Sunday, April 28, 2013

cruelty ground for divorce.


cruelty ground for divorce.


“Does the concept of matrimonial cruelty vary in accordance with the religious persuasions of individuals? Is a spouse bound to suffer greater amount of matrimonial cruelty because the spouses belong to a religion which considered marriage as indissoluble? Can the secular constitutional republic recognise and accept the existence of different varieties of matrimonial cruelty - Hindu cruelty, Christian cruelty, Muslim cruelty and secular cruelty? Should not matrimonial cruelty entitling a spouse for divorce yield to a uniform conceptualisation notwithstanding the different semantics employed in different pieces of matrimonial legislations applicable to different religions? Should not the courts take inspiration from Art.44 of the Constitution and attempt to understand the concept of matrimonial cruelty in a uniform manner to ensure that the right to life under Art.21 is made effective and meaningful under the matrimonial roof and to liberate spouses from a marital life.”

IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 99 of 2009()
1. SAMDEEP MOHAN VARGHESE, AGED 35,
... Petitioner
2. ANJANA JOSE, D/O.T.T.JOSE,
Vs
1. ANJANA
... Respondent
For Petitioner :SRI.GEO PAUL
For Respondent :SRI.V.V.ASOKAN
The Hon'ble MR. Justice R.BASANT
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :15/09/2010
O R D E R
R.BASANT &
M.L.JOSEPH FRANCIS, JJ
........................................... MAT.APPEAL. Nos.99 &
152 OF 2009
............................................ DATED THIS THE 15th DAY OF SEPTEMBER, 2010
JUDGMENT
BASANT, J
Does the concept of matrimonial cruelty vary in accordance with the religious persuasions of individuals? Is a spouse bound to suffer greater amount of matrimonial cruelty because the spouses belong to a religion which considered marriage as indissoluble? Can the secular constitutional republic recognise and accept the existence of different varieties of matrimonial cruelty - Hindu cruelty, Christian cruelty, Muslim cruelty and secular cruelty? Should not matrimonial cruelty entitling a spouse for divorce yield to a uniform conceptualisation notwithstanding the different semantics employed in different pieces of matrimonial legislations applicable to different religions? Should not the courts take inspiration from Art.44 of the Constitution and attempt to understand the concept of matrimonial cruelty in a uniform manner to ensure that the right to life under Art.21 is made effective and meaningful under the matrimonial roof and to liberate spouses from a marital life in
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perpetual fear of contumacious cruelty? These questions arise before us in these appeals.
2. These appeals are directed against a common judgment under which three original petitions were disposed of by the Family Court, Ernakulam.
3. The parties are spouses. Their marriage took place in accordance with the Christian religious rites on 20.1.2001. The marriage is admitted. After marriage, the spouses set up residence at Mumbai. They resided together till 14.5.2004. On that day, the respondent/wife returned from the matrimonial home and took up residence along with her sister at Bangalore. She issued Ext.A1 notice demanding divorce and return of properties on 14.12.2004. The same was served on the appellant. There was no response to Ext.A1. Thereafter, the appellant filed a petition for restitution of conjugal rights before the Family Court, Bandra on 30.12.2004. Later, the same was transferred to Family Court, Ernakulam as per order of the Supreme Court and the same was renumbered as O.P.399 of 2006. The wife filed O.P.69 of 2005 before Family Court, Ernakulam claiming divorce on the ground of cruelty and non
 MA 99 & 152 OF 2009 3
consummation of marriage. Wife had further filed O.P.68 of 2005 claiming return of gold ornaments, money etc. The husband/appellant herein in O.P.68 of 2005 had staked a counter claim for return of ornaments, money etc allegedly due to him. All the three original petitions along with the counter claim were taken up for trial together by the court below.
4. The wife examined herself as PW1, her mother as PW2 and her brother in law as PW3. Exts.A1 to A9 were marked on her side. The husband examined himself as RW1 and two friends of his as Rws 2 and 3. Exts.B1 to B10 were marked.
5. The learned Judge of the Family Court, by the impugned common order, came to the conclusion that the wife was entitled for a decree for divorce on the ground of cruelty under Section 10(1)(x) of the Divorce Act. The claim of the wife for divorce under Section 10(1)(vii) on the ground of refusal to consummate the marriage was rejected by the Family Court. O.P.69 of 2005 was thus allowed. Husband's prayer for restitution of conjugal rights in O.P.399 of 2006 was turned down by Family Court. The claim for return of money in O.P.68 of 2005 was allowed in part. The counter claim of the husband was rejected.
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6. Both parties appear to have accepted the decree/order in O.P.68 of 2005 and the counter claim. No appeal is seen preferred against the said part of the impugned order by either spouse. The appellant/husband has preferred these appeals to assail the decree for divorce on the ground of cruelty under Section 10(1)(x) and the rejection of his claim for a decree for restitution of conjugal rights under Section 32 of the Divorce Act.
7. We have heard the learned counsel for the appellant and the respondent. The learned counsel for the appellant assails the impugned order on the following grounds. i) The court below has significantly omitted to record a specific finding on the disputed question of cruelty. ii) The court below should, at any rate, have held that the ground of cruelty under Section 10(1)(x) has not been validly established by the evidence adduced by the wife. iii) The court below ought to have granted a decree for restitution of conjugal rights in favour of the appellant/husband.
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Ground No.1
8. The learned counsel for the appellant contends that the court below had significantly omitted to pointedly consider the question whether the claim for divorce on the ground of cruelty under Section 10(1)(x) has been established by the evidence tendered by the wife. The learned counsel particularly points out the following observations/findings in paragraphs 23 and 24 to contend that the issue had not received the pointed consideration which it deserves. We extract Paragraphs 23 and
24.
"23. On going through the evidence tendered by PW1 and RW1, it is evident that the parties were not so cordial at the time when they were
residing together at Mumbai. There was no
consensus of mind between the petitioner and the respondent. It has come out in evidence that there were frequent quarrels between them. The petitioner has alleged that it was the respondent who subjected her to cruelty. The respondent has stated that the petitioner was more interested in her career than retaining a family relationship. He has also stated that at times, the petitioner acted hysterically as if she has some mental imbalance. The evidence tendered by PW2,
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PW3, RW2 and RW3 will not be of any help to substantiate the contention of cruelty alleged by the petitioner. The answers given by PW1 and RW1 with respect to their private life reveal that there was no healthy interaction between the spouses in their private life. The reason why she was compelled to return to her sister's house at Bangalore has been explained by PW1. According to RW1, the petitioner left his flat at the time when he was on business trip. Even though the respondent has contended that the petitioner behaved like an abnormal person, no medical records were produced to substantiate the same. On evaluation of the evidence tendered by PW1 and RW1 it is revealed that their marital life was not happy and that there was no healthy
interaction between them. It shows that there was no cordial or affectionate relationship between the petitioner and the respondent.
24. Under Section 10(1)(x), in order to obtain a decree of divorce the petitioner has to
substantiate that the respondent subjected
her to cruelty so as to cause reasonable
apprehension in her mind that it will be
harmful or injurious for her to reside along with him. The answers given by PW1 and
RW1 during cross examination reveal that it will be harmful for the petitioner to continue the marital relationship with the respondent. The marital relationship between the petitioner and the respondent has been
broken and it has reached upto a stage that it is not possible to have a peaceful and happy life between them. In such circumstances,
the conclusion that can be arrived at is that the petitioner is entitled to get a decree of
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divorce against the respondent on the ground of cruelty".
(emphasis supplied)
9. We are unable to agree that the above findings do not constitute a sufficient finding required under Section 10(1)(x) of the Divorce Act. The findings recorded above clearly show that the court below had come to a positive conclusion that the perception of the respondent/wife that it will be harmful for her to live with the appellant/husband and continue marital relationship with the appellant has been accepted by the court below. The court below has further held that a decree for divorce against the appellant herein on the ground of cruelty deserves to be granted. Thus, we are unable to accept the contention laboriously advanced by the counsel for the appellant that there is no sufficient or specific finding rendered by the court below to justify a decree for divorce on the ground of cruelty under Section 10(1)(x) of the Divorce Act. The challenge on this ground - on the ground of want of a specific and definite finding on the plea of cruelty, must, in these circumstances, fail.
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Ground No.2:
10. The learned counsel for the appellant alternatively contends that, at any rate, the said finding that the wife is entitled to a decree for divorce on the ground of cruelty under Section 10(1)(x) is not justified. There is no material in support of that conclusion, argues the learned counsel. The learned counsel for the respondent/wife on the contrary, contends that even assuming that specific finding on the alleged acts of physical and mental cruelty have not been rendered by the court below, respondent/wife is entitled before this appellate court to contend that sufficient materials are available in evidence to support the impugned decree by which relief of dissolution on the ground of cruelty has been granted. We are satisfied and it is trite that the relief granted can be attempted to be supported on other grounds by a litigant defending the decree in appeal.
11. That takes us to the all important question as to whether sufficient evidence has been adduced to justify the finding in favour of the wife that appellant/husband is guilty of matrimonial cruelty. The claim for divorce under Section 10(1)
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(vii) has been rejected and it is unnecessary for us to go into the evidence tendered on that aspect. However, as rightly pointed out by the learned counsel for the wife/respondent herein, some of the evidence tendered on that ground will have relevance to the claim of sexual misconduct amounting to cruelty also. To that extent, the evidence tendered in support of the claim for divorce under Section 10(1)(vii) will have to be reckoned as relevant.
12. We shall make a brief reference to the evidence tendered - oral and documentary. As stated earlier, PW1/wife had tendered evidence about the physical, mental and sexual cruelty allegedly heaped on her by her husband, RW1. We have also the evidence of PW2, her mother and the evidence of PW3, her brother in law to afford broad support for the evidence of PW1. Exts.A1 to A9 have been relied on. Ext.A1 is the notice issued by the wife to the husband dated 14.12.2004 after she withdrew from the society of the husband with effect from 14.5.04. That notice Ext.A1 was received and acknowledged under Ext.A2 but the same was not responded to. The counsel for the wife places great emphasis on the conduct of the husband
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not replying to Ext.A1 notice in which all allegations presently raised in this proceedings for divorce have been substantially raised. The counsel argues that it is crucial that the said allegations have not been denied or even responded to. Exts.A3 to A5 relate to proceedings initiated before the Supreme Court for transfer of the petition for restitution of conjugal rights from the Family Court at Bandra to Family Court at Ernakalam. We find no crucial relevance in Exts.A3 to A5. Ext.A6 is the marriage photo album and the parties having accepted the order in O.P.68 of 2005 without challenge, we do not find any relevance for the said exhibit in the surviving disputes between the parties in these appeals. Ext.A7 is copy of an E-mail message sent in the name of the wife to various persons including the friends of PW3, her brother in law. In Ext.A7, disparaging remarks are made about the relationship between PW1 and PW3 and it is the case of PW1 and PW3 that it was the husband/RW1 who resorted to such a misadventure to bring to disrepute his wife PW1 and her brother in law, PW3. This is alleged to be an act of gross mental cruelty. Exts.A8 and A9 relate to the complaint made on the basis of Ext.A7 and result of investigation.
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13. RW1 is the husband, who tendered evidence denying the alleged cruelty. RWs 2 and 3 are close friends of RW1 and they are examined to show that all was fair and rosy in the relationship between PW1 and RW1 when they resided together in Mumbai.
14. A word about appreciation of evidence in this case. Certain broad aspects must be considered before the challenge against appreciation of evidence is considered. Matrimonial cruelty between educated spouses belonging to a higher strata of society cannot evidently be expected to be proved by occular corroboration from independent sources. By its very nature it would be difficult to secure such independent corroborative evidence. The fact that PW1's evidence is not corroborated by independent sources is thus insignificant. The evidence of RW2 and RW3 is again not of any vital significance. Go by the evidence of PW1 or RW1, they had traumatic experiences when they cohabited in Bombay. RWs 2 and 3 appear to be fairly close friends of RW1. Even then their evidence suggests that they did not know or perceive any difficulty in the relationship between spouses. That must explain and convey the irrelevance of their
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evidence. The learned counsel for the appellant then argues that PW1 has not been believed by the court below on her assertions regarding alleged non consummation of marriage and alleged greed and avarice of RW1. She should not have been believed on the other assertions also, contends counsel. This argument cannot also be accepted. That the claim for divorce on the ground of non consummation has not been accepted cannot obviously lead to omnibus rejection of her evidence. Her grievance was that there was no normal sexual relationship and she was compelled to indulge in oral sex - which she reckoned as unnatural. Similarly her evidence about improprieties of RW1 regarding financial matters is not proved to be false. The course adopted by RW1 of not returning deposit receipts which were converted to joint names inspite of A2 demand cannot be said to be irrelevant. Falsus in uno, falsus in omnibus is not a maxim accepted in the law relating to appreciation of oral evidence in India.
15. The fact that Ext.A2 notice in which allegations were raised by the wife immediately after separate residence commenced was not responded to or denied is certainly relevant while appreciating the
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assertions made on oath. Satisfactory and convincing reasons are not offered to explain the meek silence after receipt of Ext.A2. That circumstance is certainly a relevant input while undertaking the exercise of appreciation of evidence in this case.
16. We shall now look at the nature of the cruelty sought to be established on the basis of which the decree for divorce was claimed and granted. First of all, it is alleged that the husband was guilty of physical cruelty against wife. We must remind ourselves that the physical cruelty complained of is cruelty behind the closed doors of the matrimonial home. We say so because it would be puerile and artificial to expect independent oral evidence to corroborate such matrimonial cruelty. Wife complains of matrimonial cruelty. According to her, she used to be assaulted with his belt by her husband. She did not plead or tender evidence about such physical cruelty with reference to date and time. But, she asserted that she was subjected to such physical cruelty. She had of course not complained to any Doctor though she stated that she had suffered injuries and was attended to by a Doctor. She did not reveal to the Doctor that she had suffered any such injury at the hands of her husband as
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they were residing together in matrimony at the relevant time. Absence of evidence of the medical expert or admitted absence of a complaint to the medical expert or the police, according to us, would be too meagre, myopic and puerile reasons to discard the evidence about matrimonial physical cruelty.
17. In this context, it will be relevant to note that the husband himself had stated in his counter statement, whatever be the reasons, that the wife used to make life miserable for him and she used to run out of the house to make unnecessary hue and cry. The evidence of the wife about the physical cruelty has to be read and understood in the light of what the husband himself speaks and asserts about the events and nature of relationship between them. According to the wife, to silence her when she was assaulted, cloth used to be stuck into her mouth. We must also note that the spouses are highly qualified educationally - both Engineering Graduates. They both do come from a highly respectable family background admittedly. The fact that the wife did not promptly complain to her mother and relatives or to the Law Enforcement Authorities is according to us too unsatisfactory a reason to throw over board lock, stock
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and barrel her evidence about physical cruelty. She has a specific version that she had complained to the mother of the husband about such improper behaviour of the husband. She asserted so in evidence. The mother of the husband was not examined by the husband as a witness to disprove that assertion. The evidence of Pws 1 and 2 indicate that PW1 had made grievance to her mother about her misfortunes in matrimony.
18. Photographs taken when the spouses were living together at Mumbai (Ext.B10 series) are relied on by the appellant in an attempt to knock the bottom out of the theory that there was any such cruelty. The wife admitted that notwithstanding the unpleasantness in the matrimony, she used to put up a brave face in front of others and did not reveal to all and sundry the misfortunes of her matrimonial life. Ext.B10 series really show that the spouses, on the occasions when the photographs were taken (specific time and period cannot be ascertained), were not indulging in any act of cruelty against each other. But according to us, that would be far from stating that there was no cruelty whatsoever between them during the relevant period. Much is attempted to be made out of the
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statement of the wife that she used to act in front of others and when photographs were taken with an intention not to reveal her matrimonial disappointment and sufferings. We find absolutely nothing unnatural in such statement of a wife.
19. The million dollar question to be decided is whether the version of the wife about physical cruelty can be accepted or not. The statement of the husband that she used to behave in a indifferent manner, cry and run out of the house in desperation is of course a broad circumstance supporting the oral evidence tendered by the wife about the cruelty meted out to her inside the matrimonial home. Of course, the husband has a case that it was disappointment and frustration in official career/inability to secure an employment in a Multi National Company that prompted the wife to indulge in such conduct. It is also relevant to note that there was no other reason for the wife to stay away from the husband except alleged matrimonial cruelty inflicted on her. He was young. He was well employed. He was leading a fairly luxurious life. Still she chose not to continue to reside with him. A court is expected to adopt the standards of a prudent person while appreciating evidence about matrimonial cruelty
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also. So reckoned, we are of the view that evidence, of physical cruelty emanating from the husband towards the wife, spoken to by PW1 - supported broadly by circumstances, can safely be accepted.
20. There is a contention that husband was greedy and used to demand money. Pws 1 and 2 have tendered evidence on this aspect. Husband denies this allegation. According to him, he had not touched the amounts which the wife brought to the matrimonial home. Reliance is placed on Exts.B2 and B3 series to deter the contention that husband was greedy and had taken the money brought by the wife. We have evidence from Ext.B3 series to show that separate fixed deposit in the name of the wife had been converted to the joint names of the husband and wife. That is the admitted version. Except the statements of PW1 and PW2, there is nothing tangible to establish the alleged greed of the husband or his alleged dissatisfaction about the money brought by the wife to the matrimonial home after marriage. Of course, we see that after some of the deposits in the name of the wife matured, husband had got them renewed in the joint names. Of course, he has a contention raised without
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specific details that he had also added some money to the deposits when they were so renewed in the joint names of both of them. Some indication about the attitude of the husband in financial matters is available from his conduct of not returning the FD receipts B2 and B3 series to PW1 directly in response to Ext.A1 series or after appearance in court. The fact that he did stake a counter claim in O.P.68 of 2005 against his wife detracts against his attempt now to paint himself white on that aspect. Even after commencement of litigation, he did not return the deposits belonging to her directly, he chose only to produce the same before Court as an exhibit. At any rate, we feel that though PW1 and PW2 had spoken about such a grievance about the greed of the husband for money and his complaint about inadequacy of wealth brought by the wife to the matrimonial home, there is no sufficient material to anchor a finding on that dimension of matrimonial cruelty. We do not, in these circumstances, propose to found any finding against the husband on the basis of such alleged greed pleaded and attempted to be established by the wife.


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21. The wife complains of cruelty in the bed room. According to her, the husband was not interested in normal sex. She went to the extent of complaining that marriage had not been consummated. She stated specifically that she was forced to indulge in unnatural sex. She explained the same (her concept of unnatural sex) as insistence of the husband on oral sex to which she was reluctant and unwilling. It is her case that her reluctance invited further acts of cruelty on the part of the husband. In Ext.A1, as also in the petition for divorce, these allegations are raised specifically. As stated earlier, Ext.A1 did not evoke any response at all. In the counter statement filed to the petition for divorce, this aspect was not specifically traversed and denied by the respondent. However at the stage of evidence, we find the husband taking the stand that almost invariably, on every occasion, sexual interaction was attempted with oral sexual activity. At the stage of evidence, he hastened to add that it was so not at his instance but only because the wife insisted on the same. This plea surprisingly is not seen raised in the counter statement filed in the divorce petition. The evidence of the husband even suggests that he did not reckon
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such sexual activity to be unnatural at all. It is in this context that we have to appreciate the evidence tendered by PW1 that unwillingly she was invariably compelled to indulge in oral sexual activity at the instance of the appellant. It would certainly have been embarrassing for the wife to disclose such details until the last straw on the camel's back prompted her to take the decision to separate. Absence of allegations to this effect earlier (ie. before separation) cannot in any way detract against the acceptability of such allegations raised by the wife after 14.5.2004, the date on which she decided to separate and went away from the matrimonial home to join her sister and brother in law at Bangalore. Here again, standards of a reasonably prudent person have to be adopted by the court. The version of the wife raised in Ext.A1 and the petition for divorce, the absence of specific denial of those assertions, the evidence of the wife as PW1 and the stand taken by husband in the course of trial compellingly persuade us to accept the grievance of the wife that she was compelled to indulge in unnatural sexual activity at the instance of the husband to which she was unwilling and that her unwillingness invited the wrath of the
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husband. Matrimonial cruelty in its sexual dimension is established.
22. The learned counsel for the wife contends that even if we go by the case of the appellant, he was guilty of matrimonial cruelty to his wife in that he did not recognise, accept and respect the personality and preferences of the wife. It is the very case of the husband that the wife had aspirations of an active and energetic career. In fact we see the appellant accusing the wife of entertaining aggressive career aspirations. She was herself an Engineer. Her husband was also an Engineer. Her husband had secured admission to Government Engineering College, by getting into the merit list whereas the wife was compelled to pursue her education elsewhere by securing a seat by payment of money, obviously. The husband was well employed. Wife could not secure such good employment. This admittedly caused frustration in the wife. She also wanted to secure a good job for herself, consistent with her qualification - evidently consistent with the position of her husband. It is the very case of the appellant that the wife was over involved with her alleged fascinations and infatuations for a career as an
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Engineer in a Multi National Company. She tried to secure employment in one of the MNCs. It is the case of the husband that he also attempted to encourage her to secure such an employment. It is his case that she became frustrated and disappointed and started behaving like a possessed woman when she met with disappointment in her attempt to secure good employment. It is his very case that he had taken steps to ensure that she gets a good employment. He had taken steps to help her to secure employment with an MNC, viz Siemens. She had secured employment also there. At that stage, husband took the stand that she should not join Siemens. Wife was very disappointed and she stated that if she were not permitted to do the same, she would go back to Bangalore. Still admittedly the husband did not permit her to take up that employment. Her desire in life did not fructify because of the attitude taken by the husband. She was admittedly refused permission to join Siemens. It is the case of the husband that it is that which prompted her to leave him in the lurch and return to Bangalore. The learned counsel for the wife points out that this admitted conduct of the husband not permitting his wife to achieve her
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life's desire (even going by his own averments) of securing employment with an MNC is certainly an act of matrimonial cruelty which is actionable. He, fully aware of the aspirations and ambitions of his wife admittedly pretended to help her to realise her life's ambition but denied her opportunity to take up that employment after she secured that job after laborious preparation and endeavour. We need only mention now that on the showing of the husband himself his conduct of refusing permission to his wife to join employment with Siemens which was secured by her with great difficulty with his blessings initially amounts to a matrimonial impropriety. As to whether that would amount to cruelty or not we shall delve deeper at a later stage.
23. The wife made a further grievance. According to her, Ext.A7 E-mail was sent in the name of the wife to various persons including PW3 by none other than RW1, her husband. The contents of Ext.A7 is relied on. We have been taken through the contents of Ext.A7. The learned counsel for the appellant also unambiguously accepts that if Ext.A7 were sent by a husband in the name of his wife, that would certainly amount to
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matrimonial cruelty justifying the grant of a decree for divorce on the ground of cruelty. As observed earlier, the spouses started separate residence on 14.5.2004. Wife returned to her sister and brother in law at Bangalore. She secured an employment there with their help. She was so residing at Bangalore and it was at this juncture that Ext.A7 communication was received through E-mail by PW3 from the address of PW1. It is unnecessary for us to refer to the details in Ext.A7. It does not require the wisdom of Solomon to conclude that it was not sent by PW1. She had unambiguously denied the same. But the answer to this question as to who must have sent Ext.A7, remains in the realm of probabilities and inferences. The contents of Ext.A7 as stated earlier must clearly show that it was not PW1 who sent it. We accept her evidence on that point without any shred of doubt. It is also crucial to note that in Ext.A7, there is no reference whatsoever to the husband RW1. One cannot lose sight of the fact that the tenor of Ext.A7 is one of the outpouring of the disappointments and grievances of PW1. It's contents shows that PW3 had attempted to abuse her sexually and she had to resist the same. The other evidence
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available indicates that RW1 had a grievance that PW1 was too friendly with her brother in law PW3 though he had refrained from making any insinuation or allegations of illegitimate intimacy. But a reading of the evidence of RW1 shows that he had grievance about the relationship between PW1 and PW3. PW3 was influencing the decisions of PW1, RW1 had complained. It is in this context that one has to see the contents of Ext.A7. Most significantly in Ext.A7, there is not a whisper about the circumstances under which PW1 left RW1 and came back from Mumbai to Bangalore. A finding beyond reasonable doubt as in a criminal case that RW1 was responsible for Ext.A7 may not be possible but the totality of circumstances convincingly show that the conclusion and grievance of PW1 that it was RW1 who created Ext.A7 is very reasonable and acceptable. The manner in which RW1 faced cross examination about Ext.A7 is also interesting. He blows hot and cold as to when he came to know of the contents of Ext.A7. In one breath he would say that he came to know of it earlier vaguely and in the other, he asserts that he came to know of it only after commencement of the proceedings. We have no doubt that
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employment of better and more scientific means might have made it possible to ascertain the origin of Ext.A7 with greater certainty. The fact remains that all available indications point to the involvement or contumacious responsibility of RW1 in the origin of Ext.A7 E-mail communication, which is per se derogatory and defamatory against PW1. No husband interested in the continuance of the marital tie should/could have made such insinuations. We are satisfied that any prudent person will be absolutely justified in sailing to the safe conclusion that RW1 was responsible for the origin of Ext.A7. The totality of circumstances, including the crucial complete omission to refer to RW1 in Ext.A7 compellingly points to correctness and convincing probability of that conclusion. The fanciful theory that PW1 must herself have been responsible for such a communication in an attempt to create evidence does not deserve acceptance at all.
24. Having discussed the facts as above, the short question is whether these findings of fact can justify a decree for divorce under Section 10(1)(x) of the Divorce Act. The learned counsel for the appellant submits that in order to answer the
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description of cruelty under Section 10(1)(x), a much higher degree of cruelty has to be established. According to him, natural wear and tear of matrimony will have to be excluded.
25. The learned counsel for the appellant raises a contention that cruelty under the matrimonial law cannot be reckoned as identical for all religious denominations. The counsel advances a curious argument that so far as a christian couple are concerned, much higher decree of cruelty has to be established to justify a decree of divorce under Section 10(1)(x). The counsel points out that cruelty by itself as a ground for divorce was not recognised under the Divorce Act till Act 51 of 2001 which came into effect from 3.10.2001. The counsel hence argues that such cruelty as would justify a decree for dissolution of a christian marriage has not been established.
26. We shall straight away refer to Section 10(1)(x) of the Divorce Act which reads as follows:-
"10. Grounds for dissolution of marriage -(1) Any marriage solemnized, whether before or
after the commencement of the Indian
Divorce (Amendment)Act, 2001, may, on a
petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of
the marriage, the respondent-


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(i)xxx
x)has treated the petitioner with such
cruelty as to cause a reasonable apprehension in the mind of the petitioner
that it would be harmful or injurious for the petitioner to live with the respondent". (rest of the Section except (x)omitted as not essential for our purpose).
27. The learned counsel for the appellant points out to us the provisions for dissolution of marriage on the ground of cruelty under other pieces of matrimonial law applicable to different communities. The counsel first of all points out the provisions in Section 13(1)(ia) of the Hindu Marriage Act which reads as follows:-
"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)xxxxx
(ia) has, after the solemnisation of the
marriage, treated the petitioner with cruelty".
28. The counsel then points out that provisions of the Special Marriage Act dealing with divorce on the ground of
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cruelty. Section 27(1)(d) of Special Marriage Act deals with cruelty. We extract the same below:-
" Divorce - (1) Subject to the provisions of this Act and to the rules made
thereunder, a petition for divorce may be
presented to the district court either by
the husband or the wife on the ground
that the respondent -
(a)xxxxx
(b)xxxxx
(c)xxxxx
(d) has since the solemnization of the
marriage treated the petitioner with
cruelty; ".
(irrelevant portions omitted)
29. The learned counsel then points out Section 2(viii) of the Dissolution of Muslim Marriage Act which we extract below:- "Ground for decree for dissolution of marriage - A woman married under Muslim
law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-
(i)xxxxxxxx
ii)xxxxxxx
iii)xxxxxxx
iv)xxxxxxx
v)xxxxxx
vi)xxxxxxx
vii)xxxxx
viii) that the husband treats her with cruelty, that is to say,-


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(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-
treatment, or
b)associates with women of evil repute or
leads an infamous life, or
c)attempts to force her to lead an immoral
life, or
d)disposes of her property or prevents her
exercising her legal rights over it, or
e)obstructs her in the observance of her
religious profession or practice, or
f) if he has more wives than one, does not
treat her equitably in accordance with the
injunctions of the Quran".
30. The sum and substance of the argument of the learned counsel boils down to this. The spouses belonging to different communities are entitled to indulge in different standards of cruelty against spouses without the risk of a decree for divorce. Some of them are entitled to indulge in more cruelty than those belonging to other religions. The concept of indissolubility of marriage in the Christian religion is such that matrimonial cruelty which would have entitled a woman belonging to other religions for divorce may not entitle a Christian wife to claim divorce on that ground. She must establish gross variety of
 MA 99 & 152 OF 2009 31
matrimonial cruelty.
31. We are afraid this contention cannot be accepted. The nature of cruelty which would entitle a spouse in matrimony for divorce must certainly be identical in all religions - at least at the present juncture in Indian society. Law cannot recognise different varieties of cruelty as hindu cruelty, muslim cruelty, christian cruelty or secular cruelty to justify a decree for divorce. As early as in Itwari v. Asghari [AIR 1960 ALL. 684], the Allahabad High Court had observed that such different varieties of matrimonial cruelty cannot be recognized. We have no hesitation to agree that the mere fact that Hindu Marriage Act and the Special Marriage Act refer to cruelty without any rider or explanation or the fact that the Divorce Act and the Dissolution of Muslim Marriage Act give indication of the nature of matrimonial cruelty that ought to be established, cannot justify the conclusion that the nature of matrimonial cruelty which would entitle the spouses for divorce is different under different personal laws. It would be absolutely safe to draw inspiration from Article 44 of the Constitution also to jump to the conclusion that nature of cruelty justifying a decree for divorce
 MA 99 & 152 OF 2009 32
cannot be different under different personal laws. To our mind, it appears that matrimonial cruelty must have a uniform definition or conceptualisation to justify the founding of a decree for divorce. Under Section 10(1)(x), the cruelty must be such as to cause reasonable apprehension in the mind of the petitioner, spouse that it would be harmful or injurious for the petitioner to live with the respondent. The expression harmful or injurious cannot be limited to physical harm or injury. Anything that would hinder the ability of the spouse to blossom into his/her fullness and to enjoy life in matrimony must be held to fall within the sweep of Section 10(1)(x) of the Divorce Act. Cruelty which is not defined in Section 13(1)(1a) of the Hindu Marriage Act and Section 27(1) of the Special Marriage Act and cruelty which is explained in Section 2(viii) of the Dissolution of Muslim Marriage Act and Section 10(1)(x) of the Divorce Act must all take inspiration from such understanding of matrimonial cruelty.
32. We may straight away refer to the decision in Naveen Kohli V. Neelu Kohli ( AIR 2006 SC 1675) where the three judge bench of the Supreme Court was called upon to consider
 MA 99 & 152 OF 2009 33
the sweep of matrimonial cruelty. Of course they were dealing with undefined matrimonial cruelty under Section 13(1)(1a) of the Hindu Marriage Act. In paragraph 64 of the said decision, their lordships referred to an earlier three bench decision of the Supreme Court in Jayachandran V. Aneel Kumar [2005(2) SCC 22] which understood and accepted matrimonial cruelty as a ground for dissolution of marriage as such "wilful and unjustifiable conduct of such character as to cause danger to life, limb, health and body or mentally or as to give rise to a reasonable apprehension of such danger". Paragraphs 66 to 68 of the said judgment Naveen Kohli (supra) appear to be crucial and vital to us and we extract the same below:- "66. 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,


 MA 99 & 152 OF 2009 34
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
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.
67. 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
phychological 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


 MA 99 & 152 OF 2009 35
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.
68. 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 hypersensitive 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".
33. All courts called upon to consider the plea for a decree for divorce on the ground of matrimonial cruelty under
 MA 99 & 152 OF 2009 36
any of the enactments referred above must reckon the above observations as beacon lights to ascertain the contours of matrimonial cruelty. To live without the threat or risk of matrimonial cruelty must be reckoned as a Constitutional fundamental right guaranteed under Article 21 of the Constitution. That inalienable human right must ideally be available to all human beings existing on the planet today. More so in a secular socialist Constitutional republic like ours which guarantees right to life. The right to live without matrimonial cruelty in the domestic environment in a secular republic cannot obviously depend on the religious moorings of a citizen. After all religion, more often than not, is not a matter of choice of the citizen. It is a fait accompli with no real option or choice for the individual. It is an accident of birth. If nature or the Intelligent Designer had ordained that you must be born not in this house but in the neighbour's, you would have belonged to another religion. How many citizens in this country have known, studied and understood his own religion? How many have cared to know, study and understand the neighbour's religion ? How many have exercised an informed choice about religion ? The
 MA 99 & 152 OF 2009 37
point is only that liability to suffer matrimonial cruelty in a secular republic cannot at all depend on the religious denomination of the citizen. Notwithstanding the absence of a uniform legislation relating to marriage and matrimonial cruelty despite the mandate/hope of Article 44, judges are bound to interpret the concept of matrimonial cruelty in different personal laws in such a manner as to usher in identical standards of matrimonial cruelty for all citizens. It must shock the judicial conscience that a citizen belonging to any religious denomination can/ought to be compelled to endure greater or graver matrimonial cruelty merely on the basis of his religious faith. That would be negation of the right to equality and right to life guaranteed by the Constitution. We discard the theory that the concept of matrimonial cruelty to entitle a spouse for divorce can be dissimilar and different for persons belonging to different religious faiths merely because different words are used in the relevant personal law statutes. The concept of matrimonial cruelty recognised and accepted in Naveen Kohil must inform the Courts while ascertaining contumaciousness in matrimony whatever the religious faith of the parties. Wherever
 MA 99 & 152 OF 2009 38
the law offers elbow room to the Courts, they must resort to the exercise of interpretation to navigate the Indian polity to the promised shores under Article 44 of the Constitution.
34. We have already gone through the evidence in the light of the pleadings. We have come to the conclusion that the acts of physical cruelty, the acts of sexual cruelty, the acts of mental cruelty (as reflected in the despatch of Ext.A7 e-mail communication and denial of opportunity to the respondent to work in an MNC) have all been established. The short question is whether these acts on the part of the appellant would constitute matrimonial cruelty of the contumacious variety justifying a decree for divorce under Section 10(1)(x) of the Divorce Act.
35. We have no hesitation to agree that the acts complained of and established clearly constitute acts which cause a reasonable apprehension in the mind of the wife that it would be harmful and injurious for her to live with the respondent. The petitioning spouse/wife cannot be reasonably expected to live with the appellant in the light of the acts of cruelty proved.


 MA 99 & 152 OF 2009 39
36. We do also note that the spouses have not been able to resume cohabitation after they started separate residence on 14.05.2004. A period of more than 6 years has elapsed. All efforts made before the trial court and the appellate court to persuade the parties to live together have failed. We do not find it difficult to conclude that the marriage has irretrievably broken down. Our efforts to persuade the parties to honourably settle their disputes either by reuniting or by parting as friends have not succeeded. The irretrievable break down of marriage, it is well established now, cannot be a ground in itself for dissolution of marriage under the Divorce Act unless the parties agree to apply for divorce by mutual consent. The wife expressed her willingness to do so, but the appellant/husband was unwilling to accept separation. It is not as though there has been no irretrievable break down of marriage. An anxious perusal of the counter statement filed by the husband reveals the predicament which he allegedly faced while the matrimony was subsisting. Going by the version of the appellant/husband or by the version of the respondent/wife, it was a tumultuous and traumatic marital life. A reading of the counter statement filed by the
 MA 99 & 152 OF 2009 40
husband in the divorce petition reveals clearly that even according to the husband, it was not a happy and harmonious married life. It was trauma and suffering that this matrimony brought to both of them going by the versions of both. We fail to understand why the husband does not agree for a harmonious and healthy separation. Mental cruelty is not proved even if the evidence is accepted, it is urged. We have already held that it has been established satisfactorily that the husband must have been responsible for publications of Ext.A7. That finding of fact must necessarily justify the finding on mental cruelty.
37. The learned counsel for the appellant/husband contends that in not granting permission to his wife to take up employment in an MNC (Seimens), the respondent is not guilty of any matrimonial cruelty. He did not permit her to take up employment in that company only in her own interest. She would have been obliged to travel long distance every day, if she were to take such employment. That would have upset their plans of raising a family. It was the compassionate husband concerned in the welfare of his wife who in her interest wanted her not to take up such an employment. There is no question of
 MA 99 & 152 OF 2009 41
matrimonial mental cruelty on this aspect, contends the counsel.
38. We look at the facts. The wife badly wanted to take up employment with an MNC. That was her life's ambition. She became cranky and unreasonable when she could not achieve this life's ambition of hers. According to the husband, she wanted raising a family also to be postponed till she gets a respectable employment consistent with the employment of her husband who was equally qualified. The husband helped her to apply for such an employment. He helped her to acquire the requisite competence. After all this and after putting in great efforts, she secured employment. It was then that the husband adamantly refused her permission to join such employment.
39. No husband living in the present times can claim an anachronistic prerogative to finally rule on the career ambitions of his wife. In matrimony, there must be partnership, affection, caring and sharing. No privilege of the ruler over the ruled can be claimed by the husband over the wife. More so, in a situation like the instant one where the husband really perceived and encouraged the career ambitions of his wife. We are unable to agree that the invocation of the assumed anachronistic
 MA 99 & 152 OF 2009 42
prerogative of the husband to rule on the career ambitions of his wife to deny her of the opportunity to achieve and accomplish her life's ambitions in respect of her employment, does not amount to matrimonial mental cruelty.
40. Be that as it may, the point that we have to consider now is the submission urged that there has been irretrievable break down of marriage. As held in Naveen Kohli's case (supra), the crucial question is whether the petitioning spouse can be reasonably expected to live with the other spouse. If in her perception such continued living would be harmful and injurious to her and such perception of hers is justified by the matters available on record, she is certainly entitled for a decree for divorce under Section 10(1)(x) of the Divorce Act. It is evident that because of the acts alleged, which appear to us to be grave and weighty, the spouses have not been able to live together after their separation on 14.05.2004. This separation for the past 6 years and the inability of the parties to resume cohabitation must certainly be attributed to the events that preceded 14.05.2004. Those acts have made it impossible for the parties to live together as spouses. Those acts we have
 MA 99 & 152 OF 2009 43
already found do amount to cruelty. The fact of irretrievable break down of marriage, though not a ground in itself to order divorce, convinces us that, incidents prior to 14.05.2004 have made it impossible for the petitioning spouse/wife to live with the appellant/husband. To that extent the test in Naveen Kohli's case (supra) is answered clearly in favour of matrimonial cruelty.
41. The above discussions lead us to the conclusion that the finding of the court below that the respondent/wife is entitled for a decree for divorce on the ground of matrimonial cruelty under Section 10(1)(x) of the Divorce Act is absolutely justified and the same does not warrant any interference. The challenge on this ground must hence fail.
Ground No.3
42. The court below had found that the husband is not entitled to a decree for restitution of conjugal rights. Any ground which is sufficient to justify a decree for divorce is certainly sufficient to deny the relief of restitution of conjugal rights. We have already found on ground No.2 that the wife is entitled for a decree for divorce under Section 10(1)(x) of the
 MA 99 & 152 OF 2009 44
Divorce Act. Consequently it has to be held that the rejection of the claim for restitution of conjugal rights is also absolutely justified. The challenge raised on ground No.3 fails.
43. The learned counsel for the wife has filed I.A.No.2292 of 2010. Notwithstanding the inaccuracies and errors in the affidavit filed in support of I.A.No.2292 of 2010, it is submitted that the short prayer therein is that Ext.B2 series (2 deposit receipts) and Ext.B3 series (3 deposit receipts) may be ordered to be released to the petitioner/respondent. The learned counsel for the respondent/wife points out that the operative portion of the decree in O.P.68 of 2005 specifically directs return of the amounts under Exts.B2 and B3 series. We extract the operative portion of the order in O.P.68 of 2005 below: "In the result, O.P.68/2005 is decreed in part; that the respondent is directed to pay the petitioner the amount covered by Ext.B2 series FD receipts and the amount as per the three FD receipts of the South Indian bank mentioned in the petition together with the interest accrued thereon from the date of deposit till payment."
44. The learned counsel for the respondent/wife submits that inasmuch as Exts.B2 and B3 series have been filed as documents in the joint trial, the respondent/wife was not able to
 MA 99 & 152 OF 2009 45
request that they be released to her earlier. In the light of the specific directions, it is prayed that Exts.B2 and B3 series may be ordered to be released to the respondent/wife with specific directions to the bank concerned to renew the deposit if necessary and release the proceeds to the respondent.
45. This application is opposed by the learned counsel for the appellant. The learned counsel for the appellant submits that though he has no objection against the release of Ext.B2 series, he has objections against the release of Ext.B3 series. The learned counsel for the appellant submits that actually Ext.B3 series are not F.D receipts which belong exclusively to the wife. According to him, 3 deposit receipts in the name of the respondent/wife issued by the South Indian Bank were there at the time of marriage. When those deposits matured, the appellant allegedly invested some of his amounts also and got the 3 deposit receipts which are now marked as Ext.B3 series. Hence the counsel argues that not the entire amount covered by Ext.B3 series, but only a portion thereof is liable to be released to the respondent.
46. This contention does not appeal to us at all. We have
 MA 99 & 152 OF 2009 46
extracted the operative portion above. It is very evident that the direction covers the entire amounts covered by Ext.B3 series. In these circumstances, in the absence of an appeal by the appellant against the decision in O.P.No.68 of 2005, he is not entitled to contend that the entire amount covered by these 3 F.D receipts cannot be released to the respondent/wife.
47. The learned counsel for the appellant raises a further plea founded on technicality that the respondent/wife also having not preferred any appeal against the order in O.P.68 of 2005, no such directions relating to execution of the order in the O.P.68 of 2005 is liable to be passed in this judgment. That technical contention though impressive at the first blush, cannot stand closer scrutiny because what the respondent now requests is the release of Exts.B2 and B3 series which remain on the file because they are marked in the joint trial of 3 petitions, appeals from 2 of which are being dealt with by us in this judgment. In fact, the direction sought for is only regarding release of a document marked in the matter relating to the appeal that we are dealing with. We are hence satisfied that I.A.No.2292 of 2010 can be allowed.


 MA 99 & 152 OF 2009 47
48. In the result:
a) These appeals are dismissed;
b) The impugned common order is upheld;
c) I.A.No.2292 of 2010 is allowed. Exts.B2 and B3 series, which are marked in the impugned judgment shall forthwith be released by the Registry to the respondent/wife, the petitioner in this I.A. The Registry shall forthwith hand over the same to the respondent/wife (after substituting certified copies in their place for further reference if necessary. There shall be a direction to the Banks concerned - Federal Bank and South Indian Bank to renew the deposits on the instructions of the respondent in accordance with the rules of the bank and on maturity to release the entire amounts covered by those deposit receipts to the respondent/wife, ie. the petitioner in I.A.No.2292 of 2010.
R.BASANT
JUDGE
M.L.JOSEPH FRANCIS
JUDGE

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.
##############################################################
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
342
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
343
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
344
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
347
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
348
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
350
"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