Tag Archives: creulty

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

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

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


Cruelty&Divorce#1:

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

Ablaa naari, the beacon of love, embodiment of culture has the following false allegations in addition to complaints about husband’s abuses and ill treatments
“….4) the respondent had behaved brutally in sexual life and he used to wake up the petitioner during the mid-night and had violent sex with her and when the petitioner refused and expressed her tiredness due to over work, the respondent-husband kicked and assaulted his wife and also the respondent blackmailed the petitioner to subject herself for violent sexual life otherwise he will bring call girls home and he will have sex with them in the presence of petitioner-wife.
xxx
(6) On 25.4.2003, the respondent-husband forced the petitioner-wife for sex in the early morning and when she was not willing, the respondent assaulted her severely and threw her from matrimonial home by saying that she was not useful for his sexual life and also asked to bring Rs.2 lakhs from her parents otherwise he will not accept her…..”

The Honourable HC sees thru each of these false complaints and decrees
“…42. From the above discussion, we are of the view that the petitioner/wife has not proved the alleged incidences of cruelty by her husband by adducing reliable evidence and the Trial Court has erroneously held that the alleged incidences of cruelty were proved and granted divorce and therefore the above said order of the Trial Court on the ground of cruelty is liable to be set aside.
43. We are also of the considered view that the petitioner wife is not entitled to any amount as permanent alimony since the petition filed by the petitioner/wife for divorce is not maintainable as already discussed in earlier paragraphs. Therefore the petitioner is not entitled for permanent alimony as prayed for in the petition and we answer the points accordingly……”

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


Cruelty&Divorce#2:

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

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

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

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

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


Cruelty&Divorce#3:

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

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

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

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


Cruelty&Divorce#4:

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

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

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


Cruelty&Divorce#5:

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

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

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

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

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

Finally divorce is decreed in favour of the husband

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


Cruelty&Divorce#6:

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

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

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

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


Cruelty&Divorce#7:

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

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

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

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


Cruelty&Divorce#8:

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

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

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

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


Cruelty&Divorce#9:

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

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

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


Cruelty&Divorce#10:

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

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

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

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


Cruelty&Divorce#11:

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

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

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

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


Cruelty&Divorce#12:

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

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

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

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


Cruelty&Divorce#13:

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

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

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


Cruelty&Divorce#14:

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

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

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

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


Cruelty&Divorce#15:

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

In this classic case the poor woman, the beacon of love, beats her mother in law and drives her away from the matrimonial home to usurp her hard earned house, when husband is on a training !! The husband is also beaten and thrown out with the help of ablaa’s brother. Not contended with these she also raises false dowry allegations and resists divorce. The HC sees thru her game and decrees all such acts as cruelty !!
* Parties get married in 1985
* Mother in law is working as a staff nurse and has a house built on loan and her hard earned income
* Right from the start wife tries to take away Mother in law’s house.
* Wife beats Mother in law
* When husband goes out of city on training, wife and father in law, beat and drive away mother in law & father in law (husband’s mother & father)
* When husband goes to his (own mother’s house) , wife asks her brother to beat the husband & wife’s brother beats up husband and
* Then ablaa nari wife files Sec 125 maintenance case
* Looks like 498A was NOT famous those days, so she just stops with Sec 125 case and taking over the house !!
* husband files for divorce and wins in lower court
* wife appeals to HC and HC decrees that wife beating mother in law, wife’s brother beating husband, wife usurping MIL’s property and making false dowry claims etc are cruelty. The Hon Hc ALSO denies the woman any maintenance !!

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


Cruelty&Divorce#16:

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

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

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

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

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


Cruelty&Divorce#17:

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

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

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

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

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


Cruelty&Divorce#18 :

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

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

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

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

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

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

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


Cruelty&Divorce#19 :

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

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

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

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


Cruelty&Divorce#20 :

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

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

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

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


Cruelty&Divorce#21:

Unsubstantiated allegations of the wife tantamount to cruelty ! Bombay HC

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

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

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


Cruelty&Divorce#22:

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

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

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


Cruelty&Divorce#23:

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

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

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

In a strongly worded statement the court concludes “…In view of the fact that the parties have been living separately for more than 10 years and a very large number of aforementioned criminal and civil proceedings have been initiated by the respondent against the appellant and some proceedings have been initiated by the appellant against the respondent, the matrimonial bond between the parties is beyond repair. A marriage between the parties is only in name. The marriage has been wrecked beyond the hope of salvage, public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. To keep the sham is obviously conducive to immorality and potentially more prejudicial to the public interest than a dissolution of the marriage bond…..”

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


Cruelty&Divorce#24:

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

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

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

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

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

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

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


Cruelty&Divorce#25:

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

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

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


Cruelty&Divorce#26:

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

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

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


Cruelty&Divorce#27:

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

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

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


Cruelty&Divorce#28:

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

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

“….No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty……”

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


Cruelty&Divorce#29:

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

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

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

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


Cruelty&Divorce#30:

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

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

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


Cruelty&Divorce#31:

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

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

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

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

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


Cruelty&Divorce#32:

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

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

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

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

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

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

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


Cruelty&Divorce#33:

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

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

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

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

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

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

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


Cruelty&Divorce#34 :

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

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

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

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

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

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

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


Cruelty&Divorce#35 :

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

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

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

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

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


Cruelty&Divorce#36:

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

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

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

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


Desertion&Divorce#37:

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

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

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


Cruelty&Divorce#38:

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

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

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


Cruelty&Divorce#39:

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

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

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

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

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

False 498a endng in acquital is cruelty. No need 2 establsh “malafide”. Divorce granted !! Bombay HC

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

The key question raised in this case is “…. “Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ?

I.e. is a false 498a where husband & other accused are acquitted by itself gorunds for claiming cruelty or is there a need for the trial court to state that it was intentionally filed to defame the husband ?

In this case, a newly married wife who lives with her husband for just five days goes out to file false 498a etc. on husband and family. As a result of these false cases, husband and his parents are arrested. Some years later the husband is acquitted in the 498a case, on the grounds that the prosecution did not prove the charge. Husband applies for annulment of marriage , wife applies for restitution. At lower courts and first appeal wife wins RCR. Husband approaches HC on appeal (for divorce). Wife & co contend that the lower court acquitted the husband in 498A etc as the prosecution did not prove the case, and the learned MM did not claim that it was false case (in his order). So wife argues that it was not cruelty.

However Bombay HC rightly appreciates the facts and decrees that a 498a that ends in acquittal of the accused husband and his people is cruelty and enough to grant him divorce. The case need NOT be decreed as false !

Key notes 

*********

* Marriage solemnised On or about 16th June, 2002

* Wife claims that on 21st June or thereabouts she and her sister were forced out of the matrimonial home

* VERY soon she starts her 498a ” On 12th August, 2002, an FIR came to be lodged by the respondent under sections 498A, 323, 504 and 506 of the Indian Penal Code against the appellant, his father, mother and brother. The appellant and his family members were arrested by the police pursuant to such complaint by the respondent.…”

On 21st December, 2002, the respondent (wife) filed a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights. On 5th September, 2005, the appellant (husband), his family members were acquitted in the Regular Criminal Case No.378 of 2002. The said order passed in the Regular Criminal Case No.378 of 2002 was not challenged.

* Husband files for annulment of marriage. “…5. On 10th March, 2006, the appellant herein filed a Hindu Marriage Petition (49 of 2006) against the respondent in the Court of learned Civil Judge Senior Division, Sangli inter-alia praying for annulment of marriage and for divorce.* The learned civil judge dismisses husband’s petition and allows wifes RCR. Husband goes on appeal to the district judge who confirms the order of the civil judge. So husband goes on appeal to the high court

* The HC accepts the appeal and frames the important question.“Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ? “

* the counsel for the wife argues that “…there was no finding rendered in the order passed by the Criminal Court that the complaint against the appellant and his family members was false and was filed with an intention to defame the appellant and his family members. He submits that there was no finding rendered by the learned trial judge on the offence under section 498A of the Indian Penal Code. There was no cross examination of the respondent on the issue that the said complaint made by the respondent was false or was filed with an intention to defame the appellant and his family members..…”

* the counsel for the wife further argues that “…15. …even if the respondent had committed any cruelty upon the appellant, the respondent was entitled to maintain petition for restitution of conjugal rights independently. He submits that even if this Court comes to the conclusion that any cruelty was committed by the respondent upon the appellant, this Court cannot set aside the orders passed by the two Courts below insofar as the reliefs of restitution of conjugal rights under section 9 of the Hindu Marriage Act has been granted in favor of the respondent is concerned..”

* the Hon HC notices and appreciates the fact that the trial court had “….It is held that the said deposition in the cross- examination for the first time about the alleged demand of dowry was an after thought. No incident had occurred from 16th June, 2002 to 21st June, 2002. It is held that it appeared to be improbable that on 21st June, 2002 after Pooja was performed, she was suddenly and forcibly asked to leave the matrimonial home.….” and the trial court had also noticed and mentioned that “…..25. It is held that the case of the respondent was not believable in view of the appellant and his family members giving gifts to the relatives of the respondent and in view of the delay on her part in lodging a complaint against the appellant and his family members…..”

* The Hon HC notices the fact that “…29. The Criminal Court while acquitting the appellant and his family members, after considering the evidence of six witnesses had rendered a positive finding that the complaint filed by the respondent was an after thought. …”

* After referring to a catena of HC and SC decisions the Hon HC concludes that “…In my opinion, filing of such complaint itself which create mental trauma on the husband and the complaint which was seriously prosecuted by the wife by leading evidence of several persons and bringing the said complaint to its logical conclusion which ultimately resulted in acquittal of the husband and his family members clearly amounted to the cruelty committed by the wife upon the husband.…”

* So the HON HC sets aside the RCR order in favour of the wife and decrees divorce in favour of the husband on frounds of cruelty !!

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

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CIVIL APPELLATE JURISDICTION

                          SECOND APPEAL NO. 396 OF 2013

                                    WITH

                         SECOND APPEAL NO. 397 OF 2013

 

      Anil Yashwant Karande,                     )
age about 46, resident of Market           )
Committee Karmachari Low Income            )
Group Co-operative Housing Society         )
Plot No.34, Ekata Colony, Sangli.          )          …Appellant
ig                     …(Orig.Plff.)

Versus…
      Smt. Mangal Anil Karande,                  )
age about 42, Occ : Service,               )
C/o. Smt.Kalika Datta Chormule,            )
Dongri Chawl, Limaye Wadi,                 )
Solapur.                                   )          …Respondent
…(Orig.Opp.)

Mr.S.G. Deshmukh i/b Mr.Abhijeet Khandarkar for the Appellant.
Mr.Ashok Tajane with Ms.Manali Patil for the Respondent.

 

 CORAM        : R.D. DHANUKA, J.
RESERVED ON : 5th DECEMBER, 2015
PRONOUNCED ON : 23RD DECEMBER, 2015
 JUDGMENT :-

  1. By these two second appeals, the appellant has impugned the order passed by the Lower Appellate Bench granting reliefs in favour of the respondent in two separate civil appeals filed by the respondent.
  1. On or about 16th June, 2002 the marriage was performed between the appellant and the respondent as per Hindu Rites and Rituals. Pooja was organized after marriage on 21 st June, 2002. It was alleged by the respondent that the respondent was forced to leave the matrimonial house along with her sisters by the appellant. It was the case of the respondent that on 30 th June, 2002, the respondent and her relatives visited the house of the appellant when they were abused and the respondent was driven out of the matrimonial house.
  1. On 12th August, 2002, an FIR came to be lodged by the respondent under sections 498A, 323, 504 and 506 of the Indian Penal Code against the appellant, his father, mother and brother. The appellant and his family members were arrested by the police pursuant to such complaint by the respondent. Pursuant to the said FIR, a Regular Criminal Case No.378 of 2002 was initiated against the appellant and his family members in the Court of IVth Joint Judicial Magistrate, First Class, Sangli.
  1. On 21st December, 2002, the respondent filed a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights. On 5th September, 2005, the appellant, his family members were acquitted in the Regular Criminal Case No.378 of 2002. The said order passed in the Regular Criminal Case No.378 of 2002 was not challenged.
  1. On 10th March, 2006, the appellant herein filed a Hindu Marriage Petition (49 of 2006) against the respondent in the Court of learned Civil Judge Senior Division, Sangli inter-alia praying for annulment of marriage and for divorce. The said marriage petition   was filed on various grounds including ground of cruelty alleged to have been committed by the respondent. The said Hindu Marriage Petition was resisted by the respondent. Both the proceedings were heard together and were disposed of by a common order. On 29 th February, 2008, the learned Civil Judge Senior Division, Sangli allowed the said Hindu Marriage Petition filed by the respondent under section 9 of the Hindu Marriage Act for restitution of conjugal rights and rejected the Hindu Marriage Petition filed by the appellant inter-alia praying for annulment of the marriage and for divorce against the respondent. Being aggrieved by the said judgment and order dated 29th February, 2008, the appellant herein filed two regular appeals before the learned District Judge, Sangli. By a common judgment and decree dated 18th January, 2012, the learned District Judge dismissed both the regular civil appeals filed by the appellant.
  1. On 17th February, 2015, this Court admitted Second Appeal No.396 of 2013 and formulated following substantial questions of law :-

“Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ? “

  1. In so far as Second Appeal No.397 of 2013 is concerned, while admitting the said second appeal, this Court formulated following substantial question of law:-

“Whether for the act of filing complaint under Section 498A of Indian Penal Code, to amount to mental cruelty on the acquittal of husband and family, it is essential that judgment of acquittal must find that the complaint filed was false and with an intention to defame ? “

  1. Mr.Deshmukh, learned counsel for the appellant invited my attention to the order passed by IVth Joint Judicial Magistrate, First Class, Sangli in Regular Criminal Case No.378 of 2002 filed by the State of Maharashtra against the appellant and his family members alleging offences punishable under sections 498A, 323, 504 and 506 of Indian Penal Code on 5th September, 2005. He submits that in the said proceedings, various witnesses were examined including the respondent herself by the prosecution. It is submitted that after considering the oral evidence and the documentary evidence, the learned IVth Joint Judicial Magistrate, First Class, Sangli held that the prosecution had failed to prove that the appellant and his family members herein in furtherance of their common intention subjected the complainant to cruelty by demanding dowry or had voluntarily caused hurt to the complainant or had intentionally insulted the complainant with intent to make her breach of public peace. Learned Joint Judicial Magistrate, First Class, Sangli also rendered a finding that the prosecution had failed to prove that the appellant and his family members in furtherance of their common intention criminally intimidated the complainant by threats of injury to her person. He submits that by the said order, the appellant and his family members were acquitted of offences punishable under sections 498A, 323, 504 and 506 of Indian Penal Code. The said order was not challenged by the State and has attained finality.

 

  1. Learned counsel also invited my attention to the order passed by the learned trial judge allowing the application filed by the respondent for restitution of conjugal rights and dismissing the Hindu Marriage Petition filed by the appellant inter-alia praying for annulment of marriage and for divorce. He submits that the   respondent had filed a false complaint against the appellant and his family members due to which the appellant and his family members were arrested and were subsequently acquitted by an order dated 5th September, 2005. The learned IVth Joint Judicial Magistrate, First Class, Sangli has found that the prosecution had failed to prove any offences alleged to have been committed by the appellant and his family members. Such action on the part of the respondent in filing such false and frivolous complaint and getting the appellant and his family members arrested amounted to an act of cruelty by the respondent upon the appellant.  http://evinayak.tumblr.com/

https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com

  1. It is submitted that the Hindu Marriage Petition thus filed by the respondent wife under section 9 of the Hindu Marriage Act for restitution of conjugal rights itself was not maintainable in view of the act of cruelty on the part of the respondent upon the appellant having been proved. He submits that the order passed by the lower appellate Court dismissing the appeal filed by the appellant and upholding the order passed by the learned trial judge is also patently erroneous and contrary to the law laid down by the Supreme Court and this Court in catena of decisions.
  1. Learned counsel appearing for the appellant placed reliance on the judgment of this Court delivered on 6th May, 2010 in case of Nagesh Dhanapp Chilkanti vs. Sau. Manisha Nagesh Chilkanti in Family Court Appeal No.158 of 2008 holding that filing of false criminal cases would amount to cruelty within the meaning of section 13(i)(a) of the Hindu Marriage Act and on that ground the husband was entitled to a decree of divorce. Reliance is also placed by the learned counsel for the appellant on the judgment of Supreme Court in case of K.Srinivas vs. K.Sunita, (2014) 16 SCC 34 and   would submit that filing of a false and frivolous complaint under section 498A itself amounted to cruelty.
  1. It is submitted by the learned counsel for the appellant that in the examination in chief filed by the respondent in the proceedings before the trial Court, there were no allegations of dowry made by the respondent against the appellant and his relatives. Only during the course of cross examination of the respondent, she alleged demand of dowry for the first time alleged to have been made by the appellant and her family members. He submits that the allegation made by the respondent about demand of dowry has been totally disbelieved by the Criminal Court while dismissing the complaint filed by the State of Maharashtra. The prosecution did not challenge the said findings rendered by the learned Joint Judicial Magistrate, First Class, Sangli. Learned counsel for the appellant also placed reliance on the unreported judgment of this Court delivered on 16 th August, 2012 in case of Nitin Ramesh Dhiwar vs. Sou.Roopali Nitin Dhiwar in Family Court Appeal No.118 of 2006 in support of the submission that when the complaint filed under section 498A by the wife is dismissed, the inference can be drawn by the Court that the said complaint was a false complaint and filing of such complaint amounted to cruelty within the meaning of section 13(1)(i-a) of Hindu Marriage Act.
  1. Mr.Tajane, learned counsel appearing for the respondent wife on the other hand relied upon the findings rendered by the two Courts below and would submit that the said findings of fact being not perverse cannot be interfered with by this Court under section 100 of the Code of Civil Procedure, 1908. He invited my attention to the findings rendered more particularly in paragraphs 23 to 25 of the order passed by the learned trial judge and the issues framed in the   said proceedings. He submits that the appellant had already given up grounds of nullity of the marriage before the lower appellate Court.

He submits that the appellant had filed false and frivolous Hindu Marriage Petition inter-alia praying for annulment of the marriage and divorce only after four years of acquittal of the appellant and his family members. He submits that the appellant and his family members have not been acquitted on the ground of false complaint but have been acquitted on the ground that the prosecution had not proved his case.

  1. Insofar as judgments relied upon by the learned counsel for the appellant is concerned, it is submitted by the learned counsel for the respondent that all such judgments relied upon by the appellant have been delivered in the family Court appeal and are distinguishable in the facts of this case. He submits that the judgments delivered under family court appeal cannot be relied upon since in family court appeal, the Court has to consider all the question of facts and law whereas in the second appeal, the Court can interfere only if substantial question of law arises. He submits that in any event the fact in those judgments relied upon by the learned counsel for the appellant are totally different than the facts in this case. He submits that there was no finding rendered in the order passed by the Criminal Court that the complaint against the appellant and his family members was false and was filed with an intention to defame the appellant and his family members. He submits that there was no finding rendered by the learned trial judge on the offence under section 498A of the Indian Penal Code. There was no cross examination of the respondent on the issue that the said complaint made by the respondent was false or was filed with an intention to defame the appellant and his family members.
  1. It is submitted by the learned counsel for the respondent that even if the respondent had committed any cruelty upon the appellant, the respondent was entitled to maintain petition for restitution of conjugal rights independently. He submits that even if this Court comes to the conclusion that any cruelty was committed by the respondent upon the appellant, this Court cannot set aside the orders passed by the two Courts below insofar as the reliefs of restitution of conjugal rights under section 9 of the Hindu Marriage Act has been granted in favor of the respondent is concerned, it is submitted that the said proceedings under section 9 of the Hindu Marriage Act is independent proceedings and did not depend on the outcome of the criminal complaint filed by the respondent against the appellant and his family members.
  1. Mr.Deshmukh, learned counsel for the appellant in rejoinder submits that for the purpose of deciding whether cruelty was committed or not by the respondent upon the appellant, positive findings of the Criminal Court that the complaint filed by her was false and frivolous was not necessary. Since it was found that the prosecution had failed to prove the offence against the appellant and the appellant was acquitted in such complaint, that itself proved the cruelty on the part of the respondent upon the petitioner under section 13(1)(i-a) of the Hindu Marriage Act.
  1. Learned counsel once again invited my attention to various findings rendered by the Criminal Court on this issue. He submits that the appellant had given up his allegation of fraud against the respondent before the lower appellate Court and did not press that allegation.
  1. Insofar as submission of the learned counsel for the respondent that the application for restitution of conjugal rights was independent proceeding and could be considered even if any cruelty was committed by the respondent upon the appellant is concerned, it is submitted that the person who had committed cruelty cannot seek restitution of conjugal rights at the same time.

REASONS & CONCLUSIONS :-

  1. This Court shall first decide whether filing of the complaint under section 498-A of the Indian Penal Code by the wife against the husband amounted to mental cruelty on the acquittal of the husband and his family members or whether any specific finding by the Criminal Court while acquitting the husband and his family members was essential that the complaint filed by the wife was false and was with an intention to defame the husband and his family members.
  1. There is no dispute that the marriage of the appellant (original plaintiff) was performed with the respondent (original opponent) on 16th June, 2002. Since 21st June, 2002 the respondent was alleged to have been forced by the appellant to leave the matrimonial home. It is not in dispute that pursuant to the complaint filed by the respondent, FIR came to be lodged under sections 498-A, 323, 504 and 506 of IPC against the appellant, his father, mother and brother. Pursuant to such FIR, the husband and his family members were arrested by the the police. There is no dispute that by an order and judgment dated 5th September, 2005, the learned IVth Joint J.M.F.C., Sangli has acquitted the appellant and his family members of an offence punishable under sections 498-A, 323, 504 and 506 of   IPC. The said order dated 5th September, 2005 has not been challenged and has attained finality. http://evinayak.tumblr.com/https://vinayak.wordpress.com/http://fromvinayak.blogspot.com
  1. A perusal of the said order dated 5th September, 2005 clearly indicates that the prosecution had examined six witnesses, including the respondent – wife, who was the complainant. The learned IVth Joint J.M.F.C. in the said order dated 5th September, 2005 after considering the evidence of the six witnesses examined by the prosecution has acquitted the appellant and his family members of various offences. Insofar as the evidence of PW-1 is concerned, it is held in the said order that the said witness did not know about the marriage of the appellant with the respondent. The witness (PW-2) also deposed that he did not know about the marriage of the appellant with the respondent. It is held that their testimony was thus of no use to prove the case of the prosecution. Insofar as the witness (PW-4) was concerned, it is held that the said witness had deposed that the complainant herself did not tell him about ill-treatment or harassment meet out to her and thus his testimony did not help the prosecution.
  1. Insofar as the witness (PW-5) is concerned, it is held that the deposition of the said witness was in consonance with the deposition of the complainant about the incident taken place on 21 st June, 2002, who did not depose about any abuse or assault or threat to kill given on 21st June, 2002. Insofar as the witness (PW-6) is concerned, it is held that according to his deposition, he had carried out investigation in C.R. No.164 of 2002.
  1. Insofar as the evidence of the respondent herein (PW-3) is concerned, the learned Magistrate has held that in her cross- examination she admitted that on 21 st June, 2002 while being driven   out of her house, she was told not to come back unless she brought Rs.2.00 lacs and 10 Tollas gold. It is held that no such deposition was made in the examination in chief. There was variation in the cross-examination. It is held that the said deposition in the cross- examination for the first time about the alleged demand of dowry was an after thought. No incident had occurred from 16th June, 2002 to 21st June, 2002. It is held that it appeared to be improbable that on 21st June, 2002 after Pooja was performed, she was suddenly and forcibly asked to leave the matrimonial home.
  1. The respondent herself had admitted that her father-in-law had come to leave her on the bus stand. She further admitted that gifts were given to her sister Kalika and also to her niece Teja after Pooja. The learned Magistrate accordingly held that in this sequence of events the alleged demand of dowry or forcing her out of the matrimonial home appeared to be totally improbable. The FIR was lodged more than one month after the alleged demand of dowry. The learned Magistrate totally disbelieved the explanation given by the respondent about the delay in lodging FIR.
  1. It is held that the case of the respondent was not believable in view of the appellant and his family members giving gifts to the relatives of the respondent and in view of the delay on her part in lodging a complaint against the appellant and his family members. The respondent had not given adequate reasons for the delay of more than one month in filing the FIR. The aforesaid finding of fact recorded by the learned Magistrate thereby acquitting the appellant and his family members of the offence under sections 498-A, 323, 504 and 506 of IPC has attained finality.
  1. A perusal of the order passed by the learned Magistrate and the lower appellate Court indicates that both the Courts have held that the appellant husband had not proved that the respondent had committed any cruelty on him and further held that the respondent was entitled to a decree of restitution of conjugal rights. It is held that the appellant was thus not entitled for a decree of nullity or marriage or in the alternative the relief of divorce on the ground of cruelty. The lower appellate Court held that the husband and his family members had been acquitted on the ground that the prosecution was not able to prove the offence beyond reasonable doubt. It is held that the proof of offence beyond reasonable doubt leading to acquittal is a very different concept from a false case lodged in order to defame anybody.
  1. The lower appellate Court has held that the Criminal Court which was ceased of the matter had no where stated that false complaint had been lodged and specific act of cruelty about the wife had not been pleaded and proved and thus the said ground cannot be canvassed for nullity of marriage or for seeking divorce. The lower appellate Court held that taking into consideration the evidence led by the wife, which was more probable, the wife had proved that her marriage with the appellant was legal and the appellant had deserted her without reasonable ground and thus the wife was entitled to get a decree for restitution of conjugal rights.
  1. Both the parties have relied upon several judgments of the Supreme Court and this Court. The Supreme Court in case of K. Srinivas (supra) has held that it is beyond cavil that if a a false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle   the other spouse to claim a divorce. The Supreme Court in the said judgment held that the respondent wife had admitted in her cross-examination that she did not mention of the incidents on which her complaint was predicated, in her statement under section 161 of Cr.P.C. It was also not her case that she had actually narrated all those facts to the Investigating Officer but he had neglected to mention them. The Supreme Court accordingly held that it was clearly indicative of the fact that the criminal complaint was contrived after thought. The Supreme Court took cognizance of the fact that though the High Court had been informed about the acquittal of the husband and his family members, the High Court had not concluded that complaint of the wife was knowingly and intentionally a false complaint, calculated to embarrass and incarcerate the appellant and seven members of his family. It is held that the High Court ought to have concluded that the said complaint was false complaint and that such conduct of the wife unquestionably constituted cruelty as postulated in section 13(1)(i-a) of the Hindu Marriage Act, 1955.
  1. The Criminal Court while acquitting the appellant and his family members, after considering the evidence of six witnesses had rendered a positive finding that the complaint filed by the respondent was an after thought. The Criminal Court has rejected the complaint on merits after evaluating the evidence of six witnesses. Though the appellant had produced a copy of the said order passed by the learned Magistrate First Class before the lower appellate Court, the lower appellate Court has brushed aside the said judgment by taking a very casual approach in the matter.
  1. The Division Bench of this Court in case of Nagesh Dhanapp Chilkanti vs. Sau.Manisha Nagesh Chilkanti (supra) had   considered a similar case where the husband and his family members were acquitted in the complaint filed under section 498-A of IPC read with other provisions of IPC. The Division Bench of this Court has held that filing of false criminal cases against the husband and his family members would very much constitute mental cruelty. The Division Bench further held that the respondent wife was guilty of treating the husband with utmost mental cruelty by filing false criminal case which ultimately resulted in acquittal and thus the husband was entitled to a decree of divorce o the ground of cruelty.

A perusal of the order passed by the learned Magistrate First Class in the criminal case filed by the prosecution based on the complaint filed by the respondent and more particularly the evidence appreciated by the learned Magistrate First Class indicates that the said complaint has been rejected on merits and not on the ground that the prosecution had failed to prove the case beyond reasonable doubt. In my view, it was thus clear that the said complaint filed by the respondent wife after five days of marriage against the appellant and his family members was a false complaint and was filed as and by way of after thought and with an intention to defame the appellant and his family members. The respondent had not alleged that during those five days there was any ill-treatment or demand of dowry by the appellant or his family members from the respondent or her family   members.

  1. The Division Bench of this Court in case of Nitin Ramesh Dhiwar vs. Sou. Poopali Nitin Dhiwar (supra) has held that filing of a false criminal case itself amounts to cruelty within the meaning of section 13(1)(i-a) of the Hindu Marriage Act, 1955.
  1. The Division Bench of this Court in the judgment reported in 2014(4) B.C.R. 456 has held that in a given case depending upon the evidence on record, even if acquittal is on the ground that the charge could not be substantiated and even if there was no finding recorded by the Criminal Court that the prosecution’s case was false, there can be a case of cruelty. It depends on the manner in which the complaint was filed and prosecuted.
  1. The Supreme Court in case of Vishwanath Sitaram Agrawal vs. Sau.Sarla Vishwanath Agrawal, reported in AIR 2012 SC 2586 has after considering the fact that the wife had filed a complaint under section 498-A of IPC against the husband, her father-in-law and other relatives, who had been acquitted in that case and the said decision of the acquittal had not been assailed before the higher forum, the allegations on that count were incorrect and untruthful and thus it could be unhesitatingly be stated that such an act creates mental trauma in the mind of the husband as no one would like to face a criminal proceeding of this nature on baseless and untruthful allegations.

In this case also the appellant and his family members have been acquitted since the allegations made in the complaint filed by the respondent and in the proceedings filed by the prosecution were not proved on merits. The said judgment of the   learned Magistrate First class has admittedly not been assailed before the higher forum.

The appellant husband had filed the proceedings for divorce on the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act after such acquittal of the appellant and his family members of such offence under sections 498-A, 323, 504 and 506 of IPC. The said judgment, in my view, would squarely apply to the fact of this case.

  1. The Supreme Court in case of G.V.N. Kameswara Rao vs. G. Jabilli, reported in (2002) 2 SCC 296 has adverted to its earlier judgment in case of V. Bhagat vs. D. Bhagat, reported in (1994) 1 SCC 337 in which it was held that a mental cruelty under section 13(1)(i-a) can 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. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. The Court must have regard to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. In that case also both the parties did not live together for a long period as happy married couple. The Supreme Court held in that case that the appellant husband could not be denied the relief by invoking section 23(1)(a) of the Hindu Marriage Act.
  1. A perusal of the record clearly indicates that the appellant and the respondent did not stay together for more than five days after their marriage and have been staying separately since 2002. The   respondent could not prove her case before the Criminal Court though the prosecution had examined six witnesses, including the respondent herein and the appellant and his family members were arrested and were subsequently released. The finding rendered by the learned Magistrate First Class acquitting the appellant and his family members has attained finality. There was a complete irretrievable break down of the marriage of the appellant and the respondent within a short span of time.
  1. The judgments referred to aforesaid clearly indicate that if the complaint filed by the wife against the husband under section 498-A of IPC and other related provisions was dismissed on merits and the husband and his family members are acquitted, it was clear that the complaint filed by the wife against the husband was a false complaint. In my opinion, filing of such complaint itself which create mental trauma on the husband and the complaint which was seriously prosecuted by the wife by leading evidence of several persons and bringing the said complaint to its logical conclusion which ultimately resulted in acquittal of the husband and his family members clearly amounted to the cruelty committed by the wife upon the husband.
  1. The judgments of the Supreme Court and this Court which are referred to aforesaid squarely apply to the facts of this case. I am respectfully bound by those judgments. There is no dispute that the husband and his family members were ultimately acquitted in such complaint made by the respondent. It was not the case of the respondent before the trial Court as well as before the lower appellate Court that the finding rendered by the learned Magistrate First Class were erroneous and such allegations were not independently proved by the respondent before the learned trial Court as well as before the   lower appellate Court. A perusal of the order passed by the lower appellate Court indicates that the evidence led by the respondent and other witnesses in the said criminal proceedings and the findings rendered by the learned Magistrate First Class have been totally ignored by the learned trial Court.
  1. The Supreme Court as well as this Court in the aforesaid judgments have consistently held that if the false criminal complaint is preferred by either spouse it would invariably and indubitably constitute matrimonial cruelty, such as would entitle the other spouse to claim a divorce. In my view, the respondent having filed a false complaint alleging offence under section 498-A, 323, 504 and 506 of IPC in which the appellant and his family members were acquitted and thus the appellant was entitled to seek divorce on the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act.
  1. Insofar as the submission of the learned counsel for the respondent that the judgments relied upon by the appellant cannot be considered as a binding precedent on the ground that all such judgments were delivered under Family Court appeals where the Court could consider not only the question of law but also the question of facts is concerned, in my opinion, there is no substance in this submission of the learned counsel for the respondent. In each of these judgments even if few of them have been decided arising out of the orders passed by the Family Court, the Courts have laid down the principles of law after considering the facts in each case which facts were identical to the facts in this case. In the present case the proceedings of divorce filed by the appellant as well as the proceedings seeking restitution of conjugal rights filed by the respondent wife were filed before the learned Civil Judge, Senior   Division which Court had jurisdiction to hear both these proceedings. There was no Family Court constituted in Sangli when the said two proceedings were filed by the parties. The judgments relied upon by the appellant thus which are applicable to the facts of this case would be binding on this Court and also upon the parties. http://evinayak.tumblr.com/https://vinayak.wordpress.com/http://fromvinayak.blogspot.com
  1. Insofar as the submission of the learned counsel for the respondent that even if this Court comes to a conclusion that any cruelty was committed by the respondent upon the appellant, the respondent was still entitled to the relief of restitution of conjugal rights under section 9 of the Hindu Marriage Act is concerned, a perusal of section 9 of the Hindu Marriage Act clearly indicates that the application for restitution of conjugal rights can be filed under that provision only if when either husband or wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party, may apply for restitution of conjugal rights and the Court after being satisfied of the truth of the statement made in such petition and that there was no legal ground as to why such application should not be granted, may decree restitution of conjugal rights accordingly. It is provided that the burden of proving the reasonable excuse shall be on the person, who has withdrawn from the society.
  1. In this case the respondent wife had filed a complaint under section 498-A and other relevant provisions of IPC. The respondent after filing such complaint and after arrest of the appellant and his family members had filed a petition under section 9 of the Hindu Marriage Act on 21st December, 2002 inter-alia praying for restitution of conjugal rights. The husband on the other hand filed the marriage petition inter-alia praying for annulment of the marriage and for divorce, including on the ground of cruelty on 10 th March, 2006.

The question that arises for consideration of this Court is that whether a wife who had filed a false complaint under section 498-A and other relevant provisions of IPC in which the husband and his family members were arrested and were subsequently acquitted can continue to maintain a petition under section 9 of the Hindu Marriage Act for seeking restitution of conjugal rights or not.

  1. The Supreme Court in case of V. Bhagat vs. D. Bhagat, (supra) has held that a mental cruelty under section 13(1)(i-a) can 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. It is held that mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. It is also held that the situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. In my view the said judgment clearly applies to the facts of this case.
  1. The parties have been staying separately since 2002. In my view, since the appellant husband and his family members were wrongly implicated in a false case filed by the respondent alleging the offence under sections 498-A, 323, 504 and 506 of IPC and were arrested by the police and the said complaint was subsequently prosecuted rigorously by the respondent till it was brought to its logical conclusion and the appellant and his family members having been exonerated of all such charges and were acquitted, in my view, the appellant had withdrawn from the society of the respondent with a reasonable excuse.
  1. In my opinion, the respondent having treated the appellant   with cruelty and such allegations having been proved, the respondent at the same time could not maintain her application for restitution of conjugal rights by filing an application under section 9 of the Hindu Marriage Act, 1955. The husband, who had suffered mentally in view of such false criminal case filed by the wife and admittedly in which he and his family members were acquitted, cannot be compelled by the Court by passing an order of restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 and to co-habit with the wife. In my view, once the husband has made out a case of divorce and had proved the cruelty committed by the wife under section 13(1) (i-a) of the Hindu Marriage Act, the wife could not maintain her application for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.
  1. In my view, the appellant husband had proved before both the Courts below that he had withdrawn from the society of the respondent due to the respondent having committed cruelty upon the appellant and such withdrawal from the society of the respondent was not without a reasonable excuse. In my view, both the reliefs are counter point to each other. Once the cruelty committed by the wife is proved by the husband, no relief for restitution of conjugal rights can be granted by the Court. Both the reliefs cannot be granted together at the same time. In my view, there is thus no substance in the submission made by the respondent that even if it was proved that the wife had treated the husband with cruelty, she will be independently entitled to maintain her application for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.
  1. In my view no spouse can be allowed to urge that he or she would treat other with cruelty and at the same time would also   force other to co-habit with him or her by filing application under section 9 of the Hindu Marriage Act for restitution of conjugal rights under the same roof. In my view, since the appellant husband had proved the case of cruelty on the part of the wife, the learned trial Judge as well as the lower appellate Court ought to have considered such case as a fit case for divorce and not a fit case for granting a relief under section 9 of the Hindu Marriage Act, 1995 for restitution of conjugal rights in favour of the respondent. In my view, since the husband was entitled to a decree of divorce under section 13(1)(i-a) of the Hindu Marriage Act, 1955, there was no question of the trial Court as well as the lower appellate Court granting the relief of restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955.
  1. Insofar as substantial questions of law made in Second Appeal Nos.396 of 2013 and 397 of 2013 are concerned, the said questions are answered in the negative. In my view there is no positive finding required to be rendered in the judgment of acquittal that the complaint filed was false and was with an intention to defame the other party.
  1. I therefore pass the following order :-

a). Second Appeal Nos.396 of 2013 and 397 of 2013 are allowed. The order dated 18th January, 2002 passed by the lower appellate Court in Regular Civil Appeal Nos.216 of 2008 and 215 of 2009 is set aside.

b). Hindu Marriage Petition No.49 of 2006 filed by the appellant in the Court of Civil Judge, Senior Division, Sangli inter-alia   praying for annulment of marriage and for divorce is decreed on the ground of cruelty under section 13(1)(i-a) of the Hindu Marriage Act, 1955.

c). Hindu Marriage Petition No.179 of 2002 filed by the respondent under section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights is dismissed.

d).            No order as to costs.

 

(R.D. DHANUKA, J.)

 

ig

 

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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.

cruelty & desertion by wife, irretrivable break down, husband’s dvrc affirmed – Supreme court ; Parveen mehta V Inderjit mehta

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

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Supreme Court of India
CASE NO.: Appeal (civil) 3930 of 2002
PARVEEN MEHTA Vs. INDERJIT MEHTA
DATE OF JUDGMENT: 11/07/2002

BENCH: D.P. MOHAPATRA, BRIJESH KUMAR.
JUDGMENT: D.P.MOHAPATRA,J.

Leave granted.

What is the meaning and import of the expression ‘cruelty’ as a matrimonial offence is the core question on the determination of which depends the result and the fate of this case.

The appellant is the wife of the respondent. They were married according to Hindu rites and customs on 6th December, 1985. The marriage was preceded by negotiation between the two families, ring exchange ceremony, etc. A meeting between the boy and the girl was also arranged at Yamuna Nagar in the State of Haryana. After marriage the spouses stayed together at Panipat where the respondent was posted as a Judicial Officer. They lived together till 28th April, 1986 when they parted company never to stay together again. It is the case of the respondent that right from the first day of the marriage he sensed something abnormal with his wife; he was unable to consummate the marriage as there was no cooperation from the side of the wife for sexual intercourse. Despite several attempts cohabitation was not possible for lack of cooperation on the part of the wife. It is the further case of the respondent that when he first met his wife when some members of the two families met he had noticed that she was looking very frail and weak. When he wanted to know the reason for such state of her health her father and other relations told him that she had been undergoing a strict diet control and had been making efforts to reduce her w.eight On questioning his wife immediately after the marriage the respondent could ascertain that she was suffering from some ailment and she was under the treatment of Vaid Amar Nath Sastry of Chandigarh. On 10th December, 1985 the respondent took his wife to see Mr.Sastry at Chandigarh who informed him that father of the girl was his close friend and he was already seized of the problems of her health. He gave some medicines to be taken by her. Thereafter they returned to Yamuna Nagar where parents of the respondent were living. Subsequently, the respondent took the appellant to Panipat where he was posted and they started living there and continued with the medicines. In February, 1986 the appellant agreed to be examined by Dr.B.M.Nagpal of Civil Hospital, Panipat. The doctor advised a thorough check up and diagnosis. However, this was not possible since the appellant did not cooperate and ultimately gave out because she was not interested in taking any medical treatment.

The respondent further alleged that the state of health of the appellant continued to deteriorate; she continued to lose weight; she suffered from asthmatic attacks; on account of her ailment her behavior became quarrelsome; and on trifle matters she threatened to leave the matrimonial home. It was further contended that during her stay at Panipat when Surinder Singh Rao and Virender Jain, friends of the respondent visited his place, the appellant refused to prepare tea and started misbehaving with him in presence of the outsiders thereby causing embarrassment to him. Ultimately on 28th April, 1986 her brother and brother’s wife came to Panipat and took the appellant with them. It was the further case of the respondent that when the appellant was with her parents several attempts were made by him offering to give her the best possible medical treatment so that the condition of her health may improve and both of them could lead a happy married life. All such attempts failed. The offer of medical treatment was rejected and even nature of the ailment suffered by her was not disclosed to the respondent.

On one occasion when Shri S.K. Jain, a senior officer of the Judicial Service, then the Legal Remembrancer of Haryana and who later became a Judge of the High Court was discussing the matter with the parties with a view to bring about a settlement the appellant caught hold of the shirt collar of the respondent and created an ugly and embarrassing situation. Again on 30th July 1986 the appellant accompanied by a number of persons searched for the respondent in the Court premises at Kaithal and not finding him there forcibly entered his house and threatened him. A report about the incident was sent to the superior officer of the respondent. Alleging the aforestated facts and circumstances the respondent filed the petition in August, 1996 seeking dissolution of the marriage on the grounds of cruelty and desertion.

The appellant refuted the allegations made in the petition. She denied that her husband had been misled regarding the state of her health before their marriage. She alleged that the marriage was duly consummated and the phera ceremony was performed; and that her husband had been expressing full love and affection towards her. She denied that she suffered from any serious ailment and had been treated by Vaid Amar Nath Sastri. It was her case that she had become pregnant from the wedlock but unfortunately there was miscarriage. It was the further case of the appellant that the respondent and his parents wanted to pressurise the appellant and her parents to agree for a divorce by mutual consent. On 21st June, 1987 when a meeting of relations of both sides took place at the house of her mother’s sister Smt.Parakash Kapur at Yamuna Nagar the respondent stated that the appellant was too frail and weak; that she must be suffering from some disease and therefore, he was not prepared to take her back. Thereafter several attempts were made by her parents and other relations to persuade the respondent to take the appellant to his house but such attempts were of no avail on account of want of any response from the respondent and his parents. http://evinayak.tumblr.com/  https://vinayak.wordpress.com/  http://twitter.com/ATMwithDick

On the pleadings of the parties, the Trial Court framed the following issues :

“1) Whether the respondent-wife has deserted the petitioner, if so, its effect? OPP
2) Whether the respondent-wife is guilty of cruelty, if so, its effect? OPP
3) Whether this petition is barred by latches, in accordance with Section 23(1a) and (d) of the Act? OPP
4) Relief.”

Both the parties led evidence, both oral and documentary, in support of their cases. The Trial Court on assessing the evidence on record, dismissed the petition for divorce filed by the respondent.

The respondent filed an appeal, FAO No.42-M/99 before the High Court assailing the judgment of the Trial Court. The appeal was allowed by the learned Single Judge by the judgment rendered on 1st June, 2000. The learned Single Judge granted the prayer of the respondent for dissolution of the marriage on the ground of cruelty and further held that as the marriage took place about 14 years ago and there was no child out of the wedlock it would be in the interest of justice that the parties should be separated from each other. The operative portion of the judgment is quoted hereunder :

“In view of the discussion as such the only conclusion which can be arrived at is that despite the fact that the respondent is a good lady but has created the aforesaid situation because of her own act and conduct concerning the non-disclosure of her state of health and concealment by her above acted as a mental and physical cruelty to the appellant which entitles him to a decree of divorce. Therefore, the findings of the learned District Judge on issue Nos.1 to 3 are reversed.

For the foregoing reasons, the appeal is allowed, marriage between the parties stands dissolved and a decree of divorce on the grounds of desertion and cruelty is hereby granted in favour of the appellant (husband) and against the respondent (wife). In the circumstances of the case, the parties are left to bear their own costs. However, it would be appropriate to ask the husband not to remarry till 30.9.2000. Hence ordered accordingly.”

The wife, who is the appellant herein, filed an appeal before the Division Bench, Letters Patent Appeal No.1000 of 2000, assailing the judgment of the learned Single Judge. The Division Bench of the High Court by the judgment rendered on 8th August, 2000 dismissed the Letters Patent Appeal in limine. The Division Bench held: “Even otherwise, in the facts and circumstances of the case in hand, in our view, it cannot be said that the husband has tried to take advantage of any wrong on his part. Rather, he did make the best possible effort to explore the possibility of detecting the deficiency or disease, if any, and for treatment of poor health of his wife. But, all in vain. We find no merit in the Letters Patent Appeal. It is, therefore, dismissed in limine.” The said judgment is under challenge in this appeal.

Shri Ujjagar Singh, learned senior counsel appearing for the appellant contended that in the context of facts and circumstances of the case the High Court has erred in granting the prayer for divorce by the respondent on the sole ground of cruelty. He further contended that even assuming that the spouses did not enjoy normal sexual relationship with each other on account of frail health of the appellant and there were heated exchanges between the parties followed by the appellant catching hold of shirt collar of the husband, that is not sufficient to establish a case of cruelty for the purpose of Section 13(1)(ia) of the Act. Shri Singh also contended that if the ground of cruelty fails then the further ground stated in favour of the decree of divorce that the marriage has irretrievably broken down will be of no avail to the respondent.

Shri Sudhir Chandra, learned senior counsel appearing for the respondent strenuously contended that in the facts and circumstances of the case the High Court rightly recorded the finding of cruelty by the appellant towards the respondent. Elucidating the point Shri Sudhir Chandra submitted that the respondent was kept in the dark about the poor state of health of the appellant at the time of the marriage negotiations despite the query made by him about the reason for her frail and weak health. After marriage when the respondent was prepared to provide the best possible medical treatment to improve her health neither the appellant nor her parents extended their cooperation in the matter. Further, the erratic and impulsive behavior of the wife caused serious embarrassment to the respondent before his friends and colleagues. The cumulative effect of all the aforesaid facts and circumstances of the case, according to Shri Sudhir Chandra, give rise to reasonable apprehension in the mind of the respondent that it is not safe to continue matrimonial relationship with the appellant. Thus a case of cruelty for the purpose of Section 13(1)(ia) was made out. It was the further contention of Shri Sudhir Chandra that the respondent remarried in December, 2000, two years after the judgment of the Single Judge and nearly four months after the judgment of the Division Bench was rendered. In the facts and circumstances of the case, urged Shri Sudhir Chandra, this is not a fit case for this Court to interfere with the judgment and decree passed by the High Court in exercise of its jurisdiction under Article 136 of the Constitution of India.

As noted earlier, the learned Single Judge granted the respondent’s prayer for dissolution of the marriage on the ground of ‘cruelty’. Therefore, the question arises whether in the facts and circumstances of the case a case for divorce under Section 13(1)(ia) of the Hindu Marriage Act,1955 (for short ‘the Act’) has been made out. The answer to this question depends on determination of the question formulated earlier. In Section 13(1) it is laid down that :

“Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party xxx xxx xxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;”

Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger’ (Russel v. Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II page 87]. The provision in clause (ia) of Section 13(1), which was introduced by the Marriage Laws (Amendment) Act 68 of 1976, simply states that ‘treated the petitioner with cruelty’. The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct and not fail in some circumstances. By the amendment the Legislature must, therefore, be understood to have left to the courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases. It seems permissible, therefore, to enter a caveat against any judicial attempt in that direction (Mulla Hindu Law, 17th Eidition, Volume II, page 87).

This Court in the case of Dastane vs. Dastane, AIR 1975 SC 1534, examined the matrimonial ground of cruelty as it was stated in the old Section 10(1)(b) and observed that any inquiry covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live with the respondent. It was further observed that it was not necessary, as under the English law that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. In essence what must be taken as fairly settled position is that though the clause does not in terms say so it is abundantly clear that the application of the rule must depend on the circumstances of each case; that ‘cruelty’ contemplated is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The treatment accorded to the petitioner must be such as to cause an apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably be expected to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status environments and social values, as also the customs and traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, this Court construing the question of ‘cruelty’ as a ground of divorce under Section 13(1)(ia) of the Act made the following observations :

“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, postulates 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.”

This Court, construing the question of mentral cruelty under Section 13(1)(ia) of the Act, in the case of G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296, observed :

“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 impossible, 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.”

Quoting with approval the following passage from the judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337, this Court observed therein:

“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. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made”.

Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91).

In the case in hand the foundation of the case of ‘cruelty’ as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. When the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K.Jain. This Court in the case of Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : “Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment”.

Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior 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 behavior or behavioral pattern by the other. Unlike the case of physical cruelty the 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 misbehavior 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.

Judged in the light of the principles discussed above what we find is that right from the beginning the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of about six months; the respondent had been trying to persuade the appellant and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical test as advised by the doctor. After 21st June, 1987 she stayed away from the matrimonial home and the respondent was deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behavior of the appellant. Further, the conduct of the appellant in approaching the police complaining against her husband and his parents and in not accepting the advice of the superior judicial officer Mr.S.K.Jain and taking a false plea in the case that she had conceived but unfortunately there was miscarriage are bound to cause a sense of mental depression in the respondent. The cumulative effect of all these on the mind of the respondent, in our considered view, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant. http://evinayak.tumblr.com/  https://vinayak.wordpress.com/  http://twitter.com/ATMwithDick

The learned Single Judge in his judgment has discussed the evidence in detail and has based his findings on such discussions. In the Letters Patent Appeal the Division Bench on consideration of the facts and circumstances of the case agreed with the findings recorded by the learned Single Judge. In the context of the facts and circumstances on record we are of the view that the learned Single Judge rightly came to the conclusion that the prayer of the respondent for dissolution of the marriage on the ground of cruelty under Section 13(1)(ia) of the Act was acceptable. Therefore, the Division Bench committed no error in upholding the judgment of the learned Single Judge.

As noted earlier the parties were married on 6th December, 1985. They stayed together for a short period till 28th April 1986 when they parted company. Despite several attempts by relatives and well-wishers no conciliation between them was possible. The petition for the dissolution of the marriage was filed in the year 1996. In the meantime so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably without any fault on the part of the respondent. Further the respondent has re- married in the year 2000. On this ground also the decision of the High Court in favour of the respondent’s prayer for dissolution of the marriage should not be disturbed. Accordingly this appeal fails and is dismissed. There will, however, be no order for costs.

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CASE FROM JUDIS DOT NIC DOT IN SITE
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