Rights of Married women in India.

Meaning of Marriage in Indian Culture.

In India, marriage is considered as a pure institution that not only ties two individuals but two families. Marriage as a social institution is an affirmance of civilized social order where two individuals, capable of entering into wedlock

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.

Legal Rights of a married women in India.

It is ironical that most women are unaware of their legal rights, and thus keep mum. In order to fight injustice, it is important to have through knowledge about the rights. The Constitution of India, under Article 14, backs women and their rights in the country. It ensures women equality and equal protection of the laws. Article 15(3) empowers the state to take affirmative action in favour of a daughter-in-law.

Here is a list of rights every married woman should be aware of:

Right to Reside in Marital Home

The Hindu Adoptions and Maintenance Act, 1956, entitles wives a basic right to reside in the matrimonial/marital household. The term matrimonial home refers to a household a woman shares with her husband. Also, she has the right to live in her matrimonial residence even if her husband is not there or is dead.

Many cases have come to light where a husband leaves a rented accommodation when his relationship with the wife turns sour. However, this does not free the man from providing basic maintenance to his wife and children.

That courts in India have upheld the right to reside in a household that must qualify as ‘adequate’ under the right to housing, is clear from several judgments in favour of the domestic violence survivor and her right to adequate housing, granted as part of right to residence under the Protection of Women from Domestic Violence Act, 2005 (PWDVA).

The Protection of Women from Domestic Violence Act, 2005.

Sec.17. Right to reside in a shared household.—

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

Right to Stridhan.

According to the Hindu Succession Law, Stidhan refers to the gifts a woman receives during pre-marriage or marriage ceremonies and during childbirth. This includes any movable, immovable property, jewellery, gifts, money and more (e.g. god bharai, baraat, mooh dikhai).

The main objective of providing Stridhan to a married woman is to provide her some monetary safeguards after marriage.

Domestic Violence Act, 2005- Section 12 of the Domestic Violence Act, 2005 provides for women right to her Stridhan in cases where she is a victim of domestic violence. The provisions of this law can be easily invoked for recovery of Stridhan. Under the residence orders: Prov. (8) the magistrate may direct the respondent to return to the possession of the aggrieved person her Stridhan or any other property or valuable security to which she is entitled.

The Hon’ble Supreme court has given inalienable rights over Stridhan to the married woman. It rules that the right is not lost even after separation from her husband. That is, a wife has complete ownership rights to all her Stridhan, the gifts and money given to her before and after marriage.

Right to Maintenance by Husband.

A wife has the right to claim decent living standards and basic comforts of life from her husband. However, the benefits are subject to the husband’s living standards, his income and property. In case of ties souring, he has to provide basic maintenance facilities to his wife and children.

The basic amenities include food, clothing, residence, education and medical treatment. Section 125 of the Criminal Procedure Code, 1973, supports this right.

What is the Law on Maintenance:

Section 125 in The Code Of Criminal Procedure, 1973

  1. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

  1. Subs. by Act 45 of 1978, s. 12, for” Chief Judicial Magistrate” (w. e. f, 18- 12- 1978 ).

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,-

(a) ” minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;

(b) ” wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’ s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such

Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’ s refusal to live with him.

(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order..

Maintenance under Domestic Violence Act.

Sec. 20 .Monetary reliefs.—

(1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include but is not limited to—

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

Maintenance in Divorce Proceeding.

Section 24 in The Hindu Marriage Act, 1955

24 Maintenance pendente lite and expenses of proceedings. —Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable: 54 [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]

Right to Child Maintenance.

It is the duty of the husband and the wife to provide the required facilities to their minor child. In case the woman is not capable earning a living, then it is the duty of the man to provide financial assistance.

In case both partners are monetarily incapacitated, they can take support from their parents to look after the child.

In the matter of Farooq Ahmed Shala v. Marie Chanel Gillier, The Hon’ble High of Delhi held that:

That no doubt, mother, if she is earning, should also contribute towards the expenses of the child but the expenses cannot be divided equally between the two. However, merely because the Respondent wife is earning, does not give an excuse to the husband to avoid working or undertake the responsibility of maintaining his children.

To read judgments related to Maintenance click the above link of our Legal Blog:

https://maintenancelawinindia.wordpress.com/

 

Right to Restitution of conjugal rights.

Section 9 in The Hindu Marriage Act, 1955

 Restitution of conjugal rights. — 7 [***] When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. 8 [ Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Right to Property in Husband  Share.

Inheritance: The Hindu Succession Act, 1956, did not give daughters and sons equal right in the father’s property. As per the old Act, the daughter enjoyed rights on her father’s property only until she got married. But the Act was amended in 2005. As per the amendments introduced in the Hindu Succession Act in 2005, every daughter, whether married or unmarried, has equal rights as her male sibling to inherit her father’s property after his death. That is, every married daughter has equal rights, liabilities, and duties as her brother’s. Additionally, the daughters also have a share in the mother’s property. If the father does not sign any will before his death, they can turn to the court for legal aid.

Daughters as Coparceners: A coparcenary is formed with the four generations of a family. Earlier, daughters were excluded from being a coparcener. However, according to the Hindu Succession Act (2005), a married woman has equal rights to be a coparcener. It enables the women’s legal rights on coparcenary property. This implies that women of the family have the right to equally inherit a share in the undivided property since birth. They have similar rights and liabilities as the son.

Laws and Act on Property of married women in India.

Hindu Succession Act —- The Act an amending and codifying law provides under section 14 that,(1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

explanation— In this subsection “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase any such property held by her as stridhana immediately before commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

The Married women’s property Act, 1874- Its statement of object and reasons provides that The Indian Succession Act(X of 1865) section 4, declares that no person shall by marriage acquire any interest in the property of the person whom he or she marries. This section however does not apply to marriage contracted before 1st January 1866.

Part III of Indian Succession Act,1925

Section 20 of Indian Succession Act, 1925 which is a consolidating Act provides that, (1) No person shall, by marriage acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.

(2) This section—

(a) Shall not apply to any marriage contacted before the first day of January,1866.

(b) shall not apply, and shall be deemed never to have applied to any marriage one or both of the parties to which professed at the time of the marriage, the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion.

The Hindu Marriage Act, 1955 Section 25 (1) Permanent alimony and maintenance–— (1) Any Court exercising Jurisdiction under this Act may, at the time of passing any decree or at any time subsequent there to, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant, as having regard to the respondent’s own income and other property , if any, the income and other property of the applicant it may seem to the Court to be Just, and any such payment may be secured, if necessary by a charge on the immovable property of the respondent.

Section 27 ,Disposal of property — In any proceeding under this Act, the Court may make such provisions in the decree as it deems Just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly both the husband and wife.

The Hindu Women’s Rights to property Act,1937 An Act to amend the Hindu Law governing Hindu Women’s rights to property.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be limited interest known as Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner,

Right to Live with Dignity and Respect

A wife has the legal authority to live with proper dignity and self-respect with her in-laws. She also has the right to have the same lifestyle that her husband’s and in-laws have. This legal right provides married woman independence after marriage.

Whether Ex-Parte Foreign Divorce Decree is Valid/Enforceable or Invalid in India ?

Whether Ex-Parte Foreign Divorce Decree is Valid/Enforceable or Invalid in India

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The Hon’ble Delhi High Court held in this case as under:-

The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-

” We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.

Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.

Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.

The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.

The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

  1. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.”

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IN THE HIGH COURT OF DELHI AT NEW DELHI

C.R.P.148/2011

PRITAM ASHOK SADAPHULE                         ….. Petitioner

versus

HIMA CHUGH                                                 …. Respondent

CORAM:

HON’BLE MS. JUSTICE VEENA BIRBAL

  1. By this revision petition challenge has been made to order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the application of the petitioner/husband under section 13 of the CPC has been dismissed.
  2. Briefly the facts relevant for the disposal of the present petition are as under:-

The parties met each other in England in the year 2004 and developed liking for each other. On 5th March, 2005, both got married at New Delhi. After about one week of marriage, they went back to England on 12th March, 2005. With the passage of time, disputes and differences arose between them as a result of which they could not live together. In September, 2009, respondent/wife had lodged a complaint of domestic violence, cruelty and assault against the petitioner/husband in Ilford Police Station, England. It is alleged that respondent/wife also invoked the jurisdiction of UK Family Court (Brentford County Court) for Non-Molestation and Occupation order in September, 2009. Thereafter, she had come back to India in December, 2009. In March, 2010, respondent/wife lodged FIR against the petitioner/husband, his parents and family members being FIR no.46/2010 under Section 498-A/34 IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of aforesaid FIR which is pending disposal before the Bombay High Court.

  1. In December, 2010, petitioner/husband had filed a divorce petition before the Ilford County Court in UK for dissolution of marriage by a decree of divorce on the ground that the respondent had misbehaved with him and that he could not reasonably be expected to live with her. It is alleged that respondent was served with the divorce petition on 19th November, 2010.
  2. On 21st December, 2010, respondent/wife had filed a suit being Civil Suit (OS) No.2610/2010 before this court praying for a grant of decree of permanent injunction against the petitioner for continuing with the divorce petition before the court in UK. During the pendency of aforesaid divorce petition, respondent had filed a complaint before learned MM, Dwarka, New Delhi under The Protection of Women from Domestic Violence Act, 2005. The same was dismissed on 24th December, 2010 by the concerned ld.MM, as not maintainable. Respondent filed an appeal against the said order which was dismissed vide order dated 28.3.2011.
  3. The respondent/wife also filed a petition under section 13(1)(ia) of the Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011 praying for dissolution of marriage with petitioner on the ground of cruelty which is pending disposal before learned Addl. District Judge, Delhi.
  4. The ld. Ilford County Court in UK had passed a Decree Nisi on 9th May, 2011 stating therein that marriage between the parties has been broken down irretrievably and ordered that the said marriage be dissolved unless sufficient cause be shown within six weeks as to why the same be not made “absolute”. A copy of the said decree was placed by the petitioner before the ld.Addl. District Judge, New Delhi on 10th June, 2011 hearing HMA 15/2011. Respondent filed a detailed representation before the Ld. Ilford County Court in UK on 15th June, 2011 opposing making the divorce decree absolute. However, the decree passed by the Ilford County Court was made „absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under section 13 of CPC was filed by the petitioner for dropping the divorce proceedings against him on the ground that marriage between the parties has already been dissolved by a decree of divorce by Ilford County Court in U.K., as such divorce petition filed by respondent/wife has become infructuous. Reply was filed by the respondent to the aforesaid application contending therein that decree of divorce passed by the foreign court is not recognised in Indian Law. It was further stated that the ground on which the foreign court had dissolved the marriage i.e., irretrievable breakdown was no ground for dissolution of marriage under the Hindu Marriage Act, as such, the said decree cannot be recognised in India.
  5. After considering the contentions of the parties, the learned trial court relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata Lakshimi & another: (1991) 3 SCC 451, has dismissed the said application.
  6. Aggrieved with the same, present petition is filed.
  7. Learned counsel for the petitioner has contended that respondent-wife has not obtained any declaration from a competent court declaring the foreign decree of divorce as null and void, as such, same cannot be treated as a nullity by the ld.trial court. In support of his contention, learned counsel has relied upon the judgment of this court in Harbans Lal Malik vs. Payal Malik 171 (2010) DLT 67. It is further contended that respondent was served with summons issued by the Ilford County Court on 19 th November, 2010 and she also made a representation there. In these circumstances, it cannot be said that she has not subjected herself to the jurisdiction of the said court. It is further contended that participating or not participating before the foreign court by the respondent is immaterial. The exceptions are given in Section 13 of CPC as to when a foreign judgment is not conclusive and binding. It is contended that in the present case none of the exceptions as stated therein exist.
  8. On the other hand, learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of divorce granted by a foreign court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the foreign decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration of foreign divorce decree as null and void.
  9. Learned counsel for the respondent has contended that judgment of the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that foreign divorce decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.
  10. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-

“12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.

Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.

Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.

The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.

The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

  1. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.”

  1. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed by Hindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.
  2. The contention raised by the petitioner that there should be declaration from a competent court declaring the foreign decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a divorce decree from a foreign court thereby the marriage between the parties has been dissolved, as such, divorce petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.
  1. Further the divorce granted by the Ilford County Court in UK is an ex parte divorce decree. Respondent never submitted herself to the jurisdiction of the said court. Respondent lodged a representation dated 15.6.2011 before the Ilford County Court informing that she was in India when the divorce petition was filed. She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the Ilford County Court not to make the divorce decree “absolute”. Respondent also filed CS(OS)2610/2010 before this court praying for grant of a decree of permanent injunction against the petitioner from continuing with the divorce petition before the court in UK. In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court.
  2. The reliance placed by learned counsel for the petitioner on the judgment of Harbans Lal Malik vs. Payal Malik (supra), is of no help to him. The facts of the said case are entirely different. The learned trial court has also considered the judgment of this court in Harmeeta Singh vs. Rajat Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs. Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC.

In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this court. Petition is dismissed.

VEENA BIRBAL, J

 

Divorce Lawyers in Delhi.

Advocate Prachi Singh

(Family Law Attorney at New Delhi)

A-381,Defence Colony,New Delhi-110024

www.legesjurisassociates.com

Mob: +91-9811-11-4265

Advocate Prachi Singh is Family Law Lawyer, practicing in Supreme Court, Delhi High Court and Districts Courts in Delhi. She is contesting and advising on divorce cases, foreign and NRI divorce cases, child custody cases, International family law cases, ,Divorce Transfer Petition in Supreme Court, DV Act Cases, Maintenance Cases..etc..She has good knowledge in Family Laws Cases of India.

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Dissolution of Marriage or Divorce Laws in India

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.
Procedure for Dissolution of marriage

Contested Divorce
Annulment or Nullity
Divorce by Mutual Consent.

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

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Divorce on Grounds of Cruelty under Hindu Marriage Act, 1955.

“Divorce.– (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party xxx xxx xxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;”

Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such 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’ (Russel v. Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II page 87].

Click here to know more :https://advocateprachi.wordpress.com/2019/02/14/divorce-on-grounds-of-cruelty/

(Where the wife leveled false allegations of illicit relationship with another Lady.)

In Hemwanti Tripathi vs. Harish Narain Tripathi, 181 (2011) DLT 237, it is also held that :
“14……..That the ratio of Ashok Kumar v. Santosh Sharma (supra) and Savitri Bachman (supra) wherein it was held that a decree of divorce on the ground of cruelty can be passed on the strength of false, baseless, scandalous and malicious allegations in the written statement by one party on the other is thus found applicable to the facts of the present case because in the case at hand the husband has not led any evidence in support of his allegations.
As per the settled legal position, casting such aspersions on the character of the other spouse has the affect of causing deleterious affect on the mind of such spouse and the same is a worse form of cruelty

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Divorce on Grounds of irretrievable broken down.

In the matter of : Sardar Avtar Singh vs Amarjeet Kaur Gandhi ( Delhi High Court)
As the parties are living separately for more than sixteen years and there has been no reconciliation and the marriage has been irretrievable broken down, it is just and proper that the marriage between the parties is dissolved by decree of divorce for the reasons stated in paras 12 to 19.

In the another matter : Satish Sitole Vs Smt. Ganga( The Apex Court )

“Having dispassionately considered the materials before us and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, we are also convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably.”

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Divorce on Grounds of desertion.

“It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.”

Click Here to know more :https://advocateprachi.wordpress.com/2019/04/08/divorce-on-grounds-of-desertion/

 

 

Divorce on grounds of irretrievable broken down of Marriage and Cruelty.

Divorce on Grounds of  irretrievable broken down.

In the matter of : Sardar Avtar Singh vs Amarjeet Kaur Gandhi ( Delhi High Court)

As the parties are living separately for more than sixteen years and there has been no reconciliation and the marriage has been irretrievable broken down, it is just and proper that the marriage between the parties is dissolved by decree of divorce for the reasons stated in paras 12 to 19.

  1. Besides the instances of cruelty detailed in the petition, there was another instance of cruelty i.e. the scandalous allegations leveled by the respondent against the appellant of illicit relationship with one Parvinder Kaur. This allegation was made by the respondent in the cross examination of the appellant as against all settled law, the learned Trial Court wrongly rejected this ground of cruelty by simply holding that one single act cannot be treated as cruelty. The relevant part of the judgment to this effect is reproduced hereunder :

“…The counsel for petitioner has contended that the respondent has also inflicted cruelty upon the petitioner as during cross examination, it was suggested to him that he had illicit relations with one Parvinder Kaur and was residing with the said woman. The counsel for petitioner objected to said cross examination of the petitioner being beyond pleadings of the respondent, so, counsel for respondent was not allowed to put further question to that effect to the petitioner. Admittedly, there are no pleadings of the respondent that the petitioner had illicit relations with one Parvinder Kaur and this suggestion to the petitioner was given beyond pleadings. Even perusal of the testimony of the respondent shows that once she had tried to contact the petitioner when he was residing at Rohini, she found one another lady inside the house and petitioner on that occasion had asked the respondent to leave the place or he would break her legs and throw her from the fourth floor. This incident appeared to have taken place subsequent to the filing of the petition and it should have been brought on record by the respondent through her counsel as subsequent event, however, it has not been done so in the present case. No doubt, leveling of scandalous allegations without proof do amount to mental cruelty but in the present case, keeping in view the totality of the circumstances and the conduct of the petitioner one single act of the respondent that she disclosed before the court that petitioner was found living with another woman cannot be treated as cruelty for dissolution of their marriage, particularly, when the respondent till date wants to keep her thirty years old marriage with the petitioner alive….”

  1. It is the admitted position that the parties are living separately since January, 1995, i.e. for more than sixteen years. The allegations of cruelty is also such which makes reconciliation between the parties have “irretrievable broken down” and as such there is no reason to carry on with the broken or dead marriage and continuation with such a marriage will cause further mental cruelty to the appellant. In such cases, it is expedient and necessary to dissolve the marriage with decree of divorce as it has been held in Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511, the relevant part is reproduced hereunder :

“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 endeavor 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.”

In the another matter : Satish Sitole Vs Smt. Ganga( The Apex Court )

“Having dispassionately considered the materials before us and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, we are also convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably.”

Divorce on Grounds of Cruelty under Hindu Marriage Act, 1955

(Where the wife leveled false allegations of illicit relationship with another Lady.)

In Hemwanti Tripathi vs. Harish Narain Tripathi, 181 (2011) DLT 237, it is also held that :

“14……..That the ratio of Ashok Kumar v. Santosh Sharma (supra) and Savitri Bachman (supra) wherein it was held that a decree of divorce on the ground of cruelty can be passed on the strength of false, baseless, scandalous and malicious allegations in the written statement by one party on the other is thus found applicable to the facts of the present case because in the case at hand the husband has not led any evidence in support of his allegations. What surprises this Court the most is that despite the fact that the Trial Court gave the entire findings in favour of the Appellant but still passed the judgment against the Appellant merely on the ground that the acts alleged by the Petitioner against the Respondent at best can be termed as wear and tear of daily life and does not amount to cruelty. The learned Trial Court further held against the Appellant because she failed to produce any close relative including her uncle who was living in neighborhood to prove the instance of beatings given by the Respondent on various dates. This Court fails to comprehend as to how such a view could be taken by the learned Trial Court as clearly serious and malicious allegations of the Appellant having relationship with one Sadhu and her staying out of the house during nights also levelled by the Respondent and as per the settled legal position, casting such aspersions on the character of the other spouse has the affect of causing deleterious affect on the mind of such spouse and the same is a worse form of cruelty. It has not been denied by the Respondent that no evidence was led by him to prove that the Appellant used to go out during night to stay with that Sadhu. The Respondent has also not given any reasons in the Ex. PW 1/1 to severe his relationship with the Appellant.

In the matter of : AJEET PANWAR Vs BABITA ( Delhi High Court).

  1. It is a case where not only false allegations were made against the appellant/husband and in-laws but they were also got arrested and later on acquitted on charges being found to be false. This in itself amounts to cruelty. Even the attempt by the respondent/wife to commit suicide so as to get his in-laws including unmarried Nanad and married Nanad implicated in itself is an act of cruelty on her part upon her husband and in-laws.
  2. Learned Judge Family Court failed to consider all these aspects while dismissing the petition seeking divorce on account of cruelty. Learned Judge Family Court failed to note that in matrimonial pleadings appellant was not required to establish the case beyond reasonable doubt like any criminal trials but on preponderance of probabilities. Both the acts independently were sufficient to prove cruelty and grant of a decree of divorce to the appellant/husband.
  3. The learned Judge Family Court in our estimate failed to approve and appreciate the pleadings of the parties and their evidence under correct legal perspective.
  4. The impugned judgment is not sustainable and is set aside.

 

 

 

 

Divorce on grounds of desertion.

“ It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.”

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IN THE HIGH COURT OF DELHI AT NEW DELHI

MAT.APP.(F.C.) 82/2014

MRS. NISHA RANI                                              ….. Appellant

 

versus

  1. SOHAN SINGH NEHRA ….. Respondent

CORAM:

HON’BLE MR. JUSTICE PRADEEP NANDRAJOG

HON’BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

  1. The parties were married on April 23, 2000 in New Delhi in accordance with Hindu rites and ceremonies, but unfortunately could not go along well, the appellant having left the matrimonial home on September 06, 2003 to live with her parents. Her leaving the matrimonial home on September 06, 2003 was considered an act of desertion and cruelty by the learned Trial Court and hence a decree of divorce dated November 11, 2013 was granted to the husband/ respondent by the learned Judge, Family Court, Dwarka, New Delhi. It is against this decree the appellant-wife has filed this Matrimonial Appeal (Family Court) No.82/2014 and has challenged the impugned judgment.
  2. Briefly stated the facts are that the respondent/husband had filed a divorce petition HMA No.444/2009 (though originally filed before Faridabad Courts and pursuant to the order of the Hon’ble Supreme Court dated February 26, 2010 the petition came to be transferred to Delhi Courts) against his wife alleging his life being made miserable by his wife, she being quarrelsome; always insisting of separation from her in-laws; did not provide him food in time and made his life a hell. On February 14, 2002, the appellant gave birth to a child, who unfortunately expired on February 16, 2002 and she held the respondent responsible for his death and demanded ₹5,000/- as compensation; she used to leave the matrimonial home without his consent on pretext of joining some computer classes; and finally left the matrimonial home with her parents on September 06, 2003 in his absence taking away all her dowry articles and that he lodged DD No.25A dated September 11-12, 2003 with Police Post No.3, NIT Faridabad, Haryana. The husband / respondent also alleged that on April 03, 2004, a daughter namely Tina was born and all her delivery expenses were borne by him and since then he has been visiting the house of the appellant herein requesting her to return to her matrimonial home, but to no avail. The husband / respondent also alleged that on September 08, 2003 he filed a Divorce Petition No.24/2013 in Faridabad Courts, but since she gave an assurance to join him, he withdrew the said petition on January 19, 2004, but yet again the appellant failed to join his company. On June 13, 2004 he convened a Biradari Panchyat, but the appellant did not accept its advice and insulted him in the presence of the panchyat members and rather filed FIR No.477/2005 under Section 498A/ 406 of the IPC at police station Dabri, Delhi. The respondent further alleged that at the advice of the learned Court, he tried to patch up the matter and on January 05, 2006 went to her parents house to bring her back, but was abused and kicked and that he reported the matter to SHO, Dabri, Delhi.

 

  1. The appellant herein denied allegations made in the divorce petition and rather alleged that she was always been treated as an intruder / maid servant by the family members of her husband; was cursed, abused, scolded and her husband used to slap her in the presence of all to denigrate her. The appellant denied that she ever took away any of her articles and rather such articles, excluding jewellary, were returned by her husband before CAW Cell, Nanakpura, Delhi on January 17, 2005. She alleged that respondent has been demanding money on various occasions and her father gave ₹50,000/- towards cost of construction of a house purchased by the respondent, but he was not satisfied; she further alleged that she was harassed and beaten even when she was in family way and that on January 25, 2002, he threatened her to leave him and she had to move to her parents house in an advance stage of pregnancy where her child died; the respondent came to visit her after about 15 days only to blame her for killing their child. He did not pay a single penny towards delivery expenses of ₹30,000/- which were rather spent by her parents. The appellant further alleged that on September 06, 2003 she was again beaten in the morning by her husband; she called her parents and when they arrived, he ran away on seeing them and returned about half an hour later with two person only to abuse the appellant herein and her parents. Her parents then brought the appellant to Delhi. On April, 03, 2004 the respondent came at Delhi under the pressure of his relatives when she had delivered a baby girl but returned on April, 04, 2004 leaving her with her parents; that she is residing with her parents since September 06, 2003, she fear for her life as had suffered domestic violence and it was not possible for her to live with her husband in the given circumstances and that her husband had rather deserted her by his conduct and is not entitle to a decree of divorce.
  2. Both the parties examined themselves in evidence. The learned Judge, Family Court though disagreed with the respondent on various issues viz (a) the appellant ever used to taunt him on petty issues; (b) the appellant has ever pressurized him to live separately from her in-laws; (c) she ever failed to prepare food for him, as alleged; (d) or he was ever abused by the mother of the appellant at the time of death of their first child; (e) or she ever used to leave the matrimonial home without his consent on the pretext of joining computer classes; or (f) she ever abused him in the presence of his landlord at SGM Nagar, Faridabad; as no specific dates or events were disclosed by the respondent/husband either in his petition or in his evidence; and his allegations being generalized statements. The learned Judge, however granted a decree of divorce, primarily, on the grounds (a) the appellant herein admittedly left the matrimonial home on September 06, 2003 and the allegation that she was mercilessly beaten was difficult to digest in the absence of medical record, she being pregnant. The Court disbelieved that her husband ran away on seeing her parents only to return with two person to hurl abuses upon her and her parents. The learned Family Judge rather held that the appellant had left the matrimonial home on September 06, 2003 without any cause and since had failed to join the company of her husband despite his repeated requests has committed cruelty upon him by denying him the matrimonial bliss. Secondly, the learned Judge accepted the fact that on April 13, 2004 a Biradari Panchyat was convened by the husband – respondent at the residence of the appellant in Delhi; but she did not accept the advice of the Panchyat and rather slapped the respondent in the presence of panchyat members and since no suggestion was put by the appellant of not having a Panchyat on April 13, 2004 or of not slapping her husband in presence of such members it was an act of cruelty. Lastly, when on January 05, 2006 respondent husband went to the house of her parents with Rishi Pal and Ram Kumar, he was abused and kicked by the mother of the appellant. The learned Judge Family Court held that these three incidents caused cruelty to respondent and granted him divorce under Section 13 (1) (ia) of the Hindu Marriage Act, 1955. Further, the learned Judge Family Court also held that the appellant herein had left the matrimonial home without any reasonable cause with a requisite intention of bringing the marriage permanently to an end and had failed to join the company of her husband despite his repeated efforts and thus committed the act of desertion, hence petition was also decreed under Section 13(1)(ib) of Hindu Marriage Act.

 

  1. We have heard learned counsel for appellant and have gone through the evidence.

 

  1. Admittedly, the learned Judge, Family Court did not believe the allegations of respondent against the appellant herein that she being a quarrelsome lady was ever forcing him to live separately from her in-laws; or was taunting him on petty issues; or ever refused to cook food for him; or ever abused her husband at the time of death of their first child or threatened to implicate him in false cases; or ever left the matrimonial home without his consent to join the computer classes; or ever abused him in the presence of his landlord at SGM Nagar, Faridabad, but the learned Judge was so overawed of her leaving the matrimonial home on September 06, 2003 without the consent of her husband that he made it a basis for cruelty and desertion by the appellant. A bare perusal of the evidence of the parties, however, would reveal the story otherwise.
  2. Desertion is not a withdrawal from a place, but from a state of things. It is the repudiation by one of all obligations of marriage. It is the abandonment of one spouse by the other without any reasonable cause and without consent of other. Now let us examine if the appellant herein left the matrimonial home on September 06, 2003 without any reasonable cause or was she compelled to leave her home. The incident dated September 06, 2003 is though relevant but is not to be seen in isolation. We need to understand the background to weigh her intention in leaving her matrimonial home. The appellant in her reply to divorce petition as also in her evidence-affidavit Ex.RW1/A had deposed that she was always harassed, humiliated, tortured by her husband / respondent and that he was rude; used to beat her and that even on January 25, 2002 he had threatened to burn her if she does not leave the matrimonial home forthwith and that in order to save her life, she left the matrimonial home at about 06.00PM of January 25, 2002 in advance stage of pregnancy and had reached her parents at Delhi in bare three clothes. She further averred that the respondent did not provide her good diet or medicine and that her first child was born by caesarian operation on February 13, 2002 though expired on February 14, 2002 but despite the respondent being informed about the time of delivery and of death of her child, neither he nor his family members came to see the appellant or her child. The respondent visited her after 15 days only to blame the appellant that she is the one who had killed the child. Now, to find the truth qua her allegations, we need to refer to the cross-examination dated July 04, 2013 of the respondent as PW1 wherein he deposed that the appellant had told him that she was a burden on her parents and would not leave the child as a burden on them and as the child died within 24 hours he blamed the appellant that she has killed the child. Now, making such allegation to a mother whose child had expired a few days before, would rather be a cruelty upon her when admittedly the appellant was still bed ridden, the child being born through a caesarian operation. The respondent rather insulted his wife who was under intense trauma on death of her first child. This admission of respondent rather reveal the helplessness of the appellant-wife.
  3. Now, in the light of above, we need to examine the incident dated September 06, 2003. The appellant herein in her affidavit Ex.RW1/A had deposed that that despite she being pregnant again was given beating by her husband on September 06, 2003. She called her parents by telephoning them and on seeing her parents the respondent ran away from the house and had returned with two person after about half an hour only to abuse the appellant and her parents. Her parents could not tolerate this behavior and brought the appellant to Delhi. While leaving the house her parents had requested the respondent to give her clothes but he refused.
  4. The respondent (PW1) when was cross examined, admitted that on September 06, 2003 the parents of the appellant had visited his house but he went away to buy vegetables and when he returned later in the day, the parents had already left. Though he denied that he ran away from his house but admittedly had left his house allegedly to buy vegetables. His conduct of leaving the house and returning later in the day reveal that he did not intend to face the parents of the appellant. Moreso, the appellant (RW1) in her affidavit Ex.RW1/A had repeatedly said that she and her parents tried to patch up with the respondent, but all their efforts had failed. The respondent did not prefer to cross examine the appellant (RW1) on any of her assertions made in her affidavit Ex.RW1/A. Thus, her deposition qua her cause to leave her matrimonial home on January 25, 2002 and again on September 06, 2003 was duly explained by her in her affidavit Ex.RW1/A needed to have been given due weightage especially when it was an unchallenged testimony and here the learned Judge Family Court went wrong.

 

  1. The respondent herein, if intended to secure a decree on the grounds of cruelty and desertion ought to have proved his allegations by leading positive evidence and not ought to have depended upon the suggestions not been put to him. Admittedly, per his cross examination as PW1, the respondent herein had visited his wife few days after first delivery and rather taunted that she had killed the child and thus committed an act of cruelty. Moreso the allegations of being beaten, harassed etc. made by appellant in her affidavit Ex.RW1/A also went unchallenged.
  2. Though admittedly on September 06, 2003 the appellant herein had left the matrimonial home under the circumstances above but the respondent failed to prove his sincere effort to call her back. Rather he filed a divorce petition No.24/2013 in Faridabad on September 08, 2003 i.e. just two days after and that too on the ground of desertion alleging his wife had deserted him since last more than a year, thus concealing the fact that his wife was three months pregnant with his second child who later was born on April 03, 2004. Admittedly, the respondent withdrew the said divorce petition on January 19, 2004, probably realizing his mistake that his wife was pregnant. The filing of HMA Petition No.24/2013 for divorce within two days of her leaving the matrimonial home show the hollowness in his claim of making sincere efforts to bring her back. The filing of a petition of divorce on false ground and then unilaterally withdrawing it rather adds to the cruelty upon the other spouse.
  3. We also note the appellant herein has deposed in her affidavit Ex.RW1/A that the respondent never visited her parental house to bring her or her daughter to the matrimonial home despite the fact that now daughter is more than nine years old.
  4. Thus, her staying with parents since September 06, 2003 was duly explained by the appellant herein and there exist a reasonable cause for her staying separate. The fact that she and her parents tried to patch up the matter and tried to convince the respondent, per affidavit Ex.RW1/A, rather show that she never intended to end up matrimonial ties with the respondent, she being unemployed, staying with her old parents who rather were bearing expenses of her and that of her daughter. The record reveal the respondent rather had deserted the appellant and even today she has to fight for her maintenance.

 

  1. Now, the second incident relied by the learned Judge, Family Court is of dated June 13, 2004 when the respondent allegedly had called a Biradari Panchyat and had reached the residence of the appellant herein along with one Ram Kumar, Om Prakash and Bir Singh, but the appellant did not accept the advice of the Panchyat and rather had slapped the respondent in the presence of members of Panchyat. This incident is denied by the appellant in her reply/written statement dated August 06, 2010. Rather her stand is that her complaint was being heard from October 20,2003 to June 17, 2005 in the Anti Crime Women Cell, Nanakpura, Delhi and during such hearings the respondent was asked so many times by the Investigating Officer to visit the house of the appellant herein, but he never came. Though, it is correct that appellant did not cross-examine the respondent (PW1) on this incident, but in the face of the denial by the appellant in her reply dated August 06, 2010, the respondent was required to do something more; he ought to have produced such witnesses, allegedly present at the time of alleged incident dated August 06, 2010.
  2. Likewise, the respondent failed to produce Rishi Kumar and Ram Kumar as his witnesses who allegedly went on January 05, 2006 with respondent to the parental house of the appellant where he was allegedly kicked by the mother of the appellant.
  3. If the respondent was abused by his wife or by her mother on June 13, 2004 or on January 05, 2006, then in view of the denial of such incidents by the appellant in her reply dated August 06, 2010, he ought to have produced the best evidence available with him viz his friends or relatives who allegedly accompanied him on such dates.
  4. On the other hand, the appellant in her affidavit Ex.RW1/A had elaborated the circumstances to show how she was tormented by her husband in her matrimonial house; why she had left the matrimonial home; the apathy shown by her husband towards her and their child by not even meeting the child once. The appellant rather proved that she was a victim of domestic violence as was always abused, taunted by her husband/respondent. The admission of the respondent that he accused his wife of killing their son and his conduct of leaving his house on September 06, 2003 and not returning till appellant was taken away by her parents and the fact of his filing a divorce petition within two days thereafter on a false ground do show the respect he had for his wife and the way he used to treat her. It is an admitted fact that FIR under Section 498A/406 of the IPC is still pending against him and we note the efforts put in by the appellant to secure maintenance for self and for her daughter by moving applications every now and then.
  5. Thus, looking at the material which has come on record it is clear that wife had sufficient grounds to live separately. We are of the view that learned Judge, Family Court, Dwarka, has misread the evidence and though the appellant left the matrimonial home, but she never wished to bring her marital ties permanently to an end. The desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave, the desertion could be by such conduct of other spouse and compelled to live separately.
  6. In the decision reported as (2010) 4 SCC 476 Ravi Kumar vs Julmidevi the Supreme Court has observed as under:-

“13. It may be noted only after the amendment of the said Act by the amending Act 68 of 1976, desertion per se became a ground for divorce. On the question of desertion, the High Court held that in order to prove a case of desertion, the party alleging desertion must not only prove that the other spouse was living separately but also must prove that there is an animus deserendi on the part of the wife and the husband must prove that he has not conducted himself in a way which furnishes reasonable cause for the wife to stay away from the matrimonial home.”

  1. Thus, the facts above do show that appellant was forced by the conduct of the respondent to leave the matrimonial home and that it is the respondent who is guilty of constructive desertion and had made the appellant and her daughter run from pillar to post even for their bare minimum maintenance and had rather failed to prove the behavior of the appellant towards him was such that it ever caused a reasonable apprehension in his mind that it was not safe for him to continue the matrimonial relations with the appellant. The respondent herein had failed to bring his case within the parameters of cruelty and desertion as defined and as such, we set aside the impugned judgment dated November 22, 2013 of the learned Judge, Family Court, Dwarka in HMA No.444/2009 tilted ‘Sohan Singh Nehra vs Nisha Rani’.
  2. The appeal is thus allowed. The impugned judgment and decree dated November 22, 2013 is set aside. HMA No.444/2009 filed by the respondent is dismissed.
  3. No order as to cost.

(YOGESH KHANNA) JUDGE (PRADEEP NANDRAJOG) JUDGE JANUARY

Divorce on Grounds of Cruelty.

“Divorce.– (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party xxx            xxx       xxx (ia)            has, after the solemnization of the marriage, treated the petitioner with cruelty;”

Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such 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’ (Russel v. Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II page 87]. The provision in clause (ia) of Section 13(1), which was introduced by the Marriage Laws (Amendment) Act 68 of 1976, simply states that ‘treated the petitioner with cruelty’. The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct and not fail in some circumstances. By the amendment the Legislature must, therefore, be understood to have left to the courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases.          It seems permissible, therefore, to enter a caveat against any judicial attempt in that direction (Mulla Hindu Law, 17th Eidition, Volume II, page 87).

In the case of Dastane vs. Dastane, AIR 1975 SC 1534, examined the matrimonial ground of cruelty as it was stated in the old Section 10(1)(b) and observed that any inquiry covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live with the respondent.         It was further observed that it was not necessary, as under the English law that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. In essence what must be taken as fairly settled position is that though the clause does not in terms say so it is abundantly clear that the application of the rule must depend on the circumstances of each case; that ‘cruelty’ contemplated is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The treatment accorded to the petitioner must be such as to cause an apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably be expected to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status environments and social values, as also the customs and traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, this Court construing the question of ‘cruelty’ as a ground of divorce under Section 13(1)(ia) of the Act made the following observations :

“Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act.  Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent.   Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental.    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.           In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent.

Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.”

This Court, construing the question of mentral cruelty under Section 13(1)(ia) of the Act, in the case of G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296, observed :

“The court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances.            Having regard to the sanctity and importance of marriages in a community life, the court should consider whether the conduct of the counter-petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is cruelty on the part of the counter-

petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.”

Quoting with approval the following passage from the judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337, this Court observed therein:

“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”.

Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91).

The foundation of the case of ‘cruelty’ as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated.            When the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations.      She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K.Jain. This Court in the case of Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : “Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment”.

Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior 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 behavior or behavioral pattern by the other. Unlike the case of physical cruelty the 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 misbehavior 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.

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