Ten important cases on Divorce

Lahari Gurrala & Aditi Reddy M | Symbiosis Law School, Hyderabad | 3rd February 2020

Divorce can be granted by the Supreme court under article 142 even if the facts of the case do not provide a ground in law.

Sukhendu Das.  ……..Petitioner.

Vs

Rita Mukherjee. …….Respondent., 2017 (8) Supreme 33

IN THE SUPREME COURT OF INDIA

Facts of the Case:

• The Appellant and the Respondent were married on 19^th June,1992 as per the Special Marriage Act, 1954. A girl child was born out of the wedlock on 14^th April,1993. There was matrimonial discord between the Appellant and the Respondent and they were living separately since the year 2000. The Appellant filed an application under Section 27 of the Act seeking a divorce.
• The Appellant alleged that the differences arose because of the improper behaviour of the Respondent in not showing due respect to his ailing father. It was further alleged that the Respondent deserted him and refused to give the custody of the child to him. The Respondent is accused of using intemperate language and threatening the Appellant with filing of criminal cases if he perused the petition for divorce which he proposed in the year 2005.
• The Respondent filed a written statement denying the allegations made in the application filed by the applicant for divorce. She refuted all the averments in the application and sought for dismissal of the application for divorce. The Respondent did not participate in the proceedings before the trial court after filing the written statement.
• The Chief Judge, City Civil Court, Calcutta by the judgment dated 6 th August, 2009 dismissed the application for divorce. The Appeal filed against the said judgment was dismissed by the High Court of Calcutta on 4th April, 2012. The Respondent did not seek to appear before the High Court also. The correctness of the judgment of the High Court is assailed in the above Appeal.
• After referring to the pleadings in the case, the trial court found that the Appellant failed to prove cruelty on the part of the Respondent. The evidence adduced by the Appellant was scrutinized by the trial court to come to a conclusion that the Appellant did not make out a case for divorce. 
• Later, the  High Court, made an attempt for conciliation between the parties. However, in spite of the effort of the High Court, both the Appellant and the Respondent did not appear personally before the High Court. The High Court dismissed the Appeal by holding that irretrievable breakdown of marriage cannot be a ground for divorce. The High Court held that the Appellant failed to prove mental cruelty on the part of the Respondent.
• Notice was issued to the Respondent on 8 th October, 2012 to explore the possibility of an amicable resolution to the matrimonial dispute. The parties were directed to appear before the Mediation Centre of the Supreme Court on 21 st November, 2012. The Respondent did not appear before the Mediation Centre in spite of service of the Notice. Fresh notice was given but the Respondent did not appear in spite of receipt of the Notice again.

Issue:

• Whether divorce can be granted even if the facts of the case do not provide a ground in law on which divorced could be granted?

Held:

• The High Court of Calcutta observed that no attempt was made by either of the parties to be posted at the same place. It was also stated that without entering into the disputed facts of the case there is no likelihood of the Appellant and the Respondent living together and for all practical purposes there is an irretrievable breakdown of the marriage.
• The Supreme Court in order to complete justice between the parties has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the Court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted.
• For the aforementioned reasons, the Appeal is allowed and the application for divorce filed by the Appellant under Section 27 of the Act is allowed.

SECOND MARRIAGE IS VOID UNLESS AND UNTIL THE FIRST MARRIAGE IS DISSOLVED.

SMT. SARLA MUDGAL, PRESIDENT, KALYANI & ORS….. Petitioner

Vs.

UNION OF INDIA & ORS.       …………Respondent

1995 AIR 1531,  1995 SCC (3) 635

IN THE SUPREME COURT OF INDIA

Facts of the Case:

• There are four petitions under Article 32 of the Constitution of India. There are two petitioner in a Writ Petition i.e.  Petitioner 1 is the President of “KALYANI”- a registered society – which is an organisation working for the welfare of needy families and women in distress. Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. In early 1988, the petitioner was shocked to learn that her husband had solemnised second marriage with one Sunita Narula @ Fathima. The marriage was solemnised after they converted themselves to Islam and adopted Muslim religion. According to the petitioner, conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing the provisions of Section 494, IPC. Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu.
• Sunita alias Fathima is the petitioner in a Writ Petition where she contended that along with Jitender Mathur who was earlier married to Meena Mathur embraced Islam and thereafter got married. A son was born to her. She further states that after marrying her, Jitender Prasad, under the influence of her first Hindu-wife, gave an undertaking on April 28, 1988, that he had reverted back to Hinduism and had agreed to maintain his first wife and children. Her grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws.
• Geeta Rani, petitioner in another  Writ Petition contended that she was  married to Pradeep Kumar according to Hindu rites on November 13, 1988. It is alleged in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken. In December 1991, the petitioner learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married her. It is stated that the conversion to Islam was only for the purpose of facilitating the second marriage.
• Sushmita Ghosh is another unfortunate lady who is petitioner in Civil Writ Petition contended that she was married to G.C. Ghosh according to Hindu rites on May 10, 1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such, she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17, 1992, from the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner has further prayed that her husband is restrained from entering into second marriage with Vinita Gupta.

Issues:

• Whether a Hindu husband after married under Hindu law, by converting into Islam, can solemnise second marriage?
• Whether such marriage without having the first marriage dissolved under the law, would be valid upon the fist wife who continues to be a Hindu?
• Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal Code?

Held:

Until Uniform Civil Code is enacted for all the citizens of the country, there is an open inducement to a Hindu husband, who wants to enter into a second marriage while the first marriage is subsisting, to become a Muslim.

Since monogamy is the law for Hindus and the Muslim law permits as many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences. The doctrine of the indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one or both the Hindu spouses did not dissolve the marriage.

The Court, therefore, hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.

A marriage solemnised, whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. One of the grounds under Section 13 (i) (ii) is that “the other party has ceased to be a Hindu by conversion to another religion”. It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act.

A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act, none of the spouses can contract a second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would, therefore, be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void

All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife. The Court, therefore, hold that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC.

Divorce cannot be granted on the  ground of Adultery if the petitioner fails to implead the alleged adulator as co-respondent.

Ram Kumar @ Ramender Kumar…… Appellant

vs

Smt. Raksha @ Galabo……. Respondent

IN THE HIGH COURT OF PANJAB-HARYANA

AIR 2003 P H 334, I (2004) DMC 347, (2003) 133 PLR 707

Facts of the Case:

• The marriage between Ram Kumar and Raksha was solemnized according to Hindu rites and ceremonies on 09.05.1983. Both the parties resided together as husband and wife and cohabited with each other. From this wed-lock, a female child was born, who is at present 11 years old.
• After 13 years of the marriage, the husband filed the divorce petition in the year 1996 alleging therein that the respondent-wife is a quarrel some lady and she quarrels with the appellant and his family members over trivial. She used to wear dirty clothes and whenever she was asked to do the needful, she used to call bad names to the appellant and his family members.
• It was further alleged that the respondent has left the matrimonial home of the appellant without any reasonable excuse and she deliberately deserted the appellant. It was also alleged that the respondent is mentally retarded and is of unsound mind lady. It has also been pleaded that the elder brother of the respondent is also mentally retarded and is of unsound mind.
• Similarly, the female child, who was born to this wedlock, is mentally retailed. It was also pleaded that the respondent has illicit relations with some other person, whose name has not been disclosed in the petition nor he was impleaded as a party.
• The respondent contested the aforesaid divorce petition by denying all the allegations levelled in the petition. It was pleaded by her that she is a simpleton rustic lady and the appellant is bent upon to get rid of her by hook or crook. It was further pleaded by her that the appellant gave her such medicines which affected her mind and she was taken by her father-in-law to Delhi, where he committed rape on her in a hotel. It was also pleaded that father of the appellant is having an evil eye on the respondent and in these circumstances; it is not possible for her to remain in the house of the appellant, who always treated her with cruelty.
• The learned Additional District Judge, after taking into consideration the evidence led by both the parties, dismissed the divorce petition filed by the appellant, while holding that the allegations levelled by the appellant against the respondent have not been proved.
• Aggrieved by the judgement passed by the Additional District Judge, the appellant has filed an instant appeal against the judgment and decree.
• It was contended by the appellants that  when the wife levels false allegations against the character of her husband and his family members, it amounts to cruelty on the part of the wife. He submitted that in the present case, the allegations of the respondent that the appellant was having illicit relations with widow of cousin of the appellant, and her father-in-law has raped her have not been established by her, therefore, the same amounts to false allegations.

Issue:

• Whether the allegations made by the parties against each other are true or not?
• Whether the petition for divorce filed by the appellant can be allowed?

Held:

• As held by the trail court that the respondent and one of the respondents has stated that the appellant was having illicit relations with the wife of his cousin and at this juncture, it may be mentioned that the appellant cannot be permitted to take advantage of his own wrong. Then it has also transpired that father of the petitioner has committed rape with the respondent. Thus, these allegations made by the respondent cannot be said to be scandalous, rather the same are substantiated by cogent evidence, the petitioner cannot be permitted to take benefits of his own wrong.
• It was held that the prayer of the appellant for divorce on the ground of adultery cannot be allowed as he has not disclosed the name of the person with whom the respondent is having illicit relations nor such person has been made party in the petition filed by him.
• Rule 10 of the Hindu Marriage (Punjab) Rules, 1956 provides that if a petition is presented by husband for divorce on the ground of adultery, then he is required to implead the alleged adulator, a co-respondent.
• The court has held that if a petition for divorce is filed by the husband on the ground of adultery, it is necessary for the petitioner to implead the alleged adulator as co-respondent. However, in the said case the husband has not impleaded the alleged adulator, the petition filed by him is not maintainable being non-joining of the necessary party. Thus, in view of the aforesaid fact also, the learned trial court has rightly dismissed the petition for divorce filed by the appellant as the alleged adulator was neither named nor impleaded as a respondent in the petition.
• In the view of the aforesaid discussion, the court has found no merit in the instant appeal filed by the appellant. The same is , accordingly, dismissed with costs, which are assessed at Rs. 2000/-. 

The ground of Mental Cruelty for Divorce will not depend on upon the numerical count of such incidents but on the intensity, gravity and stigmatic impact of it.

Vinita Saxena   …………Petitioner

vs

Pankaj Pandit   …………Respondent

In the Supreme Court of India

(2006) 3 SCC 778

Facts of the Case:

The marriage between the appellant-Vinita Saxena and the respondent-Pankaj Pandit was solemnized on 7.2.1993 as per Hindu rites and customs. No child was born out of wedlock. The marriage, according to the appellant, lasted for five months and was never consummated on account of the fact that the respondent was incapable of performing his matrimonial obligations.

According to the appellant, from the first day of the marriage, the respondent’s mother treated the appellant with utmost cruelty both mental and physical and that the reason for cruelty was the respondent’s mental disorder. 

The respondent’s case is a case of Paranoid Schizophrenia and the appellant discovered only after the marriage that the respondent was under constant treatment and observations of different doctors even prior to the marriage for the said ailment. 

Though the appellant knew the respondent prior to her marriage, in fact, it is only after the marriage, the appellant realised and discovered the mental disorder of the respondent. The appellant was never told by the respondent nor his parents that he was suffering from such serious mental disorder and that he was under the treatment and used to take strong medicines before the marriage.

According to Dr. C.R. Samanta, who was a consultant psychiatrist at Aashlok Hospital, the respondent was a case of Schizophrenia and depression.

At mother-in-law instance, the appellant was beaten mercilessly by the respondent, which made him nervous to the extent that he consumed “Baygon Spray” to commit suicide. 

The situation further became worse on 8.7.1993 and 9.7.1993. Again on the instigation of the respondent’s mother, the respondent slapped and abused the appellant mercilessly and she was not even allowed to have food that day and the next day morning i.e. on 9.7.1993. On 9.7.1993, the appellant was pushed and kicked out of the matrimonial home by her mother-in-law and the respondent and thereafter, the appellant was not permitted to return again.

The appellant filed H.M.A petition on 30.6.1994 against the respondent for dissolution of marriage under Section 13(1)(1-a) and (iii) of the Hindu Marriage Act,1955 on the grounds of mental and physical cruelty and insanity before the Court of District Judge at Delhi. 

The trial Court vide its order dated 15.5.1993, relying on the facts and averments made by the parties as well as taking the medical documents placed on record observed that a letter of request should be written to the Medical Superintendent, L.N.J.P. Hospital to constitute a panel of doctors to examine the respondent and to report about his mental state. However, this order was subsequently set aside by the High Court in a Revision Petition filed by the respondent.

The trial Court, vide order dated 19.3.2001, dismissed the petition filed by the appellant under Section 13(1)(1-a) and (iii) of the Act for the grant of decree of divorce.

Being aggrieved by the said order, the appellant filed an appeal before the High Court. The High Court vide order dated 10.9.2004 dismissed the appeal filed by the appellant holding that the respondent is not suffering from Schizophrenia and that there is insufficient material on record to establish the cause of cruelty and further held that the incidents of cruelty is not so grave which come within the scope of concept of cruelty.

Aggrieved by the said order, the appellant filed an appeal by way of special leave petition before the Supreme Court.

The respondent filed a counter affidavit. It is stated in the counter affidavit that the special leave petition is devoid of any merit inasmuch as the Courts below have given findings of fact in favour of the respondent and the Courts below have rejected the pleas of the appellant on the ground that she has not made out any case for grant of divorce.

In support of the appellant case, she was produced all the witnesses and the medical reports in order to prove the appellant is unable to live with the other spouse because of mental and physical cruelty by the respondent and his mother. It was also observed that there was no evidence whatsoever adduced by the respondent or on his behalf. The respondent, however, got only his statement recorded and before his cross-examination could be concluded, deliberately did not appear in the witness box to complete his deposition.

Issue:

• Whether is the appellant can be granted divorce on the plea of mental and physical cruelty and insanity?

Held:

It was held that the trial Court failed to appreciate the uncontroverted evidence of the appellant who had proved the case on every count. It has been established beyond doubt by the Medical doctors who had deposed as witnesses and brought the original medical record of the respondent that the respondent is suffering from mental disorder. Further ground for grant of divorce on the plea of mental insanity/mental disorder is different than cruelty. The appellant, in our view, had proved beyond doubt that the respondent suffered from mental disorder and that the appellant suffered cruelty by and at the behest of the respondent.

Learned single Judge of the High Court failed to appreciate that in the absence of any evidence led by the respondent, the appellant’s evidence had to be relied upon and on the basis of the evidence, the decree for divorce was bound to be granted in favour of the appellant. The appellant had also given specific instances of cruelty which clearly establish that she had a reasonable apprehension that it will be harmful or injurious for her to live with the respondent.

The facts and circumstances of the case as well as all aspects pertain to humanity and life would give sufficient cogent reasons for us to allow the appeal and relieve the appellant from shackles and chain of the respondent and let her live her own life, if nothing less but like a human being.

The Supreme Court held that, the orders of the Courts below have resulted in grave miscarriage of justice to the appellant who has been constrained into living with a dead relationship for over 13 years. The resultant agony and injustice that has been caused to the appellant, it is a fit case for interference under Article 136 of the Constitution of India and reversal of findings of the Courts below which have resulted in grave miscarriage of justice. In the result, the civil appeal stands allowed. There will be a decree for divorce in favour of the appellant-wife and against the respondent-husband. The order of the trial Court as affirmed by the High Court, stands set aside. There will be no order as to costs.

“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”.

No Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions

Manish Goel

vs

Rohini Goel

In the Supreme Court of India

2010 (2) SCR 414

Facts of the Case: 

The husband, the petitioner, possessed the qualifications of CA, CS and ICWA, while the respondent-wife was a Doctor by profession. The parties got married on 23rd July, 2008 in Delhi. Their relations became strained immediately after the marriage and they were living separately since 24.10.2008.

The husband filed a case under Section 12 of the Hindu Marriage Act, 1955 for annulment of marriage. The wife, Smt. Rohini Goel filed a petition under Section 12 r/w Section 23 of the Domestic Violence Act, 2005. Also, an FIR was also lodged by her against husband and his family members under Sections 498-A, 406 and 34 of Indian Penal Code.

By persuasion of the family members and friends, the parties entered into a compromise before the Mediation Centre, Delhi by which they agreed to settle all their disputes  and also for dissolution of their marriage. The parties filed an application under Section 13-B(1) of the Act before the Family Court seeking divorce by mutual consent.

The parties then filed another application to waive the statutory period of six months in filing the second petition. However, the Court rejected the said application. Hence, they filed a petition before the Hon’ble Supreme Court of India.

Issue :

• Whether the latter application filed by the parties to waive the statutory period of six months can be allowed ?

Held:

It was held that Article 136 of the Constitution gives discretionary power to the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. However, it is an extra-ordinary jurisdiction vested by the Constitution in the Court and extra ordinary care and caution has to be observed while exercising this jurisdiction. There is no vested right of a party to approach this Court and a course can be taken when this court feels that it is so warranted to eradicate injustice. Such a jurisdiction is to be exercised by the consideration of justice and call of duty. The Court has to see that injustice is not perpetuated or perpetrated by decisions of courts below. Also, there should be a question of law of general public importance or a decision which shocks the conscience of the court.

It was observed that even otherwise, the statutory period of six months for filing the second petition under Section 13-B(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 12-B(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 notice in the case at hand. Thus, in view of the above, the court did  not find any justification to entertain this petition. It is accordingly dismissed.

THE MARRIAGE BETWEEN THE PARTIES CANNOT BE DEAD FOR INVOKING THE JURISDICTION OF THE SUPREME COURT UNDER ARTICLE 142 OF THE CONSTITUTION FOR DISSOLVING THE MARRIAGE.

Savitri Pandey ……Appellant

vs

Prem Chandra Pandey …….Respondent

(2002) 2 SCC 73

IN THE SUPREME COURT OF INDIA

Facts of the case:

• The appellant and the respondent had solemnised their marriage on 6.5.1987, after which the parties had lived together till 21.06.1987, without consummating the marriage as stated by the appellant. After 21st June, 1987 the parties started living separately.
• The appellant had alleged that her parents spend a whole sum of Rs.80000/- with respect to the ceremonies of the marriage and had given a several other articles to the respondent and his family. Even after this, the family members along with the respondent had made further demands of Colour TV, Refrigerator and some other ornaments besides hard cash of Rs.10,000/-
• The father of the appellant obliged the respondent by giving him Rs.10,000/- in the first week of June, 1987 but could not fulfil the other demands of his parents. Upon which the respondent and his family members were alleged to have started torturing the appellants on false pretexts.
• The appellant being aggrieved by the respondent and his family members had filed a petition under Section 13 of the Act, seeking the dissolution of the marriage by divorce along with the prayer for the return of the property and the grant of the permanent alimony.
• Later on, the respondent had also filed another petition seeking divorce and grant of other reliefs but however the respondent filed an application revoking the petition on14.05.1996 which was allowed by the court.
• After this, the appellant had alleged that the respondent was having an illicit affair with a lady with whom his marriage was solemnised. These allegations were completely denied by the respondent and had stated that the appellant wife was taking advantage of her own wrongs.

Issue:

• Whether the defendant has treated the petitioner with cruelty? If so, its effect?
•  Whether the petitioner is entitled to relief under Sec.27 of the Hindu Marriage Act? If so, its effect?

Held:

• The Family Court after the arguments had observed and concluded that there was no evidence which led to prove the allegations made by the appellant. Adding to this, the court had held that it was proved that the respondent had deserted the petitioner, and so the petitioner will get or is entitled to for a decree of divorce.
• Later on, the High Court in this case held that there was no evidence produced that the wife has been treated with cruelty by the husband and there is no evidence that the petitioner was deserted.
• The Supreme Court in this case had upheld the views of the lower court and stated that that the desertion actually means the ignorance from matrimonial duties, by either party instead of leaving the place. It also requires the existence of cohabitation between the parties earlier.
• Also it observed that the appellant herself is trying to take advantage of her own wrong and in the circumstances of the case, the marriage between the parties cannot be held to have become dead for invoking the jurisdiction of this Court under Article 142 of the Constitution for dissolving the marriage.

THE A DECREE OF DIVORCE UNDER MUTUAL CONSENT IF ONE OF THE PARTIES DOES NOT GIVE CONSENT

Smt. Sureshta Devi……Appellant

vs

Om Prakash…….Respondent

1991 SCR (1) 274

IN THE SUPREME COURT OF INDIA

Facts of the case:

• The appellant-wife and the respondent-husband were married on 21.11.1968 and they lived together for six to seven months. After that the wife did not stay with the husband except from 09.12.84 to 07.01.1985, even in that period they had not lived like husband and wife.
• On 08.01.1985 the appellant and the respondent met at Hamirpur. The appellant-wife was accompanied by a counsel. After the discussion the parties decided to file a petition in the court under Section 13-B for divorce under mutual consent in the District Court.
• Later on15.01.1985 the appellant had filed another petition stating that her statement dated 09.01.1985 was obtained under pressure and the threat of her husband and she was not even allowed to see or meet her relations to consult them before filing the petition for divorce.
• So the District Judge had dismissed the petition for divorce but later upon the appeal the HC revered the order and granted the decree for the dissolution of the marriage under Section 13-B stating that a party who has given consent to a petition for divorce under mutual consent cannot unilaterally withdraw the consent.
• Moreover, the High Court also recorded a finding that the wife gave her consent to the petition without any force, fraud or undue influence and therefore she was bound by that consent.

Issue:

• Whether a party to the petition for divorce for mutual consent under Section 13-b of the Hindu Marriage Act, 1955 can unilaterally withdraw the consent or whether the consent once given is irrevocable?

Held:

• The need for the detailed study on this question has arisen because of the fact that the High Courts do not speak with one voice on this aspect.
• The High Courts of Bombay, Delhi and Madhya Pradesh were of the opinion that if the consent was given voluntarily given it would not be possible for any party to nullify the petition was filed. If the consent was voluntarily given it would not be possible for any party to nullify the petition by withdrawing the consent.
• But in contrary the High Courts of Kerala, Punjab, Haryana and Rajasthan held that it is open to one of the spouses to withdraw the consent given to the petition at any time before the Court passes a decree for divorce. The satisfaction of the Court after holding an inquiry about the genuineness of the consent, necessarily contemplates an opportunity for either of the spouses to withdraw the consent.
• Also the Sub-section of section 13 requires the court to hear the parties and if one of the party does not given consent at the time of enquiry then the court cannot pass a decree of divorce under mutual consent.
• Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B but the Mutual consent should continue till the divorce decree is passed. The appeal was allowed by the SC and the decree was set aside for dissolution of marriage.

ASKING OUT THE WIFE FOR MONEY MAY AMOUNT TO CRUELTY

Shobha Rani……Appellant

vs

Madhukar Reddi…….Respondent

1988 SCR (1)1010

IN THE SUPREME COURT OF INDIA

Facts of the case:

• The appellant-wife and the respondent-husband were happily married on December 19^th 1982. The wife is a post-graduate in biological sciences and the husband was a medical doctor. Their happy marriage hadn’t last for long and their and at one stage they started exchanging letters to each other with bitter feelings and they began to accuse each other.
• After a lot of discussion they thought of winding up the marriage by mutual consent but they ultimately had to get to the court. The wife filed a petition for divorce on the ground of cruelty.
• The wife had alleged that the husband and the members of the family had demanded for money from the wife though she kept repeating that she wouldn’t ask her parents as it could create an apprehension in the mind of the parents physically or mentally.
• But in defence for the above allegations the husband stated that there was no wrong in asking the wife for money as they were life partners and he needed that money.

Issues raised:

• Whether the above facts show that there was any sort of cruelty of the husband towards the wife?
• Whether this case would fall under the purview of dowry harassment?

Held:

• The initial family court and the HC on appeal opined that the above facts do not justify the demand for money as dowry harassment as the respondent was a young doctor and it was very normal to ask his wife to give him money when he was in need of it and the allegation made by the wife was no satisfactory evidence that the demands were as to border of harassment.
• However the Honourable Supreme Court had treated this as cruelty.
•   It has held the word Cruelty’ has not been defined. Indeed, it could not have been defined. It has been used in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. It is a matter of inference to be drawn by taking into account. The cruelty will be established if the conduct itself is proved or admitted.
•   Ultimately the SC has held in this case that the facts of this case fall under the purview of dowry harassment. The husband and his family members has asked the wife to being home a sum of money which is considered to be a criminal offence under the Dowry Prohibition Act or under the Indian Penal Code. Such an act can be construed as cruelty under section 498A of IPC.

A DECREE OF DIVORCE CAN BE GRANTED WHEN THE HUSBAND IS ASKED TO GET SEPARATED FROM HIS PARENTS

Narendra……Appellant

vs

K.Meena…….Respondent

[(2016) 9 SCC 455]

IN THE SUPREME COURT OF INDIA

Facts of the case:

• The appellant –husband and the respondent-wife got married on 26^th February 1992 and had a daughter who was born on 13^th November 1993. The husband stated that the wife did not leave with him happily even for a month after their marriage.
• Later on a petition for divorce was filed by the husband due to wife’s suspicious nature and levelling of frivolous by serious allegations charged by her against the husband. The wife also put allegations on the husband of having an extra-marital affair with the maid who worked for them and she has also wanted the husband to leave his parents and family members and live separately with her.
• The wife’s behavior made it difficult for the husband to live with her as she also wanted him to leave his parents and other family members and get separated from them to live independently.
• Another allegation by the husband was that the wife often threatened him that she would commit suicide. In July 1995, she fought with the husband, went to the bathroom and poured kerosene on herself in an attempt to commit suicide. The husband, his brother and some neighbors rushed in to prevent her from committing suicide.
• In the month of November 2001 the husband filed a petition for divorce in the trial court on the ground of mental cruelty of the wife. The trial court granted the divorce and the wife challenged it in the HC which set aside the divorce in 2006.

Issue:

• Whether the above facts of the case construed mental cruelty of the wife?

Held:

• The court, after evaluating all the evidence of witnesses, found that there was no fault of the husband or any other reason for the wife to attempt to commit suicide. The court observed that had the husband failed to help the wife and stop her, the husband would have been subject to extreme hardship due to the domestic violence and dowry prevention laws applicable in India.
• In the court’s 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 wife to constrain the husband to be separated from the family would be torturous for the husband and in the opinion of the apex court, the trial Court was right when it came to the conclusion that this constitutes an act of ‘cruelty’.
• The court considered the unreasonable demands made by the wife to get the husband separated from his family members. The wife wanted the husband to live separately from his family to have access to his earnings. It was also found that the wife deserted the husband after the attempt to suicide. Considering all these facts, the Supreme Court held that the husband was rightfully entitled to get a divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955.

THE SUPREME COURT HAD LAID DOWN FIVE TESTS IN ORDER TO PROVE CRUELTY

Narayan Ganesh Dastane……Appellant

vs

Sucheta Narayan Dastane…….Respondent

1975 SCR (3) 967

IN THE SUPREME COURT OF INDIA

Facts of the case:

• The appellant-husband is a well-educated man and the respondent-wife was educated women and her father was Government minister. The marriage between the couple got finalised in April, 1956 and before this the father of the wife had stated that the wife had been severely affected by a sunstroke which has affected her mental health for a while and later she was suffering from cerebral malaria and altogether these contributed to a decline on her mental health. The father of the respondent had advised the husband to get a confirmation from the doctor who treated her in the mental hospital.
• In the month of March, 1957 a daughter was born to them and in march 1959 another daughter was born to them. There were a lot of frivolous arguments and disturbances in their marriage life. When they went to Poona to attend a marriage the respondent promised to consult the psychiatrist as per the appellant’s request. But later on doubting that the appellant would divorce her on the basis of unsound mind the respondent did not cooperate with the doctor and the husband.
• They lived together until February 1961, but the Respondent was three month’s pregnant when her relationship with her husband was strained. During the Appellant’s stay in Delhi, he wrote to the Police asking for protection as he feared his life was in danger from the Respondent’s parents and relatives.
• The Respondent addressed a letter to the Appellant complaining against his conduct and asking for maintenance for herself and her daughters. The Respondent also wrote a letter to the Secretary, Ministry of Food and Agriculture, stating that the Appellant had deserted her, treated her with extreme cruelty, and asked the Government to separately provide for her maintenance. Her statement regarding the Appellant’s ill-treatment and desertion was recorded by an ASP. The recorded statements and cross-complaints amongst the parties was futile and did not bear any fruit.
• On December 15, 1961, the Appellant informed the Respondent’s father that he has moved the Court for seeking separation from the Respondent.
• On February 19, 1962, proceedings were instituted in the Trial Court where the Appellant asked for the annulment of his marriage under §12 (1)(c), Hindu Marriage Act, 1955 (HMA) on the ground that his consent was obtained by fraud. The Appellant alleged that the Respondent was treated for Schizophrenia and the Respondent’s father fraudulently represented the state of her mental health to him to obtain his consent. Alternatively, he asked for divorce under Section13 (1) (iii), HMA, on the ground that the Respondent was of unsound mind. Alternatively, the Appellant asked for judicial separation under Section10 (1)(b) on the ground that the Respondent had treated him with a cruelty which created a reasonable apprehension in his mind that his life is under threat if he lives with her.

Issues:

• Whether the Burden of Proof of cruelty lies on the Petitioner or not?
• Whether the facts have to be established beyond reasonable doubt in matrimonial matters?
• Whether the act of sexual intercourse amounts to condonation of cruelty?

Held:

• In the present case, the Appellant’s contention regarding his wife being of unsound mind was fabricated by him. The contention regarding the Respondent inflicting cruelty on the Appellant has been proven to exist, but the Appellant’s act of engaging in sexual intercourse with the Respondent amounts to condonation of cruelty in the eyes of law.
• After the acts of cruelty have been condoned, for the Appellant’s claims regarding cruelty to have held ground, the Respondent’s subsequent conduct had to be as grave or to the degree of her previous acts of cruelty. The Respondent was willing to make amends and return to the household shared by both parties and she realised her mistakes.
•  The Appellant condoned the Respondent after which she did not act in the manner she did before the condonation. The Respondent will not be held liable for cruelty.
• The court in this case has laid down 5 tests in order to identify the cruelty in cases- The tests laid down in determining whether a given conduct amounts to legal cruelty is as follows:

1. The alleged acts constituting cruelty should be proved according to the law of evidence;
2. There should be an apprehension in the Petitioner’s mind of real injury or harm from such conduct;
3. The apprehension should be reasonable having regard to the condition of the parties;
4. The Petitioner should not have taken advantage of his position;
5. The Petitioner should not have condoned the acts of cruelty.