Cruelty

Case BriefsSupreme Court

Supreme Court: A Division Bench of S. Abdul Nazeer and Krishna Murari, JJ. refused to interfere in the judgment passed by the Gujarat High Court whereby the appellants (husband and mother-in-law of the deceased) were found guilty of committing cruelty to the deceased and abetting suicide committed by the deceased. Noting that although the prosecution failed to adduce any direct evidence to establish that accused abetted deceased into committing suicide, the Supreme Court observed:

“Admittedly, in the case at hands, the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption [under Section 113-A of the Evidence Act] exists. Admittedly the appellants have led no evidence to rebut the presumption.”

It was prosecution’s case that the accused husband constantly asked the deceased to bring Rs 25,000 from her father. On her failure to do so, the accused husband started frequently beating the deceased, and the accused mother-in-law used to pick up quarrel with her on the pretext that she neither knew how to cook nor did any household work properly. The deceased committed suicide by consuming poison at her matrimonial home for the sole reason that she was unable to bear continuous mental and physical cruelty meted out to her by the appellants in a short span of 8 months of her marriage.

The trial court convicted the appellants for offences punishable under Section 498-A (cruelty to women) and Section 306 (abetment of suicide) of the Penal Code, 1860. On appeal, the High Court confirmed the judgment of the trial court. Aggrieved, the appellants approached the Supreme Court.

At the outset, the Supreme Court noted that Section 113-A of the Evidence Act, provides for presumption as to abetment of suicide by a married woman within seven years of marriage, by her husband or any of his relative. Section 113-A reads thus: “When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband”. Further, the Explanation added to Section 113-A of the Evidence Act clearly provides that ‘cruelty’ shall have the same meaning as in Section 498-A IPC.

Considering first the offence under Section 498-A IPC, the Court noted the consistent evidence of witnesses who were related to the deceased. The Court opined that most often the offence of subjecting the married woman to cruelty is committed within the boundaries of the house which in itself diminishes the chances of availability of any independent witness. It was observed:

“The evidentiary value of the close relatives/interested witness is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the relatives to be produced as a witness though they may be interested witness.”

The Court found that the witnesses (family members) though related to the deceased, were natural witnesses. Their evidence was consistent without any material contradiction and inspired confidence. Thus, from the evidence of prosecution witnesses, the Court concluded it was proved that the deceased was harassed with a view to meet unlawful demand of Rs 25,000. The Court held that the prosecution was successful in proving the charge of cruelty under Explanation (b) of Section 498-A IPC.

Next, the question that fell for consideration was that the prosecution having successfully established the charge of cruelty as laid down in Explanation (b) of Section 498-A IPC and also the fact that the deceased committed suicide by consuming pesticide within seven years of marriage, whether the accused could also be held guilty for the offence punishable under Section 306 IPC with the aid of Section 113-A of the Evidence Act.

The Court noted that the prosecution failed to adduce any direct evidence to establish that the accused abetted deceased into committing suicide. The prosecution placed reliance on Section 113-A of the Evidence Act to establish the charge of abetment against the accused. Relying on its earlier order in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the Court concluded that to attract the applicability of Section 113-A of the Evidence Act, three conditions are required to be fulfilled: (i) the woman has committed suicide; (ii) such suicide has been committed within a period of seven years from the date of her marriage; (iii) the accused had subjected her to cruelty.

In the instant case, all the three conditions stood fulfilled. The deceased committed suicide within a period of seven years from the date of her marriage and accused had subjected her to cruelty, as it was confirmed that prosecution was successful in proving the charge of cruelty under Section 498-A IPC.

The Court said that it is no doubt correct that the existence and availability of the above said three circumstances are not to be invoked like a formula to enable the presumption being drawn and the presumption is not an irrebuttable one. However, in the instant case, the evidence clearly established the offence of cruelty or harassment caused to the deceased and, thus, the foundation for the presumption existed. Admittedly, the appellants led no evidence to rebut the presumption.

In such view of the matter, the Supreme Court held that the trial court, as well as the High Court, committed no illegality in holding that the appellants abetted suicide of the deceased. The appeals were therefore dismissed. [Gumansinh v. State of Gujarat, 2021 SCC OnLine SC 660, decided on 3-9-2021]

Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., decided a bail matter wherein the husband suspicioned to have instigated the wife to commit suicide.

In the instant petition, the petitioner sought bail under Sections 304B, 498A, 34 Penal Code, 1860 and 4 of the Dowry Prohibition Act.

Petitioner’s counsel contended that in the FIR and even in the statements recorded under Sections 161 CrPC and 164, of the father of the deceased, who was the complainant and maker of the FIR, allegations if any have been levelled against the mother and sister of the petitioner and not against the petitioner.

Both the mother and sister were granted anticipatory bail.

Further, merely because just before the death, the petitioner and the deceased spoke on the mobile phone, it cannot be said to raise a suspicion that the petitioner instigated the deceased to commit suicide.

There was no material to show that soon before the death of the deceased, the petitioner subjected the deceased to cruelty for the demand of dowry.

APP for the State submitted that, the conduct of the petitioner by making a phone call to the deceased soon before she committed suicide itself shows the conflict going on between the petitioner and the deceased which instigated the deceased to commit suicide.

On perusal of the Complainant’s allegations even in the statement under Section 161 CrPC which was recorded after 17 days of the death of the deceased noted the demand of dowry at the time of marriage, however thereafter the principal allegations were that in-laws retained jewellry and articles given in shagun and did not return the same, that brother-in law of the deceased used to ask the deceased to vacate the house and the mother-in law used to ask for the rent from the deceased.

Prosecution claimed that the last call from the petitioner to the deceased instigated her to commit suicide, for which there was no evidence. It could be to persuade not to take any extreme step, because immediately thereafter the petitioner made a call to the complainant informing him that she has locked from inside.

In respect of the allegation that the petitioner and his family members used to harass her for dowry due to which, she was compelled to commit suicide, no specific allegation has been stated as to what was the demand of dowry after marriage except what was demanded at the time of marriage.

In view of the evidence collected against the petitioner, Court granted bail to the petitioner.

Hence, the petition was disposed of. [Amit Sharma v. State (Govt. of NCT of Delhi), 2021 SCC OnLine Del 4120, decided on 24-8-2021]

Advocates before the Court:

For the petitioner: Pradeep Teotia, Advocate

For the Respondent: Tarang Srivastava, APP for the State.

Ravi Shankar Kumar, Advocate for the complainant.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ. addressed whether prior to the decision on divorce petition, creating a matrimonial profile expressing the will and consent, would be a ground for divorce.

Factual Background

Respondent and appellant started developing discord in their relations.

Appellant submitted that, after some time in the company of the respondent he found that by nature she was aggressive and would speak utter lies and had an extreme affinity towards her parents and particularly for parents’ residence.

Further, it was also added that the respondent would insist the appellant leave the job and shift to Akola with her and take some new assignment.

The job of the appellant was a permanent job in the High Court. He, therefore, did not agree with the suggestions made by the respondent to quit the job. According to the appellant, this was the trigger point to escalate the conflict between him and the respondent.

Questions for determination 

  • Whether the appellant has proved that the respondent after the solemnization of their marriage had treated him with cruelty?
  • Whether the Judgment and decree passed by the learned Judge of the Family Court rejecting the decree of divorce is sustainable?

Appellant’s Advocate submitted that the arrogant and cantankerous nature of the respondent not only made the life of the appellant miserable but also made the life of his parents miserable.

Further, during the pendency of the petition, the respondent had made her intention of parting ways with the appellant clear, by uploading her profile on two marriage bureau websites.

Respondent had made her intention writ large to get rid of the appellant and begin her life afresh with someone else.

Analysis, Law and Decision

In the decision of Supreme Court in Malathi Ravi v. B.V. Ravi, (2014) 7 SCC 640, it was held that false allegation by one spouse against the other amounts to mental cruelty, It is held that mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual, from society and also depends upon the status of the person.

In another decision, of Supreme Court in Vishwanath v. Sarla Vishwanath Agrawal, Civil Appeal No. 4905 of 2020, it was held that the mental torture caused by one spouse to the another by making wild and false allegations in a report lodged to the authority as well as in the electronic and print media constitute mental cruelty and as such the ground for divorce.

The decision of V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, had considered as to what constitute mental cruelty and what should be the parameters while deciding the cruelty.

Family Court had found that the appellant established the case of cruelty at the hands of respondent in as much as the respondent made unfounded and unsupported allegations against the appellant. Despite the said finding of fact, Judge did not deem it appropriate to grant a divorce decree.

Bench stated that on a plain reading of Section 14 Court has no reason to reject the submissions advanced by the Advocate for the appellant.

In Court’s opinion, the documents produced on record in the form of matrimonial profile uploaded by the respondent on 22-10-2020 can be taken into consideration for deciding the question in controversy in this appeal.

Further, the High Court expressed that on perusal of matrimonial profile uploaded by the appellant it would show that even before decision in the divorce petition she had made up her mind to perform the second marriage. In the said profile she had clearly mentioned that she was awaiting the divorce in pending case.

“…respondent by uploading her profile on two matrimonial websites made her intention writ large.”

In view of the above document, it was inferred that she wanted to get rid of the appellant and wanted to perform the second marriage.

Adding to the above, Court stated that in the written statement, respondent contended that as an obedient wife and daughter-in-law she performed her duties sincerely, but the appellant and his parents did not like her and wanted to get rid of her from the life of the appellant.

In Court’s view, the above statement in the written statement if read in the context of the documents would seriously reflect upon the conduct of the respondent.

Appellant in his evidence stated that due to the false and frivolous complaints and reports made by the respondent to the various authorities, she has caused immense mental stress, depression, pain and agony to him and his parents.

High Court opined that if the Judge of the Family Court had taken into consideration the documents produced on record before Judgment, whereby the respondent had uploaded her marriage profile on two websites, the learned Judge would not have recorded such a finding.

Emphasizing that the evidence clearly indicated that the respondent had no wish and desire to remain in company of the appellant.

If the respondent had sincere wish and desire to save her marriage she would not have taken a conscious decision to perform the second marriage even before the final outcome of the divorce petition.

Further, it was proved that the mental cruelty was such that it would in all probability cause injury to the health of the appellant.

 “…conduct of the respondent to perform the second marriage and not to lead the life with the appellant is writ large from the fact that she did not apply for restitution of conjugal rights.”

 Appellant successfully made out the case that he was made to suffer mental cruelty of a high degree and therefore, he took a conscious decision to get separated.

Hence, family court appeal was allowed.

Hindu Marriage Petition filed by the appellant is allowed. It was declared that the marriage between the appellant and the respondent is dissolved by decree of divorce on the ground of cruelty. [Premdeep v. Bhavana, Family Court Appeal No. 24 of 2020, decided on 27-8-2021]

Advocates before the Court:

Shri Hemant Surve, Advocate for appellant

None for the respondent

Legal RoundUpWeekly Rewind

SCC Online Weekly Rewind Episode 23rd ft. Devika Sharma, Senior Editorial Assistant is out now. The written episode along with the video episode can be watched and read below.

Kerala High Court

 Is marital rape a form of cruelty?

Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

In a very significant decision, Kerala High Court held that merely for the reason that law does not recognize marital rape under the penal law, it does not inhibit the Court from recognizing the same as a form of cruelty to grant divorce.

High Court expressed:

if marriage is seen as a symbol to project status, without reflecting the values the individuals or society would cherish to profess, we may miss the basic concept required for marriage

https://www.scconline.com/blog/post/2021/08/10/marital-rape/

Supreme Court

SC issues directions to make voter’s right to information more effective; penalises political parties for non-compliance with earlier directions regarding disclosure of criminal antecedents: Read full report

“The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government.”

In a matter arising out of the elections held at Bihar Legislative Assembly, the Supreme Court found several political parties guilty of contempt of court for non-compliance of directions given by the Supreme Court in Rambabu Singh Thakur v. Sunil Arora, in connection with disclosure of information of candidates with criminal antecedents. Penalties have been imposed on the political parties found guilty. The Court also issued further directions in order to make the right of information of a voter more effective and meaningful.

https://www.scconline.com/blog/post/2021/08/13/fine-on-political-parties/

Foreign arbitral award enforceable against non-signatories to agreement; ‘perversity’ no longer a ground to challenge foreign award; tort claims arising in connection with agreement are arbitrable: SC expounds law on foreign awards

 A foreign arbitral award is enforceable against non-signatories to arbitration agreement. The Supreme Court reiterated that grounds for resisting a foreign arbitral award contained in Section 48(1)(a) to (e) of the Arbitration and Conciliation Act, 1996 are to be narrowly construed, and that a non-signatory’s objection cannot possibly fit into Section 48(1)(a). Furthermore, a foreign arbitral award cannot be challenged on the ground of “perversity”.

Incidental to the main issue, it was also held that Section 44 recognises the fact that tort claims may be decided by an arbitrator provided they are disputes that arise in connection with the subject agreement.

The instant appeals before the Supreme Court raised interesting questions relatable to Part II of the Arbitration and Conciliation Act which provisions deal, inter alia, with recognition and enforcement of foreign awards.

https://www.scconline.com/blog/post/2021/08/11/foreign-arbitral-awards/

Conundrum of res judicata and rejection of plaint: SC summarises guiding principles for deciding an application under Or. 7 R. 11(d) CPC

Another very interesting development from the Supreme Court was that, the Court summarized the guiding principles for deciding an application under Order 7 Rule 11(d) of CPC.

(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;

(ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application;

(iii) To determine whether a suit is barred by res judicata, it is necessary that (a) the ‘previous suit’ is decided, (b) the issues in the subsequent suit were directly and substantially in issue in the former suit; (c) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (d) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and

(iv) Since an adjudication of the plea of res judicata requires consideration of pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11(d), where only the statements in the plaint will have to be perused. 

https://www.scconline.com/blog/post/2021/08/10/conundrum-of-res-judicata-and-rejection-of-plaint/

15 years after superannuation, a Govt. Employee still accommodated at Govt. accommodation: Does SC finds this legitimized?

In a conflict of Right to Shelter v. Right to Govt. accommodation, SC noted that a Kashmiri Migrant retired from the Intelligence Bureau was even after 15 years of his retirement still staying at the accommodation provided by the Government.

Court in view of the stated backdrop affirmed that,

If a retired government employee have no residence, they have an option to avail transit accommodation or to receive cash compensation in the place of transit accommodation.

Further, the Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office.

Holding that the right to shelter does not mean right to government accommodation, the matter was disposed of directing the retired officer to vacant the accommodation. 

https://www.scconline.com/blog/post/2021/08/13/right-to-government-accommodation/

Telangana High Court

Mother allows her live-in partner to sexually assault minor daughter continuously

 In a gruesome matter, Telangana High Court noted that a mother allowed her live-in partner to commit sexual assault on her minor daughter as result of which the minor became pregnant and gave birth to a male child.

High Court rejected the bail application of the mother.

https://www.scconline.com/blog/post/2021/08/09/mother-allows-her-live-in-partner-to-sexually-assault-minor-daughter-continuously/

Kerala High Court

Penetration between thighs of the victim held together; will it fall within the ambit of Rape?

Whether penetration to any part of the body of such woman as mentioned in Section 375(c) of IPC brings within its ambit a penile sexual act committed between the thighs held together; which do not qualify to be called an orifice?

In a historic decision the Kerala High Court held that the sexual act of penetration committed between the thighs of the victim held together is an act of manipulation of the body of the victim to obtain sexual gratification and the same fell within the ambit of the amended definition of rape.

Elaborating more, the Court stated that , when the body of the victim is manipulated to hold the legs together for the purpose of simulating a sensation akin to penetration of an orifice; the offence of rape is attracted. When penetration is thus made in between the thighs so held together, it would certainly amount to “rape” as defined under Section 375.

https://www.scconline.com/blog/post/2021/08/09/rape-3/

Kerala HC directs Kerala to reinstate the woman terminated for unauthorised absence on availing maternity leave

While addressing the grievances of a woman whose request for maternity leave was turned down by the State and to then exacerbate her agony, she was terminated from service on the accusation of unauthorised absence. Voicing the plight of the pregnant women in general, the Kerala High Court stated,

“Life as a new mother is like being on a roller-coaster and being a working mother is tougher. The minutiae of motherhood can never be properly contemplated and it involves navigation through myriad daily issues, which ultimately determine the health and future of the child.”

https://www.scconline.com/blog/post/2021/08/13/maternity-leave-3/

Bombay High Court

Can mere dishonour of cheque amount to abetment of suicide?

In the backdrop of a matter wherein a person committed suicide living behind an alleged suicide note naming the person who did not repay the deceased’s money. Though there was a big question mark on the genuineness of the suicide note.

High Court held that mere dishonour of cheque and refusal to pay the remaining balance amount involved in the transaction does not amount to abetment to commit suicide.

https://www.scconline.com/blog/post/2021/08/10/mere-dishonour-of-cheque/

Would throwing love chit on person of a married woman amount to outraging her modesty?

Modesty of a woman is most precious jewel and there cannot be a straitjacket formula to ascertain whether modesty is outraged.

Bombay High Court dealt with a matter wherein a 45 year old married woman was subjected to a situation where a man threw a chit on the person of woman professing love for her, noting the said fact Court held that this act was sufficient to be categorized under the ambit of Outraging the modesty of woman, As even on earlier occasions the man used flirted with the woman making gestures like pouting lips and hitting her with small pebbles.

https://www.scconline.com/blog/post/2021/08/11/outraging-modesty-of-a-woman/

Central Information Commission

Centre’s denial on information relating to committee set up to ensure adequate availability of medical oxygen during COVID-19, is justified?

 Two weeks back, Central Information Commission dealt with a very pertinent matter, wherein an activist approached the Commission seeking certain information on the 9-Member Committee set up in April 2020 to ensure the adequate availability of medical oxygen during COVID-19 Pandemic.

In the arguments submitted by the Centre, they contended that the said information cannot be provided as the High level discussions of the empowered group frequently form part of the discussions within the highest decision-making body to avert and mitigate the impact of COVID-19 pandemic in the country and thus must be protected from disclosure given the larger intent to protect such information from being misused or being adversely used against the interest of the state.

The Commission directed the Centre to provide a point wise reply the activist within 10 days and in case if any information was being denied then the same should be suitably justified.

https://www.scconline.com/blog/post/2021/08/13/centres-denial-on-information-relating-to-committee-set-up-to-ensure-adequate-availability-of-medical-oxygen/

Appointments

Appointment | Kerala High Court gets 2 new Additional Judges 

Two new Additions in the form of Additional Judges were made to the Kerala High Court vide notification dated 11th August 2021 by the Ministry of Law and Justice.

Read the Notification here:

https://www.scconline.com/blog/post/2021/08/11/appointment-of-additional-judges/

 

Legislation updates 

IBC (Amendment) Act, 2021 

The Central Government has notified the Insolvency and Bankruptcy Code Amendment Act, 2021 which has brought Pre-packaged Insolvency Resolution Process for MSMEs. The Act repeals the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2021 and amends the provisions of IBC Act, 2016. 

The Application for initiating Prepacked Insolvency Resolution Process may be filed in the event of a default of at least one lakh rupees. However, the Central Government may increase the threshold of minimum default up to one crore rupees through a notification.   

https://www.scconline.com/blog/post/2021/08/13/pre-packaged-insolvency-resolution-for-msmes-introduced-vide-ibcamendment-act-2021/  

Rent-a-Cab (Amendment) Scheme 2021 

The Central Government has notified Rent-a-Cab (Amendment) Scheme 2021 which provides that the battery-operated motor cabs and motor cabs driven on methanol and ethanol is exempted from the provisions under S. 66 of the Motor Vehicles Act, 1988. 

https://www.scconline.com/blog/post/2021/08/12/battery-operated-motor-cabs-driven-on-methanol-and-ethanol-exempted-from-necessity-of-permits-vide-rent-a-cab-amendment-scheme-2021/  

Income tax Amendment (22nd Amendment), Rules, 2021 

The Central Board of Direct taxes has notified the Income tax Amendment (22nd Amendment), Rules, 2021 which provides the procedure for computation of income of a specified fund attributable to units held by non-resident as well as the procedure for computation of exempt income of specified funds. 

https://www.scconline.com/blog/post/2021/08/12/determination-of-income-of-specified-funds-associated-with-units-held-by-nri-notified-vide-income-tax-amendment-22nd-amendment-rules-2021/  

In the Monsoon Session, Various Bills Have Been Passed by Parliament Such as:

  1. Tribunal Reforms Bill, 2021 [ https://www.scconline.com/blog/post/2021/08/10/parliament-passes-tribunal-reforms-bill-2021/]
  2. General Insurance Business (Nationalisation) Amendment Bill, 2021 [ https://www.scconline.com/blog/post/2021/08/12/parliament-passes-general-insurance-business-nationalisation-amendment-bill-2021/] 
  3. National Commission for Homoeopathy (Amendment) Bill, 2021 
  4. National Commission for Indian System of Medicine (Amendment) Bill, 2021

https://www.scconline.com/blog/post/2021/08/12/rajya-sabha-clears-national-commission-for-homoeopathy-amendment-bill-2021-and-national-commission-for-indian-system-of-medicine-amendment-bill-2021/  

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.

Expressing concern over situation as it exists with regard to arranged marriage that is followed traditionally in our country; the Bench stated that the choice for a woman is limited as they simply follow the guidance of parents or elders. The Bench further stated that if marriage is seen as a symbol to project status, without reflecting the values the individuals or society would cherish to profess, we may miss the basic concept required for marriage. Voicing the plight of the respondent in the instant case, the Bench expressed,

“The case in hand depicts a story of the struggle of a woman within the clutches of law to give primacy of choice “not to suffer” in the bondage of legal tie. An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation for obtaining a divorce, she has forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years). She still awaits a final bell to answer her prayers and cry.”

Facts of the case

The instant appeal arose from a common judgment allowing a petition for divorce on the ground of cruelty and dismissal of a petition for restitution of conjugal rights. The couple had an arranged marriage and had two children in the wedlock. The appellant-husband had claimed to be a qualified medical doctor at the time of marriage but he never practised as a medical doctor and was rather engaged in the real estate business and construction. The real estate business was not a smooth run for the appellant as he never succeeded in the business.

A case of cruelty was put forward by the respondent-wife on constant harassment and demand for money in spite of the fact that she had been given 501 gold sovereigns at the time of marriage besides car and flat. It was the case of the respondent that the respondent’s father gave Rs.77 lakhs to the appellant on different occasions apart from that the respondent contended that the entire gold ornaments were also misappropriated by the appellant. The respondent also alleged sexual perversion and physical harassment as a part of the cruelty; while the allegations of extramarital relationship were levelled against the respondent by the appellant.

The Family Court had allowed the divorce petition filed by the respondent and the petition filed for restitution of conjugal rights by the appellant was dismissed.

Analyses and Opinion of the Court  

Noticing that the appellant’s own father had approached the police with complaints against the him stating that he had been compelling him to give more money, been ill-treating his wife and members of her family, and even threatening his sister and her two children over the phone daily with danger to their lives, the Bench stated that the ‘cruelty’ reflects the character of a person. The Court, therefore, is required to adopt social semiotic approach to analyse the conduct in given situation.

Opining that the demand for money had to be taken into account in the background of the fact that the appellant never cared to provide love and care to the respondent or his children, the Bench was of the view that in the matrimonial life of the appellant and the respondent, the respondent never felt any security or affection or care from the side of the appellant. This, coupled with the fact of constant harassment demanding money, had caused mental pain, agony and sufferings to her.

The physical cruelty and mental cruelty meted out to the respondent had been narrated succinctly in the oral testimony given by the respondent. In spite of the respondent having helped the appellant monetarily in every possible manner, it turned to be a strategy for the appellant to get more money from the respondent and her father in the pretext of his debt using his fiduciary relationship for financial gain and bargain.

Relying on the decision of the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Bench held that the appellant’s licentious and profligate conduct could not be considered as part of normal conjugal life. Therefore, the Bench held that insatiable urge for wealth and sex of a spouse would also amount to cruelty. Similarly, the unsubstantiated allegations of adultery alleged by the appellant also constituted mental cruelty.

Marital Rape as a Ground for Divorce

The respondent had deposed that even during her pregnancy, the appellant abused her and had committed forceful sex when she was sick and bedridden. She also deposed that she was subjected to the worst form of sexual perversion and unnatural sex against her will. The respondent deposed that the appellant even did not spare her for sex even on the day the appellant’s mother expired. She also stated that the appellant forced her to have sex in front of their daughter. Considering that there was no serious challenge against the narration of sexual conduct, the Bench opined that there was no reason to disbelieve the respondent’s version that the appellant often forced her to have unnatural sex.

Opining that a husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, the Bench stated, albeit such conduct could not be penalised, it falls in the frame of physical and mental cruelty. Marital rape, though alien to Indian penal jurisprudence, had been defined in Black’s Law Dictionary 8th Edition as “a husband’s sexual intercourse with his wife by force or without her consent”. Hence, marital rape occurs when husband is under notion that body of his wife owe to him. In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

Right to respect for physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy. Therefore, marital privacy is intimately and intrinsically connected to individual autonomy and any intrusion, physically or otherwise into such space would diminish privacy. This essentially would constitute cruelty. Hence, merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. Accordingly, the Bench held that marital rape is a good ground to claim divorce.

Findings and Suggestions by the Court

Considering that sex in married life is the reflection of the intimacy of the spouse and the evidence of the respondent clearly established that she was subjected to all sorts of sexual perversions against her will, the Bench upheld the divorce granted by the Family Court.

The Bench opined, a spouse in a marriage has a choice, a choice not to suffer, which is fundamental to the autonomy guaranteed under natural law and the Constitution. Law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court. Expressing concern over plight of the women caught in such marital ties, the Bench expressed,

“This depicts a sordid tale of a woman losing a precious part of her life in a battle of fate. In a changed scenario of marriage in the society, shifting from the social philosophy to individual philosophy, we are afraid whether the present divorce law on enumerated grounds would stand to the test of constitutionality”.

Observing that fine balancing of individual choice and individual’s best interest is missing in law relating to dissolution of marriage, the Bench made following suggestions to introduce reform in existing law:

  1. “Paternalistic intervention through legislation must be limited to help and aid parties in taking a decision for their own good. Therefore, the framework of divorce law must be with an objective to help individuals to take a decision on their own affairs.
  2. The forum provided under law to decide upon the fate of a relationship must be conceded with a power to enable parties to decide on the best possible choice governing their own affairs by themselves and not by wresting the power on a fictional ground to decide on their fate.
  3. The court should articulate its power in a scientific temper to help individuals to make decisions on their own affairs.
  4. Modern-day mediation, medical help like psychological and psychiatric, involvement by families and friends etc., would progressively help the parties to take a decision of their own choice.
  5. Our law also should equip to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond.
  6. Marriage and divorce must be under the secular law; that is the need of the hour. Time has come to revamp the marriage law in our country.”

[X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Appellant: (Party in person)

For the Respondent: Adv. Millu Dandapani

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that unsubstantiated allegation of unchastity against wife is a mental cruelty and a valid ground for seeking dissolution of marriage. The Bench stated,

“Levelling disgusting accusation of unchastity and attributing aspersions of perfidiousness to the wife would undoubtedly amount to worst form of mental cruelty. No wife can tolerate such accusation.”

Facts of the Case

The instant matrimonial appeal had been filed to assail the impugned judgment of the Family Court, dismissing the petition filed by the appellant against her husband for divorce on the ground of cruelty.

The couple was working at Sultanate of Oman. According to the appellant, while they were living together, the respondent made false allegations of unchastity against her and the said allegations were spread among his relatives as well as the co-workers of her father. According to the appellant, the said false imputation of adulterous conduct made by the respondent lowered her reputation in the estimate of others including co-workers and, thus, she could not be expected to live with the respondent. It was further alleged that while they were living together the respondent used to pick up quarrels with her on the issue of unchastity and on 01-03-2012, he brutally assaulted her as well.

Analysis and Observation by the Court

The main allegation of mental cruelty on the part of the respondent canvassed by the appellant was the false allegation of unchastity made by him against her. The Bench opined that it is settled that the unsubstantiated accusation and character assassination by one spouse against the other would constitute mental cruelty. Reliance was placed by the Court on K. Srinivas Rao v. D. A. Deepa (AIR 2013 SC 2176), wherein it had been held by the Supreme Court that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings amount to causing mental cruelty to the other spouse. Similarly, the Court in Raj Talreja v. Kavita Talreja (2017 KHC 6335) had held that the reckless, defamatory and false accusations made by the wife against her husband, his family members and colleagues would definitely have the effect of lowering his reputation in the eyes of his peers and, thus amounts to cruelty. In Gangadharan v. T. T. Thankam (AIR 1988 Kerala 244), it had been held that false, scandalous, malicious, baseless and unproved allegation made by one spouse, whether by letters or written statement or by any other mode, amounts to cruelty.

There was specific pleading in the petition that the allegation of unchastity against the appellant had also spread among the relatives of the and that the respondent’s aunt Smt.Usha Pillai, who resides in USA had sent an email message to the appellant alleging that she was caught hold of by police with a boy friend and both of them were taken to police station. The appellant asserted that there was no such incident as alleged in the email and there was absolutely no truth in the allegation of unchastity levelled against her.

Admissibility of E-mail as Evidence

The respondent argued that the alleged e-mail could not have been even admitted in view of the provisions of Sections 65 and 65B of the Evidence Act and even if it is admitted that the email sent by Usha Pillai, the respondent could not be held liable for its contents inasmuch as nowhere was it stated in the e-mail that the information about the illicit affair of the appellant was furnished by the respondent. Rejecting the argument of the respondent, the Bench opined that,

“The technicalities of the Evidence Act cannot be imported to a proceedings before the Family Court because Section 14 of the Family Courts Act authorizes a Family Court to receive as evidence any report, statement, document, information or matter that may, in its opinion assist it to deal effectually with a dispute irrespective of whether it is relevant or admissible under the Indian Evidence Act, 1972.”

The Bench held that it is discernible from Section 14 of the Evidence Act, 1972 that the technicalities of the Act regarding the admissibility or relevancy of evidence are not strictly applicable to the proceedings under the Family Court and in the matrimonial dispute before the Family Court, a discretion has been given to the Court to rely on the documents produced if the court is satisfied that it is required to assist the court to effectively deal with the dispute.

Findings of the Court

After pursuing the mail, the Bench was of the view that Mrs Usha Pillai and her husband knew about the marital problems between the appellant and the respondent and they had intervened in it. It was specifically stated in the mail that Mrs Usha Pillai had spoken to the respondent about the marital problems between him and the appellant and she heard what the respondent has to say in the matter. It was also further stated that the respondent had knowledge about the boy friend of the appellant even before the marriage. There was a specific aspersion in that the appellant was caught hold of by police along with a boy friend and both of them were taken to police station. Mrs Usha Pillai had even doubted the paternity of the child.

Admittedly, the father of the appellant and the respondent were working in the same company. The respondent had miserably failed to substantiate the imputation made by him that the appellant had relationship with another person and she was an unchaste woman. Ongoing through the relevant portions of imputations in the e-mail, the Bench found that the imputations were of such quality, magnitude and consequence as to cause reasonable apprehension in the mind of the appellant that it was not safe for her to continue the marital tie. The Bench opined,

Inasmuch as the mental cruelty on this ground has been established, it is immaterial whether the allegation of physical assault has been substantiated or not in order to grant a decree for dissolution of marriage on the ground of cruelty.

On an overall appreciation of the pleadings and evidence, the Bench held that the appellant had made out a case for granting a decree for dissolution of marriage on the ground of cruelty and the Court below went wrong in dismissing the original petition for dissolution of marriage. Hence, the impugned judgment was set aside and the marriage between the appellant and the respondent was declared dissolved.[Sabitha Unnikrishnan v. Vineet Das, Mat. Appeal No. 594 of 2018, decided on 28-06-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Appellant: Adv. Nagaraj Narayanan, Adv. Benoj C Augustin, Adv. U.M.Hassan, Adv. Saijo Hassan and Adv. Vishnu Bhuvandendran

For the Respondent: Adv. Jacob P.Alex, Adv. Joseph P.Alex and Adv. Manu Sankar P.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Ujjal Bhuyan and Prithviraj K. Chauhan, JJ., held that wife wishing to stay abroad with the child to maintain her status would not amount to cruelty and desertion

In the instant matter, appellant and respondent after having spent 8 years in courtship got married.

The couple is overseas citizens of Canada and Indian Citizens by birth, however, they acquired Canadian citizenship and thus had dual citizenship.

The circumstances changed for the couple when appellant started experiencing medical problems namely constant back and shoulder pain as well as skin related problems, especially during summer due to rag weed allergy resulting into sleepless nights and miserable days. To add to it, there was recession in 2010 that hit Canada due to which the appellant lost his job resulting into a financial burden upon the respondent.

In view of the above circumstances, the couple decided to permanently return to India.

Respondent visited Kutch without intimating the appellant about her whereabouts over there. After her return from Kutch, when the appellant asked the respondent to resume cohabitation, she refused. Infact, the respondent insisted on a separate accommodation.

It was submitted that the respondent was interested in returning back to Canada.

Respondent visited the appellant’s house along with her father, brother and massi and demanded her passport along with documents and jewelry. When the appellant asked the respondent the reason for such conduct, he was threatened that they would call the police and, therefore, the appellant had returned her passport, documents etc.

Further, respondent was adamant to settle in Canada for a better future, however, appellant expressed his unwillingness to shift to Canada owing to his health issues and other related reasons.

Appellant in order to show his bona fides as well as his love and affection towards the respondent had paid her CAN $ 25,000 plus Rs 1,25,000 in Indian currency to facilitate her departure to Canada. The respondent left for Canada with their son.

Respondent did not return nor made any attempt to contact the appellant and in June 2011, respondent’s massi called the appellant and demanded money on behalf of the respondent.

Later, respondent demanded money from the joint savings by accusing the appellant that he had cheated and abused her financially.

Despite all the efforts, there was no amicable settlement of their dispute and hence appellant was constrained to issue a legal notice calling upon the respondent to come and co-habit with him.

On realising that there would be no hope of any restitution, appellant sought a decree of dissolution of marriage on the ground of willful desertion by the respondent.

Family Court dismissed the petition, inter alia, observing that no case had been made out of the alleged cruelty to the appellant by the respondent-wife; rather they had happily cohabited till the child was born.

Analysis, Law and Decision

Whether appellant was subjected to cruelty by the respondent-wife to such an extent as to entitle him to a decree of divorce in view of the admitted fact that the couple had themselves decided to shift to Canada after their marriage for better prospects and admittedly acquired overseas citizenship of Canada with their free consent and will?

 It is pertinent to note that the respondent had been working as a Regulatory Affairs Associate at Teva Canada Limited which appears to be a pharmaceutical company.

Cruelty and Desertion?

Bench stated that in view of the above-stated status of the respondent, it would not be justified, in any way, expecting her to return to India when she was already well settled over there.

Wish of the respondent cannot be branded as an act of selfishness or the act on her part cannot be said unjustified.

Hence, the respondent’s act could not be said to be cruelty meted out to the appellant by the deserting spouse.

Husband’s allegations: FALSE OR NOT?

Husband did not examine any witnesses to corroborate his claims that the wife’s family had threatened him to return her passport, documents and jewellery or that they demanded any money. No medical records were placed to prove that the appellant couldn’t join the respondent for health reasons.

Appellant’s evidence was quite vague, insufficient and lacking in material particulars.

Court noted that what is surprising is that had it been the intention of the respondent to sever the marital tie, she would not have allowed the appellant to meet their child, Mukund. This aspect is important as per the Bench wherein it was indicated that neither the respondent treated the appellant with cruelty nor did she desire to desert him.

Is there hope to reunite the couple?

Bench reiterated that the matrimonial tie had not reached the stage of such deterioration that was beyond repairs, especially when Mukund was still a child who could be a bond between the couple to reunite them once again.

High Court referred to the Supreme Court decision in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 wherein features/instances of human behaviour relevant in dealing the case of mental cruelty were discussed.

In view of the above decision, Bench stated that it would be difficult to construe that the marriage of the parties had deteriorated to such an extent that it would be impossible to unite the couple.

Supreme Court’s decision in  Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176, was relied upon wherein the essential requisites of desertion were set out.

No case of desertion was made out in the present matter and taking into consideration of facts, circumstances and evidence on record, Bench opined that no case was made out by the appellant for seeking a decree of divorce on the ground of either cruelty or desertion. [Prakashchandra Joshi v. Kuntal Prakashchandra Joshi, 2021 SCC OnLine Bom 958, decided on 24-06-2021]

Advocates before the Court:

Mr. Vikas Singh i/b Ravi Dwivedi, for Appellant.

None for Respondent.

Case BriefsHigh Courts

Calcutta High Court: Bibek Chaudhuri, J., expressed that, voluntary presents given at or before or after the marriage to the bride or the bridegroom, as the case may be, of a traditional nature, which are given not as a consideration for marriage but out of love, affection on regard, would not fall within the mischief of the expression ‘dowry’ made punishable under the Dowry Prohibition Act.

Appellants were convicted for committing an offence under Sections 498-A and 304-B Penal Code, 1860.

It was submitted that the de facto complainant would give a gold chain to the appellants within 6 months of the marriage of his daughter Soma with Netai Ghosh (appellant 1). immediately after marriage, the appellants started abusing Soma with filthy language. The same was conveyed by the daughter to the de facto complainant and other paternal relations. Soma’s husband also physically assaulted her.

Demand of Dowry

Later, de facto complainant came to know that his daughter Soma died consuming poison and according to him Soma committed suicide failing to bear physical and mental torture on demand of dowry inflicted upon her.

Trial judge held the appellant guilty for committing offence under Section 498A and 304B of the Penal Code, 1860.

In the instant case, the marriage of Soma was solemnized only before 44 days of her unnatural death.

Analysis and Decision

In a case of cruelty and dowry death, direct evidence is hardly available, and it is the circumstantial evidence and the conduct of the accused persons to be taken into consideration.

In the present matter, it was alleged in the FIR that the mother-in-law of the deceased used to abuse the deceased with filthy language as her father failed to give a gold chain at the time of the marriage

Allegation of cruelty and unnatural death of the deceased was made by the defacto complainant only after the death of the deceased.

Further, it is significant to note that the de facto complainant did not state in the FIR as well as in course of his evidence that the accused persons demanded dowry as a consequence of marriage.

Definition of expression “dowry” contained in Section 2 of the Dowry Prohibition Act, 1961 cannot be applied merely to the “demand” of money, property or valuable security made at or after the performance of marriage. 

Elaborating more on the concept of dowry, it was expressed that under Section 4 of the Act, mere demand of dowry is not sufficient to bring home the offence of an accused.

Any demand of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or other relatives or vice versa would fall within the mischief of “dowry” under the Act where such demand is not properly referable to any legally recognized claim and is relatable only to the consideration of marriage.

 It was noted that there was absolutely no evidence that prior to her death the witnesses being PW1, PW2, PW4 and PW5 and others try to settle the alleged dispute between the parties during the lifetime of Soma.

As per the evidence Soma was ill-tempered, therefore, if at any incident of quarrel broke between the appellants and Soma, her nature was not such that she would silently digest the allegations made against her.

Since trial Judge failed to consider the above circumstances while holding the accused persons guilty and prosecution failed to prove the cause of death of the deceased, High Court set aside the decision of trial court. [Netai Ghosh v. State of West Bengal, 2021 SCC OnLine Cal 1938, decided on 21-06-2021]

Advocates before the Court:

For the Petitioner: Younush Mondal, Adv.

For the State: Swapan Banerjee, Adv., Suman De, Adv.

Case BriefsHigh Courts

Allahabad High Court: Dinesh Pathak, J., addressed a matter of dowry death and upheld the lower court’s decision.

Factual Matrix

An FIR was filed by the informant (PW-1) with regard to the dowry death of his daughter who was allegedly killed by her in-laws.

Accused was married to the informant’s daughter and at the time of marriage, he had received Rs 1 lakh cash as well as goods worth Rs 1 lakh. That apart, he had given one golden chain and golden ring to the groom, but in-laws of his daughter were not satisfied with the dowry.

Due to non-fulfilment of dowry demand, in-laws of the informant’s daughter attempted several times to kill her and later kicked her out of their house. She was subjected to cruelty and later in June, 2015 the police informed her about the death of the daughter.

Analysis, Law and Decision

High Court noted that the present matter pertained to the dowry death of the lady who had been allegedly hanged by her in-laws.

Bench stated that the case is of circumstantial evidence. Trial Court concluded that demand for dowry was the root cause and drew the victim to take a drastic step of ending her life.

Section 304-B IPC and Section 113-B of Evidence Act are decisive provisions to ascertain the unnatural death as dowry death.

Conjoint reading of Section 304-B IPC and presumptive provision of Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, is that the woman must have been soon before her death subjected to cruelty and harassment for or in connection with demand of dowry. On the proof of essentials as mentioned in the aforesaid sections, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death.

“…it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death.”

Supreme Court expounded the legal presumption qua dowry death in Sher Singh v. State of Haryana, (2015) 3 SCC 724.

It was expressed in the present matter that in case of dowry death initial burden lies upon the prosecution to prove the ingredients of Section 304-B IPC by a preponderance of probability.

In the matter in hand, prosecution witnesses of fact i.e. PWs-1, 2 and 3 were consistent in their depositions qua cruel attitude of husband and his family member in connection with demand of dowry.

Main ingredients of dowry death are harassment and cruelty for the demand of dowry.

Main Question:

Whether the victim had died otherwise than under normal circumstances and it was shown that soon before her death, she was subjected to cruelty and harassment by her husband or his relatives for, or in connection with, any demand of dowry.

Matter in hand relates to dowry death of victim, which is obviously a case of death other than under normal circumstances.

Bench noted that it may be a matter of dispute as to whether she had been forcibly hanged to death or hanged herself to death but there was no doubt that she had ended her life under extreme pressure created by her on laws.

After careful consideration of evidences of prosecution witnesses and defence witnesses, Trial Court has taken a pragmatic view that involvement of parents of husband (i.e. appellant herein) is not made out on the facts and circumstances of the present case, who were living separately from their son but the involvement of husband cannot be ruled out.

Adding to the above analysis, it was stated that from the evidence on record it is proved that appellant was living with his wife, therefore, his claim for acquittal on the ground of acquittal of his relatives (i.e. parents) was not sustainable and being cohabitant with his wife, his complicity in the commission of a crime could easily be inferred.

High Court concluded that there was persistent demand of dowry made by the accused from the victim who was subjected to cruelty and harassment and ultimately she had ended her life in suspicious circumstances wherein injury inflicted on her forehead suggested some violence soon before her death.

Prosecution successfully discharged its duty and it is obligatory on the Court to raise a presumption that the accused caused the dowry death.

Hence, the present appeal was dismissed and the decision of the lower court was upheld. [Deepak v. State of U.P., 2021 SCC OnLine All 190, decided on 3-03-2021]

Advocates before the Court:

Counsel for Appellant:- Ashok Kumar Yadav, Rakesh Dube

Counsel for Respondent :- A.G.A.

Case BriefsSupreme Court

Supreme Court: In a case relating to dowry death, where it was argued by the accused that without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained, the 3-judge bench of NV Ramana, CJI and Surya Kant and Aniruddha Bose, JJ has rejected the contention and has explained,

“Although cruelty is a common thread existing in both the offences, however the ingredients of each offence are distinct and must be proved separately by the prosecution. If a case is made out, there can be a conviction under both the sections.”

Provisions in question

Section 304-B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Section 498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.—For the purposes of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Background

The deceased got married to the accused in November, 2004 and gave birth to child in 2006. The death of the deceased occurred in 2008 after she consumed poison in her matrimonial home.

Both, the trial court and the Punjab and Haryana High Court, convicted the husband under Section 304-B for dowry death.

The counsel appearing on behalf of the accused-appellant argued that “the Courts below have, as a matter of routine, applied the presumption u/s 113B of Evidence Act in the instant case wherein even the basic and essential ingredient of Section 304-B, IPC are not satisfied.”

It was submitted that just because the death of the deceased occurred within seven years of marriage, by no stretch of imagination can it be said that the deceased soon before her death was subjected to cruelty in connection with the demand of dowry.

“The fact that the deceased was happy with the appellant is clearly evident as she lived with him and bore his child, and never mentioned any harassment or cruelty being meted out by the appellant. Furthermore, the gifts received by the appellant-husband were voluntarily given by the complainant and his family.”

It was also argued that without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained.

Analysis

Section 304-B(1), IPC defines ‘dowry death’ of a woman. It provides that ‘dowry death’ is where death of a woman is caused by burning or bodily injuries or occurs otherwise than under normal circumstances, within seven years of marriage, and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry.

Considering the aforementioned said law, the Court noted that since,

  • the marriage between the deceased and the accused-appellant took place on 23.11.2004, and
  • the death of the deceased occurred in 2008 after she consumed poison in her matrimonial home,

therefore, the first two ingredients as to death under otherwise than ‘normal circumstances’ within seven years of marriage stand satisfied.

Coming to the next ingredient necessary for establishing the existence of dowry demand i.e. “soon before her death”, the Court noticed that,

  • the deceased had expressed her unhappiness due to the constant harassment and dowry demands, to her father.
  • The father also stated as to how the families attempted to mediate the dispute themselves and on multiple occasions the father of deceased gave certain gifts to the accused and his family to ameliorate the situation.
  • Further, the mother of the deceased had informed the father 15-20 days prior to the incident about the continuing harassment of the deceased on account of dowry.
  • Finally, on 08.08.2008, the father-in-law of the deceased informed this witness about the consumption of poison by the deceased.

It is also important to note that both the Trial Court and the High Court found the above evidence of the father of the deceased to be reliable and consistent despite a thorough cross-examination. No evidence was produced by the appellant to disregard the aforesaid testimony.

On the defence of the accused is that his family and family of the deceased shared a cordial relationship, and in fact, the appellant had helped the mother of deceased in getting treatment of cancer, the Trial Court, after a thorough examination of the evidences- both oral and documentary, concluded that the accused-appellant, who was working as a technician in a hospital, has forged the hospital records to prove the existence of cordial relationship between the families of the deceased and the accused.

It was hence concluded that necessary ingredients under Section 304-B, IPC stood satisfied.

Explaining the difference between offences under Section 498-A and Section 304-B, IPC, the Court note of the judgment in Kamesh Panjiyar v. State of Bihar, (2005) 2 SCC 388, wherein it was held,

“… Sections 304- B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty”. But having regard to the common background to these offences it has to be taken that the meaning of “cruelty” or “harassment” is the same as prescribed in the Explanation to Section 498-A under which “cruelty” by itself amounts to an offence. Under Section 304-B it is “dowry death” that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. If the case is established, there can be a conviction under both the sections.”

[Gurmeet Singh v. State of Punjab, 2021 SCC OnLine SC 403, decided on 28.05.2021]

Judgement by: CJI NV Ramana

Know Thy Judge| Justice N.V. Ramana

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that false allegation of impotency amounts to mental cruelty, hence, is a valid ground for dissolution of marriage.

The appellant and the respondent were husband and wife, both doctors by profession. Both of them had initiated legal proceedings against each other – the husband, for divorce and the wife, for restitution of conjugal rights. After trial, the Court below, by the impugned common order, dismissed the original petition filed by the appellant and allowed the original petition by the respondent granting her a decree for restitution of conjugal rights.

The appellant had sought for decree of nullity on the ground that his consent to the marriage was obtained by fraud perpetrated by the respondent in suppressing material facts regarding her mental condition. He had also prayed that the marriage be dissolved on the grounds of incurable unsound mind and cruelty on the part of the respondent.

Whether suppression of any information amount to fraud?

Though it was alleged by the appellant, and practically admitted by the respondent, that two psychiatrists had treated the respondent, no steps were taken by the appellant to examine them or to produce the treatment records. The essential ingredient to be proved for securing an order of dissolution of marriage under Section 10 (1) (iii) of the Act, 1869 is that the respondent had been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; but there was no convincing evidence on record to prove that the respondent had been suffering from any mental disease of incurable nature. Therefore, opining that the proviso to Section 19 of the Act gets attracted only when the consent was obtained through force or by playing fraud, the Bench explained,

“The word ‘suppression’ does not occur in Section 19 of the Act. The Parliament has employed the words ‘force’ and ‘fraud’. Before a party gives consent for the marriage with the other, there is bound to be exchange of information. This Section cannot be treated as a provision placing burden upon a spouse to the marriage, to reveal the entire information about him or her to the other.”

Hence, the Bench reached to the findings that the allegation was about suppression and failure to inform a particular fact cannot be treated as fraud, unless the person failing to mention it was under legal obligation to state it. Thus, the non disclosure by the wife before marriage that she was suffering from delusion disorder was not a suppression of material fact. Hence, it could not amount to fraud in obtaining his consent for the marriage.

 Cruelty

Considering the case of the appellant, the Bench opined that there was nothing to disbelieve the evidence given by the appellant that throughout the period they lived together, the respondent hs perpetrated various acts, ranging from several mental agony by behaving in an immature, irrational and bizarre manner, being drowsy, lethargic and unhygienic always, showing abnormal postures with her hands, talking uninhibitedly, often screaming that some gang was going to attack her, staring at people, having a phobia for darkness, having bad mouth odour, abdicating all shared household duties etc., making his life a living hell. The Bench stated that to constitute cruelty, the conduct complained of need not necessarily be so grave and severe so as to make cohabitation virtually unendurable or of such character as to cause danger to life, limb or health. It must be something more serious than “ordinary wear and tear of the married life”. It is sufficient if the conduct and behaviour of one spouse towards the other is of such a nature that it causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the marital tie. The Bench further stated,

“Malevolent intention is not essential to cruelty. There may be instances of cruelty by unintentional but inexcusable conduct of the party. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs; the act complained of could otherwise be regarded as cruelty.”

It had been held by the Supreme Court in Samar Ghosh (supra) that intention is not a necessary element in cruelty and that the relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment.

False Allegation of Impotency

Yet another facet of mental cruelty on the part of the respondent canvassed by the appellant was the false accusation made by the respondent against the appellant about his sexual capacity, that the appellant was suffering from erectile dysfunction and was incapable of performing sexual activities. In K. Srinivas Rao v. D. A. Deepa, (2013) 5 SCC 226, it was held that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings amount to causing mental cruelty to the other spouse.

The respondent had imputed that the appellant was suffering from erectile dysfunction, and thus, he was incapable of performing sexual activities, but at the same breath, she had admitted that she had a satisfactory sexual relationship with the appellant after July, 2010. Therefore, opining that the respondent had miserably failed to substantiate the imputation made by her, the Bench said remarked,

“Casting aspersions of impotency or erectile dysfunction by one spouse against other in the counter statement in a matrimonial proceeding will undoubtedly constitute cruelty.”

Hence, it was found that the respondent making unnecessary accusations against the appellant amounted to mental Cruelty. Accordingly, the Bench held that the appellant had made out a case for granting a decree for dissolution of marriage on the ground of cruelty under Section 10(1)(x) of the Act. The prayer for restitution of conjugal rights by the respondent was rejected, the impugned orders were partly set aside and the marriage between the appellant and the respondent was dissolved.[xx v. xx, 2021 SCC OnLine Ker 2327 , decided on 31-05-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Appellant: Adv. P.Gopakumaran Nair, Adv. B.Bindu and Adv. N.K.Subramanian

For the Respondent: Adv. K.N.Abhilash and Adv. Sunil Nair Palakkat

Case BriefsHigh Courts

Madras High Court: The Division Bench of T. Raja and G. Chandrasekharan, JJ., while upholding the decision of Court below stated that for 12 long years the wife did not appear for any proceedings to disprove the allegations of husband and crucial allegations such as assaulting husband on his vital part of the body are included which were never denied by the wife, then how can the parties be made to live together.

Present appeal was directed against the decision of the Family Court dissolving the marriage between the parties.

Counsel for the appellant/wife argued that the trial court without taking into account the contents of various exhibits and contents of cross-examination of the respondent/husband gave a finding of guilt of cruelty meted out to respondent/husband that could not be sustained as the same was a result of erroneous appreciation of entire materials available before the Court below.

It was also submitted that the husband had fabricated certain documents to evade the payment of maintenance. Due to which the wife had to file a number of proceedings for which the appellant could not be demoralized giving a stamp of inflicting cruelty upon her husband.

Issues that arose in the present matter were as follows:

  • Whether the failure on the part of the appellant/wife to participate in the divorce proceedings before the Court below would amount to accepting the allegations made by the respondent/husband as true?
  • When the respondent/husband has filed the petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, on the refusal of the appellant/wife either to appear in the witness box to state her own case on oath or not offering herself to be cross examined by the other side, whether the Court below is legally justified in drawing an adverse presumption that the case set up by the appellant/wife is not correct, under Section 114-Illus.(g) of the Evidence Act?

High Court’s Analysis and Finding

Bench stated that since the wife had raised counter-allegations, it was her duty and obligation to appear before the Court below and substantiate the same by disproving the allegations made by the respondent/husband by seriously participating in the enquiry.

It was rightly submitted by the counsel for the husband that when the divorce petition was pending from 2007 till 2019, for almost a period of 12 long years appellant/wife had chosen to filed 13 interlocutory applications but it is not known why she did not choose to appear before the Court below to take part in the enquiry.

Secondly, when the wife filed a case against the respondent under Sections 498(A), 406, 323, 504 & 506 of IPC, for which a trial of 9 long years was held, after which the husband and his parents were acquitted, it is unknown why the appellant devoted time to project a false case but did not appear for the enquiry before the Court below to disprove the allegations made by the husband.

Thirdly, she had also filed a case of domestic violence and for maintenance.

High Court stated that when she had boycotted the proceedings before the Court below, where she had the advantage of examining and cross-examining the respondent, she could not have come to this Court.

Bench referred to Order VIII Rule 5(1) of the Code of Civil Procedure, as per which every allegation of fact in the plaint, if not denied specifically or by necessary implication, the same shall be taken to be admitted as against the person who failed to deny the same.

Conjoint reading of Order XVI, Rule 20, Order XV, Rule 4, Order XVI, Rule 20 and Order XXII, Rule 4 of CPC shows that where any party to a suit pending in Court refuses to give evidence or to produce any document then and there in his/her possession or avoid the Court willfully, the Court can pronounce judgment or make such order against that party on the ground that he or she failed to prove the case.

High Court referred to the Supreme Court decision in Mohinder Kaur v. Sant Paul Singh, (2019) 9 SCC 358, wherein it was held that a party to the suit who does not appear in the witness box to state his own case on oath and does not offer himself to be cross examined by the other side, would suffer a presumption, because the case set up by hi would not be genuine, natural or honest and real one.

12 Long Years and No Appearance

Further, in the present matter, Court’s opinion was that when the appellant/wife deliberately and willfully boycotted the proceedings before the Court below for 12 long years due to not having any evidence, she cannot approach this Court with this appeal since the same will not be maintainable.

A very crucial allegation made by the husband was that the wife had assaulted him on his vital part of the body and the same was not even denied by the wife in the counter affidavit.

In view of the above-said allegation and no denying of the same by the wife, it is clear that the wife not only caused mental cruelty but also physical cruelty upon the husband.

“…when the parties are all fighting for more than 14 long years, they cannot be made to live together.”

Unclean Hands

Family Court of Mumbai found that the appellant came to the Court with unclean hands since in the proceeding regarding maintenance she did not show that she was working and having a source of income.

The above order became final, this Court found no justification in this appeal.

High Court found no infirmity or error in the decision of the Family Court and hence upheld the same. [Narayanee v. S. Karthik,  2021 SCC OnLine Mad 2080, decided on 24-03-2021]

Advocates before the Court:

For Appellant: Dr K Santhakumari

For Respondent: J. Saravanavel

Case BriefsSupreme Court

Supreme Court: In a case relating to dowry death, the bench of NV Ramana*, CJ and Aniruddha Bose, J has said that judges need to be extra careful while conducting criminal trials relating to Section 304-B, IPC. The Court went on to summarise the law under Section 304­B, IPC read with Section 113­B, Evidence Act and the guidelines to be followed by the Courts while conducting trials in such cases.

The Court noticed that, often, Trial Courts record the statement of an accused under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense.

“It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness.”

Hence, the Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense, since the inception of the trial, with due caution, keeping in consideration the peculiarities of Section 304¬B, IPC read with Section 113-B, Evidence Act.

Dowry deaths – Facts and Figures

A study titled “Global study on Homicide: Gender-related killing of women and girls”, published by the United Nations Office on Drugs and Crime, highlighted that in 2018 female dowry deaths account for 40 to 50 percent of all female homicides recorded annually in India. The dismal truth is that from the period 1999 to 2016, these figures have remained constant.

The latest data furnished by the National Crime Records Bureau indicates that in 2019 itself, 7115 cases were registered under Section 304-B, IPC alone.

Law on dowry death – The trajectory

Section 304¬B, IPC is one among many legislative initiatives undertaken by Parliament to remedy a long-standing social evil of dowry death. The pestiferous nature of dowry harassment, wherein married women   are   being   subjected   to   cruelty   because   of   covetous demands by husband and his relatives has not gone unnoticed. The Parliament enacted the Dowry Prohibition Act, 1961 as a first step to eradicate this social evil. Further, as the measures were   found   to   be   insufficient,   the   Criminal   Law   (Second Amendment) Act, 1983 (Act 46 of 1983) was passed wherein Chapter XX-A was introduced in the IPC, containing Section 498¬A.

The need for a stringent law to curb dowry deaths was suo motu taken up by the Law Commission in its 91st Law Commission Report. The Law Commission recognized that the IPC, as it existed at that relevant time, was insufficient to tackle the issue of dowry deaths due to the nature and modus of the crime.

The Parliament, then, introduced amendments to the Dowry Prohibition Act, as well as the IPC by enacting Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986). By way of this amendment, Section 304-B, IPC was specifically introduced in the IPC, as a stringent provision to curb the menace of dowry death in India.

Margaret Alva, who presented the Amendment Bill before Rajya Sabha observed:

“You have never really heard of a girl being burnt while cooking in her mother’s  house or her husband’s  house. It is always in the mother-in-law’s house that she catches fire and is burnt in the kitchen. Therefore, getting evidence immediately becomes a great bit problem. Therefore, we have brought in a couple of amendments which give certain presumptions where the burden of proof shifts to the husband and to his people to show that it was not a dowry death or that it was not deliberately done.”

Dowry Death and Criminal Trial – Law Summarised

  1. Section 304¬B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.
  2. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113¬B, Evidence Act operates against the accused.
  3. The phrase “soon before” as appearing in Section 304¬B, IPC cannot be construed to mean ‘immediately before’. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.
  4. Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.
  5. Due to the precarious nature of Section 304-B, IPC read with 113¬B, Evidence Act, Judges, prosecution and defence should be careful during conduction of trial.
  6. It is a matter of grave concern that, often, Trial Courts record the statement under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution.
  7. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense since the inception of the Trial with due caution, keeping   in consideration the peculiarities of Section 304-B, IPC read with Section 113¬B, Evidence Act.
  8. Section 232, CrPC provides that, “If, after taking the evidence for the prosecution, examining   the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal”. Such discretion must be utilized by the Trial Courts as an obligation of best efforts.
  9. Once the Trial Court decides that the accused is not eligible to be acquitted as per the provisions of Section 232, CrPC, it must move on and fix hearings specifically for ‘defence evidence’, calling upon the accused to present his defense as per the procedure provided under Section 233, CrPC, which is also an invaluable right provided to the accused.
  10. In the same breath, Trial Courts need to balance other important considerations such as the right to a speedy trial.
  11. The presiding Judge should follow the guidelines laid down by the Supreme Court while sentencing and imposing appropriate punishment.
  12. Undoubtedly, the menace of dowry death is increasing day by day, however, sometimes family members of the husband are roped in, even though they have no active role in commission of the offence and are residing at distant places. In these cases, the Court need to be cautious in its approach.

[Satbir Singh v. State of Haryana, 2021 SCC OnLine SC 404, decided on 28.05.2021]

Judgment by: Chief Justice of India NV Ramana 

Know Thy Judge| Justice N.V. Ramana

Case BriefsSupreme Court

Supreme Court: In a case where a woman died of burn injuries one year into her marriage, the bench of NV Ramana*, CJ and Aniruddha Bose, J has held that Courts should use their discretion to determine if the period between the cruelty or harassment and the death of the victim   would come within the term “soon before” as the factum of cruelty or harassment differs from case to case.

“When the legislature used the words, “soon before” they did not mean “immediately before”. Rather, they left its determination in the hands of the courts.”

Background

A woman got married to a man in July, 1994. As fate would have it, she died exactly after year after receiving burn injuries, allegedly after she set herself ablaze due to being subjected to cruelty and dowry demand at the hands of her husband and in-laws. The appellants were convicted by the Trial Court in December, 1997 for the offences under Sections 304¬B and 306, IPC and were sentenced to undergo rigorous imprisonment for seven years for the offence punishable under Section 304-B, IPC and to undergo rigorous imprisonment for five years for the offence punishable under Section 306, IPC.

In November, 2008, the Punjab and Haryana High Court also  upheld the order of the Trial Court and dismissed the appeal filed by the appellants.

Analysis

Was the offence under Section 304-B IPC made out?

“Soon before” – Interpretation

When the legislature used the words, “soon before” they did not mean “immediately before”. Rather, they left its determination in the hands of the courts. The factum of cruelty or harassment differs from case to case. Even the spectrum of cruelty is quite varied, as it can range from physical, verbal or even emotional. This list is certainly not exhaustive. Therefore, Courts should use their discretion to determine if the period between the cruelty or harassment and the death of the victim   would come within the term “soon before”.

“What is pivotal to the above determination, is the establishment of a “proximate and live link” between the cruelty and the consequential death of the victim.”

When the prosecution shows that ‘soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry’, a presumption of causation arises against the accused under Section 113-B of the Evidence Act. Thereafter, the accused has to rebut this statutory presumption.

Further, Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal   or suicidal or accidental, as was done earlier. The reason for such non categorization is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental. However, the Section 304-B, IPC endeavors to also address those situations wherein murders or suicide are masqueraded as accidents.

“Therefore, if all the other ingredients of Section 304¬B IPC are fulfilled, any death whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances shall, as per the legislative mandate, be called a “dowry death” and the woman’s husband or his relative “shall be deemed to have caused her death” unless proved otherwise.”

Chain of circumstances  – Where did it lead?

  • The deceased and accused were married on 01.07.1994, and the death of the lady occurred on 31.07.1995.
  • According to the evidence of the doctor, the entire body of the deceased was doused with kerosene oil. Therefore, the possibility of an accident was ruled out.
  • The Deceased had disclosed to her brother, within a month after her marriage that the accused, husband and mother-in-law, used to physically harass her on the account of bringing insufficient dowry. Furthermore, the accused persons had made a specific demand of a scooter. Pursuant to this disclosure, she was brought back to her paternal house.
  • Only a month prior to her death, the deceased had returned to her matrimonial house. However, the accused still used to harass the deceased for dowry. The aforesaid fact was revealed by the deceased to her father, when she had come to visit him.
  • Just a week before the death, on the occasion of Teej festival, another brother of the deceased had visited her while she was in her matrimonial home. The deceased had reiterated her plight to her
  • On 31.07.1995, the father of the deceased was informed by some villagers that his daughter has been admitted in the hospital. Upon reaching, the father discovered that the deceased succumbed to burn injuries.

“The aforesaid chain of circumstances proves that there existed a live and proximate link between the instances of demand of dowry and the death of the deceased.”

The court noticed that since the ingredients of Section 304¬B, IPC stoodsatisfied, the presumption under 113¬B, Evidence Act operated against the appellants, who are deemed to have caused the offence specified under Section 304-B of IPC. The burden therefore shifted on the accused to rebut the aforesaid presumption, who in turn, failed to make out a case for acquittal.

Was the offence under Section 306 IPC made out?

A bare reading of the provision indicates that for the offence under Section 306, IPC the prosecution needs to first establish that a suicide has been committed. Secondly, the prosecution must also prove that the person who is said to have abetted the commission of suicide, has played an active role in the same.

With respect to this latter requirement, Section 113¬A, Evidence Act creates a presumption against the husband and/or his relative with respect to the abetment of suicide of a married woman, under certain conditions. Not going into the other conditions, a perusal of the provision indicates that such presumption shall be attracted only if the factum of suicide has been established by the prosecution first.

However, in the present case, the conclusion reached by the Courts below was based on assumptions, as there is no evidence on record to support the same.

The reasoning of the Trial Court in this regard was:

“Further, there is no direct evidence having been adduced by the prosecution the (sic) any of the accused caused death by sprinkling kerosene on the body of the deceased, the only possibility is that Meena Kumari put an end to her life by sprinkling kerosene on her body.”

Hence, since there was insufficient evidence to prove the factum of suicide beyond reasonable doubt, the presumption under Section 113-A, Evidence Act, is not of much help for the prosecution. The essential ingredient of deceased committing suicide has not been proved by the prosecution by adducing sufficient evidence.

“In the present case, the prosecution has failed to establish that the death occurred due to suicide. Therefore, we are of the opinion that the finding of the Courts below convicting the appellants under Section 306, IPC merits interference by this Court.”

Conclusion

Conviction under Section 304-B IPC was upheld and conviction and sentence under Section 306, IPC was set aside.

[Satbir Singh v. State of Haryana, 2021 SCC OnLine SC 404, decided on 28.05.2021]

Judgment by: Chief Justice of India NV Ramana

Know Thy Judge| Justice N.V. Ramana

Case BriefsHigh Courts

Madras High Court: T. Raja, J., in the present matter while considering the long separation of parties for almost a quarter-century, granted a decree of divorce by dissolving the marriage between the parties.

Factual Matrix

In the present matter, appellant was married to the respondent and a male child was born out of wedlock. During the pregnancy of respondent, it was alleged that even after doctor’s advise, the respondent/wife had not taken proper care. Ultimately, the respondent delivered a handicapped male child.

Further, it was also alleged that from the date of marriage, the respondent was adamantly raising disputes and quarrels even for cohabitation due to which the appellant was subjected to mental agony.

Although the appellant tolerated all the unlawful activities of the respondent on the belief that she would change her attitude in due course, no improvement thereon had occurred.

No Response for 7 long years

Respondent later left the matrimonial house and never came back even after a lot of requests and visits by the appellant and his parents. When there was no response from the respondent for 7 long years and thereby deserted the appellant, petition was filed before the Family Court seeking divorce on the ground of cruelty and desertion under Section 13(1)(i—a) and (i—b) of the Hindu Marriage Act to dissolve the marriage between the appellant and respondent.

Respondent had sought restitution of conjugal rights under Section 9 of the Hindu Marriage Act. Trial Court concluded that husband, wanted to get rid of the special child and mother and no cruelty was caused by the respondent/wife and no desertion was accused of the simple reason that only the appellant has taken both the respondent with the son by car to her parental house and left them there with the promise that he would come and take them back. But he did not turn up to take them back to the matrimonial home.

When the lower appellate court came to the conclusion that no case of cruelty or desertion was made out, aggrieved thereby, the present appeal was filed by the appellant raising the following substantial questions of law:

  • Whether the appellant/husband is entitled to divorce on the ground of cruelty and desertion and whether the respondent/wife is entitled to the relief of restitution of conjugal rights?
  • Whether the Courts below have properly applied the law of evidence as the question of proof of cruelty and desertion can always be decided only on oath?
  • Whether the finding of the lower appellate Court in putting the blame on the appellant in not taking care of the spastic child is not contrary to the evidence available on record?

Analysis, Law and Decision

Bench expressed that a human problem can be properly resolved by adopting a human approach and applying the same ratio in the cases on hand, when the parties are living separately for 25 long years, not to grant a decree of divorce would be disastrous for the parties.

Adding to the above, Court stated that preservation of a ruined marriage is totally unworkable, as this would be a source of misery for the parties. During the pendency of the matters, the parties declined to accept the proposal for re-union.

Therefore, when the parties were living separately for 25 long years and the mediation efforts were undertaken also proved to be of no avail, this Court following the decision of the Supreme Court in Naveen Kohli v. Neelu Kohli, 2006 (2) CTC 510, Bench decided to dissolve the marriage between the parties.

Moving forward, Court being aware and conscious of the fact that the interest of the respondent needs to be safeguarded, elaborated that Section 25 of the Hindu Marriage Act states that at the time of the passing of any decree or at any tie subsequent, on an application made to it, may order one party to pay the monthly sum as maintenance to other party.

Since the appellant had been paying a sum of Rs 10,000 per month to the wife as maintenance without any default and taking care of his son with the assistance of a helper by paying from his pension bearing in mind that the appellant is a retired Bank Officer, this Court directs the appellant to continue to pay the said sum of Rs.10,000/- per month as maintenance to the respondent without fail.

Lastly, the wife was granted visitation rights and the matter was disposed of in view of the above terms. [V. Ramasamy v. L. Priya, 2021 SCC OnLine Mad 1674, decided on 26-04-2021]

Advocates before the Court:

For Appellant: Mrs K.Sumathi

For Respondent: Mr E.Raj Thilak

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Arindam Sinha and Suvra Ghosh, JJ. confirmed a decree of divorce passed in favour of the husband by the trial court on grounds of cruelty by the wife. The instant appeal, dismissed by the High Court, was preferred by the wife against the judgment of the trial court.

Backdrop and Factual Matrix

The husband filed for divorce against the wife on grounds of cruelty, alleging that she made false allegations against him of having illicit relations with other women as well as their own daughter. The trial court found that no cogent proof of illicit relationship was forthcoming from the wife which could prove the allegations made by her against the husband. Therefore, the trial court held it amounted to cruelty against the husband under Section 13(i)(i-a) of the Hindu Marriage Act, 1955; and granted a decree of divorce in favour of the husband.

Contentions ─ Wife

The wife argued that the allegation of cruelty was erroneously held to be proved against her. She submitted that the persons named were not produced as witness. Extreme financial hardship had prevented her from fully participating at the trial, but that by itself did not justify finding in the trial court’s judgment and decree that the allegation of cruelty was proved against her.

Contentions ─ Husband

The husband submitted that the suit was filed in year 2004. Dilatory tactics were adopted by the wife. He gave evidence and was cross-examined, which could not shake his evidence. Such unshaken testimony was corroborated by their daughter. The daughter was married and living happily in her matrimonial home. Grave and serious allegations against him were made regarding carrying on with several women, including, their daughter. This part of the evidence was also corroborated by the daughter. The daughter took to the witness box and corroborated unshaken testimony of the husband, and therefore the wife did not cross-examine her, nor turn up to give evidence and be cross-examined. In such circumstances, further corroboration was not required and the Court below correctly appreciated the evidence to find cruelty inflicted on him.

It was further submitted that he had allowed the wife to stay in his flat and is regularly paying her enhanced permanent alimony. Eighteen years of separation had happened and there should not now be reversal of the trial court’s judgment and decree. He relied on the Supreme Court decision in Adhyaatmam Bhaamini v. Jagdish Ambala Shah, (1997) 9 SCC 471.

Law, Analysis and Decision

The High Court analysed the facts and allegations in two parts. Firstly, the allegations were regarding the wife having taken up a 9 am to 9 pm job, after which she became very ill. The husband, in his evidence, stated that he put pressure on the wife to leave the job. On the other hand, the wife said that the husband forced her to work on a sales office to earn money to meet family expenses. On examining the record, it appeared to the High Court that the wife took up the job, after which she fell ill, and the husband caused her to leave the job. Therefore, the wife’s account on this point was disbelieved by the Court.

Secondly, the allegation against the wife was that in July-August 2003, she visited the husband’s office, informing the Committee of Housing about him maintaining illicit relationship with their daughter. As a consequence, members of the Committee came to their residence. The wife admitted that on one occasion, she went to her husband’s office, but only to meet him. She did not meet allegations regarding her approaching the Committee members.

The allegations of the husband against the wife, were corroborated by their daughter in her evidence-in-chief. Although some statements in her affidavit were hearsay. The Court opined that:

“There are some statements in her affidavit-in-chief, which are hearsay. The parts of her affidavit that can be attributed to be her evidence is in corroboration of what her father said in the petition, his affidavit-in-chief and from the Box, in cross-examination.”    

 On a complete analysis, the High Court held that the wife made reckless allegations against the husband, amounting to cruelty. The Court was convinced that there is no scope of interference in the trial court’s judgment and decree. The appeal was fount without any merit and was therefore dismissed. [Radha Majumder v. Arun Kumar Majumder, 2021 SCC OnLine Cal 1398, decided on 23-03-2021]

Advocates who appeared in this case:

Mr. Pradip Kumar Roy

Ms. Shraboni Sarkar … for appellant wife

Mr. Debabrata Acharyya

Mr. Sital Samanta … for respondent-husband

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., expressed that:

“Courts must not close its eyes to the fact that it is the victim who knocks the doors of the Court and seeks justice must not left high and dry with the feeling that the accused have escaped due to the perfunctory/faulty/defective investigation.”

Instant petition as directed against the decision of Additional Sessions Judge that discharged the respondent 4 and 5 for the offences under Sections 306/34 of the Penal Code, 1860.

Petitioners are the parents of the deceased who was married to respondent 3. The deceased was found hanging by the neck from the ceiling fan in her matrimonial house within two and a half years of her marriage.

Statements before the SDM

Petitioner 1 i.e. the mother of the deceased stated that the deceased was not happy in her marriage and her mother-in-law and sister-in-law were responsible for the suicide. Though the deceased’s father said that he did not have any grievances or any complaints against any persons and that no one was responsible for the death of the deceased.

No FIR was registered against respondent 4 and 5.

After about 10 months of the death of the deceased, an FIR was registered under Sections 306/34 IPC.

Additional Sessions Judge found that the statements of parents before the SDM did not bear any stamp and that they were also not signed by the petitioners. Prima Facie no material was found to proceed against the accused persons for charges under Sections 306/34 IPC, hence the accused were discharged.

Though the Additional Sessions Judge found investigational lapses that required due probe and further directed for a copy of the order to be sent to the Screening Committee for appropriate action.

The above-said order has been challenged in the present petition.

Analysis, Law and Decision

“…charge-sheet in the instant case bleeds of wounds inflicted by the Police.”

No explanation on why FIR was registered after 10 months of the death

Bench noted that the investigation was oriented in order to give a closure report. And filing of FIR after ten months of the incident was contrary to law.

Petitioner 1 stated that the respondent 4 and 5 demanded dowry, hence there was no reason, whatsoever, not to lodge an FIR for an offence under Section 304B IPC.

It was also stated that IO told the petitioners to give statements as per his will and suggestions and threatened her. Petitioner 1’s letter to the Commissioner of police revealed that IO was forcing the parents of the deceased to enter into a compromise with the respondents.

To construe an offence under Section 304 B i.e. dowry death, the death of the women could have been caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with, any demand for dowry.

 Ingredients for constituting Section 304 B were made out but surprisingly no FIR was registered.

In the instant matter, the death occurred within 7 years of marriage and allegations of dowry death were also present against the respondent 4 and 5. Deceased died by committing suicide.

Bench expressed that unfortunately neither the Magistrate nor the ASJ orders a further investigation after commenting on glaring loopholes with the investigation.

Sufficient material on record was placed stating that the deceased was subjected to cruelty/harassment with the demand of dowry by respondent 4 and 5 and hence presumption under Section 113(b) of the Indian Evidence Act will apply.

Defective Investigation

 It is well settled that where there has been negligence on the part of the investigating agencies or omissions either negligently or with a design to favour the accused, then it becomes the obligation of the Court to ensure that proper investigation is carried out.

Supreme Court’s decision in Vinubhai Haribhai Malaviya v. State of Gujarat, (2019) 17 SCC 1, Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762 were relied upon by the Court.

In the present matter, investigation was conducted in an extremely shoddy manner. 

High Court elaborating more on the present matter stated that the ASJ while passing the impugned judgment on noticing the glaring inconsistencies should have ordered for further investigation.

Hence, impugned Judgment was set aside. High Court directed police to conduct an investigation on the basis of petitioners’ statements and the same to be conducted by a different investigation officer. [Saroj Bhola v. State of NCT of Delhi, 2021 SCC OnLine Del 1497, decided on 05-04-2021]

Advocates before the Court:

For the Petitioners: Chanan Parwani, Advocate

For the Respondents: Kusum Dhalla, APP for the State and respondent 2

Charanjeet Singh, Advocate for respondents 3 to 6

Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Suman Shyam and Mir Alfaz Ali, JJ., heard the instant petition against the judgment and order dated 24-03-2011 rendered by Additional Sessions Judge, whereby, the appellant was convicted under Section 302 Penal Code, 1860 and sentenced to rigorous imprisonment for life.

The case of the prosecution was that on 07-11-2014, a fight took place between the deceased and the accused, both of whom were employees of one Shambu Shil. The appellant had inflicted injuries on the head of the deceased with an iron rod, which caused his death. An FIR was lodged by the employer of the deceased as well as the accused/appellant under Section 302 Penal Code, 1860. According to the doctor, the cause of death was shock and hemorrhage as a result of the injuries sustained. All the injuries were accessed to be ante mortem and homicidal in nature.

Moreover, the appellant had recorded a confession before the Judicial Magistrate, on the basis of which and testimony of the Trial Court had convicted the appellant under Section 302 IPC.

Counsel of the accused, B Bhagawati, Amicus Curiae argued that in the confessional statement, the appellant had stated that both were drunk at the time of the occurrence. Further, the confessional statement of the appellant, which was duly recorded by the Judicial Magistrate, and was corroborated by the eye witness’s accounts made it abundantly clear, that there was quarrel and fight between the appellant and the deceased and in course of the quarrel, the appellant hit the deceased with the iron rod at the heat of passion. Thus, the entirety of the evidence clearly demonstrates that there was no premeditation on the part of the appellant and the assault was made suddenly at the heat of passion in course of quarrel.

The Bench observed that, when the assault was made without premeditation, at the heat of passion in course of sudden quarrel and the appellant also did not take any undue advantage nor acted in cruelty, all the above factors had made the present case come squarely within the sweep of exception (4) to Section 300 IPC. However, said the Bench, having regard to the three injuries on the head and the weapon used, it could not be said that the appellant did not has intention to cause death or to cause such bodily injury as is likely to cause death.

Thus, taking note of the evidence in its entirety, the Bench opined that the conviction of the appellant under Section 302 IPC was not sustainable. Therefore, the impugned order was set aside and the appellant was convicted under Section 304 Part-I instead of 302 IPC. Further observing that the appellant had been in custody for more than 14 years, his sentence was reduced to the period already undergone. Accordingly, the appellant was directed to be released.[Debaru Majhi v. State of Assam,  2021 SCC OnLine Gau 422, decided on 05-03-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Surawanshi, JJ., upheld the decision of the family court.

Present appeal was filed under Section 19 of the Family Courts Acts, 1984 by the appellant-husband, in view of his petition being dismissed by the Family Court for judicial separation and in the alternative for a decree of divorce on cruelty and desertion ground.

According to the husband, he was Mangalik as per his horoscope and hence was in search of a girl who was having a Mangalik horoscope. As per the girl’s biodata, she was depicted as Mangalik.

After her marriage with the appellant she started living in the joint family of her husband where she usually used to stay aloof. Further, it has been stated that she avoided giving her educational certificates on the pretext that they were lost.

On receiving her educational certificates from her father, the husband was shocked to know her actual date of birth therefore she was Non-Mangalik. She had even failed BA-II.

The wife left the matrimonial house at midnight without informing anyone and during the search, she was found with her brother and brother in law who were taking her to her maternal home.

The husband along with his family members went to bring the wife back, but her parents refused to send her and also threatened to involve them in a false case. According to the husband, the wife lodged false complaint on that day.

Husband alleged that the wife caused mental and physical harassment to the husband. He, therefore, contended that the wife deserted him on account of false complaint lodged by the wife and the husband from time to time.

Due to the continuous torture by the wife, the life of the husband had become miserable. He was not in a position to concentrate on his work due to continuous harassment by the wife. The husband, therefore, lost all the hopes that the smooth relations between him and wife were possible. Hence, he filed the petition seeking divorce on the ground of cruelty and desertion.

Wife while declining all the above allegations claimed that she was ready to cohabit with the husband and hence prayed for the dismissal of the petition filed by the husband.

Family Court dismissed the petition of the husband, hence the husband preferred the present appeal.

Analysis, Law and Decision

Points for determination:

  1. Whether the appellant is entitled for decree of divorce?
  2. Whether the learned Family Court dismissing the petition of husband is legally correct?

Bench noted in the cross-examination of the appellant that he admitted that prior to his marriage there were negotiations as well as internal talks and his sister had inquired about the education of the respondent as well as her family background. The appellant also admitted that he married the respondent as he liked her. He also stated that he did not take decision in his life on the basis of horoscope. The marriage was performed after verifying the background, houses and all the details of both the families. His father in his evidence admitted that the horoscopes of the appellant and the respondent were not tallied. Further, he deposed that he did not have any document to show that the appellant was a Mangalik. He even admitted that at the time of marriage the age of the appellant was beyond marriageable age.

Hence, all these admissions belie the case of the appellant that there was cheating on the part of the respondent and her parents at the time of settlement of marriage.

In view of the above, Bench observed that there was no fraud played by the wife or her family.

Appellant failed to make out a case of fraud and even if it is assumed that there was misrepresentation in respect of the date of birth, it does not affect the matrimonial relations between the appellant and the respondent, as the appellant failed to prove that he was Mangalik and he intended to marry the girl having Mangalik Yog.

Father of appellant, admitted that for initial two years of the marriage, there was no dispute between the appellant and the respondent in respect of age difference as well as the respondent being non-mangalik. According to the respondent, the ill-treatment started only after the appellant got government job.

Therefore, evidence laid by the respondent did not spell out cruelty caused by the respondent to him.

With regard to Desertion, Court noted that as per the evidence led by the respondent she was beaten and her sister and her husband saw the marks of beating on her person. After they left, she was again beaten and threatened with life. Apprehending danger to her life, she had to take shelter in the house of neighbour Shri Gordey. From there, she called her parents and her brother, sister Kiran, her husband and others took her from the house of Shri Gordey to her parent’s house

Further, there was no material that depicted that the appellant tried to bring the respondent back for cohabitation.

 “…since the appellant attributed cheating and fraud to the respondent and her parents, it is not possible to believe that he tried to bring the respondent back for cohabitation.”

Therefore, family court rightly appreciated the evidence on record and appellant failed to prove cruelty and desertion on the part of respondent-wife.

In view of the above discussion. The appeal against the family court’s decision was dismissed. [Kartik Narayan Dhawle v. Vaishali Kartik Dhawle, 2021 SCC OnLine Bom 241, decided on 23-02-2021]

Advocates who appeared before the Court:

B.R. Hindustani, Advocate holding for A.N. Ansari, Advocate for the appellant,

S.N. Thengari, Advocate for the respondent.

Case BriefsSupreme Court

Supreme Court: In a case where an Army Officer’s wife made numerous malicious complaints against him to his superiors and various authorities, the 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ held that such conduct cannot be considered to be “squabbles of ordinary middle class married life” and that it amounted to mental cruelty.

Holding that the husband was entitled to dissolution of his marriage, the Court said,

“In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.”

Background

The appellant, an Army Officer with M.Tech qualification and the respondent, a faculty in the Government P G College, Tehri with Ph.d degree got married on 27.9.2006 and lived together for few months at Vishakhapatnam and at Ludhiana. But from the initial days of married life, differences cropped up and since 15.9.2007, the couple have lived apart.

In the divorce proceeding, the appellant pleaded that he was subjected to numerous malicious complaints by the respondent which have affected his career and loss of reputation, resulting in mental cruelty. On the other hand, the respondent in her case for restitution of conjugal rights contended that the husband without any reasonable cause had deserted her and accordingly she pleaded for direction to the appellant, for resumption of matrimonial life.

Family Court’s finding

The Family Court gave a finding that the respondent had failed to establish her allegation of adultery against the husband. Further, it was held that the respondent had subjected the appellant to mental cruelty with her complaints to the Army and other authorities. Consequently, the Court allowed the appellant’s suit for dissolution of marriage and simultaneously dismissed the respondent’s petition for restitution of conjugal rights.

High Court’s finding

In appeal, while the Uttarakhand High Court found that the wife did write to various authorities commenting on the appellant’s character and conduct, the Division Bench opined that those cannot be construed as cruelty since no court has concluded that those allegations were false or fabricated. According to the Court, the conduct of the parties against each other would at best be squabbles of ordinary middle class married life. Accordingly, the High Court set aside the decree for dissolution of marriage and allowed the respondent’s suit for restitution of conjugal rights, under the impugned judgment.

Husband’s case

It was argued that the respondent had filed a series of complaints against him before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged his reputation and mental peace. He cannot therefore be compelled to resume matrimonial life with the respondent, in the face of such unfounded allegations and cruel treatment. Moreover, the couple have been separated since 15.9.2007 and after all these years, restitution would not be justified or feasible.

Wife’s case

It was argued that the wife wrote letters and filed complaints only to assert her legal right as the married wife of the appellant and those communications should therefore be understood as efforts made by the wife to preserve the marital relationship.

Supreme Court’s analysis and finding

What amounts to Mental Cruelty?

For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse.

“The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party.”

Whether wife’s conduct in the present case amounts to mental cruelty?

The respondent had made several defamatory complaints to the appellant’s superiors in the Army for which, a Court of inquiry was held by the Army authorities against the appellant. Primarily for those, the appellant’s career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. As a result, the appellant’s career and reputation had suffered.

“When the appellant has suffered adverse consequences in his life and career on account of the allegations made by the respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that the allegations were false.”

The Court also found fault with the High Court’s approach in dealing with the issue. The High Court had, without any definite finding on the credibility of the wife’s allegation, held that the wronged spouse would be disentitled to relief.

The Court also noticed that the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant.

“When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.”

Further, the explanation of the wife that she made those complaints in order to protect the matrimonial ties also would not justify the persistent effort made by her to undermine the dignity and reputation of the appellant.

The Court hence held that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life.

“It is a definite case of cruelty inflicted by the respondent against the appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court.”

Hence, the appellant was held entitled to dissolution of his marriage and consequently the respondent’s application for restitution of conjugal rights was dismissed.

[Joydeep Majumdar v. Bharti Jaiswal Majumdar, 2021 SCC OnLine SC 146, decided on 26.02.2021]

*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Appearances before the Court by: 

For Appellant – Senior Advocate Gopal Sankaranarayanan

For respondent – Advocate Ahmad Ibrahim