Tag Archives: false 498a ground for divorce

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

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

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

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

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

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

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

F. A. No. 191 of 2005

Sri Debabrata Chakraborty
Versus
Smt. Rina Chakraborty

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

For the Wife-Respondent:                  Mr. Ajoy Debnath.

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

Bhaskar Bhattacharya, J.:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Bhaskar Bhattacharya, J.) I agree.

(Rudrendra Nath Banerjee, J.)

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

 

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS DOT NIC DOT IN SITE
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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

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

Filing false 498a, taking away children illegally, interfering with their education is ALL cruelty. EVEN if wife’s stmt not cross examined, it need NOT be accepted in total! Divorce granted 2 husband on grounds of cruelty

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, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband….”

The wife at one point tries to escape sayin “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
Bench: D K Seth, J Banerjee

JUDGMENT

1. The appellant has filed this application for review of the judgment and decree dated 25* of April, 2003 in FA No. 12 of 2001. Mr. Dasgupta in support of the review application had contended that the Court had overlooked the materials apparent on the face of the record to the extent that the wife had made false and wild disparaging allegations against the spouse, which amounts to cruelty. In support, he relied on Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, 2003(6) SCC 334. He then points out that the learned Court in the judgment had disbelieved the evidence of the appellant/ husband and believed that of the wife on the ground that there was no cross-examination on certain points. Mr. Dasgupta contended that absence of cross-examination does not mean that the evidence was unchallenged. To support this contention, he relied on the decisions in Juwarsingh s/o Bheraji and Ors. v. State of Madhya Pradesh, 1980 (Supp) SCC 417 and P. Ram Reddy and Ors. v. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Ors., . Thus the finding arrived at suffers from errors apparent on the face of the record. He next contended with regard to the question of cohabitation, particularly, at page 7 of the judgment under review and drew our attention that the evidence itself was unreliable and as such the absence of cross-examination would not matter. Inasmuch as Mr. Dasgupta pointed out that the wife admitted of not living in the same room and cohabitation was alleged four months after the filing of the suit. It is the probability of the evidence and the credibility of the witness, which are to be considered not the absence of cross-examination. Even in the absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. On the question of review, Mr. Dasgupta relied on the decisions in Green View Tea & Industries v. Collector, Golaghat, Assam and Anr., 2004(4) SCC 112 (para-14); Srinivasiah v. Balaji Krishna Hardware Stores, ; Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Ors., AIR 1954 SC 526 and Benoy Krishna Rohatgi and Ors. v. Surajbali Misra and Anr., , in order to support his contention that this is a case fit for review. Mr. Dasgupta drew our attention to the various materials on record to substantiate his contention. Virtually he had reargued the whole appeal.

2. Mr. Haradhan Banerjee, learned Counsel for the respondent/opposite party, on the other hand, took a preliminary objection that the review does not lie if the decision is erroneous. According to him, when two views are possible, acceptance of one view cannot be a ground for review. The judgment proceeds on the basis of the question of belief and disbelief, which can never form the subject-matter of review. On the question of cohabitation, he drew our attention to pages 8 to 10 of the judgment under review. Mr. Banerjee then contends that the filing of the case under Section 498A of the Indian Penal Code (IPC) would not amount to cruelty since the cruelty stands condoned unless the allegations are renewed or repeated. Mr. Banerjee, however, distinguishes the decision in Moran Mar Basselios Catholicos (supra) on the ground that in the said decision, the question was not attended; whereas in the present case the question was adverted to. He drew our attention to page 17 of the said judgment. He further points out that the cohabitation had revived the matrimonial relation and amounts to condonation. He relied on Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary, , to enunciate the ground when the matrimonial offence can be revived. Relying on this decision, he contended that in this case there was no material to show that the matrimonial offence was revived to attract the principles of cruelty on account of pendency or survival of the proceedings under Section 498A IPC. He also relied, for the same proposition, on the decision in Parison Devi and Ors. v. Sumitri Devi and Ors., . He then contended that there is nothing to indicate that what documentary evidence was not considered. On this ground Mr. Banerjee submits that the review application should be dismissed.

3. We have occasion to hear the matter for days together. Both the learned Counsel continued to elaborate their submissions from various angles. The matter was hotly contested. Both the learned Counsel had referred to the pleadings and the evidence as well as exhibits in relation to the merit of the case. In the process of the elaborate argument, both the learned Counsel had argued the whole appeal in order to substantiate the case for review. Both the learned Counsel suggested that they may be permitted to argue on both the counts and the Court may pass a composite order, namely an order disposing of the review application and in case the review is allowed to dispose of the appeal upon re-hearing in the same process. Accordingly, both the Counsel had addressed the Court. Having regard to the submissions made by the learned Counsel as above, we agreed to the suggestion and heard the application for review and the appeal simultaneously. In these circumstances, by consent of parties, we propose to dispose of the review application along with the appeal.

4. In Green View Tea & Industries (supra), the Apex Court had held that it is permissible to review a judgment if there are mistakes apparent on the face of the record, quoting from the decision in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, at page 630 (para-36) that “It is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were based on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. An act of Court should prejudice none. ‘Of all these things respecting which learned men dispute’, said Cicero, ‘there is none more important than clearly to understand that we are born for justice and that right is founded not in opinion but in nature’. This very idea was echoed by James Madison (The Federalist, No. 51. p. 352). He said : ‘Justice is the end of Government. It is the end of the civil society, It ever has been and ever will be pursued, until it be obtained or until liberty be lost in the pursuit.’ In Srinivasiah (supra), it was held that an assumption that appears to be incorrect on the basis of the materials would be a sufficient ground for entertaining review.

5. The principle of review is settled proposition of law. It does not require elicitation of any principle or decision. Now, therefore, we may examine the ground agitated by Mr. Dasgupta. On the face of the record, it appears that the wife had initiated a proceeding under Section 498A read with Section 342 of the Indian Penal Code (IPC) being Complaint Case No. 1628 C/1991 (Ext. 10 – II) before the learned Chief Judicial Magistrate, Howrah. The husband filed a criminal revision case being Criminal Revision Case No. 403 of 1992 before this High Court for quashing the said proceeding under Section 498A IPC. At the intervention of the lawyers of the parties, the wife was brought back on the assurance that she would withdraw the criminal case under Section 498A IPC. It is not in dispute that the said proceeding under Section 498A IPC has not been withdrawn by the wife and has since been kept pending, though, however, the wife did not take any further steps in the said proceedings. This fact admittedly is on record and was not considered by this Court in the judgment and order under review. This ground would be sufficient to review the order if it is held that the failure of withdrawal of this complaint under Section 498A IPC would amount to cruelty.

6. Since the wife did not take any further steps, it seems and may be presumed that the allegations made against her husband were false. The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate (supra). The allegation under Section 498A IPC against a spouse is disgusting accusation. In the said decision, it was held that subsequent deletion or amendment of the pleadings would not absolve from treating the wife by the husband with cruelty by making earlier injurious reproaches and statements. The impact whereof continued to remain on record, as in the present case where the allegations are still on record and have not been withdrawn, though not proceeded with. This making of false allegation in itself is a cruelty and then the cruelty is further fueled by reason of keeping the allegations under Section 498A IPC alive and surviving despite having agreed to withdraw the same, by reason of non-withdrawal thereof till date.

7. Admittedly, the judgment under review had proceeded to believe the evidence of the wife on account of absence of cross-examination on the question of cohabitation. Absence of cross-examination does not mean that the evidence is unchallenged. In Juwarsingh (supra), the Apex Court had held that the cross-examination is not the only method of discrediting a witness. If the oral testimony of certain witnesses is contrary to proved facts, their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable. Courts are not bound to accept the testimony merely because there was no cross-examination. Similar view was taken in P. Ram Reddy (supra) where it was held that the Court is not bound to accept the statement of a witness simply because there was no cross-examination of that witness. The truth of the evidence is to be tested on the basis of the probabilities and reliability. In the present case, there is evidence to show that the husband and wife were not residing in the same room since before institution of the suit. The allegation of cohabitation bears a date four months after the institution of the suit. This seems to be against all probabilities where the husband and wife are locked in the legal battle for the custody of the children and have been residing separately since before institution of the suit. This seems to be against all probabilities, which appears to have been overlooked. Our attention was drawn to the various contradictions and inconsistencies in the deposition of the wife affecting the credibility of the witness and reliability of the evidence given by her.

8. Even if we may not give credence to the question of cohabitation, but 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, containing various disgusting allegations against the husband generating a perception of being proceeded against him creating a disturbing effect in the mind of the husband. This is a ground sufficient to allow the review application.

9. It is true, as contended by Mr. Banerjee that an erroneous decision cannot be reviewed; when two views are possible, acceptance of one view cannot be revised; question of belief and disbelief cannot be intervened in a review. In this case the decision may be erroneous. But this erroneous decision was based on an error apparent on the face of the record in considering the existence of the question of cruelty on account of survival of the complaint under Section 498A IPC. The question of condonation of cruelty as contended by Mr. Banerjee does not find any support from the materials on record that the husband had ever condoned the cruelty. As soon the suit is filed on the ground of cruelty, there is no question of condonation of cruelty. The very pendency and survival of the complaint case under Section 498A IPC till the decision under review itself is a cruelty surviving which need no revival by fresh complaint or otherwise. Despite being agreed but the same having not been withdrawn, the wife’s failure to withdraw the same itself revives the cruelty continuous until withdrawn. It is admitted that this complaint has not been withdrawn till today. Therefore, the principle of condonation of cruelty as was sought to be urged by Mr. Banerjee does not find any support from the materials on record. Therefore, the decision laid down in Krishna Sarbadhikary (supra) cited by Mr. Banerjee has no manner of application in the present case.  http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

http://fromvinayak.blogspot.com

  1. Thus, we find that the omission to consider the impact of the survival of the proceedings under Section 498A IPC supporting the ground of cruelty had escaped our notice and that on the question of cohabitation, there were certain cross-examinations and that the evidence of the wife could not be sustained on its own strength and that the husband had repudiated in his evidence and the suggestions of the alleged cohabitation. These are definitely errors or mistakes apparent on the face of the record and are sufficient grounds to review the judgment.11. The facts apparent from record, viz. that the marriage has irretrievably broken and cannot be bridged between the parties and that the parties did not and cannot live together and that there is existence of cruelty on account of survival and/or pendency of the case under Section 498A IPC, having escaped our notice, are sufficient for allowing this application for review.

    Order:

    12. Accordingly, the application for review succeeds and is allowed, the judgment and decree passed by this Court, sought to be reviewed in this review application, is hereby set aside. The application for review is, thus, allowed. The appeal is restored to its original file and number and be re-heard.

    FA No. 12 of 2001

    13. By consent of parties, we have re-heard the appeal simultaneously with the hearing of the application of review of the judgment and decree. Both the learned Counsel argued the case elaborately and in detail and took us through the materials on record. After having re-heard the appeal by treating the same, by consent of parties as on the list for hearing of the appeal, now we propose to decide the appeal in the manner following.

    14. Exhibit 10 is the complaint lodged by the wife against the husband before the Court of the learned Chief Judicial Magistrate, Howrah being Complaint Case No. 1628 C/1991. In the said complaint, the wife as complainant alleged that the husband/accused:

    started to neglect your complainant and also started torturing both physically and mentally during her stay at the house of the accused.

    3. That the accused used to take wine regularly and almost everyday being intoxicated the accused tortured the complainant both physically and mentally and became a regular incident. The accused even has illegal relation with other ladies and used to meet other ladies frequently and without any hesitation.

    4. That the brothers of the accused person are also of the same nature of the accused and also torture your complainant both physically and mentally and with the connivance of the accused the brothers of the accused tried to outrage the modesty of the complainant by force and if your complainant told anything about such behaviour of the brothers of the accused the accused used to reply to bear the matter.

    5. That in spite of such torture both physical and mental your petitioner stayed with the accused and two children namely 1. Kumari Bidisha Chakrahorty, 2. Sri Humpi Chakraborty born out of (in) the said wedlock.

    6. That your complainant tried her level best to stay at the house of the accused but such tortyre became higher and higher and the accused and his brothers almost regularly tortured your complainant both physically and mentally.

    7. The accused also refused and neglected to give the daily means and clothing to your complainant intentionally and willfully and the two children also never receive any love and affection from the accused person on the other hand the accused used to behave very rough and even merciless to the said two children.

    8. That in spite of such behaviour and torture of the accused and his other brothers, your complainant accommodated at the said house but when the torture of the accused and his brothers became intolerable by human being and also for the fear of life of your complainant and also for the safety, security and also for future of her two children your petitioner was compelled to leave the house of the accused person along with her two children on 4.10.91 and since then your complainant is residing at the house of her sister.

    9. That from the date when your complainant left the house of the accused neither came to see your complainant and her two children nor took any information till date.

    10. That suddenly on 4.12.91 the accused along with some persons who identified themselves as police persons came to the house of your complainant and have taken away the said two children of your complainant in a very rough and inhuman manner and your complainant informed the matter before Bally P.S. vide G.D. Entry No. 3 70 dl. 4.12.91.

    11. That thus the accused has committed offence under Section 498A and under Section 342 IPC” [PB-II, pp. 14-16]

  2.  

     

     

15. This allegation was supported by the wife in her examination-in-chief (PB-I, p. 135) namely “It is correct to say that in December, 1991,1 filed a case against my husband under Section 498A of IPC as my husband used to assault me very often.” In her cross-examination (PB-I, p. 138), she said “I admit herein that all statements made in my application under Section 498A IPC and also in my application for recovery of my children in Criminal Courts are all correct and true.” She further said in her cross-examination (PB-I, p. 139) that “I filed a case under Section 498A IPC against my husband for which any husband submitted an application in the High Court for quashing the said proceeding under Section 498A of IPC and that proceeding is still pending in the Hon’ble High Court. It is correct to say that there is in fact no petition of compromise of 498A IPC in between myself and my husband.” At page 141 (PB-I) in her cross-examination she stated, “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.”

16. It appears that these disparaging and disgusting allegations were made and were supported even at the time of examination-in-chief and cross-examination of the wife. Whereas at page 136 (PB-I) in her examination-in-chief, she said, “After compromise in the Hon’ble Court I look no account of the case under Section 498A of IPC pending in the Magistrate’s Court at Howrah” This complaint was filed in 6th December, 1991 whereas the wife had lodged a diary on 4th of October, 1991 (Ext. 17, PB-11, p. 37), wherein she informed that she had no complaint against anybody and she would not start any case against anybody. In her written statement, she admitted that the proceeding under Section 498A IPC was still pending for disposal (PB-I, p. 53) and that the said proceeding was initiated when the acts of cruelty was perpetrated against her (PB-I, p. 55) and denied that the allegations made in the application under Section 498A were false and the case was filed falsely; but, however, she admitted that the matter was pending before the Court (PB-I, P. 59).

17. Making of false allegations are apparent on the face of the record that she wanted to say that the allegations made in the application were designed by her lawyer in one breath and then says that all the allegations made in the said application are true and correct; but these allegations are yet to be proved. No evidence has been led to prove any of these allegations by the wife.

18. Thus, it appears to be a false allegation in relation to the character of the husband imputing that the husband had been torturing the wife and that the husband used to have illicit connection with other women. These disgusting and disparaging allegations are sufficient to constitute cruelty when not proved and this cruelty was maintained even till the date when the wife had given her evidence in the proceedings. She kept the proceedings pending and stood by her submissions made therein. She had never resiled from the allegation made against the husband in Exhibit 10 filed on 16th December, 1991. Thus, the cruelty emanating from the materials, as discussed above, does exist and is apparent from the record itself, which we omitted to consider in the earlier judgment. Admittedly, the allegations made therein are false because of the reason that she had never attempted to prove the same apart from the fact that in the said application, she had alleged that this torture and the illicit relation was continuing for long namely immediately after her marriage, ie: on 17th of June, 1982 in which one daughter and one son were born on 24th of July, 1983 and 20th February, 1988 respectively. Whereas a few days before 16th December, 1991, the date when the application under Section 498A IPC was filed, the wife lodged a diary on 4th of October, 1991 being Ext. 17 (PB-II, p. 37) wherein she did not whisper anything about those allegations, on the other hand, she said she had no complaint against anybody and she would not start any case against anybody.

19. Keeping of an application under Section 498A IPC pending against a person is like a Democles’s sword. The person would remain in constant fear of its being fallen on his head any time. This itself is a cruelty continuous.

20. 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) on 3rd of December, 1991 being Ext. 13 (PB-II, p. 26) wherefrom it appears that the wife used to leave the matrimonial home taking away the children with her even at the cost of the studies of the children and the husband had to persuade her to bring the children back. However, the husband ultimately got the daughter admitted in Mousuri (PB-I, p. 107) so as to ensure her uninterrupted education and that the husband had to rescue the children so as to continue their studies through proceedings under Section 97 Cr. PC. The taking away of the children and interference with their studies, an agony for a father, desiring his children to be educated properly, would also amount to cruelty. At page 139 (PB-I) she stated, “It is a fact that after my marriage and upto this day my husband assault me but I cannot remember the number of times. I did not state to my lawyer prior to preparation of the written statement that my husband had assaulted me. I lodged no diary in P.S. about the assault. I lodged a diary in P.S. while I left my matrimonial house with my children. I made no allegation against my husband and the members of his family in the said diary.” The making of false allegation against the spouse amounts to cruelty as was held in Vijaykumar Ramchandra Bhate, 2003(6) SCC 334 (supra), and followed and elaborately discussed in Kakali Das v. Ashish Kumar Das, AIR 2004 Cal 176 : 2004 (3) CHN 516.

21. Even if it is assumed that the cruelty of the wife arising out of the initiation of the proceedings under Section 498A IPC and the allegation made therein was condoned by reason of the alleged cohabitation either before or after the institution of the suit, even then the failure to withdraw the proceedings despite agreed to by the wife, the survival of the proceedings, and her assertion in the written statement that the said proceeding is still pending disposal (PB-I, p.59), the assertion of the wife in her deposition in cross-examination that the said proceedings against the husband is now alive (PB-I, p. 141) and her deposition asserting that the statements made in the application under Section 498A IPC (Ext. 10) are all correct and true (PB-I. p. 138), has the effect of revival, continuance and survival of the cruelty.

22. It may be noted that even before this Court an application was made by the father for ensuring the studies of the son when the daughter had been adequately educated keeping her outside in Boarding School and the daughter lives with the father and that ultimately the wife was persuaded to allow the son to be admitted in a Boarding School outside the State of West Bengal. 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.

23. It is alleged that by reason of cohabitation the husband had condoned the act of cruelty on the part of the wife and all other grounds on which divorce was sought for. In our earlier judgment, we had held that in the absence of cross-examination on the question of cohabitation, the wife’s allegations were to be believed. But, now it is pointed out that in his deposition the husband had asserted (PB-I, p. 91) that he had no relationship with the wife since 1990 and that he used to live in a separate room. He reiterated that he lived in a separate room in his examination-in-chief (PB-I, p. 95) and that he did not maintain any relation with the wife since 1990 (PB-I, p. 96) and he did not condone the cruel behaviour of the wife (PB-I, p. 97). This he repeated at page 101 and maintained stood by in his cross-examination (PB-I, pp. 114, 118 & 121). On this question of cohabitation, the wife was cross-examined where she had stated (PB-I, p. 134) that ‘It is not a fact that I had no sexual relation with my husband since 1990.” She admitted that she left the matrimonial home on 4th of October, 1991 by saying (PB-I, p. 134) “It is correct to say that from 4.10.91,1 resided with my sister at Bally with my one son and one daughter.” and said that (PB-I, p. 136)” I have been living in my matrimonial house since 1.10.92″ She was also cross-examined on the question of co-habitation when she answered (PB-I, p. 137) that “It is a fact that my last cohabitation with husband was held on 1st week of January, 1995. At page 140 (PB-I), she stated in her cross-examination that “my husband does not reside in the house where I reside. Then says, I do not know as to where he resides. Not a fact that my husband did not live separately at any point of time in the premises where I reside in the same room.” From the evidence of the OPW-1, the wife, it appears that she blew hot and cold when she says in her cross-examination at page 142 (PB-I) that ‘Not a fact that I suspected and used to tell that he had illicit connection with another lady” and that her lawyer drafted the petition and designed the same according to his estimation under Section 498A (PB-I, p. 141) and that she had no allegation against her husband on 4th of October, 1991 recorded in the diary (PB-I, p. 139) while saying that the statements made in the application under Section 498A were all correct and true. She contradicts herself to loose the credibility of her evidence. The suit was filed on 29th of November, 1994, whereas the last cohabitation was alleged in January 1995, which is wholly improbable.

24. The 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. The credibility of the evidence does not depend on the absence of cross-examination, but on the credibility of the witness himself/ herself and the totality of the evidence on record. It was so held in the decisions in Juwarsingh, 1980 (Supp) SCC 417 (supra) and P. Ram Reddy, (supra). In the present case, however, there were some cross-examination and the wife admitted of not living in the same room and alleged cohabitation after fourth months of filing of the suit, it is the probability of the evidence, which has to be considered not the absence of cross-examination. Even absence of cross-examination, the evidence is to be weighed with its value without attaching much importance on the absence of cross-examination. The truth of the evidence is to be tested on the basis of the probabilities and reliability and the credence of the respective witnesses, particularly, when two versions have been brought on record by the husband and the wife (PW-1 and the OPW-1). In the present case, the evidence of the wife seems to be against all probabilities. http://evinayak.tumblr.com/ https://vinayak.wordpress.com/

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At the same time, we have found that the parties are not residing together and had been living apart and the husband had left the matrimonial home. Even in course of hearing of the review application, the Court had attempted to resolve the dispute and requested the learned Counsel to bring about a settlement and ultimately to present the respective parties before the Court. The Court had attempted to settle the matter but the wife did not agree to reconcile though the husband expressed his willingness. The Court, found that the parties are living separately and are unable to resolve their dispute and that the marriage has broken down irretrievably and ultimately a settlement only with regard to education of the son and the maintenance and residence of the wife was arrived at by consent of the parties without any success in bridging the relation between them.

26. Thus, it appears that the ground of cruelty exists and the marriage between the parties has irretrievably broken and all our attempts to restore the same had failed. As such it is a case fit for passing a decree of divorce even on the ground of irretrievably breaking down the matrimony on the principle we had enunciated in the decision in Nityananda Karmi v. Kum Kum Karmi, 2003 (1) ICC 249 : 2003(1) WBLR (Cal) 348 : 2003(4) ILD 73 (Cal.): 2003 (2) CHN 121 (DB).

27. Since by consent of parties the main appeal of which the review is allowed was argued at length between the parties and have since re-heard, in view of the fact that the ground of cruelty having been proved as discussed above and the marriage has irretrievably been broken and all our attempts to bridge the relation having failed by reason of the disagreement between the parties, we hereby allow the appeal in FA No. 12 of 2001 and grant a decree of divorce on the ground of cruelty and the Matrimonial Suit No. 318 of 1994 of the Court of the learned Additional District Judge, 4th Court, Howrah stands decreed. The marriage between the parties be annulled. Let a decree of divorce be granted accordingly.

CAN 1120 of 2005. CAN 3079 of 2005.

28. The question of permanent alimony is hereby settled in terms of our order dated 3rd March, 2005 only with the modification that the husband shall arrange a proper flat in the locality of the matrimonial home sufficient for the residence of the wife since the husband submits that he does not have any share in the ancestral house. In addition to the maintenance, husband shall purchase a self-contained flat (at least with one bedroom with attached bath, one guestroom, drawing, dinning, kitchen, and common bath) in the locality sufficient to the requirement and status of the wife as close as possible to the ancestral home and shall fully furnish and make over the same to the wife within 6 (six) months from date and the wife shall be entitled to continue to reside in that flat till her life without any interruption from her husband or anyone else and she would continue to receive the permanent alimony in terms of the order dated 3rd of March, 2005 so long she survives in the same manner as provided therein.

Order:

29. In the result, the appeal stands allowed in terms of above. CAN 1120 of 2005 and CAN 3079 of 2005 are also disposed of accordingly. The judgment and decree appealed against is hereby set aside. The marriage between the parties stands annulled by a decree of divorce. Let there be a decree of divorce accordingly. The wife shall be entitled to residence and maintenance in terms of order dated 3rd March, 2005 subject to the modification as indicated in paragraph 28 above. The education of the son be governed in terms of the order dated 3rd March, 2005. The Matrimonial Suit No. 318 of 1994 of the 4th Court of Additional District Judge, Howrah is thus decreed.

30. There will, however, be no order as to costs.

31. Liberty to mention.

32. Urgent xerox certified copy of this judgment, if applied for, the same be supplied within seven days on usual terms.

 

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

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

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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 !!

 A wife files a false 498A cocktail on her husband. Husband and other accused are made to run to the trial court more than 50 times. Elders at home with various ailments and his unmarried sister are charged. The complainant / wife fails to appear many times at the Criminal court, thereby lengthening the trial. Trial court finally decrees that the accusations in the 498a case as NOT proven by the prosecution and so the husband and co are acquitted. 

Following this acquittal the husband applies for divorce on grounds of cruelty. The Family court refuses to grant divorce. Matter goes up to HC where HC appreciates the facts and grants divorce

Key excerpts

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The Husband submits and 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.

Further, I was helpless as my family members also suffered because of this false case. For no fault of my family members, and me had to undergo the immense stress of fighting out a Court case….”

The Hon court also notices that wife’s other allegations are either bald or left un substantiated “Except for the bald statement that from 28 th June 2000 to 8th January 2001, the Appellant and his family members ill-treated her, no particulars of alleged ill treatment have been set out except for stating that, on 7th January 2001, the Appellant picked up quarrel with on flimsy ground. It is alleged that the Appellant demanded money from the Respondent’s father for acquiring a flat. There are two allegations of serious nature which are made in the written statement. The first is that due to mental and physical ill-treatment given by the Appellant to the Respondent and her relatives, the Respondent started suffering from arthritis since May 1999. The second allegation is that the Appellant and his family members treated the Respondent with cruelty and that due to shock, her father expired on 22nd March 2003…..”

The Hon court concludes that “..The Respondent’s father died on 22 nd March 2003. Even a casual connection between the alleged acts of cruelty and the death of the father has not been established. We have no hesitation in holding that the both the defamatory allegations are of very serious nature. The allegations could not be substantiated. The said allegations are reckless allegations made by the Respondent wife….”

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 !!

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.71 OF 2006

 

Mr. M   .. Appellant

Vs

Mrs. M  .. Respondent
Shri Abhijit Sarwate along with ms. Kokila Kalra for the Appellant.

Shri M.A. Utagikar for the Respondent.
CORAM : A.S. OKA & S.C. GUPTE, JJ

DATE ON WHICH SUBMISSIONS WERE HEARD :  27TH NOVEMBER 2013

DATE ON WHICH JUDGMENT IS PRONOUNCED:  7TH FEBRUARY 2014

JUDGMENT ( PER A.S. OKA, J )

  1. By this Family Court Appeal, the Appellant husband has taken an exception to the judgment and decree dated 5 th April 2006 passed by the learned Judge of the Family Court, Pune. We have blocked the names of the parties for the benefit of the parties considering the rival allegations.
  1. The Appellant husband filed a Petition for seeking a decree of divorce under Clause (ia) of Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955. The marriage was solemnized on 3rd July 1998. The divorce was sought on the ground of cruelty. The ground of cruelty is based on the allegation that a false prosecution was initiated at the instance of the Respondent against the Appellant and his family members for the offence punishable under Section 498-A of the Indian Penal Code. In the Petition for divorce, the Appellant has set out various details and has alleged that the manner in which the prosecution was conducted caused enormous mental cruelty to him and to his family members. It is pointed out that the prosecution resulted into the acquittal. The Respondent wife denied the allegations by filing a written statement. The Appellant examined himself. The Respondent examined herself. The Appellant examined two other witnesses. The Respondent also examined one witness. The learned Judge of the Family Court held that the Appellant failed to substantiate the allegations of cruelty.
  1. The learned counsel appearing for the Appellant has taken us through the pleadings and the notes of evidence. He pointed out the consistent conduct of the Respondent as reflected from the evidence on record. He also invited our attention to the judgment and order of the Criminal Court by which the Appellant and his family members were acquitted in a case where allegations against the Appellant and his family members were of the commission of the offence punishable under Section 498-A of the Indian Penal Code ( for short “IPC”). He submitted that filing of such a false case against the Appellant and his family members and the manner in which the case was conducted caused mental cruelty to the husband. He relied upon a decision of the Division Bench of this Court in the case of Nitin Ramesh Dhiwar v. Sou. Roopali Nitin Dhiwar1. He also relied upon an unreported decision of this Court in the case of Nagesh Dhanapp Chikanti v. Sau.Manisha Nagesh Chilkanti2. He relied upon a decision of the Apex Court in the case of V. Bhagat Vs. Mrs. D. Bhagat3. He pointed out that in the written statement, the wife has alleged that due to the mental and physical ill-treatment of the Appellant, she suffered from arthritis. He also pointed out that in the written statement, the wife has alleged that due to the ill treatment given to her by the Appellant and his family members, her father suffered a shock and due to shock, he expired on 22nd March 2003. The learned counsel urged that these unsubstantiated allegations of serious nature caused mental cruelty to the Appellant-husband.
  1. The learned counsel appearing for the Respondent submitted that mere acquittal in the prosecution under Section 498-A of the IPC by itself will not amount to cruelty. Inviting our attention to the judgment of the Criminal Court, he urged that there is no finding recorded by the Criminal Court that the allegations made by the Respondent wife were false. He submitted that the only finding recorded by the learned Magistrate is that the prosecution could not establish the ingredients of the offence on the basis of evidence on record. He submitted that no other allegation of cruelty has been substantiated. The learned counsel appearing for the Respondent wife submitted that even if this Court is inclined to take a view that the allegations of cruelty are proved, this is a fit case to grant permanent alimony under Section 25 of the Hindu Marriage Act, 1955 ( for short “the said Act”).

 

  1. As far as the plea of the Respondent for grant of permanent alimony under Section 25 of the said Act is concerned, the learned counsel for the Appellant relied upon a decision of the Division Bench of this Court in the case of Smt. Sudha Suhas Nandanvankar v. Suhas Ramrao Nandanvankar4. He urged that when it is established that the wife has harassed the husband, the Court must decline to grant permanent alimony under Section 25 of the said Act. He also relied upon a decision of the Apex Court on this aspect in the case of Deb Narayan Halder v. Smt. Anushree Halder5. In the said decision, the Apex Court held that a wife who leaves matrimonial home without any justification is not entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973.

 

1 2012(7) ALL MR 315

3 AIR 1994 SC 710(1)

4 AIR 2005 Bombay 62

5 AIR 2003 SC 3174

 

  1. We have given careful consideration to the submissions. We have perused the pleadings, notes of evidence as well as the record of the case. It will be necessary to make a reference to the averments made in the Petition for divorce filed by the Appellant. The affidavit in-lieu of examination-in-chief of the Appellant is virtually a replica of the Petition. The marriage between the parties was solemnized on 3 rd July 1998. It appears from his pleadings and evidence that the first dispute between the parties was during the Diwali of 1998. It is alleged that contrary to the wishes of the Appellant, the Respondent proceeded along with her brother to her parents’ house at Solapur. A reference is made to certain petty quarrels between the Appellant and the Respondent.

 

  1. It is alleged that in October 1998, the Respondent’s father called up the Appellant in his office and abused him by making allegation against him that he is not properly looking after the Respondent. It is alleged that in September/October 1998, the Respondent accompanied by her father and his cousins Sudhir and Pradeep visited the Appellant’s office and fought with him. It is alleged that for a period of one year, the Respondent was away from her matrimonial home and she returned to the matrimonial home in the second week of June 2000. After she returned, there was a quarrel between the parents of the Appellant on one hand and the Respondent and her mother on the other hand. On 22 nd June 2000, the Respondent and her family members lodged a complaint with the Women’s Cell, Commissioner Office at Pune. It is stated that the Respondent was suffering from arthritis and therefore, the Appellant had taken the Respondent to their family doctor. Thereafter, the Appellant took her to a specialist. It is alleged that it is during this period, a complaint was lodged by the Respondent and her family members by approaching women’s cell.

 

  1. The next important incident alleged in the Petition for divorce is of 8th January 2001. It is alleged that on that day, the Respondent’s father, her cousins Satish, Sudhir and Dilip visited the appellant’s house in the afternoon. At that time, the Respondent was sleeping. Satish went in the room where she was sleeping and woke up the Respondent. It is alleged that the Respondent packed the ornaments and other articles given to her in a suitcase and she handed over the said suitcase to Satish who kept the same in his vehicle which was parked outside the house. It is alleged that Dilip uttered derogatory words to the Appellant’s father describing him as a “beggar”. It is stated that the Respondent on that day left the matrimonial home with the bag and baggage and on the very day, she lodged a complaint at Samarth Police Station alleging offence punishable under Section 498-A of the IPC against the Appellant, his parents, his brothers and his sister. An order of acquittal was passed by the learned Magistrate on 16th September 2004. Material allegations based on the said prosecution are in Paragraphs 17, 18 and 22 of the affidavit in lieu of examination-in-chief, which read thus:

 

“17. All the accused ( I and my entire family ) had appeared before the Ld. Judge and were granted bail on 29/3/2001. Since then I and my family members appeared before the Ld. Judge on 21/4, 25/5, 17/5, 13/6, 20/7, 10/8, 12/9, 25/10, 20/12 in the year 2001. Similarly I and my family members appeared before the Court, on 26/2, 30/3, 12/6, 2/7, 23/7, 16/8, 12/9, 4/1C, 23/10, 21/11, 4/12 in the year 2002. Similarly I and my family members appeared before the Court, on 3/1, 17/1, 11/2, 20/2, 11/3, 21/3, 9/4, 24/4, 6/5, 19/5, 18/6, 3/7, 16/7, 8/8/ 4/9, 25/9/ 17/10, 7/11, 21/11, 1/12, 19/12 in the year 2002. Similarly I and my family members appeared before the Court, on 8/1, 23/1, 11/2, 23/2, 11/3, 12/4, 27/4, 25/5, 3/6, 10/6, 21/6, 28/6, 2/7, 3/7, 9/7, 16/7, in the year 2004.

  1. The Respondent, who was the complainant in the case, remained absent on numerous occasions and the matter was prolonged hence.

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.

Further, I was helpless as my family members also suffered because of this false case. For no fault of my family members, and me had to undergo the immense stress of fighting out a Court case. 

In such circumstances, filling of a false complaint, the trauma of facing th trial and victory of right over wrong, all amount to cruelty. By acquittal of all the accused i.e. my family, and I state that I have suffered irretrievable loss and irreparable damage and have cruelty of the highest nature.”

  1. As stated earlier, the affidavit in-lieu of examination-in-chief is a replica of a Petition for divorce. The allegation is that filing of a false complaint and the trauma of facing the trial amounted to cruelty. It is alleged that the Appellant took good care of the Respondent but the Respondent inflicted cruelty upon the Appellant.
  1. In her written statement, the Respondent contended that she became aware of the order of acquittal passed on 16 th September 2004 from the averments in the Petition for divorce. With reference to the allegation that the Respondent left the matrimonial home on 8 th January 2001, the contention raised in the written statement is that in fact the Respondent was badly treated by the Appellant and his family members and that she was driven out from her matrimonial home. In Paragraph 17 of the written statement, various instances of ill-treatment given to the Respondent have been set out. It is stated that due to mental and physical ill-treatment by the Appellant and his relatives, the Respondent suffered from arthritis. It is contended by the Respondent that the Appellant deserted the Respondent from 4 th June 1999 to 28th June 2000. She stated that on 5 th November 1999, her father filed a Petition before the President of their Community. The Panchas of the Community had called upon the Appellant to attend meetings but he had refused to attend. It is alleged that the Appellant and his family members treated her with cruelty. Due to the shock, Respondent’s father died on 22nd March 2003. https://twitter.com/atmwithdick http://evinayak.tumblr.com/ https://vinayak.wordpress.com/
  1. As regards what transpired from 22 nd June 2000, in clauses (f) and (g) of Paragraph 17 of the written statement, the Respondent has stated thus:-

“(f) On 22.6.2000 on the occasion of birthday of petition the respondent tried to contact him on phone but petitioner did not respond. So on 24.6.2000 the father of respondent was compelled to give complaint applicant to Mahila Police, Pune. During enquiry of this complaint application the petitioner was called for at that time to avoid the police case the petitioner showed his willingness and gave a guarantee of his good behavior with respondent and as such he took the respondent for cohabitation to his house on 28.6.2000. The respondent was residing there till 8th Jan. 2001. During this period also the behavior of the petitioner and his family members was not changed. On the contrary there was grudged in the mind of the petitioner and his family members that the respondent approached the police and so all of them were ill-treating her. That the Petitioner was not allowing the matrimonial relations as husband and wife with the respondent without any reason. As such the cruel behavior of the petitioner and his family members were continued. 

(g) On 7.1.2001 petitioner picked quarrel on flimsy ground with respondent and he insisted the respondent to go out of house. And in that quarrel he expressed that she should bring money from her father for Flat otherwise she is of no use. At that time brother of petitioner Vijay rushed towards the respondent for assaulting her. That due to this incident the respondent called her father on phone. When the father and brother of respondent came to the house of petitioner at that time the petitioner and his family members insulted them and abused them and as such she was driven away from his house without any reason. As such the petitioner has deserted her since Jan 2001, That the petitioner and his family members treated her with cruelty. Dur to this shock the father of respondent expired on 22.3.2003. The facts contrary to this real position, mentioned in petition of the petitioner are absolutely false and are denied by the respondent.”

  1. From the pleadings, it appears that there are allegations and counter-allegations. The stand of the Respondent is that from 4 th June 1999 till 28th June 2000, the Appellant deserted her. It is stated that the Respondent returned to her parent’s home on 4 th June 1999 for the purposes of attending the marriage of her brother which was to be solemnized on 29th June 1999. Thereafter, the Appellant deserted her till 28th June 2000. The Respondent claims that on 24 th June 2000, her father was compelled to file a complaint to Mahila Police Station, Pune, where the Appellant was called who showed willingness to co-habit with the Respondent and accordingly on 28 th June 2000, he resumed cohabitation with the Respondent which continued till 8 th January 2001. Except for the bald statement that from 28 th June 2000 to 8th January 2001, the Appellant and his family members ill-treated her, no particulars of alleged ill treatment have been set out except for stating that, on 7th January 2001, the Appellant picked up quarrel with on flimsy ground. It is alleged that the Appellant demanded money from the Respondent’s father for acquiring a flat.

There are two allegations of serious nature which are made in the written statement.

The first is that due to mental and physical ill-treatment given by the Appellant to the Respondent and her relatives, the Respondent started suffering from arthritis since May 1999. The second allegation is that the Appellant and his family members treated the Respondent with cruelty and that due to shock, her father expired on 22nd March 2003.
The learned counsel appearing for the Appellant submitted that such allegations of serious nature have remained unsubstantiated, which amount to causing mental cruelty to the Appellant.

  1. Therefore, it will be necessary to make a reference to the deposition of the Respondent which is in the form of affidavit in lieu of examination-in-chief. The allegation regarding the Respondent suffering from arthritis finds place in Paragraph 8 of the affidavit in lieu of examination-in-chief. In Paragraph 10, it is alleged that her father died due to shock. In Paragraph 17, the Respondent has stated that she was ready and willing to cohabit with the Appellant even on the date of filing of the affidavit in lieu of the examination-in-chief.
  1. It will be necessary to peruse the cross-examination of the Respondent. In Paragraph 15, she has stated that she has not produced any document to show that because of the harassment by the Appellant, she suffered from arthritis. She admitted that she had taken treatment from Dr. Bhagali, Dr. Salunke, Dr. Chopra, Dr. Jeurkar and Dr. Pai for arthritis. In Paragraphs 17 and 18, the Respondent was cross-examined on the incident of 8 th January 2001. Paragraphs 17 and 18 of the deposition read thus:-

“17. It is not correct to say that on 8/1/2001 after our lunch my parents came to the house of petitioner. It is not correct to say that at that time I served them with tea. I do not remember at the time when they came to the house of petitioner. But they might have come at 12.30 pm. In the evening of 7.1.2001 I gave phone call to my parents, ash 13 fca-71.06 from outside. My one relation Baddies staying at Karvenagar, Pune. It is true that sister of wife of my brother is also staying at Pune. My maternal uncle Katawe is staying is Gurwar Peth of Pune. When I gave phone call to my father on 7/1/2001 I was neither happy nor weeping. I did not tell my father on phone to start immediately.

  1. It is true that whenever my parents requested the petitioner for visit to their house at Solapur, he told them that he could not as he had work in the office. I cannot tell whether petitioner is hard worker. It is true that sometime he worked full week of 7 days in the office and sometimes duty on out station.

It is true that his brother Vijay and Devendra and his sister Rajashree were also employed. It is not correct to say that on 8/1/2001 except the parents of the petitioner nobody from his family was present in the house. It is true that on that day the petitioner and his sister Rajashree were not present in the house.”

  1. In the cross-examination, she admitted that her father had made an application to the President of her Community for requesting them to persuade the Appellant to resume cohabitation. In Paragraph 25 of her cross-examination, she stated that even in the criminal case, she expressed a desire for cohabitation. She further stated that in the criminal case, the evidence of her father, uncle, cousins and two other witnesses was recorded. She admitted that she deposed in the criminal case and the Court did not prevent her from adducing oral and documentary evidence. She stated that the Public Prosecutor did not prevent her from adducing the evidence. Though she stated that an ash 14 fca-71.06 Appeal against acquittal was filed, she was not possessing the papers of that Appeal. In Paragraph 30 of the cross-examination, she admitted that she never thought of filing a complaint against the Appellant till her father gave a complaint to Woman’s Cell. She stated that she had come with contact of P.I. Savita Turekar. She stated that she complained to the said PI that the Appellant was not keeping sexual relationship with her. She admitted that when she filed a complaint with the Police Station, her father and brother Satish were with her. She stated that she directly went to the Police Station from the house of the Appellant on 8th January 2001.
  1. At this stage, it will be necessary to make a reference to the complaint filed by the Respondent’s father with the Community. The said complaint is at Exhibit-74. In the said complaint, there is no allegation of cruelty made against the Appellant. It is alleged that the Appellant’s mother and sisters have misguided the Appellant and have tried to instigate him to fight with the Respondent. In fact, the allegation made in the said letter is that no efforts were made by the Appellant and his relatives to ensure that the cohabitation is resumed. Therefore, a request was made by him to the President of the Community to make efforts for reconciliation. The date of the complaint is 5th November 1999. From various documents on record which include the minutes of the meeting of Panchas of the Community ash 15 fca-71.06 it appears that that till 30th January 2000, the Respondent and her father were attending the meetings of the Committee. Minutes of the meeting held on 30th January 2000 are at Exhibit-86. Even according to the case of the Respondent, on 28th June 2000, the parties resumed cohabitation.
  1. The certified copy of the deposition of the Respondent in the criminal case is on record. The attention of the Respondent was invited to the said deposition in her cross-examination before the Family Court. In the cross-examination, she admitted that the Appellant used to accompany her when she was taking treatment from Dr. Chopra for arthritis.
  1. Perusal of the judgment of the learned Magistrate which is at Exhibit-41 shows that the learned Magistrate has taken into consideration the evidence of the prosecution witnesses. The learned Magistrate has recorded a finding that the ingredients of the offence have not been established.
  1. Careful perusal of the evidence of the Respondent in the criminal case shows that no allegation of any acts of cruelty on the part of the Appellant’s parents, his brother and sisters have been alleged for the period subsequent to 28th June 2000 when the parties resumed to cohabitation. An allegation is made that the Appellant demanded that ash 16 fca-71.06 the Respondent’s father should give him a flat worth Rs.3,00,000/- to Rs.4,00,000/- or at least give him the said amount. In her cross-examination before the learned Magistrate, she admitted that she never made any complaint about the demand of flat or money by the Appellant till December 2000. In the written statement before the Family Court, the Respondent has not stated that the Appellant demanded a flat worth Rs.3,00,000/- to Rs.4,00,000/-. It is alleged that he demanded money from her father for acquiring a flat. Hence, this allegation regarding the demand of money for a flat is not substantiated by the Respondent.
  1. We have already adverted to the statements made in Paragraph 17 of the deposition of the Appellant as to how the criminal case proceeded. He has stated that he along with his family members appeared before the learned Magistrate on 9 dates in the year 2001, on 10 dates in the year 2002, on 21 dates in the year 2003 and on 16 dates in the year 2004. The trauma undergone by the Appellant and his family members have been set out in Paragraphs 17 and 18. On both the paragraphs, there is hardly any cross-examination. Though the Respondent came out with a case that she has preferred an appeal against the acquittal, she could not give any particulars and even could not produce a copy of the appeal preferred either by her or by the State Government.
  1. Thus, what can be concluded is that the Appellant could not substantiate her allegation of cruelty against the Appellant and his family members in the criminal prosecution. The case made out before the Family Court by the Respondent was that she was always interested in resuming cohabitation and she was willing to do so even when the cross-examination was being recorded in the criminal case.  As stated earlier, in the criminal case, the Respondent did not make any specific allegation against the accused persons except the Appellant. The allegation against the Appellant regarding the demand of flat and money appears to be an afterthought. Till 30 th January 2000, the Respondent and her father were attending meetings convened by the Community for the purposes of reconciliation. Thereafter, parties stayed together only from 28th June 2000 to 8th January 2001. Even before Family Court, the Respondent has not not substantiated her case as regards ill treatment by the Appellant during this brief period of about six months. We have already stated that for a period of four years the Appellant and his family members were forced to attend the Court of the learned Magistrate. The agony, trauma and humiliation undergone by the Appellant and his family members due to the criminal prosecution has been narrated by the Appellant. The version of the Appellant on this aspect will have to be accepted.
  1. The specific allegation made in the written statement that the Respondent started suffering from arthritis due to ill-treatment given to her by the Appellant is not at all established. The Respondent has admitted that for taking treatment for arthritis, she consulted several doctors. She did not examine any doctor to substantiate the said allegation regarding the cause of arthritis. Even the other allegation in the written statement that her father died due to shock on account of ill-treatment given to the Respondent has remained unsubstantiated. These are very serious allegations made in the written statement. From 8th January 2001 , the parties admittedly resided separately. It not even an allegation made by the Respondent that after 8th January 2001, there was any harassment by the Appellant. The Respondent’s father died on 22 nd March 2003. Even a casual connection between the alleged acts of cruelty and the death of the father has not been established. We have no hesitation in holding that the both the defamatory allegations are of very serious nature. The allegations could not be substantiated. The said allegations are reckless allegations made by the Respondent wife. https://twitter.com/atmwithdick http://evinayak.tumblr.com/ https://vinayak.wordpress.com/
  1. In the case of Samar Ghosh v. Jaya Ghosh6, illustrations of mental cruelty have been set out in Paragraph 101, which reads thus:

“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human 6 (2007)4 SCC 511 ash 19 fca-71.06 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:
(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 sterilisation 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.”

  1. In the case of K. Srinivas Rao v. D.A. Deepa7 (2013)5 SCC 226, in Paragraph 16, the Apex Court held thus:

“Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.” (emphasis added)

7 (2013)5 SCC 226

8 (2010)4 SCC 476

  1. In the case of Ravi Kumar v. Julmi Devi8, in Paragraphs 19 and 20, the Apex Court held thus:

“19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, some time it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

  1. Therefore, cruelty in matrimonial, behaviour ig defies any definition and its category can never be closed. Whether husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any pre-determined rigid formula. Cruelty in matrimonial cases can be of infinite variety – it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial cases are never closed.” (emphasis added) 

The learned counsel appearing for the Appellant relied upon an unreported decision of this Court in the case of Nagesh Dhanapp Chilkanti (supra). In Paragraph 9, the Division Bench held thus:

“9. The appellant has categorically deposed in examination in chief before the Family Court that by filing of false complaint for alleged commission of offence under Sec. 498-A of IPC the respondent has falsely prosecuted the appellant and his family members. The cross examination of the appellant indicate that the fact of acquittal of the appellant and his family members was never disputed and as such the Family Court ought to have proceeded to ash 23 fca-71.06 accept the contention of the appellant that false criminal cases were filed against the appellant and his family members with a view to cause utmost embarrassment, humiliation and sufferings. Filing of false criminal cases against the appellant and his family members would very much constitute mental cruelty.”

  1. Now coming back to the case in hand, the Respondent has not substantiated allegations of cruelty in her evidence. She could not substantiate the allegations even in the criminal Court. Only witness examined by her is Mr.V who was a member of Nyaya Nivada Samiti of Shri Som Wanshiya Sahastrajur Kashatriya Samaj Seva Mandal in the year 1999. He deposed regarding the application made by the Respondent’s father to his Community which is at Exhibit-74. He deposed regarding the proceedings before the Nyaya Nivada Samiti. He has stated that though various notices were sent by the Committee, there was no response from the Appellant. Even taking the said evidence as correct, the same does not help the Respondent to establish allegations of cruelty made by her. We have already noted earlier that in the application at Exhibit 74, there was no allegation against the Appellant of cruelty and in fact, the request of the father was to make an effort to resume cohabitation.
  1. As held by the Apex Court, whether a particular act will constitute cruelty or not will depend upon the facts and circumstances of each case. Whether an order of acquittal in criminal prosecution lodged at the instance of the spouse amounts to cruelty will depend upon the facts and circumstances of each case. Whether the criminal Court has recorded a finding that the prosecution case was false is again not a clinching factor. Considering the evidence on record, the Matrimonial Court will have to decide whether the prosecution which resulted into acquittal will amount to an act of cruelty. In a given case, depending upon the evidence on record, even if the acquittal is on the ground that the charge could not be substantiated and even if there is no finding recorded by the Criminal Court that the prosecution case was false, there can be a case of cruelty. It depends on the manner in which the complaint is filed and prosecuted.
  1. Therefore, the scenario which emerges can be summarized thus:

(a) the Appellant established that the Respondent could not substantiate the allegations of cruelty in the criminal case. Even the allegations of cruelty made by the Respondent in the written statement in the present case could not be established by her;

(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;

  1. 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.
  1. Now turning to the impugned judgment, we find from Paragraph 16 thereof, the learned Judge seems to have proceeded on the footing that merely because there was an order of acquittal, it was not sufficient to draw an inference that the case is false.
  1. The learned Judge of the Family Court has not at all appreciated the case in the right prospective and he seems to have over simplified the matter.
  1. As the Respondent has failed to prove the allegations of cruelty against the Appellant and she has failed to prove that it was the Appellant who had deserted the Respondent, the bar under Section 23(1) of the said Act will not apply in the present case.
  1. Learned counsel appearing for the Appellant has made submissions on the issue of grant of permanent alimony under Section 25 of the said Act. The learned Judge of the Family Court decided the ash 27 fca-71.06 case in the year 2006. There is no evidence on record as regards the present income of the Appellant. Under Section 25 of the said Act, the wife can seek permanent alimony even after passing of a decree of divorce. In this Appeal, it will be unjust to record a finding regarding entitlement of the Respondent to receive permanent alimony. We, therefore, propose to grant liberty to the Respondent to file a separate application under Section 25 of the said Act by keeping all the contentions of the parties open. It is obvious that the concerned Court will have to take into consideration the findings recorded in this judgment while deciding the application made by the Respondent. https://twitter.com/atmwithdick http://evinayak.tumblr.com/ https://vinayak.wordpress.com/
  1. Accordingly, the Appeal must succeed and we pass the following order:

ORDER :

(a) The impugned judgment and decree dated 5th April 2006 is quashed and set aside;

(b) The marriage solemnized between the Appellant and the Respondent on 3rd July 1998 stands dissolved by a decree of divorce under Clause (ia) of Sub-section (1) of Section 13 of the Hindu Marriage Act, 1955;

(c) To that extent, the Petition No.A-100 of 2005 stands allowed;

(d) It will be open for the Respondent to make an application to the appropriate Trial Court for grant of permanent alimony under Section 25 of the Hindu Marriage Act, 1955; If such application is made, the same will be decided on its own merits in the light of igthe observations made in this judgment ;

(e) The Appeal is allowed on above terms;

(f) There will be no order as to costs.

 ( S.C. GUPTE, J )   

 ( A.S. OKA, J ) 

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Hsbnd wins dvrc as wife regulrly leaves hubby & files false 498a 406. wife also looses appeal @ Cal. HC !!

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

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

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

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Calcutta High Court

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

Equivalent citations: (2005) 2 CALLT 567 HC

Author: J Banerjee

Bench: M H Ansari, J Banerjee

JUDGMENT Mahammad Habeeb Shams Ansari, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accordingly Appeal is dismissed.

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

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

Let the Lower Court Records be send down forthwith.

J. Banerjee, J.

I agree.

 

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