Case BriefsHigh Courts

Bombay High Court: While addressing a matter, Mangesh S. Patil, J., laid down significant aspects with regard to when a petition can be amended.

Petitioner had filed a proceeding for annulment of marriage styling it to be a petition under Section 12 of the Hindu Marriage Act and was aggrieved by the rejection of her application for amendment of the petition seeking to add a paragraph so as to insert the averments in respect of impotency of the respondent-husband.

Analysis, Law and Decision

Bench noted that the petitioner did file the petition styling it to be one for annulment of marriage under Section 12.

She made a strenuous attempt to allege that the respondent was all the while unwilling to consummate the marriage, also she narrated the episodes wherein he denied having sex.

Further, Court stated that it could have been in her mind to make up a ground under Section 12(1)(a) of the Hindu Marriage Act seeking annulment on the ground of impotency of the respondent, the petition clearly lacked specific and clear averments so as to make out that ground.

Even the trial court framed the issue unmindful of the provision under which the relief was being claimed by the petitioner.

It was observed that there was no material to show that the petitioner had ever made any attempt to seek the issues to be recast.

Petitioner sought to add the following paragraph:

“13-A. That thereafter also with a hope that the behavior of respondent will improve on some day or the other, the petitioner kept on trying communicating and having sexual relationship with the respondent however; to the shocking of petitioner, the respondent rudely and clearly uttered that, he is not interested in women and has different choice of sex. He clearly told petitioner that, he is unable to establish sexual relationship with her as he is incapable of same. He said that, he is interested in males than females for satisfying sexual desire. Thus, it reveled to the petitioner that, the respondent is sexually impotent and unable to consummate the marriage. However; on multiple occasions petitioner literally begged respondent to seek medical treatment for this cause with a hope to consummate the marriage however, the respondent shown utter disregard to this suggestion of petitioner and continued depriving her from fulfilling sexual obligation.”

Supreme Court in catena of decisions had laid down parameters to be borne in mind while considering the request for amendment of the pleadings some of which were culled down by it in the case of Ravajeetu Builders and Developers v. Narayanaswamy and Sons, (2009) 10 SCC 84, which have been referred to and relied upon even by the trial court.

Court further added that the proposed amendment should not have the tendency of causing any prejudice to the other side.

“…it is during her cross-examination when the petitioner admitted several clinching circumstances touching her claim to seek annulment that the proposed amendment is sought to be made.”

While concluding the matter, High Court held that,

“Allowing such amendment to be carried out would certainly put the clock back.

If she has proceeded with the petition with the serious infirmities in the pleadings as well as in her testimony, the proposed amendment is nothing but an attempt to fill the lacuna. A serious prejudice, therefore, is certain to be caused to the respondents.”

Another aspect was that,

“if the proposed amendment is allowed to be carried out, there is every possibility of the petitioner then seeking to make the respondent undergo some medical examination to bring home her allegations. This would certainly be the prejudice of the respondent.”

Therefore, Bench held that there was in illegality in the order under challenge. [Vaishali Shrikant Arane v. Shrikant Pandir Arane, 2021 SCC OnLine Bom 5026, decided on 7-12-2021]


Advocates before the Court:

Advocate for Petitioner: Mr. Shaikh Mazhar A. Jahagirdar

Advocate for Respondent: Mr. Rahul R. Karpe

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: V. Bhavani Subbaroyan, J., while addressing a very significant issue with respect to a divorce being sought, expressed that:

“…concept of marriage in the present generation has been taken very lightly and even for trivial issues, divorce is filed, and marriage is broken.”

Wife filed the present petition against the petition filed by the Husband before the Family Court. The husband’s petition was filed on the ground that the wife was suffering from Polycystic Ovarian Syndrome (PCOS) and was not fit for cohabitation or to give birth to a child.

Husband also filed an interlocutory application seeking for an amendment to include the provision of law from 12(1)(a) and 12(1)(a) and (c). The said petition seeking for amendment was pending before the Family Court for decision.

Petitioners Counsel, S.P. Arthi submitted that PCOS disorder is an endocrine system disorder that affects the capacity of reproduction in women, and which is totally distinct and different from claiming to be impotence.

As per the contention of counsel for the petitioner, the said claim made by the husband was absolutely incorrect and the said usage of terminology of impotency against the wife could not be sustained and on the said ground striking off the petition was sought.

Analysis, Law and Decision

Bench noted the categorical allegation placed by the husband with regard to the issue of PCOS in the wife due to which the husband sought a divorce.

High Court expressed that:

The term ‘PSOS’ by itself cannot be termed as ‘impotency’. Impotency is different and unable to give birth to a child is different, owing to various physical and mental reasons.

 On careful consideration of the contentions placed on record, it was clear that the husband did not plead the wife’s inability to give birth to a child as ‘Impotency’, but he sought annulment of marriage on the reason that there was no cohabitation and wife could not bear a child. He also submitted that the wife did not cooperate for cohabitation owing to her medical condition, as she was almost 25 days on her menstrual cycle.

Marriage being a bondage between men and women as husband and wife, it not only limits to a biological needs and desires, but also as a companion in life caring forward to the next generation through their children.

Elaborating more in respect to the present set of facts and circumstances, Bench added that Family Courts have increased in numbers to cater to the demand of intolerant couple, who are unmindful of the institution of marriage, break the relationship on unimaginable trivial reasons.

As per the pleadings placed, nowhere the husband used the word connoting impotency towards his wife. He mainly approached with the complaint that the wife could not bear a child for two reasons:

  • No Cohabitation
  • Suffering from ‘PCOS’ due to which wife suffers from improper menstrual cycle.

Legitimate Expectation?

Bench expressed that it is the husband’s legitimate expectation to live with his wife and have cohabitation and bear children and if the same is not achieved owing to some physical or mental problems, it is quite logical that either of the parties will approach the Court for seeking a divorce.

Except for some case wherein the couple are understanding and come forward with the life issue-less or even go for adoption, however, the same has to be proved by the person claiming that his or her partner is incapacitated to give or bear the child.

Petitioner/Wife could not show the husbands averments to be illusive.

Hence, High Court did not find any grounds seeking for the intervention of this Court under Article 227 of the Constitution of India with regard to striking off the petition.[ Annapoorani v. S. Ritesh,  2021 SCC OnLine Mad 1079, decided on 16-03-2021]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Sanjeev Narula, JJ., refused to set aside the order of the trial court granting divorce to the respondent-husband.

In the instant appeal, Appellant-wife impugned the Judgment passed by Principal Judge, Family Courts whereby the Court while rejecting the relief sought under Section 12(1)(a) and (c) has allowed the petition of the respondent by granting divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

CRUELTY

Trial Court dissolved the marriage between the parties on the ground of cruelty within the meaning of Section 13(1)(ia) of the HMA.

IMPOTENCY

The nature and the extent of allegations made by the appellant are beyond any controversy. Appellant laid down the allegations under two different compartments:

(i) allegations pertaining to the impotency of the Respondent, and

(ii) allegations with respect to mistreatment, torture and dowry demand against the Respondent and his parents.

The above-stated allegations laid the foundation for the ground of cruelty.

Further, the respondent had brought in evidence to establish before the Court that he was not impotent and the false and untrue allegations were causing him mental stress and amounted to cruelty.

On physical examination by the doctor, the respondent was found to be a normal male adult with fully developed secondary sexual character and organs, normal endocrine and sexual function, and had no problem of impotence.

Trial Court concluded that the credibility of the witness could not be impeached, and since respondent suffered no medical infirmity that could render him incapable of consummating the marriage, the allegation of impotence made by the respondents was not proved.

DECISION

Bench stated that, since the witness was a very highly qualified medical expert with immaculate credentials, his testimony was rightly relied upon by the Trial Court, hence no interference by this Court is required.

Court agreed with the observations of the trial court and stated that the accusations were levelled by the appellant and the onus lay on her to establish the veracity of the same.

Appellant entirely failed to produce any medical or corroborated evidence that could remotely suggest that the respondent was medically unfit to consummate the marriage.

Next Question:

Whether a false allegation of impotence amounted to cruelty within the meaning of Section 13(1)(ia) of the HMA?

Cruelty can be physical or mental. High Court stated that it is primarily contextual, pertaining to human behaviour or conduct with respect to matrimonial duties and obligations.

Bench observed that it is essential to see whether the conduct of the party is of such nature, that a reasonable person would neither tolerate the same, nor be reasonably expected to live with the other party.

Decision of the Supreme Court in V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 was relied upon, wherein it was held that:

“Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.”

“…What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

ALLEGATIONS MADE IN PLEADINGS

Bench stated that it is no longer res Integra that false, baseless, scandalous, malicious and unproven allegations in the written statement may amount to cruelty.

“If it is established from the evidence that the allegations were evidently false, then such baseless allegations made in the written statement can amount to cruelty and the Court can pass a decree of dissolution of the marriage.”

In view of the above, Court found no infirmity in the trial court’s observations that the allegation of the Appellant in the Written Statement with respect to the impotency clearly falls within the concept of cruelty as defined under the law.

Bench also observed that,

There can be no justification for any party to retaliate by making untrue and false allegations regardless of how provocative the allegations may be. If the Appellant was hurt by the allegations made by the Respondent, she had her legal remedies against the same. It did not certainly give her a carte blanche to make counter-allegations which were untrue and cause deep humiliation to the Respondent.

Adding to the above, Court stated that the imputations and allegations made by the Appellant in the Written Statement were repeatedly reinforced during the trial by giving suggestions to the Respondent and also to his expert witness during the course of their cross-examinations.

Bench held that,

The cruelty in the instant case is of enduring and profound nature.

Concluding the instant matter, Cout held that the appellant and the respondent have been separated for more than eight years and since the separation continued for a sufficient length at time, it can be presumed that the marriage has irretrievably broken down.

It was found that a prolonged and continuous separation and the matrimonial bond was beyond repair. Therefore, refusing to severe the matrimonial ties would cause further mental cruelty to the Respondent.

Hence, the trial court’s conclusion could not be faulted with. [Kirti Nagpal v. Rohit Girdhar, 2020 SCC OnLine Del 1466, decided on 20-11-2020]


Advocates for the parties:

Appellant: Manish Sharma, Ninad Dogra and Jigyasa Sharma

Respondent: Prabhjit Jauhar