The headlines reporting of a judgment rendered by the Gauhati High Court concerning a matrimonial wedlock dissolution can be cited as a prime example of click bait journalism. The learned authors of the various columns are making a rather fervent effort to superimpose upon general public their interpretation of the judgment rather than what the Court has apparently held. The headlines of some leading newspapers read; Gauhati High Court Grants Divorce to Man After Woman Refuses to Wear “Sindoor”[1], “Shakha”[2],[3] Gauhati High Court Grants Divorce for Woman’s Refusal to Wear “Sindoor”, “Shakha”.[4] The instant reaction to such tit-bits infuriates a progressive and liberal mind, while at the same time, can soothe the orthodox and make them feel entitled to such a judicial dicta.
The author’s attempt herein is merely to disillusion the mist of myriad traversing over the subject, out of an ingeniously erroneous interpretation, which may evoke a legally instructed mind rather disdainfully.
A fresh law school entrant would not find it difficult to read the 12 page judgment of the Gauhati High Court[5] and any indiscrete eye would rather assimilate its sentiment in true valour, yet an extreme distortion of the judgment may be paving new opportunities for tyrants. The moot question before the High Court was:
- Whether the respondent wife subjected the appellant husband to cruelty and deserted him?
- Whether the appellant husband is entitled to a decree of divorce?
The brief facts of the case, leading to the appeal before the High Court has been encapsulated at the very opening of the judgment in the following manner:
“3. The case of the appellant husband … is that he is a contractual labourer … He lives with his mother, sisters and brother in Digboi. His marriage with the respondent wife was solemnised on 17-2-2012. After marriage, the appellant and the respondent started their conjugal life in the matrimonial house of the appellant. After about a month into their marriage, the respondent wife demanded to reside separately with the appellant husband … However, the appellant being a contractual labourer was not able to sustain separate accommodation … Around the month of June 2013, the respondent wife declared that she was not willing to continue her matrimonial life with the appellant. As a consequence, the respondent wife insisted on going back to her parental home … contrary to her assurance, instead of returning back to the matrimonial house, she filed a case under Section 498-A[6] IPC before Digboi Police … The appellant husband further contended that the respondent wife compelled the appellant to execute a written agreement to the effect that the couple will stay in a separate rental house together away from the joint family of the husband and further that the appellant husband’s family members will not visit them or maintain any relation with them.
4. The respondent wife contested the case … she stated that she was subjected to cruelty to meet illegal demands of dowry in the form of cash and kind….
* * *
- During her cross, she maintained the evidence adduced by her in her evidence-in-chief. She stated that she had filed three cases against the appellant. She further stated that she does not want to stay with the appellant or compromise with the appellant. She also admitted to the existence of the agreement entered by and between the appellant and the respondent pursuant to filing of the FIR although she denied that the agreement stipulated that the appellant will live separately with her in a rented house and that no one from his family members can come and meet them. It is also evident from her cross-examination that she had categorically stated that either the appellant will come to Dibrugarh to live with her or fulfil her demands i.e. monetary demands or only then she will divorce him….
* * *
- The Family Court below has accepted the evidence of both the parties that there were indeed criminal cases filed by the respondent wife under Section 498-A IPC besides two other cases. In the case lodged under Section 498-A IPC, the SDJM (Margherita) acquitted the appellant husband, his stepmother and his sisters. However, the criminal cases filed under Sections 471/420[7] IPC and under Section 125[8] CrPC are presently pending disposal….[9]
In an uncanny manner, the entire thrust of media reports was on certain observations (obiter dicta) made by the Court at para 15 of its judgment; projecting it in a manner, as done and by reading it out of context and de hors the facts; without even glancing over the preceding paragraphs, resulting in distortion of the court’s verdict. It is elementary jurisprudence that one cannot pick or choose a line from the judgment to buttress their claim; a judgment must be read as a whole. The observations made by the Court were in the backdrop of facts obtaining in the case which have been transcribed in the text of the judgment. The judgment reproduces the testimony of the lady/wife/respondent at para 13 wherein she categorically states:
“That I am not wearing/putting sindoor right now because I do not consider him as my husband.”
It is only after considering such categorical statement of the lady/wife/respondent that the Court observes/remarks at para 16 that:
- … Under the custom of Hindu marriage, a lady who has entered into marriage according to Hindu rituals and customs, and which has not been denied by the respondent in her evidence, her refusal to wear “shakha and sindoor” will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant. Such categorical stand of the respondent points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant. Under such circumstances compelling the appellant-husband to continue to be in matrimony with the respondent wife may be construed to be harassment inflicted by the respondent upon the appellant and his family members.[10]
The Court finds and observes that the conduct of wife; refusal to adhere with such custom, voluntarily and in an unambiguous manner; arising out of loss of relationship, as above, reflects her will. She is not being lambasted for denying to follow a custom. It is merely a reflection of her will and desire i.e. to come out of wedlock. The Court finds that, in the facts and circumstances of the case at hand, the wife’s refusal to wear the sindoor amounts to her not wanting to continue with the marriage which stands corroborated by her statement during the cross-examination.
The judgment is in no way suggestive or accords sanction to a man, that he may walk up to a court of law and ask for divorce if his wife does not wear the customary sindoor. The decision is liable to be understood and confined to the facts of the case.
It is important to note that ratio decidendi (legal grounds/reasons of rendering a judgment) of the case is NOT “divorce to be decreed upon wife’s refusal to wear sindoor and the shakha” as projected in the media reports. Rather, the fact of non-observance of custom i.e. refusal to wear sindoor and the shakha, is only indicative of wife’s will in context of the surrounding facts of the case. She considers the particular custom sacred and the court also takes note of the fact that she is unwilling to follow the custom as she wants to exit the wedlock. The sanctity and enforceability of custom is a question of fact in each case. In the set of facts present before the court in the instant case, the court finds that the wife’s unwillingness to remain married is demonstrated by the omission to follow the particular custom and to force the parties to remain in wedlock “may” amount to harassment to the husband/appellant and his family.
The Court clearly observes that this overt act demonstrates the wife’s unwillingness to be part of the matrimonial home, in the facts of the case. The Court does not return a finding that the act of omission; refusal to wear sindoor and shakha, amounts to legal cruelty entitling the husband for divorce. All that the judgment holds is that this categorical statement in cross-examination, of non-observance of custom; demonstrating the wife’s will to detach herself from the wedlock, was not looked into by the Family Court while refusing the divorce petition of the appellant-husband.
Now consider a scenario where the wife wants to apply the sindoor, shakha, mangalsutra, etc., as per the Hindu customs, but the husband forbears her from doing so or where husband refuses to wear the customary wedding ring. Will the wife be entitled for divorce on the ground of cruelty on part of the husband in such circumstances; citing the instant judgment as a precedent? The answer would be a resounding no. To follow a custom or not is NOT the determinative test for constituting legal cruelty under matrimonial laws. For a court of law to reach to a conclusion that an act complained off amounts to legal cruelty requires satisfaction of separate parameters.
It is only when custom has been identified and acknowledged as a legally binding principle, based on various factors, that its non-adherence can result in a legal wrong. A distinction needs to be understood between social customs and legal customs, both have acknowledgement in law, but for separate purposes. While the former’s non-observance may result in social sanctions, the disobedience of the latter attracts legal consequences. Irrespective, since the same was not a moot question before the court, the judgment simply refers to the overt act of the party to the dispute, in an attempt to decipher the empirical desire of the couple. Non-adherence with such custom had no bearing, per se, on the matrimonial wedlock, but was reflective and indicative of will of the parties. Not following a custom or not allowing someone else to follow the same, ipso facto, does not translate into legal cruelty under matrimonial laws.
Legal cruelty in a matrimonial home is the creation of such circumstances, by either or both party/s, which makes it absolutely impossible for the other party to cohabit. Thus, constantly nagging the other spouse to follow or not follow a particular ritual or custom can amount to mental and legal cruelty, depending on the factual matrix of each case.[11] Even in such cases, it is the act of consistent, grave and weighty interference that may amount to legal cruelty and NOT the observance or non-observance of a particular custom. To hold that an act amounts to legal cruelty, each case is considered individually as there is no conduct which can be said always to amount to legal cruelty.[12]
What the Court has, in fact and in law, held as legal cruelty in this present case is the act of lodging unsubstantiated FIR under Section 498-A IPC; clean acquittal of the appellant husband. The Court has placed reliance on the decision of the Supreme Court in Rani Narasimha Sastry v. Rani Suneela Rani[13], wherein it was held that filing of frivolous criminal cases like case under Section 498-A IPC, etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by wife.
Another aspect considered by the Court in granting divorce to the appellant husband was that the Family Court completely ignored that the respondent compelled and prevented the appellant from performing his statutory duties towards his aged mother under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007[14]. Such evidence is sufficient to construe an act of cruelty as the non-compliance/non-adherence to the provisions of the 2007 Act has criminal consequences leading to punishment or imprisonment as well as fine.
The decision of the High Court was challenged in a review petition, apparently based on such media reports, on inter alia the ground that, “not wearing or refusal to wear ‘sindoor’ by wife cannot constitute cruelty so as to justify dissolving the marriage.”[15] The review petition was dismissed and the Court held that the act of the wife and her statement on oath, about the sindoor, only demonstrates her unwillingness to remain in the wedlock and it would be considered as an incident of cruelty, however might not be sufficient in itself, and in isolation as a ground of cruelty for grant of divorce. The Court also points out and observes that, the review application has been argued as if this was the only ground considered by the Court for dissolving the marriage, however as explained hereinabove it is not so. The Court granted divorce in the instant case on settled legal principles as opposed to some dogmatic cultural ideals, which have been attempted to be projected. Ironically, there was no reporting about the dismissal of the review petition nor did any of the legal reporters found it right to acknowledge their misreporting in the first instance.
It is disheartening to see such news reports in an era where the press is considered as the fourth pillar of democracy. The news reports suggest that courts still consider such customs and practices as unshakable norms and any deviation therefrom is frowned upon which is diametrically opposed to the sentiments expressed by the judiciary. The Bombay High Court, while deciding a matrimonial appeal, highlights and observes that, in 21st century, a man would not be entitled to seek a divorce solely on the grounds that his wife does not cover head with the pallu or sometimes removes mangalsutra and sindoor.[16] In contemporary times, courts are proactive to eliminate any obsolete and redundant practices which reek of high-handedness and try to achieve parity between the sexes.
As a word of caution, it is felt necessary that before a decision is reported, much restraint be exercised to avoid mischief; judgments having force of law. It is not a matter to be lightly inferred. The present case had so many facts which have been overlooked while creating headlines resulting in misleading and incomplete communication.
In a growing democracy like ours, the press should be mindful of the way they present a news item, specially a judgment of the highest court of law in a State. Projecting the courts as orthodox and opinionated only results in people loosing faith in the judicial institution. It is hoped that the news reporters will be mindful of their cardinal duty of reporting unbiased facts while engineering sensational headlines in the future.
† Junior Research Fellow, Faculty of Law, University of Allahabad, former Law Clerk-cum-Research Assistant, Supreme Court of India. Author can be reached at bhavna1988@gmail.com.
[1] Vermillion.
[2] A conch shell bangle.
[3] Available at <https://economictimes.indiatimes.com/news/politics–and–nation/gauhati–high–court–grants–divorce–to–man–after–woman–refuses–to–wear–sindoor–shaka/articleshow/76705018.cms>.
[4] Available at <https://thewire.in/law/gauhati–hc–grants–divorce–for–womans–refusal–to–wear–sindoor–shaka>.
[5] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.
[6] Penal Code, 1860, S. 498-A.
[7] Penal Code, 1860, Ss. 471 and 420.
[8] Criminal Procedure Code, 1973, S. 125.
[9] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.
[10] Bhaskar Das v. Renu Das, 2020 SCC OnLine Gau 2954.
[11] Boparai, Harinder, “The Expansion of Matrimonial Cruelty”, 23 JILI 87 (1981), available at <http://14.139.60.114:8080/jspui/handle/123456789/16723> (last visited on 11-10-2020).
[12] Boparai, Harinder, “The Expansion of Matrimonial Cruelty”, 23 JILI 87 (1981), available at <http://14.139.60.114:8080/jspui/handle/123456789/16723> (last visited on 11-10-2020) at 57.
[14] Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
