Category Archives: False 498a is cruelty

Filing #False498a on husband is #Cruelty. #Divorce affirmed. #MadrasHC

/////a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498A I.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce./////
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Madras High Court
Author: M Chockalingam
Bench: N Balasubramanian, M Chockalingam

JUDGMENT M. Chockalingam, J.

1. This appeal has arisen from the order of the I Additional Family Court, Chennai, granting divorce in favour of the respondent husband under Sec. 13(1)(1a) of the Hindu Marriage Act.

2. The respondent husband sought a decree of divorce before the lower Court alleging that the marriage between himself and the appellant herein took place on 5.9.1991; that they have been living happily for a short while; that thereafter, she created problem and went over from the matrimonial house to her parents’ house; that she lodged a false complaint against him, on the basis of which a case was registered by the police for dowry harassment; that he was arrested and later, let on bail; that the criminal proceedings also went on, and thus, all along, he has been harassed by her; that because of that, he had mental cruelty, and hence, it was a fit case for granting the relief of divorce.

3. The O.P. was contested by the appellant wife stating that it is true that there was a marriage between the parties, but, she was driven away; that there was a child born; that he has not even cared to maintain her or her child; that the allegation that there was mental cruelty caused by the wife against the husband, is utterly false; that he having failed to maintain his wife and child, has come with this false case; that within a short time from the time of marriage, namely a week, there was a dowry harassment by the husband and his sister; that a complaint was lodged by her father in that regard; that pursuant to the same, a case came to be registered under Sec. 498A I.P.C., and criminal proceedings went on; that he was also found guilty in the said case by the trial Court; that the allegation now made by him is an invention; that in order to wriggle out of the marriage tie, he has filed this false case, and hence, the relief was to be denied. https://twitter.com/ATMwithDick/status/1021441313613459456

4. The trial Court recorded the evidence. On the appraisal of the entire evidence, the Court below has found that it was a fit case for divorce and accordingly, granted the relief, what is being challenged in this C.M.A.

5. The learned Counsel appearing for the appellant wife, would submit that in the criminal case, both the lower Courts have found that there was a dowry harassment; that though the judgments of the lower Courts were set aside by this Court, there was sufficient evidence let in to substantiate the dowry harassment, and apart from that, having harassed his wife by demanding dowry, he has come forward with the false case for divorce; that he has not even cared to maintain the wife and child; and that it is pertinent to note that the wife has also filed a O.P. for restitution of conjugal rights, which shows the intention of the appellant to live with him. Added further the learned Counsel that the husband has not produced any iota of evidence to show that there was any cruelty made against him; that the petition should have been dismissed by the lower Court, and hence, the order of the lower Court has got to be set aside.

6. After careful consideration of the submission made by the learned Counsel for the appellant and on scrutiny of the available materials, this Court is of the considered opinion that it is not a fit case warranting for admission or for notice to the respondent. https://twitter.com/ATMwithDick/status/1021441313613459456

7. Admittedly, the appellant married the respondent on 5.9.1991, and out of the said wedlock, there was a male born. It is also not in dispute that she lived with him only for a short time. The only contention put forth by the appellant’s side, is that she was driven away from her matrimonial house, and thus, there was a necessity to live with her parents. On the contrary, the respondent husband came with the case of divorce stating that there was mental cruelty, exerted by her by lodging a false complaint under Sec. 498A I.P.C.; that a case came to be registered, and he was also arrested in that regard; that the same would constitute a cruelty, and hence, divorce has to be given. It is an admitted position that the appellant herein lodged a complaint against her husband, and criminal proceedings were initiated; that the said complaint was taken on file by the learned Chief Metropolitan Magistrate, Chennai, in C.C.No.11007 of 1992, and the trial went on. It is pertinent to point out that after the initiation of the criminal proceedings, the respondent herein was arrested, and subsequently, he was let on bail. Though the case ended in conviction, he took it on appeal in C.A.No.91 of 1998, which was taken up by the Sessions Court, Madras, which also confirmed the conviction and sentence imposed on him. In such circumstances, the husband took it on revision before this Court in Crl.R.C.No.941 of 2000. This Court had an occasion to consider the rival submissions made and to scrutinise the materials. This Court allowed the revision case and acquitted the respondent husband. At this juncture, it has to be pointed out that on the complaint given by the appellant wife against her husband for dowry harassment, a case came to be registered by the police, and he was arrested and let on bail. He faced the trial before the Chief Metropolitan Magistrate’s Court, Chennai in a Calendar Case, and he was convicted and sentenced. That apart, the appeal in C.A.91/98 preferred by him, has also met the same fate at the hands of the Sessions Court. Finally, he was acquitted by this Court.

8. It would be more appropriate and advantageous to reproduce the order of this Court in Crl.R.C.941 of 2000 as follows: “The facts narrated above indicate that the allegations in the complaint to P.W.8 on 26.5.92 should only be considered as an after thought and that the said complaint was given by P.W.1 only to harass the petitioners to subjugate the first petitioner to her wish to stay at Madras. I am unable to accept the prosecution version that the petitioners, joining with the other accused, made a demand for dowry.” Thus, from the wordings found in the judgment of this Court in the revision, it would be clear that it was a false complaint.

9. The case of the appellant was that there was no cruelty exerted, cannot be accepted or countenanced for the simple reason that a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498AI.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce.

10. The learned Counsel for the appellant would submit that the respondent husband has not even made any arrangement for the maintenance of the appellant wife and the minor child also. In such circumstances, while confirming the order of the lower Court, it is made clear that the observations made herein, will not in any way impede the appellant to take necessary proceedings in respect of maintenance for herself and for the child. https://twitter.com/ATMwithDick/status/1021441313613459456

11. With the above observation, this civil miscellaneous appeal is dismissed. No costs. Consequently, connected C.M.Ps. are also dismissed.

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

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

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

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

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

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IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction

Present: The Hon’ble Mr. Justice Bhaskar Bhattacharya
And
The Hon’ble Mr. Justice Rudrendra Nath Banerjee

F. A. No. 191 of 2005

Sri Debabrata Chakraborty
Versus
Smt. Rina Chakraborty

For the Husband-Appellant:                Mr. Sambhunath Roy,
Mr. M.M. Bhattacharya,
Ms. Sarmistha Roychowdhury,
Mr. Surojit Roychowdhury.

For the Wife-Respondent:                  Mr. Ajoy Debnath.

Heard on: 04.12.2008.
Judgment on: 24th December, 2008.

Bhaskar Bhattacharya, J.:-

This first appeal is at the instance of a husband in a suit for restitution of conjugal right and in the alternative, for divorce on the ground of cruelty and is directed against the judgment and decree dated 9th June, 2005 passed by the learned Additional District Judge, Third Court, Alipore, in Matrimonial Suit No.34 of 1997, thereby granting a decree for restitution of conjugal rights.

Being dissatisfied, the husband has come up with the present appeal thereby praying for a decree of divorce.

The appellant before us filed in the Court of District Judge, South 24- Parganas, a suit being Matrimonial Suit No.34 of 1997, under Section 22 and/or alternatively under Section 27(1) (d) of the Special Marriage Act, 1954 for a decree for restitution of conjugal rights with further prayer that in the event the wife-respondent was found to oppose the prayer for restitution of conjugal rights, a decree for divorce should be passed on the ground of cruelty. The said suit was subsequently transferred to the Third Court of Additional District Judge, Alipore, and was renumbered as Matrimonial Suit No.665 of 1997.

The case made out by the appellant in the aforesaid suit may be summed up thus:

a) The parties were married on 10th February, 1981 under Special Marriage Act and in the wedlock, a male child was born on 15th June, 1990.

b) The appellant is a government servant and working as a Stenographer Grade-I and is attached to the Directorate of Rationing, Food & Supplies Department, Government of West Bengal. The wife-respondent is also a steno-typist and at the time of presentation of the Matrimonial Suit, had been working in the Calcutta Municipal Corporation in its Head office and was attached to the Personnel Department.

c) The appellant, in order to live and lead a happy matrimonial life, built a house with his own money by taking loan from the Government of West Bengal sometime in the year 1992, the address of which is described in the cause-title of the application. The respondent, although was an earning member of the family of the appellant, never contributed a single farthing in the family except paying salary of the two part-time maids. She never contributed a single copper towards the construction of the building. She had her bank accounts but never kept the pass-books in the matrimonial home. The respondent had shown a little interest in the matter of upbringing the child in a decent manner. At least thrice in a week, she used to go to her mother’s house at Sobha Bazar without making arrangement for the appellant’s basic and minimum requirement of food, cooking and tiffin etc. and the appellant had to arrange those of his own and there were occasions, when the husband had to go to his office without food and took lunch in a hotel in his office-locality.

d) The respondent is a peculiar type of woman and used to return to the matrimonial home from her office always at about 9/9.30 P.M. and if the appellant enquired of the reasons for coming so late, the respondent used to shout at the top of her voice and in the process, the appellant was put to embarrassment and was lowered in the estimation of the neighbours.

e) On or about June 20, 1996 the respondent went to Thakurpukur Police Station and gave a statement that the appellant died early in the morning by taking overdose of sleeping pill. The police rushed to investigate the matter and were deceived and they left the place after rebuking the respondent.

f) The respondent was a nagging lady and persuaded the appellant to transfer the house property in her favour and the appellant, to pacify her illegal demand, tried to explain that since he had taken loan to construct the building, he would not be in a position to make any conveyance in her favour as the property remained mortgaged with his employer. The respondent not being a lady of good understanding or amenable to reasons, became furious over the matter and filed a complaint under Section 498A of the Indian Penal Code and also started other criminal cases against the appellant.

g) For the initiation of the proceeding under Section 498A of the Indian Penal Code, the appellant suffered tremendous mental agony, worries and anxieties, particularly, due to the fact that the appellant was a government servant. However, the appellant was fortunately enlarged on bail. Simultaneously with the filing of the charge-sheet, the appellant in that behalf had also to move this High Court and in the process spoiled much of his time and energy and the financial involvement in that regard was also to a huge extent.

h) The respondent also filed case under Section 94 of the Criminal Procedure Code and with the help of search warrant, she took away everything from the house of the appellant including the articles belonging to the appellant. The resultant effect of the said incident was that the appellant had no utensils to cook. The respondent was so rude and vindictive that she took all the bedsheets, pillows etc. and the appellant had to sleep on the floor for quite a few days. Subsequently, the appellant on production of vouchers could recover 3/4 items out of the seized articles.

i) The appellant not only bore all the educational expenses of the child but also paid the expenses for the chartered car and that of crèche and provided tiffin and other snacks when the occasion permitted. The respondent created all sorts of problem in school and crèche while the appellant went there to visit the child. She even issued letter to the school, crèche and the police station to stall such visit.

j) There was no justification on the part of the respondent to withdraw herself from the society of the appellant.

k) The respondent poured venom into the ears of the son and whatever tiffin, food, snacks, etc. were offered by the appellant, she cautioned the son that he should not consume those. The respondent created problem when the appellant went to visit the crèche to take information about the son. She started shouting and hearing her shout, the local people assembled there, although, they all showed sympathy to the son and the appellant. The respondent had also the habit of writing letters to the headmistress of the school asking her not to allow the appellant to talk and visit the child after school is over or at tiffin hours.

l) In the event the respondent resisted the relief of restitution of conjugal right, the appellant should be entitled to get a decree of divorce on the ground of cruelty mentioned in the application.

The suit was contested by the respondent by filing written statement thereby denying the material allegations made in the plaint and the specific case made out by the respondent in her written statement may be summarized thus:

a) The appellant never wanted to live and lead a happy matrimonial life but he wanted to keep the respondent as a maidservant of the house and used to constantly beat her. She was ultimately driven out from the matrimonial home.

b) The appellant has venereal diseases and used to mix with different women and even did not spare a maidservant. The respondent was driven out of the matrimonial home just for creation of obstruction in the adulterous relation of the appellant with a maidservant in the presence of the child which the respondent vehemently opposed. The respondent did not permit such type of adulterous relation within the knowledge of her only son.

c) The appellant used to reside in a colony-house and had taken huge sum of money from the mother of the respondent. Even the first matrimonial home was provided in a rented house for which the entire advance money and all other expenses had been borne out by the mother of the respondent. The respondent provided huge sum of money from her mother for building the house and she was compelled to pay her entire salary in the hand of the appellant.

d) The appellant used to snatch the entire salary from the respondent and in consequence thereof, she used to live like beggar and last of all, at the time of being driven out from the matrimonial house, she was penniless and faced immense trouble. If the cost of construction of the building was assessed by an Engineer, from such assessment, the real expenses of the construction of the house would come out and from the said assessment, it would be clear whether the same was built up out of loan amount or whether there was any contribution by the respondent.

e) The appellant had different sources of money and had got ability to make and create money from his office and acquired huge sum of illegal amount which was utilised to meet the cost of his bad habits. The appellant made arrangement for the respondent to leave her matrimonial house every week so that the appellant could take the chance of bringing women during her absence.

f) It was absolutely false that the respondent used to come back at about 9/9.30 P.M. or that she ever raised her voice at the top.

g) After being tortured and injured, the respondent was compelled to complain to the police station, as a result, the police started a case under Section 498A of the Indian Penal Code. The appellant on several occasions attempted to murder the respondent by a chopper (Bonti). The appellant is in the habit of mixing with number of women and most of the days, he used to return at the late night and when the respondent asked for explanation, she was seriously beaten.

h) The appellant was not satisfied with the company of his wife but always intended to attach himself with other women. He had illegal relation with a schoolmistress, maidservants and had contacted various venereal diseases. The respondent would file an application before the learned Trial Court to check up the appellant whether he had been affected by any venereal disease.

At the time of hearing of the suit, the appellant alone gave evidence while the respondent also was the sole witness opposing the application.

The learned Trial Judge by the judgment and decree impugned herein gave a decree for restitution of conjugal rights on the ground that the wife was willing to go back. The learned Trial Judge, however, did not consider the question of cruelty, as according to him, the main relief having been granted, no question of giving alternative relief arose. The learned Trial Judge pointed out that although various allegations of cruelty were made, the application for divorce was not amended to include those facts as ground of divorce.

Being dissatisfied the husband has come up with the present first appeal. Mr. Roy, the learned advocate appearing on behalf of the appellant, vehemently contended before us that the learned Trial Judge refused to exercise jurisdiction vested in him by law by not considering the question of grant of relief of divorce on the ground of cruelty. Mr. Roy submitted that his client prayed for restitution of conjugal rights only to give a chance to the wife with specific averment that if such prayer was opposed by the respondent, he would pray for divorce. Mr. Roy submits that in fact, his client, in evidence specifically prayed for the relief of divorce as the wife did not accept the suggestion of restitution of conjugal right as would appear from the fact that the reconciliation failed.

Mr. Roy submits that although the learned Trial Judge has not considered the question of cruelty, this Court should on the basis of evidence on record consider the question whether the activities on the part of the respondent amounted to cruelty.

Mr. Roy next submits that the respondent in her written statement having made specific allegations against the husband imputing his moral character and has even made allegations that his client was suffering from venereal diseases, but having failed to substantiate such allegations by leading any evidence, the Court should on such ground alone pass a decree for divorce on the ground of cruelty. Mr. Roy submits that unfounded allegations involving moral character made in the written statement enables the Court to pass a decree for divorce on the ground of cruelty. He, therefore, prays for decree of divorce instead of that of restitution of conjugal rights granted by the learned Trial Court.

Mr. Debnath, the learned advocate appearing on behalf of the respondent, has opposed the aforesaid contentions of Mr. Roy and has contended that the present appeal is not maintainable in view of the fact that the main relief contained in the application was granted by the learned Trial Judge. According to Mr. Debnath, if the main relief is granted, the plaintiff cannot be aggrieved in anyway and cannot prefer any appeal for claiming the alternative relief by abandoning the main relief.

Even on merit, Mr. Debnath submits that the plaintiff having failed to prove the allegations of cruelty made out in the plaint by adducing any corroborative evidence, there is no just ground of granting a decree for divorce on the ground of cruelty. According to Mr. Debnath, if the plaintiff failed to prove his case made out in the plaint, he cannot get a decree on the ground that the respondent had failed to prove the allegations made in the written statement. Mr. Debnath further contends that in this case the main ground of cruelty alleged in the plaint being that his client had initiated a proceeding under Section 498A of the Indian Penal Code, so long that proceeding is not disposed of, it cannot be ascertained whether the allegations levelled against the husband was baseless or not. Therefore, Mr. Debnath continues, in the present appeal, there is no scope of granting any decree of divorce on the ground of initiation of a proceeding under Section 498A of the Indian Penal Code.

Mr. Debnath further submits that the moment his client got back all the articles through the help of police by issue of search warrant, she did not proceed with the other criminal proceeding initiated under Section 406 of the Indian Penal Code. According to him, for mere initiation of the other proceeding under Section 406 of the Indian Penal Code no decree for divorce can be granted. He, therefore, prays for dismissal of the appeal.

Therefore, the first question that arises for determination in this appeal is whether the main relief prayed for in the suit having been granted, the plaintiff- husband was entitled to get a decree for divorce on the ground of cruelty which was taken by way of alternative relief.

As indicated above, in the plaint, the husband first prayed for a decree of restitution of conjugal right with the rider that if the wife opposed the prayer, he should be granted a decree for divorce on the ground of cruelty on the basis of allegations already made in the plaint. The wife has specifically opposed all the prayers contained in the plaint and has in her written statement not only denied those allegations but also defended her action and at the same time, made serious allegations against the husband regarding his moral character indicating that he was maintaining adulterous relation with various ladies including the maidservants and had gone to the extent of making allegation that the husband was suffering from venereal diseases and maintained such stance even at the time of trial by appearing as a witness. The learned Trial Judge, as it appears from the judgement impugned, recorded that the husband did not deny such fact in his examination-in-chief or by giving suggestion to the D.W.-1 in her cross- examination. Such finding is a perverse finding of fact inasmuch as the husband in his examination-in-chief specifically denied those facts (See pages 49-50 of the paper book) and at the same time, gave specific suggestion to the D.W.-1 that those allegations were false (See pages 83-84 of the paper book).

The learned Trial Judge after recording the submissions of the learned counsel for the parties held that as the wife had not opposed the prayer of restitution of conjugal right and was willing to go back to the house of the plaintiff, he was inclined to pass the decree for restitution of conjugal right and found no necessity to enter into the question of cruelty as, according to him, the main relief claimed in the suit had been granted. According to the learned Trial Judge, in spite of the various allegations made in the written statement against the husband involving moral character, the husband not having amended the plaint by specifically praying for the relief of divorce on those allegations, those allegations cannot be considered in this proceeding particularly when the court granted the decree for restitution of conjugal right.

In our opinion, the aforesaid reason assigned by the learned Trial Judge is not in conformity with the law of the land for the following reasons:

First, in this case, the first prayer for restitution of conjugal right was subject to the condition that the wife would not oppose the said prayer. In this case, in the written statement the wife did not plead that she accepted the fact that without just cause she left the husband’s house but on the contrary, justified her action and in addition to those pleas, made allegations involving moral character of the husband. There is even no plea in the written statement that in spite of cruel behaviour of the husband she was willing to return. The fact that the endeavour of the learned Trial Judge for reconciliation failed indicated that even at that stage, she was not willing to return. Therefore, the parties went on trial on contested hearing even for the purpose of granting the relief of restitution of conjugal right. The moment such contested trial started, it should be presumed that the defendant was opposing even the first prayer of restitution of conjugal right by maintaining that due to cruel behaviour of the husband she was entitled to live separately and such prayer being conditional, the plaintiff without further amendment of plaint was entitled to press the issue of cruelty as a ground of divorce. If she was really willing to go back without opposing the prayer of restitution of conjugal right, there was no occasion for filing written statement opposing the prayer of restitution of conjugal right and contesting the suit by giving evidence. After contesting the suit and leading evidence disputing the allegations and making counter-allegations, if the wife offers to return for the sake of “welfare of the son” such plea must be held to be a pretended concession for the purpose of frustrating the relief of divorce even after committing cruelty. As pointed out by the Apex Court in the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate reported in AIR 2003 SC 2462, if a defendant after making false allegation against the other spouse withdraws such allegations by making amendment of the written statement, such withdrawal of the allegation will not absolve the defendant of his liability which he has already incurred by making false allegation and on that ground the Court can grant a decree for divorce.

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

Therefore, the learned Trial Judge refused to exercise jurisdiction vested in him by law by not considering whether the plaintiff had established cruelty from the materials on record to enable him to get a decree for divorce.

Since all the materials are available on record and the proceedings are pending for a longtime, we have, in exercise of power conferred under Order XLI Rule 24 of the Code of Civil Procedure, decided to consider such question and accordingly, we invited the learned counsel for the parties to argue on the question whether the husband on the basis of materials on record is entitled to get a decree for divorce on the ground of cruelty.

After hearing the learned counsel for the parties and after going through the materials on record, we find that the wife has undisputedly initiated two criminal proceedings, one under Section 498A of the Indian Penal Code and the other, under Section 406 of the Indian penal Code. The proceedings under Section 498A is still pending while the other one has been dismissed as the wife did not take any further step in the matter. In her defence, the wife has alleged that the husband took money from her mother and used to force her to pay her salary while the husband has totally denied such allegations. The wife has admitted that she lodged several diaries before the police station and also told the members of the local club alleging the torture of the husband. She has further stated that due to physical torture of the husband she was injured and such injury was treated by a doctor and due to such injury she could not attend her office. The husband, on the other hand, stated that the wife never paid any amount except the salary of two maidservants and although she had bank accounts, she never kept those pass books in the matrimonial home. The wife in this case has not examined any of the club people to whom she reported the incident of physical assault nor did she examine the doctor who allegedly treated her. She even did not examine her mother in support her allegations that huge amount of money was paid to her husband by her mother to purchase the peace in the family. She even by producing her bank accounts could easily substantiate her defence showing the monthly withdrawal of money from the accounts. She refused to produce materials showing that she really took leave from her office due to physical assault on her on the basis of the medical certificate of the doctor.

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

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

In this case, in spite of full knowledge that the husband is a government servant, the wife made complaint under Sections 498A and 406 of the Indian Penal Code and the husband was compelled to take bail. It appears that the wife did not proceed with the case under Section 406 of the Indian Penal Code and the same was dismissed. But for filing of such criminal case, the plaintiff was harassed. Similarly, there is no sufficient reason assigned by the wife demonstrating why she would not bring any corroborative evidence of physical torture when she was treated by a doctor and she told such incident to the local club members. Similarly, she could easily by production of her bank accounts, indicate her monthly withdrawal and thus, falsify the claim of the husband that she only used to pay the salary of the two maidservants. No body from her paternal side has come forward to support her case of demand of dowry and harassment alleged against the husband and payment of Rs.50,000/- by her mother could be easily proved by production of passbook of the bank. She although asserted in her written statement that she would apply for medical examination of the husband showing presence of venereal diseases, after the denial of such fact by the husband in his examination-in-chief she forgot to take such step.

All the aforesaid facts prove that the husband has not only proved the ground of divorce pleaded in the petition of divorce but at the same time, for making false and baseless allegations in the written statement against the husband, it is a fit case to grant a decree for divorce.

In the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate, referred to earlier, the Supreme Court held that the act of levelling disgusting accusations of unchastity and indecent familiarity with a person outside the wedlock and allegations of extramarital relationship constituted grave assault on the character, honour, reputation, status as well as the health of other spouse. Such aspersions of perfidiousness attributed to the other spouse viewed in the context of an educated Indian person and justified by the Indian conditions and standards, would amount to a worst form of insult and cruelty which is sufficient by itself to substantiate cruelty in law, warranting the claim of a party being granted divorce.

The learned Trial Judge, thus, erred in law in passing a decree of restitution of conjugal right in the facts of the present case by refusing to exercise jurisdiction vested in him by law on the erroneous idea that the main relief having been granted there was no scope of granting the decree of divorce.

We, therefore, allow this appeal by setting aside the judgement and decree passed by the learned Trial Judge and grant a decree for divorce on the ground of cruelty.

Since the only son of the parties is living in the custody of the wife we do not propose to disturb such custody. However, the husband is directed to pay the maintenance of the said son at the same rate at which he is presently paying by virtue of the interim order passed in this appeal, however, on condition that the son should come and stay with the father for a day in every week. If the son refuses to keep relation with the father by staying with him for a day in every week, in that event, no maintenance should be paid as he has attained majority and his mother is quite capable of maintaining him.

In the facts and circumstances, there will be, however, no order as to costs.

(Bhaskar Bhattacharya, J.) I agree.

(Rudrendra Nath Banerjee, J.)

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

 

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. 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 or write to e _ vinayak @ yahoo . com (please remove spaces). 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 DOT NIC DOT IN SITE
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Hsbnd wins dvrc as wife regulrly leaves hubby & files false 498a 406. wife also looses appeal @ Cal. HC !!

Husband gets divorce under grounds of Cruelty as wife regularly left the husband’s house against his wish and also filed false 498a case against husband and MIL, wherein husband was arrested. This 498a also finally ends in acquittal. Wife also files an appeal against the divorce decree (which went in favour of the husband), argues at the HC that she was immensely tortured etc, but she looses appeal @ Cal. HC !!
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* wife files 498a etc
* wife left the matrimonial home along with her father on January 23, 1994 and on that very date lodged a complaint under Section 498A Indian Penal Code against her husband. Husband was arrested by police and had to remain in jail custody for 14 days.
* Wife also lodged another complaint under Section 406 Indian Penal Code against her husband and after trial the accused were acquitted. According to the husband within a very short time thereafter the husband was ill-treated by the wife and her father and brother. He used to be pressurised to desert his old widowed mother and unmarried sister to live as ‘Gharjamai’.

The HON HC goes on the say “….An inference, however, can be drawn by matrimonial Court that by initiating criminal proceedings under Section 498A Indian Penal Code wife has an intention not to live with the husband. This is because the person lodging such complaint under Section 498A is imputed with the knowledge that, if convicted, the accused, would be incarcerated. ….”

* An the HON HCc concludes that “…..30. However, on the authority of the judgment in Nivedita Banerjee, (supra), the act of the wife in the matter of initiating criminal proceedings where the husband was arrested and detained in jail custody, that case having ended in acquittal just as in the case on hand, the judgment under appeal can be sustained. Inference can be drawn that the wife has no intention to go back to the husband and her intention was to terminate the matrimonial relationship. ….”
* so wife looses her appeal against husband’s divorce (i.e. Husband’s divorce is confirmed by HC)

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Calcutta High Court

Smt. Kajal Roy vs Prasanta Kr. Roy on 10 August, 2004

Equivalent citations: (2005) 2 CALLT 567 HC

Author: J Banerjee

Bench: M H Ansari, J Banerjee

JUDGMENT Mahammad Habeeb Shams Ansari, J.

1. Instant appeal is field by defendant-wife aggrieved by the judgment and decree dated September 21, 2000 passed by the learned Additional District Judge, Howrah in Matrimonial Suit No. 37 of 1994. Thereby the suit for divorce filed on the ground of cruelty by the husband was decreed.

2. A perusal of the judgment under appeal would show that the petition under Section 13 was filed by the husband praying for a decree of divorce under Section 13 on the ground of cruelty and desertion. Learned trial Court found that the ground of desertion is not established and with regard to the ground of cruelty it was noticed that the same was founded on the ground that the wife left the matrimonial home at regular intervals and used to come back after 15/20 days and that she refused cohabitation with the husband and that finally on November 13, 1993 she left the matrimonial home with bag and baggage without the consent and knowledge of the petitioner and against the will of the husband’s mother. Learned trial Court found that the factum of cruelty pleaded has not been established but was of the view that the marital tie has deteriorated to such an extent that the parties cannot live together as husband and wife and, therefore, granted a decree of dissolution of marriage.

In coming to the aforesaid conclusion learned trial Court found that the wife admittedly left the matrimonial home along with her father on January 23, 1994 and on that very date lodged a complaint under Section 498A Indian Penal Code against her husband. Whereupon the husband was arrested by police and had to remain in jail custody for 14 days. She also lodged another complaint under Section 406 Indian Penal Code against her husband and after trial the accused were acquitted. Judgment in that case has been marked as Ext.2. The judgment in GR 197/1994 being the case under Section 498A Indian Penal Code was pronounced on April 6, 2004 i.e. after the date of decree under appeal and for that purpose an application being CAN 5626 of 2004 has been field for receiving the said judgment as additional evidence in this appeal. We shall consider this application a little later. Suffice it to state that appellant has not filed any affidavit-in-opposition but his learned counsel made oral submission.

3. It is the correctness of the conclusions arrived at by the learned trial Court and based whereon the decree of divorce was granted that is the subject matter of the instant appeal.

4. It is the contention of Mr. Tapan Mukherjee, learned counsel for the appellant-wife that the husband having failed to establish the acts of cruelty pleaded ought not to have been granted the decree of divorce merely because complaints under Sections 406 and 498A Indian Penal Code had been filed by the wife. It was further contended that it is the appellant-wife that was the victim of immense torture. That the wife had to go with her father for medical treatment and when she returned to her matrimonial home on January 22, 1994 along with her father to live in the matrimonial home the husband and his family members did not allow her to live at the house and thereafter when the father returned on January 23, 1994 he came to know that the wife was assaulted by the husband and his family members whereupon a complaint was filed by the father of the wife under Section 498A and another complaint filed by the wife under Section 406 Indian Penal Code with respect to the wedding gifts and ornaments. It was contended that pursuing a legal remedy for the protection of life limb and property cannot constitute cruelty. Reliance was placed upon the judgment in Smt Bina Rani Banik v. Pradip Kr. Banik, AIR 1999 Gauhati 139. It was further contended that it is the acts of the husband that led the wife to take such action and, therefore, the husband cannot take advantage of his own wrong. Reliance was placed upon the judgments in Savitri Pandey v. Prem Chandra Pandey, , and Smt. Kakali Das (Ghosh) v. Dr. Asish Kumar Das, (2003)3 CLT 60.

5. Mr. Buddhadev Ghoshal appearing along with Mr. Dipanjan Sinha Roy, learned counsel for the respondent-husband at the very outset submitted that the decree of divorce granted by the learned Trial Court can be sustained on the grounds pleaded in the petition.

Relying upon the judgments in Postgraduate Institute of Medical Education & Research and Anr. v. A.P. Wasan and Ors., ; Parma Lal v. State of Bombay, ; Koksingh v. Smt. Deokabari, and Virdhachalam Pillai v. Chaldean Bank Ltd., Trichur and Anr., , it was contended that without filing any cross-appeal or cross-objection the respondent in the appeal is entitled to canvass the correctness of the findings against him in order to sustain the decree that has been passed against the appellant.

6. Having perused the judgments cited by the learned counsel for the respondent-husband, we are of the view that if a party who could have filed a cross-objection under Order 41 Rule 22 Code of Civil Procedure but has not done so is entitled to canvass the correctness of the findings that have gone against him. Further, Appellate Court is empowered under Order 41 Rule 33 Code of Civil Procedure not only to give or refuse relief to the appellant by allowing or dismissing the appeal but is also empowered to give such relief to the respondent as “the case may require”. Accordingly the plea of the respondent herein is sustained. It is open to the respondent to canvass before us the correctness of the findings that have gone against him in the judgment and decree under appeal.

7. Having held as above let us consider whether the grounds pleaded in the petition for divorce stand established by the evidence on record. Before we take up for consideration the rival contentions, a few observations based on judicial precedents need to be noticed.

8. Cruelty is now a ground of divorce. It may be either physical or mental cruelty on the establishment of which an aggrieved spouse is entitled to divorce. Physical cruelty consists of acts of inflicting of bodily injury or giving cause for apprehension of such injury. Mental cruelty consists of conduct which causes mental or emotional suffering. After the amendment by the Hindu Marriage Laws (Amending) Act of 1976 cruelty s a ground of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 is construed to be an act or omission or conduct of such type that one spouse cannot reasonably be expected to live with the other. Cruelty may consist of acts which are dangerous to life, limb or heath. It may be manifested by such acts to have inflicted bodily injury or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. There may be instances of cruelty by an unintentional but inexcusable conduct of any party. The intention/motive is not a necessary element or ingredient of cruelty. It is the act or conduct or omission which will constitute cruelty. A single act of physical cruelty may itself amount to cruelty. A series of small acts of violence or threats may cumulatively amount to cruelty. In either case of physical cruelty or mental cruelty it is not necessary that such act or conduct be that of the spouse or at the instance of one spouse or at the instigation of one spouse against the other it may emanate from others and the omission of spouse in protecting the other spouse from such act or conduct may itself constitute cruelty in given case.

9. ‘Mental cruelty’ has been given a wide meaning and has been construed as that conduct which inflicts mental pain and suffering upon the spouse making it impossible for him/her to live with the offending spouse. It must be of such nature that the parties to the marriage cannot reasonably be expected to live together nor the parties can reasonably be asked to endure such conduct. In coming to the conclusion as to whether the alleged acts or omissions constitute cruelty, Court has to keep in mind the social status, educational level of the parties as also the society they move in. This is for the reason that what may amount to cruelty in a given case may not be so in another. In so far as mental cruelty is concerned it is no longer necessary to establish that the act or omission or conduct which constitutes cruelty has caused any sort of apprehension in the mind of the aggrieved spouse that it will be harmful or injurious for him/her to live with the other. Judicial precedents under the unamended Act, therefore, laid emphasis on the reasonable apprehension aspect of cruelty and not so much on the act or omission or conduct itself.

10. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. Nor it can be decided on the basis of the sensitivity of the petitioner. Simple trivialities which can be described as the reasonable wear and tear or married life have to be ignored. Courts will have regard only to weighty and grave incidents. Where the case is of accusations and allegations, counter-accusations and counter-allegations the Court is to have regard to the context in which such allegations or counter-allegations have been made. If the conduct complained of itself is bad enough or per se unlawful or illegal then the impact or injurious effect thereof on the other spouse need not be enquired into or considered and any such conduct would constitute cruelty.

11. The Supreme Court in Shobha Rani v. Madhukar Reddi, [a case arising under Section 13(1)(ia) of the Act] has sounded a note of caution when it observed thus;

“…We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents….”

12. The general rule governing pleadings is that the facts and reliefs must be set out in the pleadings. The facts need to be stated succinctly based on which the relief/s is/are sought. This is because the Courts grant relief founded on pleadings. The principle being that the other party is not taken by surprise. If the parties did not know that a particular matter is in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, granting relief on matters not pleaded would introduce considerations of prejudice. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

13. A party in matrimonial proceedings may not be allowed to make out a case on the basis of evidence for which he/she has laid no foundation in the pleadings. The general principle being that any amount of evidence would be of little avail if the same has not been less set up or started in the pleadings.

14. However, on the basis of pleadings and other admitted material divorce can be granted if there are some extraordinary features to warrant grant of divorce. It was so held by the Supreme Court in V. Bhagat v. D. Bhagat, wherein it was observed that “There must be really some extraordinary features to warrant grant of divorce on the basis of pleadings (and other admitted material) without a full trial. Irretrievable break-down of the marriage is not a ground by itself. But while scrutinizing the evidence on record to determine whether the ground(s) alleged is made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind.”

15. It is the contention of Mr. Buddhadev Ghosal, learned counsel for the respondent that the grounds of physical and mental cruelty pleaded in the plaint stand established by the evidence on record and, therefore the conclusion arrived at by the learned trial Court that same are not established is erroneous. On the other hand, learned counsel for the appellant contended that none of the grounds alleged have been established. It was further submitted that the evidence on the side of the respondent is of a general nature. It is the respondent-husband that has inflicted torture upon the wife and is keen to get rid of the wife as can be seen from his attitude in asking the father-in-law to take back his daughter for ever.

16. The facts on which the petition filed for grant of divorce under Section 13 of the Hindu Marriage Act, 1955 is inter alia that the marriage between the parties was performed on August 2, 1992 according to Hindu rites and customs. According to the husband within a very short time thereafter the husband was ill-treated by the wife and her father and brother. He used to be pressurised to desert his old widowed mother and unmarried sister to live as ‘Gharjamai’. Allegations have been made in the petition with regard to acts of mental as also act of physical cruelty which were inflicted by the wife upon the husband but was not disclosed to his family members. Allegations was made that the wife was in the habit of leaving the matrimonial home at regular intervals and used to come back after 15/20 days from her father’s house or from any other place not known to the husband and did not allow the husband cohabitation with her. The husband was made to sleep on the floor. The specific instance cited in the petition for divorce is to be found in paragraph 8 wherein it is alleged that on November 13, 1993 on ‘Kalipuja’ day wife’s father came to the matrimonial home all on a sudden and took away his daughter with bag and baggages, same was in total defiance of the husband’s mother and even without the husband’s consent and knowledge. In paragraph 10, it was alleged that on January 22, 1994 the wife returned along with her father and the father returned after about one hour stay stating that he would come back and take away his daughter. The further allegation is to the effect that;

“…At that time, your petitioner most modestly proposed to the father of the respondent for arranging permanent severance of their conjugal life through the Court of law peacefully instead of committing such wrongful acts perpetually inflicting mental injury to him and to his aged widow mother….”

17. It is alleged that the father became furious and left making threats and he returned on January 23, 1994 along with police officials of Bantra Police Station and on the directions of the father the wife took her remaining belongings and ornaments. The husband and his mother were taken to police station and thereafter the S.I. of Bantra P.S. after hearing both the parties allowed the husband and mother to leave. An allegation as to desertion by the wife has been made in paragraph 13 of the petition. It is stated that on January 23, 1994 the wife left the matrimonial home with all her belongings.

18. The ground of desertion as pleaded for grant of decree of divorce is not maintainable in the case on hand as will be evident from the provisions of Section 13(1)(ib) wherein it is laid down that decree of divorce on the ground of desertion can be granted if the other party has deserted the petitioner for a period not less than two years immediately preceding the presentation of the petition. It is clear that no suit can be decreed on the ground of desertion If the same is filed as in the case on hand within 2 years from the date of alleged desertion. In the case on hand the plea of desertion is founded on the ground that wife left the matrimonial home on January 23, 1994. The suit is filed within a month thereof i.e. on February 7, 1994.

19. As regards the grounds of cruelty alleged in the petition suffice it to state here that the incidents of cruelty alleged have not been succinctly stated in the petition except that the wife left the matrimonial home on November 13, 1993 and returned on January 22, 1994 when an altercation took place between the husband and father of the wife and another incident of January 23, 1994 when the father of the wife is said to have come with police personnel and taken his daughter away with him, the husband and mother being called to the police station. The other allegations in the petition are vague without any specific particulars having been furnished as to the date of their occurrence. The evidence of the husband as PW1 is on similar lines. He has spoken of physical assault by the wife and also that she did not share the bed with him and he had to sleep on the floor. No such particulars with date as to when said incident occurred has been stated in the plaint. Even in his deposition husband as PW1 has not furnished particulars with regard to alleged assault by the wife upon him nor did he furnish the dates from when she did not allow him to share the bed. It is only in cross-examination that the husband stated that refusal to cohabit on the part of his wife began three months after his marriage in the year 1992. He, however, admitted that from the date of his marriage till January 22, 1994 he lived in the same room with his wife and further admitted that he never informed any person regarding the refusal by the wife to cohabitation. We are, therefore, inclined to agree with the learned Trial Court that the grounds of cruelty as pleaded do not stand established.

20. As noticed supra, the learned Trial Court that the parties cannot live together as husband and wife as the ground of cruelty is established by the criminal cases filed by the wife and detention of husband in jail custody for 14 days. This conclusion by learned Trial Court is founded on the ground of complaints filed under Section 498A and 406 Indian Penal Code. The case under Section 406 Indian Penal Code having ended in acquittal.

21. It was contended by learned counsel for appellant relying upon Savitri Pandey (supra) the marriage between the parts that as the marriage between them has broken down no useful purpose would be served to keep it alive. The sanctity of the marriage cannot be left at the whims of one of annoying spouses. It was further contended that irretrievable break down of marriage is not a ground by itself to dissolve it as held by the Supreme Court in Bhagat v. Bhagat, .

22. From the evidence on record it is apparent that the instant suit was filed after the complaint was made against the husband under Sections 406 and 498A Indian Penal Code. During the pendency of the proceedings the criminal case under Section 406 Indian Penal Code was decided on April 28, 2000 and Ext.2 is the certified copy of the judgment in C.C. No. 281C/1994. The judgment in the criminal case under Section 498A Indian Penal Code had not, till then, been pronounced. Subsequently, the judgment has been pronounced in that case also and as noticed earlier an application has been filed being CAN 5626 of 2004 to receive the judgment as additional evidence in this appeal. The only submission in opposition made by the learned counsel for the appellant is that the complaint under Section 498A Indian Penal Code was made by the father of the appellant and not by the appellant herself. It was further submitted that the allegations based on which the complaint was made is not without any basis. In any event, it was submitted that, the acquittal in that case does not warrant the grant of divorce as prayed for by the respondent. As in our view, the learned Trial Court granted decree of divorce by the judgment under appeal mainly on the ground that the appellant had lodged the complaints under Sections 406 and 498A Indian Penal Code and after noticing that the respondent-husband was arrested by police and had to remain in jail custody for 14 days in connection with the criminal case supposed by the wife, it was concluded that it was not possible for the parties to live together. In order to examine the correctness of the conclusion we are of the view that the judgment in criminal case under Section 498A Indian Penal Code would be relevant for complete and proper disposal of this appeal.

23. Accordingly application being CAN 5626 of 2004 is allowed. Let the certified copy of the judgment in that case be assigned appropriate exhibit number.

24. In Smt. Nivedita Banerjee v. Sanal Kumar Banerjee, 1999(2) CHN 625, Division Bench considered the contention with respect to a complaint against the husband and in-laws made under Section 498A Indian Penal Code a criminal case was started and husband and some members of in-laws were arrested and detained in custody and ultimately the said case ended in acquittal. The Division Bench in that case found substance in the contention advanced on behalf of the husband that such an act on the part of the wife amounted to cruelty and her intention was to terminate the matrimonial relationship forever. It was opined that the act of the wife in the matter of initiating a baseless criminal proceeding amounts to cruelty. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

25. Another Division Bench in Sri Deepayan Chatterjee v. Smt. Papiya Chatterjee, 1990(1) CLJ 74, after having noticed that wife initiated a criminal case against husband and other in-laws under Sections 323, 342, 506/420/120B Indian Penal Code opined that it is not safe to live with a wife who can make such wild allegations.

26. From the decisions cited at the bar we are of the view that mere initiation of criminal proceeding per se would not amount to cruelty within the meaning of Section 13(1)(ia) nor the fact that the criminal case has ended in acquittal. An inference, however, can be drawn by matrimonial Court that by initiating criminal proceedings under Section 498A Indian Penal Code wife has an intention not to live with the husband. This is because the person lodging such complaint under Section 498A is imputed with the knowledge that, if convicted, the accused, would be incarcerated. Taking recourse to law or taking shelter of law or seeking the protection of police cannot constitute an offence nor can the same tantamount to cruelty. Courts cannot discourage much less penalize young wives who are afraid of their safety and who have either suffered or apprehend suffering at the hand of their husbands and in-laws cannot be discouraged to lodge a diary at the thana or to take assistance of police authorities by lodging complaint. In the case of acquittal in criminal case after trial it cannot per se be construed that the same was initiated on a complaint which was either false or baseless. The standard of proof in the two matters i.e. criminal and matrimonial, which is a civil proceeding, are distinct and different. In criminal proceeding the charge has to be established beyond all reasonable doubt whereas the standard proof in matrimonial cases is that preponderance of probabilities. Where, however, the criminal case ends in acquittal and the charges are held to be baseless or unfounded than a matrimonial Court may draw a conclusion that the criminal case was initiated on baseless or unfounded allegations.

27. Keeping the above in view let us now examine the judgment in C.C. No. 281C/1994 Wherein the charge was under Section 406 Indian Penal Code (Ext.2). The Court acquitted the accused in that case on the grounds inter alia that;

(i) there is no evidence as to the weight of the ornaments after remodeling;

(ii) there is no evidence adduced by the prosecution showing that the ornaments were kept in the locker and in apprehension of issuing of the search warrants, the ornaments were taken out from the locker;

(iii) prosecution failed miserably to bring any evidence which shows that the accused person deliberately converted the said property to his own use by selling or by transferring those ornaments; and

(iv) there is no evidence to establish that the bank draft of Rs. 30,000/- was taken as dowry.

28. The judgment of the learned judicial Magistrate in GR 197/1994 for the offence under Section 498A/34 Indian Penal Code was rendered on April 6, 2004. It was held that;

“…prosecution has failed to adduce sufficient evidence to substantiate that the accused persons were guilty of such conduct which made the life of the wife i.e. Kajal unbearable and it was harmful on her part to live with her husband. Several contradictions of oral testimony of PW1 and PW2 when related to their testimony in earlier cases, observation and findings of the Mat Suit decree in favour of accused Prasanta Roy and non-examination of independent witnesses are the factors which lead me to opine that the evidence on record are not enough to substantiate charge under Section 498A Indian Penal Code….”

and it was further held that the prosecution has miserably failed to prove the case beyond all reasonable doubt. It is, therefore, not a case where the charge was found to be baseless or unfounded but that the same was not proved beyond all reasonable doubt and in coming to the said conclusion it was inter alia noticed that instant Mat Suit had been decreed in favour of the accused.

29. In neither of the cases it has been found that the wife field false criminal cases.

30. However, on the authority of the judgment in Nivedita Banerjee, (supra), the act of the wife in the matter of initiating criminal proceedings where the husband was arrested and detained in jail custody, that case having ended in acquittal just as in the case on hand, the judgment under appeal can be sustained. Inference can be drawn that the wife has no intention to go back to the husband and her intention was to terminate the matrimonial relationship. In the circumstances we are of the view that no case has been made out for interference with the decree of the learned trial Court.

Accordingly Appeal is dismissed.

In the facts and circumstances of the case there shall be no order as to costs.

Let urgent xerox certified copy of this judgment be furnished to the appearing parties, if applied for, on priority basis.

Let the Lower Court Records be send down forthwith.

J. Banerjee, J.

I agree.

 

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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false 498a, falsely accusing husband 4 abortion, othr crimnal cases, all cruelty; Madras HC

Wife files 3 criminal cases against husband during pendancy of husband’s divorce case. Madras HC grants husband divorce on grounds of cruelty !!

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

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Madras High Court
R. Anand vs P. Indu on 26 November, 2007
Author: G Rajasuria
Bench: G Rajasuria

R. Anand vs P. Indu on 26/11/2007

JUDGMENT

G. Rajasuria, J.

1. This appeal is focussed as against the order passed in C.M.A.No. 111 of 2001 on the file of the District Judge, Trichy, dated 03.05.2002, in setting aside the order passed in H.M.O.P. No. 49 of 1998 on the file of the Principal Subordinate Judge, Trichy, dated 16.08.2001.

2. For convenience sake, the parties are referred to hereunder as husband and wife.

3. Both the Courts below detailed and delineated the averments as found set out in the petition as well as in the counter and reply. Even then, I am of the view that this being a matrimonial matter, it is just and necessary to broadly but briefly, narratively but precisely set out the facts thus:

The nitty-gritty, the gist and kernel of the case of the petitioner as stood exposited from the petition which was filed under Section 13(1)(i)(a) of the Hindu Marriages Act, by the husband Anand, (hereinafter referred to as ‘ the husband’.) as against the respondent Indu (hereinafter referred to as ‘the wife’.) on the ground of cruelty, would run thus:

(i) Anand, and Indu, got married as per the Hindu Rites and Customs on 11.09.1995 at Trichy as arranged by the eldeRs. Within a short span of time after marriage, the couple started living at Manipal for a period of eight months together, where he understood that the wife was interested in separating the husband from his parents and insisted upon him to obtain properties from them. Since the husband had to take up the examinations relating to his higher studies there in Manipal itself, he sent his wife to her parents house in Chennai. Subsequently, the husband was compelled to live in the house of the wife as “Veetu Mappillai’. Even though he got employment in Kerala, he could not accept that appointment as Doctor, because the wife was pregnant by that time. Subsequently, the wife sensing that fetus was a female one, she underwent abortion voluntarily. The wife was instrumental in creating ill-will between the two families of the spouses. The wife indulged in perpetrating mental cruelty to the husband. He was humiliated by the wife, her parents and the brother-in-law of the husband. The wife often intimidated that the wife would put the husband in trouble by giving complaint as against him under the Dowry Prohibition Act.

(ii) During the month of August, 1997, the husband went to Manipal for a few days and took advice from his Professor there as he got fed up with wife’s cruelty towards him. Subsequently, she pleaded for mercy and thereupon, both of them rejoined and started living in Chennai with wife’s parents till October 1997. But, she indulged in recidivism. The husband went to Coimbatore and got appointment in Ganga Hospital. Since, she expressed her desire to rejoin, he permitted her to do so, but that lasted only for a week. She was often quarreling with the husband. She wanted the husband to estrange his parents. Therefore she frequently intimidated the husband that she would commit suicide. One Baskaran tried to mediate between the couple, but it failed. The parents of the wife were not in any way helpful for the husband and the wife to live peacefully. The husband issued legal notice on 19.03.1998 for which there was no reply. The husband apprehended danger to his life at the hands of his wife, because she caused mental and physical cruelty to him. Ultimately, he was driven to the extent of filing the petition for divorce.

4. Per contra, denying and refuting, challenging and impugning, the allegations/averments in the petition, the respondent wife filed the counter with the averments inter alia thus:

(i) The parents of the wife spent a sum of Rs. 50,000/- for celebrating the wedding notice ceremony and the husband’s mother and younger sister demanded Rs. 25,000/- by cash and also demanded a ring for the husband. Such demands were duly complied with by the wife’s parents. On the husband’s side, various silver articles were demanded along with the gold ornaments of 100 sovereigns, for which also the wife’s parents agreed. A new Maruthi car as dowry was demanded on the side of the husband, for which also the wife’s parents agreed. Since the car could not be purchased by the wife’s father by paying hard cash, he availed the hire purchase facility and a Maruthi car was accordingly, purchased in the name of the wife’s father and it was handed over to the husband. On the side of the husband a sum of Rs. 5,00,000/- (Rupees Five Lakhs only) was also demanded as dowry, but the parents of the wife could not pay immediately. The marriage was solemnized at the expenses of the wife’s parents. After celebration of the marriage, a cottage was booked at Kodaikanal for the newly married couple to enjoy their honey-moon, but the mother of the husband prevented the couple from visiting Kodaikanal, because the said amount of Rs. 5,00,000/- was not paid as dowry by the wife’s parents.

(ii) During the stay of the couple at Manipal, the said Maruthi car was with them and the husband was using it. The husband was continuing his higher studies at Manipal.

(iii) The wife was not cruel towards the husband and she never tried to boss over him. In fact, the husband’s mother and second sister ill-treated the wife and she was put to untold miseries. In fact, the wife’s father from Libia sent on 20.01.1995 a Demand Draft worth about Rs. 62,000/- (Rupees Sixty Two Thousand only) to the brother of the husband Sathya Prabhu who was in England. Such Demand Draft was sent as part of the dowry for complying with the dowry demand on the side of the husband. There were demands of dowry by the mother of the husband on various occasions and it was also complied with. At the first Diwali, there was a demand of dowry of Rs. 10,000/- by the mother of the husband and thereupon, a draft for a sum of Rs. 10,000/- was sent to the husband. The wife neither intended to separate the husband from his parents and his relatives nor compelled him to obtain properties from his parents.

(iv) The husband and the wife lived in Manipal for a period of ten months so to say from October 1995 to July 1996 and she never demanded him to be “Veetu Mappillai”, as alleged in the petition. Under the pretext of preparing for the examinations, the husband sent away the wife from Manipal to Chennai. The husband was in the habit of consuming alcohol and driving the car speedily and he was also in the habit of smoking. The wife’s attempt to dissuade him from his bad habits ended in a fiasco. In fact, the wife’s father helped the husband’s family by helping them to bring back the husband’s brother Sathya Prabhu to India from England as he had love affair with one poor Gujarathi girl there and married her therein England itself. However, the parents of the husband accused falsely as though the father of the wife was instrumental for the marriage between Sathya Prabhu and the said Gujarathi girl. The husband of his own accord stayed with the wife at the house of the wife’s parents in Chennai and not under any compulsion.

(v) The husband was in the habit of visiting his sister’s house at Chennai and at her instigation, he used to pick up quarrels with the wife. The wife was mentally tortured by the husband and because of such mental torture, the wife delivered a dead fetus on the nineteenth week of pregnancy. The husband was in the habit of consuming alcohol and return home late in the night and levelled false allegations as against her at the instigation of his mother and sister. The husband once again left for Manipal without informing the wife and after some time, he was brought back to Chennai at the initiation of the wife. The husband compelled the wife to make arrangements for incorporating his name in the R.C.Book of the said Maruthi car in replacement of the name of her father. Only after the clearance of the loan, that could be done. When the father of the wife wanted the car to be taken for some purpose, the husband beat the wife. The husband signed as security for his brother-in-law in Syndicate Bank, Egmore with the intention to obtain a portion of that loan amount as dowry.

(vi) Since the husband could not get the dowry as expected by him, he deserted the wife. In fact, she was taken by the husband to a death ceremony of her grandfather at Salem and there, he left her and went away. All steps taken by the wife through mediation center ended in vain due to the husband’s attitude.

5. The reply was filed by the husband denying the averments/allegations in the counter.

6. Before the trial Court, on the side of the petitioner, the husband examined himself as P.W. 1 along with the Mediator Baskaran and the father of the husband, Rengasamy as P.W. 2 and P.W. 3 respectively and Exs.A.1 to A.18 were marked. On the side of the respondent, the wife examined herself as R.W. 1 along with her father, Purusothaman as R.W. 2 and Exs.B.1 to B.15 were marked. During the second appellate stage before this Court, Exs.A.19, A.20 and A.21 and Exs.B.16 and B.17 were marked as additional evidence on respective sides.

7. The perusal of the depositions of P.W. 1 and P.W. 2 would clearly show that Exs. A.14, A.15 and A.16 were not marked in the chronological order during the cross-examination of R.W. 1 the wife, by the advocate for the husband. The third F.I.R was marked as Ex. A.14. But, in the written arguments submitted on the wife’s side, it was referred to as Ex. A.16.

8. It so happened that during the pendency of the H.M.O.P before the trial Court, the wife lodged as many as three criminal complaints whereupon, the husband and his relatives including his father were proceeded against and that was also considered by the trial Court and ultimately, the trial Court granted the decree of divorce, as against which the appeal was filed before the District Court which reversed the finding of the trial Court and dismissed the petition for divorce.

9. Being aggrieved by and dissatisfied with, the judgment and decree of the first appellate Court, the husband filed this second appeal on the following main grounds:

The first appellate Court ignored the subsequent occurrences which proved to be fatal to the matrimonial relationship between the husband and the wife. The first appellate Court simply ignored the wife’s conduct in filing criminal complaints and even it went to the extent of holding that the wife’s act of objecting to the anticipatory bail petition moved by the husband, as the one based on ignorance of law on her part. The first appellate Court was wrong in giving a finding that the wife had no blameworthy conduct as against the husband. The first appellate Court misunderstood the evidence and failed to apply the trite proposition of law governing the grant of divorce. The first appellate Court failed to consider the evidence of P.W. 3. Accordingly, the husband prayed for setting aside the order of the first appellate Court and for restoring the decree of the trial Court in granting divorce.

10. My learned Predecessor framed the following substantial questions of law at the time of admitting this second appeal as under:

1. Whether decretal order of the Lower Appellate Court suffers from legal infirmities such as erroneous approach to the facts of the case misreading of evidence and on the ground of adopting different yardstick while appreciating the case of the respective parties particularly in regard to the harassment caused to the husband and the subsequent conduct of the wife?

2. Whether the Lower Appellate Court is right in ignoring the subsequent conduct of the wife regardless of the settled principles of law as held by this Court and the Supreme Court of India?

3. Whether the order in appeal is liable to be set aside on the ground of want of consideration of relevant facts such as likelihood of re-union and subsequent conduct of the wife?

11. Heard both sides in entirety.

12. A resume of facts absolutely necessary and germane for the disposal of this second appeal in nutshell would run thus:

The husband presses for divorce on the ground of cruelty meted out to him by the wife. According to him, she was bent upon making him to get himself separated from his parents and relatives and also to obtain the properties of his father even during his life time and that she was giving mental torture to him. Precisely the husband’s plea is that she wanted to cudgel and nose lead him and boss over him in addition to make him to dance to her tunes and that often her attitude teed him off. Whereas the wife would accuse the husband and his mother and sister as guilty of dowry harassment and cruelty both mental and physical towards her. The whys and wherefores for the rift according to the wife, is dowry harassment.

13. This is a peculiar case in which during the pendency of the proceedings as many as three criminal complaints emerged at the instance of the wife as against the husband and his relatives as under:

Sl. No. Cr.No. Under Sections Dated No. of Accused

1. 462 of 2000 Uner Section Man missing 12800 10

2. 566 of 2000 Section 323, 354, 506(1) I.P.C. 31100 4

3. 29 of 2000 Section 498(A), 506(1) I.P.C r/w 41100 11 Section 4 of Dowry Prohibition Act.

14. The case in Cr. No. 462 of 2000 was registered by the police on the complaint of the wife as though her husband during the pendency of the case before the trial Court was found missing for which his own parents and relatives all in ten in number were responsible, but that was closed by the police. The husband would explain that he went to France voluntarily in connection with his medical studies and that was twisted by the wife so as to harass his parents and relatives.

15. The case in Cr.No. 566 of 2000 during the pendency of the H.M.O.P emerged on the complaint lodged by the wife as against the husband’s father, mother, sister and sister’s husband for the offences punishable under Sections 323, 354 and 506(1) I.P.C mainly on the ground that when she went to the house of the husband’s parents, for negotiations during the pendency of the H.M.O.P, she was beaten and intimidated and her modesty was outraged. It appears, the Criminal Court as per the judgment Ex. A.21 acquitted all the accused. The wife would contend that as against the acquittal, she preferred revision as evidenced by Ex. B. 17.

16. The case in Cr.No. 29 of 2000 was emerged at the instance of the wife as against the husband, his parents, and his relatives altogether eleven in number for the offences punishable under Sections 498(A) and 506(i) I.P.C read with Section 4 of the Dowry Prohibition Act, on the ground that they all demanded dowry and harassed her. According to the husband, the police already dropped that matter as and the Magistrate also recorded the same. But, the wife got it reopened as per Ex. B.16 and she has been pressurizing the police authorities to proceed with her complaint. In addition to the mutual serious allegations made by the husband and the wife as against each other, and having indulged in slinging mud as against each other, during the pendency of the H.M.O.P, very serious and unsavory developments took place and thereby the rift in their matrimonial relationship got widened abysmally and that such subsequent developments warrant serious consideration in deciding this matter.

17. The husband seeks divorce only on one ground, to wit, cruelty. Hence, it is just and necessary to refer to various decisions of the Honourable Apex Court relating to the definition of cruelty as it is well known that the term cruelty has not been defined in the Hindu Marriage Act. The following decisions of the Honourable Apex Court could fruitfully be cited:

(i) Savitri Pandey v. Prem Chandra Pandey . An excerpt from it, would run thus:

| 6. Treating the petitioner with cruelty is a ground
| for divorce under Section 13(1)(i-a) of the Act.
| Cruelty has not been defined under the Act but in
| relation to matrimonial matters it is contemplated as
| a conduct of such type which endangers the living of
| the petitioner with the respondent. Cruelty consists
| of acts which are dangerous to life, limb or health.
| Cruelty for the purpose of the Act means where one
| spouse has so treated the other and manifested such
| feelings towards her or him as to have inflicted
| bodily injury, or to have caused reasonable
| apprehension of bodily injury, suffering or to have
| injured health. Cruelty may be physical or mental.
| Mental cruelty is the conduct of other spouse which
| causes mental suffering or fear to the matrimonial
| life of the other. “Cruelty”, therefore, pos tulates a
| treatment of the petitioner with such cruelty as to
| cause a reasonable apprehension in his or her mind
| that it would be harmful or injurious for the
| petitioner to live with the other party. Cruelty,
| however, has to be distinguished from the ordinary
| wear and tear of family life. It cannot be decided on
| the basis of the sensitivity of the petitioner and has
| to be adjudged on the basis of the course of conduct
| which would, in general, be dangerous for a spouse to
| live with the other. In the instant case both the
| trial court as well as the High Court have found on
| facts that the wife had failed to prove the
| allegations of cruelty attributed to the respondent.
| Concurrent findings of fact arrived at by the courts
| cannot be disturbed by this Court in exercise of
| powers under Article 136 of the Constitution of India.
| Otherwise also the averments made in the petition and
| the evidence led in support thereof clearly show that
| the allegations, even if held to have been proved,
| would only show the sensitivity of the appellant with
| respect to the conduct of the respondent which cannot
| be termed more than ordinary wear and tear of the
| family life.

(ii) Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate . An excerpt from it, would run thus:

| 6. In V. Bhagat v. D. Bhagat 2 it was observed that
| mental cruelty in Section 13(1)( i-a ) can broadly be
| defined as that conduct which inflicts upon the other
| party such mental pain and suffering as would make it
| not possible for that party to live with the other and
| the parties cannot reasonably also be expected to live
| together or that the wronged party cannot reasonably
| be asked to put up with such conduct and continue to
| live with the other party. It was also considered to
| be not necessary to prove that the mental cruelty is
| such as to cause injury to the health of the wronged
| party. That was a case wherein the husband filed a
| petition against the wife for divorce on the ground of
| adultery. In the written statement filed by the wife
| in the said proceedings, she alleged that the husband
| was “suffering from mental hallucination”, that his
| was a “morbid mind … for which he needs expert
| psychiatric treatment”, and that he was “suffering
| from paranoid disorder” etc. and that during cross-
| examination several questions were put to him
| suggesting that the petitioner and several members of
| his family including his grandfather were lunatics and
| that the streak of insanity was running in the entire
| family. It is in the said context this Court though he
| ld the allegations levelled against the wife were not
| proved, the counter-allegations made by the wife
| against the husband certainly constituted mental
| cruelty of such a nature that the husband cannot
| reasonably be asked to live with the wife thereafter.
| The husband, it was also held, would be justified to
| say that it is not possible for him to live with the
| wife. In rejecting the stand of the wife that she
| wants to live with her husband, this Court observed
| that she was deliberately feigning a posture, wholly
| unnatural and beyond comprehension of a reasonable
| person and held that in such circumstances the obvious
| conclusion has to be that she has resolved to live in
| agony only to make life a miserable hell for the
| husband, as well….
|
| 11. … To satisfy the requirement of clause ( i-a )
| of Sub-section (1) of Section 13 of the Act, it is not
| as though the cruel treatment for any particular
| duration or period has been statutorily stipulated to
| be necessary. As to what constitutes the required
| mental cruelty for purposes of the said provision, in
| our view, will not depend upon the numerical count of
| such incidents or only on the continuous course of
| such conduct, but really go by the intensity, gravity
| and stigmatic impact of it when meted out even once
| and the deleterious effect of it on the mental
| attitude, necessary for maintaining a conducive
| matrimonial home. If the taunts, complaints and
| reproaches are of ordinary nature only, the courts
| perhaps need consider the further question as to
| whether their continuance or persistence over a period
| of time render, what normally would, otherwise, not be
| so serious an act to be so injurious and painful as to
| make the spouse charged with them genuinely and
| reasonably conclude that the maintenance of
| matrimonial home is not possible any longer….

(iii) Parveen Mehta v. Inderjit Mehta . An excerpt from it, would run thus:

| 17. This Court, construing the question of mental
| cruelty under Section 13(1)( i-a ) of the Act, in the
| case of G.V.N. Kameswara Rao v. G. Jabilli observed:
| (SCC pp. 303-04, para 12)
|

| | 12. The court has to come to a conclusion whether the
| | acts committed by the counter-petitioner amount to
| | cruelty, and it is to be assessed having regard to the
| | status of the parties in social life, their customs,
| | traditions and other similar circumstances. Having
| | regard to the sanctity and importance of marriages in
| | a community life, the court should consider whether
| | the conduct of the counter-petitioner is such that it
| | has become intolerable for the petitioner to suffer
| | any longer and to live together is i mpossible, and
| | then only the court can find that there is cruelty on
| | the part of the counter-petitioner. This is to be
| | judged not from a solitary incident, but on an overall
| | consideration of all relevant circumstances.

| 21. Cruelty for the purpose of Section 13(1)( i-a ) is
| to be taken as a behaviour by one spouse towards the
| other, which causes reasonable apprehension in the
| mind of the latter that it is not safe for him or her
| to continue the matrimonial relationship with the
| other. Mental cruelty is a state of mind and feeling
| with one of the spouses due to the behaviour or
| behavioural pattern by the other. Unlike the case of
| physical cruelty, mental cruelty is difficult to
| establish by direct evidence. It is necessarily a
| matter of inference to be drawn from the facts and
| circumstances of the case. A feeling of anguish,
| disappointment and frustration in one spouse caused by
| the conduct of the other can only be appreciated on
| assessing the attending facts and circumstances in
| which the two partners of matrimonial life have been
| living. The inference has to be drawn from the
| attending facts and circumstances taken cumulatively.
| In case of mental cruelty it will not be a correct
| approach to take an instance of misbehaviour in
| isolation and then pose the question whether such
| behaviour is sufficient by itself to cause mental
| cruelty. The approach should be to take the cumulative
| effect of the facts and circumstances emerging from
| the evidence on record and then draw a fair inference
| whether the petitioner in the divorce petition has
| been subjected to mental cruelty due to conduct of the
| other.

(iii) A. Jayachandra v. Aneel Kaur reported in 2005-2-L.W.149. An excerpt from it, would run 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 given 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.

18. I am of the considered opinion that the aforesaid excerpts from the decisions of the Honourable Apex Court would be more than sufficient to have a clear understanding as to what type of conduct of a spouse would constitute cruelty as against the other spouse and in the light of the aforesaid decisions, it is just and necessary to analyse and scrutinize the evidence in this case.

19. I am fully aware of the fact that this is a second appeal, but it is a matrimonial matter which has come before this Court after divergent conclusions arrived at by the Courts below. The trial Court granted divorce whereas the first appellate Court reversed it. Hence, the Counsel on either side virtually argued in entirety drawing the attention of this Court to the entire evidence on record.

20. The learned Counsel for the husband would commence his argument by pointing out that within a short span of time after marriage, the husband and wife started living at Manipal so as to enable the husband to continue his further studies (M.S. Ortho..) as he is a Doctor by profession; admittedly, the wife completed the M.B.B.S course just before the marriage; for about ten months, the couple lived there during which period the wife indulged in bickerings and dickerings and also in torturing the husband; during the month of August 1996, the husband for the purpose of preparing for his examinations intensively, made arrangements for the wife to live with her parents in Chennai and that after completing his examinations, he started living with his wife in Chennai as compelled by his wife. Relating to the stay at Manipal, the husband would describe that period as one not a period of happiness as the wife indulged in brainwashing him to separate himself from his father and his family members and that too after getting properties from his father.

21. Whereas the learned Counsel for the wife would highlight placing reliance on Ex. B.7, the letter written by one Dr.Rajasekaran, to the husband to the effect that Indu, the wife referred to in this case, was excellent in cooking and showing hospitality towards Rajasekaran when he visited Manipal. I would like to hold that this sort of letter cannot be relied on by either of the parties to prove the conduct and attitude of a spouse as against the other and that no more elaboration is required in this regard. More often, than not the spouses might be at logger heads as against each other, but courteous and kind towards visitors to their house.

22. The learned Counsel for the wife also would refer to Ex. A.8, the copy of the pre-litigation notice sent by the husband to the wife on 19.03.1998 and develop his argument that at paragraph No. 4 of Ex. A.8, the husband averred that for ten months, there was no problem at Manipal between the husband and the wife and thereafter alone, according to the husband, the wife started picking up quarrels.

23. In the paragraph No. 8 of the petition, the husband averred that even while they were at Manipal, she started pestering the husband to get himself separated from his parents and to obtain the properties from them. As such, Ex. A.8, the pre-litigation notice has to be read in entirety. In paragraph No. 3 itself, he sets out the attitude of the wife and in paragraph No. 4, he generally stated that for ten months, there was no problem. As such, it cannot be stated as though there was no grievance while they were living together at Manipal.

24. Before this Court on the side of the wife, a plea was canvassed to the effect that actually there was no problem between the wife and the husband while they were living at Manipal. But, the perusal of the counter would convey a different idea. The wife would accuse the husband and his mother and younger sister as the persons interested in obtaining dowry; the husband was a drunkard and smoker indulging in drunken driving and a late comer so to say, Johnny come lately at night and indulged in levelling unfounded allegations as against the wife. The facts detailed and delineated supra need not be reiterated here.

25. It is the consistent case of the wife that even before the marriage itself, the dowry demand started from the side of the husband and that alone even made the couple not to go and have the stay at Kodaikanal, despite her father made arrangements for engaging a cottage for the couple to have their honey-moon. As such, on the side of the wife, it cannot be heard to contend that they were living happily. I need not dilate on those facts and mere reading of pleadings and depositions of P.W. 1 and R.W. 1 would demonstrate the same.

26. The wife, as an afterthought, cannot try to project a case as though they lived happily for considerable time after marriage, so to say for a period of two years or so. The wife would project the case as though the dowry demand was the main factor for the rift in the matrimonial relationship between the husband and the wife. But, if that be so, it is not known as to why she had not given any reply to the pre-litigation notice, Ex. A.8, but only after the institution of the case for divorce, the wife had come forward with the theory of dowry. She would try to expound by stating that she was for reunion and hence no reply was given to the notice. However, the factual analysis would evince otherwise.

27. Had really the husband wanted to extract dowry, he would not have chosen to stay with the wife and his parents in Chennai for several months. It is a common sense proposition that a husband who is interested in dowry, would insist “Dowry Payment” as sine quo non i.e., a condition precedent for his living with his wife.

28. In this case, admittedly, from January 1997 till November 1997, the husband and the wife lived in Chennai along with the parents of the wife. This is a peculiar feature which normally one cannot come across in a case of dowry demand. I would like to observe from the voluminous matrimonial cases, which I have come across in Courts that the husband and his family members expecting dowry from the wife’s side, would not permit the husband to stay with the wife along with the wife’s parents and such a husband also would not be interested in living with the wife in the house along with the parents of the wife.

29. I am justified in observing as above from various other events which admittedly occurred in the course of the relationship between the parents’ families of the spouses in this case.

30. Both sides in unison would put forth the case to the effect that when the husband’s brother namely Sathya Prabhu was in London, he had some love affair with a Gujarathi girl; the parents of the husband wanted the help of the wife’s father, R.W. 2 herein, in that matter while R.W. 2 was in Libia; it so happened that R.W. 2, the wife’s father went to London and had his own role in it as narrated by him in his deposition. On the side of the wife, it is argued as though P.W. 3 (husband’s father) persuaded Sathya Prabhu not to marry the said Gujarathi girl and he should come back to India and for that alone, R.W. 2 (wife’s father) was asked to intervene.

31. Whereas P.W. 1 would try to project as though R.W. 2 who is also a Doctor, went to England and stayed there for one month in connection with his medical studies, on the side of the husband, R.W. 2 in fact, was instrumental in bringing about the marriage between Sathya Prabhu and the said Gujarathi girl, but it was denied on the wife’s side. This Court is not very particular as to what role actually R.W. 2 played. But, one fact is clear that there were some amount of cordial relationship between the two families during that period. Ex. B.11, the passport of R.W. 2, the father of the wife, would demonstrate that he visited London from Libia during the year 1996, so to say, before the actual separation resulted between the husband and the wife in this case.

32. It is also in evidence that a sum of Rs. 62,000/- was sent by R.W. 2 to the said Sathya Prabhu. However, on the side of the wife, it is contended that the said amount was sent to Sathya Prabhu as part of the demand of dowry, whereas on the side of the husband, it is contended during arguments that R.W. 2, the father of the wife, could not send the money directly to India to his family and hence, that amount was sent by R.W. 2 to Sathya Prabhu and in turn, P.W. 3, the father of the husband paid the money to the family of R.W. 2 herein, in India. It is also in evidence that a sum of Rs. 75,000/- was sent to R.W. 2 by P.W. 3 for the purpose of enabling him to go to England for the purpose of bringing about some fruitful results in the matter of Sathya Prabhu.

33. The pertinent question arises, if really the husband’s parents’ family and the wife’s parents’ family were at logger heads due to Rs. 5,00,000/- dowry problem, it is not known as to how on the side of the husband, they would have requested R.W. 2, the father of the wife, to go over to London relating to Sathya Prabhu’s matter. Ex. B.1, the letter written by P.W. 3, the father of the husband, to R.W. 2, the father of the wife, which was marked during the cross-examination of P.W. 3, would speak volumes about the non-inimical attitude that prevailed between the two families as on 29.10.1996. The said letter evidences that P.W. 3 sent two Demand Drafts totaling a sum of Rs. 75,000/- so as to enable R.W. 2 to do the needful at London and that if he would be in need of more money, he could get it from one Dr.Somasundaram in London. The deposition of P.W. 3 Rengasamy, the father of the husband would be to the effect that R.W. 2 of his own accord sent a sum of Rs. 62,000/- from Libia in foreign currency to Sathya Prabhu without the permission of P.W. 3; however, R.W. 2 subsequently, after coming to India got back the money from P.W. 3. It is also the contention of P.W. 3 that he gave the aforesaid sum of Rs. 75,000/- in two Demand Drafts by way of loan, but such an explanation is turned out to be false in view of Ex. B.1 as already referred to supra and discussed. I am at a loss to understand as to how dowry could be paid by R.W. 2 to Sathya Prabhu and in the meanwhile, P.W. 3 could send two demand drafts totally for Rs. 75,000/- (Rupees Seventy Five Thousand only) to R.W. 2. A mere analysis of evidence would highlight and spotlight that both sides tried their level best to give their own explanation out of their figment of imagination. As such, after the arisal of the litigation, each side twisted the facts and projected before the Court on that money matter relating to Sathya Prabhu, some explanation which no one would be able to digest. Those events would show that before separation between the husband and the wife in this case, there were some dealings between the two families and some cordial relationship was also there and if dowry was a problem, certainly such sort of relationship might not have existed, is my firm view in this case.

34. As has been already highlighted supra, each side only after the arisal of the litigation between the husband and the wife, tried to give different colours to those money transactions. Ex. B.1, the letter would not indicate anything that there was any dowry problem between the two families on 29.10.1996. As such, the dowry theory as put forth by the wife, appears to be an afterthought.

35. On the one hand, the husband would state that after the return of R.W. 2, the father of the wife, from the foreign country, it was P.W. 1, the husband who made arrangements for his father-in-law to secure a job in Karaikal, whereas that fact was denied. Generally, the facts are admitted, but each side is trying to give a kind of explanation so as to support their respective pleas which they have taken in this case.

36. Both sides in unison would put forth the case that on 20.06.1997, while the husband and the wife were living together in Chennai, the wife underwent abortion and she delivered a dead fetus. The cumulative effect of the evidence would show that the husband was aware of such abortion. On a later date, the wife would accuse the husband, that it was because of dowry demand and mental torture given to her by the husband, such abortion took place. Whereas the husband would state that she voluntarily underwent abortion because she found that quite antithetical to her desire to have a male child, a female fetus was in her womb. Both the Courts below correctly held that each of the spouses, was not justified in accusing each other for the delivery of the dead fetus. The first appellate Court in paragraph Nos.58 and 59 correctly discussed at length as to how both sides were not justified in passing allegations as against each other relating to the delivery of the dead fetus by the wife.

37. Both the Courts below clearly gave a finding that the husband even though had got a job at Kerala, while the wife was pregnant, he has not chosen to go over there, but he preferred to be with her during her pregnancy and that would clearly demonstrate that he was affectionate towards the wife. In such a case, the core question arises as to whether there would have been any dowry torture by the husband or his relatives. The trial Court correctly pointed out that as per the evidence available, the husband and the wife never lived for any considerable time along with the parents of the husband and such fact is also quite obvious from the perusal of the pleadings as well as the depositions of R.W. 1, the wife and P.W. 1, the husband. The first appellate Court at paragraph No. 67 and in paragraph No. 68 of its judgment, simply refrained from giving any finding on dowry harassment on the ground that the police investigation is pending. The appellate Court was not correct in its approach. From the available materials, it ought to have given a specific finding. However, in paragraph No. 68, the appellate Judge disbelieved correctly the dowry theory relating to “Maruthi Car”. It is the duty of the Court seized of the matter to decide on all issues from the materials on record.

38. At this juncture, I would like to recollect the definition of dowry as per Section 2 of the Dowry Prohibition Act, 1961. The important ingredient of ‘dowry’ is that the demand shall be in connection with the marriage and then only, that would constitute dowry. But, in this case, the marriage took place as early as on 11.09.1995 and both of them lived together upto the end of the year 1997 with certain breaks as already narrated supra. Here, the sequence of events does not show that the husband ever demanded dowry. Had he been interested in dowry, he would not have chosen to live with his wife in Chennai during her pregnancy and also started living with her in Coimbatore thereafter also. Cordial relationships as narrated supra would not have existed between the two families, had there been such demand of dowry of Rs. 5,00,000/- (Rupees Five Lakhs only).

39. The husband after such delivery of dead fetus by the wife went to Manipal for about few days and took advice from his Professor and accordingly, it appears, his Professor advised him to have a separate matrimonial home at Chennai itself. However, after his return to Chennai, the wife asked the husband to be with her parents. During November, 1997, he got employment in Ganga Nursing Home in Coimbatore. The wife subsequently, according to the husband, joined him at Coimbatore on a promise that she would not trouble him with her demands as she did earlier, compelling him to estrange himself from his parents etc. But, they lived only for a week or so in Coimbatore because the husband felt that the wife’s stay with him would not be conducive for his peace of mind, due to her cruel conduct towards him. It is the case of the wife that the husband took her to her grandfather’s funeral ceremony at Salem and there, he left her and went away and thereafter, there was no reunion between them.

40. On the side of the wife, it was argued that absolutely there was no evidence to the effect that the wife was causing mental or physical cruelty to the husband and as such, in the absence of such proof, the only presumption is that because of dowry demand alone, the husband shunned the company of the wife. The dowry theory cannot be countenanced for the reasons discussed supra. Such a plea emerged only as an afterthought.

41. It is a trite proposition of law that witnesses might lie, but the circumstances will not lie. The circumstances dealt with in my discussion would show that the dowry was not the problem between the spouses, but there was incompatibility between the two. The wife, only in the counter has set out various allegations as against the husband as though he was indulging in drunken driving, smoking etc. P.W. 2, Baskaran, the relative of P.W. 1, in his evidence, would depose in support of the husband. However, it seems the wife filed a case as against P.W. 2 and his wife also. In such a case, his evidence relegated itself to a lower position in the eye of the law.

42. Ex. B.3, the photograph shows as though the wife’s brother gave currency bundle to P.W. 1, the husband around the time of wedding notice ceremony. Similarly, there are other marked photographs such as Exs.A.3 and B.9 in this case, which shows the currency notes. It is the version on husband’s side that the money was taken back by the wife’s side as revealed in one other photograph. In the written arguments submitted by the wife’s side, various explanations emerged. Simply because in the photographs, some currency notes were found, there is no presumption that it was part of dowry as the evidence in this case demonstrates that in some families, placing money on the plate is part of the rituals and from that, the Court cannot jump to the conclusion that there was dowry demand and it was met from the wife’s side.

43. On the wife’s side, it is contended that Maruthi car and huge quantity of jewels were demanded as dowry by the husband’s side and accordingly, Maruthi car was purchased by the father of the wife by way of hire purchase agreement in his name and handed it over to the husband, which the husband and the wife used it at Manipal. On the wife’s side, it was alleged as though R.W. 1, the husband stood as surety for obtaining loan by R.W. 1’s brother with the expectation that he would give dowry. These are allegations which emerged after the dispute has arisen between the parties and not borne by any clinching evidence. The facts alleged relating to Dowry Harassment are conflicting with the fact of dowry harassment as found set out in the third F.I.R, Ex. A.14. A mere perusal of the counter of the wife with Ex. A.14, the third F.I.R, would clearly demonstrate that as an afterthought, she improved upon her earlier version and heaped up unfounded allegations as against her husband and his relatives. Certain excerpts from Ex. A.14, would run thus:

… My husband and in laws used to beat and torture almost every day demanding money for constructing a Nurshing Home. Mr.Vasudeva Reddiar used to visit my parents and keep on demanding to arrange atleast Rs. 20 lakhs for constructing Nursing Home….

… Since then my father in law, my mother in law, sister in laws and Dr.Prabakar used to keep on harassing me demanding Rs. 20 lakhs as dowry who had M.S(Ortho) had obtained Rs. 20 lakhs as dowry….

44. The above excerpts from Ex. A.14 would clearly show that such versions are not found in the counter filed by her. Furthermore, the allegations as found in the aforesaid excerpts from Ex. A.14, according to the wife, are relating to pre-litigation stage. As such, in one breathe, she would allege as though Rs. 5,00,000/- (Rupees Five Lakhs only) was demanded as dowry and in another breathe, she would allege as Rs. 20,00,000/- (Rupees Twenty Lakhs only) were demanded. A perusal of Ex. A.14 would also clearly show that she alleged about the intervention of various other persons for causing rift in the matrimonial relationship between the husband and the wife and that she would state that her husband connived at and deserted her, but that was not the case of the wife earlier. It is therefore crystal clear that as an afterthought, she levelled various allegations in the third F.I.R.

45. No doubt, the pertinent question arises as to what actuated and accentuated, propelled and impelled the husband to separate himself from the wife and the discussions supra would show that it was not a dowry problem at all. In such a case, it is evident and clear that the husband could not tolerate the conduct of the wife.

46. The husband would contend that the wife often threatened him that she would commit suicide and also rope in, the husband and his parents in dowry case etc. But, in fact, the subsequent conduct of the wife in giving dowry complaint, proves the plea of the husband that the wife intimidated so.

47. As has been already highlighted above, each one is trying to explain the events, in their own way so as to support each one’s plea. The marriage took place on 11.09.1995 and both of them with certain break periods lived upto the end of the year 1997 and thereafter, the said H.M.O.P for divorce was filed by the husband in the month of April 1998. Before the filing of H.M.O.P, at the instance of the wife, the Legal Aid Centre tried to bring about compromise between the parties and that too, after the issuance of legal notice by the husband. But, it ended in a fiasco.

48. The trial Court disbelieved the dowry theory as put forth on the wife’s side. As such, there would have been some chance of reunion between the couple, as the matter stood as on the date of filing of the petition for divorce, but because of the wife’s acts subsequent to the filing of H.M.O.P, the rift in the matrimonial relationship between the husband and the wife got widened abysmally in addition to getting snowballed to such an extent that each one projecting oneself before the trial Court itself that they could not see eye to eye on any issue and they tried to cut the ground under the feet of each other. In fact, both the Courts below considered the seriousness of the subsequent conduct of the wife in fanning the flame and aggravating the problem to the maximum extent, leaving no chance for reunion.

49. The core question arises as to whether the subsequent events namely the filing of three criminal complaints by the wife as against the husband and his relatives, could be taken as additional reasons for granting divorce. The first appellate Court in Paragraph Nos.63, 64 and 65 elaborately dealt with the case laws cited on both sides and held that subsequent events in matrimonial cases could be considered even without amendment of the petition for divorce and I confirm such a view.

50. The learned Counsel for the husband cited the decision in J. Jermons v. Aliammal and Ors. . An excerpt from it, would run thus:

| 33. It may be noted here that there is a fundamental
| difference between a case of raising additional ground
| based on the pleadings and the material available on
| record and a case of taking a new plea not borne out
| by the pleadings. In the former case no amendment of
| pleadings is required whereas in the latter it is
| necessary to amend the pleadings. The Court/Rent
| Controller in its discretion, with a view to do
| complete justice between the parties, may allow a
| party either to raise additional ground or take a new
| plea, as the case may be, if the circumstances so
| justify like a plea based on subsequent events.

One other precedent is as under:

In S. Murugan v. Vaikunda Lakshmi reported in 1998 (2) L.W 100, it has been held thus:

| Subsequent events like allegations in the written
| statement can be taken into account in certain
| circumstances when (1) litigation between the parties
| ought to be shortened and (2) to do complete justice
| between the parties.

51. Whereas the learned Counsel for the wife cited the decision in Om Prakash Gupta v. Ranbir B. Goyal . An excerpt from it, would run thus:

| 11. The ordinary rule of civil laws is that the rights
| of the parties stand crystallised on the date of the
| institution of the suit and therefore, the decree in a
| suit should accord with the rights of the parties as
| they stood at the commencement of the lis. However,
| the Court has power to take a note of subsequent
| events and mould the relief accordingly subject to the
| following conditions being satisfied: (i) that the
| relief as claimed originally has, by reason of
| subsequent events, become inappropriate or cannot be
| granted; (ii) that taking note of such subsequent
| event or changed circumstances would shorten
| litigation and enable complete justice being done to
| the parties; (iii) that such subsequent event is
| brought to the notice of the Court promptly and in
| accordance with the rules of procedural law so that
| the opposite party is not taken by suprise.

52. The learned Counsel for the wife would interpret J. Jermons’s case cited supra to the effect that the husband cannot rely on subsequent events without amendment of pleadings. The words “new plea cannot be allowed to be raised without effecting amendment of pleadings” in the said decision connote that there shall no new plea, but here only additional admitted facts and happenings are relied on by the husband. The plea of cruelty remains unchanged.

53. The learned Counsel for the wife also would submit that as per the decision in Om Prakash Gupta’s case cited supra, there should be amendment of pleadings. I would like to reiterate without being tautologous that here, subsequent events as additional facts showing the attitude of the wife as against the husband and his relatives are placed to buttress the plea of cruelty and it is not a new plea and both sides fully understood the relevant allegations as well and cross-examination was also conducted touching upon those documents evidencing the subsequent conduct of the wife.

54. Hence, I am of the considered opinion that both the Courts below are right in relying on the subsequent events. No doubt, the husband did not get the H.M.O.P amended so as to incorporate the additional facts namely, the act of the wife having filed three criminal complaints as against the husband and his relatives. Even then, on the husband’s side, the evidence was adduced relating to the subsequent events and the wife’s side also cross-examination was conducted on that aspect.

55. Here, it is pertinent to point out that the husband during the trial never relied on any additional grounds except the plea of cruelty and not any other ground such as desertion, etc. But, he adduced more facts in the form of evidence to show the cruelty meted out by the wife as against the husband and his relatives and the relevant documents marked at the second appeal stage are as under:

Sl.No. Exhibit Documents

1. Ex.A.19 Certified copy of the order dated 28.02.2001, passed by the learned Judicial Magistrate, Thuraiyur, in Further Action Dropped No. 6 of 2001.

2. Ex.A.20 Certified copy of the order dated 15.02.2005, passed by the learned Judicial Magistrate, Thuraiyur, in Crl.M.P.No.1062 of 2005.

3. Ex.A.21 Certified copy of the judgment dated 15.03.2005, passed by the learned Judicial Magistrate, Thuraiyur, in C.C.No.278 of 2001.

56. The wife also filed M.P.No. 2 of 2007 to recall the order, but in my opinion, there need not be any recalling of such order as my learned Predecessor had chosen to allow such additional evidence to be placed before this Court as those are all certified copies of Court proceedings which the husband had not created, but all those emerged consequent upon the complaints lodged at the instance of the wife admittedly.

57. On the wife’s side also, M.P. No. 1 of 2007 was filed for reception of additional documents and in fact, the other side had no objection and consequently, those two documents are marked as under:

Sl.No. Exhibit Documents

1. Ex. B.16 The photocopy of the order of this Court dated 02.01.2007 passed in Crl. R.C.(MD) No. 657 of

2005.

2. Ex. B.17 The Copy of the Memorandum of Grounds of Criminal Revision Petition filed before this Court in

Crl. R.C.S.R. No. 5269 of 2007 as against the order of acquittal in C.C.No. 278 of 2001.

58. The wife went to the extent of lodging F.I.R as though the husband was missing and that his relatives are trying to arrange for his second marriage. Ten of his relatives were roped in as accused during the pendency of H.M.O.P. But, the fact remains that as revealed from the deposition of P.W. 1 as well as the findings of both the Courts below, the husband went to France and that fact was twisted by the wife and she deliberately wanted to cause harm to the ten relatives of the husband.

59. A mere perusal of the F.I.R would show that how she was not justified in roping in as many as the ten relatives of the husband, including her in-laws. No plausible explanation has been given as to why she should have suspected as many as ten persons which include both males and females as the persons responsible for the missing of her husband who in fact had gone to France for his medical studies.

60. On the wife’s side, it was tried to be explained and expounded as though she wanted to prevent the second marriage of her husband and that she suspected that the husband was secreted by his ten relatives so as to make arrangements for his second marriage. The very argument which has been put forth so as to explain the conduct of the wife in lodging the F.I.R, is not convincing, but it shows that the wife was bent upon filing false complaints having ulterior motive.

61. The husband issued pre-litigation notice, expressing his desire not to live with the wife. Before the Mediation centre also, he took similar stand and thereafter, he filed the petition for divorce and in such a case, I am at a loss to understand as to how the wife can lodge an F.I.R as though her husband was willing to reunite with her and it was only the husband’s relatives including his parents, had illegally detained him and tried to compel him to marry some other girl for opulent dowry and that too under intimidation. The relevant portion of the F.I.R extracted hereunder would speak volumes about the malicious intention of the wife in lodging such a complaint:

I apprehend that my husband is confined illegally by my in laws and my husband is kept under threat by my in laws to get him married to another girl. Already the police has enquired my in laws to know my husband whereabouts. But my in laws are willfully hiding my husband and are refusing to disclose where my husband is residing. I request the police to take further action to find my husband and make him appear before me. (emphasis supplied.)

Action was dropped by the police in that matter.

62. It is therefore crystal clear that she during the pendency of H.M.O.P wanted to intimidate the husband’s relatives, so that the husband could be coerced to withdraw the divorce petition. For better appreciation, I would like to extract hereunder the names of the accused in that man missing F.I.R and their respective relationship with the husband as under:

Sl. No. Accused Name of the Accused Relationship with the wife

1. A.1   …..Sunitha Gandhi …..Anand’s 2nd sister

2. A.2   …..Dr.Prabakar …..Anand’s 2nd sister’s husband

3. A.3    …..Rangasamy …..Anand’s father

4. A.4   …..Saroja Rangasamy …..Anand’s mother

5. A.5    …..Thenmozhi …..Anand’s 1st sister

6. A.6    …..Rammohan …..Anand’s 1st sister’s husband

7. A.7    …..Sathya Prabhu …..Anand’s brother

8. A.8    …..Vasudeva Reddy …..Anand’s uncle

9. A.9    …..MRs. Vasudeva Reddy …..Wife of Vasudeva Reddy

10. A.10 …..Manjula Baskar …..Anand’s cousin sister

63. The findings of the Courts below are that both the families are having status of their own and affluence and it is also quite obvious, the wife’s side family could be described as ‘family of Doctors’, so much so, on the Doctor husband’s side, his brother is an educated person who studied in London and his brother-in-law is a Doctor and his father is a bus operator having fleet of buses. In such a case, it is crystal clear that the very lodging of such false F.I.R as against both male and female relatives of the husband amounts to cruelty.

64. The learned Counsel for the wife would argue that neither P.W. 1 nor P.W. 3 in the deposition highlighted as to how such complaints were false and how the husband was affected by such complaints. In my opinion, such an argument cannot be countenanced. When circumstances are ex facie and prima facie demonstrate cruelty, there is no requirement on the part of P.W. 1 and P.W. 3 to depose in very many words that because of such false F.I.R lodged as against them by the wife, they have been put to harassment and cruelty both mental and physical. In fact, such an expectation on the wife’s side that the witnesses should have spoken like that, would amount to expectation of artificial element in the evidence.

65. As such, I am of the considered opinion that such filing of false complaint clearly exposes the wife’s attitude towards the husband and his relatives and that the husband therefore was justified in his deposition that even while she was with him, she was bent upon in compelling and pressurizing him in estranging his parents and relatives and his plea is found to have been proved beyond doubt.

66. By way of adding fuel to the fire, she filed the second F.I.R on 03.11.2000 so to say, within a period of three months from the first F.I.R and the fact remains that the first F.I.R was closed by the police. The second F.I.R is to the effect that when she went to the husband’s house seeking compromise, she was beaten by the persons whose names were found in the first F.I.R, and they are her in-laws and her husband’s sister, sister’s husband.

67. The case in C.C. No. 278 of 2001 which emerged consequent upon the said F.I.R dated 03.11.2000 ended in acquittal. On the wife’s side, it was contended by placing reliance on Ex. B.17, that revision has been filed as against such acquittal, but so far nothing is shown as to what is the number of the Criminal Revision Petition etc. Such meek attempts made to keep alive the matter so as to project as though finality has not been attained relating to that case, cannot be taken as a good defence on the wife’s side. The criminal Court acquitted the accused long ago by doubting the version of the wife referred to in this case. After such long delay, it seems, action has been taken as against such acquittal. Now, according to the wife, that finding of the criminal court has not reached finality. The very attitude of the wife in allegedly going to the house of the husband and having invited an unsavory incident on herself, cannot be appreciated.

68. Fourth accused, Dr. Prabhakaran, was not in the scene of crime as per F.I.R, but he allegedly phoned at the time of incident from somewhere, to which A.3 stated about the incident, for which Dr. Prabhakaran was arrayed in F.I.R as A.4 and the fact remains that consequent C.C proceeded without Dr. Prabhakaran being arrayed as accused and the entire case ended in acquittal. As such arraying Dr. Prabhakaran in the F.I.R shows how the complaint was harsh towards the relatives of the husband.

69. The unassailable fact is that in connection with that case registered in Cr.No. 462 of 2000, P.W. 3 was imprisoned for one day and thereafter, only he could get bail and ultimately, he was acquitted. As such, on the wife’s side, it is argued as though for the purpose of protecting her own safety and security, she had lodged such complaints and that she could not be expected to tolerate such injury and humiliation suffered by her. But, one fact is clear that the rift in the matrimonial relationship got worsened beyond repair in view of the wife’s attitude in approaching the problem.

70. I am of the considered opinion that she ought not to have gone there to the house of her father-in-law at all, when the H.M.O.P was pending in the trial Court and that too, when she already lodged an F.I.R as referred to supra. Attached to the trial Court, there are facilities for mediation and it is well known to everyone.

71. Even in that F.I.R, she would state that during her matrimonial life for about two and half years with her husband, he did not beat her and never abused her. But, while deposing before the Court, she as R.W. 1, had a volte face and would go to the extent of deposing that the said version was wrongly inserted in the F.I.R. This clearly exposes the inimical attitude of the wife as against the husband. In fact, in the F.I.R itself, the wife being a Doctor by profession, in Tamil clearly and categorically set out that for about two and half years, she lived happily with her husband and he did not beat her or cruelly treat her or abused her. But, before the trial Court, she did not want to project her husband as a good man, but as a bad man. This attitude in no way, can be taken as a positive and conducive attitude on the part of the wife for resuming cohabitation with the husband.

72. The third F.I.R emerged on 04.11.2000 so to say, within exactly a day after the emergence of the second F.I.R. The third F.I.R in Cr. No. 29 of 2000 was registered for the offences punishable under Sections 498(A) and 506 I.P.C read with Section 4 of Dowry Prohibition Act as against the eleven persons including her husband.

73. As such, in the last F.I.R, the name of the husband has been shown as eleventh accused and other ten accused persons are none, but the very same ten persons shown in the first F.I.R, except for replacement of one Ram Mohan by Baskaran. The said Baskaran is the husband of Manjula. The H.M.O.P was filed during the month of April 1998, but on 04.11.2000, the third F.I.R was lodged alleging as against her husband and his relatives, cruelty and dowry harassment. This clearly shows as to how during the pendency of the proceedings, she determined once for all that there were no probabilities or even remote possibilities of resuming cohabitation with the husband. In fact, admittedly, the police referred the case as mistake of fact and the Magistrate also recorded it. However, it was got reopened by her by filing a petition before this Court and obtaining order as per Ex. B.16, and subsequently, the investigation was got transferred from one police agency to another and now still, it appears, the investigation is pending. Every time, the police version was also that she was not co-operating for investigation for which her argument was that she wanted reunion and hence she did not pursue it. When the husband applied for anticipatory bail, it was the wife who entered appearance as the intervener and resisted the grant of anticipatory bail. But, the wife during arguments would try to conceal and camouflage her inimical attitude as against her husband. As such, no more dilation on the issues is required that the wife has expressed her antipathy, abomination, abhorrence, dislike, odium and detest as against her husband and her in-laws and she also understood fully that there was no chance of reunion and she was bent upon in giving mental and physical torture to the husband and his relatives by filing such belated complaints.

74. As has been already pointed out above, this Court is not very much concerned about the outcome of the investigation which has got reopened. However, the attitude of the wife as set out supra in the facts and circumstances of the case, could rightly be understood.

75. The trial Court after understanding fully the sequence of events as well as the evidentiary aspects, correctly arrived at the conclusion that the divorce was the only solution between the two. However, the first appellate Court on sympathetic grounds reversed the decree of divorce. The discussions of the first appellate Court were far from satisfactory. The appellate Court simply tried to see justifiable reasons in the subsequent conduct of the wife by observing at the end of the paragraph No. 71 of its judgment as under:

Objection petition by the wife, might have arisen due to wrong advice to her. However, highly educated the people are, legal knowledge is not sufficient. Even assuming that there was sufficient knowledge, even educated women are under compelling necessity to act according to the direction of the members of her family, because they are under the protective wing of the family. R.W. 1 was not given opportunity to explain the same. Under such circumstances, it can’t be concluded that only in order to cause harassment the wife opposed the bail application. (emphasis supplied.)

76. A mere reading of the aforesaid excerpt from the judgment of the first appellate Court would show as to how the first appellate Court simply out of sympathy reversed the divorce decree.

77. At this juncture, I would like to recollect the decision of the Honourable Apex Court in A. Jayachandra v. Aneel Kaur reported in 2005-2-L.W.149 as already highlighted supra. Further excerpts from it, would run thus:

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 an other. 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.

14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.

78. The Honourable Apex Court in Naveen Kohli v. Neelu Kohli reported in AIR 2006 Supreme Court 1675 held that filing of criminal complaints would amount to cruelty and paragraph Nos.89 and 90 are extracted hereunder for ready reference:

89. The High Court ought to have appreciated that there is no acceptable way in which the parties can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.

90. Undoubtedly, it is the obligation of the Court and all concerned that the marriage status should, as far as possible, as long as possible and whenever possible, be maintained, but when the marriage is totally dead, in that event, nothing is gained by trying to keep the parties tied forever to a marriage which in fact has ceased to exist. In the instant case, there has been total disappearance of emotional substratum in the marriage. The course which has been adopted by the High Court would encourage continuous bickering, perpetual bitterness and may lead to immorality.

79. As such, the Honourable Apex Court took into account its various earlier decisions and arrived at the conclusion. Here, the discussions supra would clearly show that absolutely there is no possibility of reunion between the husband and the wife and it is because of the mental and physical cruelty caused by the wife to the husband and from the subsequent conducts also of the wife, this Court could reasonably arrive at the conclusion that the husband was justified in filing the petition for divorce before the Court as his living with the wife was impossible.

80. The learned Counsel for the husband relied on one other decision of the Honourable Apex Court in G.V.N. Kameswara Rao v. G. Jabilli . An excerpt from it, would run thus:

8. Another important incident, which found favour with the Family Court is that the respondent had filed a criminal complaint before the police alleging that she was beaten by the appellant and his mother. The appellant and his mother were called to the police station and they had to be there for more than 10 houRs. The explanation offered by the respondent for this incident is far from satisfactory. According to the respondent, she was being ill-treated by the appellant and his mother, and on one day, while preparing the breakfast when she used the blender for grinding the pulses, her mother-in-law got angry and scolded her saying that she had not brought any article from her house, so she should not have used the blender. Further, the respondent alleged that the appellant and his mother threw away all her bags and clothes and the appellant’s mother asked her son to get the respondent out and the appellant became wild and gave a blow to the respondent with a sharp-edged weapon and it was under those circumstances that with bleeding injuries, she had gone to the police station and filed a complaint before the police. It is important to note that the police did not register any case evidently as it was a domestic quarrel and not of a serious nature, and the incident shows the innate lack of self-control which had driven the respondent to this inexorable conduct. But, the humiliation and agony suffered by the appellant and his mother, considering their status in life and the social circumstances, was too much.

It is therefore clear that filing false complaint and harassing the husband and his relatives would amount to cruelty.

81. The learned Counsel for the wife would submit that in the petition, there is no detailing and delineating of each and every act of cruelty. No doubt, if there is one or two specific incidents, that could be detailed and delineated with dates. But, if the conduct of the wife is so incompatible and it was persisting every now and then, then the Court cannot expect the husband to detail and delineate the dates and events in seriatim.

82. The concept condonation as put forth on wife’s side placing reliance on the decision of the Honourable Apex Court in Dastane v. Dastane , is not applicable in this case

as mere living as husband and wife from the date of marriage i.e, 11.09.1995 till the end of the year 1997 with break periods, can by no stretch of imagination be taken as condonation of acts of cruelty committed by the wife. The evidence of P.W. 1 and R.W. 1 would clearly show that because he could not live at Coimbatore with the wife due to her recidivism in her act of cruelty, he took her to Salem and left her there during her grandfather’s funeral ceremony.

83. The learned Counsel for the wife placing reliance on the decisions in (i) Savitri Pandey v. Prem Chandra Pandey and (ii) Naveen Kohli v. Neelu Kohli , would develop his argument that the Honourable Apex Court invoking its power under Article 142 of the Constitution of India granted divorce in various matters on the ground of irretrievable break down of marriage, but the lower Court and the High Court cannot do so. I am of the opinion that here, in view of the facts and circumstances discussed supra, there is no necessity to refer to theory of irretrievable break down of marriage, but the ground of cruelty has been proved and it was the wife who has ushered in divorce, in the matrimonial life between her husband and herself.

84. The records would speak by itself that several Honourable Judges of this Court who dealt with this matter tried to bring about the compromise between the parties, but all ended in vein. Earlier, even before me, the talk of compromise was undertaken, but that did not fructify.

85. As such, I am of the opinion that the trial Court was right in granting the decree of divorce and the first appellate Court was wrong in reversing the judgment of the trial Court. Accordingly, the judgment of the first appellate Court is set aside and the decree of divorce granted by the trial Court is upheld and restored and confirmed. Accordingly, there shall be divorce between the parties.

86. Ultimately for the foregoing reasons, a fortiori, I would hold that there is no other alternative but to uphold and restore and confirm the decree of divorce granted by the trial Court after setting aside the judgment and decree of the first appellate Court and accordingly, it is ordered and the Civil Miscellaneous Second Appeal is allowed. No costs.

source
http://www.indiankanoon.org/doc/503153/