Divorce on grounds of cruelty allegation for adultery by wife.

 Prior to the 1976 amendment to the Hindu Marriage Act 1955, cruelty was not a ground for grant of divorce. It was only a ground for judicial separation under Section 10 thereto. However, with the amendment in the year 1976, cruelty was incorporated as a ground for dissolution of the Hindu Marriage. Simultaneously, the words “as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to the petitioner to live with the other party” has been deleted. The statute no longer requires that proof. In a matrimonial dispute, the same set of facts may lead to different conclusions because the interpretation would depend upon the context of N.G. Dastane(Dr) .v S. Dastane (1975)2 SCC 326 Manisha Tyagi v Deepak Kumar (2010)4 SCC 339 the parties and the complexion of the case. The Courts are not to search for a standard in life to determine cruelty in a complaint of cruel treatment by one spouse against the other spouse or his/her relatives. A set of facts stigmatized as cruelty in one case is so in another case. Cruelty may allegedly depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their cultural orientation and the human values in which they are imbued.

The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health 9 Vijaykumar Ramchandra Bhat v Neela Vijaykumar Bhate (2003)6 SCC 334 of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they 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 for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.”

—————————————————————————————————————————————–

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 08.05.2014

Pronounced on: 21.08.2014

+      FAO NO.295/2000, CMs. 1065-67/2000, 740/2001, 7490/2006,

4499/2009 & 20065/2010

MRS. ANIL SINGH                            ….. Appellant

Through:        Mr. R.K. Gupta with  Singh, Advs.

versus

  1. NARENDER SINGH           ….. Through:          Mr. Rajiv Bahl, Advocate

CORAM:

HON’BLE MR. JUSTICE NAJMI WAZIRI

  1. JUSTICE NAJMI WAZIRI
  2. The present appeal challenges the judgment and decree dated 7.2.2000 of the Additional District Judge (“Trial Court”) whereby the respondent’s (“husband”) petition for dissolution of marriage against the appellant ( “wife”) under sections 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act ( the ” Act”) was allowed and the marriage was accordingly dissolved.
  3. The facts leading to the present appeal are that the parties got married on 16.10.1988, a son viz. Master Amit was born to them in 1991. They lived in their matrimonial house, which was allotted to the husband by virtue of his being the Chief Medical Officer, CGHS, Delhi. The wife is employed with the National Airport Authority. Presently only the wife and their son live in the matrimonial house. It is stated that the parties could not live together after 5.5.1992. These facts remain uncontroverted.
  4. It is the case of the husband that the wife treated him and his family members with repeated cruelty and failed to perform her duties as a wife, hence dissolution of the marriage was sought. The attempts to reconciliation failed. The husband alleged that one day the wife’s behaviour became unbearable as a result of which he left the matrimonial house but only for that day. When he tried re-entering the house, the wife refused to let him in. She also did not allow the husband to meet or spend any time with their son. In reply, the wife denied all these allegations. She alleged that it was the husband who abandoned her alongwith their son, without assigning any reason therefor and further that the husband alongwith his family members was cruel towards her.
  5. The Trial Court recorded in detail the various acts and instances of cruelty committed by the wife against the husband and his family; of the several attempts at reconciliation which failed and that the wife withdrew herself from the company of her husband and his family. It was also noted that the wife had filed a criminal complaint with the CAW Cell, which according to the husband, was only to harass him and his family. In her Written Statement (WS), the wife, while denying the allegations of desertion and cruelty, submitted that it was in fact the husband who had abandoned her and their minor son without any reason nor had he returned to the matrimonial house ever since; that the husband was committing adultery with his colleague at work, thereby subjecting the wife to unimaginable mental cruelty and furthermore, that the wife was threatened from disclosing this to any member of their family. The Written Statement however, denied all efforts as claimed to have been made by the husband towards reconciliation. Based on the submissions above mentioned, the Trial Court framed two issues being;
  6. Whether the wife (appellant herein) treated the husband with cruelty;
  7. Whether the wife deserted the husband without any justifiable reason.
  8. While adjudicating the first issue, the impugned order noted in detail the submissions of the husband, consisting of various instances including the dates, on which the wife was said to be cruel and negligent towards the husband and his family. It was submitted that the criminal complaint was filed with the CAW Cell after the filing the divorce petition and that a sum of Rs 8 lakhs was demanded from him in consideration for withdrawing the criminal complaint. It was noted that the wife had refused to have any sexual relations with respondent after the birth of their son. The Trial Court noted that during cross-examination, the wife did not put any questions to the husband pertaining to the allegations of her trying to immolate herself, or questions which would disprove the allegation of lock and denial of sexual relations between them. Admittedly the parties no longer live together in the matrimonial home and only the wife lives in it with the son. The accommodation was allotted to the husband. The appellant has failed to bring anything on record to show that she tried to reconcile her differences with the respondent. The Trial Court noted the submission of the wife that the parties lived together till 1993 was contradicted by the wife herself in the cross-examination, where it was said that there were no relations between the parties since 5 th May 1992. On a more serious allegation of adultery being levelled against the husband, the impugned order noted that the wife did not put any question to the respondent during his cross-examination to prove or strengthen the allegation. The Court noted that apart from mere allegations in the Written Statement, no evidence was brought forward by the appellant, to prove adultery by the husband. The Court noted that a mere statement that the respondent seemed to be in the company of the colleague often, does not establish the allegation of adultery. The lack of evidence and the absence of any of the allegations of adultery led the Trial Court to conclude that the wife failed to make out a case of adultery by the husabnd.
  9. The Court held that since the appellant admitted to existence of certain efforts by the husband, the argument of the appellant that the husband, after abandoning her and their son, made no effort to reconcile their differences, stood negated. Accordingly, this aspect was decided in favour of the husband. The Court held that the husband had mentioned several dates when the wife was said to have ill-treated him, these dates were neither refuted nor reasonably explained by the wife. The lack of denial thereof would amount to admitting such instances of cruelty, which only strengthened the case of the husband. Based on these findings, the Trial Court held that the answer to the first issue was in the affirmative i.e. there was cruelty towards the husband.
  10. On the issue concerning desertion by the wife/ appellant, the Trial Court noticed that the respondent/ husband was forced to leave his matrimonial house given the prevailing circumstances. It was the case of the husband that he left the matrimonial house on 5.5.92 but was not allowed to re-enter it when he tried to as allegedly the house lock had been changed. This was denied by the appellant. In her Written Statement, she contended that they were not cohabiting since 1993. However, during cross examination, she admitted that they were not living together in the matrimonial house since 1992, thereby contradicting her own averments in the Written Statement. The Trial Court recorded that the appellant had failed to prove her case of living separately from her husband for justifiable reasons or that the husband was a consenting party to his living separately from his wife and their minor son. The Trial Court noted the contention of the husband, that the threat of the wife to commit suicide by immolating herself, had forced him to leave the matrimonial house. This allegation against the wife was remained uncontroverted by her, thereby leading the Court to conclude that she had admitted it. The Court further noted that the wife had agreed to live with the respondent after the death of his colleague, with whom he was allegedly being adulterous, only proves that she had herself wilfully distanced the respondent. The Trial Court concluded that she had intended to live separately from her husband much prior to 1993 and that she had no intention of living together in the matrimonial house anymore. Holding that the husband had made out a case of cruelty and desertion, which the wife was unable to disprove, the Trial Court passed an order dissolving their marriage under sections 13 (1)(i-a) and 13 (1)(i-b) of the Act. This appeal challenges the said dissolution order.
  11. The learned counsel for the appellant/wife contended before this Court that the impugned order has failed to recognize the fact that it was the respondent/ husband who was cruel towards the appellant and it was the husband who deserted her and their minor son. The counsel contended that the Trial Court failed to take note that the respondent had alleged instances amounting to cruelty only after 1992 and that there was no case of cruelty or of desertion till 1992; and that the husband had failed to show the Court that there was cruelty towards him and desertion by the wife. He submits that the Trial Court fell into error by failing to notice that the husband’s examination-in-chief was not corroborated; that failure of the wife’s counsel to put suggestions to the husband in his cross- examination, for denying acts of cruelty and desertion alleged against the wife cannot be construed as a substitute for the burden of proof placed on the husband to prove his case. It was submitted that when the husband had condoned all acts of cruelty by the appellant, he cannot now claim dissolution of marriage on the same “condoned” grounds of cruelty and desertion; that this was a point in law which the Trial Court failed to take note of; that till date the appellant alongwith their son live in the matrimonial home at the expense of the respondent and continue to avail the residential benefits by virtue of her status as his wife, which only goes to show that the respondent has indeed forgiven and condoned the acts of the appellant. The learned counsel submits that in the circumstances, a petition for divorce was contradictory and not maintainable.
  12. The learned counsel further contended that every method possible to reconcile differences between the parties was attempted, despite the husband committing adultery; that it was gross error on the part of the Trial Court to not take into consideration these efforts of reconciliation; that it was settled law that divorce could not be granted merely because the wife had failed to prove charges levelled by her in her Written Statement (WS); whereas it was for the husband to disprove the charges levelled in the wife’s WS. The counsel relied on Naval Kishore Somani v. Poonam Somani1 in support of this submission. He argued that since the respondent has failed to disprove allegations of adultery, the respondent cannot be said to have discharged the burden of proof and the Trial Court fell into error in passing the decree of divorce. He also contended that the intervention of the police and issuance of summons of the husband does not constitute an act of cruelty per se and that the husband cannot quote such instances to build a case of cruelty against the wife. It was submitted that even if the wife had not shown a reasonable cause for her living apart from her husband, the latter is still required to show the Court that the desertion was without any justifiable cause.
  13. The impugned judgment addresses the contentions raised and submissions made on the three issues in separate parts i.e., cruelty, desertion and adultery. In adjudicating the three issues, this Court has arrived at the following conclusion:

Cruelty

  1. In a petition for divorce filed on grounds of cruelty, the petitioner is required to show that he/she was subjected to such conduct which was 1 AIR 1999 A.P 1 harmful to her/his existence. It is settled law that in matrimonial cases, the fact of cruelty would need to be assessed from the peculiar facts of each case. The Supreme Court has held that cruelty is a course or conduct of one, which adversely affects the other. Cruelty may be mental or physical, intentional or unintentional. The cruelty alleged may largely depend upon the type of life the parties are accustomed to; their economic and social conditions and the cultural and human values to which they are exposed or attach importance to. Each case has to be decided on its own merits.2 The term Cruelty, has not been defined in the Hindu Marriage Act, hence its contextual definition has evolved through judicial pronouncements. It is more than mere physical and mental cruelty. The facts shown by the petitioner must indicate to the Court, the existence of such behaviour which may be objectionable or that may cause discomfort in the marriage. It is settled law that so far as proving the facts/instances of cruelty alleged in the petition are concerned, the burden of proof lies on the one alleging it. The burden of proof will lie on the party who affirms a fact and not on the party which denies it. The petitioner must therefore prove that the respondent has treated him with cruelty under the Act.
  2. In the present instance, the husband alleged that the wife had treated him and his family with cruelty and ultimately deserted him without any reason. He gave an account of a series of instances with specific dates on which he was subject to cruelty. It is unnecessary to recount the facts again. However, it would be pertinent to note that the wife alleges the same acts of cruelty and desertion to have been inflicted upon her by the Naveen Kohli v. Neelu Kohli (2006)4 SCC 558 husband. The Court would be required to see what constitutes cruelty. Such determination will vary from case to case. Acts which are part of the wear and tear of the marital life cannot be defined as acts of cruelty. It has been held by the Supreme Court that there is no longer a standard required to classify an act as cruelty. It holds:

“27. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty.”

  1. Prior to the 1976 amendment to the Hindu Marriage Act 1955, cruelty was not a ground for grant of divorce. It was only a ground for judicial separation under Section 10 thereto. However, with the amendment in the year 1976, cruelty was incorporated as a ground for dissolution of the Hindu Marriage. Simultaneously, the words “as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious to the petitioner to live with the other party” has been deleted. The statute no longer requires that proof. In a matrimonial dispute, the same set of facts may lead to different conclusions because the interpretation would depend upon the context of N.G. Dastane(Dr) .v S. Dastane (1975)2 SCC 326 Manisha Tyagi v Deepak Kumar (2010)4 SCC 339 the parties and the complexion of the case. The Courts are not to search for a standard in life to determine cruelty in a complaint of cruel treatment by one spouse against the other spouse or his/her relatives. A set of facts stigmatized as cruelty in one case is so in another case. Cruelty may allegedly depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their cultural orientation and the human values in which they are imbued.5
  2. The husband had alleged acts of cruelty against the wife including her withdrawal from his company and also his family. The Trial Court was to examine this aspect. The wife in her WS had alleged adultery by the husband with his colleague. This allegation was never proved. It is a most severe allegation which, if false, by itself amounts to cruelty. The learned counsel for the respondent submits that the wife had consistently failed to perform her marital obligations, i.e., she had withdrawn from his society – more particularly keeping husband away from her society and company for years, and indeed did not allow him to meet their son on the latter’s birthdays. These allegations were found by the Trial Court to be true. It is not always the harsh words or physical violence that only amounts to cruelty. Unspoken hostility or continued neglect, sullenness or indifferent coupled with the spouse refusing to cohabit or have any marital relationship with the other spouse could be termed as cruelty. Denying or abstaining from physical relations unilaterally without any justifiable reasons amounts to cruelty towards the other spouse. In the present case, the wife had failed to disprove the allegation made by the husband. On the 5 Shobha Rani vs. Madhukar Reddi, (1988) 1 SCC 105 contrary, her allegation of adultery remained unproved. Her allegations were false, it amounted to cruelty. Therefore, this Court is of the view that the Trial Court was right in concluding that the husband had been subjected to cruelty by the wife. There is no infirmity in the impugned order apropos the conclusion arrived at in this regard. Desertion
  3. The husband had alleged desertion by the wife. He would also need to prove it. The concept of desertion has been explained in Halsbury’s Laws of England as;

“In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases.6”

Just as the incidence of cruelty, desertion too has to be proven by the spouse so alleging it against the other. In doing so, the factum and the intention of desertion have to be proved. Such desertion ought to be for continuous a period of two years prior to filing of the petition. It would need to be shown that such desertion was without justifiable cause for withdrawal from the society of the other spouse. The events narrated in the divorce petition indicated that the husband was made to leave the matrimonial house, since the wife was extending threats of committing suicide, only to implicate him. Furthermore, she did not permit the (3rd Edn) Vol 12 husband to re-enter the house when he tried to return back home immediately, after having left for a day on 5.5.1992. The husband only left the home with the intention of returning back. He showed that he left for temporarily, only to tide-over the threat extended to him; the temporary removal of his physical presence was merely in his own interest as well as in the interest of his family to overcome the momentary matrimonial upheaval occasioned by wife’s threat to commit suicide. His having endeavoured to re-enter the house was thwarted by the wife as the house lock had been changed. This aspect remained uncontroverted by the wife. Therefore, the only conclusion would be that the wife had prevented the return of the husband. The husband could not be said to have deserted the wife. On the contrary, the wife had continued to keep him away from her society and company. Therefore, although the wife was residing in the accommodation allotted to the husband, she had deserted him. She had shown no reason why she did not allow the husband to return. The factum of her withdrawing from the society of the husband without reason and continued to do so for more than two years showed her intention and factum to desert the husband.

  1. This Court notices that there are no averments as to the causes or reasons or events leading to the alleged desertion by the husband except for a bald averment or the assertion by the wife that the husband deserted her without any reason. There is no proof on the record to support the aforesaid bald averment. The lack of relevant and appropriate material or proof would only lead to the conclusion that there was no just reason for not allowing the husband to go into the matrimonial home and that the wife always intended to desert the husband. A mere counter-allegation will not suffice to make out a case of the desertion of the appellant. The Trial Court was therefore, right in holding and concluding that the husband had established desertion by the wife. This Court is of the view that the reason for and the conclusion arrived at by the Trial Court cannot be faulted.

Adultery

  1. The wife had alleged adultery by the husband. This was never proved. She never filed any criminal case or complaint elsewhere nor had she mentioned such a serious matter, if it were so, to any member of the family. Logically then, only the appellant seemed to have knowledge of the said adultery. In the cross-examination no questions were put to the husband on the alleged adultery. The allegation was levelled only in the WS. It was a mere bald statement unsupported by any proof. Incidentally, a colleague with whom the adulterous relationship was alleged had passed away much prior to the filing of the divorce petition. Apart from the wife’s statement in this regard, there was nothing on record either by way of document or in deposition or cross-examination to prove the allegation of adultery. Therefore, there was really nothing which the husband could be required to negate. The learned counsel for the appellant submitted that the wife having made the allegation of adultery, it was for the husband to have negated such an allegation. He relied upon Naval Kishore Somani v. Poonam Somani7 to contend that where the husband does not traverse the charges made by the wife in the AIR 1999 A.P.1 WS, he failed to discharge that burden. It is noteworthy that in the aforesaid case, the Court concluded that the allegation of adultery made in the counter affidavit or WS by the respondent, if unproven or found false and baseless would itself constitute cruelty against the other spouse. But to hold that simply because the husband had failed to disprove such charges made by the wife in her WS would be stretching the limit of reasonableness. For adultery to be proven, cogent and substantive evidence has to be brought on record by the parties alleging so. In the present case, no such evidence was brought on record by the wife. In Somani (supra), the appellant seemed to have merely rebutted the allegations with a bald statement during the appellant’s examination in chief. Whereas the respondent therein had provided enough proof to substantiate her allegations. There is clear difference in the facts of that case and the present appeal. The Trial Court concluded that there was lack of evidence from the wife in proving an allegation of adultery against the husband. Allegations of adultery have a consequence of damaging one’s reputation, taking away the dignity of that person in the eyes of his family, friends and the society. The burden of proving adultery is placed on the individual who makes such an allegation. In the absence of any proof in this regard, the Trial Court rightly concluded that the charge of adultery against the husband was not proven.
  2. The learned counsel for the respondent relied upon Savitri Bulchandani v. Mulchand Bulchdani8 which was a wife’s appeal against the Trial Court decision granting divorce to the husband on the ground of 8 AIR 1987 Delhi 52 the cruelty and desertion. The Trial Court had found various documents authored by the wife threatening the husband and accusing him of having a bad character. The Court held that inability of the wife to prove the allegation of adultery against the husband amounted to cruelty. It observed:

“(44) In view of what is stated above, I am of the view that the appellant wife has persistently made false and baseless defamatory allegations against the husband regarding illicit relations with other women. She has failed to prove any of her assertions in accordance with law. Her own testimony in this regard is unworthy of reliance, for the reasons already stated. In the circumstances I am of the view that these false and baseless allegations which have been made by the wife in the written statement are sufficient in themselves, to bring home the charge of her having been cruel to the husband. In my view the husband is entitled to a decree of divorce on this ground alone.”

  1. In an appeal9 filed by the husband against the decree of divorce granted to the wife, the Supreme Court looked into the allegations against the wife made by the husband in his WS. The Court held:

“7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health 9 Vijaykumar Ramchandra Bhat v Neela Vijaykumar Bhate (2003)6 SCC 334 of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they 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 for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.”

  1. What emerges from the aforesaid discussion is that wherever adultery is alleged by one spouse against the other and the allegation remains unproven, it constitutes cruelty against the accused spouse, since the allegation was a concerted and deliberate action which had the capacity to tarnish the reputation and lower the dignity of the other spouse. It would also cause immense mental trauma and stress to the accused party. Therefore, insofar as the wife had been unable to prove the allegation of adultery as made in her WS, it would constitute cruelty against the husband and this alone would be a ground on which divorce could have been granted. Besides, the husband had shown that he was prevented from being in the society of his wife because of her lacking him out and otherwise threatening to commit suicide so as to implicate the husband. He had shown that he had no intention to desert the wife or his son since he returned to the matrimonial home immediately after having left, for a day, on 5.5.1992. The wife’s refusal to matrimonial relations with the husband and her false allegations of adultery constitute cruelty. The husband’s divorce petition was justly allowed. This Court finds that the impugned order does not suffer from any infirmity or material irregularity. The respondent had sufficiently shown cruelty and desertion by the wife. The appeal is without merit and is accordingly dismissed. No orders as to costs.

 

NAJMI WAZIRI (JUDGE) AUGUST 21, 2014

Advertisements

Divorce on grounds of mental and physical cruelty.

“Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”

In A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, the Court observed as under:

“The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R

Reserved

Court No. – 3

Case :- FIRST APPEAL DEFECTIVE No. – 6 of 2011

Appellant :- Smt. Gurpreet Kaur

Respondent :- Shri Rajeev Singh

Counsel for Appellant :- Amrit Preet Singh

AND

Case :- FIRST APPEAL DEFECTIVE No. – 4 of 2011

Appellant :- Smt. Gurpreet Kaur

Respondent :- Shri Rajeev Singh

Counsel for Appellant :- Amrit Preet Singh

AND

Case :- FIRST APPEAL DEFECTIVE No. – 5 of 2011

Appellant :- Smt. Gurpreet Kau

Respondent :- Shri Rajeev Singh

Counsel for Appellant :- Amrit Preet Singh

Hon’ble Shabihul Hasnain,J.

Hon’ble Sheo Kumar Singh-I,J.

(Delivered by Hon’ble Sheo Kumar Singh-I, J.

  1. This is yet another unfortunate matrimonial dispute which has shattered the old matrimonial bond between the parties.
  2. The respondent namely Rajeev Singh filed a petition in January, 2005 as Original Suit No.29 of 2005 for judicial separation under Section 10 of Hindu Marriage Act, 19551 and thereafter through amendment the above mentioned case was amended as suit for dissolution of his marriage under Section 13 of the Act instituted in court of the Principal Judge, Family Court, Lucknow, which was registered as Original Suit No.29 of 2005; Rajeev Singh v. Smt. Gurpreet Kaur.
  3. In the petition filed before the Family court, it was averred by the respondent-husband that the marriage between the parties was solemnized in accordance with Hindu Sikh rites and customs on 04.11.1998. After marriage the husband and wife stayed together for sometime and during continuance of marriage, a female child named Km. Prabhleen Kaur came to this world on 25.01.2001. It is alleged by the husband that the appellant-wife was non-cooperative, arrogant and her behaviour towards the family members of the husband was unacceptable. Despite misunderstanding, a female child was born in the wedlock and thereafter, the wife took the child and left the house and went to her parental house and chose not to come back to the husband or his family and to perform her duties as wife in the house of her husband. It was pleaded that there had been a marital discord and total non-compatibility, and she had deserted him severing all ties.
  4. Wife, Smt. Gurpreet Kaur/appellant, also instituted a suit for restitution of conjugal right under Section 9 of the Act against the respondent, which was registered as Original Suit No.694 of 2005; Smt. Gurpreet Kaur v. Rajeev Singh and another. A suit under Section 27 of the Act was filed before the Principal Judge, Family Court by the appellant, which was registered as Misc. Case No.31C of 2008 for return of ”Stridhan’ and Original Suit No.42 of 2009 under Section 25 of the Act for grant of permanent alimony. It is alleged that the matter was referred to reconciliation at the ”Paramarsh Kendra’ (Conciliation Board) in the Family Court Lucknow but the husband withdrawn himself and violated the terms and condition of living together as the good efforts were made in this regard by the reconciliation officers. During the course of hearing all the above suits were consolidated by the learned Principal Judge, Family Court and Original Suit No.29 of 2005 was made leading case. Issues were framed and evidence was taken. After recording the statement of witness and hearing the parties at length, learned Principal Judge, Family Court decided all the above mentioned case vide order dated 27.11.2010 and disposed of as follows:
  5. Original Suit No.29 of 2005 filed under Section 13 of the Act was decreed and the marriage between the parties was dissolved.
  6. Original Suit No.694 of 2005 filed under Section 9 of the Act by the wife for restitution of conjugal rights was dismissed.

iii. Misc. Case No.31C of 2008 filed by the wife under Section 27 of the Act was partly allowed and the respondent-husband was directed to return the items of the wife, which was kept by him as ”Stridhan’.

 

  1. Original Suit No.42 of 2009 filed under Section 25 of the Act was partly allowed and the husband was directed to pay an amount of Rs.4,00,000/- to the appellant.
  2. Aggrieved by the order, the appellant has filed the present appeals on the ground that:

(a) The husband has not specifically stated and pleaded that he did not want to live with his wife. The appellant-wife has expressed her willingness to live with the respondent-husband and she has filed the suit for restitution of conjugal rights.

(b) The appellant had led the evidence to the fact that she was expelled from her Sasural as she is still ready to live with his husband that the respondent had stated in his oral statement that he wanted to live with the appellant as such he went several times to her parental house to bring her back, which proves that there was no cruelty by the appellant against the respondent.

(c) By filing the petition under Section 27 of the Act, the appellant has expressed her willingness to live with the respondent and always made her ready to live together as husband and wife that by the assessment of oral evidence led by the respondent the form of cruelty or desertion on part of the appellant-wife has not been proved.

 

(d) That the matter was taken up by the Family Court and ”Ramgariya Sabha’, Their internal social wing, which has been coordinating in the matter of family dispute and tried their best to decide the matter but the respondent-husband failed to comply the advice given by the ”Ramgariya Sabha’

 

(e) that the respondent-husband has neglected the appellant-wife without any proper reason and rhyme and the above fact has not been considered by the learned family court that in their pleadings, both the parties have stated that while living separately, they have tried to patch up the differences and so accordingly the efforts were made by them to live together as husband and wife but in spite of above facts, the family court reached the conclusion of cruelty and desertion on the part of the wife.

 

  1. A perusal of the suit filed under Section 13 of the Act reveals that the husband has taken following ground for obtaining the decree of divorce:

 

(i) That after marriage, the conduct and behaviour of his wife was not good with the father of the husband and she used to harass his parents.

 

(ii) Wife used to pressurize the husband to fulfill her wish and demands.

 

(iii) The wife always pressurize to live with him at the place of his service but the husband was working in the field of marketing in private sector and usually he remains out of station for official purposes and he was not able to keep his wife with him.

(iv) She threatened him to face dire consequences and also threatened to commit suicide.

(v) She used to visit her parental house without consent of his parents.

(vi) That his mother was suffering from blood pressure and sugar and she was not cooperating with the feeding and providing medicine to his mother.

(vii) That the mother of husband was suffering from backache and there is fracture in her hands, and she was pressurizing regularly to the husband to live with him at his work place.

(viii) She was intended to do some service while the husband was not in view of permitting her to do some service and later on she joined the service without taking his consent.

(ix) When he was at his work place, the wife after consulting her parents left his house with her bag and necessary items and went to her parental house along with daughter.

(x)          That the wife has separated and deserted him without any cogent and reasonable ground.

  1. In reply thereof, the appellant-wife (defendant in original suit filed for divorce) has submitted written submission with the fact that after birth of female child, she was regularly harassed for one or another reason and for non fulfillment of demand of dowry and family members of the wife tried their best to reach on any compromise so that both of them may live a peaceful social life but the attempt of compromise was failed due to rigid attitude of the husband.
  2. Learned Judge, Family Court after going through the pleadings of the parties has framed three issues to the effect as to whether the wife has treated the husband with physical and mental cruelty, and as to whether the wife has deserted the husband without any reason w.e.f. 17.01.2002. To prove the rival versions, the husband Rajeev Singh has examined himself as PW-1 and also examined Arvindar Kaur as PW-2 and G.B. Singh as PW-3. After filing the affidavit, the appellant Gurpreet Singh was examined as DW-1. Swarnjeet Singh as DW-2, Sardar Amarjeet Singh as DW-3, Sardar Harpal Singh as DW-4 and Sadar Manjeet Singh as DW-5 were also examined by the appellant-defendant in the case.

 

  1. Learned counsel for the appellant has submitted that the family members of the appellant-wife attempted so many times to come back to the matrimonial home but they did not convince the husband as he was acting in the ill advice of his family members and was not intending to keep the appellant-wife at his work place. It was put forth by the appellant that he had without any reasonable cause or excuse refused to perform his marital obligations. The plea of mental hurt and trauma was controverted on the assertion that she had never treated him with cruelty. It has further been contended that the filing of application under Section 9 of the Act for restitution of conjugal rights to which an objection was filed by the husband shows that the appellant-wife is ready to perform her matrimonial relation but instead the husband had filed the petition firstly for judicial separation. Later on by means of amendment it was converted for divorce under Section 13 of the Act.

 

  1. Assailing the legal sustainability of the judgement of Principal Judge, Family Court, learned counsel appearing for the appellant, has submitted that when the petition was initially filed for judicial separation on the ground of desertion, further amendment under Section 13(1) of the Act does not satisfy the requirement of divorce because the plea as has been taken was judicial separation are not found sufficient to prove the case of divorce.

 

  1. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the petition and the evidence adduced by the parties and the judgment of the Family Court. The plea that was raised for grant of divorce was under Section 13(1)(ib) of the Act. It provides for grant of divorce on the ground of desertion for a continuous period of not less than two year immediately preceding the presentation of the petition. The aforesaid provision stipulates that a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion, as a ground for divorce, was inserted to Section 13 by Act 68/1976. Prior to the amendment it was only a ground for judicial separation. Dealing with the concept of desertion, the Court in Savitri Pandey v. Prem Chandra Pandey; (2002) 2 SCC 73 has ruled thus:-

 

“”Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for example, anger [pic]or disgust without intending permanently to cease cohabitation, it will not amount to desertion.”

 

  1. Presently to the factual matrix in entirety and the subsequent events, we are absolutely conscious that the relief of dissolution of marriage was sought on the ground of desertion. The submission of the learned counsel for the appellant is that neither subsequent events nor the plea of cruelty could have been considered. There is no cavil over the fact that the petition was filed under Section 13(1)(ib). However, on a perusal of the petition it transpires that there are assertions of ill-treatment, mental agony and torture suffered by the husband.

 

  1. Before we critically examine the judgment in the light of settled law, it has become imperative to understand and comprehend the concept of cruelty. The Shorter Oxford Dictionary defines ‘cruelty’ as ‘the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’.

The term “mental cruelty” has been defined in the Black’s Law Dictionary [8th Edition, 2004] as under:

“Mental Cruelty – As a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”

The concept of cruelty has been summarized in Halsbury’s Laws of England [Vol.13, 4th Edition Para 1269] as under:

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.”

 

In 24 American Jurisprudence 2d, the term “mental cruelty” has been defined as under:

 

“Mental Cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.”

 

In the instant case, our main endeavour would be to define broad parameters of the concept of ‘mental cruelty’. Thereafter, we would strive to determine whether the instances of mental cruelty enumerated in this case by the appellant would cumulatively be adequate to grant a decree of divorce on the ground of mental cruelty according to the settled legal position as crystallized by a number of cases of this Court and other Courts.

 

  1. The Court has had an occasion to examine in detail the position of mental cruelty in N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para 30 observed as under :-

 

“The enquiry therefore has to be whether the conduct charges 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.”

 

  1. In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. reported in (1981) 4 SCC 250, the Apex Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

 

  1. In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, the Court had an occasion to examine the concept of cruelty. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or 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, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to 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, 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. 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. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.

 

  1. In Rajani v. Subramonian AIR 1990 Ker. 1 the Court aptly observed that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of the cultural heritage and traditions of our society.

 

  1. Again, the Court had an occasion to examine in great detail the concept of mental cruelty. In the case of V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, the Court observed, in para 16 at page 347, as under:

 

“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.”

 

  1. The Court aptly observed in Chetan Dass v. Kamla Devi reported in (2001) 4 SCC 250, para 14 at pp.258-259, as under:

 

“Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.”

 

  1. In Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73, the Court stated as under:

 

“Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.”

 

  1. The Court in the case of Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC 619 observed as under:

 

“The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. “Cruelty” for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.”

 

  1. The mental cruelty has also been examined by this Court in Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 at pp.716-17 [para 21] which reads as under:

 

“Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”

 

In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably.

 

  1. In A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, the Court observed as under:

 

“The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

 

To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

 

The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.”

 

  1. The Court in Vinita Saxena v. Pankaj Pandit reported in (2006) 3 SCC 778 aptly observed as under:

 

“As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.

 

If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.”

 

  1. In Shobha Rani’s case (supra) at pp.108-09, para 5, the Court observed as under:

 

“5. Each case may be different. We deal with the conduct of human beings who are no 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.”

 

In this case, the Court cautioned the lawyers and judges not to import their own notions of life in dealing with matrimonial problems. The judges should not evaluate the case from their own standards. There may be a generation gap between the judges and the parties. It is always prudent if the judges keep aside their customs and manners in deciding matrimonial cases in particular.

 

  1. In a recent decision of the Court in the case of Rishikesh Sharma v. Saroj Sharma reported in 2006 (12) Scale 282, this Court observed that the respondent wife was living separately from the year 1981 and the marriage has broken down irretrievably with no possibility of the parties living together again. The Court further observed that it will not be possible for the parties to live together and therefore there was no purpose in compelling both the parties to live together. Therefore the best course was to dissolve the marriage by passing a decree of divorce so that the parties who were litigating since 1981 and had lost valuable part of life could live peacefully in remaining part of their life. The Court further observed that her desire to live with her husband at that stage and at that distance of time was not genuine.

 

  1. The Court observed that under such circumstances, the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant who sought divorce from the Court. “Mental cruelty” is a problem of human behaviour. This human problem unfortunately exists all over the world. Existence of similar problem and its adjudication by different courts of other countries would be of great relevance, therefore, we deem it appropriate to examine similar cases decided by the Courts of other jurisdictions. We must try to derive benefit of wisdom and light received from any quarter.

 

ENGLISH CASES:

 

  1. William Latey, in his celebrated book ‘The Law and Practice in Divorce and Matrimonial Causes’ (15th Edition) has stated that there is no essential difference between the definitions of the ecclesiastical courts and the post- 1857 matrimonial courts of legal cruelty in the marital sense. The authorities were fully considered by the Court of Appeal and the House of Lords in Russell v. Russell (1897) AC 395 and the principle prevailing in the Divorce Court (until the Divorce Reform Act, 1969 came in force), was as follows:

 

Conduct of such a character as to have caused danger to life, limb, or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger. {see: Russell v. Russell (1895) P. 315 (CA)}.

 

  1. In England, the Divorce Reform Act, 1969 came into operation on January 1, 1971. Thereafter the distinction between the sexes is abolished, and there is only one ground of divorce, namely that the marriage has broken down irretrievably. The Divorce Reform Act, 1969 was repealed by the Matrimonial Causes Act, 1973, which came into force on January 1, 1974. The sole ground on which a petition for divorce may be presented to the court by either party to a marriage is that the marriage has broken down irretrievably.

 

  1. Lord Stowell’s proposition in Evans v. Evans (1790) 1 Hagg Con 35 was approved by the House of Lords and may be put thus: before the court can find a husband guilty of legal cruelty towards his wife, it is necessary to show that he has either inflicted bodily injury upon her, or has so conducted himself towards her as to render future cohabitation more or less dangerous to life, or limb, or mental or bodily health. He was careful to avoid any definition of cruelty, but he did add: ‘The causes must be grave and weighty, and such as to show an absolute impossibility that the duties of married life can be discharged’. But the majority of their Lordships in Russell v. Russell (1897) (supra) declined to go beyond the definition set out above. In this case, Lord Herschell observed as under:

 

“It was conceded by the learned counsel for the appellant, and is, indeed, beyond controversy, that it is not every act of cruelty in the ordinary and popular sense of that word which amounted to saevitia, entitling the party aggrieved to a divorce; that there might be many wilful and unjustifiable acts inflicting pain and misery in respect of which that relief could not be obtained.”

 

  1. Lord Merriman, in Waters v. Waters (1956) 1 All. E.R. 432 observed that intention to injure was not necessary ingredient of cruelty.

 

  1. Sherman, J. in Hadden v. Hadden, The Times, December 5, 1919, (also reported in Modern Law Review Vol.12, 1949 at p.332) very aptly mentioned that he had no intention of being cruel but his intentional acts amounted to cruelty. In this case, it was observed as under:

 

‘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 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 upon to endure it.’

 

  1. Lord Simon in Watt (or Thomas) v. Thomas [(1947) 1 All E.R. 582 at p. 585] observed as under:

 

“..the leading judicial authorities in both countries who have dealt with this subject are careful not to speak in too precise and absolute terms, for the circumstances which might conceivably arise in an unhappy married life are infinitely various.

 

Lord Stowell in Evans v. Evans 1790 (1) Hagg Con 35 avoids giving a “direct definition”. While insisting that “mere austerity of temper, petulance of manners, rudeness of language, want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty.”

 

  1. In Simpson v. Simpson (1951) 1 All E.R. 955, the Court observed that:

 

“When the legal conception of cruelty is described as being conduct of such a character as to cause danger to life, limb or health, bodily or mental, or to give rise to a reasonable apprehension of such danger, it is vital to bear in mind that it comprises two distinct elements: first, the ill-treatment complained of, and, secondly, the resultant danger or the apprehension thereof. Thus, it is inaccurate, and liable to lead to confusion, if the word “cruelty” is used as descriptive only of the conduct complained of, apart from its effect on the victim.

 

  1. Lord Reid, concurring, reserved opinion as to cases of alleged cruelty in which the defender had shown deliberate intention, though he did not doubt that there were many cases where cruelty could be established without its being necessary to be satisfied by evidence that the defender had such an intention. Lord Tucker, also concurring, said:

 

‘Every act must be judged in relation to its attendant circumstances, and the physical or mental condition or susceptibilities of the innocent spouse, the intention of the offending spouse and the offender’s knowledge of the actual or probable effect of his conduct on the other’s health are all matters which may be decisive in determining on which side of the line a particular act or course of conduct lies.’

 

  1. In Prichard v. Pritchard (1864) 3 S&T 523, the Court observed that repeated acts of unprovoked violence by the wife were regarded as cruelty, although they might not inflict serious bodily injury on the husband.

 

  1. Wilde, J.O. in Power v. Power (1865) 4 SW & Tr. 173 aptly observed that cruelty lies in the cumulative ill conduct which the history of marriage discloses.

 

  1. In Bravery v. Bravery (1954) 1 WLR 1169, by majority, the Court held as under:

 

‘If a husband submitted himself to an operation for sterilization without a medical reason and without his wife’s knowledge or consent it could constitute cruelty to his wife. But where such an operation was performed to the wife’s knowledge, though without her consent and she continued to live with him for thirteen years, it was held that the operation did not amount to cruelty.’

 

  1. Lord Tucker in Jamieson v. Jamieson (1952) I All E.R. 875 aptly observed that “Judges have always carefully refrained from attempting a comprehensive definition of cruelty for the purposes of matrimonial suits, and experience has shown the wisdom of this course”.

 

  1. In Le Brocq v. Le Brocq [1964] 3 All E.R. 464, at p. 465, the court held as under:

 

“I think … that ‘cruel’ is not used in any esoteric or ‘divorce court’ sense of that word, but that the conduct complained of must be something which an ordinary man or a jury .. would describe as ‘cruel’ if the story were fully told.”

 

  1. In Ward v. Ward [(1958) 2 All E.R. 217, a refusal to bear children followed by a refusal of intercourse and frigidity, so that the husband’s health suffered, was held to be cruelty; so also the practice by the husband of coitus interruptus against the wish of his wife though she desired to have a child. (Also see: White (otherwise Berry) v. White [1948] 2 All E.R. 151; Walsham v. Walsham, [1949] I All E.R. 774; Cackett (otherwise Trice) v. Cackett, [1950] I All E.R. 677; Knott v. Knott [1955] 2 All E.R. 305.

 

  1. Cases involving the refusal of sexual intercourse may vary considerably and in consequence may or may not amount to cruelty, dependent on the facts and circumstances of the parties. In Sheldon v. Sheldon, [1966] 2 All E.R. 257, Lord Denning, M.R. stated at p. 259:

 

“The persistent refusal of sexual intercourse may amount to cruelty, at any rate when it extends over a long period and causes grave injury to the health of the other. One must of course, make allowances for any excuses that may account for it, such as ill-health, or time of life, or age, or even psychological infirmity. These excuses may so mitigate the conduct that the other party ought to put up with it. It after making all allowances however, the conduct is such that the other party should not be called upon to endure it, then it is cruelty.”

 

  1. Later, Lord Denning, at p. 261, said that the refusal would usually need to be corroborated by the evidence of a medical man who had seen both parties and could speak to the grave injury to health consequent thereon. In the same case, Salmon, L. J. stated at p. 263:

 

“For my part, I am quite satisfied that if the husband’s failure to have sexual intercourse had been due to impotence, whether from some psychological or physical cause, this petition would be hopeless. No doubt the lack of sexual intercourse might in such a case equally have resulted in a breakdown in his wife’s health. I would however regard the husband’s impotence as a great misfortune which has befallen both of them.”

 

There can be cruelty without any physical violence, and there is abundant authority for recognizing mental or moral cruelty, and not infrequently the worst cases supply evidence of both. It is for the judges to review the married life of the parties in all its aspects. The several acts of alleged cruelty, physical or mental, should not be taken separately. Several acts considered separately in isolation may be trivial and not hurtful but when considered cumulatively they might well come within the description of cruelty. (see: Jamieson v. Jamieson, [1952] I All E.R. 875; Waters v. Waters, [1956] I All E.R. 432. “The general rule in all questions of cruelty is that the whole matrimonial relations must be considered.” (per Lord Normand in King v. King [1952] 2 All E.R. 584).

 

  1. In Warr v. Warr [1975] I All ER 85), the Court observed that “Section 1(2)(c) of the Matrimonial Causes Act, 1973 provides that irretrievable breakdown may be proved by satisfying the court that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.”

 

AMERICAN CASES:

 

  1. In Jem v. Jem [(1937) 34 Haw. 312], the Supreme Court of Hawaii aptly mentioned that cruel treatment not amounting to physical cruelty is mental cruelty.

 

  1. While dealing with the matter of extreme cruelty, the Supreme Court of South Dakota in the case of Hybertson v. Hybertson (1998) 582 N.W. 2d 402 held as under:

 

“Any definition of extreme cruelty in a marital setting must necessarily differ according to the personalities of the parties involved. What might be acceptable and even common place in the relationship between rather stolid individuals could well be extraordinary and highly unacceptable in the lives of more sensitive or high-strung husbands and wives. Family traditions, ethnic and religious backgrounds, local customs and standards and other cultural differences all come into play when trying to determine what should fall within the parameters of a workable marital relationship and what will not.”

 

  1. In Rosenbaum v. Rosenbaum [(1976) 38 Ill.App.3d. 1] the Appellate Court of Illinois held as under:

 

“To prove a case entitling a spouse to divorce on the ground of mental cruelty, the evidence must show that the conduct of the offending spouse is unprovoked and constitutes a course of abusive and humiliating treatment that actually affects the physical or mental health of the other spouse, making the life of the complaining spouse miserable, or endangering his or her life, person or health.”

 

  1. In the case of Fleck v. Fleck 79 N.D. 561, the Supreme Court of North Dakota dealt with the concept of cruelty in the following words:

 

“The decisions defining mental cruelty employ such a variety of phraseology that it would be next to impossible to reproduce any generally accepted form. Very often, they do not purport to define it as distinct from physical cruelty, but combine both elements in a general definition of ‘cruelty,’ physical and mental. The generally recognized elements are:

 

(1) A course of abusive and humiliating treatment;

 

(2) Calculated or obviously of a nature to torture, discommode, or render miserable the life of the opposite spouse; and (3) Actually affecting the physical or mental health of such spouse.”

 

  1. In Donaldson v. Donaldson [(1917) 31 Idaho 180, 170 P. 94], the Supreme Court of Idaho also came to the conclusion that no exact and exclusive definition of legal cruelty is possible. The Court referred to 9 RCL p. 335 and quoted as under:

 

“It is well recognized that no exact inclusive and exclusive definition of legal cruelty can be given, and the courts have not attempted to do so, but generally content themselves with determining whether the facts in the particular case in question constitute cruelty or not. Especially, according to the modern view, is the question whether the defending spouse has been guilty of legal cruelty a pure question of fact to be resolved upon all the circumstances of the case.”

 

CANADIAN CASES:

 

  1. In a number of cases, the Canadian Courts had occasions to examine the concept of ‘cruelty’. In Chouinard v. Chouinard 10 D.L.R. (3d) 263], the Supreme Court of New Brunswick held as under:

 

“Cruelty which constitutes a ground for divorce under the Divorce Act, whether it be mental or physical in nature, is a question of fact. Determination of such a fact must depend on the evidence in the individual case being considered by the court. No uniform standard can be laid down for guidance; behaviour which may constitute cruelty in one case may not be cruelty in another. There must be to a large extent a subjective as well as an objective aspect involved; one person may be able to tolerate conduct on the part of his or her spouse which would be intolerable to another. Separation is usually preceded by marital dispute and unpleasantness. The court should not grant a decree of divorce on evidence of merely distasteful or irritating conduct on the part of the offending spouse. The word ‘cruelty’ denotes excessive suffering, severity of pain, mercilessness; not mere displeasure, irritation, anger or dissatisfaction; furthermore, the Act requires that cruelty must be of such a kind as to render intolerable continued cohabitation.”

 

  1. In Knoll v. Knoll 10 D.L.R. (3d) 199, the Ontario Court of Appeal examined this matter. The relevant portion reads as under:

 

“Over the years the courts have steadfastly refrained from attempting to formulate a general definition of cruelty. As used in ordinary parlance “cruelty” signifies a disposition to inflict suffering; to delight in or exhibit indifference to the pain or misery of others; mercilessness or hard-heartedness as exhibited in action. If in the marriage relationship one spouse by his conduct causes wanton, malicious or unnecessary infliction of pain or suffering upon the body, the feelings or emotions of the other, his conduct may well constitute cruelty which will entitle a petitioner to dissolution of the marriage if, in the court’s opinion, it amounts to physical or mental cruelty “of such a kind as to render intolerable the continued cohabitation of the spouses.”

 

  1. In Luther v. Luther [(1978) 5 R.F.L. (2d) 285, 26 N.S.R. (2d) 232, 40 A.P.R. 232], the Supreme Court of Nova Scotia held as under:

 

“7. The test of cruelty is in one sense a subjective one, namely, as has been said many times, is this conduct by this man to this woman, or vice versa, cruelty? But that does not mean that what one spouse may consider cruel is necessarily so. Cruelty must involve serious and weighty matters, which, reasonably considered, may cause physical or mental suffering. It must furthermore — an important additional requirement — be of such a nature and kind as to render such conduct intolerable to a reasonable person.”

 

The Supreme Court further held as under:

 

“9. To constitute mental cruelty, conduct must be much more than jealousy, selfishness or possessiveness which causes unhappiness, dissatisfaction or emotional upset. Even less can mere incompatibility or differences in temperament, personality or opinion be elevated to grounds for divorce.”

 

  1. In another case Zalesky v. Zalesky 1 D.L.R. (3d) 471, the Manitoba Court of Queen’s Bench observed that where cohabitation of the spouses become intolerable that would be another ground of divorce. The Court held as under:

 

“There is now no need to consider whether conduct complained of caused ‘danger to life, limb, or health, bodily or mentally, or a reasonable apprehension of it’ or any of the variations of that definition to be found in the Russell case.

 

In choosing the words ‘physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses’ Parliament gave its own fresh complete statutory definition of the conduct which is a ground for divorce under s. 3(d) of the Act.”

 

AUSTRALIAN CASES:

 

  1. In Dunkley v. Dunkley (1938) SASR 325, the Court examined the term “legal cruelty” in the following words:

 

‘Legal cruelty’, means conduct of such a character as to have caused injury or danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of danger. Personal violence, actual or threatened, may alone be sufficient; on the other hand, mere vulgar abuse or false accusations of adultery are ordinarily not enough; but, if the evidence shows that conduct of this nature had been persisted in until the health of the party subjected to it breaks down, or is likely to break down, under the strain, a finding of cruelty is justified.’

 

  1. In La Rovere v. La Rovere [4 FLR 1], the Supreme Court of Tasmania held as under:

 

“When the legal conception of cruelty is described as being conduct of such a character as to cause danger to life, limb or health, bodily or mental, or to give rise to a reasonable apprehension of such danger, it is vital to bear in mind that it comprises two distinct elements: first, the ill-treatment complained of, and, secondly, the resultant danger or the apprehension thereof. Thus it is inaccurate and liable to lead to confusion, if the word ‘cruelty’ is used as descriptive only of the conduct complained of, apart from its effect on the victim.”

 

We have examined and referred to the cases from the various countries. We find strong basic similarity in adjudication of cases relating to mental cruelty in matrimonial matters. Now, we deem it appropriate to deal with the 71st report of the Law Commission of India on “Irretrievable Breakdown of Marriage”.

 

  1. The 71st Report of the Law Commission of India briefly dealt with the concept of irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. In this Report, it is mentioned that during last 20 years or so, and now it would be around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory. It would be relevant to recapitulate recommendation of the said Report.

 

  1. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case Lodder v. Lodder 1921 New Zealand Law Reports 786. Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these words:

 

“The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.”

 

  1. In the said Report, it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet such a situation has arisen in which the marriage cannot survive. The marriage has all the external appearances of marriage, but none in reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bonds which are of the essence of marriage have disappeared.

 

  1. It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

 

  1. Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

 

Law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute.

 

  1. This Court in Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC 558 dealt with the similar issues in detail. Those observations incorporated in paragraphs 74 to 79 are reiterated in the succeeding paragraphs.

 

“74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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.

 

  1. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

 

  1. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.”

 

  1. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.

 

  1. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.

 

  1. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.”

 

  1. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.

 

  1. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

 

  1. 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) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

 

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

 

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

 

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

 

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

 

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

 

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

 

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

 

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

 

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

 

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

 

  1. According to the Philosophy of the Act, the Parties to a marriage tying nuptial knot are supposed to bring about the union of souls. It creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic philosophy it is sanskar a sacrament; one of the sixteen important sacraments essential to be taken during one’s lifetime. There may be physical union as a result of marriage for procreation to perpetuate the lineal progeny for ensuring spiritual salvation and performance of religious rites, but what is essentially contemplated is union of two souls. Marriage is considered to be a junction of three important duties i.e. social, religious and spiritual.

 

The expression ‘cruelty’ has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties.

 

  1. Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household and duty to live together form part of the ”Consortium Omnis Vitae” which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage as an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, successionship, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of that relationship.

 

  1. Marriages in India take place either following the personal Law of the Religion to which a party is belonged or following the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a woman, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognized. O’Regan, J., in Dawood and Another v. Minister of Home Affairs and Others 2000 (3) SA 936 (CC) noted as follows:

 

“Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well.

 

The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends….”

 

  1. South African Constitutional Court in various judgments recognized the above mentioned principle. In Satchwell v. President of the Republic of South Africa and Another 2002 (6) SA 1 (CC), Du Toit and Another v. Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC), the Constitutional Court of South Africa recognized the right “free to marry and to raise family”. Section 15(3)(a)(i) of the Constitution of South Africa, in substance makes provision for the recognition of “marriages concluded under the tradition, or a system of religious, personal or family law.” Section 9(3) of the Constitution of South Africa reads as follows:

 

“The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

 

  1. Article 23 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) provides that:

 

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

 

  1. The right of men and women of marriageable age to marry and to found a family shall be recognized.

 

  1. No marriage shall be entered into without the free and full consent of the intending spouses.

 

  1. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”

 

  1. Article 16 of the Universal Declaration of Human Rights, 1948 provides that:

 

“1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at it dissolution.

 

  1. Marriage shall be entered into only with the free and full consent of the intending spouses.

 

  1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

 

  1. Parties in the present case are Hindus by religion and are governed by the Hindu Marriage Act, 1955. The expression “marriage”, as stated, is not defined under the Hindu Marriage Act, but the “conditions for a Hindu marriage” are dealt with in Section 5 of the Hindu Marriage Act and which reads as under:

 

“5. Conditions for a Hindu marriage – A marriage may be solemnized between any two hindus, if the following conditions are fulfilled, namely:-

 

(i) neither party has a spouse living at the time of the marriage

 

(ii) at the time of the marriage, neither party-

 

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

 

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

 

(c) has been subject to recurrent attacks of insanity;

 

(iii) the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage;

 

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

 

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.”

 

  1. Section 7 of the Hindu Marriage Act deals with the “Ceremonies for a Hindu marriage” and reads as follows:

 

“7. Ceremonies for a Hindu marriage. –

 

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

 

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.”

 

  1. Entering into a marriage, therefore, either through the Hindu Marriage Act or the Special Marriage Act or any other Personal Law, applicable to the parties, is entering into a relationship of “public significance”, since marriage being a social institution, many rights and liabilities flow out of that legal relationship. The concept of marriage as a “civil right” has been recognised by various courts all over the world, for example, Skinner v. Oklahoma 316 US 535 (1942), Perez v. Lippold 198 P.2d 17, 20.1 (1948), Loving v. Virginia 388 US 1 (1967).

 

  1. We have referred to, in extenso, about the concept of “marriage and marital relationship” to indicate that the law has distinguished between married and unmarried people, which cannot be said to be unfair when we look at the rights and obligations which flow out of the legally wedded marriage. A married couple has to discharge legally various rights and obligations, unlike the case of persons having live-in relationship or, marriage-like relationship or defacto relationship.

 

  1. Married couples who choose to marry are fully cognizant of the legal obligation which arises by the operation of law on solemnization of the marriage and the rights and duties they owe to their children and the family as a whole, unlike the case of persons entering into live-in relationship. This Court in Pinakin Mahipatray Rawal v. State of Gujarat (2013) 2 SCALE 198 held that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their up-bringing, services in the home, support, affection, love, liking and so on.

 

RELATIONSHIP IN THE NATURE OF MARRIAGE:

 

  1. Modern Indian society through the DV Act recognizes in reality, various other forms of familial relations, shedding the idea that such relationship can only be through some acceptable modes hitherto understood. Section 2(f), as already indicated, deals with a relationship between two persons (of the opposite sex) who live or have lived together in a shared household when they are related by:

 

  1. a) Consanguinity

 

  1. b) Marriage

 

  1. c) Through a relationship in the nature of marriage

 

  1. d) Adoption

 

  1. e) Family members living together as joint family.

 

  1. The definition clause mentions only five categories of relationships which exhausts itself since the expression “means”, has been used. When a definition clause is defined to “mean” such and such, the definition is prima facie restrictive and exhaustive. Section 2(f) has not used the expression “include” so as to make the definition exhaustive. It is in that context we have to examine the meaning of the expression “relationship in the nature of marriage”.

 

  1. We have already dealt with what is “marriage”, “marital relationship” and “marital obligations”. Let us now examine the meaning and scope of the expression “relationship in the nature of marriage” which falls within the definition of Section 2(f) of the DV Act. Our concern in this case is of the third enumerated category that is “relationship in the nature of marriage” which means a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognized, and, hence, a comparison of both will have to be resorted, to determine whether the relationship in a given case constitutes the characteristics of a regular marriage.

 

  1. Distinction between the relationship in the nature of marriage and marital relationship has to be noted first. Relationship of marriage continues, notwithstanding the fact that there are differences of opinions, marital unrest etc., even if they are not sharing a shared household, being based on law. But live-in-relationship is purely an arrangement between the parties unlike, a legal marriage. Once a party to a live-in- relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end. Further, in a relationship in the nature of marriage, the party asserting the existence of the relationship, at any stage or at any point of time, must positively prove the existence of the identifying characteristics of that relationship, since the legislature has used the expression “in the nature of”.

 

  1. Reference to certain situations, in which the relationship between an aggrieved person referred to in Section 2(a) and the respondent referred to in Section 2(q) of the DV Act, would or would not amount to a relationship in the nature of marriage, would be apposite. Following are some of the categories of cases which are only illustrative:

 

  1. a) Domestic relationship between an unmarried adult woman and an unmarried adult male: Relationship between an unmarried adult woman and an unmarried adult male who lived or, at any point of time lived together in a shared household, will fall under the definition of Section 2(f) of the DV Act and in case, there is any domestic violence, the same will fall under Section 3 of the DV Act and the aggrieved person can always seek reliefs provided under Chapter IV of the DV Act.

 

  1. b) Domestic relationship between an unmarried woman and a married adult male: Situations may arise when an unmarried adult women knowingly enters into a relationship with a married adult male. The question is whether such a relationship is a relationship “in the nature of marriage” so as to fall within the definition of Section 2(f) of the DV Act.

 

  1. c) Domestic relationship between a married adult woman and an unmarried adult male: Situations may also arise where an adult married woman, knowingly enters into a relationship with an unmarried adult male, the question is whether such a relationship would fall within the expression relationship “in the nature of marriage”.

 

  1. d) Domestic relationship between an unmarried woman unknowingly enters into a relationship with a married adult male: An unmarried woman unknowingly enters into a relationship with a married adult male, may, in a given situation, fall within the definition of Section 2(f) of the DV Act and such a relationship may be a relationship in the “nature of marriage”, so far as the aggrieved person is concerned.

 

  1. e) Domestic relationship between same sex partners (Gay and Lesbians): DV Act does not recognize such a relationship and that relationship cannot be termed as a relationship in the nature of marriage under the Act. Legislatures in some countries, like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act, 1998 (South Africa), the Domestic Violence, Crime and Victims Act, 2004 (U.K.), have recognized the relationship between the same sex couples and have brought these relationships into the definition of Domestic relationship.

 

  1. Section 2(f) of the DV Act though uses the expression “two persons”, the expression “aggrieved person” under Section 2(a) takes in only “woman”, hence, the Act does not recognize the relationship of same sex (gay or lesbian) and, hence, any act, omission, commission or conduct of any of the parties, would not lead to domestic violence, entitling any relief under the DV Act.

 

  1. We should, therefore, while determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence”, have a common sense/balanced approach, after weighing up the various factors which exist in a particular relationship and then reach a conclusion as to whether a particular relationship is a relationship in the “nature of marriage”. Many a times, it is the common intention of the parties to that relationship as to what their relationship is to be, and to involve and as to their respective roles and responsibilities, that primarily governs that relationship. Intention may be expressed or implied and what is relevant is their intention as to matters that are characteristic of a marriage. The expression “relationship in the nature of marriage”, of course, cannot be construed in the abstract, we must take it in the context in which it appears and apply the same bearing in mind the purpose and object of the Act as well as the meaning of the expression “in the nature of marriage”. Plight of a vulnerable section of women in that relationship needs attention. Many a times, the women are taken advantage of and essential contribution of women in a joint household through labour and emotional support have been lost sight of especially by the women who fall in the categories mentioned in (a) and (d) supra. Women, who fall under categories (b) and (c), stand on a different footing, which we will deal with later. In the present case, the appellant falls under category (b), referred to in paragraph 37(b) of the Judgment.

 

  1. We have, therefore, come across various permutations and combinations, in such relationships, and to test whether a particular relationship would fall within the expression “relationship in the nature of marriage”, certain guiding principles have to be evolved since the expression has not been defined in the Act.

 

  1. Section 2(f) of the DV Act defines “domestic relationship” to mean, inter alia, a relationship between two persons who live or have lived together at such point of time in a shared household, through a relationship in the nature of marriage. The expression “relationship in the nature of marriage” is also described as defacto relationship, marriage – like relationship, cohabitation, couple relationship, meretricious relationship (now known as committed intimate relationship) etc.

 

  1. Courts and legislatures of various countries now began to think that denying certain benefits to a certain class of persons on the basis of their marital status is unjust where the need of those benefits is felt by both unmarried and married cohabitants. Courts in various countries have extended certain benefits to heterosexual unmarried cohabitants. Legislatures too, of late, through legislations started giving benefits to heterosexual cohabitants.

 

  1. In U.K. through the Civil Partnership Act, 2004, the rights of even the same-sex couple have been recognized. Family Law Act, 1996, through the Chapter IV, titled ”Family Homes and Domestic Violence’, cohabitants can seek reliefs if there is domestic violence. Canada has also enacted the Domestic Violence Intervention Act, 2001. In USA, the violence against woman is a crime with far-reaching consequences under the Violence Against Women Act, 1994 (now Violence Against Women Reauthorization Act, 2013).

 

  1. The Interpretation Act, 1984 (Australia) has laid down certain indicators to determine the meaning of “de facto relationship”, which are as follows:

 

“A. De facto relationship and de facto partner, references to (1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.

 

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential–

 

(a) the length of the relationship between them;

 

(b) whether the 2 persons have resided together;

 

(c) the nature and extent of common residence;

 

(d) whether there is, or has been, a sexual relationship between them;

 

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

 

(f) the ownership, use and acquisition of their property (including property they own individually);

 

(g) the degree of mutual commitment by them to a shared life;

 

(h) whether they care for and support children;

 

(i) the reputation, and public aspects, of the relationship between them.”

 

  1. The Domestic and Family Violence Protection Act, 2012 (Queensland) has defined the expression “couple relationship” to mean as follows”:

 

“18. Meaning of couple relationship

 

1) xxx xxx xxx

 

2) In deciding whether a couple relationship exists, a court may have regard to the following –

 

  1. a) the circumstances of the relationship between the persons, including, for example-

 

(i) the degree of trust between the persons; and

 

(ii) the level of each person’s dependence on, and commitment to, the other person;

 

  1. b) the length of time for which the relationship has existed or did exist;

 

  1. c) the frequency of contact between the persons;

 

  1. d) the degree of intimacy between the persons.

 

3) Without limiting sub-section (2), the court may consider the following factors in deciding whether a couple relationship exists-

 

  1. a) Whether the trust, dependence or commitment is or was of the same level;

 

  1. b) Whether one of the persons is or was financially dependent on the other;

 

  1. c) Whether the persons jointly own or owned any property;

 

  1. d) Whether the persons have or had joint bank accounts;

 

  1. e) Whether the relationship involves or involved a relationship of a sexual nature;

 

  1. f) Whether the relationship is or was exclusive.

 

4) A couple relationship may exist even if the court makes a negative finding in relation to any or all of the factors mentioned in subsection (3).

 

5) A couple relationship may exist between two persons whether the persons are of the same or a different gender.

 

6) A couple relationship does not exist merely because two persons date or dated each other on a number of occasions.”

 

  1. The Property (Relationships) Act, 1984 of North South Wales, Australia also provides for some guidelines with regard to the meaning and content of the expression “de facto relationship”, which reads as follows:

 

“4 De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

 

(a) who live together as a couple, and

 

(b) who are not married to one another or related by family.

 

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

 

(a) the duration of the relationship,

 

(b) the nature and extent of common residence,

 

(c) whether or not a sexual relationship exists,

 

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

 

(e) the ownership, use and acquisition of property,

 

(f) the degree of mutual commitment to a shared life,

 

(g) the care and support of children,

 

(h) the performance of household duties,

 

(i) the reputation and public aspects of the relationship.

 

(3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

 

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”

 

  1. “In Re Marriage of Lindsay, 101 Wn.2d 299 (1984), Litham v. Hennessey 87 Wn.2d 550 (1976), Pennington 93 Wash.App. at 917, the Courts in United States took the view that the relevant factors establishing a meretricious relationship include continuous cohabitation, duration of the relationship, purpose of the relationship, and the pooling of resources and services for joint projects. The Courts also ruled that a relationship need not be “long term” to be characterized as meretricious relationship. While a long term relationship is not a threshold requirement, duration is a significant factor. Further, the Court also noticed that a short term relationship may be characterized as a meretricious, but a number of other important factors must be present.

 

  1. In Stack v. Dowden [2007] 2 AC 432, Baroness Hale of Richmond said:

 

“Cohabitation comes in many different shapes and sizes. People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage….. So many couples are cohabiting with a view to marriage at some later date – as long ago as 1998 the British Household Panel Survey found that 75% of current cohabitants expected to marry, although only a third had firm plans: John Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of Social and Economic Research: Paper 2000-27. Cohabitation is much more likely to end in separation than is marriage, and cohabitations which end in separation tend to last for a shorter time than marriages which end in divorce. But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves ”as good as married’ anyway: Law Commission, Consultation Paper No 179, Part 2, para 2.45.”

 

  1. In MW v. The Department of Community Services [2008] HCA 12, Gleeson, CJ, made the following observations:

 

“Finn J was correct to stress the difference between living together and living together ”as a couple in a relationship in the nature of marriage or civil union’. The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involved.”

 

  1. In Lynam v. The Director-General of Social Security (1983) 52 ALR 128, the Court considered whether a man and a woman living together ”as husband and wife on a bona fide domestic basis’ and Fitzgerald, J. said:

 

“Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”

 

  1. Tipping, J. in Thompson v. Department of Social Welfare (1994) 2 SZLR 369 (HC), listed few characteristics which are relevant to determine relationship in the nature of marriage as follows:

 

“(1) Whether and how frequently the parties live in the same house. (2) Whether the parties have a sexual relationship. (3) Whether the parties give each other emotional support and companionship.

 

(4) Whether the parties socialize together or attend activities together as a couple.

 

(5) Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children. (6) Whether the parties share household and other domestic tasks. (7) Whether the parties share costs and other financial responsibilities by the pooling of resources or otherwise. (8) Whether the parties run a common household, even if one or other partner is absent for periods of time.

 

(9) Whether the parties go on holiday together. (10) Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple.”

 

  1. Live-in relationship, as such, as already indicated, is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. [AIR 2006 SC 2522] it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. However, in order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations.

 

  1. Section 125 Cr.P.C., of course, provides for maintenance of a destitute wife and Section 498A IPC is related to mental cruelty inflicted on women by her husband and in-laws. Section 304-B IPC deals with the cases relating to dowry death. The Dowry Prohibition Act, 1961 was enacted to deal with the cases of dowry demands by the husband and family members. The Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance to a legally wedded Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act, 1955 refers to the provisions dealing with solemnization of marriage also deals with the provisions for divorce. For the first time, through, the DV Act, the Parliament has recognized a “relationship in the nature of marriage” and not a live-in relationship simplicitor.

 

  1. We have already stated, when we examine whether a relationship will fall within the expression “relationship in the nature of marriage” within the meaning of Section 2(f) of the DV Act, we should have a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account. We cannot isolate individual factors, because there may be endless scope for differences in human attitudes and activities and a variety of combinations of circumstances which may fall for consideration. Invariably, it may be a question of fact and degree, whether a relationship between two unrelated persons of the opposite sex meets the tests judicially evolved.

 

  1. We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.

1) Duration of period of relationship Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

(2) Shared household The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.

(4) Domestic Arrangements Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc. (6) Children Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

(7) Socialization in Public Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and conduct of the parties Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.

  1. In light of the above proposition of law, we have gone through the allegations made in the evidence before the learned Judge, family court. During pendency of this appeal, the husband Rajeev Singh has filed an affidavit with the facts that prior to passing judgement of the learned Judge, family court, the deponent-husband suffered from heart problem (Angina Stroke) and was admitted in SGPGI, Lucknow where coronary angiography was done and Stent to LCX Lesion was done on 01.10.2010 in which the deponent incurred expenses of more than two lakh and further submitted that in respect of the case under Section 27 of the Act, the appellant, during the course of argument before the court, showed her willingness to accept the jewellery articles and was admitted before the family court. The husband brought the said jewellery items before the court on the said date. Neither the appellant nor her counsel appeared before the court to receive the jewellery and further stated that husband is ready to pay an amount of Rs.2.5 lakh to his daughter namely Prabhleen Kaur in addition to what he has already given to his daughter.
  2. The statement of witnesses recorded before the learned Judge, family court reveals that the husband has relied upon the following grounds for decree of divorce:

(i)            That the wife is of the view to do service and after some times, she joined the service and presently she is in employment against the wishes of the husband or his family members.

  1. Learned counsel for the appellant has submitted that this can be never a ground for divorce and the facts that the wife is working cannot be treated to be the ground for cruelty. He has further submitted that the husband has deserted the wife and was not ready to keep her with him and thus she compelled to resides with her parents and to maintain her livelihood with her child at the parental home, she was compelled by the circumstances to join the service according to her status and education.
  2. Fight for the rights of women may be difficult to trace in history but it can be stated with certitude that there were lone and vocal voices at many a time raising battles for the rights of women and claiming equal treatment. Initially, in the West, it was a fight to get the right to vote and the debate was absolutely ineffective and, in a way, sterile. In 1792, in England, Mary Wollstonecraft in “A Vindication of the Rights of Women” advanced a spirited plea for claiming equality for, “the Oppressed half the Species”. In 1869, “In Subjection of Women” John Stuart Mill stated, “the subordination of one sex to the other ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other”. On March 18, 1869 Susan B. Anthony proclaimed “Join the union girls, and together say, “Equal pay, for Equal work”. The same personality again spoke in July 1871 : “Women must not depend upon the protection of man but must be taught to protect themselves”.
  3. Lord Denning in his book Due Process of Law has observed that a woman feels as keenly thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom – develop her personality to the full – as a man. When she marries, she does not become the husband’s servant but his equal partner. If his work is more important in life of the community, her’s is more important in the life of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.
  4. The human rights of women and of the girl child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community… The World Conference on Human Rights urges governments, institutions, intergovernmental and non-governmental organizations to intensify their efforts for the protection of human rights of women and the girl child.
  5. The Preamble of our Constitution is “a key to open the mind of the makers of the Constitution which may show the general purpose for which they make the Constitution. It declares the rights and freedoms which the people of India intended to secure to all citizens. The Preamble begins with the words “WE, THE PEOPLE OF INDIA……” which includes men and women of all castes, religions, etc. It wishes to render “EQUALITY of status and or opportunity” to every man and woman. The Preamble again assures “dignity of individuals” which includes the dignity of women. On the basis of the Preamble, several important enactments have been brought into operation, pertaining to every walk of life – family, succession, guardianship and employment – which aim at providing the protecting the status, rights and dignity of women. Our compassionate Constitution, the Fountain Head of all laws, is gender sensitive.
  6. The Constitution of India not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women for neutralizing the cumulative socio economic, education and political disadvantages faced by them. It is apt to refer to certain constitutional provisions which are significant in this regard:

(i) Equality before law (Article 14)

(ii) The State not to discriminate against any citizen on grounds only of religion, race caste, sex, place of birth or any of them (Article 15(i))

(iii) The State to make any special provision in favour of women and children (Article 15(3))

(iv) The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)); and equal pay for equal work for both men and women (Article 39(d))

(v) The State to make provision for securing just and humane conditions of work and for maternity relief (Article 42)

(vi) The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46)

(vii) To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A)(e))

(viii) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3))

(ix) Not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D(4))

(x) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T(3))

(xi) Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243 T(4)).

  1. Reservation under Articles 243 D (3), D (4), T (3) and T (4) are meant to empower the woman politically.
  2. Some Articles play a major role in the field of women empowerment. Article 15(3) empowers the State to make special provisions for them. The well-being of a woman is an object of public interest and it is to be achieved to preserve the strength and vigour of the race. This provision has enabled the State to make special statutory provisions exclusively for the welfare of women.
  3. Article 39(a), requires the State to direct its policy towards securing that the citizens, men and women equally have the right to an adequate means of livelihood. Under Article 39(d), the State shall direct its policy towards securing equal pay for equal work for both men and women. This Article draws its support from Article 14 and 16 and its main objective is the building of a welfare society and an equalitarian social order in the Indian Union. To give effect to this Article, the Parliament has enacted the Equal Remuneration Act, 1976 which provides for payment of equal remuneration to men and women workers and prevents discrimination on the ground of sex. Further, Article 39(e) is aimed at protecting the health and strength of workers, both men and women.
  4. A very important and useful provision for women’s welfare and well-being is incorporated under Article 42 of the Constitution. It imposes an obligation upon the State to make provisions for securing just and humane conditions of work and for maternity relief. Some of the legislations which promoted the objectives of this Article are the Workmen’s Compensation Act, 1923, the Employees State Insurance Act, 1948, the Minimum Wages Act, 1948, the Maternity Benefit Act, 1961, the Payment of Bonus Act, 1965, and the like.
  5. Conferment of equal status on women apart from being a constitutional right has been recognized as a human right. In Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty; 1996 AIR 922, 1996 SCC (1) 490, the Court observed that women have the right to be respected and treated as equal citizens. Accentuating on the concept, it proceeded to state thus: –

“9. …Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Women, in them, have many personalities combined. They are mother, daughter, sister and wife and not playthings for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.”

  1. Economic empowerment is a necessary fulcrum of empowerment. The Constitutional Courts in many an authority have laid emphasis on said conception and interpreed the provisions to elevate the status of women and to empower them.

 

  1. In Thota Manikayamma V. Thota Manikyamma (1991) 4 SCC 312 the Court, while interpreting Section 14 of the Hindu Succession Act, 1956 converting the women’s limited ownership of property into full ownership, has observed as follows:-

“21……. Article 15(3) relieves from the rigour of Article 15(1) and charges the State to make special provision to accord to women socio-economic quality …….. It would mean that the court would endeavour to give full effect to legislative and constitutional vision of socio-economic equality to female citizen by granting full ownership or property to a Hindu female. As a fact Article 15(3) as a forerunner to common code does animate to make law to accord socio-economic equality to every female citizen of India irrespective of religion, race, caste or religion.”

  1. When the matter relating to mother as natural guardian was questioned, the Court held that relegation of mother to inferior position to act as a natural guardian is violation of Articles 14 and 15 and hence, the father cannot claim that he is the only natural guardian. The guardianship right of women has undergone a sea change by this interpretation given by the Court in Gita Hariharan v. RBI, (1999) 2 SCC 228.
  2. In Gayatri Devi Pansari v. State of Orissa, (2000) 4 SCC 221, The Court has also upheld an Orissa Government Order reserving 30% quota for women in the allotment of 24 hours medical stores as part of self-employment scheme. Thus, the language of Article 15 (3) is in absolute terms and does not appear to restrict in any way the nature or ambit of special provisions which the State may make in favour of women or children.
  3. In this context it is useful to refer to the decision rendered in the case of Sellammal v. Nallammal, (1977) 3 SCC 145, wherein the Court held that the Hindu Marriage Act will override the U.P. Jamindari Abolition and Land Reforms Act and also held that exclusive right to male succession may be suspended till female dependent adopt another mode of livelihood.
  4. Many a time question arises with regard to rights of women qua property. Various High Courts have interpreted Section 27 of the Hindu Marriage Act in a different manner. As far as the High Court of Madhya Pradesh is concerned the Court in the case of Ashok Kumar Chopra v. Visandi, AIR 1996 MP 226, held that ”Stridhan’ is the property of the wife in her individual capacity and the husband is merely trustee of that property and the husband is liable to return that property and value thereof under the substantive law and in equity. The power has been conferred by the M.P. High Court on the matrimonial courts in respect of certain properties.
  5. In this regard it is necessary to refer that Hindu women who were not entitled to right to property have been given equal share along with male heir and they have presently been given equal rights. The concept of equality is the bedrock of gender justice. In the case of Neera Mathur v. LIC (1992) 1 SCC 286, a female candidate was required to furnish information about her menstrual period, last date of menstruation, pregnancy and miscarriage. When the matter came before the Court, their Lordships held that such declarations were improper. The Court directed that the Corporation would do well to delete such column in the declaration.
  6. In light of the above facts, the ground as the wife joined the service, in our view, cannot be made the ground for treating it as cruelty or ground for divorce.
  7. Second ground is that the wife left the house without consent of the husband.
  8. Learned counsel for the appellant-wife has drawn attention towards the statement of husband Rajeev Singh recorded before the lower court as PW-1 on 17.04.2007 in which he had categorically admitted that the appellant, wife has left his house with his consent. Husband had further admitted that the wife wants to live with him at his work place but he was of the view to keep her with his family members for keeping care of his parents for the reasons that his job is of touring job.
  9. The ground as taken by the husband that she was not intended to live with his family members cannot be treated the ground for cruelty. She was always ready and willing to reside with the husband and at one point of time, when there was a mediation with Ramgariya Sabha in Gurudwara members persuaded and made attempt that the husband should keep the wife with him at his work place, the husband was not ready to follow this terms of compromise.
  10. We have carefully examined the grounds as taken by the husband for decree of divorce in light of the above facts and are of the view that the grounds as taken by the husband are not the ground coming within the purview of cruelty and desertion.
  11. No decree of divorce could be granted on the ground of desertion in the absence of pleading and proof. Learned counsel for the appellant submitted that even in the absence of specific issue, the parties had led evidence and there was sufficient material for the Family Court to return a verdict of desertion having been proved. In the light of the submissions made by the learned counsel, we have opted to examine this aspect of the matter despite the fact that there was no specific issue framed or insisted to be framed.
  12. “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held:

“For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a different between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus ort it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.”

  1. Following the decision in Bipinchandra’s case (supra) this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent, and without reasonable cause. For the offence of desertion so far as deserting spouse is concerned, two essential conditions must be there (1) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
  2. To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.

 

  1. There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognised and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties. The basis for this theory is built upon the recognised position of law in matrimonial matters that no-one can desert who does not actively or wilfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case. However, the party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong.
  2. Further the wife has filed a suit for restitution of conjugal rights under Section 9 of the Act, which shows that she was always ready to live with the husband. Accordingly, we are of the view that lower court has erred in reaching at the conclusion that the acts of the wife comes within the category of the cruelty. The grounds as taken are neither physical cruelty nor mental cruelty. Thus the decision on issue no.1 and 2 in original suit no.29 of 2005 under Section 13 of the Act that the wife has treated the husband with physical and mental cruelty is not found proved and it is perverse and against the evidence on record. Further the finding that the wife has deserted without any reason is also not based on evidence on record.
  3. In light of the above facts and evidence on record, we are of the view that the finding on issue no.1, 2 and 3 of the original suit is against the settled proposition of law and evidence on record and the decree of divorce is not maintainable. The suit for decree of divorce deserves to be dismissed. In light of the above facts, we are also of the view that cruelty has not been proved against the husband and the wife has not deserted the husband. Willingly she had filed a suit for restitution of conjugal rights numbered as Original Suit No.694 of 2005 under Section 9 of the Act. It deserves to be allowed for restitution of conjugal rights. Original Suit No.42 of 2009 was filed by the wife under Section 27 of the Act for grant of maintenance for herself and her child, it was concluded that the husband should provide an amount of four lakh for maintenance, education and expenditure of marriage of the daughter Prabhleen Kaur.
  4. We have considered rival contentions and perused the judgment impugned and other materials available on record. Section 25 of the Hindu Marriage Act, 1955 confers power upon the court to grant a permanent alimony to either spouse who claims the same by making an application. Sub-section (2) of Section 25 of Hindu Marriage Act confers ample power on the court to vary, modify or discharge any order for permanent alimony or permanent maintenance that may have been made in any proceeding under the Act under the provisions contained in sub-section (1) of Section 25. In a case reported in (1970) 3 SCC 129, Kulbhushan Kumar vs. Raj Kumari and Anr., it was held that 25% of the husband’s net salary would be just and proper to be awarded as maintenance to the respondent-wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependant on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors.
  5. At the outset, we are obliged to reiterate the principle of law how a proceeding under Section 125 of the Code has to be dealt with by the court, and what is the duty of a Family Court after establishment of such courts by the Family Courts Act, 1984. In Smt. Dukhtar Jahan v. Mohammed Farooq, (1987) 1 SCC 624, the Court opined that proceedings under Section 125 of the Code, it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner.
  6. A three-Judge Bench in Vimla (K.) v. Veeraswamy (K.), (1991) 2 SCC 375, while discussing about the basic purpose under Section 125 of the Code, opined that Section 125 of the Code is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
  7. A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat and another, (1996) 4 SCC 479, while adverting to the dominant purpose behind Section 125 of the Code, ruled that:

“While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation.”

  1. In Chaturbhuj v. Sita Bai, (2008) 2 SCC 316, reiterating the legal position the Court held: –

 

“Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 63[6].”

  1. Recently in Nagendrappa Natikar v. Neelamma 2013 (3) Scale 561, it has been stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children.
  2. The Family Courts have been established for adopting and facilitating the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. A three-Judge Bench in K.A. Abdul Jaleel v. T.A. Shahida, (2003) 4 SCC 166, while highlighting on the purpose of bringing in the Family Courts Act by the legislature, opined thus: –

“The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith.”

  1. The purpose of highlighting this aspect is that in the case at hand the proceeding before the Family Court was conducted without being alive to the objects and reasons of the Act and the spirit of the provisions under Section 125 of the Code. It is unfortunate that the case continued for five years before the Family Court. It has come to the notice of the Court that on certain occasions the Family Courts have been granting adjournments in a routine manner as a consequence of which both the parties suffer or, on certain occasions, the wife becomes the worst victim. When such a situation occurs, the purpose of the law gets totally atrophied. The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. It leads to the cold refrigeration of the hidden feelings, if still left. The delineation of the lis by the Family Judge must reveal the awareness and balance. Dilatory tactics by any of the parties has to be sternly dealt with, for the Family Court Judge has to be alive to the fact that the lis before him pertains to emotional fragmentation and delay can feed it to grow. We hope and trust that the Family Court Judges shall remain alert to this and decide the matters as expeditiously as possible keeping in view the objects and reasons of the Act and the scheme of various provisions pertaining to grant of maintenance, divorce, custody of child, property disputes, etc.
  2. On this point by filing counter affidavit, the husband has stated that he had deposited an amount of Rs.81,000/-, which was granted as maintenance allowance in favour of the daughter and has also invested Rs.15,000/- in term deposit in State Bank of India in favour of the daughter, which is going to mature on 15.10.2019. The maturity amount of the same is Rs.31,535/-. In para-9 of the affidavit, he has submitted that since financial condition of the deponent is not as sound as of the appellant and in comparison to the appellant the deponent is getting salary of Rs.18,447/-, however, he is still ready and willing to pay Rs.2.5 lakh, out of his total savings which is about Rs.3 lakh, to his daughter namely Prabhleen Kaur in addition to what he has already given to his daughter. The child is minor and studying in preliminary stage. A reasonable amount is required for her higher studies and expenditure of marriage.
  3. We are of the view that total amount of Rs.10 lakh, in addition to what he has already paid, be deposited in the name of his daughter namely Prabhleen Kaur and be kept in the form of FDR (Fixed Deposit Receipt) in a nationalized bank under the guardianship of the mother and regularly the interest be paid in her savings account opened in the name of minor to be operative by the mother guardian and be expended only for the education and for the benefit of the minor whenever required. At the time of marriage, the total amount may be withdrawn by the mother as a guardian to meet out the expenditure of marriage. Rest of the expenditure for marriage shall be borne by the mother. Accordingly, we allow the appeals and disposed of the applications/suits as follows:

(i)The appeals are allowed. The judgement and order dated 27.11.2010 passed in Original Suit No.29 of 2005 Rajeev Singh v. Smt Gurpreet Singh filed under Section 13 of the Act is set aside with cost.

(ii) Original Suit No.694 of 2005, Smt. Gurpreet Kaur v. Rajeev Singh for restitution of conjugal rights under Section 9 of the Act is allowed.

(iii)          We are not in view to disturb the findings passed in Misc Case No.31C of 2008 but direct that the order be complied immediately say within 30 days.

 

(iv)         The order passed in Original Suit No.42 of 2009; Smt. Gurpreet Singh v. Rajeev Singh is modified and the amount of Rs.4 lakh as directed by the learned Judge, family court is enhanced to the tune of Rs.10 lakh and the respondent-husband is directed to pay this amount to the daughter and be kept in a nationalized bank as narrated above.

  1. The appellant’s applications and appeals are disposed of accordingly.

Order Date :-18.12.2017 Anupam S/-

(Sheo Kumar Singh-I, J.) (Shabihul Hasnain, J.)

Marriage and Divorce in India.

 

Meaning of Marriage in Indian Culture

indian-wedding-big-image-1_1427799751_725x725

Marriage as a social institution is an affirmance of civilized social order where two individuals, capable of entering into wedlock, have pledged themselves to the institutional norms and values and promised to each other a cemented bond to sustain and maintain the marital obligation. It stands as an embodiment for continuance of the human race.

The marriage tied their nuptial knot to bring about the union of souls. The marriage creates a new relationship of love, affection, care and concern between the husband and wife. According to Hindu Vedic philosophy, it is sanskar- sacrament, one of the sixteen important sacraments essential to be taken during one’s lifetime. As a result of marriage there may be physical union between the parties of the marriage for procreation of lineal progeny and for ensuring spiritual salvation and performance of religious rites but what is essentially contemplated is the union of two souls. Marriage is considered to be a junction of three important duties i.e. social, religious and spiritual.

Mode of Dissolution of Marriage.

divorce_9

 

According to the Indian divorce laws there are mainly two ways to obtain you divorce, the mutual divorce and the contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to a settlement and get a “no-fault divorce”. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage act that you are entitled to. There are separate divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing for divorce in India. Laws are even laid down for Inter-cast marriages under the Special Marriage Act, 1956.

  1. Contested Divorce
  2. Annulment or Nullity
  3. Divorce by Mutual Consent.

DISSOLUTION OF MARRIAGE:

The same laws according to which the marriage was solemnized govern dissolution of marriages, and the rights consequent to the dissolution.

Governing Laws

Hindus – The Hindu Marriage Act, 1955

Christians – The Divorce Act,1869, The Indian Christian Marriage Act,1872

Parsis – The Parsi Marriage and Divorce Act,1936

Muslims – Shariat Law, The Dissolution of Muslim Marriage Act,1939

Inter-cast/Secular – Special Marriage Act, 1954,

The Foreign Marriage Act,1969

 For annulment of the marriage, since its very inception, on grounds such as the non-fulfilment of mandatory conditions.. The Indian Divorce act requires confirmation by the High Court to come into effect.

All Indian personal laws have provided for grounds for divorce. Some common grounds of divorce are:

Divorce by mutual Consent under Hindu Marriage Act.

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, 1976 , (68 of 1976 .) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that thy have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Contested Divorce – The spouse seeking divorce can file under the appropriate faith based law under which they got married or in case of civil marriage under the appropriate law under which they married or their marriage was registered.

GROUND ON WHICH MARRIAGE CAN BE DISSOLVED IN CONTESTED DIVORCE.

  1. Adultery
  2. Cruelty
  3. Desertion and failure to maintain
  4. Conversion to another religion
  5. Incurable mental disorder
  6. Incurable mental disorder which may result in abnormally aggressive or irresponsible behaviour
  7. Virulent and incurable leprosy, or communicable venereal disease not contracted from the party filing the application
  8. Renunciation of worldly life

The parties may decide to seek divorce by mutual consent, having decided that they do not want to live together. In such a petition, they need not disclose their reasons for making such a decision.

Muslim personal law also grants several options for the husband to seek divorce without approaching the court. The wife would be entitled to maintenance and dower and also to appeal the divorce in court.

JURISDICTION FOR FILLING OF PETITION FOR DIVORCE

An application for divorce may be filed in a court having jurisdiction. Such a court must be:

  1. a court capable of entertaining matrimonial cases.
  2. a court that has territorial jurisdiction over the place of marriage, the place where the couple last resided together, and the place where the respondent spouse currently resides. If the respondent resides abroad, then the petition can also be filed in India the place of residence of the petitioner.
  3. For the decree to be valid, the court must apply the law under which the marriage was solemnised.

Six-month cooling period for granting divorce can be waived.

images-123

. “god always has something for you

A Key for every problem

A Light for every shadow

A Relief for every sorrow and

A Plan for every tomorrow

Very Obedient

Vibhu”

This is the rich encomium paid to the Court by Master Vibhu, the ten year old son of the appellant and respondent. The little one present in Court today is exuberantly happy and sought liberty to present a handmade card expressing his joy on the settlement of all the disputes and litigations between his mother and father. Their marriage was solemnized as per Hindu rites on 18.05.1997. They have two children – Bhuvi, the elder daughter born on 19.04.1998 and Vibhu, son born on 31.01.2008. On account of marital discord and temperamental differences, they have been living separately since March, 2011. They are involved in various litigations, civil as well as criminal. As of now, twenty three cases are pending before various courts – Trial Courts, High Court, this Court and one before the Consumer Forum.

—————————————————————————————————————————————–

Anu Bhandari Vs. Pradip Bhandari

[Civil Appeal No. 2494 of 2018 arising out of S.L.P. (Civil) No. 15537 of 2016]

[Civil Appeal No. 2495 of 2018 @ SLP (Civil) No. 2343 of 2017]

 

Divorce granted to husband on Grounds of cruelty, Desertion and False criminal Cases.

Divorce  granted to husband on Grounds of cruelty, Desertion and False criminal Cases.

“The contention of the husband was that the appellant was in the habit of quarrelling with him on petty issues without any cause and reason and had even refused to prepare food for him and do the household chores. She also humiliated him in the presence of his friends on several occasions by refusing to serve them tea. The appellant never wanted to stay with him or his parents at the village and always used to force him to drop her at her parental home; she did not have any love and affection for him and his parents; that the appellant had also pressurised him to leave the job and settle down in Delhi; he bought a land in Burari and constructed two storey house from his savings but the appellant preferred staying in her parental home at Gulabi Bagh, Delhi and used to come to their newly constructed house once a week. The husband had all along supported the appellant and their children financially as well as morally. When the construction of the house was completed, the appellant had refused to live with him at the place of his posting. She also forced her mother-in-law to leave the house who thereafter started living in her native village. She used to say that “yeh log hamare status kay neie hain.”

On these facts, the respondent/husband had alleged that he had suffered severe mental agony, tension, harassment and distress and that the behaviour of the appellant had caused him great anguish and amounted to cruelty. He had alleged that the appellant had also deserted him since she had refused to live with him. He had also averred that they had been living separately since March 2006 and it was not possible for him to continue living with her since there was a danger to his life and limb.

The first contention of the appellant is that the learned Family Court has given undue weightage to the evidence of the respondent and has discarded the evidence of the appellant. However, this contention has no merit. On the contrary, the evidence on record (including that of the appellant) was duly considered and distinguished and elaborately discussed in the impugned judgment and only thereafter the conclusion was drawn. Record shows that the appellant had examined herself alone in support of her pleas but here is no corroboration to her testimony. Several contradictions in her testimony have been discussed in the impugned judgment. Even otherwise, the burden to prove that the respondent/husband was subjected to cruelty by the appellant, was upon him and it was for him to discharge the same by leading cogent evidence.

The settled proposition of law in civil proceedings is that the principle of proof of a fact is established on a preponderance of possibility and the respondent/husband is not required to prove his case beyond a reasonable doubt. If the evidences on record points out to the existence of  a particular fact, then the said fact can be accepted as having been proved. We may note that the expression “cruelty” has not been defined under the HMA. Cruelty can be mental or physical. It is easy for a party to prove physical cruelty, but mental cruelty depends on various factors.

. In the case of G.V.N. Kameswara Rao vs. G. Jabilli reported at (2002) 2 SSC 296, the Supreme Court had observed that false police complaints would result in mental cruelty as it leads to loss of reputation and standing in the society at the instance of one’s spouse. The act of leveling of unsubstantiated charges of adultery against the husband not only during the stay of the spouses together, but also during the divorce proceedings was treated as an act of cruelty on the part of the wife. In R. Balasubramanian vs. Vijaylakshmi Balsubramanian (SMT) reported at (1999) 7 SCC 311, the Supreme Court held that an

unfounded allegation of adultery is a serious allegation amounting to cruel conduct, and found that these factors cumulatively proved cruelty on the part of the appellant therein for entitling the husband to dissolution of the marriage.

In the case titled Santosh Sahay vs. Hanuman Sahay reported as 2016 IX AD (Delhi) 1, a Division Bench of this Court has held that false character assassination and allegations of such a nature made by a spouse amounts to mental cruelty and the wronged spouse is entitled to seek divorce on that ground.

—————————————————————————————————————————————–

IN THE HIGH COURT OF DELHI AT NEW DELHI

+      MAT.APP.(F.C.) 95/2017, CM No. 19921/2017, CM No. 19923/2017

 

SANTOSH                                                                                        ….. Appellant

versus

HORI LAL                                                                                                     ….. Respondent

CORAM:

HON’BLE MR. JUSTICE HIMA KOHLI

HON’BLE MS. JUSTICE DEEPA SHARMA

HON’BLE MS. JUSTICE DEEPA SHARMA

  1. Vide the present appeal, the appellant has challenged the order dated 31.03.2017 passed by Principal Judge (Family Court), Tis Hazari, Delhi whereby her marriage with the respondent was dissolved under Section 13 (1) (ia) & (ib) of Hindu Marriage Act, 1955 (hereinafter referred to as “HMA”).
  2. As per the admitted facts, the marriage between the appellant and the respondent was solemnized in Delhi on 29.06.1993, according to the Hindu rites and ceremonies. The marriage was consummated and two children, one female and one male child were born from out of this wedlock. The respondent has been working with the Border Road Organization and at all times, has remained posted at different border areas of the country.
  3. The petition for divorce was filed by the respondent (hereinafter referred to as “respondent/husband”). The case of the husband was that the marriage was very simple and after the marriage, he took the appellant to the matrimonial home at Village Bhopal Garhi Post Kurhar Distt, Etah, UP and stayed there for about 40 days. When he left for his duty, he left the appellant at her parental home on her request. After some time, the appellant joined him at his place of posting at Arunachal Pradesh where they stayed happily. She became pregnant and insisted upon the respondent/husband that she will deliver the first child at her parental home at Delhi and so, he brought her to Delhi and left her at her parental home. A female child was born on 29.03.1994. After about two months i.e. in May 1994, he took the appellant to his place of posting i.e. Arunachal Pradesh along with the minor daughter. The second child was born on 04.05.2002.
  4. The contention of the husband was that the appellant was in the habit of quarrelling with him on petty issues without any cause and reason and had even refused to prepare food for him and do the household chores. She also humiliated him in the presence of his friends on several occasions by refusing to serve them tea. The appellant never wanted to stay with him or his parents at the village and always used to force him to drop her at her parental home; she did not have any love and affection for him and his parents; that the appellant had also pressurised him to leave the job and settle down in Delhi; he bought a land in Burari and constructed two storey house from his savings but the appellant preferred staying in her parental home at Gulabi Bagh, Delhi and used to come to their newly constructed house once a week. The husband had all along supported the appellant and their children financially as well as morally. When the construction of the house was completed, the appellant had refused to live with him at the place of his posting. She also forced her mother-in-law to leave the house who thereafter started living in her native village. She used to say that “yeh log hamare status kay neie hain.”
  5. The husband had referred to the incidents that took place in February 2006, which ultimately culminated in their separation. He alleged that on MAT.APP.(F.C) 95/2017 Page 3 26.02.2006, he had informed the appellant, on telephone, at around 8 p.m. that his father was unwell and that he was taking leave to visit him and asked her to accompany him to the village. However, once he reached Delhi, the appellant refused to accompany him to the village. She also refused to join him at his place of posting along with the children. She and her parents beat him on his visit to her parental home. He visited his house at Burari on 04.03.2006 where the appellant and her parents quarrelled with him and registered a false case against him under Section 107/150 of CrPC. He left for his village on 05.03.2006 and returned to Delhi on 07.03.2006 and went to his house at Burari and found that the appellant had removed all the household goods and had filed a false complaint under Section 498A/406/34 of IPC before Crime against Women Cell after 13 years of their marriage, alleging inter alia that he had demanded dowry of Rs. 35.00 lakhs. The respondent/husband was arrested in the FIR No. 61/2006 on 04.04.2006 and remained in judicial custody for about 20 days. With the help of police, the appellant removed the remaining articles from his house at Burari. She also removed all the jewellery lying in the locker at State Bank of India, Pratap Nagar, Delhi on 06.03.2006. She also filed several civil and criminal cases against him and his relatives on false and frivolous MAT.APP.(F.C) 95/2017 Page 4 grounds, just to harass and torture the husband. The appellant did all this with the intention of extracting more money from him and his relatives. Details in this respect have been furnished by the husband in para No. 15 of his petition. It was also averred that she had filed various complaints against the husband in different departments and authorities, which on investigation, were found to be false and baseless and that she had been making defamatory complaints against him and his family members.
  6. On these facts, the respondent/husband had alleged that he had suffered severe mental agony, tension, harassment and distress and that the behaviour of the appellant had caused him great anguish and amounted to cruelty. He had alleged that the appellant had also deserted him since she had refused to live with him. He had also averred that they had been living separately since March 2006 and it was not possible for him to continue living with her since there was a danger to his life and limb.
  7. The suit was contested by the appellant who filed her written statement wherein she had denied all the averments in the plaint, being false. She had further averred that she was forced to withdraw the FIR and other proceedings filed by her under compelling circumstances and since she did not want to take divorce from the husband, she did not file any suit MAT.APP.(F.C) 95/2017 Page 5 for divorce and that the respondent was taking undue advantage of his own wrong doings and that of his parents, sisters and brother-in-law. Her contention was that it was she, who had been treated with utmost cruelty by the husband and his family members. Her husband failed to maintain her and their two children and they were at the mercy of her father for day-to- day necessities and their school fees was also paid by her father. As per her version, their marriage was solemnised with great pomp and show and her parents had spent lakhs of rupees on their marriage and dowry articles, gifts and cash was given in the marriage which did not satisfy the husband and his family members who kept on raising demands and started harassing and treating her with cruelty, forcing her to fulfil their demands for brining additional dowry and cash amounts.
  8. The appellant claimed that the respondent/husband demanded a Santro car on 28.02.2006 which her parents failed to provide. This refusal enraged the husband. He and his brother asked her to sign on certain blank papers and on her refusal to do so, and in view of the inability of her parents to provide a new Santro car, the respondent/husband got so infuriated that he did not allow her to enter the house. She was beaten by him and his other relatives and sustained injuries. She admitted that she MAT.APP.(F.C) 95/2017 Page 6 had filed a complaint under Section 107/150 of the CrPC against him and his family members on 04.03.2006. It was also contended that she was forced to live in Delhi with her parents because husband refused to keep her at the place of his posting for the reason best known to him.
  9. It was further averred by the appellant that she had been fulfilling all the obligations as a devoted wife and had always remained faithful to the respondent; she was always ready and willing to accompany the respondent/husband to his native village to look after her ailing father-in- law but he had refused to take her along with him to the village. On 04.03.2006 when she was beaten up, she had been medically examined. It was contended that it was her father who had purchased plot no. 55, Block A, Gali No. 8/1, Kaushik Enclave Swaroop Nagar Road, Burari, Delhi measuring 100 square yards in her name and constructed double storeyed house over it; that the husband had fraudulently procured her signatures on a General Power of Attorney executed in his favour and sold the house first to his brother, Sh. Bhopal Singh on 08.03.2006 and thereafter, to Mr. Satish Sisodia for a sum of Rs. 6,25,000/- and mis-appropriated the sale proceeds. The appellant urged that the respondent/husband could not be allowed to MAT.APP.(F.C) 95/2017 Page 7 take advantage of his own wrong and thus, was not entitled for a decree of divorce.
  10. On the basis of the pleadings of the parties, on 26.08.2009, the learned Trial Court had framed the following issues:-

“(1) Whether the respondent has treated the petitioner with cruelty? (OPP)

(2) Whether the respondent has deserted the petitioner for a period of more than two years before the filing of the present petition? (OPP)

(3) Relief.”

  1. Both the parties had led their evidence. The respondent/husband had examined five witnesses in support of his case. In his statement, the petitioner/husband proved on record, the complaints filed by the appellant against him and marked as A to E. He also summoned a witness from the bank to prove that locker bearing no. 192 in the joint name of the parties was lastly operated by the appellant on 06.03.2006. The said record was exhibited by the witness as Ex.PW 2/1 to Ex. PW 2/5. The appellant, however, examined herself alone in support of her case. After hearing the parties at length and considering the evidences on record, the learned Trial Court reached the conclusion that the appellant had treated the respondent with cruelty and that she had deserted him without any just cause and resultantly, dissolved their marriage. Hence the present appeal.
  2. The appellant has challenged the impugned order on the grounds that the learned Family Court has not properly appreciated the evidence on record and did not take into consideration the torture and the harassment she was subjected to; that reliance on the evidence of the respondent and rejection of the testimony of the appellant is unfounded; that the learned Family Court failed to consider the contradictions in the testimony of the respondent and the fact that the husband has not been able to produce any corroborative evidence to prove the allegations levelled by him against the appellant; that the Family Court failed to take into account the fact that it was the respondent who had treated the appellant with cruelty and, therefore, he cannot be permitted to take advantage of his own wrong in view of the provisions of Section 23 of HMA. It was also contended by Mr. Chaudhary, learned counsel for the appellant that the learned Family Court has wrongly granted divorce on the ground that the marriage between them has broken down because no such ground is available for divorce under the HMA. It is therefore prayed that the impugned judgment being illegal, perverse and contrary to law, is liable to be set aside.
  3. We have heard the arguments addressed by learned counsel for the appellant and gone through the LCR which includes the pleadings and evidence of the parties.
  4. The first contention of the appellant is that the learned Family Court has given undue weightage to the evidence of the respondent and has discarded the evidence of the appellant. However, this contention has no merit. On the contrary, the evidence on record (including that of the appellant) was duly considered and distinguished and elaborately discussed in the impugned judgment and only thereafter the conclusion was drawn. Record shows that the appellant had examined herself alone in support of her pleas but here is no corroboration to her testimony. Several contradictions in her testimony have been discussed in the impugned judgment. Even otherwise, the burden to prove that the respondent/husband was subjected to cruelty by the appellant, was upon him and it was for him to discharge the same by leading cogent evidence.
  5. The settled proposition of law in civil proceedings is that the principle of proof of a fact is established on a preponderance of possibility and the respondent/husband is not required to prove his case beyond a reasonable doubt. If the evidences on record points out to the existence of MAT.APP.(F.C) 95/2017 Page 10 a particular fact, then the said fact can be accepted as having been proved. We may note that the expression “cruelty” has not been defined under the HMA. Cruelty can be mental or physical. It is easy for a party to prove physical cruelty, but mental cruelty depends on various factors.
  6. In Samar Ghosh vs. Jaya Ghosh reported at (2007) 4 SCC 511 while dealing with the concept of mental cruelty, the Apex Court has observed as under:

“99. The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound; therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

  1. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances….”
  2. Further, in Ravi Kumar vs. Julmidevi reported at (2010) 4 SCC 476, the Supreme Court held that cruelty is to be judged from the behavior, taking into account the entire facts and circumstances of the case and observed that:-

“20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety–it may be subtle or even brutal and may be by gestures and words…”

(emphasis supplied)

  1. Therefore, there is no mathematical formula to assess cruelty. If the consistent behaviour of a spouse is of such a nature as to causes pain, discomfort or it brings disrespect or disrepute to the other spouse, such behavior would constitute cruelty. Trust, mutual respect, understanding and commitment sustain a marriage. When two persons live together in matrimony, it is expected that they will be tolerant towards each other’s attitude, behaviours, moods etc. and not be over sensitive towards innocent and natural behaviour/attitude or stray mood swings of the spouse.

Spouses are expected to be supportive of each others’ needs and MAT.APP.(F.C) 95/2017 Page 12 requirements which includes extending due respect to the family members of the spouse.

  1. While appreciating the evidence in such matters, in Deb Narayan Halder vs. Anushree Halder reported at (2003) 11 SCC 303, the Supreme Court held that Courts should rely on evidence, which is contemporaneous and observed as under:-

20…..In cases where there is a dispute between husband and wife it is very difficult to unravel the true reason for the dispute. After separation when the relationship turns sour, all sorts of allegations and counter allegations are made against each other. Evidence of contemporaneous nature therefore plays an important role in such cases as it may reveal the thinking and attitude of the parties towards each other at the relevant time. Such evidence is usually found in the form of letters written by the parties to each other or to their friends and relatives or recorded in any other document of contemporaneous nature. If really the respondent was subjected to cruelty and harassment in the manner alleged by her, we have no doubt she would have written about such treatment to her friends and relatives with whom she may have corresponded…”

(emphasis supplied)

  1. The evidence brought on record clearly reveals that the parties got married on 29.06.1993 and from the period from 1993 to 2001, the appellant had been staying with the husband at the place of his posting and she was visiting her parents in Delhi during this period. The husband was employed in the Border Road Organization and was posted to different MAT.APP.(F.C) 95/2017 Page 13 places outside Delhi including Arunachal Pradesh. The appellant had stayed with him at those places but she had not written any letter even to her parents, complaining about the misbehaviour of the respondent. There appears no dispute between them during their entire stay at the places of posting, as no complaint of any nature had been filed by the appellant before any authority in this regard. It is also evident that the appellant did not produce any document which could suggest that she had any complaint of any nature against the respondent during her stay with him.
  2. During this entire period, till the filing of the complaint of demand of dowry under Section 498 A IPC, no complaint of any nature has been placed on record by the appellant against the respondent. The evidence also shows that the appellant started living in the Burari house since the year 2001 and during this period, the respondent had been visiting her in that house. The appellant has also failed to prove that it was her father who purchased the property in her name. No document has been produced on record by the appellant to prove that she was the registered owner of the property and it was sold by the respondent by fraudulently obtaining her signatures on a Power of Attorney. No document was also produced on record to prove that the construction undertaken over the plot was raised by MAT.APP.(F.C) 95/2017 Page 14 her father. During the existence of a marriage of about 13 years, no complaint of demand of dowry was ever lodged by the appellant against the respondent or his family members.
  3. Apparently, the dispute between the parties arose sometime in March 2006. The appellant has not disputed that in March 2006, the respondent wanted to visit his ailing father at the village and he did visit him. While respondent/husband contends that it was the appellant who had refused to accompany him, the appellant took the plea that he did not take her along, which she had failed to substantiate by leading any evidence. The appellant has not produced any substantive evidence in support of her contention that she had been visiting her in-laws in the village. On the contrary, the evidence on record clearly shows that whenever she was in Delhi, she used to reside with her parents. Although she has contended that the respondent was not providing her money towards her maintenance and that of their children and it was her father who was bearing all the expenses during her stay in the Burari house, she has not produced any evidence to prove that the school fees of the children was being paid by her father. In fact, she has failed to examine her father. It is also a fact that the appellant never made any complaint to anyone including the respondent’s department MAT.APP.(F.C) 95/2017 Page 15 to the effect that he was not giving them any money for their subsistence, nor had she filed any case claiming maintenance from him. There is no contemporaneous evidence on record which can even remotely suggest that the respondent had demanded dowry and that he and his family members had beaten the appellant or that he was not taking care of her and children and was not providing financial support to them.
  4. The other plea of the appellant is that her husband and his family members used to demand dowry and harass her and had demanded a Santro car on 04.06.2006 and, on refusal, beaten her and turned her out of the house, thus compelling her to file a complaint under Section 498A. It turns out that the husband was discharged in the said case under Section 498A IPC, which only goes to show that there was no substance in the allegations made by the appellant in her complaint under Section 498A IPC. She has also contended that the respondent had forced her to abort their child against her wishes, but has failed to produce any evidence on record to prove the said allegations. During the cross-examination of Sh. Bhopal Singh (PW-4), the respondent’s witness, a suggestion was made that the respondent had got married to another women but it remained a mere suggestion, without any proof. The appellant has also admitted in her MAT.APP.(F.C) 95/2017 Page 16 testimony that the respondent had visited her at her parental home at Gulabi Bagh, Delhi on 28.02.2006 and that after 28.02.2006, she had never visited Etah, UP, where her in-laws reside.
  5. On the other hand, the respondent has produced on record the evidence to demonstrate that the appellant had removed all the items lying in the locker held in their joint names, without obtaining his consent. The witness from the Bank, PW-2 had duly proved the fact that the locker was operated lastly by the appellant on 06.03.2006. This fact clearly shows that after the alleged incident of 04.03.2006, the appellant had taken out all the articles lying in the locker without the consent of her husband. The respondent has also examined PW-3 who brought the records from the Border Roads Organisation which proves the fact appellant had filed that several complaints making various allegations against the respondent not only in his office, but also to several other authorities with a copy marked to his office. Enquires were made into the allegations in the complaints, but no substance was found therein and ultimately, the respondent was exonerated. The husband had taken a plea that this act of the wife had caused him grave distress, agony and had also lowered his reputation in the department, among his friends and colleagues and in the society.
  6. In the case of G.V.N. Kameswara Rao vs. G. Jabilli reported at (2002) 2 SSC 296, the Supreme Court had observed that false police complaints would result in mental cruelty as it leads to loss of reputation and standing in the society at the instance of one’s spouse. The act of leveling of unsubstantiated charges of adultery against the husband not only during the stay of the spouses together, but also during the divorce proceedings was treated as an act of cruelty on the part of the wife. In R. Balasubramanian vs. Vijaylakshmi Balsubramanian (SMT) reported at (1999) 7 SCC 311, the Supreme Court held that an unfounded allegation of adultery is a serious allegation amounting to cruel conduct, and found that these factors cumulatively proved cruelty on the part of the appellant therein for entitling the husband to dissolution of the marriage.
  7. In the present case, the evidence clearly establishes the facts that the appellant had filed a false criminal complaint under Section 498 A of IPC, and Court had discharged the respondent. On her complaints, the department had also conducted enquiry against the respondent and thereafter, exonerated him, finding no truth in such complaints. Further, during the trial, the appellant had taken a stand that her husband had got remarried to another woman by giving an suggestion of this nature to PW-4, but could not prove it.
  8. In the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate reported as (2003) 6 SCC 334, the Supreme Court has settled the proposition of law by observing as under:-

“7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that disgusting levelling accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court.

We find that they 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 for her to live with a husband who was taunting her MAT.APP.(F.C) 95/2017 Page 19 like that and rendered the maintenance of matrimonial home impossible.” (emphasis added)

  1. Again, in a recent decision in the case of Narendra vs. K. Meena reported as AIR 2016 SC 4599, applying the ratio of its earlier decision in the case of Vijaykumar (supra) the Supreme Court has reiterated that unsubstantiated allegations if levelled, amounts to mental cruelty and is a ground for divorce under Section 13(1)(i-a) of the Act. In a very recent judgment in the case of Raj Talreja vs. Kavita Talreja reported as AIR 2017 SC 2138, relying on the ratio of an earlier decision in the case of Ravi Kumar (supra), the Supreme Court has held that “reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of peers” amounting to cruelty. In the case titled Santosh Sahay vs. Hanuman Sahay reported as 2016 IX AD (Delhi) 1, a Division Bench of this Court has held that false character assassination and allegations of such a nature made by a spouse amounts to mental cruelty and the wronged spouse is entitled to seek divorce on that ground.
  2. To sum up, the allegations leveled by the appellant which she failed to substantiate even on the yardstick of preponderance of evidence, are of such a nature that would have lowered the image of the respondent in the eyes of his superiors, subordinates and peers and this act would certainly constitute cruelty. It is an undisputed position that the parties have been living separately since 04.03.2006 and in all this duration, the appellant seems to have made no effort to join the company of the respondent. Rather, her act of 06.03.2006 of cleaning out the joint locker of the parties shows an animus descendi.
  3. In view of the above discussion, we are of the opinion that the findings of the learned Trial Court are based on the evidence on record. The argument of learned counsel for the appellant that the learned Family Court had given more weightage to the evidence of the respondent is turned down as baseless. We find no reason to unsettle the impugned judgment which is accordingly upheld. As a result, the appeal is dismissed in limine with no order as to costs.

 

DEEPA SHARMA (JUDGE) HIMA KOHLI (JUDGE)

Divorce on Adultery Grounds in India under HMA.

What  is Adultery and  when  it may be proved in Court ?

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offense of adultery.

According to Hinduism dictionary,” Adultery is sexual intercourse between a married man and a woman not his wife, or between a married woman and a man not her husband.”

adultery is, as a general rule, proved by presumptive proof based upon;

(a) circumstantial evidence;

(b) evidence of non-access and the birth of children;

(c) contracting venereal diseases;

(d) by evidence of visits to house of ill-repute;

(e) decrees and admissions made in previous proceedings; and

(f) confessions and admissions of the parties which should be generally corroborated though in exceptional circumstances, even if uncorroborated may be acted upon.

Therefore, it is important to understand that mere bald allegations by a spouse that his/her partner was having adulterous relationship with his/her lover after marriage, in absence of any cogent evidence, would not be sufficient to prove.

What is the Punishment in Indian Penal Code for Adultery. ?

In India the offence of adultery is punishable under Section 497 of the Indian Penal Code (IPC), 1860. As it stands, this Section makes only men having sexual intercourse with the wives of other men without the consent of their husbands punishable and women cannot be punished even as abettors.

Section-497- Adultery “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.

What is the Legal Position when  refusal to have sexual intercourse by Partner ?

Whether refusal to have sexual intercourse amounts to cruelty or not depends upon the facts and circumstances of each case. Sexual intercourse is just one of marital rights. No doubt, the denial of sexual relations causes frustration and misery to the aggrieved party and is likely to destroy the fibre of marriage yet reasonable denial on the part of either party does not constitute cruelty. This aspect of marital obligation has been dealt with in most elaborate manner in Jacobson vs. Jacobson, 130 Ny.S.II D 762. It is observed that this obligation is of a personal and delicate nature and depends on sentiments and feelings to such an extent that it would be an intrusion into the privacy of domestic life to stipulate reasonable denial on the part of either party to submit to marital intercourse constitutes cruelty. Such denial does not constitute cruelty even though refusal to have marital sexual relations undermines the essential structure of a marriage.

What  is the definition of adultery  in Divorce Laws:

According to divorce laws, adultery is voluntary sexual intercourse of a married person with a person other than the offender’s wife or husband. Rayden defines it as “Consensual sexual intercourse between a married person and a person of the opposite sex not the other spouse, during the subsistence of marriage. It is no more necessary that a person should continue living in adultery. Single act of intercourse constitutes adultery.

Thus the adultery is to be inferred from circumstances which must indicate inclination, guilty intention and opportunity to commit adultery. Bed room evidence is one of such strong circumstances as way back in 1909 in Kerr v. Kerr, 114 App. Div. 1421, it was observed that where man and a woman who are not husband and wife have bed room privacy, there is strong inference of adultery as they do not sing prayers there.


 

Delhi High Court

Smt. Linda Constance Edwards vs Shri William Edwards & Anr

Equivalent citations: 2001 IIIAD Delhi 482, 91 (2001) DLT 355, I (2001) DMC 746, 2001 (58) DRJ 731

ORDER J.D. Kapoor, J.

  1. Marriage between the parties who are Christians took place more than 25 years ago. Its dissolution has been sought on the ground of cruelty coupled with adultery.
  2. It is alleged that right from day one respondent No.1, i.e. the husband started exhibiting symptoms of cruelty, apathy and lack of interest towards the petitioner and somehow or other the petitioner pulled on with the marriage till the year 1978 in the hope that the respondent No.1 may change. The impression of the petitioner was that the problems of his character may be due to temperament and not a basic trait of his character that may be incorrigible or unchangeable. That off and on the respondent No.1 used to come home fully drunk and indulged in physical beatings. However, when all efforts failed, the petitioner found that respondent No.1 was psychologically ill and has maniac traits right from his childhood and his character is unsuitable for a marital life and so much so the doctors, psychologists and priests have advised him not to entry into a marital life but the respondent No.1 played a fraud upon the petitioner and obtained her consent. In spite of the fact that two children were born to the petitioner during the three years of their joint stay the respondent No.1 developed hatred towards her and stopped having intercourse with her and rather spurned and rejected the advances and offers sometimes fiercely and sometimes in most hateful manner from 1978 to 1980. It is further alleged that during 1978-1980 respondent No.1 used to beat the petitioner almost daily and also used to remain absent from home continuously for 2-3 days without any reason or intimation.
  3. On making inquires through friends and relatives the petitioner came to know that respondent No.1 was having illicit relationship with woman of bad character named Ms. Sonia residing in Paharganj area. When she objected to respondent No.1’s conduct and absenteeism and cruel behavior towards the petitioner and his adulterous affairs he became violent and threw the petitioner and children out of matrimonial home. However, the repeated entreaties did not find favor and he refused to accept the petitioner and children back to matrimonial home. Being compelled by the circumstances she undertook a job for her survival as also for survival of the children.
  4. Now for the last five years the respondent No.1 has been living with another woman Ms.Rubi Mehra, respondent No.2, and when petitioner requested him to leave respondent no. 2 and accept petitioner and children back he did not pay any heed and when she approached his mother, she also expressed her inability by saying that he was no more under her control.
  5. Last attempt to reconcile and mend respondent No.1 was made by the petitioner on 28.9.1997. At about 2.30 afternoon she went to the house where respondent No.1 has been living with aforesaid Ms.Rubi Mehra and finding no response from the doorbell and knock at the door she tried to open the door and moment she pushed it, it got opened since no latch was put inside. When she went inside and did not find anybody in the drawing room, she proceeded to the bedroom and knocked at the door. The respondent No.1 removed the latch and half-opened the door but when she pushed it, respondent No.1 lost the control of his hold and the door got opened. She saw respondent No.2 lying in the bed stark naked. She pulled the bed sheet and covered herself. The only inference was that both of them were having sexual intercourse at that time. Respondent No.1 became very angry and hurt the petitioner on her face and pushed her out of the room and abused her by calling her a bitch and also threatened to kill her in case she again tried to enter the house. Thus, the respondent no.1 has not only committed physical and mental cruelty upon the petitioner but has also been committing adultery since long apart from deserting her and her children.
  6. In spite of having been served with the notice of the petition, none of the respondents came forward to contest it. The petitioner filed the affidavit by way of evidence in support of aforesaid allegations.
  7. As is apparent, there are allegations of physical beating, remaining absent for days from the matrimonial home without information or intimation and having adulterous affairs with two women and lastly having been found in suspicious and questionable circumstances with respondent no.2 in the bed room and the long desertion of the petitioner and the children and failure of all efforts on the part of the petitioner to bring back the respondent no.1 on the path of virtue or attend the husbandly duties.
  8. It is no more valid to say the cruelty occurs only when there is bodily harm or infliction of physical blows endangering life, limb or health. The concept of cruelty in marital relations has widened its net and brought the mental cruelty into its fold. Since element of happiness in marriage has gained currency, the definition of cruelty cannot be put in strait-jacket manner. Marital cruelty which includes mental cruelty also has been enunciated by the Supreme Court in , V. Bhagat vs. Mrs. D.Bhagat. as under :-

“Mental cruelty in S.13(1)(ia) 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.”

  1. Thus it is not always essential that a course of conduct should aim at causing mental pain and suffering in order to constitute the cruelty. It is the effect produced by the course of conduct and acts of a spouse and not the motive that is relevant. It has been rightly said that sometimes words inflict a more painful blow and cause psychological sufferings and emotional distress than physical cruelty, though occasional bickerings or pinpricks are part of normal marital life as human fragility generates such skirmishes.
  2. Whether refusal to have sexual intercourse amounts to cruelty or not depends upon the facts and circumstances of each case. Sexual intercourse is just one of marital rights. No doubt, the denial of sexual relations causes frustration and misery to the aggrieved party and is likely to destroy the fibre of marriage yet reasonable denial on the part of either party does not constitute cruelty. This aspect of marital obligation has been dealt with in most elaborate manner in Jacobson vs. Jacobson, 130 Ny.S.II D 762. It is observed that this obligation is of a personal and delicate nature and depends on sentiments and feelings to such an extent that it would be an intrusion into the privacy of domestic life to stipulate reasonable denial on the part of either party to submit to marital intercourse constitutes cruelty. Such denial does not constitute cruelty even though refusal to have marital sexual relations undermines the essential structure of a marriage.
  3. It is further observed that, if refusal is occasional, or for a short period, it is against public policy to treat it as cruelty. However, complete failure to have sexual intercourse for a prolonged period or its total or irrevocable negation despite advances and requests does constitute cruelty as in the absence of an adequate excuse such refusal strikes at the basic obligations springing from marriage undermining its essential structure.
  4. For instance a denial on the ground of ill health or say after child birth or for some such reasons including excessive or obsessive sexual demands of a spouse may fall in the category of reasonable denial.
  5. Here for several years the petitioner has been denied the sexual relations despite her advances and requests even during the period both were living under the same roof. Such denial is total negation of one of the most important marital obligations and amounts to cruelty.
  6. Though the statutory provisions of Section 10of the Indian Divorce Act all for proof of adultery also if the divorce is sought on the ground of cruelty but in view of the view taken by the Special Bench of Kerala High Court in , Ammini E.J. and etc. v. Union of India and others and the Full Bench of Maharashtra in , Mrs. Pragati Varghese and etc. vs. Cyril George Varghese and etc., it is no more necessary for a party seeking divorce on the ground of cruelty to prove adultery.
  7. In Ammini’s case (supra) the provisions of Section 10were held to be violative of Article 21as well as 14 of the Constitution of India as they compel a deserted or cruelly treated Christian wife to live perpetually tied down to a marriage which has for all intents and purposes ceased to exist as a result of desertion and cruelty shown by the husband concerned are highly harsh and oppressive and as such arbitrary and violative of Article 14of the Constitution of India. Christian spouses alone are not entitled to get dissolution of their marriage on the ground of cruelty and desertion even if perpetrated continuously for any length of time. They are entitled to get only a decree for judicial separation under Section 22 of the Act. Spouses belonging to all other religions governed by the other religions Acts are entitled to get dissolution of their marriage on the ground of cruelty and desertion for the period fixed by the respective Acts. The provisions of Section 10 are held to be discriminatory vis-a-vis Christians spouses merely on the basis of religion.
  8. In Pragati’s case (supra) the Bombay High Court also held the provisions of Section 10as violative of Article 14, 15and 21 of the Constitution of India for the following reasons:

“The different treatment which is accorded to Christian woman under S.10 of the Act is based merely on grounds of sex. Similarly, if one compares the provisions of the other enactments on the subject of divorce, it would be clear that Christian wives are discriminated and have been treated differently as compared to wives who are governed by the other enactments. The discrimination is, therefore, based merely on grounds of religion. The aforesaid discrimination, in the circumstances, is violative both, of Art. 14 and of Art. 15 of the Constitution. Similarly, if one has regard to the dealing with protection of life and personal liberty, it would be clear that the position of Christian women, has been rendered most demeaning as compared to Christian husbands, as also wives governed by other enactments. The provisions contained in S.10 in the circumstances, are violative of Art.21 also.”

  1. This being the position of law the petitioner is even otherwise entitled to decree of divorce on the ground of cruelty though she has also proved successfully the ground of adultery.
  2. According to divorce laws, adultery is voluntary sexual intercourse of a married person with a person other than the offender’s wife or husband. Rayden defines it as “Consensual sexual intercourse between a married person and a person of the opposite sex not the other spouse, during the subsistence of marriage. It is no more necessary that a person should continue living in adultery. Single act of intercourse constitutes adultery.
  3. Here when the petitioner wife came to know that the respondent No.1 has started living with respondent No.2 at premises C-125, Dayanand Colony, Lajpat Nagar, New Delhi – 110024, she visited the premises and found the door closed. There was no response to the doorbell as well as the knock. She pushed open the door that led her to the drawing room. There was nobody. Feeling suspicious she knocked at the door of the bed room. The moment it was in the process of being opened, the petitioner pushed it open forcefully and found respondent No.2 lying stark naked in the bed. On seeing her, she pulled the bed sheet to cover her up.
  4. It is said that the adultery is committed in darkness and secrecy and, therefore, it is difficult to provide a direct proof. Rather eyewitness account or photographic account of evidence of intercourse is taken as offending. A celebrated jurist Raydon in Raydon on Divorce observes that a direct evidence is rather apt to be disbelieved as it smacks of manipulation. It is rare that the parties are surprised in direct act of adultery. In the opinion of Sir William Scott in Lovedon vs. Lovedon, 2 Hagg Con, 1810, (Australian Family Law, p.455), “the only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion, for it is not to lead a harsh and intemperate judgment, moving upon appearances that are equally capable of two interpretations, neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man”.
  5. Thus the adultery is to be inferred from circumstances which must indicate inclination, guilty intention and opportunity to commit adultery. Bed room evidence is one of such strong circumstances as way back in 1909 in Kerr v. Kerr, 114 App. Div. 1421, it was observed that where man and a woman who are not husband and wife have bed room privacy, there is strong inference of adultery as they do not sing prayers there.
  6. In the instant case sufficient bed room evidence has been furnished by the petitioner culminating in proof of adultery.
  7. Taking over-all view and the long course of cruel conduct coupled not only with adulterous dispositions but actual indulgence in adultery, I feel pursuaded to allow the petition and grant decree for dissolution of marriage. Accordingly the marriage is dissolved. A decree sheet be prepared.

 

Statutory Period of six months can be waived in Mutual Consent divorce By Supreme Court of India,

 

Statutory Period of six months can waived in Mutual Consent divorce By Supreme Court of India,    

images-123                                

Divorce by mutual consent is the fastest way or procedure of getting divorce in India. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce under mutual consent, it is necessary for the husband and wife to have lived separately for at least a year. Divorce by mutual consent is fastest because parties can get divorce in six months only and can be shortened if the parties are living separately since long time spam. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under under following Acts which very according to law applicable to parties:-

Sec. 13-B of The Hindu Marriage Act.

Sec. 28 of The Special Marriage Act.

Sec.10-A of The Indian Divorce Act.

The procedure for seeking a divorce by mutual consent is same under each Act, which is initiated by filing a petition, supported by affidavits from both partners, in the Court of Civil Judge Senior Division. Known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both partners present in Court, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce by the court. After six months, the Second Motion Petition for Mutual Consent Divorce should be filed by the couple and they are required to reappear in the court. A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After hearings from the husband and wife, if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a mutual divorce decree. Some of the important issues on which the couple should have agreed, before filling petition are custody of child, alimony to wife, return of dowry items or “Istreedhan” and litigation expenses which should be mentioned in their petition for divorce by mutual consent,.

However, if either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an inquiry. And if the concerned party continues to refuse consent to the divorce petition, the court will no longer have the right to grant a divorce decree. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties

—————————————————————————————————————————————–

 In The Matter of Amardeep Singh   Vs    Harveen Kaur     the Hon’ble Supreme Court held that:-                               …

It was submitted that Section 13B(1) relates to jurisdiction of the Court and the petition is maintainable only if the parties are living separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13B(2) is procedural. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13B(2). Thus, the Court should consider the questions:

  1. i)     How long parties have been married?
  2. ii)    How long litigation is pending?

iii) How long they have been staying apart?

  1. iv) Are there any other proceedings between the parties?
  2. v) Have the parties attended mediation/conciliation?
  3. vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?

14 AIR 2010 Ker 157

The Court must be satisfied that the parties were living separately for more than the statutory period and all efforts at mediation and reconciliation have been tried and have failed and there is no chance of reconciliation and further waiting period will only prolong their agony.

We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably
broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh’s “Principles of Statutory Interpretation” (9th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors.15as follows:

15 (2005) 4 SCC 480
“The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ‘No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.’ “ ‘For ascertaining the real intention of the legislature’, points out Subbarao, J. ‘the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered’. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.”

Applying the above to the present situation, we are of the view that where the Court dealing with a matter is
satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

  1. i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
  2. ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

  1. iv) the waiting period will only prolong their agony.

The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.

. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

Since we are of the view that the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.

. Needless to say that in conducting such proceedings the Court can also use the medium of video conferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the Court, to advance the interest of justice.
The parties are now at liberty to move the concerned court for fresh consideration in the light of this order.

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11158 OF 2017

(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)

Amardeep Singh                                              …Appellant

Versus

Harveen Kaur                                                …Respondent