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