Sunday, April 28, 2013

Divorce on ground of Mental Cruelty in section13(1)(i-a)-HMA


Divorce on ground of Mental Cruelty in section13(1)(i-a)-HMA



"It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it.
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Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be Determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

V. Bhagat vs D. Bhagat on 19 November, 1993
Equivalent citations: 1994 AIR 710, 1994 SCC (1) 337
Bench: J Reddy, B.P.
PETITIONER:
V. BHAGAT
Vs.
RESPONDENT:
D. BHAGAT
DATE OF JUDGMENT19/11/1993
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
KULDIP SINGH (J)
CITATION:
1994 AIR 710 1994 SCC (1) 337
JT 1993 (6) 428 1993 SCALE (4)488
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- This is an unusual case calling for an unusual solution. The husband sued for divorce on the ground that the wife is guilty of adulterous course of life. The wife not only denied the allegation she attributed the allegation to lack of mental equilibrium of the husband. The husband then amended his petition; he alleged a new ground for divorce viz., mental cruelty. According to him, the allegations made in the written statement per se constitute cruelty which entitle him straight away to a divorce without going into the original allegation of adultery. He is also relying upon certain questions put to him in cross-examination by the counsel for the respondent and the said counsel's explanatory statement made in that connection. We may elaborate.
2.The petitioner-applicant, Shri V. Bhagat is an Advocate practicing in this Court and Delhi High Court. He is now aged about 55 years. The respondent wife is working at present as the Vice-President of ITDC, a Public Sector Corporation. She is aged about 50 years. They were married in the year 1966. They have two grown-up children now a son and a daughter. The son is a doctor while the daughter holds an MBA degree and is working with an American Company in California.
3.The respondent was working in a Television Company at the time of her marriage. After the birth of a child she left the job in August 1967. The respondent started working again from the year 1972 onwards. To start with she was employed in a Travel Agency. Somewhere around 1978-79, the petitioner began suspecting her of infidelity. According to him, when he questioned the respondent of her adulterous behaviour, she admitted the same and asked to be pardoned. The wife denies this. She says, she never made any such admission and that the allegation is a totally false one. From 1980 onwards the petitioner was making attempts to obtain a divorce by consent. The respondent was not willing. On May 28, 1985, he instituted the present petition for divorce in the District Court, Delhi. The divorce petition runs into more than 160 paragraphs. The main ground is adultery. According to the husband, the wife is an incorrigible adulteress. The respondent flied the written statement denying the allegations. The written statement, it anything, is even lengthier and more voluminous than the divorce petition.
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She has denied the allegation in toto. According to her, the husband is like Othello a pathologically suspicious character.
4.On February 5, 1986, the petition for divorce was withdrawn and transferred to the High Court of Delhi. It was assigned to Justice H.C. Goel. The learned Judge struck out a large number of paragraphs from the petition for divorce. Against the order of the learned Judge, the petitioner approached this Court by way of an appeal which was allowed on February 19, 1987. On that occasion, this Court directed the learned Chief Justice of the Delhi High Court to nominate a learned Judge to take up the divorce petition and dispose it of as expeditiously as possible. It was directed that the matter may be heard on day-to-day basis as far as possible.
5.In May 1987, the petitioner filed an interlocutory application before the High Court for passing a decree of divorce on the basis of the averments made by the respondent in her written statement/counter. According to him, those allegations amounted to cruelty against him and furnished adequate grounds for passing a decree of divorce. He then filed an application in this Court to withdraw the said interlocutory application to the file of this Court and grant the relief prayed for by him. This Court refused to do so. The interlocutory application filed by him was dismissed by the High Court. Thereafter, he amended his petition for divorce and again filed another interlocutory application for granting divorce on the basis of the averments made by the respondent in her written statement. This application too was dismissed by the High Court. It is stated that the special leave petition filed against the same was also dismissed by this Court. The trial is in progress now. Petitioner's evidence is over and the wife's statement is being recorded. At this stage, the present application I.A. No. 1 of 1993 is filed in Civil Appeal No. 424 of 1987 (which was disposed of on February 19, 1987). The prayer in the application is to give appropriate directions for speedy disposal of the divorce petition. In this application the petitioner has made the following averments: the petition for divorce is pending over the last 8 years. The respondent has indulged in dilatory tactics to protract the litigation. The respondent spent more than 11 months in cross-examining the petitioner alone (February 19, 1992 to January 1993). While the examination-in-chief is mere 30 pages, the cross-examination runs into more than 150 pages most of it irrelevant and unnecessary. The trial Judges are unable to stop the vexatious cross-examination by the counsel for the respondent. The repeated directions from this Court to dispose of the divorce petition as expeditiously as possible and on day-to-day basis did not have the desired effect. As many as five learned Judges of the High Court have tried this matter, but still it is at the stage of recording of evidence. The evidence of the respondent wife is yet to be completed. As a matter of fact, on May 1, 1991, this Court was constrained to observe: "We are inclined to agree with the counsel for the petitioner that the directions have not been followed and the matter has unnecessarily been protracting. We request the learned Chief Justice of the High Court to personally look into the matter and allot the case to a learned Judge on
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the appellate side who can deal with the matter day-to-day and have it disposed of within a reasonable time, say, within three to four months from today."
The petitioner complains that even though a period of more than 28 months has elapsed since the said order, the matter is still at the stage of trial.
6.In her counter filed to this application, the respondent stated that she is in no way responsible for the delay in disposal of the divorce petition and that in fact the petitioner himself is responsible for the delay. She submitted that almost every order passed by the Delhi High Court was challenged by him by way of special leave petition in this Court and that he has also been making allegations against the learned Judges trying the petition as and when they passed orders unfavourable to him.
7.In this application (I.A. No. 1 of 1993), this Court directed on May 3, 1993, both the parties to be present in person in the Court with a view to explore the possibility of a settlement. On the next date, i.e. May 7, 1993, the respondent was not present. The matter was adjourned to July 19, 1993. On July 19, 1993, the parties were heard for some time and the Court suggested to the parties to find a via media to settle the matter. The parties sought for a short adjournment. The matter was adjourned to August 6, 1993. On 6th August, the matter was again adjourned to 16th August on which date we were told that the parties could not arrive at any settlement, whereupon the arguments of the counsel for the parties were heard. In the background of the orders of this Court made in this IA, referred to above, learned counsel for the petitioner reiterated his plea to grant a divorce on the ground of cruelty evidenced by the averments in her counter and the questions put to him in the cross-examination. Counsel submitted that the marriage between the parties has broken down irretrievably. Having regard to the nature of allegations and counter-allegations made by the parties against each other, there is hardly any room for their coming together. The petitioner has been trying to obtain divorce right from the year 1980. For five years he tried to get it by consent, failing which he approached the Court. Eight years have passed by and in spite of the repeated orders of this Court, even the trial is not yet over. The petitioner is now 55 years old. A good part of the lives of both the parties has been spent in rancour and litigation. Dehors the allegations of adultery originally made in the petition for divorce, the petitioner is entitled to divorce on the basis of the additional ground put in by way of amendment viz., cruelty mental cruelty by wife. The averments made in her counter and the questions put by her counsel in the cross-examination of the petitioner do constitute clear acts of cruelty. In view of the said averments/questions, no further material is necessary to establish the said additional ground. In her written statement, the respondent has alleged that the petitioner is "suffering from mental hallucination" that his is a "morbid mind for which he needs expert psychiatric treatment" and further that "the petitioner is suffering from paranoid disorder. He needs expert psychological treatment.... He is incoherent in his thinking.... The petitioner is a mental patient. The petitioner needs treatment by a psychiatrist
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to whom he was directed by his own sister.... He is a patient and needs treatment and restoration of normal mental health.... The petitioner needs psychological treatment to make him act a normal person" and so on and so forth. In the cross-examination of the petitioner, the Senior Advocate appearing for the respondent wife put several questions suggesting that the petitioner and the several members of his family including his grandfather are lunatics and that a streak of insanity is running in the entire family. When he protested against the said questions, the learned Senior Advocate made the following statement in the Court "all of your (petitioner's) family including your grandfather and others are lunatics with streaks of insanity running in the entire family; this is the respondent's case; and that is why these questions have been asked." The said questions were put and the said statement was made by her Advocate at the instructions of the respondent. Notwithstanding the dismissal of a similar application by the Delhi High Court and the dismissal of a special leave petition there against by this Court, this is a fit and proper case and this is the most appropriate stage at which the petitioner should be granted divorce on the ground of cruelty. The situation has become intolerable, says the counsel.
8.The learned counsel for the respondent, on the other hand, reiterated his submission that the respondent was not responsible for the delay; that in fact the petitioner has himself been delaying the proceedings and that the questions put to him in cross-examination and the defence taken in the written statement are merely the reactions of the wife to unjustified and unwarranted aspersions cast upon her character. The respondent has only been trying to explain that the several serious allegations levelled against her are the products of a sick mind and are mere figments of his imagination. She submitted that her children and even the sisters and mother of the petitioner are siding her in this dispute and that the petitioner alone, alienated from his entire family, is persecuting her. It is submitted that she is only trying to defend her honour, self-respect and standing in society. It is pointed out that she is holding a fairly high office in a Public Sector Corporation and it is her duty to herself, her children and to the families of her husband and herself to disprove the unfounded allegations levelled against her. She has submitted that she is not agreeable to divorce on any ground whatsoever and that she is always prepared to live with the petitioner. It is only the petitioner who is keeping himself away from her company and has confined himself to one room, whereas she, her children and her mother-in-law live in the house as usual.
9.It is said that marriages are made in heaven, that may be so, but this one has turned into a hell for sure. The allegations and the counter allegations are indicative of the intense hatred and rancour between the parties. Any reconciliation is out of question. The question before us is what in all the facts and circumstances of the case, should we do? Three courses are open. First is to look to the prayer in the application and reject it in view of two earlier directions to the same effect. Second, to make another request (third one) to the High Court to dispose of the matter expeditiously and
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third, to explore whether any solution can be found to the predicament in which the parties are now placed. So far as the first two alternatives are concerned, it may be noted, there have been two such directions by this Court earlier, one in the year 1987 and the other in the year 1991. The advisability of a third such direction request is open to question. If two such requests/directions had no effect, it is doubtful that a third direction would yield any better result. It may be an exercise in futility besides being inadvisable. In the facts and circumstances of this case, we are inclined to explore the third alternative.
10.That this is a rather unusual case can hardly be disputed. The divorce petition has been pending for more than 8 years. With a view to expedite its disposal it was transferred from the District Court to the High Court. This Court repeatedly requested (in 1987 and 1991) the High Court to try the matter on a day-to-day basis and dispose it of expeditiously. The petition is still at the stage of trial. It is not possible for us to apportion the blame. Each side attributes it to the other. Five learned Judges of the High Court have tried their hand at the case, but it still remains at the stage of trial. The cross-examination of the petitioner alone took one full year. The cross-examination of the respondent is yet to begin. Having regard to the number of allegations made by the petitioner in his divorce petition and the material relied upon by him, it may safely be presumed that the cross-examination of the respondent would take as much time as the cross-examination of the petitioner, if not more. Each party, it appears, is out to punish the other for what the other is supposed to have said or done. This appears to be the single thought ruling their lives today. A good part of the lives of both the parties has been consumed in this litigation and yet the end is not in sight. The assertion of the wife that she wants to live with the husband even now, appears to be but a mere assertion. After all the allegations made against her in the petition and the allegations levelled by her against the petitioner, living together is out of question. Rapprochement is not in the realm of possibility. For the parties to come together, they must be superhumans, which they are not. The parties have crossed the point of no return long ago. The nature of the allegations levelled against each other show the intense hatred and animosity each bears towards the other. The marriage is over except in name. The desirability of allowing the continuation of the divorce proceedings in the particular facts and circumstances of this case, is open to grave doubt. The matter may take more than a year at the minimum to conclude in the High Court and then there is the right of appeal to the losing party. Both the parties are well- settled. The children are grown-up and are on their own. It is significant to note that this is not a case where allegations are made only by one party against the other; both have levelled serious allegations against the other. The husband calls the wife an adulteress and the wife calls the husband a lunatic.
11.The question, however, is whether the allegations made by the respondent wife do constitute mental cruelty. The allegations in her written statement and her counsel's explanatory statement in Court have already 345 been set out hereinabove. The respondent has asserted in her written statement that she "has every right to make correct statement of facts to defend herself against the wanton, imaginary and irresponsible allegations".
12.Clause (i-a) of Section 13 specifies cruelty as one of the grounds of divorce. Insofar as relevant, Section 13 reads:
"13. Divorce.- (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i-a) has, after the
solemnization of the marriage, treated the petitioner with cruelty; or"
13.Cruelty contemplated by the sub-clause is both physical and mental. We are concerned herein with the latter. It is not possible to define 'mental cruelty' exhaustively. As observed by Lord Reid in Gollins v. Gollins1: "No one has ever attempted to give a comprehensive definition of cruelty and I do not intend to try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirement that the party seeking relief must show actual or probable injury to life, limb or health.
It is easy to see that the origin of this requirement is the decision in the well-known case of Russell v. Russell2."
To the same effect are the observations of Lord Pearce (at p. 695; All ER p. 992):
"It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called on to endure it.
I agree with Lord Merriman whose practice in cases of mental cruelty was always to make up his mind first whether there was injury or apprehended injury to health. In the light of that vital fact the court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable person's point of view, after a consideration of any excuse which this respondent might have in the 1 1964 AC 644: (1963) 2 All ER 966
2 (1895-99) All ER Rep 1 :(1897) AC 395 346
circumstances, the conduct is such that this petitioner ought not to be called on to endure it.
The particular circumstances of the home, the temperaments and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the act or conduct complained of may all be relevant."
The reference to "Injury to life, limb or health" in the above passages must be understood in the context of the requirements of the divorce law then obtaining in the United kingdom.
14.The change of law brought about by the Hindu Marriage Laws (Amendment) Act, 1976 deserves notice. Prior to the said Amendment Act, cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was a ground only for claiming judicial separation under Section 10. By the said Amendment Act, cruelty was made a ground for divorce as well evidently in recognition of the changing mores of the society. While doing so, it is significant, the words "as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party," qualifying the expression "cruelty" in Section 10(1)(b), were omitted by Parliament. It is, therefore, not necessary for the party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension a reasonable apprehension in his/her mind that it will be harmful or injurious for him/her to live with the other party. Now what does this change mean? Surely, the deletion of the said words could not have been without a purpose. The cruelty of the nature described in Section 10(1)(b) has been explained in this Court's decision in N.G. Dastane v. S. Dastane3. Chandrachud, J. speaking for the Bench, held that where an allegation of cruelty is made, the enquiry has to be
"... whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent".
The learned Judge held further: (SCC pp. 337- 38, paras 30-3 1)
"It is not necessary, as under the English law, that the cruelty must be of such a character as to cause 'danger' to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other. But under Section 10(1)(b), harm or injury to health, reputation, the working-career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English law, but whether the petitioner
3 (1975) 2 SCC 326: AIR 1975 SC 1534
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proves that the respondent has treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent."
This requirement is no longer present in Section 13(1)(i-a).
15. If so, the question arises what kind of cruel treatment does clause (i- a) contemplate? In particular, what is the kind of mental cruelty that is required to be established? While answering these questions, it must be kept in mind that the cruelty mentioned in clause (i-a) is a ground now for divorce as well as for judicial separation under Section
10. Another circumstance to be kept in mind is that even where the marriage has irretrievably broken down, the Act, even after the 1976 (Amendment) Act, does not permit dissolution of marriage on that ground. This circumstance may have to be kept in mind while ascertaining the type of cruelty contemplated by Section 13(1)(i-a).
16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be Determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.
17.At this stage, we may refer to a few decisions of this Court rendered under Section 13(1)(i-a). In Shobha Rani v. Madhukar Reddi4, Justice K. Jagannatha Shetty, speaking for the Division Bench, held: (SCC pp. 108-09, paras 4 and 5) "Section 13(1)(i-a) uses the words 'treated the petitioner with cruelty'. The word 'cruelty' has not been defined. Indeed it could not have been defined. It 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. It is a course of 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 to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as
4 (1988) 1 SCC 105:1988 SCC (Cri) 60
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to the nature of the cruel treatment. Second, the impact of such treatment on 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. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the 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.
It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. 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 a 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. Because as Lord Denning said in Sheldon v. Sheldon' 'the categories of cruelty are not closed'. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.
" It was a case where the wife was a postgraduate in biological sciences while the husband was a doctor. The wife moved the court for divorce on the ground of cruelty. According to her, she had an amount of Rupees two lakhs in fixed deposit in a bank apart from a house property, that her mother-in-law used to make constant demands of money, and that the respondent husband supported his mother therein. She did not report the same to her parents because she was afraid that if she informed her parents, something may be done to her. The respondent-husband himself admitted in a letter written to the wife that the demand for dowry by his parents was nothing wrong. On the above facts, it was held that the ground of cruelty was established and divorce was granted. The following further observations of Shetty, J. appear to us relevant: (SCC pp. 1 14-15, para 18) "Section 13(1)(i-a) of the Hindu Marriage Act provides that the party has after solemnization of the marriage treated the petitioner with
5 (1966) 2 All ER 257, 259: (1966) 2 WLR 993 349
cruelty. What do these words mean? What should be the nature of cruelty? Should it be only intentional, wilful or deliberate? Is it necessary to prove the intention in matrimonial offence? We think not. We have earlier said that cruelty may be of any kind and any variety. It may be different in different cases. It is in relation to the conduct of parties to a marriage. That conduct which is complained of as cruelty by one spouse may not be so for the other spouse. There may be instances of cruelty by the unintentional but inexcusable conduct of any party. The cruel treatment may also result by the cultural conflict of the spouse. In such cases, even if the act of cruelty is established, the intention to commit suicide cannot be established. The aggrieved party may not get relief. We do not think that was the intention with which the Parliament enacted Section 13(1)(i-a) of the Hindu Marriage Act. The context and the set up in which the word 'cruelty' has been used in the section, seems to us, that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment."
18.In Chanderkala Trivedi v. Dr S.P. Trivedi6 the husband sued for divorce on the ground of cruelty by wife. The wife filed a written statement wherein she attributed adultery to the husband. In reply thereto the husband put forward another allegation against the wife that she was having undesirable association with young boys. Considering the mutual allegations, R.M. Sahai, J. speaking for Division Bench, observed: (SCC
p. 233, para 2)
"Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have, been made in this case then it is obvious that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife."
19.It was argued on behalf of the husband that the wife has failed to establish the charge of adultery levelled against him and that the charge of adultery must be proved beyond reasonable doubt. Dealing with the argument, the learned Judge observed: (SCC pp. 233-34, para 3) 6 (1993) 4 SCC 232 : 1993 SCC (Cri) II 54 : (1993) 3 Scale 541
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"But we do not propose to examine it as we are satisfied that the marriage is dead and the findings of fact cannot be set aside by this Court except that the appeal can be sent back to the Division Bench to decide it again which would mean another exercise in futility leading to tortuous litigation and continued agony of the parties."
20.In the light of the principles enunciated hereinabove, we may now examinewhether the allegations made by the wife in her written statement and thequestions put by her counsel to the petitioner in cross-examination amount to mental cruelty within the meaning of the said sub-clause? The relevant portions of the written statement have already been set out by us hereinbefore. We have also set out in the said paragraph the explanatory statement made by the respondent's counsel in court in Justification of the questions put by him to the petitioner in his cross- examination. It is true that the said averments must be read in the context in which they were made. At the same time, it must be remembered that the wife was merely defending herself against what are, according to her, totally unfounded allegations and aspersions on her character. It was not necessary for her to go beyond that and allege that the petitioner is a mental patient, that he is not a normal person, that he requires psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. It is not as if these words were uttered in a fit of anger or under an emotional stress. They were made in a formal pleading filed in the Court and the questions to that effect were put by her counsel, at her instructions, in the cross-examination. Even in her additional written statement she has asserted her right "to make correct statement of facts to defend herself against the wanton, imaginary and irresponsible allegations". These are not the mere protestations of an injured wife; they are positive assertions of mental imbalance and streak of insanity in the mental build-up of the husband. The husband is an Advocate practicing in this Court as well as in Delhi High Court. The divorce petition is being tried in the Delhi High Court itself. Making such allegations in the pleadings and putting such questions to the husband while he is in the witness-box, is bound to cause him intense mental pain and anguish besides affecting his career and professional prospects. It is not as if the respondent is seeking any relief on the basis of these assertions. The allegations against her may not be true; it may also be true that the petitioner is a highly suspicious character and that he assumes things against his wife which are not well founded. But on that ground, to say that the petitioner has lost his normal mental health, that he is a mental patient requiring expert psychological treatment and above all to brand him and all the members of his family including his grandfather as lunatics, is going far beyond the reasonable limits of her defence. It is relevant to notice that the allegations of the wife in her written statement amount in effect to "psychopathic disorder or any other disorder" within the meaning of the Explanation to clause (iii) of sub-section (1) of Section 13, though, she has not chosen to say that on that account she cannot reasonably 351
be expected to live with the petitioner-husband nor has she chosen to claim any relief on that ground. Even so, allegations of 'paranoid disorder', ,mental patient', 'needs psychological treatment to make him act a normal person' etc. are there coupled with the statement that the petitioner and all the members of his family are lunatics and that a streak of insanity runs through his entire family. These assertions cannot but constitute mental cruelty of such a nature that the petitioner, situated as he is and in the context of the several relevant circumstances, cannot reasonably be asked to live with the respondent thereafter. The husband in the position of the petitioner herein would be justified in saying that it is not possible for him to live with the wife in view of the said allegations. Even otherwise the peculiar facts of this case show that the respondent is deliberately feigning a posture which is wholly unnatural and beyond the comprehension of a reasonable person. She has been dubbed as an incorrigible adulteress. She is fully aware that the marriage is long dead and over. It is her case that the petitioner is genetically insane. Despite all that, she says that she wants to live with the petitioner. The obvious conclusion is that she has resolved to live in agony only to make life a miserable hell for the petitioner as well. This type of callous attitude in the context of the facts of this case, leaves no manner of doubt in our mind that the respondent is bent upon treating the petitioner with mental cruelty. It is abundantly clear that the marriage between the parties has broken down irretrievably and there is no chance of their coming together, or living together again. Having regard to the peculiar features of this case, we are of the opinion that the marriage between the parties should be dissolved under Section 13(1)(i-a) of Hindu Marriage Act and we do so accordingly. Having regard to the peculiar facts and circumstances of this case and its progress over the last eight years detailed hereinbefore we are of the opinion that it is a fit case for cutting across the procedural objections to give a quietus to the matter.
21.Before parting with this case, we think it necessary to append a clarification. Merely because there are allegations and counter-allegations, a decree of divorce cannot follow. Nor is mere delay in disposal of the divorce proceedings by itself a ground. 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 breakdown of the marriage is not a ground by itself. But while scrutinising the evidence on record to determine whether the ground(s) alleged is/are made out and in determining the relief to be granted, the said circumstance can certainly be borne in mind. The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties.
22.The petition for divorce H.M. Case No. 1 of 1986 pending in the Delhi High Court is withdrawn to the file of this Court and is allowed. The marriage between the parties is dissolved. In the circumstances, the allegations levelled by the petitioner against the wife are held 'not proved'. The honour and character of the respondent wife stands vindicated.
23. There shall be no order as to costs

Saturday, April 27, 2013

ex-parte divorce granted by Foreign Court Invalid: Delhi High Court



ex-parte divorce granted by Foreign Court Invalid: Delhi High Court

The Delhi high court has held that divorce granted by a foreign court on the ground of "irretrievable break down of marriage” is not valid in India.
The court said this was because the Hindu Marriage Act did not recognize this ground valid for dissolution of marriage.
"Both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and both are governed by the Hindu Marriage Act (HMA). Their marriage has been dissolved by a court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the HMA..." Justice Veena Birbal said citing a supreme court judgment.
The court said this while rejecting the plea of an Indian-origin UK resident to drop the divorce proceedings initiated by his wife in Delhi on the ground that he had already secured a divorce decree from a UK court in 2011.
From the records the judge found that the UK court’s was an ex-parte decree (without hearing the wife) and she had not submitted herself to the jurisdiction of the foreign court.
"She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the UK court not to make the divorce decree 'absolute'...... In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court," the court said.
They couple fell in love after meeting each other in UK in 2004 and got married in Delhi in March 2005. With the passage of time, disputes arose between them as a result of which they could not live together.
She came back to Delhi in 2009 and filed a divorce petition in a court here leveling charges of  domestic violence, cruelty and assault against her husband.

Thanks to Hindustan Times for this articles and resources:

Saturday, April 20, 2013

Divorce given by foreign court is conclusive under Indian law.


Divorce given by foreign court is conclusive under Indian law: Bombay High Court.


Mumbai: Once a decree of divorce is granted by a foreign court after the parties submit to its jurisdiction and contest the case, the marriage stands validly dissolved, the Bombay High Court has held. 


"As such nothing further survives in the marriage. Therefore the conjugal rights cannot be restituted and hence the petition for conjugal rights or even any other petition cannot proceed and must be dismissed as infructuous," ruled Justice Roshan Dalvi recently.

The Judge observed this while quashing an order of a family court in India which had dismissed husband's petition for rejecting wife's plea for restitution of conjugal rights.

"It is an abuse of legal process to adjudicate upon matters already decided by foreign Courts which are conclusive under the Indian Laws," Justice Dalvi noted and set aside the family court's order of July 31.

In this case, the parties were residing in the state of Texas in the US when the wife submitted to the jurisdiction of the Judicial District Court of Harris County. Kaustubh Sudhir Mestry and Praveena Lakshmanan married in 2006 and moved to the US thereafter. They lived there together until 2010. In the meantime, they had disputes. While residing there, the husband filed the petition for divorce on the ground of irretrievable breakdown of marriage and also cruelty.

The wife filed a counter claim wherein she contested the charge of cruelty. She also consented to the interim order passed by signing the interim order herself and also by her attorney. She further consented to the grant of relief by that court, Justice Dalvi observed.

"This being the law, the impugned order of the Family Court in India would deserve to be interfered with. Though it is seen that the learned Judge has painstakingly considered the law relating to conclusiveness of foreign judgments, the view taken by the Judge in the impugned order seems to be erroneous," the High Court observed.

The husband and wife applied for, opposed and ultimately accepted an interim order of the foreign court by consent. The parties appeared in person as also through their respective attorneys in the Judicial District Harris County.

The interim order restrained the parties from entering upon their respective places of residence. The order directed the husband to pay house rent, car and motorcycle loan and phone bill upto the end of July, 2010, the order having been passed on 14th July, 2010.

The parties were directed to pay their personal debts. There was a temporary restraint order already passed which both the parties agreed to continue until further orders of the court.


The husband was directed not to do anything with the visa of the wife until the final decree of divorce. The wife was directed to allow the husband to get his books and personal belongings from their residential premises.

After the interim order was passed the wife came to India on August 22, 2010. She filed the petition for restitution of conjugal rights and an application under the Domestic Violence Act against the husband and his parents.

The wife instructed her attorney to withdraw counter claim in Texas court and sent emails to that court on August 30 and 31, 2010. Hence, divorce petition filed by the husband proceeded without the counter claim and without her defence. She did not appear in Judicial District Harris County and the decree of divorce was passed. The interim order, therefore, merged in the final decree of divorce.

Upon the decree of divorce being granted, the marriage of the parties stood dissolved. Hence the husband applied in the family court, Mumbai, for dismissal of the petition of restitution of conjugal rights as it would not then survive. That application was dismissed. Being aggrieved, he filed a petition in the Bombay High Court.

The wife contended that the Texas Court had no jurisdiction and decree of divorce passed would not become a final judgement conclusive upon both the parties. This is on the premise that she did not appear before the Texas Court.

The High Court, however, felt that her contention was incorrect as she had submitted to the jurisdiction of foreign court and argued her case on merits. This, the court said, was clear from the counter claim filed by her attorney as also the interim order which had been signed by her.

Her contention that the grounds of divorce were different in the US courts and hence no decree of divorce can stand in India was also rejected by the High Court which felt that irretrievable breakdown of marriage and cruelty, cited as reasons for seeking divorce in this case, were acceptable also in Indian courts.

The wife contended that she and her husband were domiciled in India and hence Hindu Marriage Act, 1955, would apply. On this the High Court noted that as they last resided in Mumbai before moving to the US temporarily, their domicile continued and only courts in Mumbai would have jurisdiction over such matters.

"However, this would be if the wife did not submit to the jurisdiction of any other court," the High Court observed.

The High Court further held that judgement obtained by the husband from a foreign court being the decree of divorce was conclusive because it had been pronounced by the court in the state where they then lived. It had been given on the merits of the case because the wife opposed the interim application.

"It is not founded upon any breach of any law in force in India because it is for a decree of divorce on the ground of cruelty which is in terms of the law in force in India," the court said.

PTI
Thanks to Znews : sources: http://zeenews.india.com/news/maharashtra/divorce-given-by-foreign-court-is-conclusive-under-indian-law-bombay-hc_808418.htmlhttp://zeenews.india.com/news/maharashtra/divorce-given-by-foreign-court-is-conclusive-under-indian-law-bombay-hc_808418.html

Tuesday, April 9, 2013

Divorce on Irretrievable breakdown of marriage.


 Divorce on Irretrievable breakdown of marriage.


We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1794 OF 2013
(Arising out of Special Leave Petition (Civil) No. 4782 of 2007)
K. SRINIVAS RAO … APPELLANT
Versus
D.A. DEEPA … RESPONDENT
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by special leave, has been filed by the appellant- husband, being aggrieved by the judgment and order dated 8/11/2006 passed by the Andhra Pradesh High Court in Civil Miscellaneous Appeal No.797/03, setting aside the decree of divorce granted in his favour.
3. The appellant-husband is working as Assistant Registrar in the Andhra Pradesh High Court. The marriage between the appellant-husband and the respondent-wife was solemnized on 25/4/1999 as per Hindu rites and customs. Unfortunately, on the very next day disputes arose between the elders on both sides which resulted in their abusing each other and hurling chappals at each other. As a consequence, on 27/4/1999, the newly married couple got separated without consummation of the marriage and started living separately. On 4/10/1999, the respondent-wife lodged a criminal complaint against the appellant-husband before the Women Protection Cell alleging inter alia that the appellant-husband is harassing her for more dowry. This complaint is very crucial to this case. We shall advert to it more in detail a little later. Escalated acrimony led to complaints and counter complaints. The respondent-wife filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Family Court, Secunderabad. The appellant-husband filed a counter-claim seeking dissolution of marriage on the ground of cruelty and desertion under Section 13(1)(i-a) and (b) of the Hindu Marriage Act, 1955.
4. The Family Court while dismissing the petition for restitution of conjugal rights and granting decree of divorce inter alia held that the respondent-wife stayed in the appellant-husband’s house only for a day, she admitted that she did not have any conversation with anyone and hence any amount of oral evidence adduced by her will not support her plea that she was harassed and driven out of the house; that the story that the appellant- husband made a demand of dowry of Rs.10,00,000/- is false; that by filing false complaint against the appellant-husband and his family, alleging offence under Section 498-A of the IPC in the Metropolitan Magistrate Court, Hyderabad and by filing complaints against the appellant-husband in the High Court where he is working, the respondent-wife caused mental cruelty to the appellant-husband and that reunion was not possible. The Family Court directed the appellant-husband to repay Rs.80,000/- given by the respondent-wife’s father to him with interest at 8% per annum from the date of the marriage till payment.
5. By the impugned judgment the High Court allowed the appeal carried by the respondent-wife against the said judgment and set aside the decree of divorce granted in favour of the appellant-husband. The High Court inter alia observed that the finding of the Family Court that lodging a complaint with the police against the appellant-husband amounts to cruelty is perverse because it is not a ground for divorce under the Hindu Marriage Act, 1955. The High Court further held that the appellant-husband and the respondent-wife did not live together for a long time and, therefore, the question of their treating each other with cruelty does not arise. According to the High Court, the conclusion that the respondent-wife caused mental cruelty to the appellant-husband is based on presumptions and assumptions.
6. Mr. Jayanth Muth Raj, learned counsel for the appellant-husband assailed the conduct of the respondent-wife and submitted that it disentitles her from getting any relief from this Court. Counsel took us through the complaint lodged by the respondent-wife with the Superintendent of Police, Women Protection Cell, Hyderabad, making defamatory allegations against the mother of the appellant-husband and drew our attention to the various legal proceedings initiated by her against the appellant-husband and his family. Counsel submitted that she also lodged complaints with the High Court asking for the removal of the appellant-husband from his job. Counsel submitted that by lodging such false complaints the respondent-wife caused extreme mental cruelty to the appellant-husband. Counsel submitted that the High Court fell into a grave error in observing that because the respondent-wife did not live with the appellant-husband for long she could not have caused mental cruelty to him. Counsel submitted that this observation is erroneous and is contrary to the law laid down by this Court. False and defamatory allegations made in the pleadings can also cause mental cruelty. Counsel submitted that the marriage has irretrievably broken down and, therefore, it is necessary to dissolve it by a decree of divorce. In support of his submissions counsel placed reliance on G.V.N. Kameswara Rao vs. G. Jabilli[1], Parveen Mehta vs. Inderjit Mehta[2], Vijayakumar R. Bhate vs. Neela Vijayakumar Bhate[3], Durga Prasanna Tripathy vs. Arundhati Tripathy[4], Naveen Kohli vs. Neelu Kohli[5] and Samar Ghosh vs. Jaya Ghosh[6].
7. Mr. D. Rama Krishna Reddy, learned counsel for the respondent-wife, on the other hand, submitted that the father of the respondent-wife had given Rs.80,000/- and 15 tolas of gold as dowry to the appellant-husband’s family. However, they demanded additional cash of Rs.10,00,000/-. Because this demand could not be met, the respondent-wife and her family was humiliated and ill-treated. Therefore, the parents of the respondent-wife had to return to their house along with her immediately after marriage. The father of the respondent-wife made efforts to talk to the appellant- husband’s family, but, they did not respond to his efforts. They persisted with their demands and, therefore, the respondent-wife had no alternative but to lodge complaint against them under Section 498-A of the IPC before the Metropolitan Magistrate, Hyderabad. The appellant-husband thereafter gave a false assurance that he will not harass her and, therefore, she withdrew the complaint and went to the matrimonial house. However, the approach of the appellant-husband and his family did not change. She had to therefore renew her complaint. Counsel submitted that only because of the obstinate and uncompromising attitude of the appellant-husband and his family that the respondent-wife had to take recourse to court proceedings. Counsel submitted that the respondent-wife values the matrimonial tie. She wants to lead a happy married life with the appellant-husband. She had, therefore, filed a petition for restitution of conjugal rights which should have been allowed by the Family Court. Counsel submitted that after properly evaluating all the circumstances the High Court has rightly set aside the decree of divorce and granted a decree of restitution of conjugal rights. The High Court’s judgment, therefore, merits no interference.
8. The matrimonial dispute started with a quarrel between the elders of both sides in which initially the appellant-husband and the respondent-wife were not involved. The ego battle of the elders took an ugly turn. Parties were dragged to the court and the inevitable happened. The relations between the two families got strained. With a fond hope that we could bring about a settlement we requested the counsel to talk to the parties and convey our wishes that they should bury the hatchet and start living together. We also tried to counsel them in the court. The respondent-wife appears to be very keen to go back to the matrimonial home and start life afresh, but the appellant-husband is adamant. He conveyed to us through his counsel that by filing repeated false complaints against him and his family the respondent-wife has caused extreme cruelty to them and therefore it will not be possible to take her back. In view of this we have no option but to proceed with the case.
9. The High Court has taken a view that since the appellant-husband and the respondent-wife did not stay together, there is no question of their causing cruelty to each other. The High Court concluded that the conclusion drawn by the Family Court that the respondent-wife caused mental cruelty to the appellant-husband is erroneous. We are unable to agree with the High Court.
10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term ‘cruelty’. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.
11. In Samar Ghosh this Court set out illustrative cases where inference of ‘mental cruelty’ can be drawn. This list is obviously not exhaustive because each case presents it’s own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh. We have reproduced only the instances which are relevant to the present case.
“101. 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:
(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) xxx xxx xxx
(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) xxx xxx xxx
(viii) xxx xxx xxx
(ix) xxx xxx xxx
(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) xxx xxx xxx
(xii) xxx xxx xxx
(xiii) xxx xxx xxx
(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.”
It is pertinent to note that in this case the husband and wife had lived separately for more than sixteen and a half years. This fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. Similar view was taken in Naveen Kohli.
12. In V. Bhagat v. D. Bhagat[7] in the divorce petition filed by the husband the wife filed written statement stating that the husband was suffering from mental hallucination, that his was a morbid mind for which he needs expert psychiatric treatment and that he was suffering from ‘paranoid disorder’. In cross-examination her counsel put several questions to the husband suggesting that several members of his family including his grandfather were lunatics. This court held that these assertions cannot but constitute mental cruelty of such a nature that the husband cannot be asked to live with the wife thereafter. Such pleadings and questions it was held, are bound to cause immense mental pain and anguish to the husband. In Vijaykumar Bhate disgusting accusations of unchastity and indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous to live with her husband. In Naveen Kohli the respondent-wife got an advertisement issued in a national newspaper that her husband was her employee. She got another news item issued cautioning his business associates to avoid dealing with him. This was treated as causing mental cruelty to the husband.
13. In Naveen Kohli the wife had filed several complaints and cases against the husband. This Court viewed her conduct as a conduct causing mental cruelty and observed that the finding of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable.
14. 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.
15. We shall apply the above principles to the present case. Firstly, it is necessary to have a look at the legal proceedings initiated by both sides against each other. The facts on record disclose that after the marriage, due to some dispute which arose between the elders, both sides abused and virtually attacked each other. The respondent-wife was taken by her parents to their house. According to the respondent-wife, her father made efforts to bring about an amicable settlement but the other side did not respond favourably and, therefore, on 4/10/1999 she lodged a complaint with the Superintendent of Police, Women Protection Cell against the appellant-husband and members of his family. In our opinion, this complaint is, to a large extent, responsible for widening the rift between the parties. In this complaint, after alleging ill-treatment and harassment for dowry, it is alleged that mother of the appellant-husband asked the respondent-wife to sleep with the father of the appellant- husband. When she was cross-examined in the Family Court during the hearing of her petition for restitution of conjugal rights the respondent-wife admitted that she had lodged the complaint. PW-2 her mother, in her cross- examination stated that though they had asked her not to lodge the complaint, the respondent-wife lodged it. She told them that she had lodged the complaint because the appellant-husband was not listening to her. Thus, it appears that this complaint was lodged out of frustration and anger and was a reaction to the appellant-husband’s refusal to live with her. It was, perhaps, felt by her that because of the pressure of such a complaint the appellant-husband would take her back to his house. Far from helping the respondent-wife, the complaint appears to have caused irreparable harm to her. It increased the bitterness. Perhaps, the respondent-wife was misguided by someone. But, such evidence is not on record. Even in this court, this complaint appears to us to be a major factor amongst others impeding settlement. Pursuant to the said complaint, Crime No.8/2000 was registered by C.I.D., Hyderabad, in the Metropolitan Magistrate (Mahila Court), Hyderabad against the appellant-husband and his family under Section 498-A of the IPC. It is the respondent-wife’s case that the appellant-husband gave an assurance before the police that he will not harass her. She, therefore, withdrew the complaint. The police then filed a closure report. According to the respondent-wife, the appellant- husband did not abide by the promise made by him and, therefore, she filed a protest petition. The Magistrate Court, Hyderabad, then, took cognizance of the case and renumbered the case as C.C.No.62/2002.
16. In the meantime, the respondent-wife filed O.P.No.88/2001 in the Family Court, Secunderabad, for restitution of conjugal rights. The appellant-husband filed a counter claim for divorce on 27/12/2002. The Family Court dismissed the petition for restitution of conjugal rights and allowed the counter claim for divorce filed by the appellant-husband. The respondent-wife challenged the Family Court judgment in the High Court. On 8/12/2006 the High Court reversed the Family Court’s order and allowed the petition for restitution of conjugal rights. The present appeal is filed by the appellant-husband against the said judgment.
17. According to the respondent-wife, on 17/9/2007 when she, along with her mother, came out of the court after a case filed by her against the appellant-husband was adjourned, the appellant-husband beat her mother and kicked her on her stomach. Both of them received injuries. She, therefore, filed complaint for the offence punishable under Section 324 of the IPC against the appellant-husband (C.C.No. 79/2009). It may be stated here that on 19/10/2009 the appellant-husband was acquitted in this case.
18. On 24/6/2008 the judgment was delivered by Additional Chief Metropolitan Magistrate, Hyderabad in C.C.No. 62/2002. The appellant- husband was convicted under Section 498-A of the IPC and was sentenced to undergo six months simple imprisonment. He and his parents were acquitted of the offences under the Dowry Prohibition Act. His parents were acquitted of the offence under Section 498-A of the IPC. After this judgment the respondent-wife and her parents filed a complaint in the High Court saying that since the appellant-husband was convicted he should be dismissed from service. Similar letters were sent to the High Court by the maternal uncle of the respondent-wife.
19. On 14/7/2008 the appellant-husband filed Criminal Appeal No.186/2008 challenging his conviction under Section 498-A of the IPC before the Metropolitan Sessions Judge. It is pertinent to note that the respondent- wife filed Criminal Appeal No.1219/2008 in the High Court questioning the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. This appeal is pending in the High Court. Not being content with this, the respondent-wife filed Criminal Revision Case No.1560/2008 in the High Court seeking enhancement of punishment awarded to the appellant-husband for offence under Section 498-A of the IPC.
20. According to the appellant-husband on 6/12/2009 the brother of the respondent-wife came to their house and attacked his mother. His mother filed a complaint and the police registered a complaint under Section 354 of the IPC. The brother of the respondent-wife also lodged a complaint and an offence came to be registered. Both the cases are pending.
21. On 29/6/2010 Criminal Appeal No. 186/2010 filed by the appellant- husband challenging his conviction for the offence under Section 498-A of the IPC was allowed by the Metropolitan Sessions Judge and he was acquitted. The respondent-wife has filed criminal appeal in the High Court challenging the said acquittal which is pending.
22. We need to now see the effect of the above events. In our opinion, the first instance of mental cruelty is seen in the scurrilous, vulgar and defamatory statement made by the respondent-wife in her complaint dated 4/10/1999 addressed to the Superintendent of Police, Women Protection Cell. The statement that the mother of the appellant-husband asked her to sleep with his father is bound to anger him. It is his case that this humiliation of his parents caused great anguish to him. He and his family were traumatized by the false and indecent statement made in the complaint. His grievance appears to us to be justified. This complaint is a part of the record. It is a part of the pleadings. That this statement is false is evident from the evidence of the mother of the respondent-wife, which we have already quoted. This statement cannot be explained away by stating that it was made because the respondent-wife was anxious to go back to the appellant-husband. This is not the way to win the husband back. It is well settled that such statements cause mental cruelty. By sending this complaint the respondent-wife has caused mental cruelty to the appellant- husband.
23. Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant-husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent-wife filed a protest petition. The trial court took cognizance of the case against the appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the respondent-wife filed criminal appeal in the High Court challenging the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant-husband for the offence under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent-wife filed criminal appeal in the High Court challenging the said acquittal. During this period respondent-wife and members of her family have also filed complaints in the High Court complaining about the appellant-husband so that he would be removed from the job. The conduct of the respondent- wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant-husband, in filing appeal questioning the acquittal of the appellant-husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant- husband.
24. In our opinion, the High Court wrongly held that because the appellant-husband and the respondent-wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse’s life miserable. This is what has happened in this case.
25. It is also to be noted that the appellant-husband and the respondent- wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, if we refuse to sever the tie, it may lead to mental cruelty.
26. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.
27. In V. Bhagat this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty this Court observed that irretrievable breakdown of marriage is not a ground by itself, but, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted the said circumstance can certainly be borne in mind. In Naveen Kohli, where husband and wife had been living separately for more than 10 years and a large number of criminal proceedings had been initiated by the wife against the husband, this Court observed that the marriage had been wrecked beyond the hope of salvage and 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. It is important to note that in this case this Court made a recommendation to the Union of India that the Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.
28. In the ultimate analysis, we hold that the respondent-wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant-husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent-wife.
29. In Vijay Kumar, it was submitted that if the decree of divorce is set aside, there may be fresh avenues and scope for reconciliation between parties. This court observed that judged in the background of all surrounding circumstances, the claim appeared to be too desolate, merely born out of despair rather than based upon any real, concrete or genuine purpose or aim. In the facts of this case we feel the same.
30. While we are of the opinion that decree of divorce must be granted, we are alive to the plight of the respondent-wife. The appellant-husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent-wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant-husband to give her permanent alimony. In the facts and circumstance of this case, we are of the opinion that the appellant-husband should be directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to the respondent-wife as and by way of permanent alimony. In the result, the impugned judgment is quashed and set aside. The marriage between the appellant-husband - K. Srinivas Rao and the respondent-wife - D.A. Deepa is dissolved by a decree of divorce. The appellant-husband shall pay to the respondent-wife permanent alimony in the sum of Rs.15,00,000/-, in three instalments. The first instalment of Rs.5,00,000/- (Rupees Five Lakhs only) should be paid on 15/03/2013 and the remaining amount of Rs.10,00,000/- (Rupees Ten Lakhs only) should be paid in instalments of Rs.5,00,000/- each after a gap of two months i.e. on 15/05/2013 and 15/07/2013 respectively. Each instalment of Rs.5,00,000/- be paid by a demand draft drawn in favour of the respondent-wife “D.A. Deepa”.
31. Before parting, we wish to touch upon an issue which needs to be discussed in the interest of victims of matrimonial disputes. Though in this case, we have recorded a finding that by her conduct, the respondent- wife has caused mental cruelty to the appellant-husband, we may not be understood, however, to have said that the fault lies only with the respondent-wife. In matrimonial disputes there is hardly any case where one spouse is entirely at fault. But, then, before the dispute assumes alarming proportions, someone must make efforts to make parties see reason. In this case, if at the earliest stage, before the respondent-wife filed the complaint making indecent allegation against her mother-in-law, she were to be counselled by an independent and sensible elder or if the parties were sent to a mediation centre or if they had access to a pre- litigation clinic, perhaps the bitterness would not have escalated. Things would not have come to such a pass if, at the earliest, somebody had mediated between the two. It is possible that the respondent-wife was desperate to save the marriage. Perhaps, in desperation, she lost balance and went on filing complaints. It is possible that she was misguided. Perhaps, the appellant-husband should have forgiven her indiscretion in filing complaints in the larger interest of matrimony. But, the way the respondent-wife approached the problem was wrong. It portrays a vindictive mind. She caused extreme mental cruelty to the appellant-husband. Now the marriage is beyond repair.
32. Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted. Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres. Our experience shows that about 10 to 15% of matrimonial disputes get settled in this Court through various mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation. Section 9 of the Family Courts Act enjoins upon the Family Court to make efforts to settle the matrimonial disputes and in these efforts, Family Courts are assisted by Counsellors. Even if the Counsellors fail in their efforts, the Family Courts should direct the parties to mediation centres, where trained mediators are appointed to mediate between the parties. Being trained in the skill of mediation, they produce good results.
33. The idea of pre-litigation mediation is also catching up. Some mediation centres have, after giving wide publicity, set up “Help Desks” at prominent places including facilitation centres at court complexes to conduct pre-litigation mediation. We are informed that in Delhi Government Mediation and Conciliation Centres, and in Delhi High Court Mediation Centre, several matrimonial disputes are settled. These centres have a good success rate in pre-litigation mediation. If all mediation centres set up pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for pre-litigation settlement, many families will be saved of hardship if, at least, some of them are settled.
34. While purely a civil matrimonial dispute can be amicably settled by a Family Court either by itself or by directing the parties to explore the possibility of settlement through mediation, a complaint under Section 498- A of the IPC presents difficulty because the said offence is not compoundable except in the State of Andhra Pradesh where by a State amendment, it has been made compoundable. Though in Ramgopal & Anr. v. State of Madhya Pradesh & Anr.[8], this Court requested the Law Commission and the Government of India to examine whether offence punishable under Section 498-A of the IPC could be made compoundable, it has not been made compoundable as yet. The courts direct parties to approach mediation centres where offences are compoundable. Offence punishable under Section 498-A being a non-compoundable offence, such a course is not followed in respect thereof. This Court has always adopted a positive approach and encouraged settlement of matrimonial disputes and discouraged their escalation. In this connection, we must refer to the relevant paragraph from G.V. Rao v. L.H.V. Prasad & Ors.[9], where the complaint appeared to be the result of matrimonial dispute, while refusing to interfere with the High Court’s order quashing the complaint, this court made very pertinent observations, which read thus:
“12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different courts.”
In B.S. Joshi & Ors. v. State of Haryana & Anr.[10], after referring to the above observations, this Court stated that the said observations are required to be kept in view by courts while dealing with matrimonial disputes and held that complaint involving offence under Section 498-A of the IPC can be quashed by the High Court in exercise of its powers under Section 482 of the Code if the parties settle their dispute. Even in Gian Singh v. State of Punjab & Anr.[11], this Court expressed that certain offences which overwhelmingly and predominantly bear civil flavour like those arising out of matrimony, particularly relating to dowry, etc. or the family dispute and where the offender and the victim had settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may quash the criminal proceedings if it feels that by not quashing the same, the ends of justice shall be defeated.
35. We, therefore, feel that though offence punishable under Section 498- A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-A of the IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner. The judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law. During mediation, the parties can either decide to part company on mutually agreed terms or they may decide to patch up and stay together. In either case for the settlement to come through, the complaint will have to be quashed. In that event, they can approach the High Court and get the complaint quashed. If however they chose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. Obviously, the High Court will quash the complaint only if after considering all circumstances it finds the settlement to be equitable and genuine. Such a course, in our opinion, will be beneficial to those who genuinely want to accord a quietus to their matrimonial disputes. We would, however, like to clarify that reduction of burden of cases on the courts will, however, be merely an incidental benefit and not the reason for sending the parties for mediation. We recognize ‘mediation’ as an effective method of alternative dispute resolution in matrimonial matters and that is the reason why we want the parties to explore the possibility of settlement through mediation in matrimonial disputes.
36. We, therefore, issue directions, which the courts dealing with the matrimonial matters shall follow:
a) In terms of Section 9 of the Family Courts Act, the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre. In such a case, however, the Family Courts shall set a reasonable time limit for mediation centres to complete the process of mediation because otherwise the resolution of the disputes by the Family Court may get delayed. In a given case, if there is good chance of settlement, the Family Court in its discretion, can always extend the time limit.
b) The criminal courts dealing with the complaint under Section 498-A of the IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A of the IPC is not diluted. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case.
c) All mediation centres shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage.
37. The appeal is disposed of in the aforestated terms.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
FEBRUARY 22, 2013.