Monthly Archives: February 2016

A wife who says “father in law used to force himself on her after drinking..” takes 5 lakhs to quash case !! Delhi HC

A wife who claims all sorts of ill treatment, including that her father in law used to force himself on her after getting drunk accepts to quash everything for just 5 lakhs !! Whom should we pity now ??

The Wife initially makes very serious claims. A sample of the same can be see in the enclosed order which states “….After a week of marriage, the complainant/respondent no.2 was subjected to torture, harassment and other violence by her in-laws for not giving sufficient dowry to their satisfaction. The accused persons, committed various offences including unlawful demand of dowry, ill- treating, calling by bad names, forcing to entertain strange people, using abusive language and threatening to kill the complainant. The husband of the complainant used to beat her mercilessly. Soon after the marriage, the husband of the complainant went to Indonasia and in his absence, the mother-in-law of the complainant started to harass and misbehave with the complainant. The mother-in-law of the complainant even threw a plate full of vegetables at her face and since then she was not provided with food and she had to survive of stale food and water. The father-in-law of the complainant also used to force himself on her after getting drunk. Even during the pregnancy, the complainant was forced to do all the household chores. ….”

But suddenly when it comes to mutual consent divorce WITHOUT the kid, poor wife now accepts 5 lakhs and all complaints are quashed !! “…As per the compromise deed, it has been agreed between the parties that they shall take divorce by way of mutual consent. It is agreed that both parties shall mutually get the FIR in question quashed before this Court. It is further agreed that an amount of Rs.5,00,000/- shall be payable in two installments by petitioner no.1 to respondent no.2. It is agreed that the schedule of payment of the aforesaid amount shall be done as enunciated in the compromise deed. …..”

The custody of the kid remains with the dad though wife gets moolah !!

What should we say …. should we say “….Justice SHALL prevail !!..”


IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 5047/2015 & Crl. M.A. 18870/2015

Date of Decision : February 12th, 2016

NAVEEN KALRA & ORS                              ….. Petitioners
Through      Mr. K.G. Gopalakrishnan and Ms. Zeba Khair, Advs.

versus

STATE                                             ….. Respondent
Through    Ms. Manjeet Arya, APP for State

Mr. Prakash Kumar, Adv. for R-2 alongwith respondent No.2 in person

CORAM: HON’BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

  1.  The present petition under Section 482 Cr.P.C. has been filed by the petitioners, namely, Sh. Naveen H. Kalra, Sh. Harish S. Kalra, Smt. Kiran Kalra and Smt. Pooja Darira for quashing of FIR No.161/2012 dated 04.08.2012, under Sections 498A/406/506/509/34 IPC registered at Police Station Dwarka South on the basis of the compromise deed arrived at between the petitioner no.1 and respondent No.2, namely, Smt. Manveer Kaur Anand on 25.11.2015.
  2.  Learned Additional Public Prosecutor for respondent-State submitted that the respondent No.2, present in the Court has been identified to be the complainant/first-informant of the FIR in question by her counsel.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3.  The factual matrix of the present case is that the marriage between the petitioner no.1 and respondent no.2 was solemnized in April, 2008 according to proper rites and ceremonies under the HMA. After a week of marriage, the complainant/respondent no.2 was subjected to torture, harassment and other violence by her in-laws for not giving sufficient dowry to their satisfaction. The accused persons, committed various offences including unlawful demand of dowry, ill- treating, calling by bad names, forcing to entertain strange people, using abusive language and threatening to kill the complainant. The husband of the complainant used to beat her mercilessly. Soon after the marriage, the husband of the complainant went to Indonasia and in his absence, the mother-in-law of the complainant started to harass and misbehave with the complainant. The mother-in-law of the complainant even threw a plate full of vegetables at her face and since then she was not provided with food and she had to survive of stale food and water. The father-in-law of the complainant also used to force himself on her after getting drunk. Even during the pregnancy, the complainant was forced to do all the household chores. On the eve of Lohri, the sister-in-law of the complainant demanded many valuable things as shagun and Rs. 1 lacs too from the complainant. In January, 2009, Mrs. Pooja Darira abused the complainant by saying that her father is a liar. In the month of June, 2009 at Delhi, the husband of the complainant again picked up a fight with her in front of her father and gave her beatings while she was pregnant. One day, the accused persons tried to pour phenyl in the mouth of the complainant forcefully. On 08.09.2011, the accused persons threatened the complainant and asked her to divorce her husband. One day, the husband of the complainant asked her to call her father and ask him to take her away. The complainant left with no option, called her father and he came to Bangalore to amicably sort out all the issues but to no avail and thus they finally left Bangalore on 16.10.2011. Thereafter, the complainant lodged the FIR in question against the accused persons/petitioners. The petitioner no.1 approached this Court for the grant of bail and the same was granted to him. Later on, with the intervention of the common friends and relatives etc. the parties reached at an amicable settlement.
  4.  Respondent No.2, present in the Court, submitted that the dispute between the parties has been amicably resolved. As per the compromise deed, it has been agreed between the parties that they shall take divorce by way of mutual consent. It is agreed that both parties shall mutually get the FIR in question quashed before this Court. It is further agreed that an amount of Rs.5,00,000/- shall be payable in two installments by petitioner no.1 to respondent no.2. It is agreed that the schedule of payment of the aforesaid amount shall be done as enunciated in the compromise deed. It is agreed that respondent no. 2 shall withdraw all the cases filed by her that are pending before the Courts concerned. It is agreed that the permanent custody of the child Jai would be with petitioner no.1 and that respondent no.2 would have visitation rights as per the convenience of both parties and the child. It is also agreed that respondent no. 2 shall have the freedom to take the child on one vacation in a year and as many thereafter on mutual co-ordination. It is agreed that respondent no.2 shall not claim for maintenance, permanent alimony or istridhan etc. from petitioner no.1 and that they both shall not stake any claim or share in the movable and immovable properties of each other or their family members for all times, henceforth. It is further agreed that they shall not file any claim, complaint or any other proceedings, civil or criminal, against each other or their family members before any Court of law or before any authority, instrumentality, forum or agency of State or otherwise with respect to any cause of action arising out of the marriage. It is further agreed that in case either party fails to appear before this Court for the quashing petitions or to execute any of the terms and conditions of the present compromise, the parties will rescind the terms and conditions and revert back to the original position as if no such terms and conditions were entered upon. Respondent No.2 affirms the contents of the aforesaid settlement and of her affidavit dated 08.12.2015 supporting this petition. In the affidavit, the respondent no.2 has stated that she has no objection if the FIR in question is quashed. All the disputes and differences have been resolved through mutual consent. Now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question be brought to an end. Statement of the respondent No.2 has been recorded in this regard in which she stated that she has entered into a compromise with the petitioners and has settled all the disputes with them. She further stated that she has no objection if the FIR in question is quashed.
  5.  In Gian Singh v. State of Punjab (2012) 10 SCC 303 Apex Court has recognized the need of amicable resolution of disputes in cases like the instant one, by observing as under:-     “61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”
  6.  The aforesaid dictum stands reiterated by the Apex Court in a recent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC 466. The relevant observations of the Apex Court in Narinder Singh (Supra) are as under:-
    • “29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:
    • 29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.
    • 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
      • (i) ends of justice, or     
      • (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
    • 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.  
    • 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  7.  The inherent powers of the High Court ought to be exercised to prevent the abuse of process of law and to secure the ends of justice. The respondent no.2 agrees to the quashing of the FIR in question without any threat or coercion or undue influence and has stated that the matter has been settled out of her own free will. As the matter has been settled and compromised amicably, so, there would be an extraordinary delay in the process of law if the legal proceedings between the parties are carried on. So, this Court is of the considered opinion that this is a fit case to invoke the jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law and to secure the ends of justice.
  8.  The incorporation of inherent power under Section 482 Cr.P.C. is meant to deal with the situation in the absence of express provision of law to secure the ends of justice such as, where the process is abused or misused; where the ends of justice cannot be secured; where the process of law is used for unjust or unlawful object; to avoid the causing of harassment to any person by using the provision of Cr.P.C. or to avoid the delay of the legal process in the delivery of justice. Whereas, the inherent power is not to be exercised to circumvent the express provisions of law.
  9.  It is settled law that the inherent power of the High Court under Section 482 Cr.P.C. should be used sparingly. The Hon’ble Apex Court in the case of State of Maharashtra through CBI v. Vikram Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case of Inder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009 has observed that powers under Section 482 Cr.P.C. must be exercised sparingly, carefully and with great caution. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings.
  10.  It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquillity and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable but the connected offences are not. In the case of B.S. Joshi and others v. State of Haryana and another 2003 (4) SCC 675 the Hon’ble Apex Court observed that even though the provisions of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon’ble Apex Court laid down that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. In the nutshell, the Hon’ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable. In the light of the aforesaid, this Court is of the view that notwithstanding the fact the offence under Section 498A IPC is a non- compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.
  11.  The Courts in India are now normally taking the view that endeavour should be taken to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs such as, matrimonial disputes between the couple or/and between the wife and her in-laws. India being a vast country naturally has large number of married persons resulting into high numbers of matrimonial disputes due to differences in temperament, life-styles, opinions, thoughts etc. between such couples, due to which majority is coming to the Court to get redressal. In its 59th report, the Law Commission of India had emphasized that while dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. Further it is also the constitutional mandate for speedy disposal of such disputes and to grant quick justice to the litigants. But, our Courts are already over burdened due to pendency of large number of cases because of which it becomes difficult for speedy disposal of matrimonial disputes alone. As the matrimonial disputes are mainly between the husband and the wife and personal matters are involved in such disputes, so, it requires conciliatory procedure to bring a settlement between them. Nowadays, mediation has played a very important role in settling the disputes, especially, matrimonial disputes and has yielded good results. The Court must exercise its inherent power under Section 482 Cr.P.C. to put an end to the matrimonial litigations at the earliest so that the parties can live peacefully.
  12.  Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction.
  13.  In the facts and circumstances of this case, in view of statement made by the respondent No.2 and the compromise arrived at between the parties, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed.
  14.  Accordingly, this petition is allowed an FIR No.161/2012 dated 04.08.2012, under Sections 498A/406/506/509/34 IPC registered at Police Station Dwarka South the proceedings emanating therefrom are quashed against the petitioners.
  15.  This petition is accordingly disposed of.
  16.  Application Crl. M.A. 18870/2015 is also disposed of.

(P.S.TEJI) JUDGE FEBRUARY 12, 2016/dd

*****************************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.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


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Wife appeals exparte decree 10 years later & gets 82 lakhs alimony. Total 23 years marital bliss! Orissa HC case

Married in 1993, trouble starts soon after birth of kid circa 1996. There are claims of extra marital affairs etc. Wife leaves husband in 2000 and never returns. Husband wins ex parte divorce in 2003 (wife hasn’t appeared in spite of being served is what is said) . Wife stays silent till 2013 and then starts a case for divorce on grounds of cruelty !! In 2014 she claims that she NEVER knew of the earlier decree dated 2003 (i.e. for 11 years) !! Lower court dismisses wife’s claim. Matter reaches Orissa HC where HC says “Pay” because reconciliation is NOT possible !! Husband and his dad end by paying approx 62 lakhs !! Meanwhile the daughter is a major etc etc, still husband pays


ORISSA HIGH COURT, CUTTACK

MATA No.118 of 2014 & MATA No.125 of 2014

Appeals under Section 19 of the Family Courts Act, 1984 challenging the order dated 10.9.2014 passed by the Judge, Family Court, Bhubaneswar in C.P. No.460 of 2013 and the order dated 22.8.2003 passed by the Judge, Family Court, Cuttack in C.P. No.781 of 2002.

MATA No.118 of 2014
Madhusmita Pujari @ Mishra and another              ……      Appellants
-Versus-
Partha Sarathi Mishra                               ……    Respondent
For Appellants:      M/S. Bipin Bihari Jena, J.Bhagat, D.Pradhan and T.K.Jena
For Respondent : Mr. Rakesh Sahu

MATA No.125 of 2014
Madhusmita Pujari @ Mishra              ……          Appellant
-Versus-
Partha Sarathi Mishra                     ……      Respondent
For Appellant:      M/S. Bipin Bihari Jena, J.Bhagat, D.Pradhan and T.K.Jena
For Respondent : M/s.Rakesh Sahu, A.R.Panigrahi & Rajesh Sahu


Date of Order: 22.02.2016


P R E S E N T:
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE BISWAJIT MOHANTY

BISWAJIT MOHANTY, J.

Since both the above noted appeals were taken up analogously, this common order is being passed to dispose of both the appeals. The factual matrix of both the appeals are as follows:

2.          Madhusmita Pujari @ Mishra is appellant No.1 in Mata No.118 of 2014 and the sole appellant in MATA No.125 of 2014. Partha Sarathi Mishra is the sole respondent in both the above noted appeals. Their daughter-Anmol Mishra is appellant No.2 in MATA No.118 of 2014. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3.          A perusal of record shows that the marriage between Madhusmita Pujari @ Mishra and Partha Sarathi Mishra was solemnized on 11.07.1993. Out of the wedlock, daughter, Anmol Mishra was born on 3.6.1996. Trouble started brewing between the spouses even before the daughter was born and got aggravated after the birth of the daughter. Dispute arose between the spouses due to alleged extra marital affairs. Thereafter, the allegation is that Madhusmita Pujari @ Mishra went back to her father’s house in November, 2000 and never returned. In such background, theatre of action got shifted to Court rooms and that Partha Sarathi Mishra filed C.P. No.781 of 2002 under Sections 13 and 26 of the Hindu Marriage Act, 1955 for dissolution of marriage and for custody of their minor daughter, Anmol Mishra in the Family Court, Cuttack. Despite summons, Madhusmita Pujari @ Mishra did not appear and accordingly, on 22.8.2003, the learned Judge, Family Court, Cuttack decreed Civil Proceeding No.781 of 2002 ex parte against Madhusmita Pujari @ Mishra and dissolved their marriage by passing a decree of divorce. The learned Judge, Family Court, Cuttack further directed to give the custody of the then minor daughter, Anmol Mishra to Partha Sarathi Mishra. In 2013, Madhusmita Pujari @ Mishra filed Civil Proceeding No.460 of 2013 before the Judge, Family Court, Bhubaneswar for dissolution of marriage on the ground of cruelty and desertion. She also filed Interlocutory Application No.118 of 2013 claiming interim maintenance for herself and for her minor daughter, Anmol Mishra in Family Court, Bhubaneswar. During pendency of Civil Proceeding No.460 of 2013, Anmol Mishra became a major on 3.6.2014. According to Madhusmita Pujari @ Mishra, she came to know about order dated 22.8.2013 passed in Civil Proceeding No.781 of 2002 on 16.8.2014. However, on 10.9.2014, Civil Proceeding No.460 of 2013 was disposed of along with I.A. No.118 of 2013 by the learned Judge, Family Court, Bhubaneswar holding that the cases were not at all maintainable in the background of order dated 22.8.2003 passed in Civil Proceeding No.781 of 2002. Challenging the said order dated 10.09.2014, Madhusmita Pujari @ Mishra and Anmol Mishra filed MATA No.118 of 2014 on 14.10.2014. Thereafter, on 22.10.2014, Madhusmita Pujari @ Mishra filed MATA No.125 of 2014 challenging the order dated 22.8.2003 passed in Civil Proceeding No.781 of 2002. On 20.4.2015, Madhusmita Pujari @ Mishra, Anmol Mishra and Partha Sarathi Mishra appeared in Court along with their respective counsel. When this Court realized that the re-union was not possible, it went into the question with regard to quantum of permanent alimony. In order to give the parties a chance regarding settlement relating to permanent alimony, MATA No.118 of 2014 was directed to be taken up on 22.4.2015 along with MATA No.125 of 2014. On 22.4.2015, all the parties along with their respective counsel presented themselves before this Court and the matter was taken up in the Chambers. After a long deliberation, the parties came to an amicable settlement on following terms and conditions relating to all the disputes between them. The terms of settlement were as follows:-

  1. “That the two Federal Bank Limited Certificates issued by Cuttack
    Branch from Account No.13770300116517 dated 6.8.2011 and Account
    No.13770300116012 dated 12.7.2011, both standing in the joint names
    of Sri Parthasarathi Mishra and Anmol Mishra, wherein it is mentioned
    that either or survivor can get them encashed, the first certificate
    having maturity value of Rs.7,44,274.00 and the subsequent having
    maturity value of Rs.7,07,317.00 be handed over to Anmol Mishra who
    is entitled to get them encahsed on maturity. The said certificates
    have been handed over to Anmol Mishra in presence of the counsel for
    both sides as well as the father and she is directed to make an
    endorsement regarding receipt thereof on the order-sheet of this
    Matrimonial Appeal.
  2. That the bank account in the Federal Bank Limited opened in the
    name of Anmol Mishra, being bank Account no.125 (New No.1257) will
    continue with Anmol Mishra and the father will hand over the passbook
    of the said bank account to Anmol Mishra on 12.5.2015, when this
    matter shall come up again.
  3. That the father Parthasarathi Mishra will give a draft of
    Rs.20,00,000/- (Rupees twenty lakhs) in the name of Anmol Mishra on
    12th May, 2015.
  4. That the father will come with a draft of Rs.20,00,000/-(Rupees
    Twenth lakhs) on 3rd of July, 2015 in the name of Madhusmita Pujari @
    Mishra.
  5. That the father Parthasarathi Mishra will come with another bank
    draft of Rs.28,00,000/- (Rupees Twenty Eight lakhs) in the name of
    Madhusmita Pujari @ Mishra on 5th January, 2016.The above five terms and conditions have been accepted and agreed to
    by both the sides in presence of their respective counsel on their
    own volition without any threat, force, coercion or mis-
    representation. This is in full and final settlement. These terms and
    conditions, we repeat, are in full and final settlement of all the
    disputes of any nature between the parties.”

4.           The matter was further taken up on 12.5.2015, 3.7.2015, 10.12.2015 and finally on 5.1.2016. By 5.1.2016 the terms of settlement as delineated on 22.4.2015 have been implemented. Accordingly, this Court recorded that there remained no other dispute between the parties. In such background, nothing remains to be decided in both the appeals. However, before giving a quietus to the matter, it is directed that since the matters have ended in compromise, all the allegations and counter allegations made by the parties should be ignored and should have no effect in future, so that the future lives of the parties, particularly, that of the daughter, Anmol Mishra would in no way be affected. However, we make it clear that we have not interfered with the order dated 22.8.2003 of the learned Judge, Family Court, Cuttack dissolving the marriage between Madhusmita Pujari @ Mishra and Parthasarathi Mishra passed in C.P. No.781 of 2002. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Both the above noted appeals are accordingly disposed of.

Biswajit Mohanty, J.
Vinod Prasad, J. I agree.
Vinod Prasad, J.

High Court of Orissa, Cuttack

Dated 22nd February, 2016

bns

*****************************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.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


Many lakhs alimony and NO contact with son ! Today’s women are worse than British rulers

During the initial days of the British conquest of India we’ll heard of brutal stories where Kings had to pawn their own sons to the British in return for peace

One such instance comes to light in the life of TIPPU SULTAN the great king of Mysore

His two sons were captured by the British and kept as hostages in exchange for respite from attacks on Tippu’s kingdom

Tippu was supposed to have been heartbroken after losing his sons

In today’s flights wives often act worse then the British rulers

They take away money and the children and in some cases even insist that the surname of children be changed

Here is one such case in which the wife in addition to taking money also insists that the family name of the son be changed

This is a reported case taken from public records on the Internet and shared here for the benefit of fellow leaders

We present this case with a very heavy heart but at the same time we all need to know the stark reality that is staring at a married Indian Male !!


Punjab-Haryana High Court

_______ Singh vs _______ Arora on 15 February, 2016

FAO-52-M-2015

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Sr. No.236

FAO-52-M-2015(O&M) Decided on : 12th February, 2016

________ Singh … appellant. VERSUS

__________ Arora …. Respondent.

CORAM:

HON’BLE MR. JUSTICE RAJIVE BHALLA

HON’BLE MS. JUSTICE LISA GILL

Present: Mr. Rajeev Sharma, Advocate for Mr. J.S. Dadwal, Advocate for the appellant.

Mr. Ashwani Sharma, for the Respondent

RAJIVE BHALLA, J. (Oral)

The appellant challenges judgment and decree dated 04.12.2014 passed by the Additional District Judge, SAS Nagar (Mohali). The parties were referred to mediation where they have settled their dispute in the following terms:

‘1. That both the parties have agreed to divorce each other and agreed to accept the judgment and decree dated 04.12.2014 passed by the Court of Ld. Additional District Judge, SAS Nagar Mohali, granting divorce to the parties.

2. That _________ Arora-Husband has agreed to give Rs.13.5 lacs as permanent alimony and maintenance to his wife _______ Chugh in lieu of divorce and the same offer has been accepted by wife _______ Chugh in full and final.

3. That ________ Arora-husband has brought two demand drafts in the names and amounts as mentioned below and has given the same to the wife _______ Chu gh, which she has accepted:- a) Demand Draft of Rs.3,50,000/- in the name of wife ________ Chugh Demand Draft No. 091029 dated 11.07.2015 is of State Bank of India, Palampur Branch (Himachal Pradesh). b) Demand Draft of Rs.10,00,000/- in the name of son Bhavya Demand Draft No. 091028 dated 11.07.2015 is of State Bank of India, Palampur Branch (Himachal Pradesh).

4. That it has been further agreed that no further maintenance and arrears of maintenance etc. in future shall be claimed by _______ Chugh- wife and her son ‘Bhavya’.

5. That it has been further agreed that ______ Chugh-wife shall not lay any claim in future with regard to her son against _______ Arora-husband of any kind or in property of ________ Arora.

6. That it has been agreed between the parties that _______ Chugh-wife will withdraw the present FAO No. M-52 of 2015 and also withdraw the maintenance suit as well as complaint pending before the Women Cell Mohali. It has also been agreed that the husband ________ Arora will withdraw all the complaints before the courts and banks as well as any other litigation filed by him against his wife-______ Chugh.

7. It has been further agreed between the parties that neither party will indulge in filing any sort of complaint in future against each other or family members.

8. It has been further agreed between the parties that the husband _______ Arora will have no objection to the removal of surname ‘Arora’ after the name of his son ‘Bhavya’ and he also will have no objection in correction of the name of Grandfather of son ‘Bhavya from ‘Sham Arora’ to ‘Radhey Shyam Arora’. The husband ________ Arora will cooperate and shall hand over the necessary documents in this regard to wife-_______ Chugh.

9. It has been further agreed between the parties that the custody of their child Bhavya will remain with the wife-_______ Chugh and the husband- _______ Arora will not claim the custody of the child in future in any manner whatsoever. Further it has been agreed that the husband-________ Arora will not have any visiting rights to see his child ‘Bhavya’.

10. The parties to the dispute undertake not to institute any unwanted litigation against each other. With the execution of the present compromise, entire dispute between the parties shall stand settled and both the parties shall be free to lead their life as per their own wishes.

Counsel for the appellant states that he has instructions to withdraw the appeal but the respondent may be directed to withdraw a complaint that he has filed against the appellant in the Bank, where she is employed.

Counsel for the respondent states that the respondent shall forthwith, within a week withdraw the appeal.

In view of the settlement and the statement made by counsel for the parties, the appeal is dismissed as withdrawn by affirming judgment and decree dated 04.12.2014 passed by the Additional District Judge, SAS Nagar (Mohali).

In case the respondent does not withdraw the complaint, the appellant would be at liberty to approach this Court for further directions.

(RAJIVE BHALLA) JUDGE

(LISA GILL) JUDGE

12th February, 2016

Divorce 42 years after marriage. Wife seeks 1.5crore from 75 yr old hubby while she has crores. Bangalore HC

Divorce granted 42 years after marriage. Wife seeks 1.5crore from 75 yr old hubby while she has crores in shares and property. Classic Bangalore HC divorce case which husband WINS on grounds of cruelty and desertion by wife !!

In this sad case, a 75 year old man in his advanced age is fighting against his wife’s appeal (at HC) seeking 1.5 crores as permanent alimony. There are claims and counter claims, but it is on record that (a) wife has filed (MC) cases alleging that husband had illicit relations with his own employee and (b) she has made a suicide attempt and had to be hospitalised after consuming huge dose of sleeping tablets. Husband also alleges that she was the cause of his business failure. Wife cross-alleges husband sold his ancestral house and took away part of the proceeds, but the wife is not convincing in her cross examination replies as well, leading the Hon HC to doubt her claims of living under one roof with this husband (i.e.) thus accepting husband’s claim of desertion. Finally the Hon Bangalore HC confirms the divorce and directs her to approach lower court for maintenance

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 17TH DAY OF FEBRUARY 2016

PRESENT

      THE HON’BLE MR.JUSTICE N K PATIL
AND
      THE HON’BLE MRS.JUSTICE S SUJATHA

MFA No.10709/2011 (FC)

BETWEEN

Rupa Mahajan
W/o Satish Mahajan
Aged 57 years
Presenty Residing at
No.011, ‘B’ Block
Sterling park Apartments
Kodigehalli Main Road
Sanjeevinagar
Bangalore-560 092.                     ….Appellant
(By Sri.S.S.Ramdas, Senior Advocate for M/s. Sundara swamy & Ramdas Associates)

AND

Satish Mahajan
S/o Late D.R.Mahajan
Aged 67 years
Residing at
No.603 B St Johns Woods Apartments
80St John Cross Road
Bangalore-560 029.                …Respondent
(By Sri.J.Kanikaraj, Advocate)

This Appeal is filed under Section 19(1) of Family Courts Act, against the Judgment and Decree dated 30.06.2011 passed in M.C.No.1933/2008 on the file of 4th Additional Principal Judge Family Court, Bangalore, allowing the petition filed under Section 13(1) (ia) (ib) of Hindu Marriage Act for divorce and rejecting the prayer filed under Section 3.

This Appeal having been heard and reserved for Judgment on 05th February 2016, coming on for pronouncement of Judgment this day, S.Sujatha J., delivered the following

JUDGMENT

  1. This appeal is directed against the judgment and decree dated 30.06.2011 passed by the 4th Addl. Principal Judge, Family Court, Bangalore in M.C.No.1933/2008, allowing the petition filed by the respondent for dissolution of marriage.
  2. The facts in brief are:- that the marriage between the appellant and respondent was solemnized as per Hindu Rites on 18.01.1974 at Chennai. It transpires that after their marriage, the respondent and appellant lived at No.58, Cunningham Road, Bangalore happily for a period of 16 years upto 1990. Their marriage was consummated and the couple were blessed with twins (sons) named Gaurav and Vaibhav in the year 1980. It is stated that both the appellant and respondent jointly purchased a land situated at No.328, 5th Main, 1st Block, Koramangala in the year 1990 and after constructing a house on the said land, they shifted their residence to the newly built house in 1990 and were residing therein. When the relationship between the parties was amicable, respondent along with his brother for the purpose of running a business, floated a company in the name of M/s Garments International Pvt. Ltd. Respondent along with his brother were the directors of the said company. However, subsequently, appellant, Gaurav and Vaibhav (sons) were inducted as Directors in the years 1990, 1998 and 2000 respectively. Due to the differences that developed between the appellant and respondent, the respondent filed M.C.No.1933/2008 before the 4th Addl. Principal Judge, Family Court seeking a decree of divorce under Section 13(1) (1a) and 13(1b) and (iii) of the Hindu Marriage Act, 1955 (the ‘Act’ for short). Appellant contested the matter. After considering the evidence placed by the parties, the Family Court allowed the petition under Section 13(1)(ia) and (ib) of the Act and rejected the petition under Section 13(1)(iii) of the Act. Being aggrieved by the said judgment and decree passed by the Family Court, the appellant is before this Court.
  3. Heard Learned Senior Counsel Sri. Ramdas for appellant as well as Sri.Kanikraj for respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4. The learned counsel for appearing for the appellant would contend that the Family Court failed to consider the evidence on record in a right perspective. Appellant herein had placed Exhibits R.1 to R.17 but the Family Court, ignoring the said documentary evidence has wrongly held that no appropriate evidence was placed by the appellant herein to discard the evidence of the respondent. The Family Court has not appreciated the true nature of cruelty and desertion alleged by the respondent to claim the decree of divorce under Section 13(1)(ia) and (ib) of the Act. Though the ground of mental disorder is held to be not proved, granting the decree of divorce to a marriage which subsisted for more than 33 years is totally unjustifiable and contrary to the well established principles of law enunciated by the Apex Court.
  5. It is submitted that the petition filed by the appellant seeking decree of divorce against the respondent in M.C.No.1325/1999, was only with an intention to draw the attention of the respondent towards her, in view of the assurances made by the respondent to take good care of her, the petition was unconditionally withdrawn in the year 2000 and pursuant to which both the parties lived together as husband and wife. The subsequent events which transpired pursuant to withdrawal of the petition MC.No.1325/1999 having been completely overlooked by the Family Court, proceeded to hold that the act of the appellant in filing M.C.No.1325/1999 against the respondent seeking decree of divorce, amounted to cruelty.
  6. It is further submitted that though initially, the company M/s Garments International Pvt. Ltd. was floated by the respondent for the purpose of running a business in exporting garments, the appellant and children were inducted as directors in the company who held their proportionate share in the company. The respondent without any reason borrowed huge amounts from banks, financial institutions and also from private parties which resulted in financial instability affecting the entire family. In order to have a hold in the financial transactions of the company, the appellant along with her children was constrained to interfere with the company’s financial affairs. Such action of the appellants was indeed in the interest of the family and to safeguard and protect the company’s interest which cannot be termed as mental cruelty against the respondent. The trial Court overlooking the rationale behind such acts, wrongly held such acts of the appellant has caused mental agony to the respondent.
  7. It is further submitted that the submission of the respondent that the parties lived separately since November 1999 is totally against the documents placed on record by the appellant. The appellant having led a happy marital life with the respondent for more than 33 years, had no intention to desert the respondent. Exhibits R1 to R17 placed on record proves that the appellant resided with the respondent. The respondent has not taken any interest in the family. The appellant alone out of her savings performed the marriage of their sons and the respondent had no courtesy even to participate in the marriage ceremonial functions. It is in fact, the respondent who has deserted the appellant and the family and not the appellant. The matrimonial house at Koramangala, Bangalore which was owned jointly by the parties was sold in the year 2007 for a consideration of Rs.3,52,00,000/- out of which only a meager sum of Rs.50,00,000/- was paid to the appellant and Rs.11,00,000/- to each of their children. No cogent evidence is placed on record by the respondent to establish the factum of desertion as claimed. The allegations made against the appellant that she is suffering from mental disorder is an act of the respondent to bring the institution of marriage to an end and to ruin the entire life of the appellant. Such a false allegation of mental disorder made by the respondent ipso facto proves the cruelty made by the husband towards the wife. No appeal is filed by the respondent on the dismissal of the petition under this ground. No desertion as required under the Act is proved by the respondent. In such circumstances, the Family Court allowing the petition filed by the respondent and granting a decree of divorce is totally unsustainable and seeks to set- aside the said judgment and decree of the Family Court.
  8. Learned counsel appearing for the appellant/wife has filed an application I.A.I/2015 seeking for maintenance in a sum of Rs.60,000/- per month from January 2007 till date and for future periods during the appellant’s life time or in the alternative to direct the respondent to pay the appellant permanent alimony in a sum of Rs.1.50 crores in the interest of justice. Placing arguments on this application filed under Section 25 of the Act, learned counsel would submit that during 2005 the mother-in-law of the appellant Smt.Leela Mahajan gifted her late husband’s house bearing No,58, Cunningham Road to the respondent. Immediately after receiving the gift the respondent negotiated to sell the said house and sold for about 2.25 crores. Thereafter, respondent had formed a private trust by name Satish Mahajan Family Welfare Trust, purchased an apartment in Prestige St.John’s wood Koramangala. A sum of Rs.60,00,000/- was paid for the purchase of the said apartment from out of the said sale proceeds of Cunningham Cross Road house. The balance of nearly Rs.1.65 crores is unaccounted and untraceable. The respondent though floated Satish Mahajan Family Welfare Trust for the benefit of the sons of the parties, till date no benefit has been extended despite the trust having money and securities in multiple crores, in ING Vysya Bank now known as Kotak Mahendra Bank, Koramangala, Bangalore. The respondent being a prudent businessman hailing from a business family, being in business for nearly 45 years and being a promoter/partner in Mahajan Borewell Company – a renowned borewell drilling Company in Karnataka, cannot now plead that he has married the second wife who is a doctor at St.John’s Hospital at Koramangala and is living on her money. The respondent has failed to discharge the responsibilities of a husband and as a father to his children. He has also not participated in any manner in the marriages of their sons Vaibhav’s in 2007 and Gaurav’s in 2013. The respondent has the benefit of nearly Rs.4.45crores being the balance from the sale of two houses, right form 2005 to 2007, till date. The respondent has earned interest and income from the said money for all these years.
  9. It is further submitted that the appellant is completely dependent on her dividend income accruing from the shares and securities amounting to Rs.12.00 lakhs as evident from the income tax returns and she has no other source of income. It is also submitted that with all the hope of getting re- united with the respondent, no maintenance application was filed during the petition proceedings. It is only after realizing that the respondent has contracted second marriage the application is filed in appeal proceedings. Accordingly, seeks to allow the application and to direct the respondent to make the payment towards the maintenance as claimed.
  10. In support of his contentions, learned counsel has placed reliance on the following Judgments: (1) Naveen Kohli vs. Neelu Kohli ((2006) 4 SCC 558) (2) A.Jayachandra vs Aneel Kaur ((2005) 2 SCC (3) Savitri Pandey vs.Prem Chandra Pandey (AIR 2002 SC 591) (4) Samar Ghosh vs. Jaya Ghosh ((2007) 4 SCC 511)
  11. Learned counsel appearing for the respondent justifies the judgment and decree passed by the Family Court and contends that the appellant filing M.C.No.1325/1999, seeking for divorce against the respondent making false allegations that the respondent had an affair with Smt.Geetha Srinivasan, an employee of M/s Garments International Company, had lowered the status of the respondent in the society besides causing mental trauma and agony. Such wild allegations made against the respondent were baseless.
  12. Further, the appellant interfering with the financial matters of the company, fabricating a resolution and freezing the bank accounts has caused financial instability to the business as well as to the family. The respondent was mainly engaged in the export business, due to the inconvenience caused by the appellant in sabotaging the business, in order to honour the agreements/contracts entered into between the foreign buyers within the time frame, the consignments were air-lifted. Such an action has caused huge loss in his business. The entire family properties came to be sold to make the payment of loan raised towards the business commitments. The indifferent attitude of the appellant, in ruining the respondent mentally and financially amounts to cruelty which has been rightly considered by the Family Court. The appellant has left the matrimonial home in November 1999. She returned back in the year 2000 and stayed with the respondent only for 2-3 days. At that time, she consumed 235 sleeping tablets and attempted to commit suicide in the matrimonial home. Noticing the same, the respondent rushed her to St.John’s Medical Hospital, Bangalore and provided her the medical treatment. Immediately after discharge from the hospital, she left the matrimonial home and started residing at Jalandhar at her parental house. The appellant had obtained a separate phone number 9888854456 at Jalandhar which proves that she had deserted the respondent from November 1999. The desertion is further proved by the action of the appellant purchasing the flat in the year 2002 at Bangalore whereby she had the intention to stay away from the respondent separately. The dividend warrants showing the address of the appellant with the Koramangala address would not establish the factum of residence of the appellant with the respondent. It is known fact that unless the change of address is made with the companies holding the shares, the dividend vouchers would be sent to the address available on the company’s register. In fact, the appellant was collecting the dividend warrants from one of their son’s or through servants. Since November 1999, the respondent and petitioner have not lived together under one roof as husband and wife. It is submitted that after the grant of decree of divorce by the Family Court on 30.6.2011, the respondent contracted the second marriage on 10.11.2011 and that the said marriage is registered on 13.02.2012, he has been living with his wife ever since then. On this ground alone, the judgment and decree of the Family Court is not liable to be disturbed.
  13. The respondent himself being advanced in age, presently aged about 75 years, has no avocation nor any source of income and is fully dependent on his wife who is a qualified medical practitioner, having source of income from her practice. During the subsistence of the marriage between the appellant and the respondent, the site at Koramangala was purchased in the joint name of the appellant and respondent out of his own funds, there being no financial participation by the respondent in the purchase of construction. Due to the action of the appellant of forging and fabricating a board resolution, removing the respondent as Managing Director of the Company and withdrawing all banking powers of the Company, the Company which was financially sound and flourishing in the Garment export trade, suddenly suffered losses as export shipment could not be made within the stipulated time resulting in huge forfeiture for non performance by the export council and loss of credibility in the market with the suppliers, bankers and workers, over all image of the company was totally ruined. In order to set-right the things, the respondent was constrained to move the City Civil Court and succeeded in bringing restraining orders and got the Board resolution stayed and tried to salvage the Company’s business, despite which the Company could not survive. Out of the sale proceeds of the house at Koramangala, Rs.50.00 lakh was paid to the appellant and Rs.11.00 lakh each to the children and from the balance amount, bank liability was cleared, no amount was left in the hands of the respondent. After discharging the liabilities, the respondent was himself reduced to penury with no amount left with him nor having independent source of income. Even regarding the gift made by the respondent’s mother with respect to a house on Cunningham Road, Bangalore, the said property being attached for auction and proclamation notices were issued on various bank loans availed by Mr.Ashok Mahajan with their mother as a co-obligant, in order to prevent the creditors from auctioning the same, the said property was sold to discharge the loans who had funded payment to the debtor banks of Mahajan Borewell Company. From the remaining amount, respondent purchased a Two BHK Flat and is residing there with his mother.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  14. The appellant owns the flat valued about Rs.70.00 lakhs apart from holding shares valued about Rs.1.18 crores and liquid cash in the form of deposits. As such, there is no dearth of money for the appellant and she is living in luxury. No such plea being made by the appellant before the trial Court for maintenance, the application filed in the appeal proceedings is not maintainable. Accordingly, it is contended that the judgment and decree passed by the Family Court is after considering the material evidence available on record. The respondent has proved the ingredients of Section 13(1)(i-a) and 13(1)(i-b) of the Act. Appreciating the same, the Family Court has granted a decree of divorce which does not call for any interference at this stage. Accordingly, respondent seeks to dismiss the appeal and the application filed by the wife for maintenance/permanent alimony filed under Section 25 of the Act.
  15. We have carefully considered the rival submissions made by the parties and perused the material on record. The respondent has filed the petition before the Family Court under Section 13(1)(i-a), 13(1)(i-b) and 13(1)(iii) of the Act seeking a decree of divorce, dissolving the marriage solemnized between the parties on 18.01.1974. Family Court though dismissed the petition on the ground of mental disorder i.e., under Section 13(1)(iii) of the Act, allowed the petition under Sections 13(1)(i-a) and 13(1)(i-b) of the Act. The Family Court after considering the pleadings of the parties has framed five issues. The respondent himself was examined as PW1 and marked documents Exs.P.1 to P.8. Appellant is examined as RW1 and marked exhibits R.1 to R.17. The main grounds urged by the respondent to prove the cruelty are: (1) Filing of M.C.No.1331/1999 by the appellant seeking decree of divorce against the respondent and making false allegations against the respondent of having an affair with Smt.Geetha Srinivasan – an employee of the Company. (2) Fabricating the resolution of the Company and freezing the bank accounts by which the respondent was constrained to obtain an interim injunction against the appellant before the city Civil Court which affected the business of the respondent in its entirety, causing financial loss and damage to the reputation of the company as well as to the respondent. In the result, the respondent was finally forced to shut down the business.
  16. We have examined the evidence available on record. It is seen from the records, that on the allegation that the respondent had some relationship with an employee of the Company i.e., Smt. Geetha Srinivasan, M.C. petition was filed by the respondent seeking for decree of divorce. No-doubt the same was withdrawn by the petitioner on 27.03.2000, such an act of the respondent, filing of the petition for divorce indicates the intention of the appellant to dissolve the marriage. Indeed it is contended by the appellant that subsequent to the withdrawal of the petition, both the parties lived together as husband and wife under one roof which is categorically denied by the respondent. Exs.R.1 to R.16 are relating to the year 2000 to 2004. Ex.R.17 is the copy of the sale deed dated 18.01.2007. The address of the parties shown in the said sale deed is 720,2nd “B” Main, 2nd B” Cross, 8th Block, Koramangala, Bangalore. In the cross examination of R.W.1 – the witness has deposed that she does not remember, the number of rooms and floors of the said property and it is admitted that the said house described in Ex.R.17 is the rented house and she does not remember when that house was taken for rent and how many years she stayed with her husband in the said house. The said evidence available on record indicates that the respondent is not having the correct picture of the house in which she claims to have resided with her husband – appellant in the year 2007. It is further deposed by RW.1 that she cannot remember the address given in the passport as well as Driving Licence , whether it relates to the Flat at Kodigehalli. It is also deposed that she does not remember the address shown in the passbook relating to her Account in State Bank of Mysore, Sahakarnagar. Hence, no credence would be given to this document – Ex.R.17 to accept the contention of the respondent that the parties lived together till 2007. As already discussed Exs.R.1 to R.7 are the dividend warrants of different Companies. These documents do not prove that the parties were residing together as husband and wife after November 1999. Hence, desertion of statutory period of 2 years before filing of the petition as contemplated under Section 13(1)(i-b) of the Act is proved by the appellant. It is strongly contended by the learned counsel appearing for the appellant that this material evidence which discloses that the appellant was residing with her husband at the matrimonial house was totally ignored by the Family Court. Generally, dividends are sent to the address of the share holders, as maintained in the Register of the company, unless the change of address is incorporated in the Register. It is the case of the respondent that Exhibits P-4 to 8, unopened covers of dividends remained with him which indicates that the appellant was not residing with him after November 1999. It may be true that after the withdrawal of the M.C. petition filed by the appellant, there was a long gap in filing the petition by the husband alleging cruelty, desertion and mental disorder. However, it cannot be ruled out that the respondent was subjected to cruelty in view of the alleged allegations of having relationship with an employee of the company and the M.C. petition filed on that ground. Interference of the appellant in the financial affairs of the Company by passing a fabricated resolution and freezing the bank accounts may be even to safeguard the interest of the family and the Company as narrated by the appellant but however, the said interference has caused damage to the business and the reputation of the Company resulting in financial loss to the Company and causing mental agony to the respondent which cannot be brushed aside and no cogent evidence is led by the appellant to discard the evidence of the respondent in this regard. The impact of these two incidents are suffice to establish the cruelty.
  17. The submission of the appellant that the husband has not participated even in the marriage functions of their children, in any manner would indicate the grave and serious nature of strained relationship between the appellant and the respondent. This would be indicative of the fact that now the parties have no emotions, sentiments or feelings for each other. This is not an ordinary case of wear and tear of married life but a clear case of irretrievable break down of marriage. The word ‘cruelty’ though not defined under the Act is well interpreted by the Courts from time to time. It is often cautioned by the Apex Court that no Court should even attempt to give a comprehensive definition of ‘mental cruelty’ in which all kinds of cases of ‘mental cruelty’ can be covered.
  18. The Apex Court in the case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 has held Thus:
    • ” To constitute cruelty, the conduct complained of should be “gave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. Conduct has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.”
  19. The Apex Court in A. Jayachandra (supra) has held thus:
    • “10. The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
    • 11. The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.
    • 12. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Sobh Rani v. Madhukar Reddi, AIR 1988 SC 121).
    • 13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
  20. In the case of Naveen Kohli vs. Neelu Kholi (supra) the Apex Court observed as under: 
    • “74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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.
    • 75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.  76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.
    • 77.   Some     jurists  have     also expressed     their   apprehension     for  introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.
    • 78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising  therefrom.
    • 79. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.”
  21. Applying the principles of law enunciated by the Apex Court as discussed above, we have analyzed the case on hand in the backdrop of the facts of cruelty alleged by the respondent and denied by the appellant. It is well settled that the concept of ‘cruelty’ differs from person to person depending on various factors like geographical and cultural background, education, customs, religion, traditions, values etc.
  22. It is true that ‘cruelty’ said to have been experienced by a person cannot be viewed in the same perspective at all times. It has also come on record that the appellant attempted to commit suicide by consuming 235 sleeping tablets in the matrimonial home in the year 2000 and was provided with medical treatment at St. John’s Hospital, Bengaluru, by the respondent. These are all admitted facts which creates apprehension of leading a cordial martial life together. In our opinion, it is not significant to save the marriage when the relationship between the parties is strained, rupturing matrimonial bond beyond repair as the respondent has contracted second marriage. Even on the ground of desertion, it is well established principle that mere desertion would not be a ground for divorce unless two important ingredients, namely, [a] factum of desertion, [b] animus deserendi – intention to desert the spouse; to bring an end to cohabitation or marital life are proved.
  23. The Apex Court in the case of Savitri Pandey [supra] has held thus:
    • “7A. “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.”
  24. It is the specific contention of the appellant that till the year 2007, the parties resided together and as such statutory period of desertion is not proved. As discussed earlier, it is not so. Even assuming for a moment, if we accept the arguments of the learned Counsel for the appellant that no desertion is proved, no purpose would be served in keeping this marriage alive which has already become a dead wood, in view of the subsequent development, the respondent having contracted the second marriage on 10.11.2011 and the same being registered on 13.02.2012 before the jurisdictional Sub-Registrar.
  25. As regards the application filed by the appellant seeking maintenance/permanent alimony, both the parties have made allegations and counter allegations against each other. Our best efforts made to see that the matter gets amicably settled between the parties, has not yielded any positive results. Contracting a second marriage, after waiting period, would not absolve the husband from paying the permanent alimony and maintenance to the wife in terms of Section 25 of the Act.
  26. Section 25[1] of the Act contemplates that any court exercising jurisdiction under the Act may at the time of passing of any decree or at any time subsequent to the application made to it for the purpose by either the wife or the husband order for maintenance or support of either of the spouse depending on the income and other property of the applicant and the respondent and other circumstances of the case.
  27. Admittedly, the appellant herein has filed application under Section 25 of the Act in this appeal proceedings before this Court. The appellant is alleging that the respondent has not taken any interest in the family and not discharged his responsibilities as dutiful husband. It is averred that the respondent owns the properties and huge amount of liquid cash besides the fixed deposits in various banks whereas the respondent has filed affidavit denying the same and he contends that he has no source of income and that at this advanced age, he is depending on the income of his second wife. This complex issue of facts requires to be decided on the established evidence, regarding status and income of the parties. In the appeal proceedings, the entitlement and quantum of maintenance cannot be decided unless any cogent evidence is available on record. Hence, we are not inclined to adjudicate on the application IA No.1/2015 filed by the appellant seeking for maintenance/permanent alimony.
  28. For the foregoing reasons, the appeal and IA No.1/2015 stands dismissed. Judgment and decree passed by the Family Court in M.C.No.1933/2008 dated 30.06.2011 is confirmed.
  29. It is made clear that dismissing of this appeal or application for maintenance/permanent alimony shall not come in the way of the appellant to move the appropriate application before the jurisdictional Court, if advised.

Sd/-

JUDGE Sd/-

JUDGE Brn, AN/-

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Wife says ” I want to marry an old boyfriend”, husband wins divorce 28 years later !

Husband goes to USA in search of greener pastures. Wife sends him a nasty latter saying that she wants divorce and wants to get married to her ex boyfriend !! Not only that she NEVER makes any attempt to live with him the next five years. At the court she claims that the letter was a bluff to force him to come back !! The HC grants grants the husband divorce …ableit 28 years later


Wife’s letter talking of divorce, remarriage an act of cruelty: HC

Abhinav Garg | TNN | Feb 22, 2016, 03.15 AM IST

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NEW DELHI: A single letter can constitute an act of cruelty, the Delhi high court has said, granting divorce to a man living separately from his estranged wife for the past 28 years.

The missive in question: a declaration by his angry wife in 1990 when he was stationed abroad that she wanted to divorce him and that she had found an old friend who wanted to marry her and accept her with their young daughter.

It was only in 1995, when the case came up in trial court, that she admitted the letter didn’t contain a grain of truth and was only meant to jolt the husband out of his complacency. But Justice Najmi Waziri of the high court pointed out the mental agony caused to the husband due to “this sole act of cruelty that continued for a period of 4-5 years”.

Upholding the decision of the trial court to dissolve the marriage on ground of cruelty, Justice Waziri noted, “For a husband living away from his wife since 1987, to have received a letter from her intimating him about her unequivocal decision to dissolve the marriage and marry another man would have been a pain as grievous as any to endure. Such an element of rejection, coupled with brunt of emotional infidelity by the wife, can break the spirit of the husband to continue marital ties.”

Challenging the decision in high court, the wife argued that the letter was a “one-off, stray incident and could not be a ground for divorce”. She said it was an act of despair, the letter was written in sheer frustration since she had been waiting for many years to live with her husband again, abroad or back home. There was no friend, no prospect of marriage; in fact, she had made up a fictional name just to “shake up” her husband. Besides, she argued, there was not a single act of violence on her part for the charge of cruelty to pass muster.

Appearing for the husband, advocate Manjit Singh Ahluwalia countered her argument, saying she did think of divorce as she drew up an affidavit to finalise her legal plan. The high court highlighted that the letter was written in 1990 while the divorce was granted five years later but during this period she never tried to explain to her husband why she had written the latter.

The high court said the husband would have suffered acute mental agony by the letter “that the wife had found someone to replace him as her husband”. It took into account the stand of the wife that the letter was a mere threat but said its import “could only evoke pain, distress, rejection and self-doubt in any reasonable husband” and termed it as a “telling testimony of cruelty”.

 

source

times of India