Tag Archives: cruel wife

wife who deserted husband in 1992 tries to contest divorce decree but looses completely !!

 

Marriage in 1992, Parties have stayed together hardly for a few months. Wife ridicules and ill treats husband as she is more qualified than him. She also leaves him and goes away to parental home. Husband wins divorce in lower court, but wife contests the case which comes up for decision in march 2017 !! Wife loses the case (in March 2017). It is NOT know if wife has gone on further appeal !!


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

 

FAMILY COURT APPEAL No.86 OF 2014

 

Vaishali w/o. Rajesh Barde,
Aged : Adult,
R/o. C/o. Shri Hiwarkar,
E.W.S. Colony, New Somwaripeth,
Nagpur. : APPELLANT

…VERSUS…

Rahesh s/o. Harihar Barde,
Aged 41 years,
Occupation : School Teacher,
R/o. C/o. Samajsewa Vidyalaya,
Wadhona, Tah. Nagbhid,
Distt. Chandrapur. : RESPONDENT

 


Ms. Muley, Advocate for the Petitioner.
Shri Dongre, Advocate for the Respondent.


CORAM : SMT. VASANTI A. NAIK AND V.M.DESHPANDE, JJ.
DATE : 1 st MARCH, 2017.

ORAL JUDGMENT : (PER : Smt. Vasanti A. Naik, J.)

By this family court appeal, the appellant challenges the judgment of the Family Court, dated 17.04.2008 allowing a petition filed by the respondent for a decree of divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty and desertion.

The marriage of the parties was solemnized on 27.07.1992 at Nagpur as per Hindu rites and customs. The appellant and the respondent started residing at village Sawargaon where, the respondent- husband was working as a teacher. It is the case of the husband in the petition filed by him for a decree of divorce on the ground of cruelty and desertion that the appellant-wife was more qualified than him and, therefore, she always felt that the respondent-husband was not a proper match for her. It is pleaded by the husband in the petition that the wife did not have a desire to live with the husband in Sawargaon. It is pleaded that the wife used to pick up quarrel with the husband time and again and used to abuse him in filthy language. It is pleaded that the husband always tried to adjust and ensure that there was harmony in the house but, the wife always quarreled and tried to lower the image of the husband in the society. It is pleaded that the wife did not have any intention to perform the matrimonial duties and she used to leave the matrimonial home at odd times. It is stated that due to such behaviour of the wife, the husband had to suffer great mental agony. It is pleaded that in the first Diwali after the marriage, the wife left the house of the husband without informing him and returned to the house on the day of Laxmipujan. It is pleaded that the acts on the part of the wife amounted to cruelty and the husband is entitled to a decree of divorce on the ground of cruelty. The husband pleaded that he was also entitled to a decree of divorce on the ground of desertion. It is pleaded that the wife had left the matrimonial house sometime in May 1994 without any just or reasonable excuse and she was staying away from the husband for about 11 years, till the petition was filed. It is pleaded by the husband that the wife had flatly refused to come to Bramhapuri where his parents resided. It is pleaded that the husband took several steps to bring back the wife to the matrimonial home, but the wife did not oblige. It is pleaded that the wife and her parents had informed the husband that she was not ready to cohabit with the husband in the matrimonial home and the marriage between the parties should be dissolved. The husband sought a decree of divorce on the ground of cruelty and desertion.

The wife filed the written statement and denied the claim of the husband. The wife denied that she had treated the husband with cruelty. The wife denied that she illtreated the husband because she was highly educated. The wife denied that she had no desire to live with the parents at Bramhapuri. The wife denied that she had left the husband without any just or reasonable excuse. The wife also denied that she used to leave the matrimonial house time and again without any rhyme or reason without informing the husband. The wife denied all the adverse allegations that were levelled against her by the husband. In the specific pleadings, the wife pleaded that the allegations levelled against the wife by the husband only showed the normal wear and tear in the matrimonial home. It is pleaded that the allegations levelled by the husband against the wife, even if held to be proved could not amount to cruelty. It is pleaded that the husband was always suspecting the wife’s character and the said act on the part of the husband caused severe mental agony to the wife. The wife pleaded that an irretrievable break irretrievably brake down of a marriage is not a ground for granting a decree of divorce under the Hindu Marriage Act. The wife pleaded that the husband has not pointed out that the wife had a desire to live separately from the husband. The wife sought for the dismissal of the petition.

The wife had filed a separate petition against the husband under Section 18 of the Hindu Adoption and Maintenance Act for grant of maintenance. Both the petitions, the one filed by the husband for the decree of divorce and the other filed by the wife for maintenance were tried together by the Family Court and while partly allowing the petition filed by the wife for maintenance, the Family Court allowed the petition filed by the husband for a decree of divorce on the ground of cruelty and desertion. The judgment of the Family Court, so far as it grants a decree of divorce in favour of the husband is challenged by the wife in this family court appeal.

Ms. Muley, the learned counsel for the appellant-husband submitted that the Family Court could not have granted a decree of divorce in favour of the husband. It is stated that the Family Court was not justified in holding that the wife was not desirous of residing with the husband and she had consented for a decree of divorce by mutual consent, by accepting a sum of Rs.3/- lakhs. It is submitted that the allegations levelled by the husband against the wife would at the most be considered to be the acts showing the normal wear and tear in a matrimonial house and the said allegations, even if they are held to be proved, cannot result in holding that the wife had treated the husband with cruelty. It is submitted that a decree of divorce could not have been passed in favour of the husband on the ground of desertion, as there is evidence on record to show that after the wife left the matrimonial house in May 1994, she had tried to join the company of the husband by returning to the matrimonial home in July 1994. It is submitted that neither is the factum of desertion proved, nor is the factum of ‘animus deserendi’ proved in this case. The learned counsel submitted that the petition filed by the husband for a decree of divorce was liable to be dismissed.

Shri Dongre, the learned counsel for the respondent-husband has supported the judgment of the Family Court. It is submitted that the Family Court has considered the evidence of the parties in detail and has held that the wife had treated the husband with cruelty and that she had deserted him. It is submitted that there was ample evidence on record to show that the wife was having a superiority complex and she always used to quarrel with the husband, as she was more educated than him. It is submitted that the husband had clearly stated in his cross-examination on the suggestion made on behalf of the wife that the wife had pointed out a spelling mistake made by the husband and had admonished him that being educated he should not have committed such a mistake. It is stated that the husband had stated in his evidence, especially in his cross-examination that the wife used to taunt the husband because he was less educated than the wife. It is stated that the husband had stated in his cross-examination that he has stated in his affidavit about the behavior of the wife that lowered his image in the society. It is stated that the husband admitted that the wife had demanded divorce on payment of an amount. It is stated that the suggestion given on behalf of the wife to the husband in his cross-examination and the answers of the husband thereto would clearly prove that the wife was treating the husband with cruelty. It is submitted that the Family Court has rightly held that the wife had left the company of the husband without any just or reasonable excuse. It is submitted that the Family Court has rightly held that the wife had deserted the husband and the husband was not responsible for the separation. It is submitted that there is nothing on record to show that the husband had driven the wife out of the house and that he had not taken any steps for residing together. The learned J-fca86.14.odt 7/14 counsel sought for the dismissal of the Family Court Appeal.

It appears on a perusal of the original record and proceedings and on hearing the learned counsel for the parties, that the following points arise for determination in this family court appeal :

i) Whether the husband proves that the wife has treated him with cruelty ?

ii) Whether the husband proves that the wife has deserted him without any just or reasonable excuse ?

iii) Whether the husband is entitled to a decree of divorce ?

iv) What order ?

The pleadings of the parties are narrated in detail in the earlier part of the judgment. The husband had entered into the witness box and had reiterated the facts stated by him in his pleadings in regard to the nature of the wife. He had stated that she used to leave the house without any rhyme or reason without informing the husband. The husband had also stated in his evidence that the wife did not like to reside in Bramhapuri along with his parents and that on the first Diwali she had left the house without informing him and had returned on the day of Laxmipujan. It is stated by the husband that the wife always used to taunt him because she had secured the degrees of M.Com., M.A. and M. Phil. and the husband was not as educated as her. The husband stated that time and again the wife used to quarrel with the husband and sometimes the neighbours had to intervene and this conduct on the part J-fca86.14.odt 8/14 of the wife has lowered his image in the society. The husband narrated all the other facts pleaded by him in his petition in his examination in chief. The husband was cross-examined on behalf of the wife. The cross- examination of the husband is very material. In fact, the suggestions given on behalf of the wife to the husband proves the case of the husband that the wife had treated him with cruelty. The husband has admitted in his cross-examination that the wife was more qualified than him and that once she had pointed out a spelling mistake and had scolded him that he should not have committed such a mistake, being educated. The husband admitted in his cross-examination that there were certain instances which made him believe that the wife was not ready to live with him. The husband stated in his cross-examination that he had stated in his affidavit about the wife’s behavior which resulted in lowering his image in the society. The husband admitted in his cross- examination that Laxmipujan falls on 3rd or 4th day of Diwali festival and the wife had left the matrimonial home on Diwali without informing him and had returned on the day of Laxmipujan. The husband admitted in his cross-examination that he did not know where the wife had gone on the day of Diwali. The husband admitted that he had no knowledge about the plan of the wife to leave the matrimonial home in May 1994. The husband admitted that the wife had demanded divorce on payment of amount. The husband stated that he had stated about the fact in respect of demand of money by the wife in his affidavit.

It is apparent from the cross-examination of the husband that for a petty matter, where the husband committed a spelling mistake, the wife took the husband to task in the early days of marriage and told him that he should not have committed such a mistake, when he was educated. The parties had resided together for not more than four months. Within a short period of four months a normal wife may not even open up to tell her husband that he has committed a mistake and that he should never commit it again. It is apparent that within a short stay of about four months with the husband in the matrimonial home during which period, she had left him time and again and had gone to her parents, she had admonished the husband for a trifle spelling mistake. The husband had stated in his cross-examination that the wife used to taunt him because he was less educated. This suggestion should not have come from the side of the wife to the husband in his cross-examination. The husband had also stated in his cross-examination that the wife had tried to lower his image in the society and that she had left the house on the first day of Diwali without informing him and returned to the house on the day of Laxmipujan. The husband had stated in his cross-examination that he was not aware about the plan of the wife to leave the matrimonial house in May 1994. The husband also stated in his cross-examination that the wife had demanded divorce on payment of J-fca86.14.odt 10/14 amount. This fact is fortified by a consent divorce petition filed by the parties in the Family Court. The husband and the wife had agreed that the husband would pay a sum of Rs.3/- lakhs to the wife as full and final settlement and that the marriage between them would be dissolved. After filing the petition in the Court, the Family Court has noted that when the parties were called for recording the statement in respect of consent divorce, the wife had backed out. It is apparent from the cross- examination of the husband that the wife had demanded divorce from the husband on payment of amount and it appears that the wife was not ready to accept the amount of Rs.3/- lakhs as she desired some more amount when the matter was settled and a consent decree was to be passed by the Court. The husband had not only examined himself but had also examined his uncle Shri Keshav Mandavgade. This witness had clearly stated in his examination in chief that whenever the husband asked the wife to come along with him to his parents at Bramhapuri, she refused to accompany him. It is stated that without informing the husband, the wife used to go to Nagpur to her parental home from Sawargaon, when the husband was out of the house on his duties. Shri Keshav has stated in the examination in chief that when he had asked the wife not to behave in such a fashion, the wife said that the husband and his family members are not dignified people and they are not much educated. The witness stated in his evidence that the wife told him that she did not get a matrimonial house as per her desire and she had married the husband only with a view to please her parents. The witness stated that the wife had admitted that because she was not happy in the matrimonial home, she used to leave the house and go to her parental house at Nagpur. The witness also stated in his evidence that the wife told him that she was ready to sever the matrimonial relationship, but the amount spent by her father on the marriage should be returned to her. Though, this witness was cross-examined on behalf of the wife, there is no cross-examination on the aforesaid facts stated by him in his examination in chief. In the absence of any cross-examination on the material evidence tendered by Shri Keshav Mandavgade, the facts stated by him in his examination in chief remain unchallenged and the husband is successful in proving his case that the wife had treated him with cruelty on the basis of his evidence as also the evidence of Shri Keshav Mandavgade. It is also notable that though the wife had not pleaded in her written statement that she had found a photograph of a woman in a religious book and the husband had snatched the said photograph from her and that he had an affair with the said lady, the wife went on to make the aforesaid statements in her examination in chief. The Family Court rightly held that levelling serious allegations on the character of a party and failing to prove the same would tantamount to cruelty. The wife has stated in the evidence, though there are no pleadings in that regard, that when the wife had enquired about the photograph of a woman in a religious book of the husband, the husband had started torturing and beating her mercilessly. If the husband had filed the petition eleven years after the separation of the parties and if this incident had really occurred, the wife would have, in the first place pleaded these facts in her written statement. The wife, however, did not do so. Levelling serious allegations against the husband’s character without pleading and proving the same, if considered along with the other acts on the part of the wife would tantamount to cruelty. The Family Court held and rightly so that the wife had deserted the husband without any just or reasonable excuse. The parties were residing separately for more than eleven years before the husband filed the petition for a decree of divorce. The parties had resided together only for four months and there was a separation period of eleven years when the petition was filed. The Family Court, therefore, held on an appreciation of the evidence on record that the husband did not drive away the wife from the matrimonial home, as pleaded by her and the wife had left the company of the husband without any just or reasonable excuse. The Family Court held that it was apparent from the evidence of the parties that there was no intention on the part of the wife to join the company of the husband. The case of the wife that she returned to the matrimonial home with a view to reside with the husband cannot be believed.

Though the wife had issued a legal notice to the husband for claiming maintenance, the wife did not ask the husband to reside along with her. The wife had also not filed any proceedings for restitution of conjugal rights. If the wife really desired to live with the husband she would have surely filed a petition for restitution of conjugal rights while filing a petition for maintenance. The Family Court has rightly held that the wife started living separately from the husband on her own without any reasonable excuse and she was not ready to resume cohabitation. After having held that the husband had not driven the wife away from the house and that she was responsible for the separation, the Family Court held that the husband was entitled to a decree of divorce on the ground of desertion. We find that the Family Court has rightly appreciated the evidence of the parties to grant a decree of divorce in favour of the husband. We find that the wife was interested in securing money from the husband and was not interested in residing with the husband. The aforesaid position could be fortified by the consent terms that were signed by the parties and presented in the Family Court. The wife then refused to compromise the matter with a view to ensure that the husband pays some more amount. In the circumstances of the case, it cannot be said that the Family Court was not justified in granting a decree of divorce in favour of the husband.

As the judgment of the Family Court is just and proper, the family court appeal is dismissed with no order as to costs.

JUDGE JUDGE

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Hey MAN, Don’t file for #DIVORCE if you do NOT have a VERY strong case

In India MEN can’t get #divorce easily alleging #cruelty or desertion, unless you have cogent #proof and #witnesses. Also case should be fought throughly from the very start (meaning don’t miss key issues at the start). See this pathetic case where parties are separated for at least 7 years, there seems to be nothing left in the marriage, but the husband has LOST his divorce even at the HC … It’s better to remain single and NEVER approach courts for justice, IF you are NOT sure and NOT ready with tons of proof
 
 
/////7. In any case, the Family Court had come to a considered conclusion that the Appellant had not made out his case of cruelty under Section 13 (1) (i-a) of the said Act while dismissing the divorce petition. We find that the conclusions rendered by the Family Court 24 / 26 FCA. 89-09.sxw are based on correct appreciation of the evidence and material on record and none of the findings can be said to be perverse. An attempt was made on behalf of the Appellant to demonstrate that there was nothing left in the marriage with passage of time and that the Appellant was in no state of mind to take back the Respondent and the minor child to his home. We feel that this cannot be a factor to decide the fate of the divorce petition, filed by the Appellant. He came to the Court with a specific case of mental cruelty being inflicted by the Respondent on him. But he has failed to prove his case on the basis of evidence and material on record. We find from the record that between September 2009 to April 2010 the parties did stay together with the minor child under orders of this Court and even during this period it was recorded in the order dated 18.1.2010 that the Appellant could not make up is mind to take the Respondent and child to his home. The record shows that the Appellant was intensely desirous of having divorce, but he has failed to make out the case with which he has approached the Court.
 
28. A feeble attempt was made by the counsel appearing on behalf of the Appellant to claim that an adverse inference needs to be 25 / 26 FCA. 89-09.sxw drawn against the Respondent that there was no sincerity in her statement about her desire to cohabit with the Appellant and his parents even today, because she did not file any application under Section 9 of the said Act for restitution of conjugal rights. The said submission made on behalf of the Appellant is wholly without any substance because it cannot be held that the divorce decree as prayed for by the Appellant deserves to be granted only because the Respondent – wife failed to file an application for restitution of conjugal rights.
 
29. Thus, on considering the contentions raised on behalf of both the parties and on perusal of the record, we find that the judgment and order passed by the Family Court dismissing the divorce petition of the Appellant is justified and that there is no merit in the present appeal. Point No. 1 is therefore, answered in the affirmative. Accordingly, appeal is dismissed with no order as to costs.
 
30. In view of dismissal of the appeal, Civil Application No. 308 of 2015 filed therein does not survive and is therefore disposed of.
 
Sd/- Sd/-
[MANISH PITALE, J.] [A. A. SAYED, J.]
Vinayak Halemath
 
//////

#Wife #convicted of murdering 3 children files #false #dowry case. Husband wins #divorce on #cruelty. SCC

Classic case where #matrimonial #cruelty is discussed; Smt. #Mayadevi vs #Jagdish #Prasad on 21 February, 2007; #Supreme #Court of India

A married woman, mother of four kids acts cruelly to her children, keeps them tied with ropes, does NOT even feed the husband, borrows monies and refused to repay the same and finally #kills #three of her children #throwing them into a #well !! She is arrested and #convicted u/s #302IPC. She filed an application for bail. While on bail, she filed a false case alleging dowry demand against the respondent-husband and his family members. Final report was given by police and it was observed that a false case had been lodged. However husband wins divorce on grounds of crulety. Supreme court affirms the same !!

This case establishes that proof beyond reasonable doubt is NOT required in matrimonial disputes: The concept of proof beyond the shadow of doubt is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence. Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial matters.

~~~~~~~~~~~~~~~~~~~~

Supreme Court of India

Smt. Mayadevi vs Jagdish Prasad on 21 February, 2007

Author: . A Pasayat

Bench: Dr. Arijit Pasayat, Dalveer Bhandari

CASE NO.: Appeal (civil) 877 of 2007

PETITIONER: Smt. Mayadevi

RESPONDENT: Jagdish Prasad

DATE OF JUDGMENT: 21/02/2007

BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI

JUDGMENT:

J U D G M E N T (Arising out of SLP (C) NO. 3686 OF 2006) Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Rajasthan High Court at Jodhpur dismissing the appeal filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 (in short the ‘Act’).

Background facts in a nutshell are as follows:

Respondent filed an application for divorce on the ground of cruelty alleging that because of the acts of cruelty on several occasions perpetuated by the appellant, the respondent- husband was under apprehension that it would not be desirable and safe to stay with the appellant and to continue their marital relationships.

It was, inter-alia, stated in the divorce petition as follows:

Parties got married according to the Hindu rites on 17.4.1993. The appellant’s father was an employee in the Railway department and the appellant used to make demands for money frequently and used to quarrel when money was not paid. She did not even provide food to her husband or the children and used to threaten the husband to falsely implicate him in a case of dowry demand and to kill the children and to put the blame on the respondent-husband and his family members. On 23.10.1999 she took Rs.1,05,000/- from the respondent and acknowledged the receipt of the money in the diary of the respondent-husband. She used to borrow money from time to time at the behest of her parents. From the wedlock four children were borne namely, Neha, Anu, Khemraj and Vishnu Sagar. The appellant used to keep the children tied by ropes and she attempted to throw them down from the rooftop and used to physically torture them. She was temperamentally very cruel and used to behave cruelly with the children also. She always used to threaten that she will destroy the whole family of the respondent and that there would be no successor left in the family. On 5.4.2002 at about 12.00 noon she left her parental home alongwith three children namely, Neha, Anu and Khemraj on the pretext that she was going to her parental house which was located in the same village. Since she did not return till evening as was told to the respondent-husband, he started searching for her. During course of search the garments and slippers of the children and the appellant were found lying near the well of Ramialji. Police was informed and on search dead bodies of the three children were recovered from the well and appellant was also taken out of the well. A criminal case was instituted and she was convicted for an offence under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). She was pregnant at that time and subsequently delivered a child. She filed an application for bail. While on bail, she filed a false case alleging dowry demand against the respondent-husband and his family members. Final report was given by police and it was observed that a false case had been lodged. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The appellant filed her response to the petition for divorce and contended that no amount was borrowed by her father or any of her family members. The respondent-husband used to threaten her for dowry and she had never perpetuated any cruelty so far as the children and the husband are concerned. She did not know as to how the children fell into the well. She was herself unconscious and recovered after about four days. The husband, in fact, turned her out of matrimonial home on 5.4.2002 alongwith their three children. Unfortunately, she and the three children fell into the well. The appeal is pending against her conviction. The trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to her behaviour on the date of judgment in the criminal case. After the judgment of conviction was pronounced, she threatened to kill the husband and prosecute him. It was also noted by the trial Court that the allegation made by her alleging for dowry demand was dis-believed and the police gave final report stating that the case was falsely lodged. The trial Court granted the decree of divorce which was, as noted above, confirmed by the High Court in appeal by dismissing appellant appeal.

Learned counsel for the appellant submitted that the foundation of decree for divorce is the alleged conviction for which the appeal is pending and, therefore, the High Court should not have disposed of the matter. In any event, it is submitted that it was the husband and his family members who were torturing her and being threatened by the husband she had not made any grievance with the police. Unfortunately, when she made the allegation, the police did not properly investigate the matter and gave a final report exonerating the husband.

Learned counsel for the respondent on the other hand submitted that the instances highlighted by the trial Court and analysed in great detail by the High Court clearly made out a case for dowry and no interference is called for in this appeal.

The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 and A. Jayachandra v. Aneel Kaur 2005 (2) SCC 22 ).

To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane v. Dastane, AIR 1975 SC 1534). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The instances of cruelty highlighted by the trial Court and also by the High Court clearly prove that the husband was subjected to mental and physical cruelty. It is not a fact as submitted by learned counsel for the appellant that the conviction in the criminal case was the foundation for the decree. On the contrary, the trial Court clearly mentioned that the aspect was not taken note of as the appeal was pending.

In view of what has been stated above, the inevitable result is dismissal of the appeal which we direct. There will be no order as to costs.

Wife left 12 years ago. All accused in DOWRY case DISCHARGED !! Still NO divorce for man!

husband-wife-quarrel

When I tell ppl that A MAN filing for divorce is taking a gamble and that could be costly and FUTILE, ppl just laugh at me !! Now guys tell me what this is ???

“…In his plea, the husband argued that since he and his wife had been living separately for the past 12 years, he should be allowed to end his marriage. ……”

“…On her part, the wife claimed she was harassed for dowry but HC found that everyone was discharged for lack of evidence by the trial court…”

No proof wife’s cruel, divorce plea junked

 

TNN | Sep 10, 2016, 01.02 AM IST

New Delhi: A man living separately from his wife for over a decade failed to get a divorce from the Delhi high court after he couldn’t prove that his wife was cruel.

A bench of Justices Pradeep Nandrajog and Pratibha Rani dismissed the appeal filed by the husband, pointing out that divorce can’t be granted merely on the grounds that a marriage is dead and there has been a breakdown.

“We know that the parties have been living separately for the past 10 years. Efforts made at different levels by the family court could not resolve the issue. Parties may claim that the marriage has broken down irretrievably as they could not reconcile themselves but the question is whether this is reason enough to be granted divorce. The answer is no according to the decision of the apex court,” the bench noted, refusing relief.

In his plea, the husband argued that since he and his wife had been living separately for the past 12 years, he should be allowed to end his marriage. The man had filed a petition seeking dissolution of marriage on account of cruelty.

But the trial court, on the basis of evidence, concluded that the accusations of cruelty against the wife could not be proved.

“We have no hesitation to conclude that the instances given by him are nothing but normal wear and tear in a matrimonial life, which cannot constitute mental cruelty and aren’t weighty enough to dissolve the marriage,” the court said.

On her part, the wife claimed she was harassed for dowry but HC found that everyone was discharged for lack of evidence by the trial court.

“What actually led the wife to separate from her husband along with her daughter is something only the couple knows,” HC noted.

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Un proven criminal cases, wild allegations, is cruelty ! Divorce even before 498a decreed !!

Husband files restitution case on wife requesting her to return to matrimony. Once the notice is served on wife, she unleashes a 498a, 406, CrPC 125 etc cocktail on husband (circa year 2002). She is unable to prove any of the allegations. The Hon Allahabad HC notices that “….Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband…” categorically states that such false allegations and criminal case tantamount to cruelty on the husband and grants divorce !!


HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 19

Case :- SECOND APPEAL No. – 844 of 2006

Appellant :- Narayan Prasad Saraswat

Respondent :- Smt. Shaifali @ Muniya

Counsel for Appellant :- M.K. Gupta, Pankaj Agarwal

Counsel for Respondent :- D.K. Dwivaedi

Hon’ble Pramod Kumar Srivastava, J.

  1. At the time of hearing only counsel for the appellant was present. None was present on behalf of respondent even in cause list was revised. This appeal had already been admitted, but at that time substantial question of law was not framed. Heard arguments of learned counsel for the appellant.
  2. Original suit Matrimonial Petition no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was initially filed for the relief of restitution of conjugal rights. After it some criminal case was instituted by opposite-party (wife Smt. Shaifali @ Muniya). Then plaint was amended for the relief of divorce on ground of desertion, adultery and cruelty.
  3. In written-statement filed in trial court, O.P.- Smt. Shaifali @ Muniya had admitted her marriage with petitioner and pleaded that petitioner and his family members had been treating her with physical and mental cruelty. She had not committed any cruelty. The petitioner had tortured her by beating her and by demanding dowry. So she is not ready to live with her husband-petitioner. The petitioner had evicted her from his house and had filed suit on incorrect facts; therefore petition is liable to be dismissed.
  4. After framing issues and accepting evidences of the parties, the Civil Judge, S.D. (/J.S.C.C.), Aligarh had dismissed the divorce petition. The trial court had given finding that although it is admitted that criminal case was initiated by O.P. against the petitioner and his family members, who had been released on bail, but said criminal cases did not amount to desertion or cruelty. Trial court had found that in written-statement the O.P. had pleaded that she is not willing to reside with husband-petitioner, and although several attempts of mediation and reconciliation between parties had failed, but learned Civil Judge has also given finding that petitioner had failed to prove the grounds of desertion, adultery or cruelty, therefore divorce petition is dismissed.
  5. Aggrieved by the judgment of trial court, Civil Appeal no. 41/2006 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was preferred which was heard and dismissed by the judgment dated 14.08.2006 of Additional District Judge, Court No.-2, Aligarh. Lower appellate court had held in this judgment that during evidence O.P.-wife had file affidavit to the effect that she is willing to continue her matrimonial relationship with her husband, and the petitioner-appellant had failed to prove that irretrievably broken. With these findings, first appellate court had confirmed the finding of trial court and dismissed the first appeal.
  6. Aggrieved by the judgment of trial court, as well as of the first appellate court, present second appeal has been preferred by petitioner of the original case.
  7. Present appeal has been admitted but at that time substantial question of law was not framed, which is framed as under: “Whether the marriage of the parties had irretrievably broken due to desertion, adultery and cruelty; and otherwise finding of the lower courts are erroneous and perverse ? If so its effect ?”
  8. Learned counsel for the petitioner-appellant contended that in her written-statement she is not ready to live with her husband-petitioner, and several proceedings of mediation and reconciliation between parties, and attempts of courts in this regard had failed. Respondent had committed cruelty by lodging several false criminal cases against the appellant and his family members and by leveling false allegations in her pleading, parties are living separately for last about 15 years and there is no chance of their compromise or living together; therefore appeal should be allowed for the decree of divorce.
  9. In present matter petitioner-appellant had filed suit for the relief of restitution of conjugal rights with O.P.-respondent on 01-05-2002, but when summons of this case was served then O.P.-wife had filed several criminal cases for cruelty due to dowry demand and manhandling for offences u/s 498-A, 323 IPC & section ¾ Dowry Prohibition Act, case of maintenance u/s 125 CrPC, criminal complaint case u/s 406, 109 IPC. The burden of proving the fact of expelling wife-O.P. by petitioner without any sufficient reason is on wife- O.P. (complainant) because negative facts cannot be proved. It is the respondent-wife who has been alleging such facts, therefore the burden of proving these facts were on her, and in absence of any such evidence, the plea of desertion and living separately by her without sufficient reasons should have been accepted by lower courts.
  10. The petition of divorce was filed on three grounds. The first was desertion and second was cruelty. So far as the first point of desertion is concerned, it is admitted fact that petitioner-appellant had filed original suit no. 397/2002 against his wife-respondent u/s 9 of the Hindu Marriages Act for restitution of conjugal rights. During pendency of said proceedings, he amended the original suit for divorce under Section 13 of the Hindu Marriage Act. There has been no finding of any of the lower court that during pendency of original suit, the parties were willing to live together together. On the contrary it was found that initially petitioner-appellant was willing to live with respondent-wife, but when she started filing several criminal cases then he amended the suit for the relief of divorce. It is pertinent to mention that in her written-statement O.P.-respondent had specifically declined to live with husband-appellant. The differences between the parties from the beginning and their living separately for more than 14 years is admitted fact, but there is no evidence that respondent was expelled from house of appellant or that she is residing separately for any sufficient reason. This proves the ground of desertion as required u/s 13 of Hindu Marriage Act.
  11. Apart from it, in matrimonial disputes propriety of the things should also be specially considered. In present matter, according to the petitioner the parties are living separately from 19-08-2001, and according to respondent-wife they are living separately since 2002. Thus, admittedly parties are living separately for many years. Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband, , and several mediation and reconciliation proceedings between parties has also failed. These facts make it explicitly clear that there appears no chance of reconciliation between the parties who have developed feelings of ill will, hatred, antagonism and animosity; and the respondent is prosecuting the criminal case for conviction and incarceration of appellant and his family members.
  12. So far as another plea of cruelty in present matter is concerned, it has been not proved till now that petitioner had treated the respondent-wife with cruelty or had committed unnatural sexual activities with her as pleaded in written-statement. The burden of proving such facts lies on the person who has asserted these facts, that is, respondent-wife, but these facts could not be proved till now. Leveling wild allegation and prosecuting proceedings for conviction of husband as well in-laws for sending them in jail amounts to cruelty.
  13. The word ”cruelty’ has not been defined anywhere in the Act. The word appears to have been used in the Section 13 of Hindu Marriage Act in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ‘‘cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of them have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively. The allegation of criminal mis-appropriation of stridhan, dowry demand and physical torture made by the respondent-wife against the appellant husband in her written statement, is nothing but mental cruelty of such a nature that appellant husband cannot be reasonably asked to live with the wife. The allegation of serious nature, and as stated above, constitutes grave assault on the character, honour and reputation of husband. Such allegations amount to cruelty entitling the petitioner to a decree of divorce. It cannot be doubted that the appellant-husband must have suffered traumatic experience because of the criminal proceedings against his father, mother and himself. The arrest and getting bailed out for criminal offences must have resulted in the loss of reputation and prestige of the husband and his family in the society. The mental agony of being arrested and detention in a criminal case resulting into loss of reputation and prestige in the society would also amount to cruelty.
  14. In V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 the Apex Court had held: “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.”
  15. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 the Apex Court had held as under:
    • “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. – – –
    • 8. The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife to live in matrimonial home any longer with the husband. – – – –
    • 11. That apart, in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. – – – – A conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the incidents enumerated in the case 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 husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement.”
  16. Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular stratum of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.
  17. In present matter living separately of the parties for long time, prosecution and incarceration in criminal case of appellant, the agony and humiliation suffered, charging him with serious allegations and others family members and still facing prosecution for conviction and apprehension of incarceration amounts to cruelty to appellant.
  18. The third ground for divorce taken by petitioner-appellant was that of adultery. Section 497 IPC reads- “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”. In this regard trial court had given finding that when Smt. Kamlesh saw her husband during physical relationship with respondent (Smt. Shaifali @ Muniya) then she (respondent) was not married. So at the relevant time respondent was un-married, therefore this allegation of involvement in adultery after marriage of respondent was rightly held not proved by lower courts.
  19. On the basis of above discussion and considering the facts and circumstances of this matter, it appears that relationship of parties had been deteriorated to the extent that there is no possibility of any reconciliation. Their relationship have reached to the point from where there appears no possibility of any harmonious conjugal relations or their being living together as husband and wife and discharging matrimonial duties.
  20. It would mean that apart from other problems that had come in their way, the main problem is the failure of matrimonial life. It would be seen that the appellant had not immediately rushed to sever his marital relations with the respondent. He had sufficiently waited for long time to see whether there would be any improvement in the relations with respondent and for the same reason he had filed petition u/s 9 of Hindu Marriage for restitution of conjugal rights. Having found no hope, he chose to file suit for divorce. In her pleading respondent refused to live with appellant. Even the mediation proceedings between the parties have failed. Therefore, it could safely be concluded that the appellant having tried all means to sustain the marital relations but having found that it was impossible for the respondent to gain such relationship, he had chosen to live apart from the respondent by moving petition for divorce. Therefore, there was sufficient ground for the husband-appellant to get relief of divorce.
  21. In addition to legal errors as discussed above, the two lower courts have not considered these important material points at the time of deciding the matrimonial disputes, which amounts to infirmity and perversity in their judgments. Considering past experiences I am convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. In light guidelines laid down by Apex court in Satish Sitole v. Ganga, (2008) 7 SCC 734 I am of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty. This contention of appellant’s side is not unacceptable that the appellant’s marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very harsh, insensitive and unjust. Therefore said impugned judgments being erroneous and perverse are liable to be set aside.
  22. Considering these facts, circumstances, the factum of living separately for many years and no possibility of any reconciliation, harmonious conjugal relations or future congenial matrimonial relations, it appears appropriate that when it is not possible for the parties to live together and to discharge their marital obligations towards each other, then there is no reason to continue their agony. Therefore on the basis of the forgoing discussion, the decree for dissolution of marriage should be granted on the ground of desertion and mental cruelty. The above substantial question of law is decided accordingly.
  23. Accordingly the appeal is allowed. The impugned judgments dated 24.04.2006 and 24.08.2006 of the lower courts are set aside and matrimonial original suit no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) for the divorce is decreed. The decree of divorce is granted, and it is directed that the marriage between the parties shall stand dissolved.

 

Order Date :- 18.04.2016 SR