dissolution of marriage/Divorce/Annulment/Separation/divorce by mutual consent under Hindu Marriage Act 1955.

Divorce can be sought by husband or wife on certain grounds, including: continuous period of desertion for two or more years, conversion to a religion other than Hindu, mental abnormality, venereal disease, and leprosy.  Newly married couples cannot file a petition for divorce within one year of marriage.

This Act may be called the Hindu Marriage Act, 1955.

(2) It extends to the whole of India except the State of Jammu and Kashmir 1 , and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

 Application of Act. —

 This Act applies—

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation. —The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. State Amendment Pondicherry: In section 2, insert the following sub-section:— “(2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry

Conditions for a Hindu marriage. —A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

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

2 [(ii) at the time of the marriage, neither party—

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

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

(c) has been subject to recurrent attacks of insanity 3 [***];]

(iii) the bridegroom has completed the age of 4 [twenty-one years] and the bride, the age of 5 [eighteen years] at the time of the marriage;

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

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

Ceremonies for a Hindu marriage. —

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

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken. State Amendments Section 7A Pondicherry: After section 7, insert the following section, namely:—

(a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife or, as the case may be, her husband; or

(b) by each party to the marriage garlanding the other or putting a ring upon any finger of the other; or

(c) by the tying of the thali.

Restitution of conjugal rights.

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.

Judicial separation .—

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Void marriages.

—Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 11 [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses

(i) , (iv) and (v) of section 5.

Voidable marriages .—

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—

12 [(a) that the marriage has not been consummated owing to the impotence of the respondent; or]

(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 13 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)*], the consent of such guardian was obtained by force 14 [or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent]; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if—

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied—

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 15 [the said ground].

Divorce. —

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation .—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 18 [***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 19 [***] 20 [ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 21 [***]

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or 23 [bestiality; or]

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]

 Divorce by mutual consent. —

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

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

 

 

 

 

Advertisements

Mutual Consent Divorce under sec.13-B of HMA can be withdraw any time.

. In the present case, no petition under Section 13-B of the Act has been filed. The petitioner wants for a decree in divorce suit under Section 13 of the Act, in view of compromise dated 10.10.2014, as this compromise would operate as estoppel against the respondents. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Supreme Court in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545, held that it is now well known, the rule of estoppel has no application where contention as regards a constitutional provision or a statute is raised.. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. As held by Supreme Court in various cases cited above, the parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.

The Hon’ble Supreme Court in case of  Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, held that the language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.


 

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. – 58 Reserved

Case :- MATTERS UNDER ARTICLE 227 No. – 7414 of 2015
Petitioner :- Ashish Kumar Srivastava
Respondent :-Smt. Ankita Srivastava
Counsel for Petitioner :-Siddhartha Varma, Anup Kumar Srivastava, S.K. Varma
Counsel for Respondent:- Dhirendra Pratap Singh, H.M.B. Sinha

Hon’ble Ram Surat Ram (Maurya),J.
1. Heard Sri S.K. Varma, Senior Advocate, assisted by Sri Siddhartha Varma, for the petitioner and Sri H.M.B. Sinha along with Sri Dhirendra Pratap Singh, for the respondent.
2. This petition has been filed for setting aside the order of Principal Judge Family Court dated 08.10.2015, deferring disposal of application (28-C) filed by the petitioner and fixing a date for framing issues in Divorce Suit and to issue direction to Principal Judge Family Court, to decree Divorce Suit in view of compromise dated 10.10.2014, entered into between the parties.
3. Ashish Kumar Srivastava (the petitioner) married to Smt. Ankita Srivastava (the respondent) according to Hindu rites on 17.05.2011. The petitioner filed a suit on 26.05.2012 (registered as Divorce Suit No. 321 of 2012) under Section 13 of Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for grant of decree of divorce. It is alleged that in retaliation to this suit, the respondent initiated following proceedings against the petitioner and his family members:-
(I) Criminal Case No. 721 of 2012, arising out of Case Crime No. 270 of 2012 under Section 498-A, 323, 504, 506 IPC and 3/4 of Dowry Prohibition Act, PS Shahpur, district Gorakhpur.
(II) Case No. 564 of 2012 under Section 125 Cr.P.C.
(III) Case No. 39 of 2013 under Prevention of Domestic Violence Act, 2005.
(IV) Case No. 116 of 2013 U/S. 406 IPC and 3/4 of Dowry Prohibition Act.
(V) Case No. 1393 of 2013 under Section 323, 504, 506, 379 IPC.
(VI) Case Crime No. 116 of 2013 under Section 504, 506 IPC
(VII) Matrimonial Suit No. 712 of 2013 under Section 9 of Hindu Marriage Act.
4. The petitioner filed an application under Section 482 Cr.P.C. (registered as Criminal Misc. Application U/S 482 Cr.P.C. No. 425 of 2013) for quashing, entire proceeding of Criminal Case No. 721 of 2012, under Section 498-A, 323, 504, 506 IPC and 3/4 of Dowry Prohibition Act, PS Shahpur, district Gorakhpur. This Court vide order dated 18.01.2013 referred the dispute to Mediation and Conciliation Center., Allahabad. The parties settled their dispute before Mediator, who submitted report dated 11.09.2013. Under the settlement the petitioner had to pay Rs. 18,00,000/- as one time permanent alimony to the respondent and permit her to take ornament from bank locker. After compliance of this condition, the respondents agreed to withdraw all the complaints and suit filed by her. Divorce Suit No. 321 of 2011 has to be decreed. When the case was listed before this Court on 09.09.2014, the petitioner took time for payment of aforesaid amount as such 09.10.2014 was fixed before this Court. On 09.10.2014, the petitioner gave two bank drafts of Rs. 18,00,000/- in favour of the respondents in Court. The case was adjourned for 10.10.2014 in order to enable the parties to file written compromise. On 10.10.2014, the parties filed joint affidavit in the shape of compromise, incorporating aforementioned terms. Both the parties appeared before the Court on 10.10.2004 and filed joint affidavit in shape of compromise. Two bank drafts of Rs. 18,00,000/- was handed over to the respondent by the Court. Criminal Misc. Application U/S 482 Cr.P.C. No. 425 of 2013 was allowed and Criminal Case No. 721 of 2012 was quashed by order dated 10.10.2014.
5. The petitioner filed an application (18-C) dated 22.10.2014, before Principal Judge Family Court, for decreeing Divorce Suit No. 321 of 2012 in view of the compromise dated 10.10.2014, the aforesaid. The respondent filed an application before this Court for recalling order dated 10.10.2014. When application (18-C) came for hearing before Principal Judge Family Court, the respondent raised an objection that as she had filed an application for recalling order dated 10.10.2014 as such disposal of application (18-C) be postponed. On which Principal Judge Family Court did hear the application (18-C) on 07.01.2015. This Court by order dated 24.07.2015 rejected the recall application filed by the respondent for recalling the order dated 10.10.2014.
6. Then the petitioner filed another application (28-C) dated 30.07.2015, before Principal Judge Family Court, for decreeing Divorce Suit No. 321 of 2012 in view of the compromise dated 10.10.2014, the aforesaid, stating therein that recall application filed by the respondent has been rejected. By the impugned order dated 08.10.2015, disposal of this application was deferred holding that divorce on compromise can only be granted according to provisions of Section 13-B and not in proceeding under Section 13 of the Act. The petitioner filed an appeal (registered as First Appeal No. 596 of 2015) under Section 19 of Family Court Act, 1984, against aforesaid order which was dismissed by order dated 18.11.2015 on the ground that the order dated 08.10.2015 was an interlocutory order and the appeal was not maintainable. Hence, this petition has been filed.
7. The counsel for the petitioner submitted that Section 28 of Special Marriage Act, 1954 provides for mutual divorce. Legislature thought it proper to provide more easy procedure of divorce to Hindus also. By Act No. 68 of 1976, Section 13-B was added under of the Act which provided divorce by mutual consent. Thereafter, Family Court Act, 1984 was enacted. Section 9 of Act, 1984 castes a statutory duty upon Family Courts to persuade the parties to settle their dispute in respect of the subject-matter of the suit. By virtue of Section 10 of the Act, 1984, entire provisions of Code of Civil Procedure, 1908 have been applied to the proceeding before Family Court. Thus provisions of Order 23 Rule 3 C.P.C. is applicable in the proceeding before Family Court. A combined reading of provisions of Section 9 and 10 of the Act, 1984 makes it clear that Family Court at first instance will persuade the parties to settle their dispute in respect of the subject-matter of the suit and if such settlement is arrived then they can file a compromise before Family Court in the suit and suit can be decided in terms of compromise. The suit for divorce under Section 13 of the Act, 1955 is not an exception to the application to Section 9 and 10 of the Act, 1984. As such suit for divorce can also be decided in terms of compromise. Phrase “Subject to the provisions of this Act” used under Section 13-B means in accordance with the provisions of Section 23 of the Act. The compromise operates as estoppel against the parties to it as held by Supreme Court in Nagubai Ammal Vs. B. Shama Rao, AIR 1956 SC 593. The compromise dated 10.10.2014 was duly signed by the parties and verified by this Court in presence of the parties. It is a lawful compromise and has been acted upon in part. The respondent took Rs. 18,00,000/- and ornaments from locker as agreed under this compromise. She had taken benefit of compromise. It is an estoppel by deed as well as estoppel by record. She is now estopped from raising objection that suit for divorce cannot be decreed in terms of compromise, as held by Supreme Court in S. Shanmugam Pillai Vs. K. Shanmugam Pillai, AIR 1972 SC 2059. This Court in Jodhey Vs. State AIR 1952 SC 788 held that High Court has unlimited judicial power. This compromise can be treated as “family settlement”. It acknowledges right and liability of the parties and can be enforced under the law as held by Supreme Court in Sahu Madho Das Vs. Mukund Ram, AIR 1955 SC 481. This Court in Jokhan Vs. Ram Deo, AIR 1967 All 212 has held that the compromise cannot be ignored only for the reason that compromise was entered before the Court which has no jurisdiction. Supreme Court in B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749, held that power conferred under Article 142 of the Constitution is also available to High Court for doing compete justice between the parties. Family Court placed reliance upon the judgment of Supreme Court in Sanjeeta Das Vs. Tapan Kumar Mohanti, (2010) 10 SCC 222. This judgment has not taken any notice of Section 9 and 10 of Family Court Act, 1984 as such it is per-incuriam and does not lay binding precedent as held by Supreme Court in State of U.P. Vs. Synthetins and Chemicals Ltd. (1991) 4 SCC 139. Otherwise also in this case, there was no clause for divorce in the compromise. This Court in Indrawal Vs. Radhey Ram, AIR 1981 All 151 and Supreme Court in Dr. (Mrs) Leena Roy Vs. Dr. Subrato Roy, AIR 1991 SC 92 and Raj Kumar Rana Vs. Rita Rathore, AIR 2015 SC 2668, decreed divorce petition under Section 13 of the Act, on compromise. Impugned order is illegal and liable to be set aside and Family Court is liable to be directed to decree the divorce suit in view of compromise dated 10.10.2014.
8. I have considered the arguments of counsel for the parties and examined the record. Old Hindu law did not allow divorce amongst Hindus of upper communities. In communities of lower strata of Hindus, custom relating to divorce was prevalent. After independence, Special Marriage Act, 1954 was enacted, which is applied to persons whose marriage was performed and registered under that Act for divorce. Section 27 provides for divorce and Section 28 provides for mutual divorce under this Act. Thereafter, Hindu Marriage Act, 1955 was enacted and provisions relating to divorce was provided under Section 13 for all the Hindus and its sub-sect. Thereafter, legislature thought to provide more easy procedure of divorce to Hindus. By Act No. 68 of 1976, Section 13-B was added under of the Act which provided divorce by mutual consent. Supreme Court in Gurbux Singh v. Harminder Kaur, (2010) 14 SCC 301, held that once the marriage has been solemnized among Hindus then it cannot be dissolved, except on the grounds enumerated in Section 13, of Hindu Marriage Act, 1955 or according to Section 13-B. Section 13-B of Hindu Marriage Act, 1955 is quoted below:-
13-B. Divorce by mutual consent.–(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

9. Aim and object of enactment of Family Court Act, 1984 was to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. Under Section 7 of this Act, jurisdiction of Family Court was conferred to exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation to Section 7 of the Act. Thus Family Court has to exercise same jurisdiction, which is exercisable by the Court under the law. Thus it is clear that if a petition is filed under the provisions of Hindu Marriage Act, 1955, then Family Court will exercise jurisdiction that Act only. So far as application of Civil Procedure Code, 1908 is concerned, procedure provided under it has to be followed for exercising jurisdiction Hindu Marriage Act, 1955. In case of contradiction, provisions of Hindu Marriage Act, 1955 would have overriding effect. The counsel for the petitioner relied upon Section 9 and 10, of Family Court Act, 1984 which are quoted below:-
9. Duty of Family Court to make efforts for settlement.– (1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit of proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family Court to adjourn the proceedings.
10. Procedure generally.–(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) (2 of 1974), before a Family Court and for the purposes of the said provisions of the Code, Family Court shall be deemed to be a civil court and shall have all the powers of such court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made there under, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one Party and denied by the other.
20. Act to have overriding effect.–The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

10. A bare reading of the aforesaid provisions shows that although Act, 1984 has an overriding effect but Section 7 of the Act provides for Family Court to exercise jurisdiction conferred under the Act, in which petitions enumerated in Explanation to Section 7 have been filed. For trial of suit for divorce under Section 13 of Hindu Marriage Act, 1955, Family Court has to follow the procedure of C.P.C. but decree of divorce can be granted only on the grounds enumerated under Section 13 of the Act. Hindu Marriage Act, 1955 provides two modes for divorce namely (i) on the grounds mentioned under Section 13 of the Act or (ii) on mutual consent for which a petition has to be presented by both the parties to the marriage and after interregnum period of six they again attorn their consent before the Court. It is well settled principle that when the statute provides a particular procedure for doing an act then the act has to be done according to that procedure and not at all. In this respect judgment of Supreme Court in K.S. Saini Vs. H.C. Delhi, (2012) 4 SCC 307 may be referred.
11. Issue as the whether consent given at the initial stage for divorce can be withdrawn at the later stage came for consideration before Supreme Court in Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, in which it has been held that from the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”. What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.
Sub-section (2) requires the court to hear the parties which means both the parties. If one of the parties at that stage says that “I have withdrawn my consent”, or “I am not a willing party to the divorce”, the court cannot pass a decree of divorce by mutual consent. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. “The consent must continue to decree nisi and must be valid subsisting consent when the case is heard”.

12. Again a Bench of three Hon’ble Judges of Supreme Court in Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, held that we are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above.
In our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. Same view has been taken in Sanjeeta Das v. Tapan Kumar Mohanty, (2010) 10 SCC 222, in which it has been held that more importantly, the consent of the parties is of no relevance in the matter. No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties dehors the grounds enumerated under Section 13 of the Act, unless of course the consenting parties proceed under Section 13-B of the Act.
13. Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, held that the language employed in Section 13-B(2) of the Act is clear. The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
In other words, if the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression “divorce by mutual consent” would be otiose.
14 In Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, it has also been held that the power under Article 142 of the Constitution is plenipotentiary. However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction. Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably.
15. In the present case, no petition under Section 13-B of the Act has been filed. The petitioner wants for a decree in divorce suit under Section 13 of the Act, in view of compromise dated 10.10.2014, as this compromise would operate as estoppel against the respondents. Rule of estoppel is a rule of evidence. There can be no estoppel against statute. Supreme Court in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545, held that it is now well known, the rule of estoppel has no application where contention as regards a constitutional provision or a statute is raised.. Section 13-B itself gives liberty for second thought to the parties. The consent must continue during the interregnum period and after this period the parties should again confirm their consent before the Court. As held by Supreme Court in various cases cited above, the parties can withdraw their consent during this period. As such Rule of estoppel has no application in a petition under Section 13-B of the Act.
16. In view of aforesaid discussions, this petition has no merit and is dismissed.
Order Date :- 8.4.2016
Jaideep/-

HOW TO GET A DIVORCE IN INDIA

29_12_2013-divorce29_s

India has different divorce laws for different religions. Almost all the religions has their own divorce laws in India which are used among themselves. There are separate laws for inter-cast or inter-religion marriages. Divorce laws in India for Hindus is described in Hindu Marriage Act, 1955. Hindu Marriage Act is also used for Sikhs, Buddhists and Jains as they don’t have their own separate marriage and divorce laws. Here is the list of various divorce laws in India for various religions:

Hindu (including Sikhs, Jains and Buddists) : Hindu Marriage Act, 1955

Muslims : Dissolution of Muslim Marriages Act, 1939

Christians : Indian Divorce Act, 1869

Parsis : The Parsi Marriage and Divorce Act, 1936

Inter-Cast of Inter-Religion : Special Marriage Act, 1954

The Indian Divorce, Act Special Marriage Act, the Parsi Marriage and Divorce Act and the Hindu Marriage Act, provide for annulment of the marriage, since its very inception, on grounds such as the non-fulfillment of mandatory conditions.. The Indian Divorce act requires confirmation by the High Court to come into effect.

Grounds for Divorce in India

In India divorce is granted mainly on 4 different grounds.

  1. Adultery
  2. Desertion
  3. Cruelty
  4. Impotency
  5. Chronic Diseases

 

Contested Divorce under Hindu Marriage Act 1955

Divorce. —

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

16 [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

16 [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

16 [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

17 [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation .—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has 18 [***] been suffering from a virulent and incurable form of leprosy; or

(v) has 18 [***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 19 [***] 20 [ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

Mutual Consent Divorce under Hindu Marriage Act.

mutual divorce

Divorce by Mutual Consent

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes a minimum of six months. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged spouses can mutually agree to a settlement and file for a “no-fault divorce” under Section 13B of the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband and wife to have lived separately for at least a year.

Sec.13-B of Hindu Marriage Act 1955- Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

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

Procedure for Filing for Divorce

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

ANNULMENT OF MARRIAGE UNDER HINDU MARRIAGE ACT:

marriage

There are two ways to legally end a marriage – annulment and divorce. An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid. A divorce, or legal dissolution of a marriage, is the ending of a valid marriage between a man and a woman returning both parties to single status with the ability to remarry. While each individual state has its own laws regarding the grounds for an annulment or for a divorce, certain requirements apply nationwide.

An annulment case can be initiated by either the husband or the wife in the marriage. The party initiating the annulment must prove that he or she has the grounds to do so and if it can be proven, the marriage will be considered null and void by the court. The following is a list of common grounds for annulment and a short explanation of each point:

Bigamy – either party was already married to another person at the time of the marriage
Forced Consent – one of the spouses was forced or threatened into marriage and only entered into it under duress.

Fraud – one of the spouses agreed to the marriage based on the lies or misrepresentation of the other.

Marriage Prohibited By Law – Marriage between parties that based on their familial relationship is considered incestuous.

Mental Illness – either spouse was mentally ill or emotionally disturbed at the time of the marriage.

Mental Incapacity – either spouse was under the influence of alcohol or drugs at the time of the marriage and was unable to make informed consent.

Inability to Consummate Marriage –
 either spouse was physically incapable of having sexual relations or impotent during the marriage.

Underage Marriage – either spouse was too young to enter into marriage without parental consent or court approval.

Depending on your state of residence, a divorce can be much more complicated than an annulment. Like annulment cases, each state has its own set of laws regarding divorce. In most divorce cases, marital assets are divided and debts are settled. If the marriage has produced children, a divorce proceeding determines custody of the children, visitation rights and spousal and child support issues.

Each state can have either a “no-fault” divorce or a “fault” divorce. A no-fault divorce allows the dissolution of a legal marriage with neither spouse being named the “guilty party” or the cause for the marital break-up.

Many states now offer the “no-fault” divorce option, a dissolution of a legal marriage in which neither party accepts blame for the marital break-up. In the absence of a “guilty party,” some states require a waiting period of a legal separation before a no-fault divorce can take place. For this reason, in addition to cases where one spouse wishes to assign blame, some parties seek to expedite the legal process by pursuing a traditional, “fault” divorce.

A “fault” divorce is only granted when one spouse can prove adequate grounds. Like an annulment, these grounds vary from state to state, however, there are some overarching commonalities. These guidelines often include addition to drugs, alcohol or gambling, incurable mental illness, and conviction of a crime. The major grounds for divorce that apply in every state are listed below:
Adultery – one or both spouses engages in extramarital relationships with others during the marriage.

Desertion – one spouse abandons the other, physically and emotionally, for a lengthy period of time.

Physical/Emotional Abuse – one spouse subjects the other to physical or violent attacks or emotional or psychological abuse such as abusive language, and threats of physical violence.

Your state law and particular situation will determine whether or not your annulment or divorce will be simple or complex. Familiarizing yourself with the laws for your particular state is the best way to learn what your rights are in the case of a marital dissolution.

Nullity of marriage and divorce:- Void marriages Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5. 12. Voidable.

Marriages.-(1) Any marriage solemnized, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-
(a) that the marriage has not been consummated owing to the impotency of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered ; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

 

What is a marriage annulment?

There are two ways to legally end a marriageannulment and divorce. An annulment is a legal procedure which cancels a marriage between a man and a woman. Annulling a marriage is as though it is completely erased – legally, it declares that the marriage never technically existed and was never valid.

What Is Annulment Of Marriage

In strict Legal terminology, annulment refers only to making a voidable marriage null;if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this.

Annulment is a legal procedure for declaring a marriage null and void. With the exception of bigamy and not meeting the minimum age requirement for marriage, it is rarely granted. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all. Thus unlike divorce, it is retroactive: an annulled marriage is considered never to have existed.

Section 12 of Hindu marriage Act,1955

Voidable Marriages :-

(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

a.that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceedings; or

b.that the marriage is in contravention of the condition specified in clause (ii) of section 5; or

c.that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under section 5, the consent of such guardian was obtained by force or fraud; or

d.that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

 

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage-

a.on the ground specified in clause (c) of sub-section (1) shall be entertained if-

(i) the petition is presented more than one year after for force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

b.on the ground specified in clause (d) of sub-section

(1) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.

 

 

 

 

 

cruelty ground for Divorce under hindu marriage act.

 

cruelty ground for divorce under hindu marriage act.

 Before the trial Court, on the side of the petitioner/wife, she has examined herself as PW.1 and marked 4 documents as Exs.P1 to P4 and on the side of the respondent/husband, he has examined himself as RW.1 and marked 13 documents as Exs.R1 to R13. The Trial Court, after analysing the entire pleadings and evidence on record, came to the conclusion that the contention of the petitioner/wife that the respondent/husband has caused mental and physical cruelty to the petitioner/wife is proved and therefore the petitioner/wife is entitled for divorce on theground of cruelty. The Trial Court has further held that the petitioner/wife is entitled for permanent alimony of Rs.5 lakhs from the respondent/husband. Aggrieved with the above said order, the respondent/husband has preferred this appeal.
21. Per contra, the learned counsel for the petitioner-wife has submitted that the petitioner has alleged several incidences of cruelty in the petition and the petitioner has deposed to prove the same and since the above said incidences happened between the husband and wife, the petitioner-wife alone is competent to speak about the alleged cruelty and the Trial Court has correctly discussed and held that the petitioner-wife has proved the alleged cruelty and granteddivorce on the ground of cruelty and also the permanent alimony awarded by the Trial Court is just and reasonable and no need to interfere with the above said findings of the Trial Court.
24. The learned counsel for the appellant/respondent has relied on the following decisions:
“1. DR.N.G.DASTANE Vs. MRS. S. DASTANE (AIR 1975 SC 1534)
2. P.ABIRAMI Vs. D.E. TAMILARASAN (2012 (2) CTC 607) and
3. SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464)”
and contended that the burden of proof lies only on the petitioner to establish her case and also contended that mere trivial irritations, quarrels and normal wear and tear of married life, which happens in day to day life would not be adequate for grant of divorce on the ground of mentalcruelty and the petitioner has not pleaded with material particulars like date and month and also not pleaded and proved the specific acts of cruelty and therefore the petitioner-wife is not entitled to the relief of divorce on the ground of cruelty.
“74. …. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mentalcruelty. ….”
In the above said decision, the Honourable Supreme Court has held that mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
29. In the instant case, the petitioner-wife has filed petition for divorce on the ground ofcruelty and therefore as per the law laid down by the Honourable Supreme Court in the above decision relied on by the respondent/husband, the petitioner/wife has to prove the alleged incidences of cruelty by adducing reliable evidence.
———————————————————————————————————
IN  THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :      16 .8.2012

CORAM:


THE HONOURABLE  MR.JUSTICE  C.NAGAPPAN
and
THE HONOURABLE  MR.JUSTICE  R.KARUPPIAH


C.M.A No.887 of 2010
and
MP.No.1 of 2010
---

A.Sukumar     .. Appellant/Respondent
 
       Vs.

K.S.Chitra     .. Respondent/Petitioner

 Prayer:  This Civil Miscellaneous Appeal is preferred against the fair and decretal order, dated 27.10.2009, passed  in  F.C.O.P.No.918 of 2003 on the file  of  the  Principal  Family Court, Chennai.   

  For Appellant            :   Mr.S.Soundararajan
          for  Mr.K.S.Natarajan
 
  For Respondent         :   Mr.D.J.Venkatesan  
  
          ----

JUDGMENT
R.KARUPPIAH,J.
This Civil Miscellaneous Appeal is directed against the fair and decretal order, dated 27.10.2009, passed in F.C.O.P.No.918 of 2003 on the file of the Principal Family Court, Chennai. The respondent in the petition is the appellant herein. In this Judgment, for the sake of convenience, the parties are referred to as arrayed in the petition.
2. The respondent/petitioner, who is the wife of the appellant, has filed petition for divorce on the ground of cruelty under Section 13(1)(i)(a) of the Hindu Marriage Act, 1955 and also for permanent alimony of Rs.10 lakhs.
3. Briefly, the case of the petitioner/wife is that the marriage between the petitioner and the respondent was solemnised on 26.1.1996 according to Hindu rites and customs and out of wedlock, a daughter viz. Varshini, aged 6 years and a son viz. Sanjay, aged 1 = years, were born. The respondent is employed as Reservation Clerk in Southern Railway and the petitioner is employed as Clerk in Indian Bank, Perambur.
4. According to the petitioner, at the time of marriage, the respondent’s father informed that all his sons were settled in life and they were all living in their own house and on believing the abovesaid fact, the petitioner’s parents consented for the marriage, but his elder brother Kirubakaran, who was married and having children, was unemployed and the entire family was depending upon the respondent and the respondent’s father had chosen the petitioner in the interest of her income from employment. Further, the respondent’s father and brother insisted the petitioner and the respondent to vacate the house since they wanted to rent out that portion and to utilise the rental income for the said Kirubakaran’s family.
5. It is further stated in the petition that the respondent raised loan and purchased house at No.49, Janagiram Reddy Colony, Villivakkam and as there was insufficiency of funds to purchase the house, he forced the petitioner to collect money from her parents and he had beaten up the petitioner black and blue everyday for not asking money from her parents. The petitioner has further stated that the respondent went to the extent of dashing the face and head of the petitioner on wall by holding her hair in his hands and unable to bear the torture, the petitioner requested her parents, who had helped her by giving Rs.1 lakh from their pension. It is further stated that the petitioner was not even permitted to see or handle the pass-book or cheque books and her jewelleries in the bank locker maintained by the respondent and thus the petitioner was subjected to cruelty both physically and mentally by the respondent.
6. It is further stated in the petition that after vacating from own house, the respondent’s father constructed shops in the building and arranged for permanent income to the said Kirubakaran and for those construction, the respondent, his father and brother jointly humiliated the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner severely and also the respondent’s father and brother threatened the petitioner in indecent manner even in the presence of the respondent.
7. The petitioner has further averred in the petition that the respondent had behaved brutally in the sexual life and he used to wake up the petitioner during mid night and had violent sex with her and when the petitioner refused or expressed her tiredness due to over work, the respondent kicked and assaulted the petitioner and also blackmailed the petitioner to subject herself for violent sexual acts otherwise he will bring call girls to home and he will have sex with them in the presence of the petitioner. It is further stated that the respondent was always suspicious and teased the petitioner and also doubted each and every act of the petitioner and the respondent has refused to purchase the necessary provisions for family and also refused even to give Rs.10 extra as pocket money to the petitioner and on many occasions, inspite of ill-health and tiredness, the petitioner was not able to have a cup of coffee or tea at her working place. The petitioner has further stated that harassment and tortures were increasing day by day and the petitioner was waiting with confidence that the respondent will realise his mistakes and correct himself, but the respondent had taken advantage of the goodness and he started her teasing her through the female child by persuading the child.
8. It is further stated in the petition that on 25.4.2003, the respondent forced the petitioner for sex in the early morning and when the petitioner was not willing, he assaulted her severely and threw her out from the matrimonial home by saying that she was not useful for his sexual life and she has to bring Rs.2 lakhs from her parents, otherwise he will not accept her and therefore the petitioner was living with her parents.
9. The petitioner has further stated that on 27.4.2003, when the petitioner was standing in Villivakkam Railway Station, the respondent shouted at her in most indecent manner by using unparliamentary words and hence the petitioner returned her home and took her brother and escorted her to reach her work place and on the same day, after the petitioner left the house, the respondent’s father and brother entered her parents’ house and abused them in the filthy language and threw their chappals on the petitioner’s parents. While the petitioner’s maternal uncle tried to prevent the situation, he was assaulted by the respondent’s father and brother and hence the petitioner lodged police complaint on 28.5.2003 with W-5 All Women Police Station, Anna Nagar, Chennai which has been proved futile and therefore the petitioner has filed this petition to grant a decree of divorce dissolving the marriage between the petitioner and the respondent and also to grant permanent alimony of Rs.10 lakhs for children.
10. The respondent-husband has filed detailed counter and denied the averments in the petition and stated that there are no sufficient grounds for the grant of divorce and according to Hindu Law, marriage is a sacrament and the relationship of the husband and wife cannot be severed on such flimsy and frivolous allegations. According to the version of respondent, the marriage was held only after enquiring about status of the respondent by petitioner’s father. Further, respondent’s brother viz. Kirubakaran is a technically qualified person and at the time of marriage, he was working in private concern at Ambattur Industrial Estate and his earning was more than sufficient for entire family expenses and he was never depending upon the income of the respondent and therefore the allegations that Kirubakaran was unemployed and his family was depending upon the respondent are all false. The respondent has also denied the allegation that the petitioner was treated by the respondent’s elder brother Kirubakaran and his father as a money lending machine. According to respondent, his father was a retired Railway employee and he is getting pension and also agricultural income and it is sufficient for his retired life and he is not dependent either on the petitioner or respondent’s income.
11. It is further averred in the counter that at the time of marriage, the petitioner was working at Golden Rock Railway Station, Tiruchirapalli till March, 1998 and the respondent was in Chennai and during the weekends, the respondent used to visit Trichy and similarly the petitioner also used to visit Chennai to spend holidays with the respondent. It is further stated in the counter that the petitioner got transferred in April 1998 and thereafter both the petitioner and the respondent stayed together and led a happy life.
12. The respondent has further stated in the counter that the allegations made in the petition that the petitioner was beaten up by the respondent black and blue every day for not asking money from her parents and he went to the extent of dashing the face and head of the petitioner against the wall are all absolutely false and the respondent never been any rude or atrocious behaviour and in fact the respondent on several occasions has shown his love and affection towards the petitioner in abundance. The respondent has further denied the averment that the petitioner was not even permitted to see or handle the pass book, cheque book and jewellery in the bank locker and the petitioner was never restricted to operate her bank account by the respondent being an Either or Survivor account. It is further stated in the counter that the respondent’s father sold his agricultural land of 3 acres at Magarai village and out of the above said amount and also the loan of Rs. 3 lakhs from Ramakrishnapuram Building Society Limited, Villivakkam, he constructed shops near the existing building and it is false to state that the respondent availed loan for the construction and it is constructed for providing a permanent income to the respondent’s brother Kirubakaran. The respondent has also denied the allegation that the respondent’s father and brother jointly humiliated and harassed the petitioner and insisted her to ask money from her parents and the petitioner never suffered any cruelty through the respondent or by his relatives and also denied the averment that the respondent was always suspicious and teased the petitioner without any limitation. It is further stated in the counter that the respondent had never made any harassment and torture to the petitioner and also denied the allegation that the respondent teased her through female child by pampering the child.
13. The respondent has further stated in the counter that since the petitioner had an aversion in joint family, the respondent availed housing loan of Rs.3 lakhs on 5.8.1998 from his bank, Rs.75,000/- from Ind Bank Housing Limited, received Rs.50,000/- from petitioner’s mother as a hand loan and received Rs.40,000/- from his father and purchased a flat for Rs.4,65,000/- and occupied on 6.9.1998 and the petitioner and the respondent jointly lived for five months from April, 1998 to August, 1998. It is further stated that the respondent had repaid the hand loan obtained from the petitioner’s mother and his father. The respondent has further stated that he availed another housing loan of Rs.1,50,000/- during November, 2001 from his employer for alteration and interior decoration of his flat and repaid the loan amount as Rs.2,200/- pm. The respondent has specifically denied the averment made in the petition that the respondent forced the petitioner to collect money from her parents either for purchase of flat or for repayment of loan and also denied the allegation that petitioner’s parents gave Rs.1,00,000/-.
14. The respondent has further stated in the counter that the alleged incidents happened on 25.4.2003 are false and cooked up for the petition. According to respondent, on 25.4.2003, the respondent planned to go to Thiruttani Temple along with his family and he requested the petitioner to accompany them but the petitioner refused and asked him to take only her children and the respondent requested again and again but the petitioner shouted and quarreled with the respondent. It is further stated that the petitioner has no faith in Hinduism and therefore the respondent had cancelled the programme and went to his office and the petitioner also went to her office without preparing any food and on that day, she went to her parents’ house. The respondent has further stated that he tried to talk with the petitioner over phone but the petitioner refused. It is further stated that besides humiliating the respondent, the petitioner gave strict instruction to her parents not to talk with the respondent and it is clear proof for her bad behaviour with the respondent.
15. It is further stated in the counter that on 27.4.2003, being a holiday, the respondent met the petitioner at Villivakkam Railway Station on her way to office and tried to compromise but she refused to talk with him and returned to her parents’ house. The respondent has further denied the allegation in the petition that the respondent’s father and brother entered the petitioner’s parents’ house and abused them in filthy language and threw chappals on the petitioner’s parents and in fact, the petitioner’s father went to petitioner’s house to persuade the petitioner to live with the respondent and lead a happy married life. The respondent has further stated that the petitioner, on a strong influence of her parents, does not desire to continue the marital tie with ulterior motive.
16. The respondent has also stated in the counter that the petitioner lodged a false police complaint on 28.4.2003 and the police conducted enquiry and tried to compromise them but it failed since the petitioner was adamant. It is further averred in the counter that the female child S.Varshini was staying with the respondent and another male child S.Sanjay was staying with the petitioner and the petitioner never allowed to see the child and it clearly shows the amount of cruelty caused to the respondent by the petitioner. The respondent has further stated in the counter that inspite of various allegations against the respondent, the respondent is for reunion only and the petitioner is not showing any indication to live with the respondent. It is further stated by the respondent that the permanent alimony claimed in the petition is only to harass the respondent and put in mental agony and torture on the petitioner’s hands and at any rate, the claim of permanent alimony is high and not maintainable and therefore prayed for dismissal of the above said petition.
17. Before the trial Court, on the side of the petitioner/wife, she has examined herself as PW.1 and marked 4 documents as Exs.P1 to P4 and on the side of the respondent/husband, he has examined himself as RW.1 and marked 13 documents as Exs.R1 to R13. The Trial Court, after analysing the entire pleadings and evidence on record, came to the conclusion that the contention of the petitioner/wife that the respondent/husband has caused mental and physical cruelty to the petitioner/wife is proved and therefore the petitioner/wife is entitled for divorce on the ground of cruelty. The Trial Court has further held that the petitioner/wife is entitled for permanent alimony of Rs.5 lakhs from the respondent/husband. Aggrieved with the above said order, the respondent/husband has preferred this appeal.
18. The points for determination in this appeal are:
“1. Whether the petitioner-wife is entitled to divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955?
2. Whether the petitioner-wife is entitled to permanent alimony as claimed by her in the petition?”
19. Heard the learned counsel on either side and perused the entire materials on record.
20. The learned counsel for the respondent/husband has submitted that the Trial Court came to erroneous conclusion that the respondent/husband continued to demand more money from the petitioner/wife without any oral and documentary evidence and the trial Court without applying its mind and believing the evidence of petitioner-wife, without any proof to the same, has held that the respondent has doubted the act of the petitioner and also the respondent/husband had behaved brutally in sexual life and violent with her. He has further submitted that the Trial Court has failed to consider the evidence of the respondent/husband that the respondent/husband was leading marital life as dutiful husband as well as much abundant of love and affection towards his wife and children beyond doubt, but the Trial Court only based on the police complaint dated 28.4.2003 came to the conclusion that the alleged incidence of cruelty was proved by the petitioner/wife. The learned counsel for the respondent/husband has further contended that the respondent has not caused any mental or physical cruelty to the petitioner as alleged in the petition and the petitioner/wife has failed to prove the alleged incidences of cruelty by any sufficient oral and documentary evidence. He has further submitted that the Trial Court has failed to consider the fact that petitioner/wife was Central Government employee and other material facts and arbitrarily awarded Rs.5 lakhs as permanent alimony and therefore prayed for setting aside the above said order and decree passed by the Trial Court.
21. Per contra, the learned counsel for the petitioner-wife has submitted that the petitioner has alleged several incidences of cruelty in the petition and the petitioner has deposed to prove the same and since the above said incidences happened between the husband and wife, the petitioner-wife alone is competent to speak about the alleged cruelty and the Trial Court has correctly discussed and held that the petitioner-wife has proved the alleged cruelty and granted divorce on the ground of cruelty and also the permanent alimony awarded by the Trial Court is just and reasonable and no need to interfere with the above said findings of the Trial Court.
22. It is not in dispute that the marriage between the petitioner and respondent was solemnised on 26.1.1996 according to Hindu rites and customs and out of wedlock, a daughter viz. Varshini and a son viz. Sanjay were born and it is also not in dispute that both the husband and wife were employees and lived together as husband and wife till 25.4.2003.
23. The incidences of cruelty alleged by the petitioner/wife are as under:
(1) The entire family of the respondent/husband was depending upon the income of the respondent and his elder brother Kirubakaran who was married and having children was unemployed and the respondent’s father had chosen the petitioner in the interest of income from her employment and the petitioner was treated by cruelty.
(2) The respondent-husband forced the petitioner/wife to collect money from her parents when the respondent raised loan and purchased house at No.49, Janagiram Reddy Colony, Villivakkam as there was insufficiency of funds to purchase the house and the respondent/husband beaten the petitioner/wife black and blue everyday for not asking money from her parents and the respondent/husband went to the extent of dashing the face and head of petitioner/wife on wall by holding her hair in his hands and unbearable with the above said tortures, the petitioner-wife requested her parents, who had helped her by giving Rs.1 lakh from their pension.
(3) After vacating the respondent/husband and petitioner/wife from the own house, the respondent’s father constructed shops and at that time, the respondent, his brother and father have jointly humiliated and harassed the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner-wife severely so that she will collect money from her parents.
(4) the respondent had behaved brutally in sexual life and he used to wake up the petitioner during the mid-night and had violent sex with her and when the petitioner refused and expressed her tiredness due to over work, the respondent-husband kicked and assaulted his wife and also the respondent blackmailed the petitioner to subject herself for violent sexual life otherwise he will bring call girls home and he will have sex with them in the presence of petitioner-wife.
(5) The respondent was always suspicious and teased the petitioner and the respondent doubted each and every act of the petitioner and also the respondent refused to purchase necessary provisions for the family.
(6) On 25.4.2003, the respondent-husband forced the petitioner-wife for sex in the early morning and when she was not willing, the respondent assaulted her severely and threw her from matrimonial home by saying that she was not useful for his sexual life and also asked to bring Rs.2 lakhs from her parents otherwise he will not accept her.
(7) On 27.4.2003, when the petitioner-wife was standing in Villivakkam Railway Station, the respondent shouted at her in most indecent manner by using unparliamentary words and hence the petitioner-wife returned back home and took her brother to escort her to reach her work place and on the same day, after the petitioner-wife left the house, the respondent’s father and brother entered the petitioner-wife’s parents house and abused them in filthy language and threw chappals on the petitioner-wife’s parents and therefore the petitioner-wife lodged a complaint on 28.4.2003 with W.5 All Women Police Station.
24. The learned counsel for the appellant/respondent has relied on the following decisions:
“1. DR.N.G.DASTANE Vs. MRS. S. DASTANE (AIR 1975 SC 1534)
2. P.ABIRAMI Vs. D.E. TAMILARASAN (2012 (2) CTC 607) and
3. SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464)”
and contended that the burden of proof lies only on the petitioner to establish her case and also contended that mere trivial irritations, quarrels and normal wear and tear of married life, which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty and the petitioner has not pleaded with material particulars like date and month and also not pleaded and proved the specific acts of cruelty and therefore the petitioner-wife is not entitled to the relief of divorce on the ground of cruelty.
25. Per contra, the learned counsel for the petitioner-wife relied on the following decisions:
“1. SATISH SITOLE Vs. SMT. GANGA (AIR 2008 SC 3093)
2. SAPNA Vs. B. PRADEEP KUMAR (MANU/TN/0823/ 2012 = II (2012 DMC 35)
3. VISHWANATH S/O SITARAM AGRAWAL Vs. SAU. SARLA VISHWANATH AGRAWAL (MANU/SC/0513/2012) and
4. SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464)”
and would submit that the petitioner-wife has clearly stated the incidences of mental and physical cruelty in the petition and also the petitioner has testified the above said facts at the time of evidence and further submitted that the marriage between the petitioner and the respondent was solemnised on 26.1.1996 and on 25.4.2003 onwards the petitioner and respondent were not living together and the petition was filed on 14.5.2003 and it would not be possible for them hereafter to live as husband and wife unitedly and the marriage between the petitioner and the respondent had completely broken down beyond repair and therefore it is a clear case of irretrievable break down of marriage between the parties and therefore the petitioner-wife is entitled to obtain a decree of divorce and the trial Court has correctly dissolved the marriage by granting divorce on the ground of cruelty.
26. In the decision relied on by the respondent-husband in DR.N.G.DASTANE Vs. MRS. S. DASTANE (AIR 1975 SC 1534), it is observed in para No.23 as under:
“23. …. First, as to the nature of burden of proof which rests on a petitioner in a matrimonial petition under the Act. Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1)(b) of the Act. “
In the above said decision, the Honourable Supreme Court has clearly laid down the principle that the burden of proof lies on the petitioner to establish his or her case and therefore the petitioner must prove that the respondent has treated her with cruelty.
27. The learned counsel for the respondent-husband has relied on another decision of a Division Bench of this Court in P.ABIRAMI Vs. D.E. TAMILARASAN (2012 (2) CTC 607), in which, para 16 reads as under:
“16. As far as the allegation of mental cruelty is concerned, as rightly submitted by the learned counsel for the Appellant, the acts alleged against the Appellant, which according to the Respondent, amounts to causing mental cruelty, have not been pleaded with material particulars like the date and month. No specific acts which amounted to causing mental cruelty have been pleaded with material particulars. Only general allegations have been made against the Appellant by the Respondent in the Petition. In the Petition before the Court below, it has not been stated that due to the Appellant’s higher education and wealth and due to superiority complex what was the nature of the behaviour and what was the activity of the Appellant, which caused mental cruelty to the Respondent. Though it has been alleged in the Petition that the Appellant failed to act as a dutiful wife from the date of marriage till the date she left the matrimonial home, the Petition is silent as to what was the duty that was not performed by her.”
In the above decision, this Court has clearly held that as far as the allegation of mental cruelty, the alleged acts have not been pleaded with material particulars like date and month and no specific acts which amounted causing mental cruelty have been pleaded with material particulars and only general allegations have been made and therefore this Court has set aside the decree of divorce granted on the ground of mental cruelty.
28. Further, in the decision of the Honourable Supreme Court in SAMAR GHOSH Vs. JAYA GHOSH (2007 (3) CTC 464), relied on by both the learned counsel for the petitioner/wife and the respondent/husband, it is held in para 74 as under:
“74. …. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. ….”
In the above said decision, the Honourable Supreme Court has held that mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
29. In the instant case, the petitioner-wife has filed petition for divorce on the ground of cruelty and therefore as per the law laid down by the Honourable Supreme Court in the above decision relied on by the respondent/husband, the petitioner/wife has to prove the alleged incidences of cruelty by adducing reliable evidence.
30. Admittedly, to prove the above said incidences of cruelty, on the side of the petitioner/wife, she has not examined any other witness except the interested testimony of the petitioner. Further, on the side of the petitioner, she has marked the marriage invitation as Ex.P1, marriage photo as Ex.P2 and the copy of alleged police complaint dated 28.4.2003 as Ex.P3, given by the petitioner 16 days prior to filing of the petition for divorce and copy of receipt dated 29.4.2003 as Ex.P4 and therefore the oral testimony of the petitioner alone is available to prove the alleged incidences of cruelty. On the side of the respondent/husband, to falsify the contention of the petitioner, the respondent has deposed as RW.1 and also marked Exs.R1 to R13. Admittedly, the marriage was solemnised after six months of betrothal and both the petitioner and respondent’s parents’ houses are situated nearby. Further, the petitioner herself has admitted in her evidence that the petitioner and respondent were not living along with other family members and immediately after marriage, a separate portion was allotted for them and the parents of the respondent and one brother of the respondent viz. Ravikumar were living in another portion and another elder brother of the respondent viz. Kirubakaran was living in upstair portion separately and both the petitioner and the respondent were living only for six months in the above said house and then constructed a new house and lived separately.
31. Further, it is an admitted fact that the respondent’s father viz. Appadurai is a retired Railway employee and getting his pension and also having agricultural lands. It is also revealed that the elder brother of the respondent viz. Kirubakaran is a technically qualified person and he was working in private concern at Ambattur Industrial Estate. Further the petitioner has admitted in her evidence that there is no quarrel between her and the parents of the respondent while living separately in respondent’s parents’ house and after shifting to new house also, the parents of the respondent came there and the petitioner and respondent also used to visit the respondent’s parents’ house and also admitted that even after vacating the house, only the brother of the respondent viz. Kirubakaran was living in the portion and not rented out to anybody.
32. In the above circumstances, on the side of the petitioner, she has not stated any specific incident of demanding money from the petitioner by the family members of the respondent, particularly, by the respondent’s elder brother Kirubakaran. Therefore the allegations of the petitioner that the respondent’s father has chosen the petitioner only in the interest of her income from employment and the entire family of the respondent was depending upon the income of the respondent are not proved by reliable documentary evidence except the interested testimony of the petitioner and as rightly contended by the learned counsel for the respondent, the particulars of demand of money from the petitioner like date, month etc. are not stated in the petition and also not deposed at the time of evidence by the petitioner and therefore the above said incidences of cruelty alleged by the petitioner are not proved.
33. The second and third incidences of cruelty alleged by the petitioner are that the respondent had beaten the petitioner black and blue everyday for not asking money from her parents at the time of purchasing the house at No.49, Janagiram Reddy Colony, Villivakkam and also the respondent went to the extent of dashing the head of the petitioner on the wall by holding her hair in his hands and tortured the petitioner and hence the petitioner requested her parents, who helped by giving Rs.1 lakh from the pension and the respondent and his parents humiliated the petitioner and beaten severely. To prove the above said allegations, except the oral testimony of the petitioner, there is no other oral and documentary evidence. The petitioner has not stated any reason for non-examining the parents of the petitioner to prove the above said demand of money and payment of Rs.1 lakh amount as demanded by the respondent. Further, a perusal of oral evidence of the petitioner reveals that she has deposed completely contradictory with the averments in the petition. In one place, she has stated that before registering document, as demanded by respondent, Rs.25,000/- and after that another Rs.25,000/- was given by her mother and Rs.50,000/- was given by her father and totally Rs.1 lakh was given and after retirement, her father had given Rs.50,000/- i.e., after 2002. The above said fact is not stated in the petition. The same petitioner had again deposed contrary to the above said fact that at the time of purchase of the above said house, the father of the petitioner has not given any amount and only after retirement, he has given amount to the respondent. Admittedly, the above said flat purchased in the year 1998 and the father of the petitioner was retired only in the year 2002 and hence out of retirement benefits, Rs.1 lakh was given to purchase flat is proved as false. The parents of the petitioner alone are competent persons to speak about the facts but they were not examined by the petitioner. Therefore a perusal of oral testimony of the petitioner reveals that the petitioner has falsely deposed about the demand of money as alleged in the petition. The learned counsel for the respondent has further submitted that in the year 1998, the flat was purchased for Rs.4,65,000/- by availing housing loan for Rs.3 lakhs on 5.8.1998 from respondent’s bank under the capacity of an employee and to prove the same, Ex.R2 loan sanction letter has been marked and the respondent has availed Rs.75,000/- from Ind Bank Housing Limited on 17.8.1998 and to prove the same, Ex.R3 was marked and the petitioner’s mother gave hand loan of Rs.50,000/- and the respondent’s father gave hand loan of Rs.40,000/- and the respondent has repaid the hand loan of the petitioner’s mother and also the respondent’s father on instalment basis. The oral and documentary evidence adduced by the respondent reveal that the allegation of the petitioner that Rs.1 lakh was paid for purchase of the above said flat is false and therefore the alleged second and third cruelties are not proved.
34. With regard to fourth and fifth incidences of cruelty are concerned, except the oral testimony of the petitioner, no other evidence was adduced to prove the above said allegations. The learned counsel for the petitioner would contend that the above said incidences happened between the husband and wife and therefore the petitioner alone is competent to speak about the said fact. Per contra, the learned counsel for the respondent has submitted that if really the above said incidences happened, certainly the petitioner would have informed her parents or relatives or co-workers, but in this case, except the petitioner nobody was examined to prove the above said allegations.
35. Further, the petitioner has stated in her evidence that the respondent assaulted the petitioner and caused injuries and taken treatment in the hospital but she has not produced any document and not examined the doctor or parents of the petitioner or neighbour to prove the above said incident. It is further contended that the petitioner was forced to collect money from her parents and the respondent has beaten black and blue everyday for not asking money from her parents and also alleged that the respondent, his brother and father have jointly humiliated and harassed the petitioner to ask for money from her parents and also encouraged the respondent to beat the petitioner to collect money from her parents. The above allegations are all not proved by adducing reliable evidence. Therefore the fourth and fifth incidences of cruelty are not proved by the petitioner as rightly contended by the learned counsel for the respondent.
36. With regard to sixth and seventh incidences of cruelties are concerned, except the oral testimony of the petitioner, no other evidence like parents, brother, neighbour, co-worker who are competent witnesses was adduced to prove the above said allegations. As already discussed, the marriage between the petitioner and the respondent was held on 26.1.1996 and they were living as husband and wife till 25.4.2003. During the above said period, no complaint of any harassment or any complaint to the police was filed and therefore as contended by learned counsel for appellant/respondent the above said allegations have been made in the petition only for filing the petition for divorce and therefore the above said sixth and seventh cruelties are also not proved.
37. The Trial Court, only relying on the oral testimony of the petitioner, who is interested witness, granted divorce as if the alleged incidences were proved. The Trial Court has not considered the contentions of the respondent and the oral and documentary evidence adduced on the side of the respondent to disprove the contentions of the petitioner. Therefore, a careful reading of oral and documentary evidence adduced by both sides reveal that the petitioner has not proved the alleged incidences of cruelty by reliable oral and documentary evidence, but the Trial Court has wrongly held that as if the petitioner has proved the alleged incidences of cruelty.
38. At the time of argument before this Court, the learned counsel for the petitioner has contended that the marriage was held on 26.1.1996 and from 25.4.2003 onwards both husband and wife were not living together and therefore the marriage between the petitioner and the respondent has completely broken down beyond repair and it is a clear case of irretrievable break down of marriage between the parties and on that ground, he prayed for divorce. To substantiate the above said contention, he relied on two decisions as already stated. In the decision reported in SATISH SITOLE Vs. SMT. GANGA (AIR 2008 SC 3093), the Honourable Supreme Court has observed in para 12 as under:
“12. In the said circumstances, following the decision of this Court in Romesh Chander’s case (supra) we also are of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved, subject to the appellant paying to the respondent a sum of Rupees Two lakhs by way of permanent alimony. In addition, the appellant shall also pay the costs of this appeal to the respondent assessed at Rs.25,000/-. The appeal is disposed of accordingly.”
39. As rightly contended by the learned counsel for the respondent, the Honourable Supreme Court has exercised the power under Article 142 of the Constitution and held that since for 14 years the appellant and respondent lived separately and all attempts for re-union failed, the marriage has been broken down irretrievably and dissolved the marriage in the above decision.
40. In another decision in SAPNA Vs. B. PRADEEP KUMAR (MANU/TN/0823/ 2012 = II (2012 DMC 35), relied on by the learned counsel for the petitioner, this Court also held that the marriage between the wife and husband has completely broken down beyond repair and it is clear case of irretrievable break down of marriage between the parties and therefore granted divorce.
41. In the instant case, the marriage was held on 26.1.1996 and both the respondent and petitioner were living together till 25.4.2003 as husband and wife and out of the said wedlock, they have two children. On the side of the petitioner, she has not proved the fact that the marriage has broken down irretrievably and on that ground alone the petitioner is not entitled to divorce.
42. From the above discussion, we are of the view that the petitioner/wife has not proved the alleged incidences of cruelty by her husband by adducing reliable evidence and the Trial Court has erroneously held that the alleged incidences of cruelty were proved and granted divorce and therefore the above said order of the Trial Court on the ground of cruelty is liable to be set aside.
43. We are also of the considered view that the petitioner wife is not entitled to any amount as permanent alimony since the petition filed by the petitioner/wife for divorce is not maintainable as already discussed in earlier paragraphs. Therefore the petitioner is not entitled for permanent alimony as prayed for in the petition and we answer the points accordingly.
 44.  In the result, the Civil Miscellaneous Appeal is allowed and the order and decretal order dated 27.10.2009 passed by the          Trial Court in F.C.O.P.No.918  of 2003  are set aside and the petition in  F.C.O.P.No.918  of 2003  is dismissed.   Considering the relationship of the parties, there shall be no order as to costs.  Connected  MP.No.1 of 2010 is  closed.

           (C.N.J.)          (R.K.J.)
         16.8.2012
Index   : yes
Internet: yes
vks

Copy  to:

The Registrar,
Family Court, 
Chennai.

Wednesday, March 2, 2011

Divorce on Cruelty Grounds in India

Grounds For Divorce in India.

In so many Judgments the Hon”ble Supreme Court and Hon”ble High Court has dissolved the marriage on the grounds of cruelty.

for example if the girl has filed a false complaint against the whole family members of the husbands and if the concerned magistrate has discharged the family members in the case of 498a IPC then its a cruelty upon the husband and good grounds for dissolved the marriage.

please see the recent judgment passed by the Hon”ble Delhi High Court in the matter of

See the whole Judgment:

MAT APP No. 98/2010 Page 1 of 11
IN THE HIGH COURT OF DELHI AT NEW DELHI
MAT APP No. 98/2010
Judgment delivered on: 19.11.2010
Smt. Nitu Aggarwal ….. Appellant
Through: Mr.Rajiv Shukla, Adv.
Versus
Sh.Gireesh Gupta ….. Respondent
Through: Mr.Gyan Prakash, Adv.
CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J. Oral:
*
1. By this appeal filed under Section 28 of the
Hindu Marriage Act, 1955 the appellant seeks to challenge
MAT APP No. 98/2010 Page 2 of 11
the judgment and decree dated 27.4.2010, passed by the
learned Additional District Judge, Delhi, whereby a decree
of judicial separation was passed.
2. Brief facts of the case relevant for deciding the
present appeal are that the parties got married on 5.11.03
at Noida according to Hindu rites and ceremonies and a
female child was born out of wedlock on 14.9.04. The
matrimonial relations between the parties were stained
right from the very beginning of their married life and
distressed by the behaviour of the appellant, the respondent
filed a petition under section 10 of the Hindu Marriage Act,
1955 for a decree of judicial separation on the ground of
cruelty which vide judgment dated 27.4.10 was granted.
Feeling aggrieved with the same, the appellant has filed the
present appeal.
3. Mr. Rajiv Shukla, counsel for the appellant
submits that the learned trial court has wrongly assumed
that the appellant had consumed some poisonous substance
with a view to commit suicide. The contention of the
MAT APP No. 98/2010 Page 3 of 11
counsel for the appellant is that the respondent used to
compel and force the appellant to consume certain
medicines under the pretext that the same were good for
her health and for the child in the womb. Counsel further
submits that the respondent also failed to prove on record
that an attempt of suicide by the appellant was made with
a view to coerce the respondent to accede to any of her
demands and in the absence of any such assertion on the
part of the respondent, no logic or rationale behind the
alleged attempt of suicide by the appellant could be
established by the respondent. Explaining the contradiction
on the part of the appellant in the FIR lodged by her under
Section 498A/406/34 IPC, counsel submits that even if the
appellant in the said FIR took a stand that the respondent
had given her something to drink, the same will not make
any difference vis-à-vis her stand in the matrimonial
proceedings where she had stated that the respondent used
to administer some medicines. Counsel thus submits that
there was a minor variation in the stand of the appellant
which would not amount to any kind of self contradiction on
MAT APP No. 98/2010 Page 4 of 11
her part. Counsel thus states that there is clear infirmity and
perversity in the findings of the learned trial court on this
aspect and the same should be set aside.
4. Assailing the impugned judgment on another
ground, counsel submits that the learned trial court has
wrongly observed that the implication of the relatives of the
respondent is in itself an act of cruelty against the
respondent. The contention of the counsel for the appellant
is that the mere fact that the said relatives were not charge
sheeted by the police would not show that the allegations
leveled by the appellant against the relatives of the
respondent were false. The contention of the counsel is
that at the stage of framing of charges, it would be for the
concerned Criminal Court to see whether based on the
allegations leveled by the appellant in her criminal
complaint such relatives are required to be proceeded
against or not.
5. Counsel for the respondent on the other hand
refutes the submissions made by the counsel for the
MAT APP No. 98/2010 Page 5 of 11
appellant and submits that the present appeal deserves to
be dismissed at the admission stage itself as the appellant
has failed to point out any material illegality or perversity in
the order passed by the learned trial court.
6. I have heard learned counsel for the parties.
7. The petition under Section 10 of the Hindu
Marriage Act was preferred by the respondent husband so
as to seek a decree of judicial separation from the appellant
on the ground of cruelty. The marriage between the parties
was solemnized according to Hindu rites and ceremonies on
5.11.2003 and both the parties are well educated
academically. One of the allegations leveled by the
respondent against the appellant is that the appellant had
consumed some poisonous drink on 18.8.2004 and her
condition became very critical in the morning of 18.8.2004
and she was immediately taken to Kailash Hospital, Noida
and it is only on account of the timely action taken by the
respondent and his parents that life of the appellant and
the unborn child could be saved. It is an admitted case of
MAT APP No. 98/2010 Page 6 of 11
the parties that subsequent to the filing of the said petition
by the respondent husband the appellant wife got
registered one criminal complaint under Section
498A/406/34 IPC vide FIR No. 498/2005 not only against
the respondent but his parents and some other relatives as

well. Some of the relatives implicated by the appellant in the
said complaint case were the residents of far off places like
Saharanpur and Baroda. It is also an admitted case of the
parties that the relatives of the respondent were not chargesheeted
by the police as no incriminating material was
found against them during the course of investigation. The
respondent has taken this false implication of his relatives
on the part of the appellant as a ground of cruelty. Learned
trial court has also granted decree of judicial separation in
favour of the respondent and against the appellant taking
the said two grounds clearly establishing the cruel conduct
of the appellant towards the respondent. Before the learned
trial court as well as before this court the appellant has
failed to disclose as to what kind of medicines were being
administered by the respondent to her during the stage of
MAT APP No. 98/2010 Page 7 of 11
pregnancy on the pretext of the same being good for her
health and that of the unborn child. It is incomprehensible
to accept the argument that the appellant who is a well
qualified lady having a degree of Chartered Accountancy
and Company Secretary would take the medicines without
even knowing what kind of medicines she was taking. The
appellant has also clearly taken a contradictory stand in
her criminal complaint, wherein she stated that she was
given something to drink by the respondent and his parents
on the pretext that it is good for her pregnancy. The
appellant has also not denied the fact that she was admitted
to Kailash Hospital in the morning of 18.8.2004 where she
was treated after having consumed some poisonous
substance. It is also not in dispute that the appellant did not
lodge any police complaint against the respondent or his
parents complaining about administration of some
poisonous medicines by her husband or his parents. The
learned trial court has duly taken into consideration all
these circumstances into account and thus has arrived at a
finding that such an attempt by the appellant to commit
MAT APP No. 98/2010 Page 8 of 11
suicide is an act of cruelty on her part upon her husband.
8. The concept of cruelty is of wide amplitude and has not
been defined in the act. The Apex Court through various
judicial pronouncements has explained the concept and
scope of cruelty. It would be useful here to refer to the
judgment of the Apex Court in the case of A. Jayachandra
vs. Aneel Kaur AIR 2005 SC 534 where it was held as
under:
“12. To constitute cruelty, the conduct complained of should be
“grave and weighty” so as to come to the conclusion that the
petitioner spouse cannot be reasonably expected to live with the
other spouse. It must be something more serious than “ordinary
wear and tear of married life”. The conduct, taking into
consideration the circumstances and background has to be
examined to reach the conclusion whether the conduct
complained of amounts to cruelty in the matrimonial law.
Conduct has to be considered, as noted above, in the background
of several factors such as social status of parties, their education,
physical and mental conditions, customs and traditions. It is
difficult to lay down a precise definition or to give exhaustive
description of the circumstances, which would constitute cruelty.
It must be of the type as to satisfy the conscience of the Court
that the relationship between the parties had deteriorated to
such an extent due to the conduct of the other spouse that it
would be impossible for them to live together without mental
agony, torture or distress, to entitle the complaining spouse to
secure divorce. Physical violence is not absolutely essential to
constitute cruelty and a consistent course of conduct inflicting
immeasurable mental agony and torture may well constitute
cruelty within the meaning of Section 10 of the Act. Mental
cruelty may consist of verbal abuses and insults by using filthy
and abusive language leading to constant disturbance of mental
peace of the other party.
MAT APP No. 98/2010 Page 9 of 11
13. The Court dealing with the petition for divorce on the ground
of cruelty has to bear in mind that the problems before it are
those of human beings and the psychological changes in a
spouse’s conduct have to be borne in mind before disposing of
the petition for divorce. However, insignificant or trifling, such
conduct may cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain pitch of
severity. It is for the Court to weigh the gravity. It has to be seen
whether the conduct was such that no reasonable person would
tolerate it. It has to be considered whether the complainant
should be called upon to endure as a part of normal human life.
Every matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations, quarrels
between spouses, which happen in day-to-day married life, may
also not amount to cruelty. Cruelty in matrimonial life may be of
unfounded variety, which can be subtle or brutal. It may be
words, gestures or by mere silence, violent or non-violent.”
Cruelty therefore is to be garnered taking the cumulative
effect of all the factors into play. The parties are well
educated and such an attempt to end her life by the
appellant would certainly cause mental agony to the
respondent. It would aggravate the case when the appellant
tried to commit suicide in the state of pregnancy. A highly
educated lady claiming that she was administered poisonous
substance which she was unaware of does not help her case.
No doubt in the petition the respondent did not give any
specific reason or cause behind such suicidal attempt but
it goes without saying that such an act even in the absence
MAT APP No. 98/2010 Page 10 of 11
of any reason certainly would constitute an act of cruelty on
the respondent husband.
9. Even on the second argument of the counsel for
the appellant, this court does not find any merit in it. The
complaint under Section 498A/406/34 IPC was lodged by the
appellant during the pendency of the said petition filed by
the respondent for judicial separation. In her complaint the
appellant roped in various relatives of the respondent which
include his uncle and aunt residing at Saharanpur and
brother and sister in law residing at Baroda. The learned
trial court is right in taking a view that false implication of
relatives who were residing at far off places from the
matrimonial home of the appellant and against whom there
are no specific allegations of cruelty in itself is an act of
cruelty by the appellant towards her husband. However, as
these relatives were not charge-sheeted by the police the
same would clearly show that the police did not find any
incriminating material against these relatives during the
investigation and this by itself is sufficient enough to show
MAT APP No. 98/2010 Page 11 of 11
that the appellant had roped in and implicated all these
relatives with vengeance to cause unnecessary harassment
to them and such act certainly would cause cruelty to the
husband with whom they are related. Implicating the
relatives with a motive to harass the relatives, residing in
different parts of the country, is nothing but a ruthless act of
harassment. Therefore, the respondent husband has
successfully proved cruelty on the part of the appellant on
both the counts.
10. In the light of the above, this court does not find
any infirmity or illegality in the findings arrived at by the
learned trial court. There is no merit in the present appeal
and the same is hereby dismissed at the stage of admission
itself.
November 19, 2010 KAILASH GAMBHIR, J

Divorce within one year of marriage under hindu marriage act.

 

The points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date ofmarriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
23. I would like to extract hereunder SectiThe points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date ofmarriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:
“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorcebefore the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition fordivorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
———————————————————————————————————
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20/11/2012

CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA

C.R.P.(PD)(MD)No.2265 of 2012
and
C.R.P.(PD)(MD)No.2266 of 2012
and
M.P.(MD)No.1 of 2012
in
C.R.P.(PD)(MD)No.2265 of 2012

C.R.P.(PD)(MD)No.2265 of 2012:

G.Ganesh Babu … Petitioner/Petitioner/
Respondent
Vs.
A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
!For Petitioner … Mr.K.K.Ramakrishnan ^For Respondent … Mr.J.Barathan * * * * * C.R.P.(PD)(MD)No.2266 of 2012:
G.Ganesh Babu … Petitioner/Petitioner/ Respondent Vs.
A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
For Petitioner … Mr.K.K.Ramakrishnan For Respondent … Mr.J.Barathan * * * * * :COMMON ORDER C.R.P(PD)(MD)No.2265 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
2. C.R.P(PD)(MD)No.2266 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
3. Heard both sides.
4. The petitioner herein namely G.Ganesh Babu and the respondent herein namely A.P.Arthi, are referred to hereunder as husband and wife respectively.
5. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these Civil Revision Petitions, would run thus:
(i) The wife filed the H.M.O.P.No.82 of 2011, during the month of June’ 2011, so to say, within a period of one year from the date of marriage, invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking the following reliefs:
“(a) granting a decree of divorce, dissolving the marriage solemnized between the Petitioner and Respondent on 18.11.2010;
(b) directing the Respondent to pay the costs of this Petition;” however, without filing an application to obtain the leave citing the exceptional circumstances.
(ii) The husband after entering appearance, filed the application in I.A.No.184 of 2011 for rejection of the H.M.O.P.No.82 of 2011 on the main ground that it was presented within one year from the date of marriage and that too, without any application to obtain leave citing exceptional circumstances. The counter affidavit was filed by the husband.
(iii) Whereupon I.A.No.26 of 2012 was filed by the wife seeking virtually ex post facto leave underSection 14(1) of the Hindu Marriage Act, 1955.
(iv) The lower Court heard both the applications and passed a common order allowing the application filed by the wife and dismissing the application filed by the husband.
6. Being aggrieved by and dissatisfied with the same, the husband preferred these two Civil Revision Petitions challenging and impugning the orders passed by the lower Court.
7. The nutshell facts absolutely necessary for the disposal of these two Civil Revision Petitions would run thus:
The petitioner and the respondent got married as per Hindu rites and customs on 18.11.2010 at Aruppukottai. Subsequently, the wife during June’ 2011, so to say, within one year, filed the petition seeking divorce.
8. The learned Counsel for the husband would put forth and set forth his arguments, the warp and woof of the same, would run thus: Obtaining the leave of the Court is sine quo non for filing the H.M.O.P., for divorce within one year and it is mandatory and it cannot be simply ignored as directory. The object of Section 14 of the Hindu Marriage Act, 1955, was not taken into consideration by the lower Court. If this sort of practice is allowed, then the sanctity attached to the marriages, would be set at naught. Over and above that, the reasons found stated for obtaining the said ex post facto leave is frivolous and there is nothing exceptional in it. The dowry demand is the pith and marrow of the alleged exceptional circumstances found set out in the affidavit accompanying the petition filed by the wife. Accordingly, the learned Counsel for the husband citing various precedents, would pray for allowing the I.A.No.184 of 2011 and for dismissal of H.M.O.P.No.82 of 2011.
9. Whereas in a bid to mince meat and torpedo and pulverise the arguments as put forth on the side of the husband, the learned Counsel for the wife, would pyramid his arguments, the pith and marrow of them would run thus: The entire reading of Section 14 of the Hindu Marriage Act, 1955, would connote and denote, project and portray that the obtention of such leave was not mandatory. So far this case is concerned, it is not that wilfully the H.M.O.P.No.82 of 2011 was filed within one year without obtaining leave and unwittingly alone, the petition for divorce was filed without filing the application under Section 14 of the Hindu Marriage Act, 1955, narrating the exceptional circumstances. As such, the lower Court taking into consideration the pro et contra, thought that it would be a mere waste of time to reject the H.M.O.P., and thereby paving the way for the wife to file a fresh petition for divorce on the same grounds.
10. The learned Counsel for the wife also cited various decisions in support of his arguments.
11. The points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date of marriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
Point Nos.(i) and (ii)
12. At the outset itself, I would like to fumigate my mind with the decisions cited by both sides.
13. The learned Counsel for the husband placed reliance on the following decisions:
(i) Swamidoss Joseph v. Miss Edward reported in A.I.R. 1955 MADRAS 341.
(ii) Vinod v. Manju reported in AIR 1982 DELHI 592.
(iii) Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC).
(iv) Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
14. The learned Counsel for the wife relied on the following precedents:
(i) Rabindra Nath Mukherjee v. ITI Mukherjee alias Chatterjee reported in CDJ 1991 Cal HC 017.
(ii) Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435.
(iii) Manisha Jha (Smt). v. Kunal Kanti Jha reported in CDJ 1998 Cal HC
019.
(iv) Kailash v. Nanhku and others reported in (2005) 4 Supreme Court Cases
480.
(v) R.N.Jadi and Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(vi) Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140.
(vii) Gijoosh Gopi, Alappuzha v. S.Sruthi, Alappuzha reported in CDJ 2012 Ker HC 832.
15. A mere running of the eye over the aforesaid precedents would highlight and spotlight the fact that the Division Bench of the Calcutta High Court in Rabindra Nath Mukherjee v. ITI Mukherjeealias Chatterjee reported in CDJ 1991 Cal HC 017, held that seeking leave of the Court within one year to file the petition for divorce from the date of marriage, was only directory and not mandatory and the said decision was followed by the learned Single Judge of this Court inIndumathi v. Krishnamurthy reported in 1998 (III) MLJ 435. The aforesaid decision of this Court is also followed by the learned Single Judge of the Calcutta High Court in Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140. However, the Division Bench of the Karnataka High Court took a different view of the matter in Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
16. As such, the decision of the learned Single Judge of this Court following the decision of the Division Bench of the Calcutta High Court, is very much available before me. Normally, the decisions rendered by the learned Single Judge of this Court should be followed by another learned Single Judge of this Court and the judicial discipline warrants such a procedure.
17. However, the learned Counsel for the husband would place reliance on the decision of the Division Bench of the Karnataka High Court, which is against the decision of the learned Single Judge of this Court as well as the Division Bench of the Calcutta High Court Simply because, a subsequent Division Bench of Karnataka High Court is in variance with the decision of the learned Single Judge of this Court and the Division Bench of the Calcutta High Court, I am not bound to simply follow the said judgment of the Karnataka High Court. The learned Single Judge of this Court placed reliance on the decision of the Division Bench of Calcutta High Court. As such, two Division Benches of two different High Courts have two different views and the learned Single Judge of this Court followed the view of one of such decisions of the Division Benches and wherefore, I am justified in following the decision of the learned Single Judge of this Court and consequently, the decision of the Division Bench of the Calcutta High Court.
18. Over and above that, I would also like to independently furnish my own views in this matter.
19. My mind is redolent and reminiscent of the following legal maxims:
(i) “Verba generalia generaliter sunt intelligenda”. [General words are to be understood generally.]
(ii) “Verba ita sunt intelligenda, ut res magis valeat quam pereat.” [Words are to be so understood that the matter may have effect rather than fail.]
(iii) “Maledicta expositio quae corrumpit textum”. [It is a cursed construction that corrupts the text.]
(iv) “Absoluta sententia non indiget expositore”. [A simple proposition needs no expositor.]
20. I would also like to extract hereunder the relevant excerpt from the famous treatise “Maxwell on The Interpretation of Statutes [Twelfth Edition by P. St. J. Langan]”:
Chapter 5 – Restrictive Construction:
“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended.”
One other excerpt from the same treatise would run thus: “Section 12 (3) of the Matrimonial Causes Act 1950 provided that if the spouse obtaining a decree nisi of divorce did not make an application for it to be made absolute six months after the trial, then the other spouse could make application within a further period of three months and, if the circumstances warranted, obtain a decree absolute. The Court of Appeal held that this did not oust the jurisdiction of the court to substitute a decree of judicial separation for a decree nisi: “had it been the intention of the legislature to revoke this jurisdiction, it would have been done in a clearer way than by inference from the subsection.”
21. On a mere running of the eye over those legal maxims and the principles found enshrined in the aforesaid famous treatise, I am of the view that generally, the time limit prescribed in the procedural laws are directory and not mandatory and further that they are only by way of taking a cue that the time limit prescribed under Section 14 of the Hindu Marriage Act, 1955, will not cut at the jurisdiction of the Court. However, the learned Counsel for the husband placing reliance on the decision of the Honourable Apex Court in Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC), would submit that so far Marriage Laws are concerned, time stipulated cannot be taken as directory, but it should be taken as mandatory.
22. I would like to point out that in the aforesaid decision of the Honourable Apex Court relating to Section 13-B of the Hindu Marriage Act, 1955, what was found stressed is that the consent of both sides should be essential at both stages, viz., at the time of jointly presenting the petition and at the time of obtention of divorce after the prescribed period of six months. There could be no quarrel over such a proposition. However, Section 14 of the Hindu Marriage Act, 1955, is on a different footing.
23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:
“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
25. At this juncture, I would like to recollect the following decisions:
(i) Kailash v. Nanhku reported in 2005 (3) CTC 355.
(ii) Rani Kusum v. Kanchan Devi reported in (2005) 6 Supreme Court Cases
705.
(iii) Salem Advocate Bar Association v. Union of India reported in (2005) 6 Supreme Court Cases 344.
(iv) R.N.Jadi & Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(v) Zolba v. Keshao and others reported in (2008) 11 Supreme Court Cases
769.
26. The pith and marrow, the gist and kernel of the aforesaid precedents is that whenever any condition is stipulated in law in negative language, then that itself is not sufficient to hold that the law contemplated the said provision as mandatory, but the consequences of such non-adhering to the time limit also should be found spelt out in the statutory provision. Under Order VIII Rule 1 of the Code of Civil Procedure, even though in negative language, the provisions are found spelt out, the consequences were not found spelt out. Hence, the Honourable Apex Court consistently held that such time stipulated cannot be taken as mandatory, so much so also, here under Section 14 of the Hindu Marriage Act, 1955, the legislators in their wisdom thought not to impose any consequences of such non-adherence to the time limit.
27. On the other hand, as correctly held by the learned Single Judge of this Court earlier, in the decision cited supra, even a person who got leave by misrepresentation was given the benefit of divorce, but that would take effect after one year from the date of marriage. Hence, I am of the considered view that the decision of the learned Single Judge of this Court in Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435 with great respect is the binding precedent on the point concerned.
28. The learned Counsel for the husband also referred to the Halsbury’s Laws of England – Fourth Edition – by Lord Mackay of Clashfern – Volume 29(3) – 2001.
29. I am of the view that when the earlier decision of this Court is clear and unambiguous on the point, I need not dilate further on that issue.
30. On factual basis, the learned Counsel for the husband would try to canvass his case by pointing out that so far the exceptional circumstances mandated in the affidavit of the wife, are not really exceptional circumstances, but they are only relating to alleged dowry harassment and cruelty. Whereas the learned Counsel for the wife would submit that the allegations found spelt out in the affidavit accompanying the application filed by the wife seeking ex post facto leave were of such a nature that they were so horrible for the wife who is a Doctor by profession.
31. The wife in her affidavit accompanying the application in I.A.No.26 of 2012, set out thus:
“4. I submit that even before the solemnization of marriage, the respondent and his family members demanded 120 sovereign of golden jewels, Rs.8,00,000/- cash and stridhan articles worth about Rs.2,00,000/- from my parents. My parents were put under severe strain and mental agony as they had to arrange the above dowry before the solemnization of marriage. Only after receiving the cash amount of Rs.8,00,000/- on hand one day prior to the marriage, the respondent has agreed to perform the marriage.
5. I submit that after marriage, the conjugal home was set up at Arupukkotai in the house of respondent. At the time of living at Arupukkottai, the respondent has demanded a further dowry of Rs.60,00,000/- from me by saying that his father has borrowed huge amounts from outer sources as a loan to get higher education for him and hence, he has to settle those amounts by getting dowry amount from me. The respondent added that he had married me for money alone. The respondent’s father, and his father’s brother namely, Gunasekaran, the respondent’s brother and sister have often harassed and tortured me to get money to the tune of Rupees Sixty lakhs and a Honda city car from me.
6. The Respondent and his family members often threatened me that they will not allow me to live peacefully, unless I brought the above said dowry amount from my parents I lived at Hosur under unsafe condition under threat to life from the respondent. I submit that the respondent used to demand dowry continuously without any basis, and hence, because of the above said attitudes of the respondent, I could not lead a peaceful family life.
7. I submit that I am living separately till date. Even though my parents conducted peace talks with the respondent and his family, all the efforts made by them had gone on vain and the respondent firmly states that unless his additional dowry demand of Rupees Sixty Lakhs and Honda city car and a house at Arupukkottai is fulfilled, there is no possibility of unite with the petitioner.
8. It is submitted that finally on 10.3.2011, a peace talk was arranged by the respondent with caste leaders, relatives and elders. In that peace talks, the respondent and his family members told that unless, their additional dowry demands are fulfilled, there is no other way except to dissolve the marriage by way of divorce. Hence, we filed a divorce petition by mutual consent before this Hon’ble Court without any prior condition. More over, a divorce agreement was executed between me and the respondent on 10.3.2011 itself, before the competent witnesses and the respondent has put his left hand thumb impression in the said agreement engrossed in Rs.50/- Stamp paper. On the same date itself, the respondent has got the signatures of me and my parents in several blank papers and unfilled stamp papers. Even though the respondent has agreed to return the stridhan articles and cash amount in the Court. The respondent has got back his “Thali” tied to me and all the formalities were done before the above said competent witnesses on 10.3.2011.
9. I submit that myself and respondent has filed a divorce petition under mutual consent before this Hon’ble Court in H.M.O.P.No.50 of 2011. To my shock and surprise, the respondent told me that unless the house property at Arupukkottai is purchased and given in his name for the tune of Rs.40,00,000/-, he will not accept for mutual divorce. As the respondent’s illegal demand could not be fulfilled by me, I filed the present H.M.O.P.No.82/2011.”
(extracted as such.)
32. As such, based on the above narration of facts, she contended that because of exceptional circumstances found set out therein, she was constrained to file the H.M.O.P.No.82 of 2011, within a period of one year from the date of marriage. No doubt, those allegations are only allegations and they were not proved. But, in my considered opinion, those are all serious allegations of exceptional nature and the lower Court also treated as exceptional circumstances, warranting no interference by this Court.
33. It is a singularly singular case wherein the husband and the wife both happened to be Doctors in medical profession and from the view point of the wife, the conduct of the husband in treating her constituted the exceptional circumstances and utmost hardship and discomfiture. The lower Court being the first Court of facts, after considering the allegations and counter allegations, thought fit to virtually grant ex post facto leave and this Court being the revisional Court is having no reason to interfere with the same.
34. As suggested by the learned Counsel for the husband, if the H.M.O.P., has to be dismissed, it would not be for anything, but for the wife to file a fresh H.M.O.P., on the same grounds. As such, the same process already underwent would enure. The multiplicity of proceedings should be avoided and obliterated. No doubt, the sanctity of the marriage should be preserved. Soon after the marriage, without taking steps for reconciliation, etc, and having sufficient time for reflection, they should not be allowed to approach the Court for divorce and in the meantime, one other aspect, this Court has to see. Unwittingly, if a person filed a petition for divorce without seeking leave and much water has already flown under the bridge in dealing with the said petition, it would not be proper to dismiss that petition on the technical ground after lapse of two years as in this case and it would amount to throwing the baby along with the bathe water.
35. While holding so, I am of the view that exceptions should be exceptional and it should not become the rule. So far this case is concerned, I would like to find fault with the lower Court for numbering the H.M.O.P., without insisting for an application seeking leave under Section 14 of the Hindu Marriage Act, 1955.
36. My mind is redolent of the following legal maxims:
(i) “Actus curiae neminem gravabit”. [An act of the court will prejudice no one.]
(ii) “Quod fieri non debet, factum valet.” [What ought not to be done, when done, is valid.]
37. The lower Court should have returned the petition for divorce when it was presented well within one year from the date of marriage, but it has not been done so and it is only the fault of the Court. Because of the fault of the Court, the party concerned at a later date should not suffer.
38. In this connection, I could also fruitfully refer to the following legal maxims:
(i) “Nul prendra advantage de son tort demesne”. [No one shall take advantage of his own wrong.]
(ii) “Nullus commodum capere potest de injuria sua propria”. [No one can obtain an advantage by his own wrong.]
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition for divorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
40. I take it as an opportunity to mandate all the Courts below concerned that hereafter whenever any petition for divorce is filed within a period of one year from the date of marriage, the Courts should invariably return that petition without numbering it and unless leave is obtained, such petition for divorce should not be entertained. Point Nos.(i) and (ii) are answered accordingly.
41. In the result, both the Civil Revision Petitions are dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
42. On hearing the order pronounced, the learned Counsel for the husband would seek oral leave of this Court so as to enable his client to prefer appeal to the Honourable Apex Court. I am of the considered view that since the order is passed based on the earlier decision of the learned Single Judge of this Court which is based on the decision of the Division Bench of Calcutta High Court, no leave is required.
rsb To
1.The Sub Court, Aruppukottai.on 14 of the Hindu Marriage Act, 1955:

“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorcebefore the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition fordivorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
———————————————————————————————————
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20/11/2012

CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA

C.R.P.(PD)(MD)No.2265 of 2012
and
C.R.P.(PD)(MD)No.2266 of 2012
and
M.P.(MD)No.1 of 2012
in
C.R.P.(PD)(MD)No.2265 of 2012

C.R.P.(PD)(MD)No.2265 of 2012:

G.Ganesh Babu   ... Petitioner/Petitioner/
       Respondent
Vs.
A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
!For Petitioner … Mr.K.K.Ramakrishnan ^For Respondent … Mr.J.Barathan * * * * * C.R.P.(PD)(MD)No.2266 of 2012:
G.Ganesh Babu … Petitioner/Petitioner/ Respondent Vs.
A.P.Arthi … Respondent/Respondent/ Petitioner Prayer Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 on the file of the Sub Court, Aruppukottai.
For Petitioner … Mr.K.K.Ramakrishnan For Respondent … Mr.J.Barathan * * * * * :COMMON ORDER C.R.P(PD)(MD)No.2265 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.184 of 2011 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
2. C.R.P(PD)(MD)No.2266 of 2012 has been filed to get set aside the fair and decreetal order passed in I.A.No.26 of 2012 in H.M.O.P.No.82 of 2011 dated 17.07.2012 by the learned Subordinate Judge, Aruppukottai.
3. Heard both sides.
4. The petitioner herein namely G.Ganesh Babu and the respondent herein namely A.P.Arthi, are referred to hereunder as husband and wife respectively.
5. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these Civil Revision Petitions, would run thus:
(i) The wife filed the H.M.O.P.No.82 of 2011, during the month of June’ 2011, so to say, within a period of one year from the date of marriage, invoking Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking the following reliefs:
“(a) granting a decree of divorce, dissolving the marriage solemnized between the Petitioner and Respondent on 18.11.2010;
(b) directing the Respondent to pay the costs of this Petition;” however, without filing an application to obtain the leave citing the exceptional circumstances.
(ii) The husband after entering appearance, filed the application in I.A.No.184 of 2011 for rejection of the H.M.O.P.No.82 of 2011 on the main ground that it was presented within one year from the date of marriage and that too, without any application to obtain leave citing exceptional circumstances. The counter affidavit was filed by the husband.
(iii) Whereupon I.A.No.26 of 2012 was filed by the wife seeking virtually ex post facto leave underSection 14(1) of the Hindu Marriage Act, 1955.
(iv) The lower Court heard both the applications and passed a common order allowing the application filed by the wife and dismissing the application filed by the husband.
6. Being aggrieved by and dissatisfied with the same, the husband preferred these two Civil Revision Petitions challenging and impugning the orders passed by the lower Court.
7. The nutshell facts absolutely necessary for the disposal of these two Civil Revision Petitions would run thus:
The petitioner and the respondent got married as per Hindu rites and customs on 18.11.2010 at Aruppukottai. Subsequently, the wife during June’ 2011, so to say, within one year, filed the petition seeking divorce.
8. The learned Counsel for the husband would put forth and set forth his arguments, the warp and woof of the same, would run thus: Obtaining the leave of the Court is sine quo non for filing the H.M.O.P., for divorce within one year and it is mandatory and it cannot be simply ignored as directory. The object of Section 14 of the Hindu Marriage Act, 1955, was not taken into consideration by the lower Court. If this sort of practice is allowed, then the sanctity attached to the marriages, would be set at naught. Over and above that, the reasons found stated for obtaining the said ex post facto leave is frivolous and there is nothing exceptional in it. The dowry demand is the pith and marrow of the alleged exceptional circumstances found set out in the affidavit accompanying the petition filed by the wife. Accordingly, the learned Counsel for the husband citing various precedents, would pray for allowing the I.A.No.184 of 2011 and for dismissal of H.M.O.P.No.82 of 2011.
9. Whereas in a bid to mince meat and torpedo and pulverise the arguments as put forth on the side of the husband, the learned Counsel for the wife, would pyramid his arguments, the pith and marrow of them would run thus: The entire reading of Section 14 of the Hindu Marriage Act, 1955, would connote and denote, project and portray that the obtention of such leave was not mandatory. So far this case is concerned, it is not that wilfully the H.M.O.P.No.82 of 2011 was filed within one year without obtaining leave and unwittingly alone, the petition for divorce was filed without filing the application under Section 14 of the Hindu Marriage Act, 1955, narrating the exceptional circumstances. As such, the lower Court taking into consideration the pro et contra, thought that it would be a mere waste of time to reject the H.M.O.P., and thereby paving the way for the wife to file a fresh petition for divorce on the same grounds.
10. The learned Counsel for the wife also cited various decisions in support of his arguments.
11. The points for consideration are:
(i) Whether there is any illegality or perversity in the orders passed by the lower Court in allowing the I.A.No.26 of 2012 filed by the wife on the ground that there were exceptional circumstances involved in filing H.M.O.P.No.82 of 2011 for divorce within one year from the date of marriage?
(ii) Whether there is any impropriety or illegality in the order of dismissal passed in I.A.No.184 of 2011 filed by the husband?
Point Nos.(i) and (ii)
12. At the outset itself, I would like to fumigate my mind with the decisions cited by both sides.
13. The learned Counsel for the husband placed reliance on the following decisions:
(i) Swamidoss Joseph v. Miss Edward reported in A.I.R. 1955 MADRAS 341.
(ii) Vinod v. Manju reported in AIR 1982 DELHI 592.
(iii) Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC).
(iv) Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
14. The learned Counsel for the wife relied on the following precedents:
(i) Rabindra Nath Mukherjee v. ITI Mukherjee alias Chatterjee reported in CDJ 1991 Cal HC 017.
(ii) Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435.
(iii) Manisha Jha (Smt). v. Kunal Kanti Jha reported in CDJ 1998 Cal HC
019.
(iv) Kailash v. Nanhku and others reported in (2005) 4 Supreme Court Cases
480.
(v) R.N.Jadi and Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(vi) Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140.
(vii) Gijoosh Gopi, Alappuzha v. S.Sruthi, Alappuzha reported in CDJ 2012 Ker HC 832.
15. A mere running of the eye over the aforesaid precedents would highlight and spotlight the fact that the Division Bench of the Calcutta High Court in Rabindra Nath Mukherjee v. ITI Mukherjeealias Chatterjee reported in CDJ 1991 Cal HC 017, held that seeking leave of the Court within one year to file the petition for divorce from the date of marriage, was only directory and not mandatory and the said decision was followed by the learned Single Judge of this Court inIndumathi v. Krishnamurthy reported in 1998 (III) MLJ 435. The aforesaid decision of this Court is also followed by the learned Single Judge of the Calcutta High Court in Smt. Priyanka Maity (Ghosh) v. Shri Sabyasachi Maity reported in CDJ 2012 Cal HC 140. However, the Division Bench of the Karnataka High Court took a different view of the matter in Sharma H.Kasinath v. Shoba reported in AIR 2010 KARNATAKA 168.
16. As such, the decision of the learned Single Judge of this Court following the decision of the Division Bench of the Calcutta High Court, is very much available before me. Normally, the decisions rendered by the learned Single Judge of this Court should be followed by another learned Single Judge of this Court and the judicial discipline warrants such a procedure.
17. However, the learned Counsel for the husband would place reliance on the decision of the Division Bench of the Karnataka High Court, which is against the decision of the learned Single Judge of this Court as well as the Division Bench of the Calcutta High Court Simply because, a subsequent Division Bench of Karnataka High Court is in variance with the decision of the learned Single Judge of this Court and the Division Bench of the Calcutta High Court, I am not bound to simply follow the said judgment of the Karnataka High Court. The learned Single Judge of this Court placed reliance on the decision of the Division Bench of Calcutta High Court. As such, two Division Benches of two different High Courts have two different views and the learned Single Judge of this Court followed the view of one of such decisions of the Division Benches and wherefore, I am justified in following the decision of the learned Single Judge of this Court and consequently, the decision of the Division Bench of the Calcutta High Court.
18. Over and above that, I would also like to independently furnish my own views in this matter.
19. My mind is redolent and reminiscent of the following legal maxims:
(i) “Verba generalia generaliter sunt intelligenda”. [General words are to be understood generally.]
(ii) “Verba ita sunt intelligenda, ut res magis valeat quam pereat.” [Words are to be so understood that the matter may have effect rather than fail.]
(iii) “Maledicta expositio quae corrumpit textum”. [It is a cursed construction that corrupts the text.]
(iv) “Absoluta sententia non indiget expositore”. [A simple proposition needs no expositor.]
20. I would also like to extract hereunder the relevant excerpt from the famous treatise “Maxwell on The Interpretation of Statutes [Twelfth Edition by P. St. J. Langan]”:
Chapter 5 – Restrictive Construction:
“Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a slovenly manner, than that a meaning should be given to them which could not have been intended.”
One other excerpt from the same treatise would run thus: “Section 12 (3) of the Matrimonial Causes Act 1950 provided that if the spouse obtaining a decree nisi of divorce did not make an application for it to be made absolute six months after the trial, then the other spouse could make application within a further period of three months and, if the circumstances warranted, obtain a decree absolute. The Court of Appeal held that this did not oust the jurisdiction of the court to substitute a decree of judicial separation for a decree nisi: “had it been the intention of the legislature to revoke this jurisdiction, it would have been done in a clearer way than by inference from the subsection.”
21. On a mere running of the eye over those legal maxims and the principles found enshrined in the aforesaid famous treatise, I am of the view that generally, the time limit prescribed in the procedural laws are directory and not mandatory and further that they are only by way of taking a cue that the time limit prescribed under Section 14 of the Hindu Marriage Act, 1955, will not cut at the jurisdiction of the Court. However, the learned Counsel for the husband placing reliance on the decision of the Honourable Apex Court in Smruti Pahariya v. Sanjay Pahariya reported in (2009) 5 MLJ 1203 (SC), would submit that so far Marriage Laws are concerned, time stipulated cannot be taken as directory, but it should be taken as mandatory.
22. I would like to point out that in the aforesaid decision of the Honourable Apex Court relating to Section 13-B of the Hindu Marriage Act, 1955, what was found stressed is that the consent of both sides should be essential at both stages, viz., at the time of jointly presenting the petition and at the time of obtention of divorce after the prescribed period of six months. There could be no quarrel over such a proposition. However, Section 14 of the Hindu Marriage Act, 1955, is on a different footing.
23. I would like to extract hereunder Section 14 of the Hindu Marriage Act, 1955:
“14. No petition for divorce to be presented within one year of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
24. The learned Single Judge of this Court in the precedent cited supra very correctly and appreciably referred to the fact that the legislators never thought that if there is any filing of application for divorce within one year from the date of marriage, automatically that should be dismissed; even in a case where any leave was obtained by the party concerned on misrepresentation, yet the Court has got jurisdiction to pass a decree of divorce, stipulating that it shall come into effect after one year from the date of marriage. As such, that particular point loomed large in the mind of the learned Single Judge of this Court in deciding the lis by holding that the time stipulated therein was only directory and not mandatory.
25. At this juncture, I would like to recollect the following decisions:
(i) Kailash v. Nanhku reported in 2005 (3) CTC 355.
(ii) Rani Kusum v. Kanchan Devi reported in (2005) 6 Supreme Court Cases
705.
(iii) Salem Advocate Bar Association v. Union of India reported in (2005) 6 Supreme Court Cases 344.
(iv) R.N.Jadi & Brothers v. Subhashchandra reported in (2007) 6 Supreme Court Cases 420.
(v) Zolba v. Keshao and others reported in (2008) 11 Supreme Court Cases
769.
26. The pith and marrow, the gist and kernel of the aforesaid precedents is that whenever any condition is stipulated in law in negative language, then that itself is not sufficient to hold that the law contemplated the said provision as mandatory, but the consequences of such non-adhering to the time limit also should be found spelt out in the statutory provision. Under Order VIII Rule 1 of the Code of Civil Procedure, even though in negative language, the provisions are found spelt out, the consequences were not found spelt out. Hence, the Honourable Apex Court consistently held that such time stipulated cannot be taken as mandatory, so much so also, here under Section 14 of the Hindu Marriage Act, 1955, the legislators in their wisdom thought not to impose any consequences of such non-adherence to the time limit.
27. On the other hand, as correctly held by the learned Single Judge of this Court earlier, in the decision cited supra, even a person who got leave by misrepresentation was given the benefit of divorce, but that would take effect after one year from the date of marriage. Hence, I am of the considered view that the decision of the learned Single Judge of this Court in Indumathi v. Krishnamurthy reported in 1998 (III) MLJ 435 with great respect is the binding precedent on the point concerned.
28. The learned Counsel for the husband also referred to the Halsbury’s Laws of England – Fourth Edition – by Lord Mackay of Clashfern – Volume 29(3) – 2001.
29. I am of the view that when the earlier decision of this Court is clear and unambiguous on the point, I need not dilate further on that issue.
30. On factual basis, the learned Counsel for the husband would try to canvass his case by pointing out that so far the exceptional circumstances mandated in the affidavit of the wife, are not really exceptional circumstances, but they are only relating to alleged dowry harassment and cruelty. Whereas the learned Counsel for the wife would submit that the allegations found spelt out in the affidavit accompanying the application filed by the wife seeking ex post facto leave were of such a nature that they were so horrible for the wife who is a Doctor by profession.
31. The wife in her affidavit accompanying the application in I.A.No.26 of 2012, set out thus:
“4. I submit that even before the solemnization of marriage, the respondent and his family members demanded 120 sovereign of golden jewels, Rs.8,00,000/- cash and stridhan articles worth about Rs.2,00,000/- from my parents. My parents were put under severe strain and mental agony as they had to arrange the above dowry before the solemnization of marriage. Only after receiving the cash amount of Rs.8,00,000/- on hand one day prior to the marriage, the respondent has agreed to perform the marriage.
5. I submit that after marriage, the conjugal home was set up at Arupukkotai in the house of respondent. At the time of living at Arupukkottai, the respondent has demanded a further dowry of Rs.60,00,000/- from me by saying that his father has borrowed huge amounts from outer sources as a loan to get higher education for him and hence, he has to settle those amounts by getting dowry amount from me. The respondent added that he had married me for money alone. The respondent’s father, and his father’s brother namely, Gunasekaran, the respondent’s brother and sister have often harassed and tortured me to get money to the tune of Rupees Sixty lakhs and a Honda city car from me.
6. The Respondent and his family members often threatened me that they will not allow me to live peacefully, unless I brought the above said dowry amount from my parents I lived at Hosur under unsafe condition under threat to life from the respondent. I submit that the respondent used to demand dowry continuously without any basis, and hence, because of the above said attitudes of the respondent, I could not lead a peaceful family life.
7. I submit that I am living separately till date. Even though my parents conducted peace talks with the respondent and his family, all the efforts made by them had gone on vain and the respondent firmly states that unless his additional dowry demand of Rupees Sixty Lakhs and Honda city car and a house at Arupukkottai is fulfilled, there is no possibility of unite with the petitioner.
8. It is submitted that finally on 10.3.2011, a peace talk was arranged by the respondent with caste leaders, relatives and elders. In that peace talks, the respondent and his family members told that unless, their additional dowry demands are fulfilled, there is no other way except to dissolve the marriage by way of divorce. Hence, we filed a divorce petition by mutual consent before this Hon’ble Court without any prior condition. More over, a divorce agreement was executed between me and the respondent on 10.3.2011 itself, before the competent witnesses and the respondent has put his left hand thumb impression in the said agreement engrossed in Rs.50/- Stamp paper. On the same date itself, the respondent has got the signatures of me and my parents in several blank papers and unfilled stamp papers. Even though the respondent has agreed to return the stridhan articles and cash amount in the Court. The respondent has got back his “Thali” tied to me and all the formalities were done before the above said competent witnesses on 10.3.2011.
9. I submit that myself and respondent has filed a divorce petition under mutual consent before this Hon’ble Court in H.M.O.P.No.50 of 2011. To my shock and surprise, the respondent told me that unless the house property at Arupukkottai is purchased and given in his name for the tune of Rs.40,00,000/-, he will not accept for mutual divorce. As the respondent’s illegal demand could not be fulfilled by me, I filed the present H.M.O.P.No.82/2011.”
(extracted as such.)
32. As such, based on the above narration of facts, she contended that because of exceptional circumstances found set out therein, she was constrained to file the H.M.O.P.No.82 of 2011, within a period of one year from the date of marriage. No doubt, those allegations are only allegations and they were not proved. But, in my considered opinion, those are all serious allegations of exceptional nature and the lower Court also treated as exceptional circumstances, warranting no interference by this Court.
33. It is a singularly singular case wherein the husband and the wife both happened to be Doctors in medical profession and from the view point of the wife, the conduct of the husband in treating her constituted the exceptional circumstances and utmost hardship and discomfiture. The lower Court being the first Court of facts, after considering the allegations and counter allegations, thought fit to virtually grant ex post facto leave and this Court being the revisional Court is having no reason to interfere with the same.
34. As suggested by the learned Counsel for the husband, if the H.M.O.P., has to be dismissed, it would not be for anything, but for the wife to file a fresh H.M.O.P., on the same grounds. As such, the same process already underwent would enure. The multiplicity of proceedings should be avoided and obliterated. No doubt, the sanctity of the marriage should be preserved. Soon after the marriage, without taking steps for reconciliation, etc, and having sufficient time for reflection, they should not be allowed to approach the Court for divorce and in the meantime, one other aspect, this Court has to see. Unwittingly, if a person filed a petition for divorce without seeking leave and much water has already flown under the bridge in dealing with the said petition, it would not be proper to dismiss that petition on the technical ground after lapse of two years as in this case and it would amount to throwing the baby along with the bathe water.
35. While holding so, I am of the view that exceptions should be exceptional and it should not become the rule. So far this case is concerned, I would like to find fault with the lower Court for numbering the H.M.O.P., without insisting for an application seeking leave under Section 14 of the Hindu Marriage Act, 1955.
36. My mind is redolent of the following legal maxims:
(i) “Actus curiae neminem gravabit”. [An act of the court will prejudice no one.]
(ii) “Quod fieri non debet, factum valet.” [What ought not to be done, when done, is valid.]
37. The lower Court should have returned the petition for divorce when it was presented well within one year from the date of marriage, but it has not been done so and it is only the fault of the Court. Because of the fault of the Court, the party concerned at a later date should not suffer.
38. In this connection, I could also fruitfully refer to the following legal maxims:
(i) “Nul prendra advantage de son tort demesne”. [No one shall take advantage of his own wrong.]
(ii) “Nullus commodum capere potest de injuria sua propria”. [No one can obtain an advantage by his own wrong.]
39. But, in this case, I do not think that the wife deliberately suppressing anything, filed such application without seeking leave. As such, I cannot simply hold that she was guilty of laches and magna neglegentia, and consequently, her conduct should be deprecated in filing the petition for divorce within one year from the date of marriage. Whenever anything has occurred unwittingly, the Court has to take a lenient view. On the other hand, if the Court could see that with due deliberation or malice any such petitions are found filed within one year period, then in such cases alone, strict view has to be taken. So far this case is concerned, the very factum that the wife had chosen to file the application in I.A.No.26 of 2012 virtually seeking ex post facto leave, would demonstrate and display her bona fides also. Hence, I am of the view that in these exceptional circumstances, no interference is required.
40. I take it as an opportunity to mandate all the Courts below concerned that hereafter whenever any petition for divorce is filed within a period of one year from the date of marriage, the Courts should invariably return that petition without numbering it and unless leave is obtained, such petition for divorce should not be entertained. Point Nos.(i) and (ii) are answered accordingly.
41. In the result, both the Civil Revision Petitions are dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
42. On hearing the order pronounced, the learned Counsel for the husband would seek oral leave of this Court so as to enable his client to prefer appeal to the Honourable Apex Court. I am of the considered view that since the order is passed based on the earlier decision of the learned Single Judge of this Court which is based on the decision of the Division Bench of Calcutta High Court, no leave is required.
rsb To
1.The Sub Court, Aruppukottai.

 

 

Divorce on ground of mental cruelty and schizophrenia.

divorce on ground of mental cruelty and schizophrenia.

Explanation – In this clause, –
(a) the expression “mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
Explanation – In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (I-A) Either party to a marriage, whether solemnized before or after the commencement of this Act may also present a petition for the dissolution of the marriage by a decree of divorce on the ground –
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
———————————————————————————————————–
Supreme Court of India
Vinita Saxena vs Pankaj Pandit on 21 March, 2006
Bench: Ruma Pal, Dr. Ar. Lakshmanan
           CASE NO.:
Appeal (civil)  1687 of 2006

PETITIONER:
Vinita Saxena                      

RESPONDENT:
Pankaj Pandit          

DATE OF JUDGMENT: 21/03/2006

BENCH:
Ruma Pal & Dr. AR. Lakshmanan

JUDGMENT:
J U D G M E N T (Arising out of S.L.P.(C) No.26418 of 2004) Dr. AR. Lakshmanan, J.
Leave granted.
The above appeal was filed by the appellant, wife of the respondent herein, against the judgment and final order dated 10.9.2004 passed by the High Court of Delhi in F.A.O. No. 235 of 2002 whereby the Civil Writ Petition filed by the appellant was dismissed.
The short facts are as follows:
The marriage between the appellant-Vinita Saxena and the respondent-Pankaj Pandit was soleminzed on 7.2.1993 as per Hindu rites and customs. No child was born out of wedlock. The marriage, according to the appellant, lasted for five months and was never consummated on account of the fact that the respondent was incapable of performing his matrimonial obligations. According to the appellant, from the first day of the marriage, the respondent’s mother treated the appellant with utmost cruelty both mental and physical and that the reason for cruelty was the respondent’s mental disorder. The respondent’s case is a case of Paranoid Schizophrenia and the appellant discovered only after the marriage that the respondent was under constant treatment and observations of different doctors even prior to the marriage for the said ailment. Though the appellant knew the respondent prior to her marriage, in fact, it is only after the marriage, the appellant realised and discovered the mental disorder of the respondent. The appellant was never told by the respondent nor his parents that he was suffering from such serious mental disorder and that he was under the treatment and used to take strong medicines before the marriage. According to Dr. C.R. Samanta, who was a consultant psychiatrist at Aashlok Hospital, the respondent was a case of Schizophrenia and depression. On 4.7.1993, the appellant tried to discuss regarding the problems she was facing with the respondent and her mother- in-law, who objected strongly and accused the appellant of defaming the respondent. At her instance, the appellant was beaten mercilessly by the respondent, which made him nervous to the extent that he consumed “Baygon Spray” to commit suicide. The appellant and her brother immediately took the respondent to the hospital in order to save the respondent’s life. Again, Dr. C.R. Samantha prescribed certain medicines i.e. (1) Triperidol (2) Pacitane (3) Prodep to the respondent. The respondent was hospitalised for four days at Aashlok Hospital, Safdarjung Enclave and was discharged after giving proper treatment on 7.7.1993. According to the appellant, Triperidol is given in case of acute and chronic psychoses anxiety disorders, mania, Schizophrenia as per the medical advise. The situation further became worse on 8.7.1993 and 9.7.1993. Again on the instigation of the respondent’s mother, the respondent slapped and abused the appellant mercilessly and she was not even allowed to have food that day and the next day morning i.e. on 9.7.1993. On 9.7.1993, the appellant was pushed and kicked out of the matrimonial home by her mother-in-law and the respondent and thereafter, the appellant was not permitted to return again.
The appellant filed H.M.A. Petition on 30.6.1994 against the respondent for dissolution of marriage under Section 13(1)(1-a) and (iii) of the Hindu Marriage Act,1955 hereinafter referred to as “the Act” on the grounds of mental and physical cruelty and insanity before the Court of District Judge at Delhi. The trial Court vide its order dated 15.5.1993, relying on the facts and averments made by the parties as well as taking the medical documents placed on record observed that a letter of request should be written to the Medical Superintendent, L.N.J.P. Hospital to constitute a panel of doctors to examine the respondent and to report about his mental state. However, this order was subsequently set aside by the High Court in a Revision Petition filed by the respondent. After the marriage had broken down the appellant pursued further studies and completed M.S. (Structural Engineering) from IIT Delhi and in 1996, left for her Ph.D. programme to U.S.A. Father of the appellant, J.S. Saxena, deposed as PW-II and the appellant as PW-I and Dr. D.S. Arora, Medical Superintendent, Aashlok Hospital and Dr Kuldeep Kumar of Safdarjung Hospital recorded their statement as PW-III and PW-IV respectively supporting the case of the appellant. The respondent, however, got only his statement recorded and before his cross-examination could be concluded, deliberately did not appear in the witness box to complete his deposition. The trial Court, vide order dated 19.3.2001, dismissed the petition filed by the appellant under Section 13(1)(1-a) and (iii) of the Act for the grant of decree of divorce. Being aggrieved by the said order, the appellant filed an appeal before the High Court. The High Court vide order dated 10.9.2004 dismissed the appeal filed by the appellant holding that the respondent is not suffering from Schizophrenia and that there is insufficient material on record to establish the cause of cruelty and further held that the incidents of cruelty is not so grave which come within the scope of concept of cruelty. The High Court also held that the testimonies of the doctors examined by the appellant to prove that the respondent was suffering from Schizophrenia cannot be looked into for the reason that the respondent was not under the treatment of the above doctors. Aggrieved by the said order, the appellant filed this appeal by way of special leave petition before this Court. The respondent filed a counter affidavit. It is stated in the counter affidavit that the special leave petition is devoid of any merit inasmuch as the Courts below have given findings of fact in favour of the respondent and the Courts below have rejected the pleas of the appellant on the ground that she has not made out any case for grant of divorce. It was submitted that the appellant even before the marriage was having intimacy with the respondent from 1986 to 1993 and she did not find any abnormality in the behaviour of the respondent. It was also submitted that the appellant has not made out any case seeking divorce on the ground of causing cruelty to her inasmuch as she has failed to prove any instance leading to causing such cruelty to her by the respondent. It was submitted that the respondent is willing to take the appellant and keep her happy to the fullest and it is the desire of the respondent that the marriage should not break on the ground that she is building up her career in America for the past 12 years. Since concurrent findings of fact is in favour of the respondent, the appellant ought not to be stated that the respondent and his mother were involved in causing cruelty to her and that the Courts below have also disbelieved the version of the appellant that the cruelty was caused by the respondent due to his mental disorder. It was further contended that the appellant did not lead any evidence to prove as a matter of fact that the respondent was suffering from Schizophrenia and that the appellant has filed the petition deliberately and wilfully and with a view to harass the respondent and his mother. It was also contended that the mere branding of spouse as Schizophrenic is not sufficient and that the degree of mental disorder of the spouse must be proved to be such that the appellant spouse cannot be reasonably be expected to live with the other. It was also submitted that from the evidence and pleadings, it has clearly been stated that the appellant was having sex with the respondent without any problem and there is no truth in the allegation made by the appellant. The other allegations mentioned in the Divorce Petition have not been proved at all and that the appeal filed by the appellant deserves to be rejected. We heard Ms. Kamini Jaiswal, learned counsel appearing for the appellant-wife and Mr. Dhruv Mehta, learned counsel appearing for the respondent-husband. We have perused the pleadings, annexures filed along with the appeal and the orders passed by the courts below and the grounds of appeal. Learned counsel for the appellant while reiterating the averments made in the appeal submitted the following grounds for granting divorce as prayed for by the appellant-wife :
1) Non-consummation of the marriage itself would constitute mental cruelty to a married woman.
2) The respondent attempted to commit suicide also amounts to mental cruelty and harassment.
3) The appellant has lived only for five months after the marriage and she was mercilessly beaten by the respondent and his mother.
4) There was absolutely nothing to show that the documents and prescription given by the doctors have been concocted. They are the official records of the Hospital.
5) The medical prescriptions and the evidence of doctors clearly illustrate that the respondent was under the treatment of Dr. Samantha and was a case of Paranoid Schizophrenia.
6) The respondent, before his cross examination could be concluded, deliberately did not appear in the witness box to complete his deposition and his evidence had to be closed.
7) The appellant was denied the matrimonial bliss of physical relation by the respondent because of his incompetency which itself constitute cruelty for a married woman.
8) The threat to commit suicide by the respondent amounts to cruelty and the Courts below took cognizance of the fact that the respondent consumed “Baygon spray”.
9) Because Dr. Samantha was not alive, the medical record authored by him can only be proved by secondary evidence though Dr. D.S. Arora, medical Superintendent who certified on oath that the respondent was admitted in Aashlok Hospital and stated that he had brought the records in respect of Pankaj Pandit. He also identified the signatures of Dr. Samantha and the medical prescriptions of his having treated the respondent have also been produced and proved by him where it had been categorically stated that the respondent is suffering from Paranoid Schizophrenia.
10) Likewise on the ground of non-availability of Dr. Abhyankar, who had authored the medical prescription as he was no more in service of the hospital cannot be fatal to disregard the evidence of the other doctor, who produced and proved the entire record.
11) The marriage between the appellant and the respondent hardly lasted for five months and both of them are living separately for the last 13 years. Learned counsel appearing for the appellant cited the following decisions:
1) Shrikant Anandrao Bhosale vs. State of Maharashtra, (2002) 7 SCC 748,
2) A. Jayachandra vs. Aneel Kaur, (2005) 2 SCC 22,
3) Smt. Uma Wanti vs. Arjan Dev , AIR 1995 P&H 312
4) Harbhajan Singh Monga vs. Amarjeet Kaur AIR 1986 MP 41
5) Mrs. Rita Nijhawan vs. Shri Balkishan Nijhawan, AIR 1973 Delhi
6) Yuvraj Digvijay Singh vs. Yuvrani Pratap Kumari, AIR 1970 SC
137.
7) Vijay Kumar Ramchandra Bhate vs. Neela vijaykumar Bhate, AIR 2003 SC 2462
8) B.N. Panduranga Shet vs. N. Vijaylaxmi, AIR 2003 Karnataka 357 Mr. Dhruv Mehta, learned counsel appearing for the respondent, per contra, after referring to the grounds of divorce and the findings recorded by the trial Court and the High Court which has affirmed the findings of the trial Court, submitted that in order to make out a ground for divorce under Section 13(1)(iii) of the Act, it is not necessary to establish that the respondent is suffering continuously or intermittently from mental disorder but it must further be established that it is of such a kind and to such an extent that the appellant cannot be reasonably be expected to live with the respondent. In other words, the burden is not discharged by merely establishing that the respondent is suffering from mental disorder which in the present case would include Schizophrenia by virtue of the Explanation to the said provision but the appellant must further lead evidence to establish that the mental disorder is of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent.
According to learned counsel for the respondent, the above contention finds support from a decision of this Court in Ram Narain Gupta vs. Smt. Rameshwari Gupta, 1988(4) SCC 247. For ready reference, the relevant paras from the said judgment are as under:
“20. The context in which the ideas of unsoundness of ‘mind’ and ‘mental disorder’ occur in the section as grounds for dissolution of a marriage, require the assessment of the degree of the ‘mental disorder’. Its degree must be such that the spouse seeking relief cannot reasonably be expected to live with the other. All mental abnormalities are not recognised as grounds for grant of decree. If the mere existence of any degree of mental abnormality could justify dissolution of a marriage few marriages would, indeed, survive in law. xx xx xx
28. The reasoning of the High Court is that the requisite degree of the mental disorder which alone would justify dissolution of the marriage has not been established. This, it seems to us, to be not an unreasonable assessment of the situation – strong arguments of Shri Goel to the contrary notwithstanding.
xx xx xx
30. ..the burden of proof of the existence of the requisite degree of mental disorder is on the spouse basing the claim on that state of facts.
33. This medical concern against too readily reducing a human being into a functional non entity and as a negative unit in family or society is law’s concern also and is reflected, at least partially, in the requirements of Section 13(1)(iii). In the last analysis, the mere branding of a person as schizophrenic will not suffice. For purposes of Section 13(1)(iii) ‘schizophrenia’ is what schizophrenia does.”
It was further submitted that the aforesaid judgment of this Court has been followed by the Karnataka High Court in the case of B.N. Panduranga Shet vs. N. Vijayalaxmi, (supra). Learned counsel also relied on the decision of the Calcutta High Court in the case of Rita Roy vs. Sitesh Chandra AIR 1982 Calcutta 138 and the decision of the Himachal Pradesh High Court reported in (1995) DMC 71 (DB). Learned counsel also cited the judgment of this Court in Rakesh K. Gupta vs. Ram Gopal Agarwala & Ors., AIR 2005 SC 2426 for the proposition that even in a custody dispute between the husband and wife wherein it was alleged by the husband that the wife is suffering from Paranoid Schizophrenia, this Court still awarded custody of the child to the mother.
According to the learned counsel, the evidence which has been brought on record by the appellant is wholly insufficient to infer that the respondent was suffering from the said mental disorder and the doctors who are alleged to have treated the respondent have not been examined as witnesses by the appellant and what has been brought on record are certain prescriptions made by the said doctors and the same are sought to be proved by examining the Medical Superintendent of Aashlok Hospital, Safdarjung Enclave. Therefore, he submitted that in view of the above fact, no inference can be drawn that the respondent was suffering from Paranoid Schizophrenia and that the appellant has not been discharged of the burden as required by the statutory provision. Learned counsel contended that the words used in sub-clause (iii) of Section 13(1) to the effect that “mental disorder of such a kind and to such an extent that the appellant cannot reasonably be expected to live with the respondent” must be given full effect as it is a well accepted principle of statutory interpretation that a Court must make every effort to give effect to all words in a statute since Parliament cannot be held to have been wasting its words or saying something in vain. Learned counsel, for this proposition, relied on the following two decisions of this Court:
(a) Shin Etsu Chemical Company Ltd. Vs. Aksh Optifibre Ltd., (2005) 7 SCC 234.
(b) Union of India vs. Popular Construction , (2001) 8 SCC 470 Concluding his submissions, learned counsel submitted that the appellant having failed to establish the aforementioned requirement of the statute, the appeal must fail on this ground.
In Re : Cruelty It was submitted that in order to make out a ground for divorce under Section 13(1)( i-a) of the Act, the conduct complained of should be grave and weighty so as to come to the conclusion that the appellant spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. For this proposition, he relied on the judgment of this Court in A. Jayachandra vs. Aneel Kaur (supra). Para 13 of the aforementioned judgment is as under:
“13. ..but before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it “
It was argued that the trial Court, after examining the evidence, has come to the conclusion that the acts complained of are not such as would constitute cruelty and in any event the ground for divorce under Section 13(1)(i-a) is not made out. It was submitted that the trial Court had occasioned to see the demeanour of witnesses and, therefore, the view taken by the trial Court unless it can be said to be perverse should not be faulted with. It was also contended that the approach in such cases should be to perverse the matrimonial home. The judgment in the case ofSavitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73 was relied on for this purpose. Answering the contention raised by the counsel for the appellant that the parties have not lived together for a long time and therefore, this is a fit case to pass a decree of divorce, learned counsel for the respondent, submitted that this is a wholly untenable argument and has to be rejected by this Court. For this, he relied on the ruling of this Court in the case of A. Jayachandra vs. Aneel Kaur (supra). Concluding his arguments, learned counsel appearing for the respondent submitted that both the trial Court and the High Court have recorded concurrent findings and have rejected the prayer of the appellant to grant decree of divorce under Section 13(1)(i-a) and (iii) of the Act and, therefore, this Court under Article 136 of the Constitution of India cannot interfere with the said findings unless it is established that the findings recorded by the trial Court and the High Court are perverse. Arguing further, he submitted that the findings of the trial Court are based on the consideration of the entire evidence and well reasoned and in similar circumstances, this Court refused to interfere with the concurrent findings of fact arrived at by the Courts in Savitri Pandey vs. Prem Chandra Pandey (supra).
We have given our thoughtful and anxious consideration for the rival submissions made by the respective counsel appearing on either side. The appellant filed a petition for divorce underSection 13(1)(i-a) and (iii) of the Act on the ground of mental and physical cruelty. It is also her case that on account of Paranoid Schizophrenia that the respondent was suffering from, the appellant could not be reasonably expected to live with the respondent. Section 13 (1)(i-a) and (iii) are reproduced hereunder:
“13. 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-
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or * * * * *
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation – In this clause, –
(a) the expression “mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub- normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.
Explanation – In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. (I-A) Either party to a marriage, whether solemnized before or after the commencement of this Act may also present a petition for the dissolution of the marriage by a decree of divorce on the ground –
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground –
(i) in the case of any marriage solemnized before the commencement of this act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956) , or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
Explanation – This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.
It is not in dispute that the marriage has lasted hardly for five months and was never consummated on account of the fact that the respondent was incapable of performing his matrimonial obligations. The appellant has examined herself as PW-1. She has specifically stated in her deposition that the marriage was not consummated at all. It has further come out in her deposition that she accompanied the respondent at AIIMS and met Prof. Dr. Prema Bali, Sexologist and Marriage Counsellor. In her deposition, it had also come out that the Doctor informed her that the respondent cannot perform the marital obligations. She was also informed by the said Doctor that the respondent was a Psychopathic case and he has no power of concentration. She was also informed that the disease is of incurable in nature. The appellant has further deposed that respondent kept on sleeping for three days immediately after solemnization of marriage and the appellant was told that she should not disturb him. It was further stated in her evidence that on 4.7.1993, the appellant was blamed for the respondent’s illness and was mercilessly beaten up and on the same day the respondent consumed “Baygon Spray” to commit suicide and he was taken to Aashlok Hospital, Safdarjung Enclave by the appellant and her brother. In her cross-examination, the appellant has stated that though they were studying together in the Engineering College, however, there were no special meetings between them except meeting in the class. It has also come on record that there was no intimacy between the appellant and the respondent. The appellant has emphatically denied the allegation about the intimacy between the appellant and the respondent prior to marriage w.e.f. 1987. She also stated on oath that it was a marriage though of her choice but solemnized only after her parents had given the consent. In the cross- examination, the respondent has not been able to shake or destroy the case of the appellant.
In support of her case, PW-2, J.S. Saxena father of the appellant, was examined. He supported the appellant’s case and corroborated her evidence. Even in the cross-examination of PW-2, there is no material change or inconsistency. With regard to the grant of cruelty, there is deposition of the appellant and her father on record which clearly establishes and proves that the appellant was treated with cruelty by the respondent and his mother. With regard to the plea of mental insanity i.e. Section 13(1)(iii), the appellant adduced the evidence of Dr. D.S. Arora, Medical Superintendent, Aashlok Hospital as well as Dr. Kuldeep Kumar of Safdarjung Hospital. Dr. D.S. Arora, a summoned witness produced the entire record pertaining to the respondent. He exhibited the case of the respondent maintained by Dr. C.R. Samantha. Dr. D.S. Arora identified the signatures of Dr. C.R. Samantha and proved Ex. PW-3/1. The original record of respondent was produced in the Court. Dr. D.S. Arora also proved the prescriptions Ex. PW-3/2 and Ex. PW-3/3. Ex. PW-3/5 was the prescription written by Dr. D.S. Arora and it was bearing his signatures. The entire medical history and record of the respondent pertaining to his medical illness, his visit and admission to Aashlok Hospital on 4.7.1993 and discharge on 7.7.1993 as well as the case history of the respondent maintained by Dr.C.R. Samantha were duly proved and exhibited. According to the medical record, the respondent was admitted with reference to a case of Psychopathic and depression for the last fortnight, now admitted for disturbed consciousness. He was suggested to take Triperidol medicine. The other prescription has been authored by Dr. D.S. Arora who stated that the respondent had consumed “Baygon Spray”. It was also specified that the respondent is a known case of depression. Medicine ‘Triperidol’ was suggested to be administered to him. With regard to the consumption of “Baygon Spray”, a stomach wash was carried out upon the respondent and he was administered injections ‘Atropine’, and ‘Dextrose-1/V and PAM 1 to 1/V. The evidence of Dr. D.S. Arora and the record signed by Dr. C.R. Samantha are admissible in evidence and has been legally proved. The evidence of Dr. Kuldeep Kumar of Safdarjung Hospital also establishes the case of mental insanity and the fact that the respondent was a case of Paranoid Schizophrenia. The said Doctor produced the original record and made necessary deposition. He had brought the originals during his examination and it is recorded that the respondent had visited the Psychiatric Ward on 12.12.1992 along with his mother. Dr. Abhyankar also recorded about the history of respondent’s illness. It was also recorded by the said Doctor that the respondent suffers from delusion of persecution and reference effect and on the physical examination it had been observed that the respondent has clear systematized delusion of persecution and reference and, therefore on the review it is clear that the respondent is suffering from Paranoid Schizophrenia. The medical record of the respondent maintained by the Safdarjung hospital (Outdoor Patient Department) has been established that the respondent visited Hospital on 21.12.1992 and was advised for psychological testing. It was observed in a medical sheet that the respondent was initially diagnosed for psychosis. However, on subsequent visits and after detailed examination it has been confirmed that he suffers from Paranoid Schizophrenia. The appellant has also produced on record a communication dated 9.5.1994 addressed by Professor Dr. Prema Bali, who was working in the Institute of Sexology and Marriage Counselling. Dr. Prema Bali is the relative of respondent and she has communicated to the appellant that the respondent has a psychiatric problem as his case is a case of Paranoid Schizophrenia.
It would be pertinent to observe that there is no evidence whatsoever adduced by the respondent or on his behalf. In fact, after recording of the examination-in-chief and part cross-examination, the respondent refused to come in the witness box and ran away. The observation has been made by the trial Court in the proceedings. A RESEARCH ON THE DISEASE “Schizophernia is one of the most damaging of all mental disorders. It causes its victims to lose touch with reality. They often begin to hear, see or feel things that aren’t really there (hallucinations) or become convinced of things that simply aren’t true (delusions). In the paranoid form of this disorder, they develop delusions of persecution or personal grandeur. The first signs of paranoid schizophrenia usually surface between the ages of 15 and 34. There is no cure, but the disorder can be controlled with medications. Severe attacks may require hospitalization.
The appellant has filed Annexures L,M,N,O,P and Q which are extracts about the aforesaid disease. The extracts are sum and substance of the disease and on a careful reading it would be well established that the evidence and documents on record clearly make out a case in favour of appellant and hence appellant was entitled to the relief prayed. In the memorandum and grounds of Appeal, some salient features of the disease have also been specified. Some of the relevant part of the extracts from various medical publications are reproduced herein below:
What is the disease and what one should know?
* A psychotic lacks insight, has the whole of his personality distorted by illness, and constructs a false environment out of his subjective experiences.
* It is customary to define ‘delusion’ more or less in the following way. A delusion is a false unshakeable belief, which is out of keeping with the patient’s social and cultural background.’ German psychiatrists tend to stress the morbid origin of the delusion, and quite rightly so. A delusion is the product of internal morbid processes and this is what makes it unamenable to external influences. * Apophanuous experiences which occur in acute schizophrenia and form the basis of delusions of persecution, but these delusions are also the result of auditory hallucinations, bodily hallucinations and experiences of passivity. Delusions of persecution can take many forms. In delusions of reference, the patient feels that people are talking about him, slandering him or spying on him. It may be difficult to be certain if the patient has delusions of self-reference or if he has self-reference hallucinosis. Ideas of delusions or reference are not confined to schizophrenia, but can occur in depressive illness and psychogenic reactions.
Causes The causes of schizophrenia are still under debate. A chemical imbalance in the brain seems to play a role, but the reason for the imbalance remains unclear. One is a bit more likely to become schizophrenic if he has a family member with the illness. Stress does not cause schizophrenia, but can make the symptoms worse. Risks Without medication and therapy, most paranoid schizophrenics are unable to function in the real world. If they fall victim to severe hallucinations and delusions, they can be a danger to themselves and those around them.
What is schizophrenia?
Schizophrenia is a chronic, disabling mental illness characterized by:
* Psychotic symptoms * Disordered thinking * Emotional blunting How does schizophrenia develop?
Schizophrenia generally develops in late adolescence or early adulthood, most often:
* In the late teens or early twenties in men * In the twenties to early thirties in women What are the symptoms of schizophrenia?
Although schizophrenia is chronic, symptoms may improve at times (periods of remission) and worsen at other times (acute episodes, or period of relapse).
Initial symptoms appear gradually and can include:
* Feeling tense * Difficulty concentrating * Difficulty sleeping * Social withdrawal What are psychotic symptoms?
Psychotic symptoms include:
* Hallucinations: hearing voices or seeing things * Delusions : bizarre beliefs with no basis in reality (for example, delusions of persecution or delusions of grandeur) These symptoms occur during acute or psychotic phases of the illness, but may improve during periods of remission. A patient may experience * A single psychotic episode during the course of the illness * Multiple psychotic episodes over a lifetime * Continuous psychotic episodes During a psychotic episode, the patient is not completely out of touch with reality. Nevertheless, he/she has difficulty distinguishing distorted perceptions of reality (hallucinations, delusions) from reality, contributing to feelings of fear, anxiety, and confusion. The disorder can prove dangerous for some – especially when symptoms of paranoia combine with the delusional symptoms of schizophrenia. In fact, doctors say paranoid schizophrenics are notorious for discontinuing the treatments which help control their symptoms.
The Indian Drug Review has specified the Drug Trifluoperidol as a sedative and tranquilizer. With regard to administration it has been suggested that it is given to patient suffering from Schizophrenia. Incidentally this drug was being administered on medical advice to the respondent.”
In our view, the trial Court failed to appreciate the uncontroverted evidence of the appellant who had proved the case on every count. It has been established beyond doubt by the Medical doctors who had deposed as witnesses and brought the original medical record of the respondent that the respondent is suffering from mental disorder. Further ground for grant of divorce on the plea of mental insanity/mental disorder is different than cruelty. The appellant, in our view, had proved beyond doubt that the respondent suffered from mental disorder and that the appellant suffered cruelty by and at the behest of the respondent.
Learned single Judge of the High Court failed to appreciate that in the absence of any evidence led by the respondent, the appellant’s evidence had to be relied upon and on the basis of the evidence, the decree for divorce was bound to be granted in favour of the appellant. The appellant had also given specific instances of cruelty which clearly establish that she had a reasonable apprehension that it will be harmful or injurious for her to live with the respondent.
LEGAL PROPOSITION ON THE ASPECT OF CRUELTY It is settled by catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the Section. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case.
The word ‘cruelty’ has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance. Judged by standard of modern civilization in the background of the cultural heritage and traditions of our society, a young and well educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony. This view was taken by the Kerala High Court in the case reported in AIR 1991 Kerala 1.
In 1993 (2) Hindu L.R. 637, the Court had gone to the further extent of observing as follows:
“Sometime even a gesture, the angry look, a sugar coated joke, an ironic overlook may be more cruel than actual beating”
Each case depends on its own facts and must be judged on these facts. The concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.
The legal concept of cruelty which is not defined by statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all question of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complains accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and abhorrence for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury. There are two sides to be considered in case of cruelty. From the appellant’s side, ought this appellant to be called on to endure the conduct? From the respondent’s side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person’s point of view after a consideration of any excuse which the respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.
As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.
The modern view of cruelty of one spouse to another in the eye of law has been summarised as follows in (1977) 42 DRJ 270 Halsbury Laws of England Vol.12, 3rd edition page 270:-
“The general rule in all kinds of cruelty that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists not of violent acts, but of injurious reproaches, complaints, accusations of taunts. Before coming to a conclusion, the judge must consider the impact of the personality and conduct of one spouse on the mind of the other, and all incidents and quarrels between the spouses must be weighed from the point of view. In determining what constitutes cruelty, regard must be had to the circumstances of each particular case, keeping always in view the physical and mental condition of the parties, and their character and social status.”
This Court in Dastane vs. Dastane AIR 1975 SC 1575 observed as under:-
“The Court has to deal not with an ideal husband and an ideal wife, (assuming any such exist) but with the particular man and women before it. The ideal couple or a mere ideal one will probably have no occasion to go to a matrimonial court or, even if they may not be able to drawn their differences, their ideal attitudes may help them overlook or gloss over mutual fault and failures.
Marriage without sex The Division Bench in the case of Rita Nijhawan vs. Balkrishan Nijhawan in AIR 1973 Delhi 200 at 209 observed as follows:
“Marriage without sex is an anathema. Sex is the foundation of marriage and without a vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that the sexual activity in marriage has an extremely favourable influence on a woman’s mind and body. The result being that if she does not get proper sexual satisfaction it will lead to depression and frustration. It has been said that the sexual relations when happy and harmonious vivifres woman’s brain, develops her character and trebles her vitality. It must be recognized that nothing is more fatal to marriage than disappointment in sexual intercourse.”Section 13(1)(iii) ‘mental disorder’ as a ground of divorce is only where it is of such a kind and degree that the appellant cannot reasonably be expected to live with the respondent. Where the parties are young and the mental disorder is of such a type that sexual act and procreation of children is not possible it may furnish a good ground for nullifying the marriage because to beget children from a Hindu wedlock is one of the principal aim of Hindu Marriage where sanskar of marriage is advised for progeny and offspring. This view was taken in AIR 1991 MP 205. This Court in Digvijay Singh vs. Pratap Kumari, AIR 1970 SC 137 has held as follows “A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.”
Lord Denning in Sheldon v. Sheldon (1966) 2 All ER 257, “The categories of cruelty are not disclosed. Each case may be different. We deal with the conduct of human being who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capability to tolerate the conduct complained of. Such is the wonderful realm of cruelty.”
Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged.
We can also take note of the fact that the respondent had filed a revision against the order of the trial Court’s direction for setting up of a medical Board to examine the respondent. At the time of hearing, this Court directed the counsel for the respondent to ascertain from the respondent as to whether he is willing to submit himself for medical examination. However, the respondent refused to submit himself for medical examination and go before the medical Board. This would but confirm the contention of the appellant that the respondent is suffering from Paranoid Schizophrenia and that this Court can draw adverse inference in view of the conduct of the respondent. In the case of Smt. Uma Rani vs. Arjan Devi (supra), it has been held that unsoundness of mind may be held to be cruelty.
In the case of Harbhajan Singh Monga vs. Amarjeet Kaur (Supra), it has been held that attempt to commit suicide by one spouse has been found to amount to cruelty to other.
The observation made by this Court in the case of Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121 can be reproduced to appreciate the facts and circumstances of the case on hand. It reads as follows:
“There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. The Judges and lawyers, therefore, should not import their own notions of life. Judges may not go in parallel with them. There may be a generation gap between the Judges and the parties. It would be better if the Judges keep aside their customs and manners. It would be also better if Judges less depend upon precedents.”
Humane aspects which this Court should consider:
? The appellant was 24 years of age when she got married. ? The marriage lasted for four to five months only when she was compelled to leave the matrimonial home.
? The marriage between the parties was not consummated as the respondent was not in a position to fulfil the matrimonial obligation. ? The parties have been living separately since 1993. 13 years have passed they have never seen each other.
? Both the parties have crossed the point of no return. ? A workable solution is certainly not possible.
? Parties at this stage cannot reconcile themselves and live together forgetting their past as a bad dream.
? Parties have been fighting the legal battle from the year 1994. ? The situation between the parties would lead to a irrefutable conclusion that the appellant and the respondent can never ever stay as husband and wife and the wife’s stay with the respondent is injurious to her health. ? The appellant has done her Ph.d. The respondent, according to the appellant, is not gainfully employed anywhere.
? As a matter of fact, after leaving his deposition incomplete during the trial, the respondent till date has neither appeared before the trial Court nor before the High Court.
The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.
In our view, the orders of the Courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a dead relationship for over 13 years. The resultant agony and injustice that has been caused to the appellant, it is a fit case for interference under Article 136 of the Constitution of India and reversal of findings of the Courts below which have resulted in grave miscarriage of justice. In the result, the civil appeal stands allowed. There will be a decree for divorce in favour of the appellant-wife and against the respondent-husband. The order of the trial Court as affirmed by the High Court, stands set aside. There will be no order as to costs.