Cruelty

Case BriefsHigh Courts

Chhattisgarh High Court: In a matter pertaining to mental cruelty, the Division Bench of Goutam Bhaduri and N.K. Chandravanshi, JJ., expressed that, if a spouse by her own conduct, without caring about the future of the daughter, parts with ornaments which were meant for the marriage, it will be within the ambit of mental cruelty done by the wife.

Factual Background

In the present matter, the decision of the Family Court was challenged whereby the application filed by the appellant/husband for grant of decree of divorce on the ground of cruelty and desertion was rejected.

The appellant/husband pleaded that he was married to the respondent/wife. The husband was engaged in the job of railway guard, and it was stated that before filing the divorce petition, the wife deserted the husband without any lawful cause.

Further, it was alleged that the wife had availed different loans to the extent of Rs 10-12 lakhs, without the knowledge of the husband even by placing the ornaments which were meant for the marriage of their daughter as a pledge to different creditors.

Additionally, the allegation which was also levelled against the husband that he was having illicit relations outside marriage, damaged the reputation of the husband in society, amounting to cruelty and therefore the divorce was claimed.

Analysis, Law and Decision

High Court noted that reading the statements of the appellant, son, daughter and creditor together would lead to show that the wife in absence of knowledge of the husband had availed the loan from a third party.

“In a normal household of the Indian society, the narrative made by the son and daughter that the ornaments were purchased for the ensuing marriage of the daughter appears to be more logical.”

Further, the Bench expressed that during the marriage ceremony in the Indian household, the presentation of the ornament is normally done for which the parents start the effort, from an early date.

Bench stated that, in the present matter, the conduct of the wife which had been projected and incidentally the children, who have supported such fact against the mother that wife without the knowledge of the husband had done away with the security of the marriage of the daughter and had obtained amount from the creditor by pledging the ornaments meant for the marriage of the daughter would certainly cause apprehension and fear and create financial pressure on the mind of the father as the hard reality cannot be forgotten which exists in the society to present a girl during the marriage with ornaments.

Illicit Relation

Regarding the extramarital affair, Court stated that no reliable evidence was found as the wife’s statement was itself inconsistent.

Further, the Bench stated that, it was obvious that to suffer an allegation pertaining to once character of having an extramarital affair is quite torturous for a person and whereas inconsistently in the statement and only allegation of extra marital affair is raised by the wife casually against the husband certainly which always has a bad impact on the image of a person qua the society, therefore would amount to mental cruelty.

High Court in view of the above discussion, asserted that parting away from the ornaments by pledging without knowledge of husband, which were meant for the marriage of daughter and further the unsubstantiated allegations levelled by wife, assassinating the character of the spouse/husband would amount to mental cruelty to the husband.

Hence, the marriage deserved to be dissolved by a decree of divorce.

Permanent Alimony

The Court granted an amount of Rs 15,000 per month to the wife as permanent alimony, which in turn would be adjustable to any amount paid under Section 125 CrPC.

In view of the above observations, the appeal was allowed. [S. Raju v. R. Rani, 2022 SCC OnLine Chh 711, decided on 8-4-2022]

Advocates before the Court:

For Appellant:- Mr. Shailendra Bajpai, Advocate

For Respondent: – Mr. Palash Rajani with Mr. Pankaj Bhaskar, Advocate on behalf of Dr. Shailesh Ahuja, Advocate

Case BriefsHigh Courts

Punjab and Haryana High Court: In a matter with regard to mental cruelty, the Division Bench of Ritu Bahri and Ashok Kumar Verma, JJ., observed that, even if the husband and wife were staying together and the husband stopped talking to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices by initiating a number of judicial proceedings could make the life of other spouse miserable.

Appellant-wife came up in the present appeal against the decision of the Family Court by the respondent-husband under Section 13 of the Hindu Marriage Act, 1955 seeking dissolution of marriage by a decree of divorce was allowed and he had been granted a divorce.

As per the husband, when he filed a petition under Section 13 of the HMA, the behaviour of the respondent was very cruel, barbaric, rude and crude towards the respondent from the very beginning.

It was stated that, the wife had tried to take forcible possession of the agricultural land owned and possessed by the respondent and a civil suit against the appellant was pending in the District Courts, Karnal.

Further, it was alleged that the appellant was living in adultery with some person in the year 2012 and she forcibly turned out the respondent along with his four children from the house.

When the marriage of the husband and wife was fixed by the respondent, husband had requested the appellant to join the marriage, but she taunted that she had no concern with the respondent and his children.

In view of the above, a divorce petition was filed.

Analysis, Law and Decision

High Court expressed that, even if husband and wife are staying together and the husband does not speak to the wife, it would cause mental cruelty and a spouse staying away by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating a number of judicial proceedings can make the life of other spouse miserable.

The Bench stated that in the present case, after the acquittal in the FIR and dismissal of the domestic violence complaint, enough mental cruelty had been caused to the husband.

Hence, the appellant’s counsel was unable to point out any illegality or infirmity in the impugned judgment.

In view of the above, the appeal was dismissed. [Harbans v. Joginder Pal, 2022 SCC OnLine P&H 1101, decided on 6-5-2022]

Advocates before the Court:

Mr. Avtar Singh Sandhu, Advocate, for Mr. A.S. Rai, Advocate, for the appellant-wife.

Mr. R.S. Budhwar, Advocate, for the respondent-husband.

Case BriefsDistrict Court

Karkardooma Courts, Delhi: In a matter regarding providing maintenance to wife and children, Ramesh Kumar-1, Principal District & Sessions Judge, expressed that certain, factors such as husband’s liabilities, his standard of living, inflation rates, etc. are to be taken note of when Court decides the quantum of maintenance.

An appeal was filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005 against the impugned decision passed by the Metropolitan Magistrate whereby the maintenance of Rs 40,000 was awarded in favour of the respondent from the month and the year of filing of the petition before the trial court, and further awarded compensation of Rs 1,00,000 in favour of the respondent.

Factual Background

It was stated that the respondent was treated with love and care, at her matrimonial home, however, she was not happy with the marriage. Further, it was stated that, it was the second marriage of the respondent and the appellant had asked several times for the decree of divorce from her previous husband, but, the respondent never showed the same to him.

Additionally, it was stated that when the appellant tried to stop the respondent from frequently visiting her parental home, the respondent used to abuse and manhandle the appellant and would threaten the appellant to implicate him and his family in false criminal cases or to face the dire consequences.

It was added that the husband tolerated all the cruelties at the hands of the wife to save the matrimonial life.

In the year 2015, the respondent filed a case under Section 12 of the Protection of Women from Domestic Violence Act against the appellant and his family. Trial Court passed an order for interim maintenance in favour of the respondent and her minor son.

Appellant submitted that due to the prevailing circumstances, he used to remain under depression and could not perform his job obligations and due to his poor performance, he was terminated by his employer.

Analysis, Law and Decision

Court expressed that, it is a well-settled principle of law that,

“…it is the legal duty of every able bodied person to maintain his wife and children and provide them with the basic amenities of the life, as per his financial status.”

 Adding to the above, it was stated that while deciding the quantum of maintenance, the Court should take into account the earnings of the husband as well as his other liabilities and the due regard to be given to the standard of living of the husband as well as the inflation rates and high costs of living.

Bench stated that even if the appellant’s plea that he was terminated from service by his employer was accepted, the fact remained that the appellant was a qualified person and capable of earning. Hence, the trial Court had rightly assumed the appellant’s salary to be Rs 80,000.

“Appellant being the husband of the respondent, and father of minor child, has social as well as moral duty to provide maintenance to respondent.”

Settled Law

The appellant being the husband of the respondent, cannot escape from his moral duty of providing maintenance to his wife as well as a minor child.

Hence, the trial Court had rightly observed that the aspect of financial deprivation of woman, is included in the category of economic abuse.

“…an aggrieved woman needs economic support, in view of the domestic violence, perpetrated upon her, by a person, who is in domestic relation with her.”

Settled Law

Every able-bodied person is bound to maintain his wife and children and cannot run away from this responsibility.

 In view of the above, Court held that there was no infirmity or illegality in the impugned decision. [Pawan Sharma v. Aarti Sharma, 2022 SCC OnLine Dis Crt (Del) 17, decided on 10-5-2022]

Case BriefsHigh Courts

Bombay High Court: Vibha Kankanwadi, J., held that, if a husband files a divorce petition that cannot be taken as an act of cruelty.

The informant, who was the wife of the applicant contended that the applicant had demanded 10 tolas of gold and high-quality furniture, at the time of the marriage. Further, it was stated that the parents-in-law had opposed the marriage since the day of marriage and started harassing her. They even used to give pinching words regarding non-payment of dowry.

Adding to the above, it was stated that the mother-in-law used to give messages to the applicant stating that informant is ugly looking girl and thereupon applicant started mentally harassing her.

Due to some medical condition, the informant had to leave her service and once she came back to India, the father-in-law started saying that since she was now unable to ring money by taking up service, she should bring amount of Rs 50,00,000 from her parents, otherwise she should give divorce to the applicant. In 2021, she was assaulted and driven out of the house.

Applicant had approached the Additional Sessions Judge; however, the application of the husband had been rejected and it was stated that the divorce petition have been considered. Further, it was stated that if the divorce petition would not been filed there was every possibility of patch up. However, the husband went one step ahead by filing a divorce petition and the said amount to cruelty.

It was stated that the nature of the applicants was aggressive, and they had treated the informant with cruelty. Further, it was added that if the applicants were enlarged on bail, there was strong possibility of tampering the prosecution witnesses.

Analysis and Decision

High Court expressed that,

“Filing of divorce petition by the husband cannot be taken as an act of cruelty or a ground for rejecting the anticipatory bail.”

Further, the Court stated that, certain articles valuable as well as general articles of the informant were stated to be with the applicant. In fact, she could get it under the provisions of Domestic Violence Act, it need not be seized.

In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, it was observed that there should be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified.

It also to be noted that Courts should not get carried away with the desire of a party to see the other behind bars. The said may be sometimes to settle the personal score and, therefore, the Courts should be on guard as to whether really the arrest is necessary. Only prima facie case against the person is also not a criterion to be looked into. 

“…not only the police officer but also the learned Sessions Judge or Additional Sessions Judge dealing with an application under Section 438 of the Code of Criminal Procedure should question ‘why arrest’, ‘is it really require’, ‘what purpose it will serve’, ‘what object it will achieve’.”

The above was stated in view of the Supreme Court decision in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.

In view of the above, the application was allowed. [Anmol Madhukar Divekar v. State of Maharashtra, 2022 SCC OnLine Bom 1056, decided on 6-5-2022]

Advocates before the Court:

Mr. M.L. Muthal, Advocate for the applicant

Mrs. V.N. Patil-Jadhav, APP for the respondent

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., while setting aside the conclusion of the Metropolitan Magistrate and upholding the intervention by Sessions Court expressed that, injuries were found on the person of the deceased who was more than 6 months pregnant during her residence with her husband, hence the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

Further, the Court also remarked that,

“…shifting of the focus only to the injection pricks and the damage to the ribs caused by attempts to resuscitate the deceased, was a complete non-application of mind, bordering on perversity.”

A petition was filed under Section 482 of the Criminal Procedure Code by an accused in FIR under Section 498A of the Penal Code, 1860.

When the petitioner’s wife conceived and was carrying twins, she was allegedly given an injection for iron due to which she developed complications and died.

Respondent 2, father of the petitioner’s wife registered an FIR for an offence under Section 498A IPC against the petitioner, who was arrested and subsequently granted bail. While hearing the arguments, MM concluded stating that no prima facie case had been made out for framing of charge against the petitioner.

On being aggrieved with the above, the State preferred a revision before the ASJ who considered the matter and was of the view that the documents of the accused could not have been considered at the time of arguments on the point of charge as has been held by the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.

Analysis and Decision

High Court noted that the MM usurped the powers of the Sessions Court and concluded that the charge under Section 304B IPC could not be made out “by any stretch of imagination”, relying only on the first statements made to the SDM by the parents of the deceased and the observations in the postmortem report that in all probability the cause of death was natural due to some pathological state related to pregnancy rather than an unnatural external event. Hence, the Sessions Court rightly intervened to set aside the said conclusions.

The Bench observed that Section 304B IPC is attracted in cases where a woman dies under circumstances otherwise than normal, within 7 years of marriage, and was subjected, soon before her death, to cruelty or harassment.

With respect to the present matter, Court stated that the injuries were found on the person of the deceased who was more than 6 months pregnant with twins, during her residence with petitioner, and the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

In Court’s opinion, the conclusion drawn by the MM were wrong and the same had been corrected by the ASJ by a very well-reasoned order.

Hence, no perversity or miscarriage of justice was evident from the impugned order.[Jaikishan Datwani v. State, 2022 SCC OnLine Del 1380, decided on 9-5-2022]

Advocates before the Court:

For the Petitioner:

Mr Hitendra Kumar Nahata, Advocate.

For the Respondent:

Mr G.M. Farooqui, APP for State with SI Inder Veer Singh. Respondent No.2 in person.

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay S. Agrawal, J., reversed the judgment of the trial court and granted divorce in an application filed by the husband, while granting Rs 15 lakhs permanent alimony to the wife.

Applicant-Husband had preferred an appeal under Section 28 of the Hindu Marriage Act, 1955 questioning the legality and propriety of the trial Court’s decision whereby the application seeking a decree for dissolution of marriage on the ground of desertion and cruelty was dismissed.

Questions for determination:

(i) Whether the Non-applicant – wife has deserted her husband since 12.08.2009 without any rhyme and reasons being assigned entitling the Applicant for the decree of dissolution of marriage on the ground of desertion under Section 13 (1) (ib) of the Act, 1955?

(ii) Whether the Non-Applicant – Wife has levelled the false allegations against her husband pertaining to the demand of dowry by lodging a false complaint under Section 498-A of IPC read with Section 4 of Dowry Prohibition Act entitling the Applicant for the decree of dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955?

Analysis and Decision

High Court on noting that the applicant was living with another woman, therefore, there was a reason as to why the non-applicant had started living separately from her husband.

Therefore, the husband failed to establish the fact that his wife had deserted him without any justifiable reasons so as to obtain a decree for dissolution of marriage on the ground of desertion under Section 13(1) (ib) of the Act, 1955.

Further, on close scrutiny of the wife’s statement, it was revealed that the wife was never subjected to cruelty with regard to the demand of dowry as no evidence was led by her in this regard. Hence, the alleged complaint by the non-applicant was false.

Court added that the alleged marriage of the husband and wife had irretrievably broken down and was dead for all purposes.

The husband and wife were not only living separately for over more than 11 years, but a false criminal case was also found to be lodged by the non-applicant-wife against her husband, which caused mental cruelty to him.

Therefore, the husband would be entitled to get a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Act, 1955 and, the finding of the trial Court declining to grant a decree for divorce on the ground of cruelty was accordingly set aside and the applicant was held to be entitled to a decree for divorce under Section 13 (1) (ia) of the Act, 1955.

With regard to the alimony, Court stated that, by considering the conditions prescribed under Section 25 of the Act, 1955 relating to claim of permanent alimony/maintenance and considering further the fact that the Non-applicant – wife has no independent source of income and that by taking note of the income of the Applicant – husband as reflected and observed from the details furnished coupled with the period of marriage, the ends of justice would be served by fixing amount of permanent alimony/maintenance at Rs 15,00,000 in lump sum payable to the non-applicant wife.

In the above direction, Court added that the applicant shall be entitled to deduct the maintenance amount from the permanent alimony.

In view of the above, the appeal was allowed. [Vasudev Prajapati v. Sunita Kumari, FA (M) No. 9 of 2015, decided on 28-4-2022]

Advocates before the Court:

For Appellant: Shri Manoj Paranjpe appears along with Shri Anurag Singh and Shri Subhank Tiwari, Advocate.

For Respondent: Shri H.B. Agrawal, Sr. Advocate along with Shri Amit Tirkey, Advocate.

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Case BriefsHigh Courts

Delhi High Court: While addressing a matter with regard to a wife’s right to maintenance Chandra Dhari Singh, J., expressed that, only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

Factual Matrix

A criminal petition was filed seeking to set aside the decision by Family Court.

Instant petition had been filed against the order of the Additional Principal Judge filed by the respondent under Section 125 of the CrPC, whereby the Additional Principal Judge granted maintenance.

Petitioner impugned the order dated 31-7-2020, which enhanced the maintenance amount.

Analysis, Law and Decision

In the present matter, the maintenance order was challenged on the grounds of cruelty, adultery, desertion without reason as well as the fact that the wife was capable enough of maintaining herself.

Various Supreme Court and High Court decisions have established the position of payment of maintenance holding that the ground of cruelty does not disentitle the wife of her right to maintenance. In fact, in cases where divorce is granted on the ground of cruelty, Courts have awarded permanent alimony to the wife.

Hence,

Ground of cruelty and harassment do no stand ground for non-payment of the maintenance amount.

The Bench expressed that the codified law and judgments of various High Courts settle the position with respect to the bar of adultery for grant of maintenance in favour of the wife.

Law mandates that in order to extract the provision under Section 125(4) CrPC the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount o ‘living in adultery’.

The Bombay High Court decision in Pandurang Bakru Nathe v. Leela Pandurang Nathe, 1997 SCC OnLine Bom 264 made an observation with regard to the provision under Section 125(4) CrPC was relied on by the Court.

Another decision of the Kerala High Court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 was also relied on.

High Court found that the law as interpreted by the High Courts, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125(4) CrPC.

The petitioner could not establish prima facie that the respondent was living in adultery, hence the respondent was not entitled to any maintenance.

Concluding the matter, Court declined to allow the instant petition, since the petitioner had failed to show any ground for challenging the order under the revisional jurisdiction of this Court.

Therefore, Bench did not find any cogent reason to interfere with the impugned order and judgment. [Pradeep Kumar Sharma v. Deepika Sharma, 2022 SCC OnLine Del 1035, decided on 13-4-2022]

Advocates before the Court:

For the Petitioner:

Annu Narula, Vishal Singh, Ravi Kumar and Shiva Chauhan, Advocates

For the Respondent:

Shamikh, Advocate

Case BriefsHigh Courts

Bombay High Court: In a matter of matrimonial discord, Mangesh S. Patil, J., expressed that, when admittedly, for whatever reason, there was a marital discord and the wife had started residing with the infant child at her parental house barely within three years of her marriage, it cannot be expected of her not to prosecute whatever rights and remedies she has under the law.

Husband has preferred the second appeal who had filed a petition for divorce under Sections 13 (1) (i-a) and 13 (1) (i-b) of the Hindu Marriage Act, 1955. The wife sought enhancement of maintenance in another second appeal.

Factual Background

It was stated that the wife never cohabited with the husband peacefully. The wife later started insulting his relations and never used to discharge the daily chores and started going to the parental home clandestinely.

The wife filed various proceedings against the husband and his relatives, after which the husband filed a proceeding for restitution of conjugal rights, but she opposed it and the same was dismissed. She even caused him to be arrested in a maintenance proceeding and after which he prayed for the dissolution of marriage on the ground of cruelty and desertion.

Trial Court decided that the wife had subjected him to cruelty and even deserted him without sufficient cause, hence dissolved the marriage. In fact, the proceeding of enhancement of maintenance was dismissed to the extent of the wife.

Aggrieved with the above, appeals were before the District Court, wherein the Court disagreed with Trial Court’s decision. Though the District Court granted some enhanced maintenance to the daughter but confirmed the trial Court’s decision with regard to refusing maintenance to the wife.

Analysis, Law and Decision

High Court noted that except for the highly interested testimonies of the husband and his brother there was no corroboration about any behaviour of the wife while she was cohabiting with them in the matrimonial home much less to demonstrate that she had treated the husband and his relations with cruelty.

Though the Bench observed that,

“…no strict proof of all these facts and circumstances can be insisted for since it is a matrimonial dispute happening in the four walls of the matrimonial home.”

High Court added to the above analysis that,

Filing of a maintenance proceeding, a criminal case for harassment cannot per se be said to be sufficient to jump to a conclusion that by filing such proceedings she was intending to harass the husband and his relations.

Elaborating further, the Bench also stated that merely because the complaint filed by the wife was dismissed, no inference is deducible of it being false and fictitious.

In spite of allowing all the applications for production of additional evidence under Order XLI Rule 27 the husband has been unable to demonstrate and justify the ground of cruelty, a conclusion drawn by the trial court which apparently was not founded on sufficient and cogent evidence.

Lastly, the Bench held that the decision of the trial court and the lower appellate court refusing to enhance maintenance to the wife are quashed and set aside. That suit be remanded to the trial court for decision afresh to the extent of the wife.[Vasant Punju Chavan v. Sarala Vasant Chavan, 2022 SCC OnLine Bom 804, decided on 13-4-2022]

Advocates before the Court:

Advocate for Appellant : Mr. Chandrakant P. Patil h/f. Mr. Paresh B. Patil

Advocate for Respondent: Mr. Girish S. Rane

Case BriefsHigh Courts

Kerala High Court: Observing that trauma in a marital discord is common to both parties, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ., expressed that as per Section 25 of the Hindu Marriage Act, while awarding permanent alimony and maintenance, the husband’s income and other property, if any, and the income and property of the wife, conduct of the parties and other circumstances are to be taken into account.

Wife and children of the respondent had filed under Sections 10,24 and 25 of the Hindu Marriage Act and under Sections 18, 20(1)(d) and 26 of the Protection of Women from Domestic Violence Act, for judicial separation, permanent alimony, compensation and injunction.

Factual Matrix

The matrimonial life of the 1st respondent was miserable due to the cruel nature and behavourial problems of the appellant. She was treated like a slave and the appellant has no love or affection for her.

In view of the above, the wife shifted to her parent’s house along with her children and since 2011, both of them have been living separately.

Further, it was stated that the husband sought divorce from the 1st respondent after branding her as a mental patient. Though the wife sought a decree for judicial separation, permanent alimony, compensation for physical and mental torture since she didn’t want her children to be known as the children of a divorcee.

Though the appellant/respondent opposed the petition and denied the allegations.

Family Court found that 1st respondent/wife was entitled to a decree for judicial separation, monthly separation, maintenance of Rs 20,000, compensation of Rs 5 lakhs and injunction prohibition the appellant from alienating the schedule property. The minor children were also awarded monthly maintenance of Rs 15,000.

Analysis, Law and Decision

High Court observed that the Family Court exercising jurisdiction under the Hindu Marriage Act, at the time of passing any decree, can order a gross sum or such monthly periodical sum towards maintenance and support for a term not exceeding the life of the applicant.

Further, as there was no evidence to show that, the 1st respondent is having her own job and income to maintain her, going by Section 25 of the Hindu Marriage Act, on passing a decree for judicial separation under Section 10 of the Hindu Marriage Act, she was entitled to ask for permanent alimony either as a gross sum or monthly/periodical sum.

Bench expressed that,

Only the wife/husband is entitled for permanent alimony as per Section 25 of the Hindu Marriage Act, and the children will not get any amount under that head.

 High Court stated that in order to pay monthly maintenance to the children at the rate of Rs 15,000 was to be set aside reserving their right to approach the Family Court with a separate petition for enhancement of maintenance if they propose to do so.

Noting the financial capacity and potential of the appellant as a highly professional and the properties and buildings owned by him, Court found it just and proper to award a lump sum amount of Rs 30 lakhs as permanent alimony instead of the monthly maintenance of Rs 20,000 ordered by the Family Court.

Lastly, the Bench held that, Section 25 of the Hindu Marriage Act specifically says that, the permanent alimony and maintenance ordered under that Section may be secured, if necessary, by a charge on the immovable property. So, the injunction order granted by the Family Court was against the spirit of Section 25 of the Hindu Marriage Act.[P.V.G. Menon v. Anjana Menon, 2022 SCC OnLine Ker 1479, decided on 24-3-2022]

Advocates before the Court:

For the Appellant/Respondent:

By Adv. Sri Srinath Girish

For the Respondents/Petitioners:

By Adv. Sri K.P. Balasubramanyan

Case BriefsHigh Courts

Tripura High Court: The Division Bench of S. Talapatra and S.G. Chattopadhyay, JJ. dismissed an appeal which was filed under Section 28 of the Hindu Marriage Act, 1955 from the judgment by the Additional District Judge declining to grant the divorce and consequently dismissing the suit. It was observed that case did not reflect any such situation which can demand the dissolution of marriage between the petitioner [the appellant and the respondent].

Mr B. Debbarma, counsel appearing for the appellant contended that while returning the said finding, the Additional District Judge had appreciated the evidence perversely as he did not read the evidence properly. If the evidence was read properly, it would have been apparent that the appellant had established the incidence of cruelty that she suffered during her stay with the respondent. It was also submitted that appellant and the respondent were living separately since 14-04-2016 and as such, that constituted desertion as the marital tie had been irretrievably shattered.

Respondent resisting the plea had made categorical statement in his written statement that he intended to take back the appellant for reconstruction of the matrimonial life and had refused on the ground that she was tortured in the matrimonial home.

Mr S. Lodh, counsel appearing for the respondent had pointedly argued that even if the entire story of the appellant was believed, the suit was wholly based on one incidence of 14-04-2016. Even, that incident had been disbelieved by the Additional District Judge for the reason that there was no evidence relating to the attending circumstances.

The Court scrutinized the evidence and was of the view that there was no reliable evidence either for proving the cruelty or desertion. It was found by the Court that it was the appellant who was not ready to continue the marital life and she had left the matrimonial home by advancing a pretext. The Court believed that they were unable to approve this kind of matrimonial conduct or filing a suit for divorce on such coloured narrative.

The appeal was dismissed holding that if the parties were unable to live together, they have other remedies but as the grounds of cruelty and desertion have been left unproved plea of divorce cannot lie.[Smrita Singha v. Sankar Chakraborty, 2022 SCC OnLine Tri 154, decided on 24-03-2022]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: While addressing a matter surrounding the issue of cruelty by wife, the Division Bench of Vipin Sanghi, ACJ and Dinesh Kumar Sharma, J., expressed that,

“It has repeatedly been held that accusations of unchastity or extra marital relationship is a grave assault on character, status, reputation as well as health of the spouse against whom such allegations were made.”

Appellant invoked this Court’s jurisdiction under Section 19 of the Family Courts Act, 1984 assailing the impugned judgment whereby Family Court granted a decree of divorce in favour of respondent/husband under Section 13(1)(ia) of the Hindu Marriage Act, 1995.

Background

Husband had filed a divorce petition on the ground of cruelty and on the basis of the same, Family Court had granted divorce decree.

Husband’s allegations were with regard to wife’s lifestyle, attitude and strange behaviour towards his parents.

Appellant/wife in her defense stated that she was tortured and harassed by her in-laws on account of their dowry demands and father-in-law had also sexually assaulted her. She added that the husband used to force her to commit suicide, for which she had filed a complaint.

In furtherance to the above, the appellant stated that she wanted to continue with the matrimonial alliance, and thus she filed the petition under Section 9 of the HMA.

Analysis and Decision

In Court’s opinion, the Family Court had correctly appreciated the evidence and rightly found that the appellant by making unfounded allegations amounting to character assassination against the husband inflicted mental cruelty upon the husband.

Further, the Court expressed that, accusations of unchastity or extra marital relationship causes mental pain, agony suffering and tantamount to cruelty.

The allegations of extra marital affairs in relationship are serious allegations, which have to be made with all seriousness. The tendency of making false allegations has to be deprecated by the Courts.

While concluding the matter, the High Court held that there was no material on the record to upset or set aside the order of the Family Courts.

The marriage is solemn relation and it’s purity must be maintained for a healthy society.

In view of the above, the matter was dismissed. [Jyoti Yadav v. Neeraj Yadav, 2022 SCC OnLine Del 795, decided on 21-3-2022]

Advocates before the Court:

For the Petitioner: Mr Rajeev Pratap Singh, Adv. with appellant in person.

For the Respondent: Ms Zubeda Begum, Ms Sana Ansari and Ms Ishita Mohanty, Advocates

High Court Round UpHigh CourtsLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Here are our interesting picks from the stories reported this week:

To operate in State of Maharashtra, Uber and other unlicensed aggregators to apply for license before 16th March 2022: Bom HC

The Division Bench of Dipankar Datta, CJ and Vinay Joshi, J., directed UBER and other transport aggregators who have not obtained a license as per Section 93(1) of the Motor Vehicles Act to apply for the license before 16th March 2022 otherwise they shall not be able to operate in the State of Maharashtra.

Read full report, here…

Wife leaves matrimonial home and never returns after several requests and legal notice under S. 9 of HMA, alleges husband of several cruelties without any evidence: Would it amount to desertion and cruelty by wife? Del HC answers

Noting the separation of 12 years between the husband and wife, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., found that the wife had subjected the husband to desertion and cruelty, hence decree of divorce be granted.

Read full report, here…

Right of residence under DV Act is exclusive to and isolated from any right that may arise under S. 9 of Hindu Marriage Act, 1955: Del HC

“The existence of the strained relationship between the Petitioner and the Respondent has been well established by the fact that there are more than about 60 criminal and civil cases pending between the parties.”

Read full report, here…

Law on Theft | Daughter-in-law thrown out of matrimonial home and accused of removal of letters from possession of matrimonial home: Whether Del HC will find her guilty under S. 380 IPC or not?

Chandra Dhari Singh, J., noted that instant dispute has arisen out of matrimonial discord between two people which had also, led to the filing of more than 50 criminal and civil cases between not only the husband and the wife but also their family members. It was found that for the sole purpose of harassing the other party such cases were filed by persons with no just cause or reason and substantial ground for allegations.

Read full report, here…

SC-ST Act is prospective or retrospective? Kar HC quashes criminal proceedings for offences committed in the year 1975

“…it has been a settled principle of criminal jurisprudence that when the act complained of is not an offence when committed; a free citizen cannot be brought to book merely because such act is criminalized in a subsequent legislation.”

Read full report, here…

Wife, a banker, misusing her position to get details of in-laws’ bank accounts to show husband evading payment of maintenance: Is wife guilty of criminal breach of trust? Court analyses

Manner of bringing the information before Court of law may not be morally right but it cannot be said by this act of petitioner that, petitioner caused or intended to cause any wrongful loss to petitioners or to cause wrongful gain to herself as merely by disclosing this information, no pecuniary benefit is stated to have been received by petitioner and if any maintenance or any other amount is granted by Court of law, that cannot be termed to be wrongful gain to petitioner.

Read full report, here…

Spanking on back of a woman without her consent, by a man would constitute an offence under Stalking as defined under S. 354D (1)(i) IPC? Court explains

Mere presence is not ground for common intention for proving the prior meeting of minds.

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7 entities indulged in anti-competitive agreement for supply of signages for branches/offices/ATMs of SBI: E-mails exchanged between parties formed basis for manipulation of bidding process

Noting that in respect of cases concerning cartels that are hidden or secret, there is little or no documentary evidence and may be quite fragmentary, Coram of Ashok Kumar Gupta (Chairperson) and Sangeeta Verma and Bhagwant Singh Bishnoi (Members)  imposed penalties on 7 entities and signages for bid-rigging activities and cartelization with respect to the supply of signage for branches, offices and ATMs of State Bank of India.

Read full report, here…

Can SEBI proceed against a Chartered Accountant for lack of his due diligence? SAT analyses

“Lack of due diligence can only lead to professional negligence which would amount to a misconduct which could be taken up only by ICAI.”

Read full report, here…

Case BriefsHigh Courts

Delhi High Court: Noting the separation of 12 years between the husband and wife, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., found that the wife had subjected the husband to desertion and cruelty, hence decree of divorce be granted.

An appeal was filed challenging the decision wherein the petition seeking divorce under Sections 13(1) (ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 was dismissed.

Factual Matrix

Appellant submitted that the respondent along with the child left the matrimonial home without informing or seeking the appellant’s consent. Since the respondent refused to return back home, a physical altercation between the appellant and his brother on one side and the respondent’s brother on the other side occurred.

When a legal notice was sent to the respondent to resume the conjugal relationship, she did not respond to the notice nor did she rejoin her matrimonial home. Due to being troubled by the same, the appellant filed a petition under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights.

Rather than joining the appellant back, the respondent filed a complaint alleging harassment due to dowry demand and domestic violence. Since the respondent was adamant about not joining the appellant, he withdrew his petition filed under Section 9 of the Hindu Marriage Act, 1955.

Later the divorce petition was filed by the appellant under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 on grounds of cruelty and desertion.

An order of interim maintenance was passed by the Family Court for the respondent and her son, the said order has been challenged by the present appeal.

Analysis, Law and Decision

High Court noted that the conduct of the appellant shows that, at least, till the time he filed the petition under Section 9 of the Hindu Marriage Act, 1955 he wanted to make his marriage work.

Respondent’s conduct demonstrated clear intention on her part to desert the appellant along with a lack of sensitivity to the physical and emotional needs of the appellant. The allegation of dowry demands, abuse, physical and mental torture and harassment, amongst other cruelties, were all unsubstantiated.

Family Court’s approach that it was for the appellant to prove in negative – that he and his family had not subjected the respondent to harassment or cruelty the dowry, was palpably wrong and against all canons of justice and Fairplay.

“…allegations have not been established and amount to a clear and categorical character assassination of the appellant as well as his family members.”

Further, the Bench also expressed that,

“…appellant had to make 30-40 visits to the police station in connection with the said complaint. A police station is not the best of places for anyone to visit. It must have caused mental harassment and trauma each time he was required to visit the police station, with the Damocles Sword hanging over his head, and he not knowing when a case would be registered against him and he would be arrested.”

Concluding the matter, Bench held that the husband made out a case of being subjected to cruelty and desertion at the hands of the respondent. Therefore, High Court observed that there was no chance of reconciliation between the parties and the marriage was irretrievably broken down.

Therefore, the decree of divorce was granted. [Ritesh Babbar v. Kiran Babbar, 2022 SCC OnLine Del 726, decided on 10-3-2022]

Advocates before the Court:

For the Appellant:

Mr. Sumeet Verma and Mr. Mahinder Pratap Singh, Advocates along with appellant (in-person).

For the Respondent:

Mr. Pratyush Chirantam, Advocate with the respondent in person.

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Dr Justice Kauser Edappagath, JJ., held that, despite a warning by the husband, if the wife continues to make discreet calls with another man that too at odd hours, it would amount to matrimonial cruelty.

Background

Husband had instituted a petition for dissolution of marriage on the ground of adultery and cruelty, but the same was dismissed. A matrimonial appeal was filed challenging the said decision.

Wife had instituted a petition for return of gold ornaments and money, the same was allowed in part. Further another petition was instituted by the husband for appointing him as the guardian of a minor child, but the same was dismissed and a matrimonial appeal was filed challenging the same.

The above appeals were interconnected, hence this Court dealt with them together for their disposal.

Factual Matrix

In the present matter, both husband and wife accuse each other of the development of marital discord between them soon after the marriage.

Husband’s case was that, right from the inception of marriage, the wife perpetrated various iniquitous acts, ranging from mental agony by constantly using filthy language, abdicating all shared household duties, threatening to commit suicide, refusing to have sex, picking up quarrels constantly demanding to take her back to her parental home, ridiculing in front of others, abusing his mother, etc. making his life a living hell.

The wife did not stop the matrimonial cruelty and even dragged the husband’s mother and sister to matrimonial controversy launching a false and frivolous criminal prosecution against them.

The husband also stated that the wife had been maintaining an illicit relationship with the second respondent prior to her marriage and even thereafter.

Lower Court evaluated the evidence and found that the husband failed to prove that the wife was maintaining illicit relationship with the second respond and in so far as the ground of cruelty was concerned, the lower Court found that petitions for dissolution of marriage were settled, and parties had reunited. It was also held that inasmuch as the husband did not have a case in the present petition that the wife had caused physical or mental torture after the resumption of cohabitation, the divorce on the ground of cruelty cannot be granted.

In the case where divorce is sought on the ground of adultery, the proof required to establish adultery need not necessarily be proof beyond a shadow of doubt. Proof by preponderance of probabilities would be sufficient. Direct proof of adultery can rarely be given.

The circumstantial evidence is all that can normally be expected in proof of the charge of adultery.

In Court’s opinion, the allegation of adultery was not proved by the husband.

With regard to cruelty, the Court stated that,

Normally matrimonial cruelty takes place within the four walls of the matrimonial home and, therefore, independent witness may not be available. Hence, Court can even act upon the sole testimony of the spouse if it is found convincing and reliable. 

In the evidence of the husband, it came out that the wife caused innumerable mental stress and pain by consistently sharing abusive words and filthy language towards him and also by threatening to commit suicide on many occasions. The husband specifically deposed that right from the inception of marriage, there has been unusual conduct and abusive humiliating treatment on the part of the wife.

In view of the above, it could be inferred that the husband had every reason to apprehend that it was not safe for him to continue the marital relationship with his wife.

Condonation of Cruelty

Lower Court stated that, even assuming that the allegation of cruelty stood proved, there was clear condonation on the part of the accused.

Section 23(1) of the Hindu Marriage Act casts an obligation on the Court to consider the question of condonation which had to be discharged even in undefended cases.

“Condonation of matrimonial offence deprives the condoning spouse of the right of seeking relief on the offending conduct.”

However, condonation cannot be taken to be absolute and unconditional forgiveness.

Bench elaborated that, in case the matrimonial offence is repeated even after an act of condonation on the part of the spouse, it gets revived on the commission of subsequent act resulting in matrimonial disharmony.

It was noted that the husband and wife had entered into a compromise but later both of them accused each other of breaching the same.

High Court with respect to the above, added that mere compromise would not amount to condonation of cruelty unless and until the matrimonial life was restored and there was no evidence to indicate resumption of conjugal life after the compromise.

Whether making phone calls to the second respondents including odd hours as well would constitute mental cruelty?

Husband had deposed that he overheard the intimate conversation between the wife and the second respondent and on questioning, she told him that the second respondent was having more right over her body and mind than him.

Another pertinent fact was that the wife deposed that she used to call the second respondent only on certain days, though the documentary evidence proved otherwise.

Making discreet phone calls frequently by the wife with another man disregarding the warning of the husband, that too at odd hours, amounts to matrimonial cruelty.

Initiation of false complaint by wife against husband, mother-in-law and sister-in-law

High Court expressed that making false complaints and initiating false criminal prosecution by one spouse against other constitutes mental cruelty.

In K. Srinivas v. K. Sunitha, (2014) 16 SCC 34, Supreme Court held that filing false complaint against husband and his family members under S.498A and S.307 of Indian Penal Code will amount to matrimonial cruelty defined under S.13(1)(ia) of Hindu Marriage Act.

In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, it was held that making false complaints before the police and authorities causing innumerable mental stress and making false and defamatory allegations will amount to mental cruelty.

High Court opined that the initiation of criminal prosecution was false.

Mental Cruelty was clearly constituted, the Court remarked on noting that the wife kept making continuous telephonic interaction with the second respondent ignoring the warning given by the husband and false initiation of criminal prosecution by the wife against husband and his parents after the reunion and the said are sufficient to revive the past acts of proved cruelty.

Both husband and wife had been living separately since 2012, hence a case for dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act was made out.

Another petition with regard to the return of gold ornaments allegedly encrusted by the husband was filed by the wife and as per the husband’s pleadings, he was the entrusted trustee in so far as the said ornaments and money entrusted to him were concerned and the gold ornaments and money were a trust property in the hands of the husband. Hence, he was bound to account to the wife at any time when she demands.

The court below on evaluation of evidence found that the entrustment of 20 sovereigns of gold ornaments as well as `1,00,000/- by the wife to the husband stood clearly proved, hence this Court did not take a different view and confirmed the earlier Court’s decision.

Custody of Child

The Bench reiterated the settled position, that the welfare of the child is of paramount consideration in matters relating to the guardianship and custody of the child.

High Court stated that nowhere it was mentioned that the child was neglected or not taken care of by the mother, in fact, the evidence on record would show that the child had been given proper care and education by the mother.

Husband had already failed to prove the alleged adulterous act by the wife and Court below had found that considering the welfare of the child, the mother had to be appointed as the guardian.

Lastly, the Court added that the husband was free to move the Family Court to modify or vary the visitation right granted including seeking contact rights.

In view of the above discussion, the marriage between the husband and wife was dissolved.[XXX v. XXXXX, 2021 SCC OnLine Ker 3229, decided on 6-8-2021]

Advocates before the Court:

For the Petitioner:

T.M. Raman Kartha and Syama Mohan, Advocates

For the Respondents:

Anjana, R. Priya, M.B. Sandeep and B. Surjith, Advocates

Case BriefsHigh Courts

Delhi High Court: Expressing that the Family Court’s decision was based on optimism and hope rather than the actual factual matrix of the case, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., while addressing a matter wherein matrimonial dispute occurred between the parties, observed that,

“..a decree of judicial separation can be rescinded by the same court; but a decree of divorce can be reversed only by a judicial order: either in review or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.”

“Judicial separation and divorce are completely different reliefs– granted on the same grounds–as contained in Section 13 (1), and in the case of a wife, also on any of the grounds specified in sub-Section (2) of Section 13 of the Hindu Marriage Act,1955.”

Appellant-husband filed the matrimonial application challenging decision passed by the Family Court wherein the relief of judicial separation was granted instead of the relief of divorce-as had been sought by the appellant.

On the other hand, the respondent-wife filed a matrimonial application challenging the findings referred by the Family Court against the respondent in the said decision.

Family Court had opined that the respondent-wife was guilty of matrimonial misconduct and was what was asked by her family members, without applying her independent mind. Respondent was also advised by the Court to think again, independently, without any pressure of her family members, in order to settle and re-establish her matrimonial home.

Analysis, Law and Decision

Whether the finding of cruelty returned by the Family Court against the respondent-wife calls for interference?

High Court stated that it was difficult for them to accept the respondent’s version that she was thrown out of her matrimonial home, or that the members of the appellant’s family tried to take her life – in respect whereof there was no complaint or evidence, is difficult for us to accept.

Bench found the allegations of demand of dowry by the appellant or his family members not to inspire the confidence and the same remained unsubstantiated.

Further, the Supreme Court decisions in Mangayakarasi v. M. Yuvaraj, (2020) 3 SCC 786 and Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, were referred.

As per a statement of the father of the respondent, it was him who forbade the appellant from coming to his house or making any calls. Hence, the onus shifted on the respondent to show her intent and the effort that she made to re-join the company of the appellant. No evidence on record was there to show any effort made by respondent.

No doubt in the credibility of the witnesses was found who were from the appellant’s side and tried to repair the matrimonial bond of the parties. They even endeavoured to help the parties to live together and solve their differences. Their evidence was corroborated by documentary evidence viz the statement made by the respondent’s own father in the appellant’s suit and the lack of intent to resume cohabitation exhibited by the respondent.

Court expressed that the respondent’s attitude, reluctance and obstinacy to join the appellant despite his, his relatives and friends’ effort to bring her back amounted to cruelty. In fact, it was noted that the respondent-wife left the matrimonial home for no reason and levelled false allegations.

The appellant did not get married to the respondent to lead a bachelor’s life. He got married in the hope, and with the expectation, of leading a happy and fulfilling married life. The respondent, by not joining him, has denied him conjugal satisfaction. He has been denied the companionship that he would have been legitimately and rightfully hoping to experience with the respondent.

By the Family Court’s decision, the respondent-wife was asked to give her marriage another chance and think independently of her family members. However, there was no positive move on the part of the respondent.

In view of the above discussion, the respondent-wife perpetrated mental cruelty upon the appellant, and nothing remained in the said marriage.

Legality of the relief granted by the Family Court of judicial separation to the appellant, instead of a decree of divorce

As per the scheme of the Hindu Marriage Act, 1995 the ambit and the scope of the Judicial Separation and Divorce is qualitatively different.

“Judicial Separation is a completely different relief that the aggrieved spouse may seek against the other, under Section 10 of the Hindu Marriage Act.”

High Court remarked that,

“While judicial separation does not end the matrimonial relationship and the marriage is preserved – after a declaration is made establishing the matrimonial misconduct by the other spouse, and it entitles the aggrieved spouse/petitioner to deny conjugal relationships to the other spouse/respondent, a decree of Divorce puts an end to the jural relationship of marriage between the parties, thus liberating them from their marital bond.”

Another, significant observation is that the parties cannot remarry during the period of judicial separation, since the status of marriage subsists. Whereas, once a decree of divorce is granted, parties are free to remarry once the statutory period of appeal expires and there is no restrain passed by a competent court against remarriage.

With regard to the explanation of the concept of Judicial Separation, the Supreme Court decision in Hirachand Srinivas Managaonkar v. Sunanda (2001) 4 SCC 125, was cited.

Elaborating the analysis, in view of the present facts, this Court opined that the Family Court’s decision in ordering the judicial separation instead of Divorce was faulty.

It is not for the Court to decide to substitute the relief sought by the petitioner who has approached the Court.

Can the family Court grant any other relief instead of the one sought?

 “The powers of the Family Court to change the nature of the relief sought is absent. The Family Court cannot be heard to tell the petitioner before it, what is “good” for him/her. It may render its advice to the parties when the matter is pending before it, but when it comes to adjudication, the Family Court is bound to bear in mind the relief sought by the petitioner.”

Another stark observation of this Court was that, the Family Court expected the respondent to come out of the influence of her brother and father, and resume cohabitation with the appellant, but, on the other hand, failed to appreciate that the respondent cannot seek to resume cohabitation with the appellant, when the decree of Judicial Separation was operating against her, unless the appellant consented.

Appellant had clearly expressed his intention of ending the relationship. Family Court should have realized that if the respondent had been unable to come out of the influence of her family members for the last 13 years, there was very little likelihood of her doing so in the near future.

Hence, in view of this Court, the relief of Divorce could not have been denied to the husband, once the ground of cruelty was established under Section 13(1)(ia) of the Hindu Marriage Act.

“…parties were living separately for 12 years now, and the marriage was completely broken.”

The adamance of the wife in regard to refusal to cohabitate with the appellant over the last 12 years showed this Court that there was nothing remaining in their marriage.

Therefore, the family Court’s decision was set aside in so far as it granted a decree of judicial separation to the husband. [Vinay Khurana v. Shweta Khurana, 2022 SCC OnLine Del 517, decided on 18-2-2022]

Advocates before the Court:

For the Appellant: Appellant-in-person

For the Respondent: Naman Joshi, Guneet Sidhu, Advocate with respondent -in-person

Case BriefsSupreme Court

Supreme Court: In a dowry demand and harassment case, where a woman had lodged criminal complaint against her husband and in-laws but  no specific role was attributed to the in-laws, the bench of SA Nazeer and Krishna Murari*, JJ has held that it would be unjust if the in-laws are forced to go through the tribulations of a trial and that general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. The Court observed that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged.

The Court also observed that while incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives

The Court took note of several rulings wherein the Court has expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. The Court has observed in those judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law.

“Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.”

In the case at hand, general allegations were levelled against the in-laws. The complainant alleged that ‘all accused harassed her mentally and threatened her of terminating her pregnancy’. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein

The Court observed that

“This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes.”

The Court, hence, held that allowing prosecution in the absence of clear allegations against the in-laws would simply result in an abuse of the process of law.

[Kahkashan Kausar v. State of Bihar, 2022 SCC OnLine SC 162, decided on 08.02.2022]

*Judgment by: Justice Krishna Murari

Case BriefsHigh Courts

Kerala High Court: Expressing that, “If the conduct and character of one party causes misery and agony to the other spouse, the element of cruelty to the spouse would surface, justifying grant of divorce”, the Division bench of A. Muhamed Mustaque and Sophy Thomas, JJ., held that, Court cannot leave the life of a spouse to the mercy of the opposite spouse.

High Court remarked that,

If one of the spouses is refusing to accord divorce on mutual consent after having been convinced of the fact that the marriage failed, it is nothing but cruelty to spite the other spouse.

In the present matter the Bench after going through the pleadings and evidence, opined that the parties never developed any emotional bond or intimacy. The reason that they were living at distant places at the time of marriage had hampered developing such bonding.

High Court expressed that the marital relationship is built over the period, based on harmonious combination of differences in taste, outlook, attitude etc.

“The initial phase of the marriage lays a strong foundation for the marriage.”

 Further, elaborating the analysis, Court stated that in some jurisdictions, incompatibility is a recognized ground for divorce.

“If domestic harmony is not achieved during the initial phase of the marriage, it may lead to constant quarrels and bickering, spoiling the relationship.”

The husband approached the Court for divorce on the ground of cruelty, after realising the insurmountable hurdle in moving forward.

High Court added that,

“While deciding this case, we have outlined at the outset the incompatibility of the parties for the reason that, if we omit to refer to the incompatibility, the judgment rendered would only prove innocence or fault of either of the parties. By incompatibility, we mean that both parties failed in building the relationship and one alone cannot be attributed with the imputation of fault.”

The parties never had any cordial relationship and failed to develop any emotional intimacy.

In the present matter, Court had to decide upon cruelty as a ground for divorce.

In Court’s opinion, the wife can’t be fully blamed for the deteriorated relationship, infact the email communications depicted that the wife experienced stress and emotional turbulence.

Husband attributed wife’s behaviour of writing down things and meticulously putting down her actions in advance by cataloguing the schedules and routines as behavioral disorder. Bench denied classifying the same as a disorder in the absence of a medical evidence.

Though the Court stated expressed that, the obsessive nature of the character possessed by the wife would have led to a deteriorating relationship between the parties from the initial phase of life itself.

“Chasing happiness based on schedules instead of living in the moment, appears to be the vowed daily life routine adopted by her. She was not realistic to the fact that the secret of marital harmony lies in accepting the life as it unfolds and not becoming a stickler of the schedules or routines.”

High Court accepted that the conduct and character of the wife was unbearable to the husband.

In any matrimonial relationship, spouses may have a different outlook on the marriage based on faith, perceptions, outlook, attitudes, social ethos, etc. Fearing divorce is repugnant to his or her notion, one would refrain from the divorce based on mutual consent.

Bench observed that there was no scope for reviving the dead marriage.

The decision of Supreme Court in Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 were referred with regard to cruelty.

Law on divorce recognized both fault and consent as a cause for separation, Court added.

When husband and wife are unable to lead a meaningful matrimonial life due to inherent differences of opinion and one party is willing for separation and the other party is withholding consent for mutual separation, that itself would cause mental agony and cruelty to the spouse who demands separation.

High Court also stated that, if the Court is able to from an opinion that due to incompatibility, the marriage failed and one of the spouses was withholding consent for mutual separation, the Court can very well treat that conduct itself as cruelty.

“No one can force another to continue in a legal tie and relationship if the relationship deteriorated beyond repair.” 

Bench held that the parties were young and living separately since 2017, hence no interference was required in the family court order. [Beena M.S. v. Shino G. Babu, 2022 SCC OnLine Ker 778, decided on 4-2-2022]

Advocates before the Court:

For the appellant:

By Advocates:

JACOB P. ALEX

SRI. JOSEPH P. ALEX

SHRI. MANU SANKAR P.

For the respondent:

MAJIDA. S, Advocate

High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

“For a contract to be enforceable, the restraint of trade clause must be reasonable.”

[Rajesh Kumar Gandhi v. Mukesh Dutt]

Read the interesting picks from the stories eported in first week of February.

Delhi High Court

Baazi v. WinZo| Trademark is used by a manufacturer or service provider to distinguish products from those of competitors: Here’s how Winzo appeared dishonest and unfair in adopting Baazi

Explaining the significance of a trademark, Asha Menon, J., observed that,

When people are satisfied with the products supplied by a manufacturer or service provider, they buy them on the basis of the trade mark and over time it becomes popular and well known. Thus, the use of a similar or identical trademark by a competitor in the same product would lead unwary customers to believe that it originates from the same source.

Read full report here…

Whether a ‘blade’ would be covered under S. 397 IPC as a deadly weapon? Del HC explains in view of settled position of law

Mukta Gupta, J., explained under what circumstances would Section 397 of penal Code, 1860 would be attracted.

Rae full report here…

Court under maintenance proceedings under S. 125 of CrPC, can usurp jurisdiction of Civil Courts? Del HC decides

Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,

“…there is no straight jacket formula for judging the validity of the marriage between the parties.”

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Kerala High Court

Is not taking treatment for mental illness to bring out a peaceful family atmosphere a form of cruelty and thus, a ground for divorce? Kerala HC answers

In an interesting case the Division Bench of A.Muhamed Mustaque and C.R. Sophy Thomas, JJ., held that not taking treatment for mental illness in order to bring out a peaceful and harmonious family atmosphere can also be counted as cruelty to the persons at the receiving end. Upholding the Family Court’s order granting divorce on the ground of cruelty, the Bench remarked,

“There is no merit in preserving intact a marriage, when the marital tie becomes injurious to the parties. When there is no rose, and only thorns left, and there is no scope for the plant to sprout again, there is no meaning in watering the same, knowing that it is dead forever.”

Read full report here…

Andhra Pradesh High Court

LGBTQ+ community’s right to reservation; Can a transgender claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? AP HC answers 

In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denied to issue direction to the State in favour of the petitioner. The Bench, however, remarked,

“The State is unconscious of the directions issued by NALSA and failed to provide a specific column meant for gender identity for transgender in the proforma of application in the Notification dated 01.11.2018 and did not provide any reservation to transgenders, as they are socially and educationally backward and not in a position to compete with ordinary men and women.”

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National Company Law Tribunal

Operational Creditor is under obligation to recover money from its client and not agent: NCLT decides while dismissing a petition filed under S. 9 IBC

The Coram of H.V. Subba Rao (Judicial Member) and Chandra Bhan Singh (Technical Member) dismissed a petition filed under Section 9 of the IBC while noting that no operational debt existed under Section 5(8) and expressed that,

“Operational Creditor being the principal was always under obligation to recover the money from the client and not from his agent unless the agent failed to perform his duties.”

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Tis Hazari Court

For a contract to be enforceable, restraint of trade clause must be reasonable: Post-termination non-compete clauses are permissible in employment contracts under S. 27 of Contract Act? District Court explains

Holding that, post-termination non-compete clauses in employment contracts are “restraint of trade” and it is impermissible under Section 27 of the Act, Richika Tyagi, C.J-02, expressed that such agreements of restraint are vid because of being unfair and depriving an individual of his or her fundamental right to earn a living.

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Information Commissioner’ Office

Unsolicited marketing calls causing distress to people and disregard to their privacy rights: Would it lead to imposition of monetary penalty? Detailed decision of Information Commissioner’s Office

Andy Curry, Head of Investigations, on noting serious contravention of regulations 21 and 24 of the Privacy and Electronic Communication Regulations 2003 (PECR) has issued Home2sense Limited with a monetary penalty under Section 55A of the Data Protection Act, 1998.

“Home2sense’s dismissive and troubling response, coupled with its failure to disclose any details of its CDRs or any other information which might assist the Commissioner’s investigation shows, in the Commissioner’s view, a complete disregard for the privacy rights of the individuals whom it sought to contact.”

Read full report here…

Case BriefsHigh Courts

Kerala High Court: In an interesting case the Division Bench of A.Muhamed Mustaque and C.R. Sophy Thomas, JJ., held that not taking treatment for mental illness in order to bring out a peaceful and harmonious family atmosphere can also be counted as cruelty to the persons at the receiving end. Upholding the Family Court’s order granting divorce on the ground of cruelty, the Bench remarked,

“There is no merit in preserving intact a marriage, when the marital tie becomes injurious to the parties. When there is no rose, and only thorns left, and there is no scope for the plant to sprout again, there is no meaning in watering the same, knowing that it is dead forever.”

Factual Backdrop

In the instant case, the husband, who was an Engineer cum Yoga Trainer approached the Family Court to dissolve marriage under Section 10 of the Divorce Act, alleging cruelties, both mental and physical, and desertion, from the part of the wife, who was a Post Graduate. The husband was alleging that, from the very inception of marriage, the wife was showing behavioural disorders. She was intolerable even on minor domestic problems and she was abusive and assaultive in nature. She often threatened the husband that she would slice his throat and even strangulated him during sleep. Whenever he did not accede to her demand for unnatural sex, she threatened to slice away his penis. She often threatened him with suicide, and once she jumped out of a running car. She went out of the house during night hours without informing the husband, and there was occasion to bring her from street during midnight.

It was further the case of the husband that in spite of being taken to various psychologists and psychiatrists, his wife was not co-operating with the treatment. In July 2005, she went to her paternal house and never came back to live with her husband and children.

Findings of the Family Court

On analysing the facts and evidence, the Family Court found that the husband could establish the grounds of cruelty and desertion against the respondent-wife, and so, the O.P was decreed dissolving the marriage.

Challenging the said judgment and decree, the wife had come up in the instant appeal alleging that, by the impugned judgment, the husband was given an incentive for his own cruelty and desertion. The Family Court ought to have found that she had never intended to terminate her matrimonial life with the husband. In fact, she was prevented from entering her matrimonial home by an injunction suit filed by the mother-in-law.

Factual Analysis

Relying on the decision of the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Bench stated that in matrimonial life, cruelty can be defined in many ways; it has many perspectives which depend upon the socio-economic status and circumstances of parties to the marriage. With regard to the allegations made by the husband the Bench made following observations:

  • The appellant used to get irritated over minor domestic issues, and on one such occasion, since the husband could not heed to her request for purchasing a nighty from a shop, she bit off a portion of his shoulder muscle, and the bite mark was still there on his shoulder. His mother had to call the Police to manage that situation.
  • Statements of the doctors revealed that appellant was suffering from impulse control disorder which means, not able to control anger, and exhibiting anger in an excessive manner, which may adversely affect marital life. The persons suffering from impulse control disorder may be assaultive in nature and may throw things or may exhibit homicidal or suicidal tendency as stated by the doctor.
  • The doctor further stated that there is no complete cure for this illness, but it could be controlled under proper medication. However, even according to the appellant, after 2007 she had not continued the treatment.
  • The allegations of arrogance, and abusive and assaultive nature of the appellant, spoken to by her husband and children, get corroboration from medical report, and the testimony of Doctor.

One may suffer mental stress or strain due to very many reasons. But, not taking treatment for the same in order to bring out a peaceful and harmonious family atmosphere also may have to be counted as cruelty to the persons at the receiving end. The appellant has no case that, she had any difficulty to continue the treatment, but according to her, she had no psychiatric problem and so she discontinued the treatment.

Observations and Findings

In A: husband v. B: Wife, 2010 SCC OnLine Ker 4925, it had been held that law cannot recognise different varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty or secular cruelty to justify a decree for divorce and matrimonial cruelty must have a uniform definition or conceptualisation to justify the founding of a decree for divorce. Further, under S.10(1)(x) of the Divorce Act, the cruelty must be such as to cause reasonable apprehension in the mind of the petitioner, spouse that it would be harmful or injurious for the petitioner to live with the respondent.

From the available facts and evidence, the respondent husband had amply proved that the appellant had treated him with such cruelty as to cause reasonable apprehension in his mind that it would be harmful or injurious to him to live with the appellant and that his children were also anxious to save the life of their father as the children deposed that if the appellant and respondent were again put together, they will lose their father. Further, from the evidence on record following circumstances were proved against the appellant wife:

  • The appellant herself admitted that she had left her matrimonial home in July 2005. She had no case that before her mother-in-law filed injunction suit against her, she preferred any complaints or petitions before any authority seeking restitution of conjugal rights or even for getting custody of her minor girl children.
  • She had no case that, when she left her matrimonial home, she was prevented from taking her children with her. So, of obviously, she left her matrimonial home even without caring her little girl children.
  • The children would say that, even when she was informed about their biological maturity, she did not care to see them. In the year 2005, the respondent was hospitalised due to heart attack and then also, the appellant did not turn up.
  • In 2009, when the appellant and her parents tried to make a forcible entry in the house, the mother-in-law filed a civil suit and obtained injunction. Though, the injunction was later vacated and subsequently the mother-in-law not pressed that suit, only after the civil suit, the appellant filed complaint under the Domestic Violence Act for getting residence order in the shared household.

Conclusion

Hence, considering the fact that the parties lived separately for the last more than 16 years, the Bench held that their marriage was to be treated as a deadwood which had no signs of life. In the result, the appeal was dismissed and the impugned judgment and decree were upheld. [Mary Margret v. Jos P Thomas, Mat. Appeal No.1119 of 2015, decided on 21-01-2022]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Advocates for the Appellant: P.George William, Achu Subha Abraham, Philip T.Varghese and Thomas T.Varghese

Advocates for the Respondent: V.V.Asokan (Senior.), V.M.Kurian, Mathew B. Kurian, C.N.Sreekumar, K.T.Thomas and K.I.Mayankutty Mather