False allegations of illicit relation with girls is cruelty. Husbnd wins Dvrc. NO Jewel returned 2 wife ! CAL HC

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 : “….. written statement, ….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

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Calcutta High Court

Amarendranath Sanyal vs Krishna Sanyal on 1 June, 1992

Equivalent citations: (1993) 1 CALLT 301 HC, I (1993) DMC 565

Author: S Guin

Bench: A Bhattacharjee, S K Guin

JUDGMENT S.K. Guin, J.

This appeal is directed against the judgment and decree passed by the learned District Judge, Hooghly on 22 9 88 in Matrimonial Suit No. 161 of 1985 whereby he dismissed the suit.

1. The petitioner-husband, who is the appellant here. brought the above suit against his wife, who is the respondent here, for dissolution of the marriage by a decree of divorce on the ground of desertion and cruelty. The wife contested the suit by filing a written statement.

2. Undisputedly the marriage between the parties was solemnised according to Hindu rites on 13.3.79 and a son, who is now about 12 years old, was born out of this wedlock. It is also not disputed that since 15.10.83 the parties have been living separately and that the son, born out of this wedlock, has been living with his mother. Both sides adduced evidence-oral and documentary in support of their respective cases before the learned District Judge who on consideration of the same has held that the plaintiff failed to prove cruelty or desertion as alleged by him. With these findings, he dismissed the suit.

3. Being aggrieved the petitioner-husband has preferred the instant appeal challenging the correctness and propriety of the findings as arrived at by the learned District Judge. It has been contended on behalf of the appellant that the learned District Judge should have passed a decree of divorce on the ground of cruelty and desertion. The respondent, however, has resisted this appeal.

4. Having heard the learned Counsel of both the parties and having gone through the evidence on record, we are not inclined to interfere with the finding of the learned District Judge with regard to desertion. However, we are not inclined to support his finding as to cruelty. In paragraphs 13 and 14 of the written statement, the respondent-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. In this case the respondent-wife has examined three witnesses including herself. 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. According to him the respondent-wife told him that her husband had some illicit connection with some girl. So he has got no direct knowledge whether the petitioner-husband had any illicit connection with any girl. 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. Before institution of the instant suit she also appears to have made a complaint to the General Manager of the Government of India Press where the petitioner-husband used to serve (vide Ext. 8). In this complaint against her husband, she did not make any allegation that her husband had any love affairs or illicit connection 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. In the case of Nimai Kumar Ghosh v. Smt. Mita Ghosh, reported in 89 C.W.N. 904 a Division Bench of this Court has held that any imputation against the character of any spouse made either by the wife or by the husband on mere suspicion and without any foundation would amount to mental cruelty and would be a valid ground for passing a decree under the provision of Section 13(l)(ia) of the Hindu Marriage Act. A Division Bench of this Court presided over by my learned brother, A.M. Bhattacharjee, J. in the case of Harendranath Burman v. Suprova Burman, has held that unfounded or baseless allegation of adultery by one spouse against the other constitutes mental cruelty of the gravest character to warrant divorce. In the case of Smt. Santana Banerjee v. Sachindra Nath Banerjee, , the wife alleged illicit sexual relation of her husband with an office colleague and also indulged in making reckless, false and motivated allegation against her husband and his close relation not only in her written statement but also in her deposition. Another Division Bench of this Court presided over by G.N. Ray, J. (as he then was) has held in that case that such allegations constitute cruelty of a very grave nature. We respectfully agree with and rely upon the decision as referred to above. It is true that the allegations, as to character of the petitioner-husband were made by the respondent-wife after institution of the instant suit. But it is well settled that such post suit allegations or events may be taken into consideration to shorten the litigation and to do complete justice between the parties. Relying upon the decision of the Supreme Court in the case of Shikhar Chand v. Digambar Jain, , the Division Bench of this Court has held in the case of Harendra Nath Burman v. Suprova Burman (supra) that the allegation made in the written statement and in the deposition can and should be taken note of in matrimonial proceeding without driving the petitioner to another proceeding on the ground of such cruelty. It has further been held that it is open to a Court, including a Court of appeal, to take notice of events which happened after the institution of the suit and afford relief to the parties where it is necessary to do in order to shorten litigation or to do complete justice between the parties. The same view has also been expressed by the Division Bench in the case of Smt. Santana Banerjee v. Sachtndra Nath Banerjee (supra). We see no reason to take a different view. So, though the allegation was made by the respondent-wife regarding the character of petitioner-husband in the written statement and was repeated in her deposition, such post-lis allegation can and should be taken note of in the instant matrimonial proceeding without driving the petitioner-husband to another proceeding on the ground of such cruelty. Thus on consideration of the facts and circumstances of the case and also having regard to the decisions as referred to above, we hold that the aforesaid unfounded and baseless allegations made by the respondent-wife against the character of the petitioner-husband in written statement and also in her deposition constitute mental cruelty of the gravest character to warrant a divorce. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. Before grant of divorce on the ground as embodied in Section 13(1)(ia) of the Hindu Marriage Act let us consider whether a decree of judicial separation will serve the purpose in the facts and circumstances of the case. Undisputedly the parties have been living separately since 15.10.83 i.e. for more than 8 years. We have seen that the respondent-wife made baseless and false allegations against her husband to the effect that he had love affairs and illicit connection with another girl. In the facts and circumstances of the case it appears to us that the marriage has broken down irretrievably and irreparably and that no useful purpose would be served by passing a decree of judicial separation on the ground of cruelty. So we are of the opinion that in the facts and circumstances of the case the petitioner-husband is entitled to a decree of divorce on the ground of cruelty.

6. At the conclusion of the hearing of appeal, the respondent-wife filed two applications one under Section 25 of the Hindu Marriage Act for permanent alimony and another under Section 27 of the said Act for return of the articles mentioned in “Annexure A” to the application. Mr. Mukherjee, learned Counsel appearing for the appellant raised no objection to the application under Section 25. But be has raised serious objection with regard to the application under Section 27. He has argued that as the respondent- wife claimed the articles and ornaments mentioned in the application as her own stridhan property, the provision of Section 27 cannot be invoked with regard to such stridhan property of the respondent-wife. He has, however, got no objection if the items of furniture such as cot (double bed), steel almirah (big size) and the dressing table are directed to be returned to the respondent-wife. In our opinion, contention as raised on behalf of the appellant must be upheld. In the application under Section 27 the respondent-wife has prayed for return of the ornaments and articles on the allegation that the said properties are her stridhan properties and so belong to her. But Section 27 of the Hindu Marriage Act provides that the Court may make such provision in the decree with respect to the property presented, at or about the time of marriage, which may belong jointly to both the husband and wife. So the provisions of Section 27 can only be invoked for return of properties which were presented at or about the time of marriage and jointly belong to both the husband and wife. In this connection our attention has been drawn to a decision of the Division Bench of this Court presided over by my learned brother, A. M. Bhattacharjee, J. in the case of Sibnath Mukhopadhyay v. Sunita Mukhopadhyay . It has been held therein that Section 27 on its express terms would apply to such property only which (a) has been presented at or about the time of marriage and (b) may belong jointly to both the husband and wife. So Section 27 has no manner of application to the properties which exclusively belong to the wife or to the husband. The ornaments as mentioned in the Annexure ‘A’ to the application under Section 27 have been claimed by the respondent-wife as her stridhan and exclusive properties and as such the respondent-wife is not entitled to an order for return of those articles under the provision of Section 27. So the prayer for return of those ornaments must be rejected. However, she would be at liberty to seek an appropriate relief with regard to those ornaments as available to her under the general law. The cot, steel almirah and dressing table are undoubtedly of common use and may be meant for both the husband and wife. Moreover the learned Advocate for the appellant has conceded that those articles of furniture may be directed to be returned to the respondent-wife. So in the decree there would be a direction for return of the said articles to the respondent-wife. The application under Section 27 thus succeeds in part.

7. Under Section 25 of the Hindu Marriage Act any Court exercising jurisdiction under the said Act may, at the time of passing any decree on application made to it for the purpose, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just. In her application the respondent-wife prayed for payment of sufficient permanent alimony but she did not quantify it. Now the question arises as to what should be the amount of permanent alimony, whether it should be paid in a lump sum or whether it should be paid monthly. That the respondent-wife, with whom the son born out of this wedlock is living, has no income or property of her own has not been disputed before us. It appears from the evidence on record that she has been living in the house of her brother. The son is now aged twelve and so is now school going. Mr. Sinha learned Advocate for the respondent-wife has submitted that since the petitioner-husband made default in payment of alimony pendente lite and since he has already retired from the service and received pensionary benefit, a gross sum may he given as permanent alimony so that the respondent-wife may not be put into any trouble in future in the matter of maintaining herself and her son This submission appears to us to be reasonable. The petitioner used to serve in the Government of India Press and he has already retired on attaining the age of superannuation. It also appears that he made default in payment of alimony pendente the. So in the facts and circumstances of the case it appears to us to be reasonable that a gross sum should be awarded as permanent alimony. Mr. Sinha, learned Advocate for the respondent-wife has further submitted that lump sum of Rs. 45,000/- to 50,000/- may be awarded as permanent alimony to the respondent-wife. We also called for a report from the Managar, Government of India Press to know what were the pensionary benefits available to the petitioner-husband. A reply has been received and the same has been placed on record. From the letter received from the Government of India Press it appears that the petitioner-husband is entitled to get pensionary benefits as mentioned below :-

(1) C.G.E.G.I.S. Rs. 3,456.00
(2) D.C.R.G. Rs. 32,175.00
(3) Commuted value of pension Rs. 40,668.00
(4) Leave encashment Rs. 25,000.00
(5) G.P. Fund. Rs. 85,374.90

8. Besides the abovementioned pensionary benefits the petitioner-husband will get pension at the rate of Rs. 649/-+ D.A. relief per month. Thus it is clear that besides the monthly pension as mentioned above, the petitioner-husband is entitled to get other pensionary benefits to the extent of Rs. 1,86,273.00 P. Thus having considered the income and properties of the parties and also the conduct of the parties and the facts and circumstances of the case, we think it reasonable to grant a gross sum of Rs. 30,000/-as permanent alimony to be paid by the petitioner-husband to the respondent-wife and there will be direction to that effect in the decree.

9. In the result, this appeal is allowed. In the circumstances of the case we make no order as to cost. The judgment and decree of dismissal as passed by the learned District Judges, Hooghly in Suit No. 161 of 1985 are set aside. The suit is hereby decreed. ‘ The marriage between the parties is hereby dissolved by a decree of divorce on the ground of cruelty as embodied in Section 13(l)(ia) of the Hindu Marriage Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

10. The respondent-wife do get permanent alimony of Rs. 30,000/-from the petitioner-husband and the petitioner-husband is directed to pay the said amount within three months from this day. The petitioner-husband is also directed to return the articles of furniture namely, cot (double bed), steel almirah (big size) and the dressing table as mentioned in Annexure A to the application under Section 27 to the respondent-wife within three months from this day. The respondent-wife, however, will be at liberty to seek the appropriate reliefs with regard to her alleged stridhan properties i.e, ornaments as are available to her under the general law. The applications under Sections 25 and 27 of the Hindu Marriage Act are thus disposed of as indicated above.

A.M. Bhattacharjee, J.

11. I agree.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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One thought on “False allegations of illicit relation with girls is cruelty. Husbnd wins Dvrc. NO Jewel returned 2 wife ! CAL HC

  1. Pingback: Happy Newyear 2016. 33 cases where truth triumphed & husbands won divorce on cruelty ! 33 from the 500+ ! | my2centsworth

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