Tag Archives: AP HC

When a PARAMOUR sought maintenance from his mistress & was denied by AP HC!

A paramour who lived-in with a woman when he was already legally married to another with three other children, tries to file a restitution (RCR – sec 9 HMA) on her !! She seems to have filed a 498a cocktail in response !!. The 498a is quashed because she is NOT the legally wedded wife of that guy. Then this Paramour goes on to file Sec 125 against that woman !!! (yes !) and the lower court seems to have admitted the case. So the wife goes for quashing the case

and the Hon AP HC appreciates the facts and orders “…….When the husband is not entitled to claim maintenance even from his legally wedded wife by pressing into service Section 125 Cr.P.C., the question of claiming maintenance by a paramour from a kept mistress or a husband from his second wife is unimaginable. Allowing a paramour to claim maintenance from his kept mistress or concubine under Section 125 Cr.PC., certainly would amount to making mockery of the provisions of Cr.P.C. If this type of petitions are allowed, the very purpose of Section 125 Cr.PC will be defeated or frustrated.

  1. From a perusal of the record, it is manifest that the first respondent instituted the proceedings against the petitioner with an ulterior motive to wreak vengeance against her. When the statute itself does not entitle a husband to claim maintenance, petition under Section 125 Cr.PC is not maintainable. ….”

Well.. court cases are stranger than fiction !!

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Andhra High Court

Smt.Malleshwaramma, … vs G.S.Srinivasulu, … on 15 July, 2016

THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY

CRIMINAL PETITION No.6481 OF 2010

15-7-2016

Smt.Malleshwaramma, D/o.K.Venkataiah ..PETITIONER

G.S.Srinivasulu, S/o.Satyanarayana And another …RESPONDENTS

Counsel for Petitioner  :Sri C.M.R.Velu

Counsel for Respondent No.1:Ms.G.Sudha
Counsel for Respondent No.2:Public Prosecutor

HEAD NOTE:

? Cases referred
1.      AIR 1988 SC 644
2.      (2005) 3 SCC 636
3.      2006(2) ALD (Crl.) 493 (AP)
4.      (2014) 1 SCC 188
5.      Keynote address on Legal Education in Social Context delivered at National Law University, Jodhpur on October 12, 2005.
6.      III (2015) DMC 705 (MP)
7.      1982 CRI.L.J. 1022
8.      (2011) 12 SCC 189
9.      Mohabhai Ali Khan v Mohd. Ibrahim Khan, (1928-29) 56 IA 201: AIR 1929 PC 135
10.     (2002) 3 SCC 533
11.     1992 Supp (1) SCC 335
12.     (2009) 3 SCC 78
13.     (1976) 3 SCC 736
14.     (2007) 12 SCC 1

THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY

CRIMINAL PETITION No.6481 of 2010

ORDER:

  1. This petition is filed under Section 482 Cr.P.C., to quash the proceedings in M.C. No.7 of 2010 on the file of the Judicial Magistrate of First Class, Shadnagar.
  2. The facts leading to filing of the present criminal petition are as follows: The first respondent herein filed M.C. No.7 of 2010 claiming maintenance of Rs.8,000/- per month from the petitioner alleging that she is his legally wedded wife and the first respondent is unable to maintain himself due to ill health. It is the case of the first respondent that his marriage was solemnized with petitioner on 27.10.1994 at Yadagirigutta as per the customs prevailing in their community. Immediately after the marriage, the petitioner joined with him to lead conjugal life and they were blessed with a daughter by name Srilatha. The petitioner left the matrimonial home of the first respondent along with her daughter at the instigation of her parents. Prior to the marriage, the first respondent helped the petitioner to prosecute her studies and get job in Health department. The first respondent filed O.P. No.72 of 2006 for restitution of conjugal rights on the file of the court of Senior Civil Judge, Mahabubnagar and the same was allowed on 14.11.2007. Basing on the complaint of the petitioner, the Station House Officer, Atchampet Police Station, Mahabubnagar District registered a case in Crime No.30 of 2007 for the offences under Section 498A, 506 and 509 IPC against the first respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  3. The contention of the learned counsel for the petitioner is three fold: (1) the petitioner is not the legally wedded wife of the first respondent; (2) a husband is not entitled to claim maintenance from his wife under Section 125 Cr.PC; and (3) the proceedings against the petitioner are nothing short of abuse of process of law; therefore it is a fit case to quash the proceedings by exercising inherent jurisdiction under Section 482 Cr.PC. Per contra, learned counsel for the first respondent submitted that under Section 125 Cr.P.C., first respondent is entitled to claim maintenance from the petitioner, who is his legally wedded wife. She further submitted that the order passed in O.P. No.72 of 2016 clinchingly establishes that the petitioner is legally wedded wife of the first respondent.

  4. To substantiate the argument, learned counsel for the petitioner has drawn my attention to the following decisions: (i) Smt.Yamunabai Anantrao Adhav v Anantral Shivaram Adhav , wherein the Honble Apex Court held as follows: 8. We, therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of Section 125 of the Code. The appeal is accordingly dismissed. (ii) Savitaben Somabhai Bhatia v State of Gujarat , wherein the Honble Apex Court held as follows: 15. .. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is therefore not entitled to the benefit of Section 125 of the Code or the Hindu Marriage Act, 1955 (in short the ‘Marriage Act’). : (iii) Buddepu Khogayya v Buddepu Kamalu , wherein this court held as follows: 7. Therefore, the averment itself clearly indicates that there is legally wedded wife to the first respondent by the date of marriage of the petitioner. Hence, she cannot be treated as wife as per the provisions of Section 125 Cr.PC and therefore, she is not entitled for any maintenance.

  5. The learned counsel for the first respondent, while submitting that strict proof of marital relationship is not necessary in proceedings under Section 125 Cr.P.C., relied upon the following decisions: (i) Badshah v Urmila Badshah Godse , wherein the Honble Apex Court held as follows: 13.3. While dealing with the application of a destitute wife or hapless children or parents under this provision (Section 125 Cr.PC), the Court is dealing with the marginalized sections of the society. The purpose is to achieve social justice which is the constitutional vision, enshrined in the Preamble of the Constitution of India.  4. Of late, in this very direction, it is emphasized that the courts have to adopt different approaches in social justice adjudication, which is also known as social context adjudication as mere adversarial approach may special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently: It is, therefore, respectfully submitted that social context judging is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the social-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication . (ii) Roshan Singh Nepali v Meena Nepali , wherein the Madhya Pradesh High Court observed as follows: 4. In a proceeding under Section 125 of the Code, the Court is expected to pass appropriate order after being prima facie satisfied about the relation status of the parties. (iii) Aijaz Ahmad Lalri v Smt.Shahjehan Begum , wherein Allahabad High Court held as follows: The proceedings under Section 125, Cr.PC may be akin to civil proceedings, but one important distinction between the two cannot be overlooked, namely, the object behind the enactment of maintenance provisions in the Cr.PC. The crux of the matter always is whether the party claiming maintenance has the means or not. The law of pleading in civil cases may be more strict, but it may not be so when the matter of public policy and its objective are involved. Apart from that, the powers under Section 482 Cr.PC are exercised to secure the ends of justice and to prevent abuse of the process of any law and when the clear finding of fact is that the opposite parties have no means to maintain themselves, the Court will not exercise any such inherent powers in favour of the applicant on account of any defect in pleadings. (iv) Pyla Mutyalamma v Pyla Suri Demudu , wherein the Honble Apex Court held at Para No.1 as follows: Under the law, a second wife whose marriage is void on account of survival of the previous marriage of her husband with a living wife is not a legally wedded wife and she is, therefore, not entitled to maintenance under Section 125 Cr.PC for the sole reason that law leans in favour of legitimacy and frowns upon bastardy . But, the law also presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a long number of years and when the man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.

  6. From the above case law the following principles can be deduced. (1) If a man and woman lived together for such a long time as wife and husband, the wife is entitled to claim maintenance under Section 125 Cr.P.C., notwithstanding establishment of marriage as per the provisions of the Hindu Marriage Act; (2) A man who marries second time by concealing the subsistence of his valid marriage with another woman cannot escape from payment of maintenance to the second wife under Section 125 Cr.PC; 3) A woman who marries a man knowing fully well about subsistence of his valid marriage with another woman is not entitled to claim maintenance under Section 125 Cr.PC. (4) While dealing with the petitions filed under Section 125 Cr.PC prima facie proof of relationship is sufficient to award maintenance.

  7. Let me consider the facts of the case on hand in the light of the above legal principles. Establishment of prima facie relationship of wife and husband is sine qua non to file petition under Section 125 Cr.PC. If the parties to the proceedings under Section 125 Cr.P.C., are Hindus, the claimant has to establish that the marriage with the first respondent is legally valid and their marriage is not hit by Sub-section (1) of Section 5 of the Hindu Marriage Act.

  8. The crucial question that falls for consideration is whether the first respondent is entitled to claim maintenance from the petitioner by filing petition under Section 125 Cr.P.C or not. As per the averments made in the petition (M.C.), the marriage of the first respondent was performed with the petitioner on 27.10.1994 at Yadagirigutta as per the customs prevailing in their community. Basing on the petition averments, one can safely come to a conclusion that the petitioner is the only legally wedded wife of the first respondent. The first respondent filed O.P. No.72 of 2006 on the file of the court of Senior Civil Judge, Mahabubnagar against the petitioner under Section 9 of the Hindu Marriage Act for restitution of conjugal rites and the same was allowed on 14.11.2007. The first respondent is placing much reliance on the order in the O.P. to establish that the petitioner is his legally wedded wife. It is not in dispute that the petitioner did not contest the O.P.; therefore, the court passed the ex parte order. Basing on the complaint lodged by the petitioner, the Station House Officer, Atchampet Police Station registered a case in Crime No.30 of 2007 against the first respondent for the offences under Sections 498A, 506 and 509 IPC. The first respondent obtained anticipatory bail in Crl.P. No.6818 of 2007 on 18.11.2007. For better appreciation of the rival contentions, it is not out of place to extract paragraph No.2 of Crl.P.No.6818 of 2007. 2. As per the said report, the petitioner herein was married and was having three children. He developed contact with her in the year 1994 when she was working at Government Civil Hospital, Perur. They together lived for 10 years at Shadnagar, Mahaboobnagar District and they were blessed with a daughter aged 11 years. It is said that suspecting her character and making wild allegations, he used to abuse her and threaten her saying that he will kill her and her daughter. He also used to abuse on Telephone the staff working in the hospital.

  9. A reading of the above paragraph clearly shows that the first respondent has taken a specific stand that he developed intimacy with the petitioner in the year 1994. If the contents of this criminal petition are taken into consideration, the first respondent did not marry the petitioner. The first respondent also filed Crl.P.No.2745 of 2007 seeking to quash the criminal proceedings against him in Crime No.30 of 2007 on the file of the Station House Officer, Atchampet Police Station. This court, vide order dated 20.7.2007, allowed the criminal petition and quashed the criminal proceedings against the first respondent in Crime No.30 of 2007 for the offence under Section 498A IPC. The relevant observations in the order read as follows: Even if the entire allegations in the complaint are taken as true and correct, they do not go to show that the de facto complainant is the legally wedded wife of the petitioner. At best, it would go to show that the de facto complainant was kept mistress. It is also stated that the petitioner was having wife and three children. The petitioner was harassing her after making her as his second wife. He was suspecting the conduct of the de facto complainant and was abusing her in vulgar language and he also threatened to kill her and her child. Therefore, the allegations do not show prima facie case of the offences under Sections 506 and 509 IPC. Hence, question of quashing the proceedings does not arise. Prima facie Section 498A IPC has no application. Hence, the proceedings are liable to be quashed.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  10. This court made an observation that the petitioner is only kept mistress of the first respondent basing on the stand taken by the first respondent in Crl.P. No.2745 of 2007.

  11. Before filing M.C. No.7 of 2010, the first respondent has taken specific stand that he developed intimacy with petitioner in the year 1994 which resulted in the birth of Srilatha. The fact remains that the petitioner was having legally wedded wife before developing contacts with petitioner in 1994. Even as per the case of the first respondent, he was blessed with three children through his first wife. In order to constitute a valid marriage, neither of the partiesif they are Hindusshall have a spouse living at the time of marriage in view of Sub-section (1) of Section 5 of the Hindu Marriage Act.

  12. Having regard to the facts and circumstances of the case and also the principles enunciated in the decisions cited supra, I am unable to accede to the contention of the learned counsel for the first respondent that the petitioner is the legally wedded wife of the first respondent.

  13. Even assuming, but not admitting, that the first respondent is husband of the petitioner, the point to be determined in this case is, whether a husband is entitled to claim maintenance from wife by filing petition under Section 125 Cr.PC. It is not out of place to extract hereunder the relevant portion of Section 125 Cr.PC.

  14. Order for maintenance of wives, children and parents: (1) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

  15. The object of Section 125 Cr.PC is to wipe off the tears of destitute wife, hapless legitimate or illegitimate children and parents. The Parliament in its wisdom incorporated Section 125 Cr.PC to achieve the above social object. There is a social and legal obligation on the part of a man to look after the welfare of his wife, legitimate and illegitimate minor children and parents. There is no ambiguity in the language employed in Section 125 Cr.PC.

  16. It is a cardinal principle of interpretation of statutes that the court shall not substitute or omit any of the words used in the statute unless there is ambiguity in it. The court has to interpret the words used in a statute in the context and the purpose for which it is used. In interpreting a statutory provision, the first and foremost rule of interpretation is the literal construction. All that the Court has to see, at the very outset, is what the provision says. If the provision is unambiguous and if, from the provision, the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intent is not clear.

  17. In Padma Sundara Rao v State of T.N. , the Honble Apex Court in paragraph No.12 (relevant portion) observed as follows: It is well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said.

  18. It appears, the Parliament, in its wisdom, intentionally not included the words husband or spouse after the words his wife and preceding the words unable to maintain in clause (a) of Sub- section (1) of Section 125 Cr.PC; therefore, a husband is not entitled to file application under Section 125 Cr.PC claiming maintenance from the wife. My view is supported by Section 24 of HM Act, which reads as follows: 24 Maintenance pendente lite and expenses of proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the first respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the first respondent, it may seem to the court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

  19. A perusal of Section 24 of H.M. Act makes it clear that not only the wife but also the husband is entitled to claim maintenance on showing that he has no independent source of income. However, the husband will have to satisfy the court that either due to physical or mental disability he is handicapped to earn and support his livelihood.

  20. After reading Section 24 of H.M. Act and Section 125 Cr.P.C., the court can safely arrive at a conclusion that under Section 125 Cr.P.C., husband is not entitled to claim maintenance from his wife. When the husband is not entitled to claim maintenance even from his legally wedded wife by pressing into service Section 125 Cr.P.C., the question of claiming maintenance by a paramour from a kept mistress or a husband from his second wife is unimaginable. Allowing a paramour to claim maintenance from his kept mistress or concubine under Section 125 Cr.PC., certainly would amount to making mockery of the provisions of Cr.P.C. If this type of petitions are allowed, the very purpose of Section 125 Cr.PC will be defeated or frustrated.

  21. From a perusal of the record, it is manifest that the first respondent instituted the proceedings against the petitioner with an ulterior motive to wreak vengeance against her. When the statute itself does not entitle a husband to claim maintenance, petition under Section 125 Cr.PC is not maintainable. (i) In State of Haryana v. Bhajan Lal , the Honble Supreme Court held at clause (7) of paragraph No.102 as follows: (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (ii) In V.Y. Jose v. State of Gujarat , the Honble Supreme Court held at paragraph No.23 as follows: 23. Section 482 of the Code of Criminal Procedure saves the inherent power of the court. It serves a salutary purpose viz. a person should not undergo harassment of litigation for a number of years although no case has been made out against him. (iii) In State of Karnataka v L.Muniswamy , the Supreme Court observed that the wholesome power under Section 482 Cr.P.C., entitles the High Court to quash proceedings when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. (iv) A three-Judge Bench of the Supreme Court in Inder Mohan Goswami v State of Uttaranchal , after examining the scope and ambit of Section 482 of the Criminal Procedure Code, observed that inherent powers under Section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be fully justified in preventing injustice by invoking the inherent powers of the Court.

  22. Having regard to the facts and circumstances of the case and also the principles enunciated in the cases cited supra, I am of the considered view that continuation of the proceedings against the petitioner would certainly amount to abuse of process of law. Therefore, it is a fit case to quash the proceedings against the petitioner in order to secure ends of justice. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  23. In the result, the criminal petition is allowed, quashing the proceedings in M.C.No.7 of 2010 on the file of the Judicial Magistrate of First Class, Shadnagar. Miscellaneous petitions, if any pending in this criminal petition, shall stand closed.

T.SUNIL CHOWDARY, J

July 15, 2016.


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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.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Removing mangasutra, ill-treating husband, neglecting household & child, ALL cruelty. AP HC confirms Divorce

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

The Honourable HC appreciates the evidence on record and summarises as follows
*  ……At the outset it must be stated that this petition is filed not on the ground of desertion nor anything else except cruelty by the appellant (wife) to the respondent (husband).
*  ……It is for the respondent (husband) to establish the cruelty by his wife, towards him.
*  ……Even if the appellant is cruel, it does not make any difference.
*  ……In this connection various decisions of the Supreme Court have been referred to.
*  ……The Supreme Court held that the onus is upon the petitioner to establish cruelty.
*  ……He has to fall or succeed on his own evidence and not on the laches of the other spouse.

*  ……A threat by wife to her husband that she would put an end to her life or that she would be set herself to fire is sufficient to imperil the happiness of the husband.
*  ……The act like removing Mangala-sutram etc., beating the child would amount to cruelty, Admittedly, the respondent is not having her Mangalasutram or Pasuputadu on her neck while giving evidence. She removed, it even though the marriage was subsisting and her husband is alive. Such act is not expected from an educated Hindu Brahmin Woman. Here it may be mentioned that this Court requested one of the junior Advocates of Sri C.V.N. Sastry to examine and find out whether the appellant-wife is wearing Mangalasutram or not. On verification, he informed the Court that the appellant is not having mangalasutram or Pasuputadu….”

*  ……Be that as it may, cruelty need not be physical. It can be mental cruelty making the life of husband miserable always with quarrel. Frequent desertion itself is sufficient cruelty to attract the provisions of the Hindu Marriage Act. Mental cruelty itself is sufficient to cause greater injury and creates a resonable apprehension that it will be harmful and unsafe to live with her. The Court below has elaborately dealt with the aspect of the matter in paragraph 18 of its judgment and held that there is no reason for the wife to live away from her husband. The reasoning given by the Court below is cogent and convicing and does not call for interference in appeal…..

*  ……The respondent-husband deposed as P.W. 1 and his evidence is corroborated by the evidence of his father who was examined as P. W. 2. There is no reason to discredit their evidence. From their evidence it is clear that the wife was treating her husband with cruelty and she never showed any affection towards him. She made his life miserable and therefore she is responsible for breaking down his family life. The learned Magistrate, who tried the maintenance case also came to the conclusion that the wife is responsible for breaking down the marriage. Therefore, having regard to all the circumstances of the case, we find that the appellant-wife was responsible for the failure of the marriage, and that the respondent-husband has established that the appellant behaved cruelly towards him.

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ANDHRA HIGH COURT

SMT. PARIMI MEHAR SESHU VS PARIMI NAGESWARA SASTRY

29 APRIL, 1993

EQUIVALENT CITATIONS: AIR 1994 AP 92, 1993 (2) ALT 489, I (1994) DMC 417

AUTHOR: G R RAO

BENCH: G R RAO, G N RAO

ORDER G. RADHAKRISHNA RAO, J.

1. This civil miscellaneous appeal was brought in challenge against the order passed by the learned Subordinate Judge, Gudivada, in O.P. No. 99 of 1989 on his file; whereby the learned Subordinate Judge found that the petitioner, respondent herein, has established that the respondent, appellant herein, behaved cruelly towards him and that, therefore, the petitioner is entitled for divorce.

2. The facts of the case in brief, are as follows: The marriage between the petitioner and the respondent had taken place on 26th February, 1982 at Eluru according to Hindu rites and customs. Later, the marriage was consummated. Thereafter, the respondent joined the petitioner and lived for about three months at Gudivada. In or about 1983, the petitioner shifted his family to Mangalagiri where he was working as Lecturer. Out of their wedlock, in the year 1982, a male child was born. The respondent developed aversion towards the male child and did not choose to pay proper care and attention. Ultimately, the boy died due to lack of proper care. The respondent openly expressed her disliking towards the petitioner. The respondent treated the petitioner with cruelty. In the year 1983, she left her parents house. When requested by the petitioner, the respondent bluntly refused to join the petitioner. Subsequently, the respondent and her mother came to Mangalagiri and stayed nearly for one month. During that period also, the respondent treated the petitioner with cruelty. In the month of February, 1984, the respondent and her mother left the petitioner’s house without informing him. Subsequently, the petitioner came to know that the respondent gave birth to a female child. When the petitioner’s father went to see the child, he was insulted by the relatives of the petitioner. He came back to Mangalagiri and informed the same to the petitioner. Thus the respondent treated the petitioner with cruelty and developed aversion towards him.

3. The respondent-wife filed a counter resisting the averments made in the petition. She admits the marriage and their relationship as man and wife. She also admits that she gave birth to a male child on 27-12-1982. It is admitted by her that subsequently disputes arose between both of them due to the interference by the parents of the petitioner. According to her, the parents of the petitioner have no liking towards her and, therefore, they have been instigating their son, petitioner, to ill-treat her. The petitioner insisted on abortion for which the respondent did not agree. He used to send her to Eluru on some pretext or the other on the ground that she was unwell and required medical attention. She was not taken after the death of the male child. Therefore, she went to Mangalagiri along with her mother. The respondent again became pregnant. The petitioner insisted on abortion as he does not like children at early age. Thereafter, disputes arose between the petitioner and the respondent. Therefore, the respondent was brought to Gudivada and kept her in the house of his grand-mother. Ten days thereafter she was driven out of the house after taking all the jewellery. She was compelled to file M.C. No. 10/ 86 on the file of the First Class Magistrate, Eluru. She also filed O.S. 148/86 on the file of the District Munsif, Gudivada, for partition of joint family properties. She admits that she is ready and willing to join her husband, respondent. She asserts that the parents of the petitioner are responsible for the failure of the marriage and now she is employed in a local College at Eluru. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. The petitioner examiend (himself) as P.W. 1 and got his father examined as P. W. 2. On the other hand, the respondent examined herself as R.W. 1 and got examined her brother and uncle as R.Ws. 2 and 3 respectively. Exs. A1 to A10 were marked on behalf of the petitioner. Hearing the counsel on either side, going through the entire evidence on record and considering the facts and circumstances of the case, the learned Subordinate Judge came to the conclusion that the petitioner has established that the respondent behaved cruelly towards him and that, therefore, he is entitled for divorce. Aggrieved by the aforesaid order, the respondent-wife has preferred this civil miscellaneous appeal.

5. It is vehemently contended by the learned counsel for the appellant-wife that the Court below erred in holding that the respondent has made out a case of cruelty and that he is entitled for divorce. The evidence of P.Ws. 1 and 2 is discrepant and is not corroborated by any independent evidence. There is no clear finding based on any legal evidence to justify the conclusion reached by the court below. It is contended further that the Court below should have seen that the acts and conduct attributed to the appellant, even assuming it to be true, do not amount to cruelty warranting a decree of divorce. It is further contended that the petition for divorce is not bona fide and that it is filed with a view to get rid of the appellant and contract a second marriage. On the other hand, it is the contention of the learned counsel for the respondent that the appellant used to abuse the respondent in vulgar language, that she openly expressed her disliking towards the respondent, that the appellant treated the respondent with cruelty and that the respondent’s father was insulted by the relatives of the appellant. Therefore, it is prayed that the conclusion arrived by the Court below is correct and a decree of divorce may be granted on the peculiar facts and circumstances of the case.

6. To appreciate the rival contentions advanced by both the learned counsel appearing for the parties, it would be necessary to look into the evidence adduced by the parties.

7. The petitioner himself examined as P.W.1, who deposed that the respondent-wife never respected him as her husband. She treated him like a boy friend. She used to say that if her father was alive, she would have married her cousin and she does not like the petitioner. On 27-12-1982 a son was born at Eluru. In the third month she brought the child to Gudivada. They shifted to Mangala-giri in July, 1983. At Mangalagiri daily she was picking up quarrel. She was abusing him, spitting in the meals plate and eventually she poured hot coffee on his testicles. She was not giving breast feeding to the child. Therefore, the health of the boy was spoiled and ultimately the boy died. It was only due to the negligence and carelessness of the attitude of the respondent, the child died. He further deposed that she used to comment him as an ‘animal’. She does not give any respect to him. She was not interested in seeing the welfare of the petitioner and his people. She tied a banian around her neck and tried to commit suicide. He deposed further that the mother and brother of the respondent advised her to behave property and not to ill-treat the petitioner. Exs. A3 and A4 are the letters written by the mother and brother of the respondent. She went to Gudivada, stayed for one week and went away without informing anybody. When she went to the house of one Sri Srinivasacharyulu, Advocate at Eluru, he advised her to live with her husband properly. She was taken to Gudivada where she stopped taking food. Two days after she went to Eluru, the respondent brought her to Mangalagiri. Both of them stayed there for one’ month. Afterwards, the respondent left the house on 31-1-1984. He went to Eluru on 7-3-1984 to bring her back, but she refused to come with him. On 11-9-1984 she gave birth to a female child. On 3-3-1985 the respondent, her mother and child and other elders came to Mangalagiri. At their instance the respondent executed a letter that she would behave properly; certified copy of which is marked as Ex.A-5. She stayed for about ten days and again went away and he never advised her for abortion. He further deposed that the respondent filed M.C. 10 of 1986 on the file of the First Class Magistrate, Eluru, for maintenance and subsequently it was dismissed on the ground that the respondent deserted her husband; certified copy of which is marked as Ex. A-6. It is suggested to him that the mother of the petitioner was interested in another alliance; but against her wish the petitioner married the respondent and that, therefore, she developed ill-will or grudge against the respondent. Even though the witness was cross-examined at length, nothing could be elicited to prove that what all he deposed is not correct. The petitioner further deposed that the respondent did not evince interest with him to have conjugal happiness. He has to act according to her wish. If she has no desire, she never allowed him to sleep with her. It is suggested to him that he was very cruel in the bed room, very rude towards her and he was behaving like a sadist. The respondent expressed her desire to keep her mother with her and when the petitioner did not agree for it, all these troubles started. She was not co-operating with him in all the matters. He never kicked her on the stomach and he was never cruel towards her. P.W. 2 is the father of the petitioner. He deposed that both parties lived together after marriage; but she was quarrelling with her husband always. The evidence of P.W. 2 is corroborated by the evidence of P.W. 1 in all material particulars.

8. The respondent gave evidence as R.W. 1. She denied the allegations made in the petition. She deposed that after marriage she came to Gudivada and lived with her parents-in-law. Her mother-in-law was not affectionate towards her as she intended to perform the marriage of her son with another girl of her choice. At her instance, the petitioner used to ill-treat her by beating and abusing. Up to third month of the child she was giving feeding; but she became sick and was admitted in the hospital. The petitioner and his mother were harsh towards her. He used to bite on her breasts. He used to have breast milk preventing the baby and depriving the baby to have the milk. He used to kick her on the stomach, so that the pregnancy may terminate. She asserted that she never poured hot coffee on the testicles of the petitioner. She deposed that she is ready and willing to live with her husband. She is not responsible for breaking of the marriage. She admits that she is not wearing mangal sutram’ nor ‘pasuputadu’ at present. She admits that there was no dispute on the first pregnancy and she stated in her maintenance petition that her husband is good . She never wrote any letter to her people that she was ill-treated by the petitioner or his parents. She alleged that she was not having any milk to feed the baby as P.W. 1 (Petitioner) used to suck them always. She never went to any doctor for treatment of the injuries she got during sexual intercourse with the petitioner. She never attempted to commit suicide with the banian of the petitioner. The petitioner has nothing to do with the abortion of the second pregnancy. The petitioner filed this petition with a view to have second marriage. R.W. 2 is the brother of the respondent. He deposed that his sister was always willing to live with her husband. Himself and his mother have no capacity to maintain the respondent. The evidence of R.W. 2 is corroborated by the evidence of R.W. 1. R.W. 3 deposed that on one day the respondent, P.W. 1 and P.W. 2 came to his house from Gudivada. They left the respondent at his house saying that they would come back again but they did not come back. Therefore, he issued a telegram to the mother of the respondent who was in Madhya Pra-desh. The petitioner did not allow the respondent into the house. Therefore, they took back the respondent to Gudivada. There also they did not allow her into the house. Again they took her to Mangalagiri and left her there. Thereafter, they went away. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9. At the outset it must be stated that this petition is filed not on the ground of desertion nor anything else except cruelty by the appellant to the respondent. It is for the respondent to establish the cruelty by his wife, towards him. Even if the appellant is cruel, it does not make any difference. In this connection various decisions of the Supreme Court have been referred to. The Supreme Court held that the onus is upon the petitioner to establish cruelty. He has to fall or succeed on his own evidence and not on the laches of the other spouse. The Supreme Court also held that in matrimonial cases strict proof is not necessary. The Court must be satisfied on matters alleged before it. A reasonable satisfaction by the Court is sufficient. The satisfaction should be based on preponderance of the probabilities and not on absolute satisfaction beyond reasonable doubt. The Court should consider that the petitioner is riot taking any undue advantage of the circumstances in his favour. A threat by wife to her husband that she would put an end to her life or that she would be set herself to fire is sufficient to imperil the happiness of the husband. The act like removing Mangala-sutram etc., beating the child would amount to cruelty, Admittedly, the respondent is not having her Mangalasutram or Pasuputadu on her neck while giving evidence. She removed, it even though the marriage was subsisting and her husband is alive. Such act is not expected from an educated Hindu Brahmin Woman. Here it may be mentioned that this Court requested one of the junior Advocates of Sri C.V.N. Sastry to examine and find out whether the appellant-wife is wearing Mangalasutram or not. On verification, he informed the Court that the appellant is not having mangalasutram or Pasuputadu. After hearing arguments, the appeal was posted for judgment next day. Today the appellant filed a petition requesting the Court that the matter may be posted before another Bench. We declined to do so and this practice of filing such petitions should not be encouraged.

10. Be that as it may, cruelty need not be physical. It can be mental cruelty making the life of husband miserable always with quarrel. Frequent desertion itself is sufficient cruelty to attract the provisions of the Hindu Marriage Act. Mental cruelty itself is sufficient to cause greater injury and creates a resonable apprehension that it will be harmful and unsafe to live with her. The Court below has elaborately dealt with the aspect of the matter in paragraph 18 of its judgment and held that there is no reason for the wife to live away from her husband. The reasoning given by the Court below is cogent and convicing and does not call for interference in appeal.

11. The respondent-husband deposed as P.W. 1 and his evidence is corroborated by the evidence of his father who was examined as P. W. 2. There is no reason to discredit their evidence. From their evidence it is clear that the wife was treating her husband with cruelty and she never showed any affection towards him. She made his life miserable and therefore she is responsible for breaking down his family life. The learned Magistrate, who tried the maintenance case also came to the conclusion that the wife is responsible for breaking down the marriage. Therefore, having regard to all the circumstances of the case, we find that the appellant-wife was responsible for the failure of the marriage, and that the respondent-husband has established that the appellant behaved cruelly towards him.

12. We have scanned the entire material and evidence let in by both the parties and we do hot find any law in the order under appeal. The reasoning and the conclusion arrived at by the Court below are sound and does not call for our interference in this appeal. Consequently, the appeal is dismissed. There will be no order as to costs.

13. Appeal dismissed.

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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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Wife making wild allegations in written statement is cruelty by wife !. Husband wins divorce on cruelty ! AP HC case

A well educated wife makes wild and reckless statements against her husband in addition to physically and mentally abusing him ! She then goes on appeal trying to deny him divorce. She claims she wants to live with him. The Hon HC sees thru her tricks and dismisses her appeal !!

Husband wins divorce on grounds of cruelty ! AP HC

The Honourable court lists the acts of the wife

“…13. ……. If we judge the evidence in the case, we find that the wife treated the husband from the time of marriage in a most inhuman manner. She was constantly harassing him, humiliating him and attributing various unbearable things to him. She was always referring to him as “Neechuda, Dharidruda, Tragubrothu” (Telugu words) and a debauchee suffering from all venereal diseases.” It has come out in the evidence of P.W.1 that in addition to ill-treating him and humiliating him, she used to comment about the size of his penis and used to compare it with the penis of other physically well-built people. P.W.1 also claims that she was ill-treating his relations and she was even commenting that the petitioner is not fit enough to have sexual intercourse with her. In fact, he claims that right in front of his father she told him that he is not fit to be her husband, and that she would choose to have more competent well-built man as a companion. He also states that she used to attack him with stick frequently, and that she used to kick him and she used to slap him in public places like Railway Platforms, bus-stands, roads, pawn-shops etc. He claims that subsequent to the filing of the petition, he was able to see some letters which were written to his wife by her friends and those letters clearly indicate that her affections lay somewhere else and not with him. The marriage took place on 23-8-1981 and even on the day of marriage, there were certain unpleasant incidents and soon after they came to Vijayawada. There were any number of . instances wherein the wife humiliated and insulted him and was treating him most cruelly. Considering the fact that both the petitioner and the respondent were working as lecturers and as they are highly educated with post-graduate degrees, such a sort of behaviour on the part of the wife is most reprehensible. It is now an established fact that from April, 1982, they are not residing together. Considering the evidence the trial court found that the claim, pi, the wife that even after filing the O.P., the husband was visiting her and the husband was coming and staying with her during nights cannot be believed. Reading the, entire evidence, we are also of the same view. Obviously, that plea was raised only with a view to negative any possible claim of desertion. P.W.2, the father of the petitioner, clearly mentioned that the respondent-wife commented to him that his son is not having any personality and that he has a tiny and puny creature. When he chastised her and advised her not to talk like that, she became furious and asked him to get out of the house threatening to break the legs if he does not leave the house…..”

The Honourable court states “…..14. When we read the evidence of the respondent, we find that in addition to her making various reckless and wild allegations against the husband in the written statement, she repeats all these allegations in her evidence. For instance, she states as follows:

“P.W.1 visits prostitutes. He is having venereal diseases. I came to know this from P.W.1 only. I am not having any doctors’ reports or prescriptions… I advised P.W.1 to go to a doctor to get himself treated…. It is not true to suggest that I commented and criticised about the size of his penis and insulted him. It is not true to suggest that I criticised his personality. It is not true to suggest that I harassed him.”

15. Here is a case where the appellant, a post-graduate in English literature and a Bachelor of Library Sciences, behaved with her husband in a most inhuman way abusing him on every occasion and humiliating and harassing him in numerous ways. Considering the fact that the husband is a lecturer in Chemistry with a post-graduate degree, it is impossible to believe that this couple can live happily together as claimed by the appellant-wife. Obviously no man with self-respect can be expected to live with a wife like R.W.1. We fully agree with the conclusion of the trial court that the respondent-wife was guilty of treating the petitioner cruelly. Mostly it is a case of inflicting mental cruelty and occasional physical cruelty. The granting of a decree for divorce on the ground of cruelty is perfectly justified in this case……”

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

Kanchanapalli Lalithakumari vs Kanchanapalli Ramaprasada Rao on 20 August, 1991

Equivalent citations: 1992 (2) ALT 631

Author: D J Raju
Bench: U Waghray, D J Raju

JUDGMENT D.J. Jagannadha Raju, J.
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1. This is an appeal filed against the judgment and decree in O.P.No. 490 of 1982 dated 8th March, 1988, on the file of the II Additional Subordinate Judge, Vijayawada. The respondent-husband filed the O.P. for divorce on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act (hereinafter called ‘the Act’). The wife opposed the petition and she alleged that various allegations in the petition are false and she was never guilty of cruelty to the husband. On the other hand, the husband was guilty of cruelty towards her. She claims that she was harassed and she was fleeced of money and they have not been living apart and even after the filing of the O.P., the husband has been visiting her.

2. The court, after elaborate consideration, came to the conclusion that the wife is guilty of cruelty both on the basis of the allegations made in the petition which were spoken to by P.W.1 and his father P.W.2 and also on the basis of unfounded, baseless and reckless allegations made in the written statement filed by the wife and the subsequent events.

3. In this appeal Sri Noushad Ali, the learned counsel appearing for the appellant-wife contends that the trial court committed a grave mistake in taking into consideration the subsequent events and the allegations made in the written statement/counter. He contends that as allegations made in a counter or written statement are subsequent events, they do not give rise to a cause of action to seek divorce. He contends that the facts should precede the intiation of the proceedings and should form part of the cause of action. In the very nature of things, the allegations made subsequent to the filing of the O.P. and the subsequent events cannot be taken into consideration. They cannot be a ground for holding that the wife is guilty of cruelty. He also contends that as regards the allegations made in the written statement or counter, unless a specific issue is framed as to whether those allegations would amount to cruelty or not, those allegations by themselves cannot justify a decree for divorce. He contends that there should be evidence on record to show that the husband felt that these allegations have mentally affected him and that he felt that he was treated cruelly. He placed reliance upon a number of decisions to show that allegations in a counter and written statement cannot be the basis for granting a decree for divorce.

4. On behalf of the respondent-husband, Mr. Harnath contends that this is an unfortunate case where from the time of marriage, the husband was being illtreated, humiliated and subjected to all sorts of cruelty by the wife. The wife’s behaviour and cruelty to the husband appear to stem out of her economically superior position and her being far senior to the husband in age. He contends that the evidence on record fully establishes the various instances of humiliation and cruel treatment. He further contends that the subsequent conduct and the wild, baseless and scandalous allegations made in the written statement which now stand unproved by themselves constitute cruelty to the husband and such false and malicious allegations which are not substantiated would ipso facto entitle the husband to a decree for divorce on the ground of cruelty. Mr. Haranath contends that the evidence on record establishes that the parties are living separately from April, 1982 and there is absolutely no possibility of their living together. When there is no scope for reconciliation and their coming together, it is futile on the part of the wife to file this appeal and try to compel the husband to live with her. Judged from a broad human angle on the facts of the case, their living together would be nothing short of virtual hell on earth. The court exercising matrimonial jurisdiction should take a comprehensive view of things and on the facts of the case, the decree for divorce has necessarily to be confirmed.

5. The points for consideration in this appeal are:

(1) Whether the evidence on record establishes that the wife is guilty of cruelty towards the petitioner-husband.

(2) Whether the trial court is justified in taking into consideration the subsequent events and the malicious, wild and scandalous allegations made in the written statement as a basis for granting a decree for divorce on grounds of cruelty.

6. Point No. 2: There is a certain amount of cleavage of judicial opinion as to whether the allegations in a written statement can form the basis for granting a decree for divorce. If we examine the case law in the chronological order, we find that courts have taken unproved malicious, scandalous and reckless Allegations made in the written statement as a basis for granting relief in a O.P. filed on the ground of cruelty. The earliest decision is Gurbachan Kaur v. Swaran Singh, . In that decision it is found that when the husband made a false allegation against his newly wedded wife that she was pregnant and even turned her out of his house alleging that she was unchaste the wife felt provoked and made a counter-allegation of unchastity against the husband was considered by the trial court as amounting to an act of cruelty to warrant a decree for dissolution of the marriage. In such a background, the High Court observed at page 259 as follows:

‘Therefore, disagreeing with the courts below, I hold that the
allegation made by the appellant in the written statement that the
respondent was having adulterous relations with his sister-in-law
could not, in the circumstances of the case, constitute an act of
cruelty to warrant a decree for dissolution of marriage being passed
against her.”

In the present case, the allegations in the written statement are not made on the basis of any provocation caused by the husband. They are the statements deliberately made and made in a wild and reckless manner and very scandalous allegations are made against the husband. Therefore, the decision in Gurbachan Kaur v. Swaran Singh (1 supra) is distinguishable on facts and the principle laid down in that decision is not of any help to the appellant in the present case.

7. The decision in Sulochana v. Ram Kumar, AIR 1978 Allahabad 78 deals with a case where initially the petition was not filed for divorce on the ground of cruelty but in the replication filed after the allegations were made in the written statement, the husband prayed for a decree for divorce on the ground of cruelty on the basis that the allegations in the written statement amounted to cruelty. Referring to the rules made by the Allahabad High Court under the Hindu Marriage and Divorce Rules of 1956 and referring to the Form No. 8 in the schedule to the Indian Divorce Act, the court held at page 82 as follows:

“In view, however, of the provisions noticed earlier by me, it has to
be held that the observation that an allegation made by the wife in
the written statement that the husband was having adulterous
relations with his sister-in-law could not constitute an act of
cruelty to warrant a decree being passed against her, represents the
correct legal position.”

The court found that under the law and the rules prevailing in the Allahabad High Court, the facts on which the claim to relief is founded shall be stated in every petition distinctly and the rules contemplate that a relief cannot be granted merely on the basis of allegations contained in the replication. This decision of the single judge is mostly based upon the rules framed by the Allahabad High Court and the forms prescribed for petitions for judicial separation and divorce. This decision is not of help for solving the controversy in the present case.

8. The decision in Maya v. Brij Nath, AIR 1982 Delhi 240 lays down that acts of cruelty should be specifically pleaded and no amount of evidence can be looked into on a plea which was never pleaded. The court also laid down as to what amounts to cruelty under Section 13(1)(ia) of the Act as follows:

“Cruelty has not been defined in the Act. But it is now well settled
that the conduct should be grave and weighty so as to make
cohabitation virtually unendurable. It must be more serious than the
ordinary wear and tear of marriage. The cumulative conduct taking
into consideration the circumstances and the background of the
parties has to be examined to reach a conclusion whether the act
amounts to cruelty.”

After dealing with the various instances of alleged cruelty, the court came to the following conclusion:

“In any case the acts pleaded are ordinary acts of wear and tear of
married life. I hold that the above alleged acts of cruelty pleaded
by the respondent were not proved.”

In paragraph 9, the court observed as follows:

“The wife in her written statement had pleaded that her mother-in-law
poisoned her. The trial court having reached the conclusion that the
pleaded acts of cruelty were not proved ought to have rejected the
ground of cruelty as the basis of divorce. Acts of cruelty have to be
specifically pleaded. The husband never pleaded the said acts of
cruelty, It is well known that no amount of evidence can be looked
into on a plea which was never pleaded. These questions no doubt were
put in cross-examination but there is a limit for putting questions
in cross-examination.”

The court found fault with the trial court permitting various questions which were not relevant. On facts, that decision is distinguishable from the facts of our case. In the case on hand, the court found that the various allegations pleaded in the petition have been established by the evidence of P.Ws.1 and 2. Hence the principle laid down in that decision has no application to the facts of our case.

9. The most important decision is the one reported in Paras Ram v. Kamlesh, AIR 1982 Punjab & Haryana 60.

A Division Bench of the Punjab High Court observed in paragraph 6 as follows:

“The crucial distinction between allegation of adultery made prior to
the filing of the case of aliunde or in collateral proceedings and
such an allegation made by way of defence in the written statement
seems to have been totally lost sight of. As already noticed there is
no manner of doubt that an allegation of adultery made prior to the
filing of the petition and put in issue and found to be false would
constitute legal cruelty. However, a mere allegation by way of a
defence in the written statement irrespective of its falsity or
otherwise is not in the same category unless, of course, such an
issue is specifically put to trial and the firm finding arrived at
whether the allegation was false or substantiated.”

The Division Bench further observed in paragraph 11 as follows:

“On principle, it appears to us that countenancing such an extreme
position may well work great public mischief. In substance, it would
imply that the defending spouse could raise, the foulest allegation
of adultery or other matrimonial offences against the other without
any fear of any retribution.”

The court further observed in paragraph 12 as follows:

“The law seems to be settled that an earlier or collateral allegation
of adultery, if false, would immediately give a cause of action to
the offended spouse. If that be so, a second petition would obviously
lie by a spouse against whom false allegation of adultery has been
raised in an earlier petition. Indeed this position was not very
fairly controverted by the learned counsel for the respondent. If in
a second petition the allegation of adultery made in the earlier
could be made as a cause of action, one fails to see why such an
accusation, in the written statement in the same proceeding should be
on a different footing. Subscribing to the view canvassed on behalf
of the respondent can only tend to lead to a multiplicity of
proceedings which it is always the intent of the law to avoid. I am,
therefore, unable to subscribe to any abstract theory of a complete
privilege to the allegation of adultery made in a written
statement……It is manifest that in order to succeed on this ground
the petitioner must establish the falsity of such an allegation. The
burden of proof, however, being a negative burden would in the
initial stage be a light one. It would, therefore, become necessary
that the petitioner in such a situation would have to amend the
petition and plead the false allegation of adultery amounting to
cruelty as a specific ground for matrimonial relief. It is only when
this has been made a ground of attack that the petitioner can
possibly take advantage of such an allegation, if proved false.
Unless the truth or falsity of such allegation made in the written
statement is put to trial in the manner aforesaid and it is
established one way or the other no legal consequences can flow
therefrom for the purpose of Section 13(1)(ia) of the Act…..It is
elementary that in order to succeed in a petition the burden of
establishing cruelty Under Section 13(1)(ia) is on the spouse who
alleges the same. However, in a case of the present nature where such
an allegation has been made in defence in the written statement it
would be a negative burden which can easily be discharged by merely
averring that the allegation of adultery is false. It would then be
for the spouse alleging the adultery to substantiate the same.”

In our considered opinion, the principle laid down by this Division Bench decision would apply to the facts of our case. Once the allegations of adultery made in the written statement are found to be false, the petitioner is entitled to relief even if the allegations are for the first time made only in the written statement. It should also be remembered that in the present case there are various allegations which are of a very scandalous nature and the appellant-wife never made any effort to substantiate those allegations.

10. The decision in Savitri v. Mulchand, lays down as follows:

“It being well settled by authority that, false defamatory,
scandalous, malicious, baseless and unproved allegations made against
the spouse in letters, and alleged complaints to superiors, or
person’s in authority, are cruelty; is there any reason why these
judgments should not be applicable to the false, scandalous,
malicious, baseless and unproved assertions made in the written
statements?”

The court answered the points raised in paragraph 31 in paragraph 39 of the judgment at page 59. After observing that matrimonial proceedings need be decided expeditiously and that matrimonial litigation be shortened and multiplicity of proceedings of matrimonial nature be prevented, the court held as follows:

“Both of the abovesaid reasons are good reasons for permitting any
party to matrimonial proceedings to rely upon the averments contained
in the pleadings to establish whether one party is guilty of cruelty
towards the other of them. For this reason, I am of the view that the
assertions made in para 8 of the written statement can also be looked
into for the purpose of determining whether the appellant wife has
been guilty of cruelty-to the respondent husband. The appellant
respondent wife, it is clear from Ex.P.1, is used to hurling abuses
on the respondent husband, using foul and filthy language and has
persistently been abusing the respondent husband of having committed
adultery with persons known or unknown.”

The court ultimately found that the allegations made are false and no effort is made to substantiate them and hence relying upon false and unsubstantiated allegations of the written statement, relief was granted to the husband.

11. The decision in Nirmala Manohar Jagesha v. Manohar Shivram Jagesha, is the latest decision on this topic. The court reviewed the entire case law on the subject and observed that “cruelty has not been defined in the Hindu Marriage Act. However, it is well settled that the conduct complained should be grave and weighty as to come to the conclusion that the husband cannot reasonably be expected to live with the wife. It must be more serious than the ordinary wear and tear of married life. The cumulative conduct, taking into consideration the circumstances and background of the parties has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. While doing so, several factors such as social status, background, custom, traditions, caste and community upbringing, public prevailing in the locality etc, will have to be taken into account.” The court considering the question of cruelty based upon irresponsible, wild and baseless allegations made in the written statement without any evidence in support of the same, held that making such allegations amounts to cruelty, whether the wife intended to be cruel or not is immaterial. After reviewing the entire case law, the court laid down the principles which would be applicable in cases of petitions for divorce on the basis of cruelty.

In paragraph 31, the court observed as follows:

“I am of the opinion that though the husband has failed to prove
points Nos. 1 and 2 framed above (1) Whether the husband has not made
out a case that after solemnisation of marriage the wife has treated
him with cruelty and (2) It is not proved that the wife has been
suffering continuously or intermittently from mental disorder of such
a kind and to such an extent that the husband cannot reasonably be
expected to live with her, he would be entitled to a decree for
divorce on the third point, namely, cruelty as a result of the wife’s
having made wild, reckless and baseless allegations in the written
statement.

32. However, in the view which I have taken, the husband would be
entitled to a decree for divorce on the ground of cruelty under
Section 13(1)(ia) of the Act on the basis of the allegations made by
the wife in paras 3 and 15 of the written statement noted above…..

33……….

The making of wild, reckless and baseless allegations of impotency
and lack of manliness – itself amount to cruelty in the matrimonial
law.”

12. On facts, the two decisions in Nirmala Manohar Jagesha v. Manohar Shivram Jagesha (6 supra) and Savitri v. Mulchand (5 supra) are nearest to the facts of our case, and the principles laid down in these two decisions aptly apply to the case on hand. The trial judge is perfectly justified in relying upon baseless, scandalous and false allegations made in the written statement which remain unsubstantiated, for granting relief on the ground of cruelty.

13. Point No. 1: If we judge the evidence in the case, we find that the wife treated the husband from the time of marriage in a most inhuman manner. She was constantly harassing him, humiliating him and attributing various unbearable things to him. She was always referring to him as “Neechuda, Dharidruda, Tragubrothu” (Telugu words) and a debauchee suffering from all venereal diseases.” It has come out in the evidence of P.W.1 that in addition to ill-treating him and humiliating him, she used to comment about the size of his penis and used to compare it with the penis of other physically well-built people. P.W.1 also claims that she was ill-treating his relations and she was even commenting that the petitioner is not fit enough to have sexual intercourse with her. In fact, he claims that right in front of his father she told him that he is not fit to be her husband, and that she would choose to have more competent well-built man as a companion. He also states that she used to attack him with stick frequently, and that she used to kick him and she used to slap him in public places like Railway Platforms, bus-stands, roads, pawn-shops etc. He claims that subsequent to the filing of the petition, he was able to see some letters which were written to his wife by her friends and those letters clearly indicate that her affections lay somewhere else and not with him. The marriage took place on 23-8-1981 and even on the day of marriage, there were certain unpleasant incidents and soon after they came to Vijayawada. There were any number of . instances wherein the wife humiliated and insulted him and was treating him most cruelly. Considering the fact that both the petitioner and the respondent were working as lecturers and as they are highly educated with post-graduate degrees, such a sort of behaviour on the part of the wife is most reprehensible. It is now an established fact that from April, 1982, they are not residing together. Considering the evidence the trial court found that the claim, pi, the wife that even after filing the O.P., the husband was visiting her and the husband was coming and staying with her during nights cannot be believed. Reading the, entire evidence, we are also of the same view. Obviously, that plea was raised only with a view to negative any possible claim of desertion. P.W.2, the father of the petitioner, clearly mentioned that the respondent-wife commented to him that his son is not having any personality and that he has a tiny and puny creature. When he chastised her and advised her not to talk like that, she became furious and asked him to get out of the house threatening to break the legs if he does not leave the house.

14. When we read the evidence of the respondent, we find that in addition to her making various reckless and wild allegations against the husband in the written statement, she repeats all these allegations in her evidence. For instance, she states as follows:

“P.W.1 visits prostitutes. He is having venereal diseases. I came to
know this from P.W.1 only. I am not having any doctors’ reports or
prescriptions… I advised P.W.1 to go to a doctor to get himself
treated…. It is not true to suggest that I commented and criticised
about the size of his penis and insulted him. It is not true to
suggest that I criticised his personality. It is not true to suggest
that I harassed him.”

15. Here is a case where the appellant, a post-graduate in English literature and a Bachelor of Library Sciences, behaved with her husband in a most inhuman way abusing him on every occasion and humiliating and harassing him in numerous ways. Considering the fact that the husband is a lecturer in Chemistry with a post-graduate degree, it is impossible to believe that this couple can live happily together as claimed by the appellant-wife. Obviously no man with self-respect can be expected to live with a wife like R.W.1. We fully agree with the conclusion of the trial court that the respondent-wife was guilty of treating the petitioner cruelly. Mostly it is a case of inflicting mental cruelty and occasional physical cruelty. The granting of a decree for divorce on the ground of cruelty is perfectly justified in this case.

16. Taking a comprehensive view of the facts and the circumstances of the case, and taking the totality of the circumstances that have been established by the evidence, we are of the firm view that there is absolutely no doubt about the fact that the wife is guilty of treating the husband with cruelty. We also feel that there is absolutely no possibility for the spouses living together. If this court allows the appeal and reverses the judgment of the trial court, it would be driving the parties to suffer greater unhappiness. Reconciliation proceedings attempted by the trial court on 9-8-1983 failed. We take note of this particular fact also while deciding this appeal.

17. In the result, the appeal is dismissed. The judgment and decree of the trial court are confirmed. Each party shall bear its own costs in this appeal.

JUDGMENT (Separate Judgment delivered by Upendralal Waghray, J.,)
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18. I agree with the conclusions of my learned brother that the appeal is to be dismissed. I, however, like to add a few words on the aspect whether any statements made in a written statement (counter) by a contesting spouse to a divorce petition which, if proved to be false, can constitute a ground of cruelty for grant of relief in that petition itself? The cases noticed by my learned brother show the difference in judicial opinion to the approach to this question. The provisions of the Hindu Marriage Act and the need for expeditious disposal of matrimonial matters have to be kept in view. Sections 21-A, 21-B and 21-C inserted in 1976 indicate this. According to Section 21 the proceedings under the Act are to be regulated by the Civil Procedure Code subject to the provisions of the Act and also the Rules made by the High Court. It is a fact which can be taken judicial notice of that a matrimonial proceeding from the date of its commencement to the date of disposal of the appeal by the High Court takes more than five to six years and in some cases ten years. The object of speedy disposal is not marital peace alone but is to minimise trauma on the children and in case of dissolution of marriage to give an opportunity to the spouses to start a new marital life at a suitably young age. Any such allegations in the written statement, if proved, may be used to deny relief to the petitioner-spouse in view of Explanation to Sub-section (1) of Section 13 and also Section 23 of the Act. If such allegations in the written statement if proved, can be used to deny relief to the petitioner, can it be said that, if unproved, they cannot be treated as a relevant material for grant of divorce? The question of opportunity to the respondent-spouse, who has made such allegations also has to be examined in this light. It cannot be doubted that such an allegation, if unproved, will furnish a cause of action to the petitioner. Is it necessary to drive him to a fresh petition, when the attempt should be to avoid multiplicity of proceedings. The need for amendment of the petition will have to be considered if such allegations if unproved amount to desertion or cruelty, which is not pleaded as a ground. If such allegations, if unproved furnish a new ground like cruelty or desertion etc., which is not pleaded probably in an appropriate case amendment may be necessary. It is useful to notice the relevant Rule 6 framed by the Andhra Pradesh High Court under the Act:

“6. Contents of petitions:- (1) Every petition shall state:-

(a)xxxxx

(b)xxxxx

(c) xxxxx

(d) xxxxx

(e) xxxxx

(f) xxxxx

(g) if the petition is for judicial separation, the matrimonial offences alleged or other grounds, upon which the relief is sought, together with full particulars thereof so far as such particulars are known to the petitioner, e.g.,:-

(i) in the case of alleged desertion, the date and the circumstances under which it began.

(ii) in the case of cruelty or sexual intercourse with any person other than his or her spouse, the specific acts of cruelty or sexual intercourse and the occasion when and the places where such acts were committed together with the name and address of the person or persons with whom the respondent had sexual intercourse;

(iii) xxxx

(iv) xxx

(h) if the petition is for divorce, the matrimonial offence alleged or other grounds upon which the relief is sought together with the full particulars thereof so far as such particulars are known to the petitioner. e.g.,

(i) in the case of adultery, the specific acts of adultery and the occasion when and place where such acts were committed together with the name and address, of the person with whom such adultery was committed;

(ii) xxxxx”

The Rule indicates the” difference between a ground and particulars and requires such particulars in the petition as are known to the petitioner. Evidently, the petitioner will not know the contents of the written statement when he files the petition.

19. The cases noticed by my learned brother cover a wide spectrum of judicial opinion. In the decision reported in Gurbachan Kaur v. Swaran Singh (1 supra) it was held on facts that the allegation in the writtend statement did not amount to cruelty. In the decision reported in Sulochana v. Ram Kumar (2 supra) the learned single Judge held – vide para 14 of the judgment – that in the petition for divorce ground for cruelty was not pleaded and even after the written statement was filed containing the allegations against the husband, the petition was not amended and, therefore, the relief could not be granted on the ground of cruelty. In the decision reported in Paras Ram v. Kamlesh (4 supra) Sandhawalia, C.J., took the view that a mere statement in the written statement or counter containing allegations against the husband could not be the basis for grant of relief and the matter was remitted back to the trial court for amendment and further trial. This, to my mind, is a very broad proposition applicable to civil proceedings and the difference in procedure for matrimonial matters was not considered. In the case reported in Savitri v. Mulchand (5 supra) vide paras 31 and 39 – it is held that any false, defamatory, scandalous, malicious, baseless and unproved assertions made in the written statement (i.e., counter) can be relied upon by the other spouse for grant of relief in that very proceeding. The plea that divorce petition was lacking in particulars was also not permitted as being belated in the circumstances – vide paras 49, 50 and 53. In that case, the respondent had also let in evidence in support of the assertions in the written statement which was not believed”

20. In the latest decision reported in Nirmala Manohar Jagesha v. Manohar Shivram Jagesha (6 supra) it is held that the allegation of impotency made against the husband in the written statement which was not proved amounted to cruelty and was treated as a ground for grant of relief in that petition itself which was on the ground of cruelty.

21. In my view, any allegations in the written statement (or counter) by the respondent-spouse in a petition for divorce or judicial separation, which are not proved may be used by the petitioner-spouse as additional particulars for the grant of relief subject to any need for opportunity to the respondent, if the circumstances require and a request is made at an early stage.