Escolar Documentos
Profissional Documentos
Cultura Documentos
VERY USEFUL
JUDGMENTS
ON
DIVORCE
IN INDIA
COMPILED BY
A P RANDHIR
B.COM, LL.M.
1. INTRODUCTION
India is a country, which believed in a union of Husband and wife for 7
births or eternal. So based on the Indissolubility theory of marriage, the
union of the husband and wife was unbreakable tie. It is a union of bone
with bone and flesh with flesh. It is eternal. The relations of the spouses
did not matter, because even if they were unhappy, they have to live
and die with it. This theory was of the Shastric Hindu Law. However,
the drastic change in the society has seen a sea change in the concept of
marriage and divorce.
These statutes have made provisions for divorce and same is well
accepted by the Indian Society. To facilitate the spouses who do not
intend to continue their marital tie, based on the religion they practice
or the SMA, there are various laws that individuals may follow to get
their marriage dissolved. There are applicable marriage and divorce
laws. The theories of divorce are basically a “fault theory” that is
developed on the basis of the grounds of judicial separation and divorce
that are formulated in section 13(1) of the Hindu Marriage Amendment
Act, 1976. The new evolution of a special kind is the modern theory of
divorce like “Mutual Consent”. Divorce by mutual consent has been
incorporated into the law. Yet there is one more theory called
“breakdown theory or the irretrievable breakdown theory”, which is
reflected in some grounds, when there is failure to resume cohabitation
within one year getting the degree of restitution of conjugal rights and
failure to resume cohabitation within one year after getting the degree
of judicial separation. These two grounds are stated in section 13(1) (a)
and section 13(1) (b) of the Marriage Law Amendment Act, 1976. The
Hindu Marriage Act, 1955 with its amendment in 1976 laid down nine
grounds, based on guilt theory of divorce.
2. THE HINDU MARRIAGE ACT, 1955 NINE GROUNDS, BASED
ON GUILT THEORY OF DIVORCE. –
a) Adultery
b) Cruelty
c) Desertion
d) Conversion to a nonHindu religion
e) Incurable insanity or mental disorder
f) Virulent and incurable leprosy
g) Venereal disease in communicable form
h) Taking to sanyasa (i.e. renunciation of world by entering into a holy
order) and
i) Presumption of death.
In addition to these common grounds, the additional four grounds
on which wife alone can sue for divorce. The Special Marriage Act, 1954
as amended by the Marriage Laws (Amendment) Act, 1976 recognizes
eight grounds based on guilt on which either party may seek divorce
and two additional grounds on which wife alone may seek divorce viz,
rape, sodomy or bestiality of the husband. The eight grounds are:
adultery; desertion for at least three years; respondent undergoing a
sentence of imprisonment for seven years or more for an offence under
the Indian Penal Code, 1860; cruelty; venereal disease in a
communicable form, leprosy (only if the disease was not contracted by
the respondent). The careful analysis of Section 13 shows that; there are
in all fifteen grounds for divorce.
3. ONFAULT LIABILITY THEORY OF DIVORCE
A look at the provisions of the Hindu Marriage Act, 1955 reveals that
most of the grounds under subsections (1) and (2) of section 13 are
based on fault or guilt theory of divorce. According to this theory a
marriage can be dissolved only if one of the parties to marriage has
committed some matrimonial offence recognized as a ground for divorce.
A law of divorce based mainly on fault is inadequate to deal with a
broken marriage. Under the fault theory, guilt has to be proved; divorce
courts are open with concrete instances of human behaviour as to bring
the institution of marriage into disrepute. Once a marriage has broken
down beyond repair, it would be unrealistic for the law not to take note
of that fact, as it would be harmful to society and injurious to the
interest of the parties. There is also a provision for obtaining divorce by
Mutual consent under section 13B and section 14, which is based on
the consent theory of divorce.
Darshan Gupta v. Radhika Gupta 2013 Indlaw SC 383 Held : that
theory. It is only commission of matrimonial offence by one spouse that
Hindu Marriage Act, 1955, is founded. In case the ground for seeking
matrimonial relief (divorce or judicial separation) is adultery, the
petitioner must show that he is in no way accessory to the respondent‘s
adultery, and that he did not connive at the adultery of the respondent.
4. THESE GROUNDS WILL FALL INTO THE FOLLOWING
THREE DIVISIONS:
Under the Hindu Marriage Act, 1955 cruelty is a ground for divorce as
well as judicial separation. However, the term ‘cruelty’ is not defined in
the Hindu Marriage Act, 1955. It is through decided cases that the term
has been understood to mean acts of physical as well as mental cruelty.
5.2 Types of Cruelty
Cruelty can be categorised on the basis of two parameters i.e. form in
which it is inflicted and the relationship in which it is inflicted. The
types of cruelty are as follow:
1) Physical and mental cruelty
2) Matrimonial cruelty and cruelty in other relationships
5.3 Physical and mental cruelty
We have already discussed that time and again courts have widened the
scope of term cruelty as it is used in relation to women. Now it is the
settled position of law that cruelty will not only include any physical
harm caused to the women but also any other act which causes mental
and emotional agony. Cruelty may be subtle or brutal; by words,
gestures or by mere silence. It may also be physical or mental. Under all
the Indian matrimonial statues, cruelty can be interpreted with same
meaning. The formulation of cruelty can be made thus: “Cruelty is a
conduct of such a character as to have cause danger to life or health,
bodily or mental, give rise to reasonable apprehension of such danger.”
On the basis of nature of injury inflicted, broadly, cruelty is divided in
two categories:
(i) Physical cruelty
(ii) Mental cruelty
5.4 Physical Cruelty
Physical violence, or threat with physical violence causing an apparent
apprehension to physical violence, would amount to cruelty. In common
parlance physical violence can be defined as inflicting any kind of bodily
pain or injury. The degree of physical violence which will amount to
cruelty differs in case of matrimonial cruelty and cruelty at other
places. 'Habitual assaults' under the dissolution of Muslim Marriage
Act, 1939 is a ground of divorce. The definition of 'assault' can be found
in Sec. 351 of the Indian Penal Code. 'Causing of grievous hurt' under
the Parsi Marriage and Divorce Act, 1936, is a ground of divorce. The
definition of 'grievous hurt' under the Act is substantially taken from
Sec. 320 of the Indian Penal Code. Beating of wife is the usual act of
physical cruelty .
5.5 Mental Cruelty
through judicial precedents only and some of the judicially recognized
forms of mental cruelty are as under:
5.6 FORMS OF MENTAL CRUELTY
i. False accusation of adultery or unchastity.
ii. Refusal to have marital intercourse.
iii. Undue familiarity with a person of opposite sex.
iv. False charge of impotency.
v. Neglectful conduct and deliberately harassing, indignity and
indifference.
vi. Drunkenness.
vii. False criminal charges.
viii. Deprivation of property.
ix. Threat to commit suicide.
x. Forcing wife to prostitution.
xi. Sexual perversion.
xii. Termination of pregnancy without consent of husband.
xiii. False scandalous, Malicious, baseless charge.
xiv. Reprehensible conduct.
xv. Communication of disease.
5.7 LEGAL PROPOSITION ON THE ASPECT OF CRUELTY
It is settled by catena of decisions that mental cruelty can cause even
more serious injury than the physical harm and create in the mind of
the injured appellant such apprehension as is contemplated in the
Section. It is to be determined on whole facts of the case and the
matrimonial relations between the spouses. To amount to cruelty, there
must be such wilful treatment of the party which caused suffering in
body or mind either as an actual fact or by way of apprehension in such
a manner as to render the continued living together of spouses harmful
or injurious having regard to the circumstances of the case.
The word ‘cruelty’ has not been defined and it has been used in relation
to human conduct or human behaviour. It is the conduct in relation to
or in respect of matrimonial duties and obligations. It is a course of
conduct and one which is adversely affecting the other. The cruelty may
be mental or physical, intentional or unintentional. There may be cases
where the conduct complained of itself is bad enough and per se
unlawful or illegal. Then the impact or the injurious effect on the other
spouse need not be enquired into or considered. In such cases, the
cruelty will be established if the conduct itself is proved or admitted.
The cruelty alleged may largely depend upon the type of life the parties
are accustomed to or their economic and social conditions, their culture
and human values to which they attach importance. Judged by
standard of modern civilization in the background of the cultural
heritage and traditions of our society, a young and well educated
woman like the appellant herein is not expected to endure the
harassment in domestic life whether mental, physical, intentional or
unintentional. Her sentiments have to be respected, her ambition and
aspiration taken into account in making adjustment and her basic
needs provided, though grievances arising from temperamental
disharmony. This view was taken by the Kerala High Court in the case
reported in AIR 1991 Kerala 1. In 1993 (2) Hindu L.R. 637, the Court
had gone to the further extent of observing as follows: “Sometime even a
gesture, the angry look, a sugar coated joke, an ironic overlook may be
more cruel than actual beating” Each case depends on its own facts and
must be judged on these facts. The concept of cruelty has varied from
time to time, from place to place and from individual to individual in its
application according to social status of the persons involved and their
economic conditions and other matters. The question whether the act
complained of was a cruel act is to be determined from the whole facts
and the matrimonial relations between the parties. In this connection,
the culture, temperament and status in life and many other things are
the factors which have to be considered.
The legal concept of cruelty which is not defined by statute is
generally described as conduct of such character as to have caused
danger to life, limb or health (bodily and mental) or to give rise to
reasonable apprehension of such danger. The general rule in all
question of cruelty is that the whole matrimonial relations must be
considered, that rule is of a special value when the cruelty consists not
of violent act but of injurious reproaches, complains accusations or
taunts. It may be mental such as indifference and frigidity towards
wife, denial of a company to her, hatred and abhorrence for wife or
physical, like acts of violence and abstinence from sexual intercourse
without reasonable cause. It must be proved that one partner in the
marriage however mindless of the consequences has behaved in a way
which the other spouse could not in the circumstances be called upon to
endure, and that misconduct has caused injury to health or a
reasonable apprehension of such injury. There are two sides to be
considered in case of cruelty. From the appellant’s side, ought this
appellant to be called on to endure the conduct? From the respondent’s
side, was this conduct excusable? The court has then to decide whether
the sum total of the reprehensible conduct was cruel. That depends on
whether the cumulative conduct was sufficiently serious to say that
from a reasonable person’s point of view after a consideration of any
excuse which the respondent might have in the circumstances, the
conduct is such that the petitioner ought not be called upon to endure.
Bhagat v. D. Bhagat (1994) 1 SCC 337 as under:
"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. The situation
must be such that the wronged party cannot reasonably be asked to put
up with such conduct and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such as to cause injury to
the health of the petitioner. While arriving at such conclusion, regard
must be had to the social status, educational level of the parties, the
society they move in, the possibility or otherwise of the parties ever
living together in case they are already living apart and all other
relevant facts and circumstances which it is neither possible nor
desirable to set out exhaustively. 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"
5.9 A. Jayachandra v. Aneel Kaur (2005)2 SCC 22
The Apex Court held that for physical cruelty there can be
tangible and direct evidence but in mental cruelty there may not be
direct evidence. When there is no direct evidence, courts are required to
probe into the mental process and mental effect of incidence that are
brought out in evidence.
5.10 Vinitha Saxena v. Pankaj Pandit 2006)3 SCC 778
The Supreme Court held that what constitutes mental cruelty will
not depend upon the numerical count of such incidents or only on the
continuous course of such conduct, but really go by the intensity,
gravity and stigmatic impact of it when meted out even once and
deleterious effect of it in the mental attitude, necessary for maintaining
a conducive matrimonial home.
5.10 Samar Ghosh v. Jaya Ghosh (2007)4 SCC 511
The Supreme Court observed that no uniform standard can be laid
down for guidance with regard to mental cruelty. The married life
should be reviewed as a whole and a few isolated instances over a
period of years will not amount to cruelty. The ill conduct must be
persistent for a lengthy period, where relationship has deteriorated to
an extent that, the wronged party finds it extremely difficult to live
with other party any longer.
5.11 Naveen Kohli v. Neelu Kholi (2006)4 SCC 558
The Supreme Court held that Public Interest demands not only that the
married status should as far as possible, as long as possible and
SCC 105 held that:
a. Cruelty may be mental or physical, intentional or unintentional. If it
is physical, it will be easy for the court to determine it. If it is mental,
the problem presents difficulty. It is a matter of inference to be drawn
by taking into account the nature of the conduct and its effects on the
complaining spouse. There may be occasions where the conduct itself is
bad enough and it amounts to cruelty; in such cases the impact of such
conduct need not be considered.
b. There has been a marked change in the life around us. The courts
may be different. New types of cruelty may crop up in new cases. The
conduct which is complained of as cruelty by one spouse may not be so,
for the other spouse. Intention is not a necessary element in cruelty.
6. LANDMARK JUDGMENTS ON DIVORCE.
1. Shayara Bano V. Union of India 2017 (5) Supreme 577
Divorce – Triple Talaq –Constitutionality and legal sanctity – This
form of Talaq is manifestly arbitrary in the sense that marital tie can be
broken capriciously and whimsically by a Muslim man without any
attempt at reconciliation so as to save it – This form of Talaq must be
held to be violative of fundamental right contained under Art. 14 of
Constitution of India. Advocate, appeared on behalf of respondent no.11
(in Writ Petition (C) No.118 of 2016) Dr. Noorjehan Safia Niaz, who
was impleaded as such, by an order dated 29.6.2016. It was submitted
by learned counsel, that talaqebiddat‘ was a mode of divorce that
operated instantaneously. It was contended, that the practice of talaqe
biddat‘, was absolutely invalid even in terms of Muslim personal law‘ –
Shariat‘. It was submitted, that it was not required of this Court to
strike down the practice of talaqebiddat‘, it was submitted, that it
would suffice if this Court merely upholds the order passed by the Delhi
High Court in the Masroor Ahmed case, by giving a meaningful
interpretation to talaqebiddat‘, which would be in consonance with
the verses of the Quran and the relevant hadiths‘. It was also asserted
by learned counsel, that Islam from its very inception recognized rights
of women, which were not available to women of othercommunities. It
was pointed out, that the right of divorce was conferred on Muslim
women, far before this right was conferred on women belonging to other
communities. It was asserted, that even in the 7 th century, Islam
granted women the right of divorce and remarriage. The aforesaid legal
right, according to learned counsel, was recognized by the British, when
it promulgated the Shariat Act in 1937. It was submitted, that through
2. Sukhendu Das V. Rita Mukherjee 2017 (8) Supreme 33 Special
Marriage Act: Sec. 27, r/w Article 142, Constitution of India.
Sec. 28 Contempt of Court Act, 1971 –Section 2(b).
Dispute in the family having arisen after a compromise Parties have
prayed for divorce by mutual consent This Court dissolves the
marriage by a decree of divorce by consent In case the parties have nay
grievances with regard to the working of the terms of settlement, they
shall mention in only before this Court and shall not take any other
recourse before any other forum In this case, court is of the view that
there is no point in relegating the parties to any other forum for a
decree of divorce by mutual consent under the Special Marriage Act,
1954. Contextually, we may also note that the parties have already filed
a petition under Section 28 of the Special Marriage Act, 1954 before the
Principal Judge, Family Court, Patiala House, New Delhi. Accordingly,
Interlocutory Application No. 73033 of 2017 is allowed. The marriage
between Ms. Jasmine Charaniya and Mr. Ahmed Charaniya is dissolved
by a decree of divorce by consent. Since the terms of settlement have
been reduced in the application, the application shall form part of this
Order. In case the parties have any grievances with regard to the
working of the terms of settlement, we make it clear that they shall
mention it only before this Court and shall not take any other recourse
before any other forum.
4. Narendra V. K. Meena, AIR 2016 SC 4599 (Karnataka) Hindu
Marriage Act Section 13(1)(ia)—Divorce.
normal in Indian culture and ethos. There is no other reason for which
the Respondent wanted the Appellant to be separated from the family
the sole reason was to enjoy the income of the Appellant. Unfortunately,
the High Court considered this to be a justifiable reason. In the opinion
of the High Court, the wife had a legitimate expectation to see that the
income of her husband is used for her and not for the family members of
the Respondent husband. Court do not see any reason to justify the said
view of the High Court. As stated hereinabove, in a Hindu society, it is a
pious obligation of the son to maintain the parents. If a wife makes an
attempt to deviate from the normal practice and normal custom of the
society, she must have some justifiable reason for that and in this case,
Court do not find any justifiable reason, except monetary consideration
of the Respondent wife. In our opinion, normally, no husband would
tolerate this and no son would like to be separated from his old parents
and other family members, who are also dependent upon his income.
The persistent effort of the Respondent wife to constrain the Appellant
to be separated from the family would be torturous for the husband
andin our opinion, the trial Court was right when it came to the
conclusion that this constitutes an act of cruelty‘.
5. MANISH GOEL versus ROHINI GOEL (Special Leave Petition
Justice Aftab Alam and Hon’ble Mr. Justice B.S. Chauhan, JJ.)
2010 (2) SCR 414
The statutory period of six months for filing the second petition
under Section 13B(2) of the Act has been prescribed for providing an
opportunity to parties to reconcile and withdraw petition for dissolution
of marriage. Learned counsel for the petitioner is not able to advance
arguments on the issue as to whether, statutory period prescribed
under Section 13B(1)of the Act is mandatory or directory and if
directory, whether could be dispensed with even by the High Court in
exercise of its writ/appellate jurisdiction.
Thus, this is not a case where there has been any obstruction to the
stream of justice or there has been injustice to the parties, which is
required to be eradicated, and this Court may grant equitable relief.
Petition does not raise any question of general public importance. None
of contingencies, which may require this Court to exercise its
extraordinary jurisdiction under Article 142 of the Constitution, has
been brought to our notice in the case at hand.
6. Dr. (Mrs.) Malathi Ravi, M.D. Versus Dr. B.V. Ravi, M.D. CIVIL
Mukhopadhaya & Hon’ble Mr. Justice Dipak Misra, JJ.)
Marriage as a social institution is an affirmance of civilized social order
where two individuals, capable of entering into wedlock, have pledged
themselves to the institutional norms and values and promised to each
other a cemented bond to sustain and maintain the marital obligation.
It stands as an embodiment for continuance of the human race. Despite
No. 6582 of 2008 Arising out of Special Leave Petition (Civil) No.
Hon’ble Mr. Justice D.K. Jain, JJ.)
“Mere coldness or lack of affection cannot amount to cruelty; frequent
rudeness of language, petulance of manner, indifference and neglect
may reach such a degree that it makes the married life for the other
spouse absolutely intolerable.”
In the instant case, Suman Kapur was aggrieved at the decree of
divorce granted against her by a trial court and confirmed by the Delhi
High Court. Both courts gave a finding that her three abortions without
the knowledge and consent of her husband, Sudhir Kapur, was a valid
ground for divorce. Disposing of the appeal, the Bench noted that
Sudhir Kapur got remarried on March 5, 2007 before the expiry of the
period of 90 days for filing appeal before this court and a child was born
from the second marriage. “Since, we are confirming the decree of
divorce on the ground of mental cruelty as held by both courts, i.e. the
trial court as well as the High Court, no relief can be granted so far as
the reversal of decree of the courts below is concerned. At the same
time, however, in our opinion, the respondent husband should not have
remarried before the expiry of period stipulated for filing appeal. Ends
of justice would be met if we direct the respondent to pay Rs. 5 lakh to
the appellant.”
8. Naveen Kohli vs Neelu Kohli , (2006) 4 SCC 558 (Before
Mathur & Hon’ble Mr. Justice Dalveer Bhandari, JJ.)
It was held that the marriage had been wrecked beyond any hope
of salvation, the court held that public interest and the interests of all
concerned lay in the recognition, in law, of this fact. That even though
the wife was not agreeable to a divorce by mutual consent and seemed
to have resolved to live in agony only to make the life of her husband a
miserable hell, public interest lay in the dissolution of the marriage
bond. Keeping a sham of a marriage alive in law was held to be more
conducive to immorality and potentially more prejudicial to the public
interest than the dissolution of marriage. Not granting a divorce under
such circumstances was held to be disastrous for the parties. The
granting of divorce would offer them the chance, both psychologically
and emotionally, to settle down after a while and start a new chapter in
life. The Supreme Court directed that the marriage between Naveen
andNeelu Kohli be dissolved, subject to the husband giving Rs 25 lakh
to the wife as permanent maintenance.
9. Durga Prasanna Tripathy vs Arundhati (2005) 7 SCC 353
A.R. Lakshmanan, JJ.)
of such breakdown of marriage the marriage between the parties has
been rendered a complete deadwood. Learned counsel for the appellant
argued that no useful purpose will be served by keeping such a
marriage alive on paper, which would only aggravate the agony of the
parties. Therefore, he would pray that in the fitness of things and in the
interest of justice, the marriage between the parties is forthwith
terminated by a decree of divorce. We have perused the orders passed
by the Family Court and also of the High Court. Both the Family Court
as well as the High Court made efforts to bring about a
reconciliation/rapprochement between the parties. The Family Court in
this regard gave a clear finding that in spite of good deal of endeavour
to effect a reconciliation the same could not be effected because of the
insistence of the respondent to remain separately from her inlaws. It
was totally an impracticable solution.
In our view that 14 years have elapsed since the appellant and the
respondent have been separated and there is no possibility of the
appellant and the respondent resuming the normal marital life even
though the respondent is willing to join her husband. There has been an
irretrievable breakdown of marriage between the appellant the
respondent. Both parties have crossed the point of no return. A
workable solution is certainly not possible. Parties cannot at this stage
reconcile themselves and live together forgetting their past as a bad
dream. We, therefore, have no other option except to allow the appeal
and set aside the judgment of the High Court and affirming the order of
the Family Court granting decree for divorce. The Family Court has
directed the appellant to pay a sum of Rs. 50,000/ towards permanent
alimony to the respondent and pursuant to such direction the appellant
had deposited the amount by way of bank draft. Considering the status
of parties and the economic condition of the appellant who is facing
criminal prosecution and out of job and also considering the status of
the wife who is employed, we feel that a further sum of Rs. 1 lakh by
way of permanent alimony would meet the ends of justice. This shall be
paid by the appellant within 3 months from today by an account payee
demand draft drawn in favour of the respondent Arundhati Tripathy
and the dissolution shall come into effect when the demand draft is
drawn and furnished to the respondent.
10. Vinita Saxena vs Pankaj Pandit (2006) 3 SCC 778 (Before
Hon’ble Mrs. Justice Ruma Pal & Hon’ble Mr. Justice A.R.
Lakshmanan, JJ.)
As to what constitute the required mental cruelty for purposes of
the said provision, will not depend upon the numerical count of such
incidents or only on the continuous course of such conduct but really go
by the intensity, gravity and stigmatic impact of it when meted out even
once and the deleterious effect of it on the mental attitude, necessary for
maintaining a conducive matrimonial home.
If the taunts, complaints and reproaches are of ordinary nature
only, the court perhaps need consider the further question as to
whether their continuance or persistence over a period of time render,
what normally would, otherwise, not be so serious an act to be so
injurious and painful as to make the spouse charged with them
genuinely and reasonably conclude that the maintenance of
matrimonial home is not possible any longer.
Pasayat & Hon’ble Mr. Justice C.K. Thakker, JJ.)
12. Parveen Mehta vs Inderjit Mehta (2002) 5 SCC 296 (Before
Brijesh Kumar, JJ.)
What is the meaning and import of the expression ‘cruelty’ as a
matrimonial offence is the core questionn on the determination of which
depends the result and the fate of this case. We find is that right from
the beginning the matrimonial relationship between the parties was not
normal; the spouses stayed together at the matrimonial home for a
short period of about six months; the respondent had been trying to
persuade the appellant and her parents to agree to go for proper
medical treatment to improve her health so that the parties may lead a
normal sexual life; all such attempts proved futile. The appellant even
refused to subject herself to medical test as advised by the doctor. After
21st June, 1987 she stayed away from the matrimonial home and the
respondent was deprived of her company. In such circumstances, the
respondent who was enjoying normal health was likely to feel a sense of
anguish and frustration in being deprived of normal cohabitation that
every married person expects to enjoy and also social embarrassment
due to the behavior of the appellant. Further, the conduct of the
appellant in approaching the police complaining against her husband
and his parents and in not accepting the advice of the superior judicial
officer Mr.S.K.Jain and taking a false plea in the case that she had
conceived but unfortunately there was miscarriage are bound to cause a
sense of mental depression in the respondent. The cumulative effect of
all these on the mind of the respondent, in our considered view,
amounts to mental cruelty caused due to the stubborn attitude and
inexplicably unreasonable conduct of the appellant.
(Before Hon’ble Mr. Justice R.P. Sethi & Hon’ble Mr. Justice
Y.K. Sabharwal, JJ.)
Treating the petitioner with cruelty is a ground for divorce under
Section 13(1)(ia) of the Act. Cruelty has not been defined under the Act
but in relation to matrimonial matters it is contemplated as a conduct of
such type which endangers the living of the petitioner with the
respondent. Cruelty consists of acts which are dangerous to life, limb or
health.
Cruelty for the purpose of the Act means where one spouse has so
treated the other and manifested such feelings towards her or him as to
have inflicted bodily injury, or to have caused reasonable apprehension
of bodily injury, suffering or to have injured health. Cruelty may be
physical or mental. Mental cruelty is the conductof other spouse which
causes mental suffering or fear to the matrimonial life of the other.
“Cruelty”, therefore, postulates a treatment of the petitioner with such
cruelty as to cause a reasonable apprehension in his or her mind that it
would be harmful or injurious for the petitioner to live with the other
party. Cruelty, however, has to be distinguished from the ordinary wear
and tear of family life. It cannot be decided on the basis of the
sensitivity of the petitioner and has to be adjudged on the basis of the
course of conduct which would, in general, be dangerous for a spouse to
live with the other. In the instant case both the trial court as well as the
High Court have found on facts that the wife had failed to prove the
allegations of cruelty attributed to the respondent Desertion”, for the
purpose of seeking divorce under the Act, means the intentional
permanent forsaking and abandonment of one spouse by the other
without that other’s consent and without reasonable cause. In other
words it is a total repudiation of the obligations of marriage. Desertion
is not the withdrawal from a place but from a state of things. Desertion,
therefore, means withdrawing from the matrimonial obligations, i.e.,
not permitting or allowing and facilitating the cohabitation between the
parties. The proof of desertion has to be considered by taking into
consideration the concept of marriage which in law legalises the sexual
relationship between man and woman in the society for the
perpetuation of race, permitting lawful indulgence in passion to prevent
licentiousness and for procreation of children. Desertion is not a single
act complete in itself, it is a continuous course of conduct to be
determined under the facts and circumstances of each case. After
referring to host of authorities and the views of various authors, this
1957 SC 176] held that if a spouse abandons the other in a state of
14. G.V.N. Kameswara Rao vs G. Jabilli (2002) 2 SCC 296 (Before
Hon’ble Mr. Justice D.P. Mohapatra & Hon’ble Mr. Justice K.G.
Balakrishnan, JJ.)
The husband who had been unsuccessfully fighting litigation for
the past more than 15 years for snapping his marital ties with the
respondent wife is the appellant before us. various incidents brought
out in the evidence would show that the relationship between the
parties was irretrievably broken, and because of the noncooperation
and the hostile attitude of the respondent, the appellant was subjected
to serious traumatic experience which can safely be termed as ‘cruelty’
coming within the purview of Section 13(1)(ia) of the Hindu Marriage
Act. Therefore, we hold that the appellant is entitled to the decree for
dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage
Act.
Under Section 13(1) (ia) of the Hindu Marriage Act, on a petition
presented either by the husband or wife, the marriage could be
dissolved by a decree of divorce on the ground that the other party has,
after the solemnization of the marriage, treated the petitioner with
cruelty. ‘Cruelty’ is not defined in the Act. Some of the provisions of the
Hindu Marriage Act were amended by Hindu Marriage Laws
(Amendment) Act, 1976. Prior to the amendment, ‘cruelty’ was one of
the grounds for judicial separation under Section 10 of the Act. Under
that Section, “cruelty” was given an extended meaning by using an
adjectival phrase, viz. “as to cause reasonable apprehension in the mind
of the petitioner that it will be harmful or injurious for the petitioner to
live with the other party”. By the Amendment Act of 1976, “cruelty” was
made one of the grounds for divorce under Section 13. The omission of
the words, which described ‘cruelty’ in the unamended Section 10 of the
Hindu Marriage Act, has some significance in the sense that it is not
necessary to prove that the nature of the cruelty is such as to cause
reasonable apprehension in the mind of the petitioner that it would be
harmful for the petitioner to live with the other party. English Courts in
some of the earlier decisions had attempted to define “cruelty” as an act
which involves conduct of such a nature as to have caused damage to
life, limb or health or to give rise to reasonable apprehension of such
danger. But we do not think that such a degree of cruelty is required to
be proved by the petitioner for obtaining a decree for divorce. Cruelty
can be said to be an act committed with the intention to cause
sufferings to the opposite party. Austerity of temper, rudeness of
language, occasional outburst of anger, may not amount to cruelty,
though it may amount to misconduct. “The 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. The situation must be such that the wronged
party cannot reasonably be asked to put up with such conduct and
continue to live with the other party.
It is not necessary to prove that the mental cruelty is such as to
cause injury to the health of the petitioner. While arriving at such
conclusion, regard must be had to the social status, educational level of
the parties, the society they move in, the possibility or otherwise of the
parties ever living together in case they are already living apart and all
other relevant facts and circumstances which it is neither possible nor
desirable to set out exhaustively. 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
KUSUMKUMARI JADEJA AND ANR. 1991 SCR (1) 193 1991 SCC
(1) 582 JT 1991 (1) 278 1991 SCALE (1)103 (Before Hon’ble Mr.
Justice L.M. Sharma & Hon’ble Mr. Justice M.M. Punchhi, JJ.)
Hindu Marriage Act, 1955: Section IIPetition to declare marriage
a nullityWhether maintainable after death of petitioner’s spouse.
Practice and Procedure: Proceedings involving issues relating to marital
statusQuestion dependent upon nature of action and the law governing
the sameProvisions of the relevant statute very material.
It was contended on behalf of the appellants that having regard to
the very special relationship between husband and wife,a marriage
cannot be dissolved or declared to be a nullity unless both of them are
parties thereto. The martial status of a person sands on a much higher
footing than other positions one may hold in the society and cannot be
allowed to be challenged lightly,and that the marriage of a person,
therefore, cannot be declared as nullity after his death when he does no
have an opportunity to contest. Reliance was placed upon the language
of Section 11 of the Hindu Marriage Act. On behalf of the respondent, it
was pointed out that having regard to the language of Section 16 of the
Hindu Marriage Act as it it stood before its amendment in 1976,he
children born of the respondent would not have been entitled to the
benefit of the section in absence of a decree declaring the marriage of
their parents as nullity, and this was precisely the reason that the
respondent had to commence the present litigation On the question:
whether a petition under Section 11 of the Hindu Marriage Act, 1955
for declaring the marriage of the petitioner as a nullity is maintainable
after the death of the petitioner’s spouse.
Dismissing the appeal, this Court, HELD: An application under
Section11 of the Hindu Marriage Act, 1955 before its amendment in
1976, was maintainable at the instance of a party to the marriage even
after the death of the other spouse.
In the instant case, the proceeding was started in 1974 that is, before
the amendment was made in the Hindu Marriage Act,1955. Section II
did not contain the words “against the other party”. At that time all
that was required was that the application had to be filed by a party to
the marriage under challenge. On the plain language of the section as it
stood then,it could not be claimed that in absence of the other spouse as
a party to the proceedings, the same would not be maintainable. By the
amendment in section 11, in so far the cases where marriage can be
declared as nullity, the application of the rule protecting the legitimacy
was widened. If that had not been,the children born of such marriages
would have been deprived of the advantage on the death of either of the
parents. The intention of the legislature in enacting section 16 was to
protect the legitimacy of the children who would have been legitimate if
the Act had not been passed in 1955. There is no reason to interpret
section 11 in a manner which would narrow down its field. With respect
to the nature of the proceedings, what the court has to do in an
application under section 11 is not to bring about any change in the
marital status of the parties. The effect of granting a decree of nullity is
to discover the flow in the marriage at the time of its performance and
accordingly to grant a decree declaring it to be void.
16.DHARMENDRA KUMAR Vs. USHA KUMAR 1977 AIR 2218 ,
1978 SCR (1) 315, 1977 SCC (4) 12 (Before Hon’ble Mr. Justice
A.C. Gupta & Hon’ble Mr. Justice Syed Murtaza Fazalali, JJ.)
can be obtained for absence of restitution of conjugal rights after decree
for restitution is granted by a person who refuses to have restitution
Whether such a conduct amounts to a wrong within the meaning of sec.
23 (1) (a) of the Act. The respondentwife was granted a decree for
restitution of conjugal rights on her application under s. 9 of Hindu
Marriage Act, 1955 by Additional Senior SubJudge, Delhi the
respondent presented a petition under s. 13(1A) (ii) of the Act in the
Court of Additional District Judge, Delhi for dissolution of the marriage
by a decree of divorcestating therein that there bad been no restitution
of conjugal rights between the parties after the passing of the decree for
restitution of conjugal rights. The appellanthusband, in his written
statement admitted that there had been no restitution of conjugal
rights, between the parties after the passing of the decree in earlier
proceedings, but stated that he made attempts to comply with the
decree dated 27th August 77. by writing several registered letters
inviting the respondent to live with him to which, according to him she
never replied. The husband contended that she herself prevented the
restitution of conjugal rights and was making a capital out of her own
wrong which she was not entitled to do. Section 13 as it stood before the
1964 amendment permitted only the spouse who had obtained the
decree for restitution of conjugal rights to apply for relief by way of
divorce. The party against whom the decree was passed was not given
that right. The relief which is available to the spouse against whom a
decree for restitution of conjugal rights has been passed cannot
reasonably be denied to the one who does not insist on compliance with
the decree passed in his or her favour. In order to be a “wrong” within
the meaning of s. 23(1)(a) the conduct alleged has to be something more
than a mere disinclination to agree to an offer of reunion, it must be
misconduct serious enough to justify denial of the relief to which the
husband or the wife is otherwise entitled. Mere noncompliance with a
decree for restitution does not constitute wrong within the meaning of
section 23(1)(a).
DASTANE 1975 AIR 1534 1975 SCR (3) 967 1975 SCC (2) 326
Justice P.K. Goswami & Hon’ble Mr. Justice N.L. Untwalia, JJ.)
Hindu Marriage ActSection 10(1)(b) and 23(1)(a)(b)Meaning of
crueltyBurden of proof in matrimonial mattersWhether beyond
reasonable doubtCondonationof cruelty—Whether sexual intercourse
amounts to condonation—Whether condonation is conditionalRevival
of cruelty.
Code of Civil ProcedureSection 100 and 103Powers of High
Court in second appeal. The appellant husband filed a petition for
annulment of marriage on the ground of fraud, for divorce on the
ground of unsoundness of mind and for judicial separation on the
ground of cruelty. The appellant and respondent possess high
educational qualifications and they were married in 1956. Two children
were born of the marriage one in 1957 and the other in 1959.
The Trial Court rejected the contention of fraud and unsoundness
of mind. It, however, held the wife guilty of cruelty and on that ground
passed a decree for judicial separation. Both sides went in appeal to the
District Court which dismissed the husband’s appeal and allowed the
wife’s. The husband then filed a Second Appeal in the High Court. The
High Court dismissed that appeal. On appeal to this Court, Neither s.10
nor s. 23 of the Hindu Marriage Act requires that the petitioner must
prove his case beyond reasonable doubt S. 23 confers on the court the
power to pass a decree if it is satisfied on the matters mentioned in
Clauses (a) to (e) of that Section. Considering that proceedings under
the Act are essentially of a civil nature the word ‘satisfied’ must mean
satisfied on a preponderance of probabilities and not satisfied beyond a
reasonable doubt. The society has a stake in the institution of marriage
and, therefore, the erring spouse is treated not as a mere defaulter but
as an offender. But this social philosophy, though it may have a bearing
on the need to have the clearest proof of an allegation before it is
accepted as a ground for the dissolution of marriage, it has no bearing
on the standard of proof in matrimonial cases. In England, a view was
at one time taken that a petitioner in a matrimonial petition must
establish his or her case beyond a reasonable doubt but the House of
Lords in Blyth v. Blyth has held that the grounds of divorce or the bars
to the divorce May be proved by a preponderance of probability.
On the question of condonation of cruelty, a specific provision of a
specific enactment has to be interpreted, namely s. 10(1) (b). The
enquiry, therefore, has to be whether the conduct charged as cruelty is
of such a character as to cause in the mind of the petitioner a
reasonable apprehension that it will be harmful or injurious for him to
live with the respondent. It is not necessary, as under the English Law,
that the cruelty must be of such a character as to cause danger to life,
limb or health or as to give rise to a reasonable apprehension of such a
danger. Acts like the tearing of the Mangal Sutra, locking out the
husband when he is due to arrive from the office, rubbing of chilly
powder on the tongue of an infant child, beating a child mercilessly
while in high fever and switching on the light at night and sitting by
the bedside of the husband merely to nag him are acts which tend to
destroy the legitimate ends and objects of matrimony. The conduct of
wile amounts to cruelty within the meaning of s. 10(1) (b) of the Act.
The threat that she would put an end to her own life or that she will set
the house on fire, the threat that she will make the husband lose his job
and have the matter published in newspapers and the persistent abuses
and insults hurled at the husband and his parents are all of so grave an
order as to ‘imperil the appellant’s sense of personal safety, mental
happiness, job satisfaction and reputation.
Equivalent citations: 1964 AIR 40, 1964 SCR (4) 331 (Before
Rajagopala Ayyangar, JJ.)
causeoffer to return to matrimonial home must be shown to be bona
fidePetition for judicial separationBurden of proofHindu Marriage
Act, 1955 (25 of 1955), s. 10(1)(a). Where an application is made under
s. 10(1)(a) of the Hindu Marriage Act, 1955, for a decree for judicial
separation on the ground of desertion, the legal burden is upon the
petitioning spouse to establish by convincing evidence beyond any
reasonable doubt that the respondent intentionally forsook and
abandoned him or her without reasonable cause. The petitioner must
also prove that there was desertion throughout the statutory period and
there was no bona fide attempt on the respondent’s part to return to the
matrimonial home and that the petitioner did not by his or her action
by word or conduct provide a just cause to the other spouse to desist
from, making any attempt at reconciliation or resuming cohabitation;
but where, however, on the facts it is clear that the conduct of the
deserted spouse has had no such effect on the mind of the deserting
spouse there is no rule of law that desertion terminates by reason of the
conduct of the deserted spouse. An offer to return to the matrimonial
home after sometime, though desertion had started, if genuine and
sincere and represented his or her true feelings and intention, would
bring to an end the desertion because thereafter the animus deserendi
would be’ lacking, though the factum of separation might continue; but
on the other hand, if the offer was not sincere and there was in reality
no intention to return, the mere fact that letters were written
expressing such an intention would not interrupt the desertion from
continuing.
In the present case, the evidence was clear that the respondent
left her matrimonial home with the permission of her husband and his
parents and that it was not possible to infer from the evidence given by
Dr. Lulla that the respondent decided to abandon the appellant. The
letters demonstrated beyond any reasonable doubt that the wife did not
demonstrated beyond band with the requisite animus, but on the other
hand, showed her willingness to go over to Bombay as soon as she
regained her health. In view of the false allegations made by the
appellant in his letter dated April 1, 1954, in which he charged the
respondent with unchastity and leading a fast and reckless life, from
that date the desertion, if any, on the part of the respondent came to an
end and from that date the appellant was guilty of desertion.
19. Bipin Chander Jaisinghbhai Shah vs Prabhawati Equivalent
Hon’ble Mr. Justice Bhuvneshwar P. Sinha, Hon’ble Mr. Justice
Aiyyar, JJ.)
HMAsection 13 divorce ground of desertion For the offence of
desertion, so far as the deserting spouse is concerned, two essential
conditions must be there, namely
(1) the factum of separation, and
(2) the intention to bring cohabitation permanently to an end (animus
deserendi).
Similarly two elements are essential so far as the deserted spouse is
concerned:
(1) the absence of consent, and
(2) absence of conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid. The
petitioner for divorce bears the burden of proving
those elements in the two spouses respectively....
Desertion is a matter of inference to be drawn from the facts and
circumstances of each case. The inference may be drawn from certain
facts which may not in another case be capable of leading to the same
inference; that is to say, the facts have to be viewed as to the purpose
which is revealed by those acts or by conduct and expression of
intention, both anterior and subsequent to the actual acts of separation.
If, in fact, there has been a separation the essential question always is
whether that act could be attributable to an animus deserendi. The
offence of desertion commences when the fact of separation and the
animus deserendi coexist. But it is not necessary that they should
commence at the same time. The de facto separation may have
commenced without the necessary animus deserendi coincide in point of
time.
20. U.Sree vs U.Srinivas CIVIL APPEAL NOS. 89278928 OF 2012
Decided on 11 December, 2012 (Before Hon’ble Mr. Justice K.S.
Radhakrishnan & Hon’ble Mr. Justice Dipak Misra, JJ.) [Arising
out of S.L.P. (Civil) Nos. 3744937450 of 2012 ( CC.58775878 of
2012)]
The human mind is extremely complex and human behaviour is
equally complicated. Similarly human ingenuity has no bound,
therefore, to assimilate the entire human behaviour in one definition is
almost impossible. What is cruelty in one case may not amount to
cruelty in the other case. The concept of cruelty differs from person to
person depending upon his upbringing, level of sensitivity, educational,
family and cultural background, financial position, social status,
customs, traditions, religious beliefs, human values and their value
system. ....the concept of mental cruelty cannot remain static; it is
bound to change with the passage of time, impact of modern culture
through print and electronic media and value system, etc. etc.
What may be mental cruelty now may not remain a mental cruelty
after a passage of time or vice versa. There can never be any
straitjacket formula or fixed parameters for determining mental cruelty
in matrimonial matters. The prudent and appropriate way to adjudicate
the case would be to evaluate it on its peculiar facts and
circumstances. ....In matrimonial relationship, cruelty would obviously
mean absence of mutual respect and understanding between the
spouses which embitters the relationship and often leads to various
outbursts of behaviour which can be termed as cruelty. Sometime
cruelty in a matrimonial relationship may take the form of violence,
sometime it may take a different form. At times, it may be just an
attitude or an approach. Silence in some situations may amount to
cruelty.
21.Vishwanat vs Sau. Sarla Vishwanath Agrawal CIVIL APPEAL
NO. 4905 OF 2012 Decided on 4 July, 2012 (Before Hon’ble Mr.
Justice Deepak Verma & Hon’ble Mr. Justice Dipak Misra, JJ.)
(Arising out of S.L.P. (Civil) No. 16528 of 2007)
value this side of the grave. It is a revenue generator for the present as
well as for the posterity. Thus analysed, it would not be out of place to
state that his brain and the bones must have felt the chill of
humiliation. The dreams sweetly grafted with sanguine fondness with
the passage of time reached the Everstine disaster, possibly, with a vow
not to melt. The cathartic effect looked like a distant mirage. The cruel
behaviour of the wife has frozen the emotions and snuffed out the bright
candle of feeling of the husband because he has been treated as an
unperson. Thus, analysed, it is abundantly clear that with this mental
pain, agony and suffering, the husband cannot be asked to put up with
the conduct of the wife and to continue to live with her. Therefore, he is
entitled to a decree for divorce.
22.USHA RATILAL DAVE VERSUS ARUN B. DAVE Gujarat High
Court First Appeal No. 1484 of 1981 , 1983 SCC OnLine Guj 93 :
1984 GLH 333 : (1984) 25 (1) GLR 81 Bench: Hon’ble Mr. Justice
V.V Bedarkar
this is not a judicial separation as envisaged by Indian Law . the order
of dissolution of marriage by a decree of divorce passed by the learned
trial Judge is quite justified.
23. (Sadhana
Satish Kolvankar Vs Satish Sachidanand
husband on ground of cruelty and prayer for decree of nullity on ground
of non consummation of marriage owing to impotence of wife Doctor
opined that although wife has had sexual intercourse but she was not
habituated to it Plea of non consummation of marriage, therefore, is
not available However, ground of cruelty stands proved as wife during
the pendency of divorce petition had filed criminal complaint u/s 498A
IPC against husband, his aged mother and sisterinlaw which was
dismissed Parties lived together for a few months and there were
constant quarrels Divorce granted on ground of cruelty Husband
directed to pay maintenance of Rs.1200/ per month.
24. (Ram Kumar @ Ramender Kumar Vs Smt.Raksha @ Galabo)
2003(2) Civil Court Cases 70 (P&H) Hindu Marriage Act, 1955,
S.13, Hindu Marriage (Punjab) Rules, 1956, R.10 Adultery Non
25. (Rakesh Sharma Vs Surbhi Sharma) AIR 2002 Rajasthan 138
Judgments 318 (S.C.) : 2005(1) Civil Court Cases 402 (S.C.) Hindu
Conduct complained of should be “grave and weighty” so as to come to
the conclusion that it is not reasonable expected to live with the other
spouse It must be something more serious than “ordinary wear and
tear of married life”.
27.(Mayawanti Vs Bina Ram) 2004(3) Civil Court Cases 59 (P&H)
Hindu Marriage Act, 1955, S.13 Cruelty Extent of Should be of
such a degree so as to cause an apprehension of danger to life, limb or
health, physical or mental Allegation of excessive drinking and
addiction to sulfa but the same not proved Divorce petition dismissed.
2003(2) Civil Court Cases 306 (P&H) Hindu Marriage Act, 1955,
29. Hindu Marriage Act, 1955, S.13 Cruelty False and baseless
30. Hindu Marriage Act, 1955, S.13 Cruelty Husband alleged to be
in the habit of excessive drinking and addicted to sulfa There is no
nothing to establish this aspect Cannot be taken as an independent
ground for the grant of matrimonial relief. (Mayawanti Vs Bina Ram)
2004(2) Civil Court Cases 257 (P&H)
Delhi and wife employed at Meerut Wife not ready to live with
husband and even not visiting him Lodging FIR against him for
offence u/s 498A, 323 and 506 PC maliciously and without any
reasonable cause Such conduct of wife amounts to mental cruelty
Acts not condoned by husband Husband entitled to decree of divorce.
(Dr.P.K.Tomar Vs Smt.Archana) AIR 2003 Allahabad 214
34. Hindu Marriage Act, 1955, S.13 Cruelty Isolated incidents of
misbehaviour by husband Held, these are not sufficient to establish
cruelty mental or physical. (Mayawanti Vs Bina Ram) 2004(3) Civil
Court Cases 59 (P&H)
35. Hindu Marriage Act, 1955, S.13 Cruelty Levelling of false and
36. Hindu Marriage Act, 1955, S.13 Cruelty Mental Enquiry as to
Must begin as to the nature of cruel treatment and impact on such
treatment in the mind of the spouse, whether it caused reasonable
apprehension that it would be harmful or injurious to live with the
other Ultimately, it is a matter of inference to be drawn by taking into
account the nature of the conduct and its effect on the complaining
spouse However, there may be a case where the conduct complained of
itself is bad enough and per se unlawful or illegal Then the impact or
injurious effect on the other spouse need not be enquired into or
considered In such case, cruelty will be established if the conduct itself
is proved or admitted. (A.Jayachandra Vs Aneel Kaur) 2005(1) Apex
Court Judgments 318 (S.C.) : 2005(1) Civil Court Cases 402 (S.C.)
37. Hindu Marriage Act, 1955, S.13 Cruelty Mental Has to be
considered in the light of norms of marital ties of the particular society
to which the parties belong, their social values, status, environment in
which they live. (A.Jayachandra Vs Aneel Kaur) 2005(1) Apex Court
Judgments 318 (S.C.) : 2005(1) Civil Court Cases 402 (S.C.)
40. Hindu Marriage Act, 1955, S.13 Cruelty Wife alleged to have
illicit relations with a person Person with whom wife alleged to have
illicit relations not examined or crossexamined though his affidavit was
on record Cannot be concluded that wife had illicit relations with her
colleague etc. Finding of cruelty by wife on that count liable to be set
aside. (Anita Vs Krishnakumar) AIR 2003 Bombay 273
41. Hindu Marriage Act, 1955, S.13 Cruelty and harassment for
marriage Thirty party who has nothing to do with the relationship of
husband wife cannot prefer an appeal against the said decree He
cannot intrude into their privacy He is not an aggrieved party. (Baldev
Singh Vs Surinder Mohan Sharma) 2003(2) Civil Court Cases 16 (S.C.)
43. Hindu Marriage Act, 1955, S.13 Desertion For the purpose of
seeking divorce desertion means the intentional permanent forsaking
and abandonment of one spouse by the other without other's consent
and without reasonable cause A single act is not complete in itself It
is a continuous course of conduct to be determined under the facts and
circumstances of each case So far as the deserting spouse is concerned,
two essential conditions must be there, (i) the factum of separation, and
(ii) the intention to bring cohabitation permanently to an end (animus
deserendi) Similarly two elements are essential so far as the deserted
spouse is concerned (i) the absence of consent and (ii) absence of conduct
giving reasonable cause to the spouse leaving the matrimonial home to
form the necessary intention. (Geeta Mullick Vs Brojo Gopal Mullick)
2004(2) Civil Court Cases 333 (Calcutta)
44. Hindu Marriage Act, 1955, S.13 Desertion Husband resident of
Delhi and wife employed at Meerut Wife not ready and willing to live
with husband Suit for restitution was filed by her only to create
evidence for future litigation Even after passing of decree of restitution
wife failing to comply it Desertion was continuous and for more than
two years Husband entitled to decree of divorce. (Dr.P.K.Tomar Vs
Smt.Archana) AIR 2003 Allahabad 214
45. Hindu Marriage Act, 1955, S.13 Desertion Petition by husband
46. Hindu Marriage Act, 1955, S.13 Desertion Wife stating that
she is prepared to go back to the matrimonial home unconditionally
Unconditional offer of wife in proceedings before Lok Adalat can be
taken into account to show her conduct as to whether there was
desertion on her part. (Ram Mehar Singh Vs Urmila Kumari) 2004(3)
Civil Court Cases 659 (P&H)
husband to live separately from his old parents and brothers and
deserting him on this count with the intention to bring cohabitation
permanently to an end Decree of divorce validly passed. (Geeta
Mullick Vs Brojo Gopal Mullick) 2004(2) Civil Court Cases 333
(Calcutta)
Petition by husband on ground of cruelty Institution of FIR by wife
against husband under S.498A IPC for subjecting her to cruelty which
was found false after investigation Amounts to cruelty Husband
entitled to decree of dissolution of marriage. (Narendra Kumar Gupta
Vs Indu) AIR 2002 Rajasthan 169
49. Hindu Marriage Act, 1955, S.13 Dissolution of marriage Wife
50. Hindu Marriage Act, 1955, S.13 Divorce Appeal against decree
towards full and final settlement Wife given a sum of Rs.12 lacs
towards lumpsum one time settlement. (Harsha Indukumar Bhojani Vs
Indukumar Ratilal Bhojani) 2005(1) Civil Court Cases 562 (Bombay)
51. Hindu Marriage Act, 1955, S.13 Divorce Can be sought on the
52. Hindu Marriage Act, 1955, S.13 Divorce Cannot be granted on
ground that marriage has irretrievably broken down. (Swapan Kumar
Ganguly Vs Smiritikana Ganguly) AIR 2002 Calcutta 6
53. Hindu Marriage Act, 1955, S.13 Divorce Cruelty Caused by
ground of desertion by wife. (Swapan Kumar Ganguly vs Smiritikana
Ganguly) AIR 2002 Calcutta 6
54. Hindu Marriage Act, 1955, S.13 Divorce Cruelty Demand of
wife for a separate residence Merely to avoid company of parentsin
law inspite of the fact that wife gets normal care, affection and facilities
amounts to cruelty However, if wife does not get proper respect, status
and treatment from her parentsinlaw then demand of separate
residence does not amount to cruelty Wife's insistence on separate
residence per se cannot constitute a mental cruelty, unless it is found to
be totally unnecessary, unreasonable, inhuman and unfair. (Smt.Kakali
Das (Ghosh) Vs Dr.Asish Kumar Das) 2004(2) Civil Court Cases 147
(Calcutta)
55. Hindu Marriage Act, 1955, S.13 Divorce Cruelty Slanderous
allegation by wife about character of husband of having extramarital
relationship with another lady Allegation not proved Wife wrote
letters to Authorities and Women Cell and also to Prime Minister Wife
was persisting to humiliate and wounding feeling of husband which
amounts to cruelty Brother of wife assaulted husband and broke his
tooth Matrimonial life causing profound and lasting disruption driving
husband to feel deeply hurt and reasonably apprehended that it is
impossible for him to live together Held, husband is entitled to divorce.
(D.N.Sharma Vs Usha Sharma) AIR 2004 Delhi 198
56. Hindu Marriage Act, 1955, S.13 Divorce Cruelty Statements
in the pleadings provoked by the course of litigation are not sufficient
for the purpose of establishing the case of cruelty against wife and in
favour of husband. (Smt.Kakali Das (Ghosh) Vs Dr.Asish Kumar Das)
2004(2) Civil Court Cases 147 (Calcutta)
parents house by wife Permission of husband each and every time is
not required So long such visit to parents house do not cause an
unbearable inconvenience or does not amount to obduracy, husband
cannot treat such visits as acts of cruelty. (Smt.Kakali Das (Ghosh) Vs
Dr.Asish Kumar Das) 2004(2) Civil Court Cases 147 (Calcutta)
58. Hindu Marriage Act, 1955, S.13 Divorce Cruelty Wife used
insultive language against parents of husband Unrebutted Allegation
by wife regarding infidelity on part of husband not substantiated by
corroborative evidence Wife extravagant Wife insulted husband
sometime in public Wife living separately with child Such kind of
behaviour of wife and such kind of situation culminates into cruelty
High Court while making effort for reconciliation found that there is not
compatibility between the parties making them live together would be
asking the two strangers to share a roof Decree of divorce granted in
favour of husband No interference. (Shivani Chattopadhyaya Vs
Siddharth Chattopadhyaya) AIR 2002 P&H 58
58. Hindu Marriage Act, 1955, S.13 Divorce Desertion Husband
harassment and attempt to cause physical harm No police complaint
lodged for dowry but parties had gone to police station in this regard
Maintenance order also passed in favour of wife Inference of desertion
cannot be drawn from the fact that wife did not join husband even after
panchayathdars advised to that effect Husband not entitled to divorce.
(Smt.Prabhavathi Vs K.Somashankar) AIR 2002 Karnataka 431
59. Hindu Marriage Act, 1955, S.13 Divorce Desertion Wife at all
60. Hindu Marriage Act, 1955, S.13 Divorce Husband and family
of cruelty on account of lodging report with police Held, husband is not
entitled to decree of divorce Irretrievable break down due to second
marriage in such case cannot be ground of divorce. (Mst.Butti Vs Gulab
Chand Pandey) AIR 2002 M.P. 123
divorce on ground of desertion by wife Facts showing that husband
himself left his wife with her parents No evidence to show that
husband had taken steps to bring back wife to matrimonial home It
cannot be aid that wife had deserted him Grant of decree of divorce on
ground of desertion Not permissible. (K.Palanisamy Vs P.Samiathal)
AIR 2002 Madras 156
62. Hindu Marriage Act, 1955, S.13 Divorce Irretrievable break
down of marriage A party at fault cannot be allowed to get marriage
dissolved on the ground of irretrievable break down of marriage.
(Shyam Sunder Kohli Vs Sushma Kohli @ Satya Devi) 2004(2) Apex
Court Judgments 551 (S.C.)
63. Hindu Marriage Act, 1955, S.13 Divorce Irretrievable break
down of marriage A party at fault cannot be allowed to get marriage
dissolved on the ground of irretrievable break down of marriage.
(Shyam Sunder Kohli Vs Sushma Kohli @ Satya Devi) 2005(1) Civil
Court Cases 85 (S.C.)
64. Hindu Marriage Act, 1955, S.13 Divorce Irretrievable break
down of marriage Marriage not to be dissolved lightly on the ground of
irretrievable break down of marriage Only in exceptional
circumstances marriage can be dissolved on this ground. (Shyam
Sunder Kohli Vs Sushma Kohli @ Satya Devi) 2004(2) Apex Court
Judgments 551 (S.C.) : 2005(1) Civil Court Cases 85 (S.C.)
65. Hindu Marriage Act, 1955, S.13 Divorce Mental cruelty Act of
66. Hindu Marriage Act, 1955, S.13 Divorce Mental disorder and
67. Hindu Marriage Act, 1955, S.13 Divorce Petition by husband
Allegation of maltreatment Wife alleged that husband living with her
cousin sister and issues born to them To establish said fact wife
produced various documents viz; Guardianship deed, discharge ticket,
Recurring deposit account in name of her husband and her cousin sister
In such circumstances dismissal of petition of husband for divorce
Proper. (Ram Lakhan Vs Smt.Prem Kumari) AIR 2003 Rajasthan 115
68. Hindu Marriage Act, 1955, S.13 Divorce Petition by husband
69. Hindu Marriage Act, 1955, S.13 Divorce Petition by husband
70. Hindu Marriage Act, 1955, S.13 Divorce Rape of wife Not a
ground of divorce Husband cannot claim cruelty because he has to live
with a rape victim. (Rajesh Kumar Singh Vs Smt.Rekha Singh & Ors.)
2005(1) Civil Court Cases 525 (Allahabad)
litigation Alone cannot be a ground to contend that marriage is dead.
(Neeta Kirit Desai Vs Bino Samuel George) AIR 2003 Bombay 7
72. Hindu Marriage Act, 1955, S.13 Divorce petition by husband
Cruelty and desertion Once it is held that wife has not treated the
husband with cruelty husband is not entitled to seek dissolution of
marriage on ground of desertion Wife given severe beatings and
turned out of matrimonial home Wife still ready and willing to reside
with the husband No animus deserendi on part of wife It is the
husband who has created such circumstances so as to force wife to leave
the matrimonial home Held, husband is not entitled to seek divorce on
ground of desertion. (Radha Rani Vs Har Bhagwan) 2005(1) Civil Court
Cases 570 (P&H)
73. Hindu Marriage Act, 1955, S.13 Divorce petition by husband
Evidence of wife that husband had developed illicit relationship with
another lady supported by evidence of father of husband Plea of
husband that wife deserted him without any justifiable reasons, not
tenable Evidence also reveals that husband had filed the petition with
an oblique motive to get rid of legally married wife Petition based on
false and frivolous averments Liable to be dismissed. (Laxmi Mallik Vs
Mayadhar Mallik) AIR 2002 Orissa 5
74. Hindu Marriage Act, 1955, S.13 Divorce petition by husband on
ground of cruelty and desertion Husband a doctor residing in Germany
Wife held to be not a dutiful and obedient wife but no finding that
there was cruelty on part of her but divorce still granted No direct
evidence as husband did not enter witness box Only mother of
appellant who had no personal knowledge gave evidence and many of
the incidents alleged by husband happened in Germany and there was
no direct evidence to support of those facts Husband rightly held not
entitled to divorce. (Perminder Charan Singh etc. Vs Harjit Kaur)
2003(1) Apex Court Judgments 711 (S.C.)
Allegation by wife that husband is interested in getting married with
another girl in his close relation Said allegation not proved by wife It
does not mean that it is disproved and it is a false allegation made
against petitioner which may amount to cruelty. (Hema Reddy Vs
Rakesh Reddy) AIR 2002 A.P. 228
76. Hindu Marriage Act, 1955, S.13 Ground of adultery by wife
Untainted evidence of witnesses leading to irresistible conclusion about
adulterous conduct of wife Explanation of wife not truthful
Allegations by wife about illicit relations of husband with other lady
Levelled only to counter facts pleaded by husband Evidence produced
by wife not sufficient to disprove charge of cruelty and adultery levelled
against her Husband establishing that conduct of wife caused disgrace
to him in society and caused mental agony Marriage between parties,
irretrievably broken down and there are no chances of their living
together No interference in decree of divorce granted in favour of
husband Late filing of petition for divorce cannot be said to be fatal in
facts and circumstances of the case. (Nidhi Dalela Vs Deepak Dalela)
AIR 2002 Rajasthan 128
78. Hindu Marriage Act, 1955, S.13 Husband filed petition for
divorce Ground that wife not willing to live at husband's house and
wanted to keep her with him or to keep her separately at place 'C' Fact
that husband living abroad and visits India sometimes Husband did
not enter the witness box Brother of husband and Sarpanch of village
stated that wife not willing to stay with parents of husband In
proceedings before Lok Adalat it was recorded that husband was living
in USA and wife in Germany and there was no possibility of
compromise In such circumstances wife cannot be said to have
deserted husband Decree of divorce cannot be granted. (Sucha Singh
VS Paramjit Kaur) AIR 2002 P&H 46
marriage Not a ground for seeking divorce. (Mayawanti Vs Bina Ram)
2004(2) Civil Court Cases 257 (P&H)
marriage is not a ground to seek divorce under the Act. (Mayawanti Vs
Bina Ram) 2004(3) Civil Court Cases 59 (P&H)
81. Hindu Marriage Act, 1955, S.13 Marriage Dissolution before
Panchayat Marriage can be dissolved by a decree of divorce by the
Court and not in any proceedings before the Panchayat and wife is not
bound by the compromise unless of course she herself consents to the
same and gives her consent in proceedings seeking divorce before the
matrimonial Court. (Rajesh Kumar Madaan Vs Mrs.Mamta alias
Veena ) 2005(2) Civil Court Cases 433 (P&H)
82. Hindu Marriage Act, 1955, S.13 Mental cruelty Complaint to
1908, S.151 Divorce by mutual consent Recall/review of decree on
ground of fraud Recall/review petition does not lie if one party plays
fraud on the other Aggrieved party has to file a separate suit If fraud
is played on Court only then review petition is maintainable u/s 151
CPC. (Anita Vs R.Rambilas) 2003(1) Civil Court Cases 284 (A.P.)
84. Hindu Marriage Act, 1955, S.13B Appeal against order under
section 9 During pendency of appeal parties seeking divorce by mutual
consent More than six months have already elapsed as to pendency of
proceedings and parties not living together Held, no useful purpose
will be served to allow litigation to continue any further Application
u/s 9 allowed to be converted into one under section 13B Divorce by
mutual consent allowed. (Sukhjit Kaur Vs Sikandar Singh) 2004(2)
Civil Court Cases 299 (Rajasthan)
85. Hindu Marriage Act, 1955, S.13B Divorce by mutual consent
During pendency of LPA against dismissal of divorce petition filed by
husband During its pendency parties jointly filed application seeking
divorce by mutual consent on ground of temperamental incompatibility
In view of fact that parties had no monetary and other claims against
each other and were remarriageable Waiting period condoned and
decree of divorce by mutual consent passed. (Dr.Subharajyoti Das Vs
Smt.Uttama Das) AIR 2002 Gauhati 117
86. Hindu Marriage Act, 1955, S.13B Divorce by mutual consent
Husband and wife living separately for period of more than one year
Not able to live together Ingredients of S.13B(1) satisfied Court is
bound to accept petition and grant relief of divorce. (In re:
K.S.Subramanian) AIR 2002 Madras 228
87. Hindu Marriage Act, 1955, S.13B Divorce by mutual consent
Joint application Continued wilful absence of husband from next date
of hearing Inference can be drawn that consent which was initially
given continued If husband wanted to withdraw his consent he should
take positive stand and inform Court Order refusing to grant decree of
divorce on basis of mutual consent on ground that consent of husband
was missing at second stage Liable to be set aside. (Smt.Suman Vs
Surendra Kumar) AIR 2003 Rajasthan 155
88. Hindu Marriage Act, 1955, S.13B Divorce by mutual consent
89. Hindu Marriage Act, 1955, S.13B Divorce by mutual consent
Recall of decree Wife alleged consent obtained by fraud Wife failing
to prove the alleged fraud Wife graduate and her brother an Advocate
Wife never complained about fraud played by husband to anyone in
spite of having several opportunities Wife might have decided to go for
divorce by mutual consent on the alleged ground of demanding dowry
by her husband in a huge sum She had given up custody of her child
and her right of maintenance for reasons known to her Order of
Family Court dismissing recall/review petition, upheld. (Anita Vs
R.Rambilas) 2003(1) Civil Court Cases 284 (A.P.)
90. Hindu Marriage Act, 1955, S.13B Divorce by mutual consent
Waiting period of six months Dispensing with Proceedings pending
for divorce By way of amendment converted into a petition for divorce
by mutual consent Waiting period of six months can be dispensed with
on two counts viz (1) If consent is not obtained by force, fraud or undue
influence and that the petition has not been presented or prosecuted in
collusion with the respondent; (2) and secondly on amendment of
petition it relates back to the date of institution of divorce petition and
waiting period of six months is to be counted from the date of institution
of original petition and waiting period of six months had already
expired. (Chander Kanta Vs Mohinder Partap Dogra) 2003(2) Civil
Court Cases 564 (P&H)
91. Hindu Marriage Act, 1955, S.13B Divorce by mutual consent
Waiting period of six months Petition u/s 13 by husband Dismissal
Appeal against During pendency of appeal parties compromised
Held, period of six months is to be counted from the date of petition filed
u/s 13 of the Act. (Kuldip Singh Vs Surinder Kaur) 2003(1) Civil Court
Cases 33 (P&H)
92. Hindu Marriage Act, 1955, S.13B Divorce by mutual consent
Waiting period of six months Can be brought down when divorce by
mutual consent is sought in a divorce petition already pending for more
than six months Provision of S.13B(2) is directory and not mandatory.
Allegation by wife that her consent was obtained by husband by fraud,
coercion and threat Wife, an educated lady, had opportunities to
complaint to many people about fraud played on her but she did not
choose to do so It by itself is sufficient to prove that wife on her own
accord agreed to sign divorce petition as husband used to give mental
torture to her by demanding a dowry of Rs.25 lakhs for doing business
Plea of coercion and threat a concocted story Fact of giving up custody
of child and right of maintenance by her also does not prove her
allegation Petition is not maintainable. (Smt.Anita Vs R.Rambilas)
AIR 2003 A.P. 32
94. Hindu Marriage Act, 1955, S.13B Waiting period of six months
Condonation No possibility of living together Adjournment of case
for six months as required statutorily would be futile Period of six
months condoned. (Navjot Kaur Vs Balwinder Singh) 2003(1) Civil
Court Cases 204 (P&H)
consent Jurisdiction Wife residing at Gwalior Court at Gwalior has
jurisdiction to entertain the joint petition by husband and wife for
divorce by mutual consent. (Uma Tiwari Vs Vikrant Tiwari) 2005(2)
Civil Court Cases 67 (M.P.)
breakdown of marriage Not a ground of divorce Court, if satisfied
that continuation of marriage and emotionally dead relationship
constitute an act of oppressive mental cruelty, it may grant a decree of
divorce. (Dilip Kumar Karmakar Vs Biju Rani Karmakar) 2004(3) Civil
Court Cases 07(Calcutta)
Allegations of husband that wife used to leave his company by going to
her parental house without his permission and that she used to insult
him before the guests and that she did not cook for him This do not
amount to cruelty on the basis of which marriage between the parties
can be dissolved These allegations are general in nature and because
of these trivial disputes, the marriage cannot be dissolved. (Amrit Pal
Kaur Vs Roshan Lal) 2003(3) Civil Court Cases 438 (P&H)
98. Hindu Marriage Act, 1955, S.13(1)(a) Divorce Alleged demand
of dowry though vague and not reliable but incident of beating and
causing burn injury on back proved Minor errors about dates etc. not
material in case of illiterate lady Parties living separately for the last
nine years with no possibility to reconcile and reside together Divorce
granted. (Meera Vs Ramesh Chand) 2004(2) Civil Court Cases 214
(Rajasthan)
Husband alleging that wife quarrelling with him and removed her
mangalsutra from her neck in front of his family members and
neighbours and threw same on road side gutter Such allegation made
by counsel without any instructions from husband Husband admitting
that there was no quarrel between him and his wife on that date Wife
was also not residing with husband on that particular date Grant of
divorce by ignoring admission made by husband Improper. (Shobha
Srinivas Bodigar Vs Srinivas Veeranna Bodigar) AIR 2002 Karnataka
256
Solitary act of wife, an illiterate lady, of removing her Mangalsutra and
throwing same on roadside gutter in heat of moment Does not
constitute mental cruelty. (Shobha Srinivas Bodigar Vs Srinivas
Veeranna Bodigar) AIR 2002 Karnataka 256
allegation by wife that husband is having illicit relations with another
woman It is cruelty and a ground for divorce. (Harsha Indukumar
Bhojani Vs Indukumar Ratilal Bhojani) 2005(1) Civil Court Cases 562
(Bombay)
petition by wife Demand of dowry by husband, his false allegations of
infidelity against wife, physical violence and acts showing sexual
perversion Entitles wife to claim dissolution of marriage. (Tulasamma
Vs N.Seenan) 2003(1) Civil Court Cases 347 (Karnataka)
103. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty To establish
cruelty, the conduct must be of such a character as to cause danger to
life, limb or health, (physical or mental) so as to give rise to a
reasonable apprehension of such a danger It depends upon the facts
and circumstances of each case which is to be assessed bearing in mind
the social status of the parties, their customs and traditions, their
educational level and the environment in which they live. (Ram Mehar
Singh Vs Urmila Kumari) 2004(3) Civil Court Cases 659 (P&H)
105. Hindu Marriage Act, 1955, S.13(1)(ia) Divorce Petition by
Code,1908, O.13.R.4, Evidence Act, 1872 Document Proof Mere
marking of document as exhibit does not make the document admissible
in evidence A document must be proved by formal mode of proof
enjoined by the provisions of Evidence Act. (Kailash Devi Vs Jai Kishan
(Lance Naik) & Anr.) 2005(1) Civil Court Cases 87 (P&H)
compromise position” Evidence of such a witness is in the nature of a
chance encounter Though chance witness is not necessarily a false
witness, however, it is rash to rely upon such evidence. (Kailash Devi Vs
Jai Kishan (Lance Naik) & Anr.) 2005(1) Civil Court Cases 87 (P&H)
Standard of proof is higher and a strict measure of proof is required,
though it may not be beyond shadow of reasonable doubt as is required
in a criminal case but at the same time it is also not on mere
preponderance of probabilities Proceedings for divorce on ground of
adultery partakes character of quasi criminal procedure. (Kailash Devi
Vs Jai Kishan (Lance Naik) & Anr.) 2005(1) Civil Court Cases 87 (P&H)
relationship Mental cruelty Ground of divorce and plea of defence
Held, when divorce is claimed on this ground then the same must be
proved or established to get a decree but when such plea is raised by
way of defence it is sufficient to present the circumstances producing
such apprehension/suspicion. (Dilip Kumar Karmakar Vs Biju Rani
Karmakar) 2004(3) Civil Court Cases 07(Calcutta)
109. Hindu Marriage Act, 1955, S.13(1)(ia) Character assassination
in written statement Is a great assault on the character, honour and
reputation of wife Amounts to worst form of insult and cruelty
Sufficient by itself for a grant of decree of divorce. (Vijaykumar
Ramchandra Bhate Vs Neela Vijaykumar Bhate) 2003(1) Apex Court
Judgments 677 (S.C.) : 2003(2) Civil Court Cases 487 (S.C.)
110. Hindu Marriage Act, 1955, S.13(1)(ia) Character assassination
111. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty Allegations
levelled by respondent not false Does not amount to cruelty. (Ram
Kumar @ Ramender Kumar Vs Smt.Raksha @ Galabo) 2003(2) Civil
Court Cases 70 (P&H)
Cruelty must be of such a type which will satisfy the conscience of the
Court that the relationship between the parties has deteriorated to such
an extent that it has become impossible for them to live together
without mental agony. (Anita Krishnakumar Kachba Vs Krishnakumar
Ramchandra Kachba) 2003(2) Civil Court Cases 323 (Bombay)
113. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty FIR lodged by
114. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty Husband in
115. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty In reply to
notice wife made false and wild allegations as to character of husband
and also against his other family members so as to injure the reputation
Amounts to cruelty. (Anita Krishnakumar Kachba Vs Krishnakumar
Ramchandra Kachba) 2003(2) Civil Court Cases 323 (Bombay)
116. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty Initiation of
criminal proceedings by wife against husband Wife not able to prove
her allegations beyond a reasonable doubt so as to warrant the
conviction Does not mean that the allegations have caused cruelty.
(Radha Rani Vs Har Bhagwan) 2004(3) Civil Court Cases 544 (P&H)
117. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty Initiation of
legal proceedings for redressal of the rights or for punishment to the
wrong doer Cannot be said to be acts of cruelty. (Radha Rani Vs Har
Bhagwan) 2004(3) Civil Court Cases 544 (P&H)
118. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty Intention to be
cruel is not an essential element It is sufficient that cruelty is of such
type that it is impossible for spouses to live together. (Smt.Neelu Kohli
Vs Naveen Kohli) 2004(2) Civil Court Cases 505 (Allahabad)
119. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty Mental cruelty
Does not depend upon numerical count of such incidents or only on the
continuous course of such conduct It goes by the intensity, gravity and
stigmatic impact of it when meted out even once and the deleterious
effect of it on the mental attitude necessary for maintaining a conducive
matrimonial home. (Vijaykumar Ramchandra Bhate Vs Neela
Vijaykumar Bhate) 2003(1) Apex Court Judgments 677 (S.C.) : 2003(2)
Civil Court Cases 487 (S.C.)
120. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty Once finding
that wife has not treated the husband with cruelty is reversed then
husband is not entitled to seek dissolution of marriage on ground of
desertion. (Radha Rani Vs Har Bhagwan) 2004(3) Civil Court Cases 544
(P&H)
started living together on the basis of compromise in proceedings u/s 10
of the Act for judicial separation Held, acts of cruelty, if any, stood
condoned. (Susheel Kumari Vs Vijay Kumar) 2005(1) Civil Court Cases
495 (P&H)
122. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty Registration
of FIR by wife against husband FIR not shown to be false It also not
shown that husband has suffered emotionally inducing fear in respect of
the matrimonial relationship or that the behavior or behavioural
pattern of the other spouse is of such a nature that an inference can be
drawn that husband has been subjected to mental cruelty No inference
can be drawn that husband has been subjected to mental cruelty.
(Rajesh Kumar Madaan Vs Mrs.Mamta alias Veena ) 2005(2) Civil
Court Cases 433 (P&H)
general allegations regarding quarrels between two sides Except this
nothing brought on record to show that wife caused cruelty to husband
in any manner whatsoever Held, husband is not entitled to decree of
divorce on ground of cruelty. (Asha Gupta alias Anju Gupta Vs Rajiv
Kumar Gupta) 2005(2) Civil Court Cases 106 (P&H)
124. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty Wife alleged
to have taken away Rs.20,000/ and all her ornaments As ornaments
were of the wife and if she had taken away the ornaments it cannot be
said that it amounted to cruelty Husband having failed to prove theft
of money is not entitled to seek dissolution of marriage by a decree of
divorce on the ground of cruelty. (Suresh Kumar Vs Sunita) 2004(2)
Civil Court Cases 485 (P&H)
125. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty Wife alleged
consistently stating that she is ready to live with her husband It is not
the case of husband that his wife used to abuse him or hurl abuses upon
his family members Not in evidence that wife did not perform her
matrimonial duties and did not behave as a dutiful wife No sincere
effort on the part of husband to settle the wife and the evidence led by
husband shows that he only made a pretence of settling the wife
without any real intention to do so Held, it is not a case that amount to
cruelty on the part of the wife against the husband. (Ram Mehar Singh
Vs Urmila Kumari) 2004(3) Civil Court Cases 659 (P&H)
128. Hindu Marriage Act, 1955, S.13(1)(ia) Cruelty contemplated
129. Hindu Marriage Act, 1955, S.13(1)(ia) Desertion Wife given
severe beatings and turned out of matrimonial home Wife ready and
willing to reside with the husband There is no animus deserandi on
the part of wife It is husband who has created such circumstances so
as to force wife to leave the matrimonial home Husband is not entitled
to decree of divorce on ground of desertion. (Radha Rani Vs Har
Bhagwan) 2004(3) Civil Court Cases 544 (P&H)
Fraud by wife at time of marriage by not disclosing her true age and her
marital status Wife deliberately suppressed material facts that her ex
husband committed suicide because of harassment meted out to him by
her Wife left house of husband with intention not to come back Wife
of quarreling nature FIR was also lodged by husband against wife u/ss
490, 420, 120 IPC Uncontroverted evidence not rebutted by wife
Entirety of facts clearly constituting case of cruelty against husband
Decree of divorce Held, proper. (Raj Kumari Vs Nandlal) AIR 2002
Rajasthan 345
Petition filed by wife Husband writing repeatedly to police authorities
against wife of her having extra marital relations with other persons
Repeated allegations without anything else by themselves amount to
cruelty causing reasonable apprehension in the mind of wife that it is
dangerous to live with the husband Decree of divorce passed by trial
Court No interference. (Jai Dayal Vs Shakuntala Devi) 2004(2) Civil
Court Cases 628 (Delhi)
132. Hindu Marriage Act, 1955, S.13(1)(ia) Divorce Irretrievable
Civil Court Cases 314 (Bombay)
husband Husband assaulted by brothers of wife, maternal uncle and
mother FIR registered u/ss 323 and 506 IPC All convicted and fined
There was no allegation against wife Held, the effect of actions of
relations of wife cannot fall on wife. (Radha Rani Vs Har Bhagwan)
2005(1) Civil Court Cases 570 (P&H)
husband on ground of cruelty Wife lodged FIR u/ss 498A and 323 IPC
against husband Husband acquitted Husband did not initiate
proceedings for malicious prosecution against wife Held, merely
because wife was not able to prove her allegations beyond a reasonable
doubt so as to warrant the conviction does not amount to cruelty.
(Radha Rani Vs Har Bhagwan) 2005(1) Civil Court Cases 570 (P&H)
complaint u/s 406/498A IPC by wife Nothing on record to show what
was the fate of the case In absence of any other proof merely lodging of
criminal complaint u/ss 406/498A IPC does not amount to cruelty to the
husband. (Asha Gupta alias Anju Gupta Vs Rajiv Kumar Gupta)
2005(2) Civil Court Cases 106 (P&H)
attending circumstances Cruelty should be of such a nature so as to
cause reasonable apprehension in his or her mind that it would be
harmful or injurious to health to live with other party Instances of
misbehaviour not to be considered in isolation All facts and
circumstances to be taken cumulatively Uncorroborated allegations of
violent temperament, suspecting fidelity, going to office of husband and
abusing before colleagues do not constitute mental cruelty.
(Pothapragada Sri Lakshmi Maruthi Hara Gopal Vs Smt.P.Seshu
Kumari) 2004(3) Civil Court Cases 300 (A.P.)
petition by husband on ground of cruelty and desertion Wife alleged to
be seeking separate accommodation and that she desired to stay away
from the joint family Wife denied the allegations and made counter
allegations that she was harassed and illtreated by her husband and
his family members Allegations made by her were vague and there
was no date nor other particulars mentioned in respect of any particular
incident of harassment Husband entitled to grant of divorce on ground
of cruelty and desertion. (Meena Dinesh Parmar Vs Dinesh Hastimal
Parmar) 2005(2) Civil Court Cases 321 (Bombay)
Petition by husband Cruelty can be physical or mental Illtreatment
and resultant apprehension flowing therefrom must be grave as to
make cohabitation unendurable Onus to prove cruelty is on suing
spouse Standard of proof is no better than in civil proceedings, i.e. fact
can be proved by preponderance of probability Vague allegation of
habitual use of vulgar words, humiliation, contemptuous treatment
does not amount to proof of cruelty Husband making such allegation is
not entitled to decree of divorce. (B.S.Mohan Kumar Vs
Smt.B.K.Nirmala) 2004(3) Civil Court Cases 412 (Karnataka)
essential conditions are : Factum deserendi and animus deserendi that
is the factum of separation and the intention to bring cohabitation
permanently to an end. (Rajesh Kumar Madaan Vs Mrs.Mamta alias
Veena ) 2005(2) Civil Court Cases 433 (P&H)
143. Hindu Marriage Act, 1955, S.13(1)(ib) Divorce Desertion
relationship of husband with another woman No evidence on record to
substantiate said plea Husband also not cross examined on said issue
Mere statement of wife by itself is not sufficient for arriving at
145. Hindu Marriage Act, 1955, S.13(1)(ib) and 23 Desertion For
Petition by husband Accusation by wife against husband that he was
having illicit relations with woman and had also child through that
woman, proved to be true, husband would not be entitled to decree of
divorce on ground of desertion when husband himself was proved to
have tried to desert wife and not vice versa. (B.S.Mohan Kumar Vs
Smt.B.K.Nirmala) 2004(3) Civil Court Cases 412 (Karnataka)
Marriage not consummated even in long period of more than six years
Wife not appearing in the witness box to rebut the allegations leveled
against her by husband Wife not producing medical evidence Parents
of wife avoiding to send their daughter to her inlaws' house Husband
successfully proving that wife was Schizophrenic Adverse inference
cannot be drawn against husband for not examining his parents or
grand parents No error on part of trial Court in drawing adverse
inference against wife As husband had no opportunity to live with life
as such there is no question of delay in filing petition for divorce after
six years Wife proved to be of unsound mind and husband is not
expected to live with such a wife Decree of divorce sustained.
(Vandana Vs Suresh Charan) 2005(2) Civil Court Cases 142 (Rajasthan)
148. Hindu Marriage Act, 1955, S.13(1)(iii) Mental disorder Mere
proof of schizophrenic is not sufficient Unsoundness of mind must be
proved to be of such kind and of such degree that petitioner cannot
reasonably be expected to live with the other. (B.N.Panduranga Shet Vs
S.N.Vijayalaxmi) 2003(2) Civil Court Cases 395 (Karnataka)
minority Repudiation Custom prohibiting repudiation of marriage
Custom must be pleaded and proved In absence of any pleading as to
custom, no such argument can be entertained. (Ramesh Kumar Vs
Sunita Devi) 2005(1) Civil Court Cases 572 (P&H)
minority Repudiation Not permissible before attaining the age of 15
years and such option is available till attaining age of 18 years.
(Ramesh Kumar Vs Sunita Devi) 2005(1) Civil Court Cases 572 (P&H)
151. Hindu Marriage Act, 1955, S.13(i)(a) Cruelty Wife having
extra marital relations Divorce petition by husband Allegation not
substantiated by husband through any independent and uninterested
witnesses Held, husband is not entitled to decree of divorce.
(G.Siddanagappa Vs R.Shailaja) AIR 2004 Karnataka 244
desertion Husband could not substantiate even one of many acts of
cruelty of wife Husband wants to get rid of wife one way or the other
Appeal of husband Dismissed. (Jagdeep Singh Vs Poonam) 2005(1)
Civil Court Cases 65 (P&H)
husband Cruelty Wife and her relations gave beatings to the husband
Husband sustained injuries on various parts of body and remained
admitted in hospital for seven days Wife never bothered to come back
and take care of husband Wife rightly found to have treated the
husband with cruelty Decree of divorce granted in favour of husband,
upheld. (Satyawati alias Savitri Vs Chandi Parshad) 2005(1) Civil
Court Cases 235 (P&H)
154. Hindu Marriage Act, 1955, Ss.13, 14, Civil Procedure Code,
1908, O.2.R.2, S.11 Earlier petition filed within one year of marriage
155. Hindu Marriage Act, 1955, Ss.13(1A)(ii) and 23(1)(a) Decree
of restitution of conjugal rights obtained by wife Appeal of husband
dismissed Taking advantage of the decree husband filed petition for
divorce after one year contending that there had been no cohabitation
Husband in his own evidence admitted that he was not willing to
resume cohabitation with his wife There was non compliance of decree
and positive wrong on part of husband Held, Family Court was right
in concluding that there was a legal bar in granting divorce decree.
(Ravindra Marutrao Shelar Vs Kalpana Ravindra Shelar) 2003(1) Civil
Court Cases 437 (Bombay)
156. Hindu Marriage Act, 1955, Ss.13(1)(ia), 23 Divorce petition by
Vs Smt.Sarita) 2003(2) Civil Court Cases 493 (Rajasthan)
157. Aditi Wadhera V. Vivek Kumar Wadhera, 2016 (8) SCALE
145
158. Manish Gautam V. Smt. Shikha Gautam, 2016 (2) ARC 800
159. Daljeet Kaur V. Tejindar Mohan Singh, 2016 (117) ALR 728
that in crossexamination DW1 defendant admitted that she used to go
to her maternal uncle at Rajpura, Punjab sometimes and she is
doingpairvi of case residing at Rajpura, the place of her maternal uncle,
and there is no reason that plaintiff shall make a false allegation
against his wife. We find these observations contrary to record and
based on assumption. Defendant has categorically denied that plaintiff
has seen her in an objectionable position with her maternal uncle and
her deposition in crossexamination. In matrimonial disputes, wild and
untrue allegations are levelled on both sides frequently and that is a
common experience of courts dealing with such matters. Still court
below, in present case, without appreciating the fact that such plea for
the first time was taken by way of replication, has believed and that too
without any evidence. This finding of Court below is patently perverse
and illegal. Cruelty is a ground, prima facie, under law to justify decree
of divorce, but mere allegation without evidence cannot justify decree of
divorce. In the present case, plaintiffrespondent though has made
allegations against her wife regarding her mental ailment and
misbehaviour, but failed to prove the same by adducing credible
evidence whatsoever. Court below has relied upon certain documents
which were never proved and exhibited hence are inadmissible in
evidence. Thus, finding recorded by Court below holding that there was
cruelty on the part of wife towards her husband so as to justify decree of
divorce is perverse, based on no evidence, and cannot be sustained.
160. Ashish Kumar Srivastava V. Smt. Ankita Srivastav, 2016 (2)
ARC 780
161 Supreme Court in State of Bihar V. Project Uchcha Vidya,
Sikshak Sangh, (2006) 2 SCC 545,
162.Syed Wasif Husain Rizvi vs Hasan Raza Khan and six others
in Writ Petition No.534 (Consolidation) of 2002, S. 13B Petition
holder can be entertained .
Recently a Full Bench of this Court in the case of Syed Wasif
relating to attorneys at some length. After elucidating the meaning of
power of attorney, the Court taking into account the provisions of
Allahabad High Court Rules and the provisions contained in Code of
Civil Procedure, particularly those contained in Order III thereof, has
inter alia observed that it is evident from the provisions of Order III
Rule 1 of CPC that an appearance, application or act in or to any Court
which is required to be made or done by a party in the Court can be
effectively made or done by the party in person or by a recognized agent.
Thus, from the authorities as discussed above and also taking into
account the facts and circumstances which the instant case has
presented, I find it appropriate to dispose of this petition with the
following observations and directions:1. In case a petition under
Section 13B of Hindu Marriage Act for divorce by mutual consent is
presented by the petitioner and the respondent no.2, then pleading of
such petition may be permitted to be signed and verified by the holder
of power of attorney of the petitioner in terms of the Special Power of
Attorney executed by the
petitioner on 11.04.2016 before notary public in California, Santa Clara
County.
2. Along with the petition to be presented under Section 13B of Hindu
Marriage Act, a draft settlement agreement, which is a part of record of
this case before this Court and has duly been signed by learned counsel
for parties before this Court will also be annexed.
3. That for verifying and attesting the contents of the joint petition
which may be presented under Section 13B of Hindu Marriage Act by
the parties, an affidavit of the petitioner shall also be required to be
filed which can be sworn in before the notary public or before any other
lawful authority in United States of America where the petitioner is
presently living. The said affidavit shall also contain duly selfattested
photograph of the petitioner.
4. On presentation of the joint petition seeking divorce by mutual
consent under Section 13B of Hindu Marriage Act, the learned court
below will proceed with the said application in accordance with law
after permitting the power of attorney authorized by the petitioner to
appear before it. The Court will also make such inquiries as are deemed
fit in respect of the averments made in the petition for divorce by
mutual consent and it is only on being satisfied that contents of the
petition are true, the court will proceed to pass appropriate orders.
5. However, it is made clear that in case at any stage of the proceedings
of Section 13B of Hindu Marriage Act, if instituted, the court below
finds any doubt about the averments made in the petition, it would be
lawful for the Court to summon the petitioner for hispersonal
appearance. Kanwalijeet Sachdev V. State of U.P. Thru Additional Prin.
Judge Family Court & Anr. , 2016 (2) ARC 789.
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