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In the previous edition, we have discussed about Adultery In this edition let us know about cruelty.
Under clause (ia) of sub-section (1) of section 13 and under sub-section (1) of section 10 of the Hindu Marriage Act, 1955 cruelty is a ground of divorce as well as judicial separation respectively. Whether a particular act or conduct complained of is covered under the ground of cruelty or not, will always be decided on facts and circumstances in each case.

 

What is Cruelty?
Under the English Law, legal concept of cruelty is conduct of such a character as to cause danger to life, limb or health (physical or mental) or as to give rise to a reasonable apprehension of such danger. Before the amendment of the Hindu Marriage Act, which was brought in the year 1976, the rigid meaning and interpretation was given to the ground of cruelty. But even before the amendment, the Supreme Court in Dastane Vs. Dastane, AIR 1975 SC 1534, tried to give a literal meaning to the ground of cruelty applicable in terms of divorce or judicial separation.
Though the concept of English Law and the Hindu Marriage Act in terms of cruelty as a ground for divorce or judicial separation is more or less the same, yet the learned Judges in India still hold that marriage is a sacrament taking into consideration the social and cultural conditions of our country.

 

In Sukumar Vs Manohar Shivaram Jagesha, the Court observed:
The question whether a particular act or behaviour would amount to cruelty or not depends upon the character, way of life of the parties, their social and economic conditions, their status, customs and traditions. Each case is to be decided on the facts of its own. The judges and the lawyers should not import their own notions of life while dealing with matrimonial cases.
Classification of Cruelty:
Cruelty is classified into two heads.
1. Physical cruelty and
2. Mental cruelty

 

Physical Cruelty:
It is a settled law that physical violence is not necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. Therefore, it goes without saying that the act of cruelty consists of mental torture or physical violence. If it is a physical violence, there will be no problem for a court to arrive at a decision while determining a case presented before it, but in case of mental torture or harassment, the court finds comparatively more difficult to come to final conclusion.
Firstly the court begins its enquiry as to the nature of cruel treatment as well as the impact of that treatment in the mind of the spouse. Ultimately it is a matter of inference to be drawn by taking into account of the nature of the conduct and its effect on the complaining spouse.

 

Kaushalya Vs Wisakhi Ram:
The husband had been ill treating the wife and beating her. On one occasion she had to go to the police station to lodge a complaint against her husband. The Punjab and Haryana High Court observed that according to the standards of all civilized world these acts would constitute cruelty, even though injuries might not be serious as to require medical treatment.

 

Saptmi Vs Jagdish:
It was held that if a husband constantly abuses and insults the wife and occasionally resorts to physical violence against her, it amounts to cruelty.
Mental Cruelty:
An act of mental cruelty is far more severe and dangerous than an act of physical violence. The eye opener cases of mental cruelty are Mohit Bhatnagar Vs Sangeeta Bhatnagar and Deepak Johri Vs Kum Kum Johri, the case of Mohit Bhatnagar has since been decided by the Matrimonial Court after 7 years of long battle and the case of Deepak Johri is still pending in the High Court of Delhi.

 

Deepak Johri and his wife Kum Kum Johri have been living separately for more than 12 years and the Court has yet to decide their fate. Criminal proceedings against Mohit Bhatnagar are still going on. As per my opinion, the non-decision of such cases for a very long time, also amount to mental torture, agony, and punishment of the highest order. In other words this amounts to mental cruelty to both the parties on account of delay oriented procedure prevalent in the courts, whatever be the reasons.
In the judgment of the Supreme Court in V. Bhagat Vs D. Bhagat, the learned judges granted the relief by cutting short the delay oriented procedure adopted by the District Court as well as the High Court of Delhi. Every matrimonial petition may be heard on day to day basis, and be disposed of within six months from the service of the petition on the respondent. The High Court is also required to dispose of every appeal within three months of the service of the notice of appeal to the respondent.
Inspite of the fact that the law provides that every matrimonial proceeding should be completed within six months, no serious efforts are made either by the courts or by the advocates to adhere to the time limit. And the reality is that no matrimonial proceedings are completed before five or ten years. This long delay itself is also the cause of mental torture or mental cruelty to all aggrieved parties facing matrimonial proceedings in the courts.

 

How to prove mental cruelty?
The standard of in case of mental cruelty need not be beyond reasonable doubt, as is required in the criminal trials. What is required in such cases is that the court must be satisfied of preponderance of probabilities and not satisfaction beyond all reasonable doubts.
The act of mental cruelty in matrimonial homes, matrimonial violence and wife battering continues all over the world. Often the unwanted acts of mental cruelty prove to be much more devastating than the acts of physical violence.
Mental cruelty can be inflicted by many ways. A false criminal case to harass the husband would be an act of cruelty. Refusal to have marital intercourse, false complaints to the employees by the wife, an act of nagging, false, scandalous, malicious and baseless charges etc. come under the purview of mental cruelty.

 

Kiran Mandal Vs Mohini Mandal:
Where a wife is found to be of bad temperature and makes false allegations against her husband that he had illicit relations with his brother's wife. It amounted to an act of cruelty.

 

Harbhajan Singh Vs Amarjit Kaur:
The wife not only refused to do household work, but in the presence of guests, also forced the husband to clean the dining table, utensils and crockery. She even slapped the husband. She used to keep her husband waiting outside the house for half an hour or more on his return from the office. She went to the extent of levelling false charges of embezzlement against her husband to the bank authorities, where he was employed.
Shanti Devi Vs Raghav Prakash:
The wife made an allegation that her husband was impotent. She also put on fire the doctoral thesis of her husband, which was yet to be submitted. The husband was a lecturer in the college.
Ashok Kumar Vs Vijay Lakshmi:
False allegations of the wife that an attempt by the husband was made to burn her amounts to cruelty.
Condonation of Cruelty:
Condonation is forgiveness of conjugal offence with full knowledge of all circumstances. To constitute condonation there must be two things, viz., forgiveness and restoration. Forgiveness is the essence of condonation. To be condonation, it must completely restore the offending party and must be followed by cohabitation. There is no condonation unless conjugal cohabitation has been resumed or continued.
While filing a petition for divorce, on the ground of cruelty in the matrimonial court, the aggrieved party is required specifically to mention that he / she has not condoned the cruelty. Even in an affidavit, he / she is required to mention the non - condonation of cruelty to get a decree of divorce on the basis of cruelty.
Section 13 of The Hindu Marriage Act, 1955, provides for dissolution of a Hindu marriage by a decree of divorce on 13 grounds. One of them is cruelty.
Section 27 of The Special Marriage Act, 1954, provides for 12 grounds for divorce. One of them is cruelty.
Section 2 of The Dissolution of Muslim Marriages Act, 1939, provides for 8 grounds on which a woman married under the Muslim law is entitled to obtain a decree for dissolution of her Marriage. One of them is cruelty.
Section 32 of The Parsi Marriage and Divorce Act, 1936, provides for 11 grounds for divorce. One of them is cruelty.
Section 10 of The Indian Divorce Act, 1869, provides for 7 grounds of dissolution of marriage of Christians. One of them is adultery coupled with cruelty.
None of these Acts, however, define as to what cruelty is.
The idea, the meaning and the concept of cruelty changes from time to time, varies from place to place and differs from individual to individual. It is not the same for persons situated in different economic conditions and status.
Perhaps this is the reason why the Legislature has not, in any of the Acts, defined as to what cruelty is and has left it to the best judgement of the Judiciary to decide as to what amounts to cruelty to a particular person in a particular set of circumstances.
Various Judges have, in numerous judgements, defined as to what amounts to cruelty, but once again those definitions are not general but are related to the facts of those particular cases.
The question of cruelty is to be judged on the totality of the circumstances. In order to term a conduct as cruel it should be so grave and weighty that staying together becomes impossible. A conduct to be cruel must be more serious than the ordinary wear and tear of marriage.
You will be surprised to know that out of 100 cases of divorces, in 95 cases, the ground for divorce is cruelty and in the majority of them the cruel conduct complained of is physical violence. However, cases of mental cruelty are also not unknown to our Courts and, at times, complaints are made of a spouse afflicting cruelty upon another, without physical violence, just by his or her conduct of saying something or refraining from doing something.
By cruelty we normally think a conduct, a behaviour, an act of physical violence. The normal idea of cruelty in the common man's mind is assaulting somebody. However cruelty as a ground for matrimonial relief is just not physical violence. Cruelty as a ground for divorce need not be physical only. It may be mental. And believe me, mental cruelty is of a worse kind than that of physical violence.
A wife's conduct of :
- humiliating her husband in the presence of family members and friends,
- taunting her husband on his physical incapabilities,
- denying him access to physical relationship,
- neglect,
- coldness and insult,
- deliberately wearing clothes which her husband dislikes,
- purposely cooking food which her husband is not fond of,
- visiting her parent's family off and on against her husband's wishes,
- undergoing an abortion despite her husband asking her not to do so,
- threatening to commit suicide,
- refusing to do household work,
- keeping husband outside the door of house,
- complaining to husband's employer,
- disobedience,
all these are not acts of physical violence but yet it has an effect on the husband's mind and due to this, the husband's health suffers and therefore these acts can be termed as cruel.
Similarly, a husband's conduct of:
- humiliating his wife,
- calling her frigid or cold fish, making excessive sexual demands,
- comparing her with the maid servant,
- taunting her for not having any child or giving birth to female children,
- demanding dowry,
- asking her to bring money or articles from her parents,
- objecting to her visiting her parents, insulting her relatives when they visit her,
- deliberately removing all servants and making her do all household work,
- denying any medical treatment when she is ill
are also acts of mental cruelty by the husband upon the wife.
In one of the cases, the conduct of a wife abusing her husband and his family members, in her letters, in defamatory and derogatory language and accusing her husband of infidelity was considered as cruelty afflicted by her upon her husband.
In a decided case a Learned Judge of a High Court held that the accusation made by the husband in his written statement, opposing the petition of his wife and alleging there in, without proving the same, that his wife was leading an adulterous life, was cruelty afflicted by the husband upon the wife.
In order to find out whether a particular act is cruel or not, one has to look upon the effect which is caused by that act. If the effect is that by a particular act harm has been caused to the body or mind of the other, the said act is an act of cruelty.
Indian people of whatever race and religion they may be and to whichever class of society they may belong to are basically tolerant. Unless the treatment received by a person from his or her spouse is extremely grave and unbearable, it is not treated as a cruel conduct giving a ground for dissolution of marriage. Still we do not have cases of divorce on the ground of husband snoring at night or wife refusing to accompany husband to a party.

 

CASE NO.:Appeal (civil) 877 of 2007
PETITIONER:Smt. Mayadevi
RESPONDENT:Jagdish Prasad
DATE OF JUDGMENT: 21/02/2007
BENCH:Dr. ARIJIT PASAYAT & DALVEER BHANDARI
JUDGMENT:J U D G M E N T (Arising out of SLP (C) NO. 3686 OF 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Rajasthan High Court at Jodhpur dismissing the appeal filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 (in short the ‘Act’).
Background facts in a nutshell are as follows:
Respondent filed an application for divorce on the ground of cruelty alleging that because of the acts of cruelty on several occasions perpetuated by the appellant, the respondent-husband was under apprehension that it would not be desirable and safe to stay with the appellant and to continue their marital relationships.
It was, inter-alia, stated in the divorce petition as follows:
Parties got married according to the Hindu rites on 17.4.1993. The appellant’s father was an employee in the Railway department and the appellant used to make demands for money frequently and used to quarrel when money was not paid. She did not even provide food to her husband or the children and used to threaten the husband to falsely implicate him in a case of dowry demand and to kill the children and to put the blame on the respondent-husband and his family members. On 23.10.1999 she took Rs.1,05,000/- from the respondent and acknowledged the receipt of the money in the diary of the respondent-husband. She used to borrow money from time to time at the behest of her parents. From the wedlock four children were borne namely, Neha, Anu, Khemraj and Vishnu Sagar. The appellant used to keep the children tied by ropes and she attempted to throw them down from the rooftop and used to physically torture them. She was temperamentally very cruel and used to behave cruelly with the children also. She always used to threaten that she will destroy the whole family of the respondent and that there would be no successor left in the family. On 5.4.2002 at about 12.00 noon she left her parental home alongwith three children namely, Neha, Anu and Khemraj on the pretext that she was going to her parental house which was located in the same village. Since she did not return till evening as was told to the respondent-husband, he started searching for her.
During course of search the garments and slippers of the children and the appellant were found lying near the well of Ramialji. Police was informed and on search dead bodies of the three children were recovered from the well and appellant was also taken out of the well. A criminal case was instituted and she was convicted for an offence under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). She was pregnant at that time and subsequently delivered a child. She filed an application for bail. While on bail, she filed a false case alleging dowry demand against the respondent-husband and his family members. Final report was given by police and it was observed that a false case had been lodged.
The appellant filed her response to the petition for divorce and contended that no amount was borrowed by her father or any of her family members. The respondent-husband used to threaten her for dowry and she had never perpetuated any cruelty so far as the children and the husband are concerned. She did not know as to how the children fell into the well. She was herself unconscious and recovered after about four days. The husband, in fact, turned her out of matrimonial home on 5.4.2002 alongwith their three children. Unfortunately, she and the three children fell into the well.The appeal is pending against her conviction.
The trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to her behaviour on the date of judgment in the criminal case.
After the judgment of conviction was pronounced, she threatened to kill the husband and prosecute him. It was also noted by the trial Court that the allegation made by her alleging for dowry demand was dis-believed and the police gave final report stating that the case was falsely lodged. The trial Court granted the decree of divorce which was, as noted above, confirmed by the High Court in appeal by dismissing appellant appeal.
Learned counsel for the appellant submitted that the foundation of decree for divorce is the alleged conviction for which the appeal is pending and, therefore, the High Court should not have disposed of the matter. In any event, it is submitted that it was the husband and his family members who were torturing her and being threatened by the husband she had not made any grievance with the police.
Unfortunately, when she made the allegation, the police did not properly investigate the matter and gave a final report exonerating the husband.
Learned counsel for the respondent on the other hand submitted that the instances highlighted by the trial Court and analysed in great detail by the High Court clearly made out a case for dowry and no interference is called for in this appeal.
The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife.
Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations.
Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment,second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted (See Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 and A. Jayachandra v. Aneel Kaur 2005 (2) SCC 22 ).
To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”.
The conduct,taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties,their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity.
It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty.
Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane v. Dastane, AIR 1975 SC 1534).
The instances of cruelty highlighted by the trial Court and also by the High Court clearly prove that the husband was subjected to mental and physical cruelty. It is not a fact as submitted by learned counsel for the appellant that the conviction in the criminal case was the foundation for the decree. On the contrary, the trial Court clearly mentioned that the aspect was not taken note of as the appeal was pending.
In view of what has been stated above, the inevitable result is dismissal of the appeal which we direct. There will be no order as to costs.

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 66 OF 2006
Ajay Ashok Khedkar .... ..... ..... ..... Appellant.
V/s
Sou. Laleeta Ajay Khedkar..... .... ..... ....Respondent.
Mr.Hitesh Vyas, Adv. For the appellant.
Mr.Sachin S. Pande, Adv. For the respondent.
CORAM: A.P.DESHPANDE
AND
SMT. R.P. SONDURBALDOTA, JJ.
Date:12th April, 2010.
ORAL JUDGMENT: (Per Deshpande, J.)
This is family court appeal filed by the unsuccessful husband
whose petition for divorce has been dismissed by the Family Court.
The appellant and the respondent’s marriage was solemnized as per
Hindu rites and customs at Pune on 8.3.2001. The marriage was
an arranged marriage and after the marriage the respondent came
to reside with the appellant. The appellant’s mother resides along
with the appellant. The petition for divorce was filed on the
ground of mental cruelty under section 13(1)(ia)
of the Hindu
Marriage Act, 1955.
2. According to the petitioner on the wedding night itself the
respondent alleged that she was deceived in regard to income of
the appellant. The respondent allegedly stated that the salary of
the appellant as informed to her was much more than what he was
actually receiving. It is also alleged that with reference to the
number of spectacle the respondent taunted the appellant by saying
that she was made to perform marriage with a blind person.
Touching those issues the respondent allegedly started quarreling
with the petitioner and insulting the petitioner. It is the case of the
appellant that since beginning the behaviour of the respondent was
arrogant and rude and immediately after the marriage the
respondent was insisting that the petitioner should stay separately
from his mother in one of the two flats owned by the appellant’s
family situated at Raviwar Peth, Pune. According to the appellant
he tried to convince the respondent that his mother is old and there
is no one else to look after her and hence refused to stay separately.
It is also the case of the appellant that the respondent gave threats
that she would commit suicide if the appellant fails to reside
separately. The respondent also denied conjugal rights to the
appellant so as to coerce him to stay separate from his mother. On
the above referred allegations touching mental agony and torture
divorce petition was filed.
3. Sometime in December 2002 the respondent went to the
house of her parents for delivery. She delivered a girl child on
26.2.03. Despite passage of enough time the respondent did not
join the company of the appellant. According to the appellant
because of the insistence on the part of respondent to stay
separately the marital life was disturbed and peace and harmony
was lost.
On 3.5.03 the father of the respondent brought the
respondent to the house of the appellant but without meeting the
appellant or his mother respondent's father went away. On 6.5.03
the respondent called her parents and brother at the house of the
appellant. The near relations of the respondent quarreled with the
petitioner and his mother and after creating a scene threatened the
appellant that they would implicate the appellant and members of
his family in false criminal cases. So threatening the appellant,
father and brother of the respondent took her away along with
them. While leaving the appellant’s residence they said that only if
he resides separately the respondent will be sent back. The
appellant immediately sent a notice on 9.5.03 asking the
respondent to join the company and cohabit with the appellant but
instead of joining the company of the appellant the respondent
initiated criminal case under section 498A of IPC not only against
the appellant and his mother but three other near relations who
were staying separately including the uncle, aunt and husband of
the aunt. All the persons accused of having committed the offence
under section 498A of IPC were arrested by the police and they
were detained in custody. This is the main circumstance which is
relied upon by the learned counsel for the appellant to contend that
lodging of false case which resulted in arrest and detention of
family members of the appellant is singularly sufficient enough to
hold that the respondent is guilty of causing mental cruelty and
agony to the appellant and thus pressed for grant of decree of
divorce. According to the learned counsel for the appellant arrest
and detention of the family members and near relations of the
appellant in false case has caused him utmost mental torture.
During pendnecy of divorce petition the said criminal case came to
be decided by a judgment dated 13.5.05 by Judicial Magistrate,
First Class, Pune acquitting the appellant and all his family
members from the charge under section 498A of IPC.
4. Perusal of the judgment clearly reveals that the prosecution
utterly failed to prove the case put forth by the complainant. The
Judicial Magistrate has recorded categoric finding that the
complainant’s own testimony falsifies the prosecution case that the
complainant was treated cruely and was harassed by the accused
persons with a view to coerce her and her parents to meet their
unlawful demand of Rs.50,000/.
The Magistrate has totally
disbelieved the version of the complainant/wife and has acquitted
the accused persons. On a careful reading of the judgment
rendered in the case of prosecution under section 498A of IPC one
thing is crystal clear and it can be safely assumed that the wife had
filed a false case not only against her husband and motherinlaw
but had unnecessarily roped in other near relations. It is obvious
that on account of arrest and detention of the husband and his
family members respondent has treated the appellant with utmost
mental cruelty and the appellant has suffered agony. It will not be
out of place to mention that the complaint filed by the wife was
calculatedly designed in as much as it was a sort of counter blast to
the divorce petition filed by the husband. The appellant had filed
divorce petition on 16.6.03 whereas the complaint was lodged by
the respondentwife
on 11.7.03.
5. Learned counsel for the appellant submits that the appellant
and his family members including ladies who did not stay along
with the appellant were arrested and detained causing utmost
humiliation and embarrassment and agony to the appellant. This
solitary incidence would itself constitute mental cruelty even if
other circumstances are not taken into account and thus the trial
court has erred in law in dismissing the divorce petition. Para 29 of
the judgment of family court deals with this aspect of the matter by
observing :
“There can not be absolutely two opinions regarding
legal proposition that if the wife filed false criminal cases
against the husband, her conduct does amount to causing
mental cruelty and torture to him, therefore, the husband
becomes entitled for a decree of divorce. The necessary
condition for constituting such legal cruelty is that the wife
has indulged into making false and reckless allegation by
filing false complaint to the police. A singular complaint filed
by wife under section 498A of IPC against the husband and
his family members can not indicate the tendency of wife to
indulge into making such false allegation.”
We fail to understand the logic behind the reasoning adopted by
the family court to hold that a singular complaint of this nature
under section 498A of IPC resulting in arrest and detention of the
family members and relatives thereby causing utmost
embarrassment, humiliation and suffering does not constitute
mental cruelty. It is illogical that more than one complaint are
necessary to be filed to constitute mental cruelty. In our view,
embarrassment, humiliation and suffering that is caused on account
of arrest and detention of appellant and his family members and
relatives in a false case does constitute mental cruelty to enable the
husband to seek decree of divorce on this sole ground. In our
considered opinion, the approach of the family court is wholly
perverse and the reasoning cannot be sustained in law. In regard to
other circumstances the family court has observed :
“At the most one can infer that this conduct of the respondent may have caused some disharmony between the couple but in no way it can be said that it was sufficient to constitute a mental cruelty to petitioner or his mother.” Without deliberating on all the circumstances in detail we are of
the clear view that cumulative effect of the behaviour and conduct of the respondent is good enough to draw an inference that respondent has caused utmost mental pain and suffering which constitute mental cruelty to the appellant and hence the appellant is entitled for decree of divorce on the ground of cruelty.
6. This brings us to the consideration of question of granting maintenance to the girl child who is aged about 8 years. The family court in exercise of powers under section 24 had granted interim maintenance of Rs.700/p.
m. whereas this Court by an interim order has raised it to Rs.1000/p. m. The appellant so also the respondent are both gainfully employed. They are earning in the range of Rs.5000 to 7000 per month each. The child is in
custody of the respondentmother.
Learned counsel for the appellant on instructions from his client who is present in the court submitted that the appellant would pay a sum of Rs.1.5 lacs towards permanent alimony for the maintenance of child. Having
found the said amount insufficient we persuaded the counsel for the appellant to raise the amount so that monthly interest on the said amount works out in the range of Rs.2000 per month. The mother of the appellant has come forward to contribute further sum of Rs.1.5 lacs towards maintenance of the child. In our view if the appellant pays sum of Rs.3 lacs by way of permanent alimony for the maintenance of child the said amount if kept in fixed deposit can fetch interest of Rs.2000/per
month and the same could be utilized by the respondent for upbringing of the daughter.
In the result we pass the following order:
(i) The marriage of the appellant and respondent stands
dissolved by a decree of divorce under section 13(1)(ia)
;
(ii) The appellant shall pay sum of Rs.3 lacs by way of permanent alimony for the maintenance of the girl child. The said amount of Rs.3 lacs shall be invested in fixed deposit in a nationalized bank and the respondent is permitted to withdraw the interest accrued thereon quarterly. The amount
of Rs.3 lacs shall be invested in the fixed deposit within two months from today in the name of the minor child and the respondent would be shown as her guardian;
(iii) The said sum of Rs.3 lacs shall be kept invested in fixed
deposit till the child attains majority.
(iv) Appeal is allowed with no order as to costs.
8.4.2010.
At this stage the learned counsel for the respondent seeks stay
of this order. Having regard to the peculiar facts and circumstances

we do not find any reason to stay the impugned order.
 
HEAD NOTES OF LATEST JUDGMENTS

Anvar Ahmed Vs. Govt. of NCT of Delhi (Delhi HC) 663 Section 498A,34 – Cruelty, common intention – quashing of FIR – Prima facie case-petitioners are husband and parents in law of respondent no. 2 – matrimonial dispute settled through mediation centre – divorce by mutual consent – respondent no. 2 states that no dispute exists with petitioner and she has no objection to quashing of FIR – FIR quashed.
 
 
Protection of Women from Domestic Violence Act,2005
NIDHI KUMAR GANDHI vs. STATE (Delhi high court) 647 Section 12, 23(2), 29 – “Shared household” – maintainability of petition – Grant of relief – restoration of status quo ante in relation to petitioner’s possession of portion of house in question by M.M. – Stay of operation of impugned order by ASJ not justified – Under section 29 of Act an appeal has been provided to Court of Session from order of Magistrate – this being the scheme of Act submission that no relief in criminal jurisdiction of high Court can be sought by way of petition under section 482, Cr. P.C. is wholly misconceived –As per sanctioned plan there is an unfurnished room indicated as ‘kitchen/ store’ on first floor which at present is unoccupied and this is adjoining passage- petitioners states to use it for said purpose to extent  that she can as long as her right to separate entrance from the ground floor and duplicate keys to main entrance and main door provided to her- petitioner is only seeking restoration of relatively small portion which was under her occupation prior  to 17/4/2007- ASJ erred in interfering with interlocutory order passed by MM- by granting to respondents final relief in relation to issue of residence, impugned order of ASJ resulted in grave miscarriage of justice as far as petitioner is concerned- impugned order passed by ASJ set aside- directions issued to the ASJ.
 
 
HINDU MARRIGE ACT, 1955
SWAPAN KUMAR CHATTERJEE vs. SANDHYA CHATTERJEE (Calcutta HC) (DB) 17
Section 13- Cruelty – Desertion, Illicit Relationship of husband- allegations against moral character of husband not disproved……………
(See Special Marriage act, 1954- Sec. 27(1(b)), 27(1)(d))
 
 
SHEELA BAI VS. DEOKARAN (MADHYA PRADESH HC) 699

Section 13, 12, 28 – divorce sought on ground of impotency – impotency is not a ground available under Section 13 – Section 12 of Act deals with void able marriages according to which marriage may be annulled by decree of nullity on ground that marriage has not been consummated owing to impotence of either party to marriage – marriage took place in 1997 – parties living separately since then and remained together for short period – marriage irretrievably broken down – without making any observation about impotency of husband marriage between parties dissolved.

 

SUSHANT KUMAR MISHRA VS. SUBHRANSUBALA MISHRA (ORISSA HC) (DB) 387

Sections 13 and 25 – dissolution of marriage – permanent alimony – grant of – wife stayed for one month in matrimonial home with husband – child born to her in same year – possibility of conception during stay cannot be ruled out………………………..(See Alimony)

 
 

SARATHI PAUL VS. SAMIR KUMAR PAUL (CALCUTTA HC) (DB) 69

Section 13(1) (ia)- Cruelty – Denial of divorce justified – Allegations made by wife against husband of inflicting cruelty, demanding dowry and driving out wife from matrimonial home are untrue – Trial judge rightly concluded that wife used to earn Rs. 10,000 a month, whereas husband used to earn much less, wife did not like idea of spending money for husband’s family and for that reason, she, of her own, left matrimonial home – Denial of divorce not unjustified.

 
 

BALWINDER KAUR VS. SURJEET SINGH (PANJAB & HARYANA HC) 747 Section 13(1)(ia)- Cruelty – Dissolution of marriage justified – Appellant-wife has not resumed cohabitation with respondent-husband for last number of years – She obtained decree for restitution of conjugal rights just as paper transaction and did not take any steps whatsoever to get it implemented – She even did not notify the non-compliance of that decree, on part of respondent-husband to Trial Court – That by itself proves appellant caused mental cruelty to respondent-husband.

 
 
SUNITA DEVI VS. LALA (HIMANCHAL PRADESH HC)  601
Section 13(1)(ia), 13(1)(ib)- Cruelty, Desertion – Grant of divorce – unjustified – Burden and onus to prove desertion and cruelty was on husband which was not discharged – Except for bald statement of husband there is nothing on record to prove same – Even self serving statement of husband does not refer to any specific instances – parents were not examined – Husband has not denied that wife had to litigate and claim maintenance both for herself and her two minor children – Nothing on record to show why respondent failed to take care of children – there is sufficient evidence to prove it is respondent-husband who has caused mental cruelty and forced desertion on appellant to have severed matrimonial relationship and title – She was thrown out of house and as such her staying separately cannot be an act of voluntary action – Findings of Trial Court reversed.
 
 

KANCHAN SANJAY GUJAR VS. SANJAY BHIKAN GUJAR (BOMBAY HC) (DB) 566
Section 13(1A) – Divorce Petition – Under Section 13 (1A) could be moved by either of the parties – Not necessary that party at whose instance decree for restitution has been passed can only file such a petition.

 
 

VIPIN KUMAR SHARMA VS. MITHLESH KUMARI (DELHI HC) 111

Section 13(1)(ia), 13(1)(ib), 23 - Cruelty, Desertion – Taking advantage of one’s own wrong – Appellant not able to prove acts of cruelty against respondent – Conduct charged against respondent as cruelty is in nature of normal tits and bits of matrimonial life and do not constitute cruelty to get decree of divorce – Petition under Section 9 of Act filed by appellant dismissed as she did not approach Court with clean hands – Appellant was responsible for desertion and had no bona fide will to join respondent – Trial Court held that petition to be barred by Section 23, Hindu Marriage Act as appellant was apparently trying to take advantage of his own wrongs – Impugned judgment of trial Court upheld – Lodging of FIR per se by appellant against respondent cannot amount to cruelty till adjudication by Competent Court with respect to veracity of averments made therein – Matter is still sub judice – No merit in appeal.

 
 
PRIYANKA SINGH  VS. JAYANT SINGH (SUPREME COURT OF INDIA) (SC)   865
Section 13B – Transfer of Divorce Petition - Divorce by mutual consent – Parties are living separately for last more than 4 years and 6 months – No chance of reconciliation between parties and they agreed to dissolve their marriage by mutual consent without any coercion or undue influence – Divorce petition is transferred to this Court and marriage between parties is dissolved by granting decree by divorce by mutual consent under Section 13-B of Hindu Marriage Act.
 
 
COL. D.S.GODARA  VS RAJESHWARI SINGH (UTTARAKHAND HC) (DB) 479
Section 13(1)(ia) and 13(1)(ib) – Family Courts Act, 1984 – Section 19 - Cruelty, Desertion, Restitution of Conjugal Rights – Irretrievable breakdown of marriage – No scope of parties living together – Even though grounds of cruelty and desertion not sufficiently proved by petitioner, it is just proper to dissolve marriage between parties – Petitioner/Appellant directed to make lump sum permanent alimony amounting to Rs. 10 lacs to respondent within period of 3 months.
 
         
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