Husband argues that “…acts of the appellant (wife in this appeal) in insisting upon the department to initiate action against the respondent and also to prosecute him for demand of dowry show that the marriage had irretrievably been broken and such acts of the appellant amount to cruelty and were sufficient to dissolve marriage between the parties…”

So the Hon HC summarizes that “……The primary question that arises for consideration in this appeal is whether the acquittal of the husband and his family members of matrimonial offences under Sections 406, 498-A of the Indian Penal Code would be sufficient to hold that it has caused mental cruelty to the husband so as to entitle him to a decree of divorce under Section 13(1) (ia) of the Act….”

& the Hon HC concludes that “… Thus, the irresistible conclusion would be that the appellant-wife had treated the husband-respondent with cruelty….” and “…..Learned counsel for the appellant was unable to demonstrate that there was any error or perversity in the findings recorded by the trial court which may warrant interference by this Court. Accordingly, finding no merit in the appeal, the same is hereby dismissed. No costs….”

HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No. 262-M of 2006 (O&M)
Dr.Anita Rani  Versus Dr.Suresh Kumar
Link : http://wp.me/p7s7-1IE


Cruelty&Divorce#3:

When cruelty desertion alleged by wife NOT true, wife not caring, living away, she can NOT take advantage of own wrong Wife DENIED divorce !!

This is the sad case of a 56 year old woman and 58 year old male fighting in courts. The lady is seeking divorce and alleging that her husband has been cruel and has deserted her. The lower court dismisses her case. The matter moves to HC. The HC appreciates the arguments and states

We have given the Hon court’s reasoning with some empahsis / addendum in brackets ()
“….18. So, the evidence of R.W. 1 (husband) is that he never ill-treated the petitioner. P.W. 1 (wife) has clearly admitted that the respondent took keen interest as normal father towards his son and he only used to ask the petitioner for some money and he was in the habit of giving his salary cover to the petitioner. So, it is well-evident that the respondent never ill-treated the petitioner and he was very cordial to the petitioner and the petitioner only acted in an indifferent manner towards the respondent. R, W. 1 further says that when he met with an accident and sustained injuries, the petitioner did not attend to him, P.W. 1 has also stated that at one time, she removed the “Thirumangalyam” as she is employed. R.W. 1 has stated that the petitioner removed her “Mangalyam” and he was upset by it. No Hindu women will be so dare enough to remove the “Thirumangalyam” by herself. Her admission that she removed her “Thirumangalyam” goes to establish her indifferent attitude towards the respondent….”
“….21. On going through the evidence of P.W. 1 and R.W. 1, we are clearly of the view that cruelty as alleged by the petitioner is not true and the petitioner is not entitled to divorce on either of the grounds. The Family Court has carefully analysed the entire evidence and has dismissed the petition. We find no infirmity in the order passed by the Family Court…”

Madras High Court
Sarada vs V. Satyamurthi on 4 December, 2000
Equivalent citations: I (2001) DMC 210, (2001) 1 MLJ 224
Link : wp.me/p7s7-1K9


Cruelty&Divorce#4:

Suicide attempt as husband did NOT set up separate house is cruelty. Husband gets divorce ! Madras HC

  • Wife attempts suicide on multiple occasions
  • She is taken to the Govt Stanley medical hospital and treated
  • She claims that she tried to commit suicide because husband refused to set up a separate house
  • Lower courts REJECT husband’s plea of cruelty
  • Madras HC appreciates the evidence and conduct of parties and concludes that the wife treated the husband with cruelty
  • Though desertion is NOT proven by the husband in this case, cruelty is proven and so divorce granted

Madras High Court
A.P. Ranga Rao vs Vijayalakshmi on 26 September, 1988
Equivalent citations: I (1990) DMC 567
Link :  http://wp.me/p7s7-1K7


Cruelty&Divorce#5:

Wife making false adultery allegations & filing complaints with husband’s employer is cruelty. Madras HC sees thru wife’s game

Wife making false adultery allegations & filing complaints with husband’s employer is cruelty. Wife also deserts husband using one pretext or other. Family court rejects husband’s divorce and allows wife’s RCR ! HC seeks wife’s game and orders divorce in favour of husband on both grounds cruelty and desertion! HC sets aside wife’s RCR !!

“….Learned counsel appearing for the appellant submitted that all the allegations made by the respondent were not proved and on the other hand, the appellant’s case of cruelty was supported by evidence. In fact, one should only look at the counter affidavit filed by the respondent which itself would prove the acts of cruelty alleged by the appellant. The learned counsel made impassioned submissions regarding the ordeal suffered by litigants seeking reliefs under the Family Courts Act. He submitted that it is not as if litigants in India rush to the Family Courts without any excuse. Conciliation and mediation takes place at every level within the family, amongst the friends, within the community and only when everything fails that the litigants approach the Family Court and thereafter, there is very little scope for reconciliation. In this case, the appellant had been harassed by the respondent in the office and she had made wild allegations without any justification. She had made allegations regarding adultery, which was not proved, which itself is an act of cruelty and therefore, the Family Court had erred in accepting the case of the respondent. Learned counsel referred to several decisions in support of his submissions.

The Hon HC says “….In 2003 (4) L.W. 609, the Supreme Court held that aspersions regarding infidelity is the worst form of insult and cruelty and that a wife is likely to feel deeply hurt and reasonably apprehend that it will be dangerous to live with a husband who was taunting her like that.

The Hon HC further states “…. 2005 (4) C.T.C. 287 : 2006 (1) L.W. 512 was a case where the parties had spent a good part of their lives in litigation and the Supreme Court defined the ingredients of desertion where the wife had insisted on the husband shifting from the village to the place where she was working; did not visit him on the death of her father-in-law, did not attend the wedding of her brother-in-law; and the Conciliation Officer’s report was that the wife was willing to live with the husband only if they live separately. In that case also, the Supreme Court, holding that the marriage was as good as dead and dissolved the marriage on the ground of irretrievable breakdown…..”

Finally divorce is decreed in favour of the husband

IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.M.A. Nos.2871 and 2872 of 2004
Nagappan Vs Virgin Rani
Link : wp.me/p7s7-1Kb


Cruelty&Divorce#6:

Husband wins divorce on grounds of cruelty as wife regularly leaves husband files false 498a 406 where husband is arrested. Wife also looses appeal @ Cal. HC !!

Husband gets divorce under grounds of Cruelty as wife regularly left the husband’s house against his wish and also filed false 498a case against husband and MIL, wherein husband was arrested. This 498a also finally ends in acquittal. Wife also files an appeal against the divorce decree (which went in favour of the husband), argues at the HC that she was immensely tortured etc, but she looses appeal @ Cal. HC !!

  • wife files 498a etc
  • wife left the matrimonial home along with her father on January 23, 1994 and on that very date lodged a complaint under Section 498A Indian Penal Code against her husband. Husband was arrested by police and had to remain in jail custody for 14 days.
  • Wife also lodged another complaint under Section 406 Indian Penal Code against her husband and after trial the accused were acquitted. According to the husband within a very short time thereafter the husband was ill-treated by the wife and her father and brother. He used to be pressurized to desert his old widowed mother and unmarried sister to live as ‘Gharjamai’.
  • The HON HC goes on the say “….An inference, however, can be drawn by matrimonial Court that by initiating criminal proceedings under Section 498A Indian Penal Code wife has an intention not to live with the husband. This is because the person lodging such complaint under Section 498A is imputed with the knowledge that, if convicted, the accused, would be incarcerated. ….”
  • And the HON HCc concludes that “…..30. However, on the authority of the judgment in Nivedita Banerjee, (supra), the act of the wife in the matter of initiating criminal proceedings where the husband was arrested and detained in jail custody, that case having ended in acquittal just as in the case on hand, the judgment under appeal can be sustained. Inference can be drawn that the wife has no intention to go back to the husband and her intention was to terminate the matrimonial relationship. ….”
  • so wife looses her appeal against husband’s divorce (i.e. Husband’s divorce is confirmed by HC)

Calcutta High Court
Smt. Kajal Roy vs Prasanta Kr. Roy
Equivalent citations: (2005) 2 CALLT 567 HC
Link :  http://wp.me/p7s7-1Kk


Cruelty&Divorce#7:

Wife denying sex, acting like deadwood, NON participation @ rituals, deserting husband are all cruelty. Husband wins Divorce

Wife refuses sex, refuses to participate in customary ceremonies, leaves husband often and files false complaints. Tries to deprive him of divorce by appealing to HC. HC sees thru the wife’s game and confirms the divorce in favour of the husband.
Also, the importance of proving your case at the lower court comes out in this case. HC relies on lower court case / testimonies to decide on this case

“…..Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy……
11. …..In the present case, the testimony of the respondent (husband) that the appellant (wife) was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted.  ….”
“…..The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. …..No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, ………….
“……Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. …. The appellant herein also filed CRIMINAL COMPLAINTS against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent……..

IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO No.185/2001
Smt. Shashi Bala Vs. Shri Rajiv Arora
Link : http://wp.me/p7s7-1Kp


Cruelty&Divorce#8:

Slapping Mother in law, emptying bank, insisting separate resid, deserting hubby all cruelty. Divorce granted even B4 498a decided. Civil & criminal cases continue on own merits. One need not affect the other !

Husband proves that the wife was disrespectful towards his parents, she was abusive and even slapped her Mother in law and insulted her before relatives. Husband and his family tolerated the cruel acts & her behavior continued to deteriorate.  She left the husband on numerous occasions, harassed husband for a separate resid. & emptied the bank account !!. All these were decreed as cruelty towards the husband. Wife’s argues that the 498a / 406 case is NOT yet decided. But HC confirms divorce even B4 498a is decided. HC observes that Civil and criminal cases continue on own merits. Decisions in one need not affect the other !

Key Excerpts :
“……33. As regards to the contention of pendency of criminal proceedings, in P. Swaroopa Rani Vs. M. Hari Narayana @ Hari Babu 2008 (3) SCALE 501, the Apex Court has observed as under : “It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.”
xxx
79. In this way it is evident that appellant lived at the matrimonial home only for short intervals and most of the times she was living at her parental home, thereby, strengthening the case of the respondent. ……….
82. It is clear that the appellant has not remained consistent on her allegations and she has been improving her defence at the belated stage. In the circumstances, no reliance can be placed upon the version of the appellant.
83. On the other hand, the respondent has been able to establish by way of specific pleadings and evidence that appellant came back to the matrimonial home on 23rd July, 1999 after the birth the child. In view of this, it is difficult to accept that the incident of beating and confining the appellant had happened on 23rd July, 1999.
84. It is admitted by the appellant in her cross- examination that she withdrew the amount from the joint account of the parties without informing the respondent. It is also admitted by the appellant in her cross examination that she demanded separate residence before Crime against Women Cell stating that she was fed up with the cruelty.
85. The act of the appellant in withdrawing the amount from the joint account of the parties without informing the respondent also indicates the intention of the appellant to stay separately.
86. Thus, in view of the above discussion and in the light of evidence, it is clear that the appellant has not been able to establish her case and the conduct of the appellant was not proper towards the respondent and his parents thereby causing cruelty to them.
87. Hence, I do not find any infirmity or illegality in the impugned judgment passed by the Trial Court.

HIGH COURT OF DELHI : NEW DELHI
MAT App. No. 82 of 2007
Lata Verma Versus Jayant Verma
Link : http://wp.me/p7s7-1Ku


Cruelty&Divorce#9:

Wild, reckless baseless allegations of impotency, lack of manliness in WS are cruelty. Husband wins. BOM HC

In this case the wife lives with the husband only for a short while and the couple part. The husband alleges that the wife was of unsound mind and also treated him with cruelty, was cold and refused to cohabit normally etc, while the wife alleges that the husband is impotent and unmanly. The lower court grants divorce in favour of the husband. Wife goes on appeal to Bom HC.
HC analyses the facts and concludes that the husband has (a) NOT proven cruelty during the short matrimonial life, (b) has NOT proven that the wife is of unsound minf but (c) he is entitled to divorce on the basis of wild, reckless baseless allegations of impotency, lack of manliness made by the wife in her written statements. This case should help husbands who are hit with preposterous allegations in the WS that are left unrpoven.
The Honourable court summarises :“…….In the light of the above, my answers to the questions framed in the first para of this judgment are as under :–
(i) Cruelty in the matrimonial law means conduct of such type that the petitioner cannot reasonably be expected to live with the respondent.
(ii) It would follow that the old English law concept of danger is no longer applicable in India.
(iii) The making of wild, reckless and baseless allegations of impotency and lack of manliness — itself amount to cruelty in the matrimonial law. ………”

Bombay High Court
Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha
Equivalent citations: AIR 1991 Bom 259, (1991) 93 BOMLR 373, I (1992) DMC 180, 1991 (1) MhLj 267
Link : http://wp.me/p7s7-1Ky


Cruelty&Divorce#10:

MA LLB wife files 498a & alleges husband has illicit relation with husband’s OWN sister. Cruelty decreed . MP HC

MA LLB Qualified wife files 498a etc case and also alleges that her husband had illicit relationship with his own sister. Husband says that the case is false and is fabricated to outst the mother in law & sister in law and to usurp property. Husband examines (cross examines) himself and sister and disproves allegations. Lower court decrees divorce in favour of husband. Wife appeals to HC, fights cases party in person. HC appreciates the matter on record, discusses what is mental cruelty at length and confirms the lowercourt decree on grounds of cruelty

Excerpts : “…..Specific allegations have also been made by the respondent in support of his case by narrating incident of 19.12.06 by alleging that on that day at about 7.00 PM, the appellant, her brother and sister came to his house and treated the respondent and his family members with cruelty in presence of his friend Shailendra who appeared as PW/3. About that incident, it was alleged that on that day the family members of the appellant and appellant herself wanted the respondent to execute papers for transfer of matrimonial house in her name and on his refusal she abused the respondent and his sister. She even made allegations that the respondent was having illicit relationship with his sister. Incident of 27.12.2006 is also referred to on which day threats were given to the respondent that if the house was not mutated within seven days in the name of the appellant, a false complaint will be lodged against the respondent and his family members…”
“….33. It may be observed here that in matrimonial life, the possibility of such situation that the sister living in parents’ house after her marriage is not an unusual situation. It quite often happen if her relationship with her husband is not very good and she did not feel comfortable then only option for her to live with her parents. Even if such living by the married daughter is for a long period, this cannot be a reason for the sister-in-law to create a situation where relationship between the parties comes to such a situation that they are unable to live together which appears to be a situation created by the appellant and has given reason for filing of this divorce petition. She went to the extent of making allegation against the sister of the husband calling her a person of shady character…..”
…36. Besides the specific act of mental cruelty making false allegations against the sister of the respondent, it is also matter on record that the appellant filed various such complaint under Section 498-A of IPC under Domestic Violence Act. In those proceedings, the appellant even opposed the bail application went to the extent of filing revisions against the grant of bail to the respondent and his family members. Such conduct on the part of the appellant further constitute mental cruelty…

HIGH COURT OF JUDICATURE AT JABALPUR BENCH GWALIOR.
Mamta Bhardwaj  vs.  Madhusudan Bhardwaj
F.A.159/2013
Link : wp.me/p7s7-1KA


Cruelty&Divorce#11:

Driving husband out of the matrimonial home, assaulting & abusing him, refusing 2 cohabit ALL cruelty, Husband granted divorce, Delhi HC

A 60+ year old man who was driven away from his own house seeks justice. Wife refuses to live with him, abuses him and assaults him. She admits writing letters against the husband to the Prime Minister, her son Shri Sanjay Gandhi; and Shri Charan Singh under her own signatures and also to Shah Cominission. The allegations against her are supported by no less than the oral testimony of her sons Surinder Kumar (AW2) and Raj Kumar (AW3) and the letters of the eldest one Ashok who is abroad and pelts stones at his car !! Husband pleads for mercy for divorce !!

The court appreciates the evidence and says : “….that there was evidence plain and sufficient enough to justify a finding that the life of the husband has been subjected to cruelty and has become unendurable even for a man who has carried on with it right into his sixties. There is limit to endurance. Howsoever, one may wish, society cannot scrap marriage. It is compulsion of creation. It was rather sanctified and hallowed so that couples live in peace, in fear of God and help retain calmness in the community. Yet, it had to devise doors of exit as and when it becomes unreasonably unbearable and converges into sheer bondage. I, therefore, find no ground for altering the decision of the court below. There remained nothing in the marriage except the name. The vows were forgotten. Incantations lost in their spell.The learned Judge below was right in formally snapping the ties which had ceased to be binding happy or purposeful.
(10) I say amen and dismiss this appeal. The cross-objection need not now be examined and is dismissed hereby. Let me, however, add that it is not easy as the court below did, to absolve the wife of willful desertion. She refuses with astounding obstinacy to go and live in the new matrimonial home and demands of the husband to come and live where she wishes to…..”

Delhi High Court
Chandhok (Lajwanti) vs Chandhok (O.N.)
Equivalent citations: ILR 1982 Delhi 689, 1981 RLR 619
Link : http://wp.me/p7s7-1KI


Cruelty&Divorce#12:

Forcing hubby to be a Ghar Jamaee, deserting him on his refusal 2 ditch his own parents, not attending 2 his ailments are all matrimonial cruelty. Divorce decreed by. MP HC

In this case the couple get married at a very young age. Right from the start of the matrimonial relations the wife and her father pressurize the husband to live as a Ghar Jamaee. He refuses to ditch his parents and live with them. So the wife misbehaves with him and starts living with her parents. She does not attend to him even though he is an Asthma Patient. His attempts to bring her back fail. He files for divorce in lower court, but looses the case in lower court. He appeals to the HC. The Hon HC appreciates the evidence and correspondence between parties and ascertains the wife’s cruelty and desertion. Husband gets divorce.

Excerpts : 
* The Honourable HC concludes that “…..34. It would appear from the evidence as discussed above, that the respondent and her father had been continuously pressing the petitioner/husband to live with them as ‘Ghar Jamaee’. On the petitioner’s refusal to yield their unjust demand as above, the respondent/wife started misbehaving and maltreating the petitioner/husband and his family members. The respondent/wife had forsaken the company of the petitioner/husband without any justifiable cause and against his wishes. The petitioner/husband was an asthama patient. However, he was left alone to suffer in his misery and ailment, while he was posted at Bakhtara, as has been stated by him. Though married the petitioner, never enjoyed the marital bliss and comfort of a home. She did not return back despite requests and efforts made by the petitioner. The respondent’s father had extended threats to the father of the petitioner that he would be losing his younger son i.e., the petitioner also, as was the case of the elder brother of the petitioner.
* 35. It is, therefore, clear that the petitioner had to live a lonely life for a very long period of 17 years. The cumulative effect of the above facts and circumstances indicate that the respondent had treated the petitioner with cruelty.
36. It is thus clear that the grounds of desertion and cruelty have been established by the evidence and the facts and circumstances of the case. Thus, grounds for granting a decree of divorce as enumerated in Section 13(1)(i-a) and 13 (1) (i-b) have been made out…………….”

Madhya Pradesh High Court
Gajendra vs Smt. Madhu Mati
Equivalent citations: AIR 2001 MP 299, II (2001) DMC 123, 2001 (3) MPHT 335
Link : http://wp.me/p7s7-1KK


Cruelty&Divorce#13:

Refusing sex, suicide threats and tantrums on Bro in Law’s engagement date, ill treating & indifferent attitude to husband’s relatives, all cruelty. Divorce decreed by Delhi HC

  • Husband and wife are doctors
  • Wife says she is un interested in the marriage right from the very beginning
  • Wife abstains from sex even during honey moon, has to be coaxed, cajoled etc to have sex
  • she refuses to live with her husband, refuses to take part in Diwali Puja and continues to live at her parents place
  • She threatens of suicide on the day of the husband’s brother’s engagement and creates a big scene of trying to jump from the house balcony ; She refuses to attend to her father in law when father in law is operated upon, and bedridden ;
  • In addition to above she tries to force the husband to move away from his parents and live at her place; All above acts are decreed as cruelty by the lower court and confirmed by Delhi HC
    The Honorable HC Goes thru a cantena of decisions on Cruelty and decides that the wife’s behavior towards her husband, in laws and marriage constitute cruelty !!

Delhi High Court
Smt. Alka vs Dr. R.K. Gautam
Link : http://wp.me/p7s7-1KO


Cruelty&Divorce#14:

Removing mangasutra, ill-treating husband, neglecting household & child, ALL cruelty. AP HC confirms Divorce

  • The marriage on 26th February, 1982 at Eluru according to Hindu rites and customs.
  • Out of their wedlock, in the year 1982, a male child was born.
  • Wife did not breast feed the male child and did not choose to pay proper care and attention. Ultimately, the boy died due to lack of proper care
  • she was brought back by her parents by eventually left the husband
  • she also left her matrimonial home and filed for maintenance
  • lower court appreciates the evidence and grants divorce to husband, on grounds of cruelty
  • wife goes on appeal to AP HC

The Honourable HC appreciates the evidence on record and summarises as follows
  …A threat by wife to her husband that she would put an end to her life or that she would be set herself to fire is sufficient to imperil the happiness of the husband.
  …The act like removing Mangala-sutram etc., beating the child would amount to cruelty, Admittedly, the respondent is not having her Mangalasutram or Pasuputadu on her neck while giving evidence. She removed, it even though the marriage was subsisting and her husband is alive. Such act is not expected from an educated Hindu Brahmin Woman. Here it may be mentioned that this Court requested one of the junior Advocates of Sri C.V.N. Sastry to examine and find out whether the appellant-wife is wearing Mangalasutram or not. On verification, he informed the Court that the appellant is not having mangalasutram or Pasuputadu….”
*  ...Be that as it may, cruelty need not be physical. It can be mental cruelty making the life of husband miserable always with quarrel. Frequent desertion itself is sufficient cruelty to attract the provisions of the Hindu Marriage Act. Mental cruelty itself is sufficient to cause greater injury and creates a reasonable apprehension that it will be harmful and unsafe to live with her. The Court below has elaborately dealt with the aspect of the matter in paragraph 18 of its judgment and held that there is no reason for the wife to live away from her husband. The reasoning given by the Court below is cogent and convicing and does not call for interference in appeal…..
*  …The respondent-husband deposed as P.W. 1 and his evidence is corroborated by the evidence of his father who was examined as P. W. 2. There is no reason to discredit their evidence. From their evidence it is clear that the wife was treating her husband with cruelty and she never showed any affection towards him. She made his life miserable and therefore she is responsible for breaking down his family life. The learned Magistrate, who tried the maintenance case also came to the conclusion that the wife is responsible for breaking down the marriage. Therefore, having regard to all the circumstances of the case, we find that the appellant-wife was responsible for the failure of the marriage, and that the respondent-husband has established that the appellant behaved cruelly towards him.

ANDHRA HIGH COURT
SMT. PARIMI MEHAR SESHU VS PARIMI NAGESWARA SASTRY
EQUIVALENT CITATIONS: AIR 1994 AP 92, 1993 (2) ALT 489, I (1994) DMC 417
Link : http://wp.me/p7s7-1KS


Cruelty&Divorce#15:

Beating MIL, taking MIL’s house, wife’s brother beating husband, false dowry statements, all are matrimonial 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 !!

Rajasthan High Court
Smt. Pramila Bhatia vs Vijay Kumar Bhatia
Equivalent citations: AIR 2000 Raj 363
Link : http://wp.me/p7s7-1L5


Cruelty&Divorce#16:

False 498a ending in acquittal is cruelty. No need 2 establish “malafide”. Divorce granted !! Bombay HC

False 498a that ends in acquittal is cruelty. No special finding by trial court needed to establish malafide intentions or intent to defame ! Divorce granted to husband & Wife’s RCR set aside. Spouses cannot be asked to live together after such cruelty. Bombay HC

The key question raised in this case is “…. “Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ? “
I.e. is a false 498a where husband & other accused are acquitted by itself gorunds for claiming cruelty or is there a need for the trial court to state that it was intentionally filed to defame the husband ?

  • Marriage On or about 16th June, 2002
  • VERY soon she starts her 498a ” …On 12th August, 2002, an FIR came to be lodged by the respondent under sections 498A, 323, 504 and 506 …  appellant, his father, mother and brother. The appellant and his family members were arrested by the police …”
  • On 21st December, 2002, the respondent (wife) files …. restitution of conjugal rights.
  • On 5th September, 2005, the appellant (husband), his family members were acquitted 498a etc
  • “…5. On 10th March, 2006, the appellant herein filed a …. praying for annulment of marriage and for divorce.…* * Civil judge dismisses husband’s petition and allows wifes RCR. Husband goes on appeal to the district judge who confirms the order of the civil judge. So husband goes on appeal to the high court
  • The HC accepts the appeal and frames the important question ….“Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ? “
  • the Hon HC notices and appreciates the fact that the trial court had “….It is held that the said deposition in the cross- examination for the first time about the alleged demand of dowry was an after thought. No incident had occurred from 16th June, 2002 to 21st June, 2002. It is held that it appeared to be improbable that on 21st June, 2002 after Pooja was performed, she was suddenly and forcibly asked to leave the matrimonial home.….” and the trial court had also noticed and mentioned that “…..25. It is held that the case of the respondent was not believable in view of the appellant and his family members giving gifts to the relatives of the respondent and in view of the delay on her part in lodging a complaint against the appellant and his family members…..”
  • The Hon HC notices the fact that “…29. The Criminal Court while acquitting the appellant and his family members, after considering the evidence of six witnesses had rendered a positive finding that the complaint filed by the respondent was an after thought. …”
  • After referring to a catena of HC and SC decisions the Hon HC concludes that “…In my opinion, filing of such complaint itself which create mental trauma on the husband and the complaint which was seriously prosecuted by the wife by leading evidence of several persons and bringing the said complaint to its logical conclusion which ultimately resulted in acquittal of the husband and his family members clearly amounted to the cruelty committed by the wife upon the husband.…”
  • So the HON HC sets aside the RCR order in favour of the wife and decrees divorce in favour of the husband on frounds of cruelty !!

HIGH COURT OF JUDICATURE AT BOMBAY
SECOND APPEAL NO. 396 OF 2013 with SECOND APPEAL NO. 397 OF 2013
Anil Yashwant Karande Versus Smt. Mangal Anil Karande
Link : wp.me/p7s7-22l


Cruelty&Divorce#17:

Divorce WITHOUT alimony 4 False 498a where all acquited. Not necesary 4 trial court call 498A false. Bom HC

Hon Bom HC grants Divorce WITHOUT alimony following a wife’s 498a where all accused are acquitted. While the lower court denies divorce stating that the 498a ended in acquittal because the prosecution did not prove the case, the Hon HC says it is NOT necessary 4 trial court to call the 498A false. Cruelty is to be decided based on conduct of parties and allegations made !!

  • The HC observes that the accused were dragged 56 times to the Trial court, and on many instances because the wife was just absent !
  • The wife alleges that she started suffering arthritis becasue of ill treatment and her father died out of shock. But these allegations are NOT substantiated. The father dies some YEARS after the incidents !!
  • The husband submits : “…..My family members and I had to seek leave from our job and had to remain present in the Court. My parents and me who are suffering from health problems like B.P., Eyesight problem, Piles (Father) also had to remain present and sit for hours together waiting for the Respondent to come or for the Honourable Judge to give the next date. All this has affected me mentally and physically. I have not been able to concentrate on my work owing to the health problems of my parents and the court case. My unmarried sister also had to come to the court, for no faults of hers. My brothers were unnecessary involved in this trauma, which they too had to undergo, without the remotest connection with this case. I state that the entire ordeal which went on for 3 years, has caused immense mental cruelty upon me…”

The Honourable court finally concludes that “…b) The Appellant and his family members were required to attend Criminal Court on 56 different dates from the year 2001 to 2004. Considering the manner in ash 25 fca-71.06 which the criminal case proceeded, the Appellant and his family members were subjected to humiliation, trauma and agony as set out in the deposition of the Appellant;
(c) The Respondent made a very serious defamatory allegation against the Appellant, both in the written statement and in her evidence, that due to ill-treatment by the Appellant, she started suffering from arthritis. The Respondent made no efforts to substantiate the said allegation. Thus, the Respondent made unfounded defamatory allegation against the Appellant;
(d) The Respondent made another serious allegation against the Appellant,both in the written statement and in her evidence, that due to harassment suffered by her from the Appellant, her father suffered shock which lead to his death. Not only that the Respondent did not substantiate the said allegation, even the cause of death of her father was not brought on record. Even this allegation is an unfounded defamatory allegation;
We have no hesitation in holding that the aforesaid conduct amounts to mental cruelty to the Appellant and by reason of such mental cruelty, he is not reasonably expected to continue cohabitation with the Respondent…”
and grants the husband divorce. The court ALSO refuses to grant ANY alimony to the wife !!

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FAMILY COURT APPEAL NO.71 OF 2006
Mr. M   Vs Mrs. M
Link : http://wp.me/p7s7-22G


Cruelty&Divorce#18 :

Filing false 498a, taking away children illegaly, interfering with their education is ALL cruelty. Divorce granted 2 hubby, Cal HC

Wife files 498a. After compromise, parties get back / live together. Still wife does NOT withdraw / quash criminal complaint ! So parties ultimately separate. However wife raises a false claim of living with husband many months after 498a (i.e.) AS IF her conduct was condoned by the husband ! Husband applies for divorce. Initially it is refused believing wife’s false statements that her cruelty was condoned by husband. On review, Cal HC appreciates the facts and orders divorce

The Honourable court says that a 498a instituted and kept alive on false allegations in itself amounts to cruelty “….the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, …”
The wife at one point tries to escape saying “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.” But the Hon HC refuses to accept that contention as she has affirmed her complaints in MANY other places

The court notices that she is blowing hot and cold in many places

The court observes that “There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) …”
The court also takes the interference with the education of children seriously “….. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.….”

so the court concludes “…he totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. ….”

Calcutta High Court
Pranab Kumar Chakraborty vs Kumkum Chakraborty on 5 July, 2005
Equivalent citations: (2006) 1 CALLT 210 HC, 2005 (4) CHN 146
Link :  http://wp.me/p7s7-24l


Cruelty&Divorce#19 :

False 498a, falsely alleging that she was forced to sleep with father in law , writing to employer to get husband dismissed etc are cruelty. Divorce granted. Need not stay long, to treat cruelly. Clear case of 498a misuse

Marriage solemnised in 1999. Fight starts immediately after marriage and wife leaves for parental house JUST 1 day after marriage. She promptly files a false dowry case saying husband and co sought 10 lakhs dowry and also alleges that her mother in law asked her to sleep with father in law. After initial compromise on the false dowry case, police make a closure report, but ablaa naari goes to court and gets the dowry case numbered !! Meanwhile husband files for divorce and wife wants restitution! Yeah, she wants restitution! Husband is granted divorce by family court. Wife goes on appeal to HC (against family court decree). In the meanwhile husband looses 498a at magistrate court and immediately wife writes to husband’s office (i.e.) AP High court to remove him from his job! Husband wins appeal on 498a case at Sessions court and wife goes on appeal before AP HC which is not yet finished!

Supreme court appreciates the entire case and decrees (a) marriage broken down as parties have been completely living apart (b) various cases filed by wife are cruelty (c) wife NEED NOT have physically lived with husband to create cruelty and grants divorce to husband …

IN THE SUPREME COURT OF INDIA
CIVIL APPEAL NO. 1794 OF 2013 (Arising out of Special Leave Petition (Civil) No. 4782 of 2007)
SRINIVAS RAO Versus D.A. DEEPA
Link : http://wp.me/p7s7-1Iw


Cruelty&Divorce#20 :

Even ONE false criminal complaint by wife constitutes matrimonial cruelty, hence Divorce allowed !!

Wife files a criminal complaint u/s 307 read with 34, 148A, 384, 324 of IPC. Husband and seven members of his family were arrested ! It is argued before the SC that this was a solitary criminal complaint and so cannot be cruelty ! However the Hon Sc concludes that Even ONE false criminal complaint by wife constitutes matrimonial cruelty, hence Divorce allowed !!

  • The marriage at Hyderabad on 11th February, 1989.
  • Male child born on 8th May, 1991, after which the Respondent-Wife, as per her pleadings, started suffering from Sheehan’s syndrome.
  • On the night of 29th/30th June, 1995, wife left the matrimonial house and ever since then she has been living with her brother, who is a senior IAS officer.
  • On 14th July, 1995, husband filed an original petition praying for divorce on the ground of cruelty as well as of the irretrievable breakdown of their marriage.
  • Wife retorted by filing a criminal complaint against the Appellant as well as seven members of his family for offences under Section 307 read with Sections 34, 148A, 384, 324 of the IPC, and Sections 4 and 6 of the Dowry Prohibition Act, 1961.
  • The Appellant-Husband and seven of his family members were arrested and incarcerated.
  • On 30th June, 2000, the Learned Vth Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, acquitted the Appellant and his family members, and this Order has attained finality.
  • The Honourable supreme court concludes that “…We unequivocally find that the Respondent-Wife had filed a false criminal complaint, and even one such complaint is sufficient to constitute matrimonial cruelty…”

SUPREME COURT OF INDIA
CIVIL APPEAL No. 1213 OF 2006
K.SRINIVAS vs K. SUNITA
Link : http://wp.me/p7s7-1Am


Cruelty&Divorce#21:

Unsubstantiated allegations of the wife tantamount to cruelty ! Bombay HC

Wife makes character assassination on the husband and repeats them in her WS before the lower court
* “….the wife had leveled allegations about relations of the husband with one lady by name Yamuna Adalkar….”
* “…even in the cross-examination, the wife has reiterated her stand about the husband having relations with the lady of the different caste. …wife had levelled allegations against the husband about the ilicit relations with Yamuna and that she has not proved those allegations….”
* “… on account of surrender of the premises at Pimpri Gaon by the wife without knowledge and consent of the husband, the husband was deprived of the said premises for no reason particularly when he wanted to retain the premises…..”
and so on

The Hon HC concludes
“…….we are inclined to observe that the unsubstantiated allegations levelled by the wife in the written statement as well as in her evidence as also evidence of her father amounted to mental cruelty as the wife has failed to prove those allegations by examining appropriate witness in support of the said allegations. In our view, the bare word of the wife or her father Haribhau, DW-2 who is treated by us as an interested witness, is not sufficient to accept that the wife has made good the allegations against the husband. The allegations are certainly serious and the husband is bound to undergo mental pain, agony and suffering. For the reasons mentioned aforesaid, we hold that the husband has been able to prove that the wife has treated the husband with cruelty…..”

Bombay High Court
Ramesh Laxman Sonawane vs Mrs Meenaxi Ramesh Sonawane
Link : wp.me/p7s7-1ml


Cruelty&Divorce#22:

498a arrest + publishing allegations + writing to superiors are cruelty. Dvrc granted. All HC

excerpts of SIMPLE ACTIONS by ablaa : “….On 27th July, 2007 itself a first information report was lodged by the wife against the husband, his parents, his sister and brother-in-law under Sections 498A, 323, 506 of I.P.C. and Section 3/4 of the Dowry Prohibition Act on which Case Crime No.601 of 2007 was registered. The respondent was arrested by the police and remained in jail for 12 days …… A news publication was published on 28th July, 2007 in the Hindi Daily Newspapers “Amar Ujala” and “Dainik Jagaran” mentioning about the arrest of the respondent on the allegation of demand of dowry. The appellant also gave an interview to the news channel “Sahara Samay” along with her parents making allegation on respondent and his entire family. The wife also wrote a letter to the Senior Superintendent of Police, Haridwar dated 12th August, 2007 informing lodging of first information report and making allegations of demand of dowry against the respondent and his family members. ….
“… complaint was also sent by the appellant to the Finance Secretary, Government of Uttrakhand informing about the F.I.R. … appellant informed her father on mobile that the respondent and family members are making plan to kill the appellant after which father of the appellant came with the police and took away the appellant from her in-laws house to their house at Allahpur. The complaint sent to the Finance Secretary was also sent to all administrative officers of Uttrakhand and Uttar Pradesh. …………………….”
The court appreciates the facts and adds “…here cannot be any denial to the fact that every person can take recourse of law if any offence is committed to him. Right to lodge a first information report or to take such legal action as permissible under the law cannot be denied. However, in facts of the present case we have to examine as to whether action taken by the wife and acts done by her within less than six months of the marriage are the action which gives reasonable apprehension in the mind of husband that it is not safe to live with wife any more. “
“…However, it was admitted to the wife also in her cross examination that she filed various complaints against the husband before the Senior Superintendent of Police, Haridwar, Finance Secretary, Uttrakhand and Director (Treasury). The wife was confronted with the said letters in her cross examination and she admitted sending of those complaints. The wife in her written statement as well as statement has continued with leveling allegations against the husband and her family members…..”

HIGH COURT OF JUDICATURE AT ALLAHABAD
Case :- FIRST APPEAL No. – 175 of 2010
Smt. Ruchita Srivastava Vs Vivek Swaroop
Link :  http://wp.me/p7s7-1k4


Cruelty&Divorce#23:

Naveen Kohli Vs Neelu Kohli – Cruelty defined, SCC of India

The Honorable SC lists the acts of the wife and concludes that their marital life has become a living hell !
1.The wife filed FIR No. 100/96 at Police Station, Kohna under Sections 379/323 IPC
2.The wife got a case registered under Sections 323/324 registered in the police station Panki, Kanpur City.
3.At the behest of the wife FIR No.156 of 1996 was also filed in the police station, Panki.
4.The wife filed FIR under Section 420/468 IPC at the Police Station, Kotwali.
5.The wife got a case registered under Section under Sections 420/467/468 and 471 IPC.
6.The wife filed a complaint against the appellant under Sections 498A/323/504/506 IPC at Police Station, Kohna.
7.The wife had even gone to the extent of opposing the bail application of the appellant in criminal case filed at the police station, Kotwali
8.When police filed final report in two criminal cases at police station, Kotwali and police station, Kohna, the wife filed protest petition in these cases.
9.The wife filed complaint no.125 of 1998 in the Women Cell, Delhi in September 1997 against the appellant’s lawyer and friend alleging criminal intimidation, which turned out to be false
10.The wife filed a complaint under sections 397/398 before the Company Law Board, New Delhi, calling the husband a liar, cheat, womaniser etc
11.The wife filed a complaint in Case No.1365 0f 1988 against the husband
12.Again on 8.7.1999, the wife filed a complaint in the Parliament Street Police Station, New Delhi and made all efforts to get the husband arrested.
13.On 31.3.1999, the wife have sent a notice for breaking the Nucleus of the HUF.
14.The wife filed a complaint against the husband under Section 24 of the Hindu Marriage Act.
15.The wife had withdrawn Rs.9,50,000/- from the bank account of the husband in a clandestine manner.
16.On 22.1.01 the wife gave affidavit before the High Court and got non-bailable warrants issued against the husband
17.The wife got an advertisement issued in a national newspaper that the husband was only her employee. She got another news item issued cautioning the business associates to avoid dealing with the appellant.

the Honorable court observes “…Even at this stage, the wife does not want divorce by mutual consent. From the analysis and evaluation of the entire evidence, it is clear that the wife has resolved to live in agony only to make life a miserable hell for the husband as well. This type of adamant and callous attitude, in the context of the facts of this case, leaves no manner of doubt in our mind that the wife is bent upon treating the appellant with mental cruelty. It is abundantly clear that the marriage between the parties had broken down irretrievably and there is no chance of their coming together, or living together again…”

In a strongly worded statement the court concludes “…In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is 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 potentially more prejudicial to the public interest than a dissolution of the marriage bond…..”

Supreme Court of India
Naveen Kohli vs Neelu Kohli
Link : https://t.co/YenUftF724


Cruelty&Divorce#24:

Criminal case BEFORE marriage, criminal case AFTER marriage! Man & parents arrested. Divorce by Bom HC

Live-in woman uses Dowry case b4 marriage, to rope in man, forcing him to marry her. She then promptly Files a IPC 498a (cruelty to wife case) after marriage again! Husband and parents are arrested !! She goes on appeal against husband’s divorce. Bom HC grants divorce to hubby.

In this case a woman in a live in relationship files two criminal cases on a man (one under DP act stating that he demanded dowry and a second under sec 323, 504 and 506 of Indian Penal Code. She threatens the man to marry her, failing which she will prosecute him. The poor guy agrees to marry the woman and she also compromises and closes those cases !!

After becoming his wife, she again files 498A etc and has him and his parents arrested !! The man is acquitted in these 498A cases by the trial court and in two appeals one at sessions and one at the High court itself

The man files for Divorce and is granted divorce by the civil judge, but due to appeals the case finally lands at the Hon Bombay HC. The HC appreciates the fact that the woman has filed false cases and treated the man with cruelty. The Hon HC grants divorce to the man even though the trial court has NOT specifically mentioned that 498A filed by the woman is false

Inter alia, the Hon HC notices that “…33. A perusal of the orders passed in the criminal proceedings clearly indicates that the appellant and his family members were arrested in view of the complaint filed by the respondent under section498-A read with 34 of IPC and were subsequently released on board. It further indicates that the appellant and his family members were not acquitted based of any benefit of doubt given to them but were acquitted on the ground that the complaints filed by the respondent was totally vague and the allegations therein were not proved. …’
and in the matter of the civil (divorce) case filed by the husband, the Hon HC states
“… A perusal of the order passed by the lower appellant Court however, indicates that the lower appellate Court has taken a very casual approach by totally ignoring the effect of the order of acquittal passed by the Criminal Court….”
Appreciating the entire factual matrix, the Hon orders Divorce on grounds of cruelty !

HIGH COURT OF JUDICATURE AT BOMBAY
SECOND APPEAL NO. 634 OF 2013
Shri Mangesh Balkrushna Bhoir Versus…. Sau. Leena Mangesh Bhoir
Link : wp.me/p7s7-22V


Cruelty&Divorce#25:

Wife alleges Husband had illicit relations with own sister, abuse him at office, deserts him, stops him seeing own son. Decreed wife cruel. divorce granted

  • Marriage in on 17.06.1990
  • Couple live together for three months and wife goes back to parental home on 12.09.1990
  • Then she returns back, stays for less than a year and finally leaves husband “….Rita again returned to her father’s house at Chinsurah on 26.05.1993 and at that time she was pregnant. Rita gave birth to a male child on 31.12.1993. Admittedly, Rita thereafter never returned to her matrimonial home. In the month of march, 1994 ….”
  • Husband files Matrimonial suit in 1994 alleging cruelty.
  • Wife alleges Husband had illicit relations with many women, had illicit relations with own sister, goes to his office and abuses him at his office, deserts him, stops him seeing own son in spite of court order.
  • Court appreciates depositions and evidence and decrees that wife treated husband cruelly. Divorce granted accordingly by HC.
  • So, Husband wins at Calcutta HC on 15th June, 2015, i.e. It takes approx 21 years after desertion and its just at High court !

IN THE HIGH COURT AT CALCUTTA
F.A. No. 312 of 2007
Rita Bandopadhyay -vs- Abhik Bandopadhyay
Link : wp.me/p7s7-1HL


Cruelty&Divorce#26:

Wife ALLEGES husband had ILLICIT relations with his OWN MOTHER; starves husband, insults and makes character assassination of father in law; husband granted divorce on grounds of cruelty ! MADRAS HC

This is a case where cruelty is well analyzed, should be of use to husbands fighting cases on the basis of cruelty by wife.
* wife insults husband often, seeks separate house, leaves husband hungry and stranded
* On one occasion to force the husband to get a car she is alleged to have threatened to kill the child by throwing the child from the terrace
* wife makes a written complaint with such henious allegations of illicit relationships but tries to turn turtle at HC and deny her own wrongdoing
* wife is cross examined and truth comes out
* divorce granted on the grounds of cruelty
* wife granted permanent alimony probably because she has a daughter and the amount is quite small considering that the husband is supposed to be in an important post with Airport Authority of India

IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.M.A.No.2148 of 2008 and M.P.No.1 of 2008
P.Nirmala Vs. K.Muruguselvam
Link : http://wp.me/p7s7-1rb


Cruelty&Divorce#27:

FALSE Allegations of Illicit Relations with “bhabhi” (sister in law), ill treatment at office in front of colleagues etc are cruelty; Husband granted Divorce on grounds of cruelty ; Himachal HC

“….21. The evidence on record leaves no doubt in my mind that the appellant has been subjected to constant mental cruelty by the respondent more especially her allegations of sexual misbehaviour and mis-conduct against the appellant accusing him of having illicit sexual relations with his sister-in-law (Bhabhi), for consideration, who is treating him like a younger brother. The evidence, clearly points out to the fact that the respondent has treated the appellant with cruelty within the meaning of the Act. In terms of the pronouncement of the Hon’ble Supreme Court in Samar Ghosh’s case, I am satisfied that not only has the marriage broken down irretrievably because of the acts on the part of the respondent, and it is not possible for the appellant to live in an atmosphere which is vitiated and surcharged by allegations of adultery etc. Indian Society is sensitive to the relationships of brother and sister and mother and son which are not only respected but venerated. There has been no cohabitation between the parties since 1982.

Himachal Pradesh High Court
Ramesh Kumar Sharma vs Smt. Akash Sharma on 1 January, 2008
Equivalent citations: AIR 2008 HP 78, 2008 (1) ShimLC 399
Link : t.co/58Huz9hn6Z


Cruelty&Divorce#28:

Refusal to Cohabit, unilateral decision of not having children after marriage, humiliating husband, practically throwing him out of his apartment, cooking only for herself, not attending to husband during & after his heart by pass surgery, ill treating and throwing out house servant, and all similar acts are matrimonial cruelty ! Landmark case of Samar Ghosh Vs Jaya Ghosh !!

Honourable Supreme court summarises matrimonial cruelty in a set of paragraphs which have almost become the guiding principles on the matter ever since. These key paragraphs are repeated here

“….No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/
(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 very 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 sterilization 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……”

Supreme Court of India
Samar Ghosh vs Jaya Ghosh
CASE NO.: Appeal (civil) 151 of 2004
Link :  wp.me/p7s7-1sj


Cruelty&Divorce#29:

Wife files 3 criminal cases against husband during pendancy of husband’s divorce case. 10 people are accused in that 498a including siblings, sisters husband, uncles wife etc. all are acquitted. Madras HC appreciates the fact of the cacse grants husband divorce on grounds of cruelty !!

  • Wife files false 498a etc on husband and 9 of his relatives
  • Wife also files missing person case on husband when he had to leave her because of her cruelty and terror
  • Wife aborts kid and blames husband
  • Though husband looses case at lower court, Madras HC appreciates the fact and grants him divorce

Madras High Court
R. Anand vs P. Indu on 26 November, 2007

Link : http://wp.me/p7s7-hs


Cruelty&Divorce#30:

Cruelty & desertion by wife, irretrivable break down, husband’s dvrc affirmed – Supreme court

Cornerstone case discussing (a) cruelty by wife (b) desertion (c) many years elapsing between separation and case, so marriage irretreivably broken AND the husband having re married some years BEFORE the case reaching the Supreme Court… so Husband’s divorce decree as granted by the Trial court, as affirmed by the Hon High court also affirmed by the Hon Supreme Court of India

Supreme Court of India
CASE NO.: Appeal (civil) 3930 of 2002
PARVEEN MEHTA Vs. INDERJIT MEHTA
Link : http://wp.me/p7s7-6a


Cruelty&Divorce#31:

False case of 406 that is not pursued, false allegations of illicit relations with other women, venereal disease etc which are NOT proven are matrimonial cruelty. Wife files 498a, 406 knowing that the husband is a govt servant and has to run for bail. Divorce granted to Husband. Maintenance to son ONLY if son comes and stays with father at least once a week. CAL HC GEM !!

In this important case, the Hon HC orders “….in a matrimonial suit, even if the plaintiff is unable to prove the allegations of cruelty pleaded in the plaint, a Court is entitled to grant a decree for divorce if it appears that the defendant in the written statement has made unfounded allegations of bad moral character of the plaintiff which are proved to be baseless and for that reason, the plaint is not required to be amended incorporating an assertion that those allegations are baseless.….”

“…In her written statement, she alleged adultery against her husband and pressed the same in evidence. Such fact has been denied by the husband. She in her written statement alleged that the husband was suffering from venereal diseases and that she would apply for examination of the husband by a doctor. The husband in her examination-in-chief denied such fact and thereafter, the wife did not utter anything about such allegation in her examination-in-chief and also did not pray for medical examination of the husband….”

“…From the aforesaid facts it is clear that the wife in spite of making serious allegations against the husband involving moral character did not even try to prove such fact by bringing the witnesses who could throw light on the veracity of the allegations. We are quite alive to the position of law that mere inability on the part of the defendant to prove the allegations contained in the written statement does not authorise the matrimonial court to pass a decree for divorce on the ground that those allegations were baseless; but if the defendant, in spite of availability of the competent witnesses to lend support to the allegations, decides not to examine them without just cause, the Court is entitled to presume that those allegations were baseless by drawing adverse presumption for not producing the best evidence available to her….”

link http://wp.me/p7s7-282


Cruelty&Divorce#32:

False 406, false alegations of illicit relation, veneral disease all cruelty. Husband win’s Dvrc. NO maintenance 2 wife !

False case of 406 that is not pursued, false allegations of illicit relations with other women, false allegations of venereal disease etc which are NOT proven are matrimonial cruelty. Wife files 498a, 406 knowing that the husband is a govt servant and has to run for bail. Divorce granted to Husband. Maintenance to son, ONLY if son comes and stays with father at least once a week. CAL HC GEM !!

In this important case, the Hon HC orders “….in a matrimonial suit, even if the plaintiff is unable to prove the allegations of cruelty pleaded in the plaint, a Court is entitled to grant a decree for divorce if it appears that the defendant in the written statement has made unfounded allegations of bad moral character of the plaintiff which are proved to be baseless and for that reason, the plaint is not required to be amended incorporating an assertion that those allegations are baseless.….”

“…In her written statement, she alleged adultery against her husband and pressed the same in evidence. Such fact has been denied by the husband. She in her written statement alleged that the husband was suffering from venereal diseases and that she would apply for examination of the husband by a doctor. The husband in her examination-in-chief denied such fact and thereafter, the wife did not utter anything about such allegation in her examination-in-chief and also did not pray for medical examination of the husband….”

“…From the aforesaid facts it is clear that the wife in spite of making serious allegations against the husband involving moral character did not even try to prove such fact by bringing the witnesses who could throw light on the veracity of the allegations. We are quite alive to the position of law that mere inability on the part of the defendant to prove the allegations contained in the written statement does not authorise the matrimonial court to pass a decree for divorce on the ground that those allegations were baseless; but if the defendant, in spite of availability of the competent witnesses to lend support to the allegations, decides not to examine them without just cause, the Court is entitled to presume that those allegations were baseless by drawing adverse presumption for not producing the best evidence available to her….”

IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
F. A. No. 191 of 2005
Sri Debabrata Chakraborty Versus Smt. Rina Chakraborty

Link : http://wp.me/p7s7-282


Cruelty&Divorce#33:

Deserting wife claimng dowry, ill-treatment, torture and fear of acid attack, Completely looses case !! Bombay HC

A woman who claims husband ill treated her, that her husband sough Dowry, and she was afraid he will throw acid on her face, looses her case completely !!

While the husband has been willing to take the husband back, the father of the daughter refuses to send her back !! Husband wins Trial court divorce and goes on to re marry and litigating wife looses case as well

This Judgment affirms that (a) alternate relief of Divorce can be claimed in a petition claiming restitution (Divorce if wife does NOT return) (b)Filing of RCR petition by husband does NOT mean condonation of wife’s cruel acts. The offer made by one party (in this case the husband) and the reciprocal conduct of the other party (wofe) will have to be viewed together while determining codonation in terms of Section 23(1)(b) of the said Act (c) Decree NOT invalidated because Trial court did NOT frame issues on restitution and (d) False and un substantiated claims of dowry are cruelty.

A classic Bombay HC Judgment where honourable court appreciates the various facts on hand and grants divorce in favour of the husband ! Husband wins divorce on grounds of cruelty.

This case could help husbands who try the restitution route and then follow it up with a divorce in case wife does NOT return to matrimonial home

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.308 OF 1998
Smt. Uttara Praveen Thool, VERSUS Praveen S/o Bhanudas Thool,
Link : http://wp.me/p7s7-28H


Cruelty&Divorce#34 :

Highly educated scholarship winning wife aborts all three kids, refuses to live with hubby & calls her in-laws ghosts ! Husband gets divorce & quietly re-marries when appeal pending !! Supreme court gem !!

This wife, a highly educated woman, has three abortions one after another and wishes to pursue her career. Husband accuses her of abortions without his consent, desertion & matrimonial cruelty. This lady has won scholarship etc., and has been employed both at India & USA. The Hon courts notice from her diary entries and letters that she calls her in laws ghosts and says that she has NOT believe in Indian social values !! The courts also notice that she has deserted the husband. Appreciating the overall matrix the courts (Hon HC and Hon SC) grant the husband divorce !

“….37. The High Court also took a serious note of an entry in the personal diary of the appellant-wife dated September 14, 1986 wherein she stated; “I said, “we started this journey as two individuals and if you can do so fine otherwise forget and don’t bring the ghost of parents in between the two of us. …..”. 38. From the above letter, it is clear that the appellant-wife had described the parents of the husband as `ghost’.

39. In the letter dated June 21, 1988, she stated; “I really wish you would understand my urge in pursuing my freedom away from the hawk eyes of your mother, sister and all other relatives. But, as I am not ready to share the economic gains of this job with you and other family members. I don’t expect either you or them to understand my need and commitment for this job, or any job. I am bound to cause friction with so many people around me- I was at war with just you around me in Bombay.”

40. In another letter, she stated that the respondent-husband should not make a condition for the wife of living together. She stated; “I am not a good person to waste all your potential, emotion on. I do not deserve it. … … … … Please do not make living together a condition for the coming few months. …..”

The court also notices that “….41. She further said that the respondent- husband should not bring her marital status preventing her from pursuing her career in the name of marriage.

IN THE SUPREME COURT OF INDIA
CIVIL APPEAL NO.6582 OF 2008 ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 10907 OF 2007
SUMAN KAPUR VS SUDHIR KAPUR
Link : http://wp.me/p7s7-29c


Cruelty&Divorce#35 :

False allegations claiming husband had illicit relation with girls is cruelty. Even false allegations in written statement (post filing initial suit) are cruelty !! Husband wins Divorce. NO Jewel returned 2 wife ! CAL HC says go file separate case for that !!

In this case, the CAL HC decrees that a woman making false and unfounded allegations about husband’s illicit relations is cruelty. The court goes on to say that even if such allegations were made AFTER the institution of the suit, they tantamount to cruelty !! quoting a large number of cornerstone cases, the Husband is granted divorce !

The Hon court observes : “….. wife alleged that the petitioner used to coach a girl at Konnagore and fell in love with her. It was also alleged that the petitioner had illicit connection with the said girl. She did not stop these. Even in her deposition she has stated that the petitioner used to mix with another girl and that when she protested, there was a quarrel with him over this. So in her deposition she also persisted that her husband had illicit connection with another girl. But, barring evidence of her own, she could not adduce any evidence to prove the above mentioned allegation. This allegation, needless to say, has been denied by the petitioner-husband. … She has, as indicated above, spoken of such allegation. But her witnesses have not said anything in this regard. Her own brother Chandidas Banerjee (witness No. 3) has not said anything in this regard. Evidence of witness No. 2 Nepal Chandra Mukherjee in this regard is extremely vague. … Before institution of the instant suit, the respondent-wife made an application under Section 125 of the Code of Criminal Procedure claiming maintenance against her husband. In this application she did not allege that her husband had love affairs or illicit contection with any girl. …. So in the facts and circumstances of the case and on consideration of the evidence on record we hold that such allegation of the respondent-wife is false and without any foundation. It is now well settled that such false allegation against the character of any spouse made by the other spouse constitutes mental cruelty and that such mental cruelty will be valid ground for passing a decree of divorce under the provision of Section 13(1)(ia) of the Hindu Marriage Act…..”

while the court is ready to order some permanent alimony to the wife (who also maintains her son), the court refuses to order her any Jewels etc

Calcutta High Court
Amarendranath Sanyal vs Krishna Sanyal on 1 June, 1992
Equivalent citations: (1993) 1 CALLT 301 HC, I (1993) DMC 565
Link : http://wp.me/p7s7-29y


Cruelty&Divorce#36:

YET another husband escapes !!! False allegations, assaults, false police complaints, constant harassment cruelty. Dvrc decreed. Madras HC

A businessman who lived a 30 year happy married life, looses his wife due to a heart attack. After his first wife’s death, he goes and marries a two time divorcee woman who turns violent and wallops him and his son (from first marriage) even in the middle of the night !! This new wife goes on to file police complaints and is after all the fixed deposits and assets of the business man !!

Family court refuses this poor chap’s divorce petition while HC appreciates the facts, notices that the woman has been violent even in earlier marriages, appreciates that there is ample evidence of her greed, cruelty, also appreciates that the woman has made baseless character allegations against her husband and grants him divorce !!

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20/11/2006
C.M.A. (NPD-B) No.1558 of 2000 and C.M.P. No.21256 of 2004
A. Viswanathan Versus G. Lakshmi @ Seetha
Link : http://wp.me/p7s7-2aD


Desertion&Divorce#37:

Wife alleges dowry, adultery & beating. Still FC & HC grant divorce due 2 desertion by wife! …in the MEANWHILE husband has re married and has ONLY THREE KIDS from next wife !! Madras HC classic !!

In this classic case, considering the long separation and disappearance of emotional bonds, both the Family court and HC grant Divorce to the husband (FC smartly claims wife’s desertion is the grounds) . Wife appeals to the HC and claims she was beaten, she was thrown out of the house etc. She points out that the husband has re-married and has children from the second wife!! Still HC does NOT reverse the divorce that is granted !! smart husband does NOT even appear for the appeal !!

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.08.2015
C.M.A.No.1679 of 2015
Nallagatla Sukanya @ Chinnamma … Appellant
Vs.
1. Nallagatla Nagesh,
2. Guntupalli Balaih
Link : http://wp.me/p7s7-2aQ


Cruelty&Divorce#38:

How a Child Prodigy a great musical talent, Late Mandolin U Shrinivas lost his entire youth fighting matrimonial cases JUST because of ONE big mistake in his life …that he got married in spite of being a male !!

“….Within few weeks of marriage, the Appellant /Wife started finding fault with his life style, his daily routine, his likes and dislikes and constantly picked up quarrels on some pretext or other and throw tantrum when she did not had her way….”
“….His daily routine began in learning music lessons from his father and the Appellant/ Wife by interrupting them by hurling, abuses and screaming and shouting followed invariably by arguments and quarrels between the Appellant/Wife and the Respondent/Husband. The rehearsals would end abruptly…”.
“….Occasionally, he would like the Appellant/Wife jointly in paying respects to the senior members of his profession, who either visit him or whom he visit or meet in public. The seeking of blessings from such elders was customary in music circles. But, the Appellant/ Wife started hurling abuses at him on such occasions and walked away from the scene much to his acute embarrassment…”.
“….The Appellant/Wife behaved in a hard headed, arrogant, merciless, thoughtless and unbalanced manner, devoid of affection or any sense of respect or duty and subjecting the Respondent/Husband to a lot of embarrassment in private as well as in public and gave a beating to his reputation and image all of which constituted mental cruelty. He was conservative by nature and was an introvert who prefers to spend his leisure time quietly in the company of the Appellant/Wife and the child…”
“….The Appellant/Wife called her parents to go over frequently to Madras and threatened him with proceedings under Indian Penal Code. The Appellant’s father was an I.A.S. Officer in Vigilance Department in Government of Andhra Pradesh. At the instigation of Appellant/Wife, her father started threatening him that he would use the official machinery at his disposal to initiate several criminal proceedings against him for an alleged offence under the Indian Penal Code and Dowry Prohibition Act, if he had not towed the line of his wife….”

IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.M.A.Nos.1656 and 1657 of 2010 and M.P.Nos.1 and 1 of 2010
U.Sree Vs U Srinivas
Link : http://wp.me/p7s7-2bA


Cruelty&Divorce#39:

baseless allegation of adultery is an act of cruelty. 60 year old Husband appears party in person and wins divorce against wife. Madras HC!!

Wife deserts husband and goes away to brother’s house. She gives all pension and gratuity / superannuation benefits to siblings and not to husband. Attempts by husband to bring her back are not successful. Wife also makes serious allegations of adultery in written statements / counter. She claims husband having illicit relations with a servant maid. Approx 60 year old husband appears party in person and argues at HC

HC appreciates the facts and decrees that baseless and un substantiated allegation of adultery is an act of cruelty. Husband wins divorce.

The HC orders and we quote “….20. A conscious and deliberate statement levelled with pungency and that too placed on record, through the counter statement, cannot so lightly be ignored or brushed aside, to be of no consequence. The allegations levelled against the appellant, in the cases on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the wife had been persistently indulging in them, unrelated and unmindful of its impact….” … “…. In our considered view, the respondent’s baseless allegation of adultery is an act of cruelty….”….”

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.07.2011
Civil Miscellaneous Appeal Nos.3602 and 3603 of 2010 and M.P.No.1 of 2010
I.Subramanian Vs C.Kuppammal
Link : http://wp.me/p7s7-2c6

Filing false 498a, taking away children illegaly, interfering with their education is ALL cruelty. Divorce granted 2 hubby, Cal HC

Filing false 498a, taking away children illegally, interfering with their education is ALL cruelty. EVEN if wife’s stmt not cross examined, it need NOT be accepted in total! Divorce granted 2 husband on grounds of cruelty

Wife files 498a. After compromise, parties get back / live together. Still wife does NOT withdraw / quash criminal complaint ! So parties ultimately separate. However wife raises a false claim of living with husband many months after 498a (i.e.) AS IF her conduct was condoned by the husband ! Husband applies for divorce. Initially it is refused believing wife’s false statements that her cruelty was condoned by husband. On review, Cal HC appreciates the facts and orders divorce 

The Honourable court says that a 498a instituted and kept alive on false allegations in itself amounts to cruelty “….the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband….”

The wife at one point tries to escape sayin “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.” But the Hon HC refuses to accept that contention as she has affirmed her complaints in MANY other places

The court notices that she is blowing hot and cold in many places

The court observes that “There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) …”

The court also takes the interference with the education of children seriously “….. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.….”

so the court concludes “…he totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. ….”

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

Calcutta High Court
Pranab Kumar Chakraborty vs Kumkum Chakraborty on 5 July, 2005
Equivalent citations: (2006) 1 CALLT 210 HC, 2005 (4) CHN 146
Bench: D K Seth, J Banerjee

JUDGMENT

1. The appellant has filed this application for review of the judgment and decree dated 25* of April, 2003 in FA No. 12 of 2001. Mr. Dasgupta in support of the review application had contended that the Court had overlooked the materials apparent on the face of the record to the extent that the wife had made false and wild disparaging allegations against the spouse, which amounts to cruelty. In support, he relied on Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003(6) SCC 334. He then points out that the learned Court in the judgment had disbelieved the evidence of the appellant/ husband and believed that of the wife on the ground that there was no cross-examination on certain points. Mr. Dasgupta contended that absence of cross-examination does not mean that the evidence was unchallenged. To support this contention, he relied on the decisions in Juwarsingh s/o Bheraji and Ors. v. State of Madhya Pradesh, 1980 (Supp) SCC 417 and P. Ram Reddy and Ors. v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Ors., . Thus the finding arrived at suffers from errors apparent on the face of the record. He next contended with regard to the question of cohabitation, particularly, at page 7 of the judgment under review and drew our attention that the evidence itself was unreliable and as such the absence of cross-examination would not matter. Inasmuch as Mr. Dasgupta pointed out that the wife admitted of not living in the same room and cohabitation was alleged four months after the filing of the suit. It is the probability of the evidence and the credibility of the witness, which are to be considered not the absence of cross-examination. Even in the absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. On the question of review, Mr. Dasgupta relied on the decisions in Green View Tea & Industries v. Collector, Golaghat, Assam and Anr., 2004(4) SCC 112 (para-14); Srinivasiah v. Balaji Krishna Hardware Stores, ; Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors., AIR 1954 SC 526 and Benoy Krishna Rohatgi and Ors. v. Surajbali Misra and Anr., , in order to support his contention that this is a case fit for review. Mr. Dasgupta drew our attention to the various materials on record to substantiate his contention. Virtually he had reargued the whole appeal.

2. Mr. Haradhan Banerjee, learned Counsel for the respondent/opposite party, on the other hand, took a preliminary objection that the review does not lie if the decision is erroneous. According to him, when two views are possible, acceptance of one view cannot be a ground for review. The judgment proceeds on the basis of the question of belief and disbelief, which can never form the subject-matter of review. On the question of cohabitation, he drew our attention to pages 8 to 10 of the judgment under review. Mr. Banerjee then contends that the filing of the case under Section 498A of the Indian Penal Code (IPC) would not amount to cruelty since the cruelty stands condoned unless the allegations are renewed or repeated. Mr. Banerjee, however, distinguishes the decision in Moran Mar Basselios Catholicos (supra) on the ground that in the said decision, the question was not attended; whereas in the present case the question was adverted to. He drew our attention to page 17 of the said judgment. He further points out that the cohabitation had revived the matrimonial relation and amounts to condonation. He relied on Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary, , to enunciate the ground when the matrimonial offence can be revived. Relying on this decision, he contended that in this case there was no material to show that the matrimonial offence was revived to attract the principles of cruelty on account of pendency or survival of the proceedings under Section 498A IPC. He also relied, for the same proposition, on the decision in Parison Devi and Ors. v. Sumitri Devi and Ors., . He then contended that there is nothing to indicate that what documentary evidence was not considered. On this ground Mr. Banerjee submits that the review application should be dismissed.

3. We have occasion to hear the matter for days together. Both the learned Counsel continued to elaborate their submissions from various angles. The matter was hotly contested. Both the learned Counsel had referred to the pleadings and the evidence as well as exhibits in relation to the merit of the case. In the process of the elaborate argument, both the learned Counsel had argued the whole appeal in order to substantiate the case for review. Both the learned Counsel suggested that they may be permitted to argue on both the counts and the Court may pass a composite order, namely an order disposing of the review application and in case the review is allowed to dispose of the appeal upon re-hearing in the same process. Accordingly, both the Counsel had addressed the Court. Having regard to the submissions made by the learned Counsel as above, we agreed to the suggestion and heard the application for review and the appeal simultaneously. In these circumstances, by consent of parties, we propose to dispose of the review application along with the appeal.

4. In Green View Tea & Industries (supra), the Apex Court had held that it is permissible to review a judgment if there are mistakes apparent on the face of the record, quoting from the decision in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, at page 630 (para-36) that “It is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were based on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. An act of Court should prejudice none. ‘Of all these things respecting which learned men dispute’, said Cicero, ‘there is none more important than clearly to understand that we are born for justice and that right is founded not in opinion but in nature’. This very idea was echoed by James Madison (The Federalist, No. 51. p. 352). He said : ‘Justice is the end of Government. It is the end of the civil society, It ever has been and ever will be pursued, until it be obtained or until liberty be lost in the pursuit.’ In Srinivasiah (supra), it was held that an assumption that appears to be incorrect on the basis of the materials would be a sufficient ground for entertaining review.

5. The principle of review is settled proposition of law. It does not require elicitation of any principle or decision. Now, therefore, we may examine the ground agitated by Mr. Dasgupta. On the face of the record, it appears that the wife had initiated a proceeding under Section 498A read with Section 342 of the Indian Penal Code (IPC) being Complaint Case No. 1628 C/1991 (Ext. 10 – II) before the learned Chief Judicial Magistrate, Howrah. The husband filed a criminal revision case being Criminal Revision Case No. 403 of 1992 before this High Court for quashing the said proceeding under Section 498A IPC. At the intervention of the lawyers of the parties, the wife was brought back on the assurance that she would withdraw the criminal case under Section 498A IPC. It is not in dispute that the said proceeding under Section 498A IPC has not been withdrawn by the wife and has since been kept pending, though, however, the wife did not take any further steps in the said proceedings. This fact admittedly is on record and was not considered by this Court in the judgment and order under review. This ground would be sufficient to review the order if it is held that the failure of withdrawal of this complaint under Section 498A IPC would amount to cruelty.

6. Since the wife did not take any further steps, it seems and may be presumed that the allegations made against her husband were false. The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate (supra). The allegation under Section 498A IPC against a spouse is disgusting accusation. In the said decision, it was held that subsequent deletion or amendment of the pleadings would not absolve from treating the wife by the husband with cruelty by making earlier injurious reproaches and statements. The impact whereof continued to remain on record, as in the present case where the allegations are still on record and have not been withdrawn, though not proceeded with. This making of false allegation in itself is a cruelty and then the cruelty is further fueled by reason of keeping the allegations under Section 498A IPC alive and surviving despite having agreed to withdraw the same, by reason of non-withdrawal thereof till date.

7. Admittedly, the judgment under review had proceeded to believe the evidence of the wife on account of absence of cross-examination on the question of cohabitation. Absence of cross-examination does not mean that the evidence is unchallenged. In Juwarsingh (supra), the Apex Court had held that the cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to proved facts, their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable. Courts are not bound to accept the testimony merely because there was no cross-examination. Similar view was taken in P. Ram Reddy (supra) where it was held that the Court is not bound to accept the statement of a witness simply because there was no cross-examination of that witness. The truth of the evidence is to be tested on the basis of the probabilities and reliability. In the present case, there is evidence to show that the husband and wife were not residing in the same room since before institution of the suit. The allegation of cohabitation bears a date four months after the institution of the suit. This seems to be against all probabilities where the husband and wife are locked in the legal battle for the custody of the children and have been residing separately since before institution of the suit. This seems to be against all probabilities, which appears to have been overlooked. Our attention was drawn to the various contradictions and inconsistencies in the deposition of the wife affecting the credibility of the witness and reliability of the evidence given by her.

8. Even if we may not give credence to the question of cohabitation, but the very fact that the complaint under Section 498A IPC lodged by the wife has still being kept alive and surviving containing certain allegations which have not been proved, in itself is a sufficient ground to hold that there was cruelty at the time of institution of the suit and on account of its continuance till the decree and the decision under review and even today, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband. This is a ground sufficient to allow the review application.

9. It is true, as contended by Mr. Banerjee that an erroneous decision cannot be reviewed; when two views are possible, acceptance of one view cannot be revised; question of belief and disbelief cannot be intervened in a review. In this case the decision may be erroneous. But this erroneous decision was based on an error apparent on the face of the record in considering the existence of the question of cruelty on account of survival of the complaint under Section 498A IPC. The question of condonation of cruelty as contended by Mr. Banerjee does not find any support from the materials on record that the husband had ever condoned the cruelty. As soon the suit is filed on the ground of cruelty, there is no question of condonation of cruelty. The very pendency and survival of the complaint case under Section 498A IPC till the decision under review itself is a cruelty surviving which need no revival by fresh complaint or otherwise. Despite being agreed but the same having not been withdrawn, the wife’s failure to withdraw the same itself revives the cruelty continuous until withdrawn. It is admitted that this complaint has not been withdrawn till today. Therefore, the principle of condonation of cruelty as was sought to be urged by Mr. Banerjee does not find any support from the materials on record. Therefore, the decision laid down in Krishna Sarbadhikary (supra) cited by Mr. Banerjee has no manner of application in the present case.  http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

http://fromvinayak.blogspot.com

  1. Thus, we find that the omission to consider the impact of the survival of the proceedings under Section 498A IPC supporting the ground of cruelty had escaped our notice and that on the question of cohabitation, there were certain cross-examinations and that the evidence of the wife could not be sustained on its own strength and that the husband had repudiated in his evidence and the suggestions of the alleged cohabitation. These are definitely errors or mistakes apparent on the face of the record and are sufficient grounds to review the judgment.11. The facts apparent from record, viz. that the marriage has irretrievably broken and cannot be bridged between the parties and that the parties did not and cannot live together and that there is existence of cruelty on account of survival and/or pendency of the case under Section 498A IPC, having escaped our notice, are sufficient for allowing this application for review.

    Order:

    12. Accordingly, the application for review succeeds and is allowed, the judgment and decree passed by this Court, sought to be reviewed in this review application, is hereby set aside. The application for review is, thus, allowed. The appeal is restored to its original file and number and be re-heard.

    FA No. 12 of 2001

    13. By consent of parties, we have re-heard the appeal simultaneously with the hearing of the application of review of the judgment and decree. Both the learned Counsel argued the case elaborately and in detail and took us through the materials on record. After having re-heard the appeal by treating the same, by consent of parties as on the list for hearing of the appeal, now we propose to decide the appeal in the manner following.

    14. Exhibit 10 is the complaint lodged by the wife against the husband before the Court of the learned Chief Judicial Magistrate, Howrah being Complaint Case No. 1628 C/1991. In the said complaint, the wife as complainant alleged that the husband/accused:

    started to neglect your complainant and also started torturing both physically and mentally during her stay at the house of the accused.

    3. That the accused used to take wine regularly and almost everyday being intoxicated the accused tortured the complainant both physically and mentally and became a regular incident. The accused even has illegal relation with other ladies and used to meet other ladies frequently and without any hesitation.

    4. That the brothers of the accused person are also of the same nature of the accused and also torture your complainant both physically and mentally and with the connivance of the accused the brothers of the accused tried to outrage the modesty of the complainant by force and if your complainant told anything about such behaviour of the brothers of the accused the accused used to reply to bear the matter.

    5. That in spite of such torture both physical and mental your petitioner stayed with the accused and two children namely 1. Kumari Bidisha Chakrahorty, 2. Sri Humpi Chakraborty born out of (in) the said wedlock.

    6. That your complainant tried her level best to stay at the house of the accused but such tortyre became higher and higher and the accused and his brothers almost regularly tortured your complainant both physically and mentally.

    7. The accused also refused and neglected to give the daily means and clothing to your complainant intentionally and willfully and the two children also never receive any love and affection from the accused person on the other hand the accused used to behave very rough and even merciless to the said two children.

    8. That in spite of such behaviour and torture of the accused and his other brothers, your complainant accommodated at the said house but when the torture of the accused and his brothers became intolerable by human being and also for the fear of life of your complainant and also for the safety, security and also for future of her two children your petitioner was compelled to leave the house of the accused person along with her two children on 4.10.91 and since then your complainant is residing at the house of her sister.

    9. That from the date when your complainant left the house of the accused neither came to see your complainant and her two children nor took any information till date.

    10. That suddenly on 4.12.91 the accused along with some persons who identified themselves as police persons came to the house of your complainant and have taken away the said two children of your complainant in a very rough and inhuman manner and your complainant informed the matter before Bally P.S. vide G.D. Entry No. 3 70 dl. 4.12.91.

    11. That thus the accused has committed offence under Section 498A and under Section 342 IPC” [PB-II, pp. 14-16]

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15. This allegation was supported by the wife in her examination-in-chief (PB-I, p. 135) namely “It is correct to say that in December, 1991,1 filed a case against my husband under Section 498A of IPC as my husband used to assault me very often.” In her cross-examination (PB-I, p. 138), she said “I admit herein that all statements made in my application under Section 498A IPC and also in my application for recovery of my children in Criminal Courts are all correct and true.” She further said in her cross-examination (PB-I, p. 139) that “I filed a case under Section 498A IPC against my husband for which any husband submitted an application in the High Court for quashing the said proceeding under Section 498A of IPC and that proceeding is still pending in the Hon’ble High Court. It is correct to say that there is in fact no petition of compromise of 498A IPC in between myself and my husband.” At page 141 (PB-I) in her cross-examination she stated, “Fact that I filed a criminal case under Section 498A IPC against my husband. My lawyer drafted the petition and designed it according to his estimation under Section 498A IPC. I shall not examine that lawyer. Of late I have come to know that my case under Section 498A IPC against my husband is now alive.”

16. It appears that these disparaging and disgusting allegations were made and were supported even at the time of examination-in-chief and cross-examination of the wife. Whereas at page 136 (PB-I) in her examination-in-chief, she said, “After compromise in the Hon’ble Court I look no account of the case under Section 498A of IPC pending in the Magistrate’s Court at Howrah” This complaint was filed in 6th December, 1991 whereas the wife had lodged a diary on 4th of October, 1991 (Ext. 17, PB-11, p. 37), wherein she informed that she had no complaint against anybody and she would not start any case against anybody. In her written statement, she admitted that the proceeding under Section 498A IPC was still pending for disposal (PB-I, p. 53) and that the said proceeding was initiated when the acts of cruelty was perpetrated against her (PB-I, p. 55) and denied that the allegations made in the application under Section 498A were false and the case was filed falsely; but, however, she admitted that the matter was pending before the Court (PB-I, P. 59).

17. Making of false allegations are apparent on the face of the record that she wanted to say that the allegations made in the application were designed by her lawyer in one breath and then says that all the allegations made in the said application are true and correct; but these allegations are yet to be proved. No evidence has been led to prove any of these allegations by the wife.

18. Thus, it appears to be a false allegation in relation to the character of the husband imputing that the husband had been torturing the wife and that the husband used to have illicit connection with other women. These disgusting and disparaging allegations are sufficient to constitute cruelty when not proved and this cruelty was maintained even till the date when the wife had given her evidence in the proceedings. She kept the proceedings pending and stood by her submissions made therein. She had never resiled from the allegation made against the husband in Exhibit 10 filed on 16th December, 1991. Thus, the cruelty emanating from the materials, as discussed above, does exist and is apparent from the record itself, which we omitted to consider in the earlier judgment. Admittedly, the allegations made therein are false because of the reason that she had never attempted to prove the same apart from the fact that in the said application, she had alleged that this torture and the illicit relation was continuing for long namely immediately after her marriage, ie: on 17th of June, 1982 in which one daughter and one son were born on 24th of July, 1983 and 20th February, 1988 respectively. Whereas a few days before 16th December, 1991, the date when the application under Section 498A IPC was filed, the wife lodged a diary on 4th of October, 1991 being Ext. 17 (PB-II, p. 37) wherein she did not whisper anything about those allegations, on the other hand, she said she had no complaint against anybody and she would not start any case against anybody.

19. Keeping of an application under Section 498A IPC pending against a person is like a Democles’s sword. The person would remain in constant fear of its being fallen on his head any time. This itself is a cruelty continuous.

20. There are evidence on record that the wife used to take away the children, for which the husband had to file application under Section 97 of the Criminal Procedure Code (Cr. PC) on 3rd of December, 1991 being Ext. 13 (PB-II, p. 26) wherefrom it appears that the wife used to leave the matrimonial home taking away the children with her even at the cost of the studies of the children and the husband had to persuade her to bring the children back. However, the husband ultimately got the daughter admitted in Mousuri (PB-I, p. 107) so as to ensure her uninterrupted education and that the husband had to rescue the children so as to continue their studies through proceedings under Section 97 Cr. PC. The taking away of the children and interference with their studies, an agony for a father, desiring his children to be educated properly, would also amount to cruelty. At page 139 (PB-I) she stated, “It is a fact that after my marriage and upto this day my husband assault me but I cannot remember the number of times. I did not state to my lawyer prior to preparation of the written statement that my husband had assaulted me. I lodged no diary in P.S. about the assault. I lodged a diary in P.S. while I left my matrimonial house with my children. I made no allegation against my husband and the members of his family in the said diary.” The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate, 2003(6) SCC 334 (supra), and followed and elaborately discussed in Kakali Das v. Ashish Kumar Das, AIR 2004 Cal 176 : 2004 (3) CHN 516.

21. Even if it is assumed that the cruelty of the wife arising out of the initiation of the proceedings under Section 498A IPC and the allegation made therein was condoned by reason of the alleged cohabitation either before or after the institution of the suit, even then the failure to withdraw the proceedings despite agreed to by the wife, the survival of the proceedings, and her assertion in the written statement that the said proceeding is still pending disposal (PB-I, p.59), the assertion of the wife in her deposition in cross-examination that the said proceedings against the husband is now alive (PB-I, p. 141) and her deposition asserting that the statements made in the application under Section 498A IPC (Ext. 10) are all correct and true (PB-I. p. 138), has the effect of revival, continuance and survival of the cruelty.

22. It may be noted that even before this Court an application was made by the father for ensuring the studies of the son when the daughter had been adequately educated keeping her outside in Boarding School and the daughter lives with the father and that ultimately the wife was persuaded to allow the son to be admitted in a Boarding School outside the State of West Bengal. It is an admitted position that the son’s education was interrupted so long the son lived with the wife. It is only after persuasion by us she had agreed to allow the child to have good education and the father had admitted him in a good school in terms of our order passed on 3rd of March, 2005. This interference with the child’s educations also constitutes a mental cruelty.

23. It is alleged that by reason of cohabitation the husband had condoned the act of cruelty on the part of the wife and all other grounds on which divorce was sought for. In our earlier judgment, we had held that in the absence of cross-examination on the question of cohabitation, the wife’s allegations were to be believed. But, now it is pointed out that in his deposition the husband had asserted (PB-I, p. 91) that he had no relationship with the wife since 1990 and that he used to live in a separate room. He reiterated that he lived in a separate room in his examination-in-chief (PB-I, p. 95) and that he did not maintain any relation with the wife since 1990 (PB-I, p. 96) and he did not condone the cruel behaviour of the wife (PB-I, p. 97). This he repeated at page 101 and maintained stood by in his cross-examination (PB-I, pp. 114, 118 & 121). On this question of cohabitation, the wife was cross-examined where she had stated (PB-I, p. 134) that ‘It is not a fact that I had no sexual relation with my husband since 1990.” She admitted that she left the matrimonial home on 4th of October, 1991 by saying (PB-I, p. 134) “It is correct to say that from 4.10.91,1 resided with my sister at Bally with my one son and one daughter.” and said that (PB-I, p. 136)” I have been living in my matrimonial house since 1.10.92″ She was also cross-examined on the question of co-habitation when she answered (PB-I, p. 137) that “It is a fact that my last cohabitation with husband was held on 1st week of January, 1995. At page 140 (PB-I), she stated in her cross-examination that “my husband does not reside in the house where I reside. Then says, I do not know as to where he resides. Not a fact that my husband did not live separately at any point of time in the premises where I reside in the same room.” From the evidence of the OPW-1, the wife, it appears that she blew hot and cold when she says in her cross-examination at page 142 (PB-I) that ‘Not a fact that I suspected and used to tell that he had illicit connection with another lady” and that her lawyer drafted the petition and designed the same according to his estimation under Section 498A (PB-I, p. 141) and that she had no allegation against her husband on 4th of October, 1991 recorded in the diary (PB-I, p. 139) while saying that the statements made in the application under Section 498A were all correct and true. She contradicts herself to loose the credibility of her evidence. The suit was filed on 29th of November, 1994, whereas the last cohabitation was alleged in January 1995, which is wholly improbable.

24. The totality of the evidence of the wife clearly shows that she was not telling the truth and telling different things at different times. This eroded the reliability of her evidence. The credibility of the evidence does not depend on the absence of cross-examination, but on the credibility of the witness himself/ herself and the totality of the evidence on record. It was so held in the decisions in Juwarsingh, 1980 (Supp) SCC 417 (supra) and P. Ram Reddy, (supra). In the present case, however, there were some cross-examination and the wife admitted of not living in the same room and alleged cohabitation after fourth months of filing of the suit, it is the probability of the evidence, which has to be considered not the absence of cross-examination. Even absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. The truth of the evidence is to be tested on the basis of the probabilities and reliability and the credence of the respective witnesses, particularly, when two versions have been brought on record by the husband and the wife (PW-1 and the OPW-1). In the present case, the evidence of the wife seems to be against all probabilities. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

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At the same time, we have found that the parties are not residing together and had been living apart and the husband had left the matrimonial home. Even in course of hearing of the review application, the Court had attempted to resolve the dispute and requested the learned Counsel to bring about a settlement and ultimately to present the respective parties before the Court. The Court had attempted to settle the matter but the wife did not agree to reconcile though the husband expressed his willingness. The Court, found that the parties are living separately and are unable to resolve their dispute and that the marriage has broken down irretrievably and ultimately a settlement only with regard to education of the son and the maintenance and residence of the wife was arrived at by consent of the parties without any success in bridging the relation between them.

26. Thus, it appears that the ground of cruelty exists and the marriage between the parties has irretrievably broken and all our attempts to restore the same had failed. As such it is a case fit for passing a decree of divorce even on the ground of irretrievably breaking down the matrimony on the principle we had enunciated in the decision in Nityananda Karmi v. Kum Kum Karmi, 2003 (1) ICC 249 : 2003(1) WBLR (Cal) 348 : 2003(4) ILD 73 (Cal.): 2003 (2) CHN 121 (DB).

27. Since by consent of parties the main appeal of which the review is allowed was argued at length between the parties and have since re-heard, in view of the fact that the ground of cruelty having been proved as discussed above and the marriage has irretrievably been broken and all our attempts to bridge the relation having failed by reason of the disagreement between the parties, we hereby allow the appeal in FA No. 12 of 2001 and grant a decree of divorce on the ground of cruelty and the Matrimonial Suit No. 318 of 1994 of the Court of the learned Additional District Judge, 4th Court, Howrah stands decreed. The marriage between the parties be annulled. Let a decree of divorce be granted accordingly.

CAN 1120 of 2005. CAN 3079 of 2005.

28. The question of permanent alimony is hereby settled in terms of our order dated 3rd March, 2005 only with the modification that the husband shall arrange a proper flat in the locality of the matrimonial home sufficient for the residence of the wife since the husband submits that he does not have any share in the ancestral house. In addition to the maintenance, husband shall purchase a self-contained flat (at least with one bedroom with attached bath, one guestroom, drawing, dinning, kitchen, and common bath) in the locality sufficient to the requirement and status of the wife as close as possible to the ancestral home and shall fully furnish and make over the same to the wife within 6 (six) months from date and the wife shall be entitled to continue to reside in that flat till her life without any interruption from her husband or anyone else and she would continue to receive the permanent alimony in terms of the order dated 3rd of March, 2005 so long she survives in the same manner as provided therein.

Order:

29. In the result, the appeal stands allowed in terms of above. CAN 1120 of 2005 and CAN 3079 of 2005 are also disposed of accordingly. The judgment and decree appealed against is hereby set aside. The marriage between the parties stands annulled by a decree of divorce. Let there be a decree of divorce accordingly. The wife shall be entitled to residence and maintenance in terms of order dated 3rd March, 2005 subject to the modification as indicated in paragraph 28 above. The education of the son be governed in terms of the order dated 3rd March, 2005. The Matrimonial Suit No. 318 of 1994 of the 4th Court of Additional District Judge, Howrah is thus decreed.

30. There will, however, be no order as to costs.

31. Liberty to mention.

32. Urgent xerox certified copy of this judgment, if applied for, the same be supplied within seven days on usual terms.

 

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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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there wil B serious consequence IF woman’s modesty is outraged. FINE, but what about Man’s modesty ?

If women outrage women’s modesty, women MAY be punished (we know of one or two instances). If Men outrage women’s modesty, of course MEN will be punished severely, there are 1000s of examples. However anyone can outrage a man’s modesty and no one will be bothered, because after all he is a man !!

Do men have any respect left in this country ? Are men expected to have any modesty or is it only women, the only and only gender eligible to have modesty in India ?

This question often comes up when you look at the legal discourse.

Men have been falsely arrested, their mothers defamed, their fathers defamed, Men are practically stripped naked in matrimonial fueued, but nothing is spoken about their modesty or outraging their modesty.

However the moment a woman’s modesty is outraged there is shit storm, candle march, channel / panel discussion and what not.

Well readers, YOU may decide

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Has your wife taken the money & refused to appear quashng 498a? Use this Del HC order 2 save yourself !

In this case the wife has taken her agreed money and has refused to come to the court to quash the criminal complaint against the husband !! The Hon HC appreciates the fact that woman has taken the money and is NOT responding to repeated notices and quashes the case

Key excerpts “…... It is stated by the Petitioners that subsequent to the above order the two cheques for the sum of Rs. 4,00,000 in favor of Respondent No. 2 Smt. Anju Gupta (the details of which are set out in the order dated 5th April 2006) were encashed by her. Copies of the corresponding entries in the bank account on which the cheques were issued evidencing such encashment have been placed on record in this petition.

7. Although she was expected to join the Petitioners in filing the present petition under Section 482 CrPC for quashing the FIR, it appears that the Respondent No. 2, for the reasons best known to her, refused to do so…..”

The Hon HC concludes that “….13. This court cannot but accept the statements made on oath by Respondent No. 2 accepting the terms of the compromise and recorded by and forming part of the record of the Punjab and Haryana High Court. She has also accepted the sum of Rs. 4 lakhs in terms of the compromise….”

 

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Delhi High Court

Purshotam Gupta And Ors. vs State And Anr. on 23 January, 2008

Author: S Muralidhar

Bench: S Muralidhar

ORDER S. Muralidhar, J.

1. This petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.PC) seeks the quashing of FIR No. 575 of 2002 registered at Police Station Rajouri Garden, New Delhi under Section 498A/406 read with Section 34 Indian Penal Code (IPC).

2. The background of the filing of this petition is that the parties were married on 15th June 1997 in New Delhi. A child was born to them on 18th September 1998. On account of differences that developed thereafter Respondent No. 2 Smt. Anju Gupta made a complaint against the Petitioner No. 1 husband and Petitioners 2 and 3, i.e., the father-in-law and mother-in-law respectively complaining of harassment for dowry and for criminal breach of trust/misappropriation. Consequently, FIR No. 575/2002 was registered against the petitioners in Police Station Rajouri Garden, New Delhi on 26th July 2002 under Sections 498A, 406/34 IPC .

3. Meanwhile in the divorce petition filed by the Petitioner No. 1 husband against the Respondent No. 2 wife was dismissed on 4th June, 2005 by the learned Additional District Judge, Gurgaon. During the pendency of the appeal FAO No. 241-M of 2005 filed by the Petitioner No. 1 husband in the High Court of the Punjab and Haryana, the parties settled their disputes. At the hearing of the appeal on 5th April, 2006 that High Court was informed of this development and the following order was passed:

Parties have settled their disputes. On the oral request made, the original petition filed under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act (H.M. Act Case No. 41 of 5.4.2002, Purshotam Gupta v. Anju Gupta, in the Court of Addl. District Judge, Gurgaon) is converted into petition under Section 13B of the Hindu Marriage Act for the grant of decree of divorce by mutual consent. Parties are present. Let their statements be recorded.

4. The statements made by the Petitioner No. 1 husband as well as the Respondent No. 2 wife were thereafter recorded on oath in the High Court. Relevant to the present petition is the following statement made on oath by the Respondent No. 2 wife before the High Court:

I married Purshotam Gupta on June 15, 1997. A male child was born out of the wedlock, who is residing with me. Since May 1, 1999, we are living separately. Now we cannot live together and pray for divorce to be granted on mutual consent of the parties.

I have accepted a sum of Rs. 4 lacs by two cheques from appellant Purshotam Gupta as full and final settlement of my claim as well as for maintenance of the child. The child would remain in my custody. On my complaint, a criminal case is pending against Purshotam Gupta and others vide FIR No. 575 of 2002, under Sections 498A/406 and 34 IPC, registered at Police Station Rajouri Garden, New Delhi. The criminal case is pending in the Court of Metropolitan Magistrate, New Delhi. I will have no objection for quashing of these criminal proceedings. I will also withdraw the Petition No. (RT) MP 1545/04/02 filed under Section 125 CrPC.

5. Thereafter on the same date, i.e. 5th April 2006, the High Court of Punjab and Haryana passed the following order:

This appeal has been settled by compromise. On the oral request made by the parties, the original petition filed for grant of divorce, Purshotam Gupta v. Anju Gupta in H.M. Case No. 42 of 5.4.2002, decided by Additional District Judge, Gurgaon, is converted into a petition under Section 13B of the Hindu Marriage Act. Statement of the parties have been recorded. As per their evidence, the marriage between the parties took place on June 15, 1997 and w.e.f. May 1, 1999, they are living separately. They cannot live together and they have prayed for divorce on mutual consent. The same is allowed. Out of the wedlock, a male child was born, namely, Mukul Gupta, who will continue to remain in custody of Smt. Anju Gupta. For her claim as well as for maintenance of Mukul Gupta, Purshotam Gupta has tendered Rs. 4 lacs in two cheques bearing Nos. 752218, dated 25.4.2006, amounting to Rs. 2,50,000/- drawn at State Bank of India, New Delhi and 093727, dated 15.3.2006, amounting to Rs. 1,50,000/- drawn at Central Bank of India, Gurgaon. On recovery of the same, Anju Gupta will not make any claim for her maintenance or maintenance of the child. She will have no further claim against Purshotam Gupta.

On an FIR registered at the instance of Anju Gupta, a criminal case is pending registered under Sections 498A/406 and 34 IPC, at Police Station Rajour Garden, New Delhi, in the Court of Metropolitan Magistrate, New Delhi. Smt. Anju Gupta will have no objection for quashing of the same for which Purshotam Gupta will move the Court concerned. She will also withdraw proceedings under Section 125 Cr.P.C. This disposes of the aforesaid appeal with the grant of divorce on mutual consent of the parties.

Copy of the orders be supplied/given to learned counsel for the parties/parties and file be returned to the High Court.

6. It is stated by the Petitioners that subsequent to the above order the two cheques for the sum of Rs. 4,00,000 in favor of Respondent No. 2 Smt. Anju Gupta (the details of which are set out in the order dated 5th April 2006) were encashed by her. Copies of the corresponding entries in the bank account on which the cheques were issued evidencing such encashment have been placed on record in this petition.

7. Although she was expected to join the Petitioners in filing the present petition under Section 482 CrPC for quashing the FIR, it appears that the Respondent No. 2, for the reasons best known to her, refused to do so. This petition was accordingly filed by the husband and the in-laws seeking the quashing of the FIR aforementioned in terms of the compromise already recorded by the High Court of Punjab and Haryana in its Order dated 5th April, 2006.

8. Notice in this petition was directed to issue to the Respondent No. 2 by this Court s Order dated 25th May 2006. Respondent No. 2 has been served but has chosen to remain absent from this Court for at least three hearings thereafter. Today also there is no appearance on behalf of the Respondent No. 2.

9. The learned counsel for the Petitioners states that the Respondent No. 2 was bound to honour the terms of the settlement on the basis of which the appeal stood disposed of by the High Court of Punjab and Haryana on 5th April, 2006. He states that since the petitioner No. 1 has have performed his part of the obligation by making the payment of Rs. 4 lakh to Respondent No. 2, she was obliged to join the petitioners in filing the present petition for quashing. He submits that in similar circumstances on at least two occasions, the Hon’ble Supreme Court has, while reversing orders of the High Courts declining to quash the proceedings, held that parties cannot be allowed to resile from the statements made before the Court on the basis of which a settlement has been recorded and the proceedings disposed of. Refernce is made to the judgments in Ruchi Agarwal v. Amit Kumar Agrawal and Ors. and Mohd. Shamim v. Nahid Begum (Smt.) .

10.1 In Ruchi Agarwal, a compromise was arrived at between the husband and wife in the divorce proceedings before the Family Court at Nainital and a compromise deed was also filed in that court. The terms of the compromise were that the wife would be returned the entire stridhan and be paid the maintenance in a lumpsum. On this condition, it was agreed that a divorce by mutual consent under Section 13B of the Hindu Marriage Act 1955 would be granted. As a part of the compromise, it was agreed that the wife would withdraw the criminal case under Section 125 of the CrPC, as well the criminal case under Sections 498A, 323 and 506 IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (DPA).

10.2 Before the Family Court could pass an order on the basis of the compromise, the wife wrote a letter to the Family Court resiling from the compromise because she had not received the agreed amount. However, later her statement was recorded by the Family Court wherein she stated that she wanted a divorce and that there was no dispute as to the amount. She withdrew the letter written by her to the Family Court resiling from the compromise. On the basis of this statement the Family Court passed a decree of divorce by way of mutual consent and the wife also withdrew the maintenance case under Section 125 CrPC. However, she took no steps to withdraw the criminal case under Sections 498A, 323 and 506 IPC and Sections 3 and 4 DPA. The husband then approached the High Court for quashing the said criminal proceedings.

10.3 The High Court allowed the petition and quashed the proceedings not on the basis of the compromise but on the ground that the trial court in Nainital Rampur District had acted beyond its territorial jurisdiction in entertaining the complaint of the wife.

10.4. In the appeal filed by the wife in the Supreme Court, it was sought to be contended by her that she had been coerced into giving a statement before the Family Court agreeing to withdraw the criminal case at the time of recording of the compromise. The Supreme Court however declined to accept such an argument. While affirming the judgment of the High Court the Supreme Court quashed the criminal proceedings on the basis of the compromise as recorded by the Family Court. It observed: we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents.

11. Likewise in Mohd. Shamim, the Respondent No. 1 wife informed this Court in the Section 482 proceedings that she did not wish to compromise the matter and wanted to continue with the complaint notwithstanding the fact that in her presence, a statement to the contrary had been recorded by the learned Additional Sessions Judge in the proceedings in that court. In view of the stand taken by the Respondent No. 1 wife in that matter, this Court had declined to interfere and dismissed the petition under Section 482 CrPC. However, the Supreme Court reversed this Court s decision after coming to the conclusion that the settlement arrived at the intervention of a judicial officer of the rank of the Additional Sessions Judge ought not to be doubted, and that the denial of the execution of the compromise deed by the Respondent No. 1 wife was clearly an afterthought. The Supreme Court observed that having accepted the sum of Rs. 2,25,000 pursuant to the said compromise, the wife could have at least filed an application in the same court returning the sum already accepted if indeed she was serious in resiling from the compromise. The appeal was allowed and the criminal proceedings quashed.

12. Reverting to the present case, acting on the compromise the Respondent No. 2 accepted the amount of Rs. 4 lakhs, accepted the divorce by way of mutual consent and also withdrew the maintenance case under Section 125 CrPC. However, for some unknown reason she chose not to join in the present petition seeking quashing of the criminal proceedings under Sections 498A, 406/34 IPC. She was served in the present proceedings but has chosen to remain absent.

13. This court cannot but accept the statements made on oath by Respondent No. 2 accepting the terms of the compromise and recorded by and forming part of the record of the Punjab and Haryana High Court. She has also accepted the sum of Rs. 4 lakhs in terms of the compromise. The divorce has been granted and the criminal case for maintenance stands withdrawn. Only the last bit regarding the quashing of the criminal proceedings under Sections 498A, 406/34 IPC remains. With the Respondent No. 2 not appearing in these proceedings to contest the petition, the assertions of the petitioners as noted hereinabove remain uncontroverter.

14. This Court is therefore inclined to follow the aforementioned two decisions of the Supreme Court in Ruchi Agarwal and Mohd. Shamim and quash the pending criminal proceedings against the petitioners. It may be mentioned that the learned APP for the State also does not dispute the facts stated in the petition or the law as settled by the Supreme Court. He expresses no objection the quashing of the FIR in view of the aforesaid developments.

15. Consequently the FIR No. 575 of 2002 registered in Police Station Rajouri Garden, New Delhi on 26th July 2002 under Sections 498A, 406/34 IPC and all proceedings consequent thereto hereby stand quashed. The petition is allowed but with no order as to costs.