Divorce on
the GROUNDS of cruelty and desertion: Vista ASCERTAINED
The Division bench of
Delhi High Court has recently i.e on 18.12.2023 has delved in the issue of
cruelty and desertion while determining the vista for obtaining divorce. The
cases in this context are captioned as (i) S P Vs RDP (Complete names withheld)
bearing no.MAT App (FC) 38/2021& (ii)
P V Vs R V (Complete names withheld) MAT App (FC) 54/2020. Whereas, both
the cases revolved around desertion and cruelty, but, so far as the first case
is concerned, the decree of divorce in favour of husband was passed, on the premise of cruelty and
desertion both. As regards PV,
though, the allegation again revolved around both cruelty and desertion, however,
decree of divorce was granted in favour of husband on the premise of cruelty
alone. In this backdrop, the respective as aforementioned were filed by the
aggrieved wives against decree of divorce granted to husbands. Pertinently, in both the aforesaid cases,
decree of divorce granted in favour of husband by Family Courts has been upheld
by the hon’ble Delhi High Court, while dismissing the respective appeals
preferred by the wife in both the cases.
The Appeal preferred
by S P under Section 19(1) of the
Family Courts Act, 1984 against the impugned Judgment and decree passed by the
learned Judge, Family Court, (South-East) Saket, Delhi granting divorce on the
ground of cruelty and desertion in a petition filed by the respondent/husband
under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 ( In
short referred to as HMA, 1955).
Similarly, the Appeal by P V was filed under Section 28 of HMA,
1955 read with Section 19 of the Family Courts Act 1984, on behalf of the
appellant/wife, against the impugned Decree/Order passed by the learned
Principal Judge, Family Court, Delhi granting divorce on the ground of cruelty,
in a petition filed by the respondent/husband under Sections 13(1)(ia) and
13(1)(ib) of HMA, 1955.
It may be necessary to go through
the facts of the case, shorn of unnecessary details.
Facts alleged in the Case in SP Vs RDP:
Version
of Husband
(i)
The wife had a quarrelsome
nature and would get hyper for no rhyme and reason and she was uncontrollable
when she got angry. In her fit of anger she even broke the household items, ran
out of the house in her night clothes, screaming and shouting and continued to
behave in that manner;
(ii)
The husband as per the job
profile had to travel across the country and the wife started accusing him of
having an affair with a female colleague unmindful of the disrespect to his
married and unmarried female colleagues, thus affecting his performance in job;
(iii)
Their relationship was
deteriorating and becoming worse due to the tendency of the wife to pick
fights. The wife started avoiding his company and refused to cohabit with him.
She left the house along with the child born out of wedlock and took all the
household items and went to her parent’s house. She informed him that she was
consulting a lawyer for divorce;
(iv)
The wife developed an
affair with one “X” (name withheld), living in Chandigarh about which he came
to know when he saw various emails exchanged between his wife and “X”. X used
to visit Delhi only to meet the wife of respondent , thus that caused disturbances
even in the matrimonial life of “X”.
(v)
Both husband and wife
herein earlier at several occasions agreed for divorce by mutual consent, but
the wife had backed out every time.
(vi)
When both of the spouse were residing
together, the wife frequently left the child alone in the house and was quite
reckless. The school of child was frequently changed and the child was shifted
to hostel in Tamil Nadu, though, the appellant/wife was residing there in the
rented accommodation. The child was shifted to “Pune” upon transfer of
appellant/wife, whereas all the while the husband was taking care of education
and expenses of the child;
(vii)
A false complaint was
filed against the husband and the husband responded to with reply and hence the
complaint was not proceeded with;
(viii)
Yet again a complaint u/s
498-A of IPC was lodged before CAW Cell in South East Delhi and the husband
responded to police inquiry and as the complaint was found false, hence not
proceeded with;
(ix)
Complaint under Domestic
Violence Act (DV Act) was also filed subsequently;
(x)
The DV disputes were
settled in mediation and the wife agreed to withdraw the DV complaint, but
rather than withdrawing the complaint, the wife obtained ex-parte maintenance
of Rs 1 Lakh per month from a Metropolitan Magistrate, Mahila Court;
(xi)
The parties are living
separately for quite a long period of time and he is deserted by the wife.
Version of Wife
(i)
The allegations made in
the petition was false and frivolous. The Divorce Petition was a pressure
tactic adopted by the respondent husband to discourage her from pursuing the
recovery of arrears of maintenance before other courts. Despite the order of
the learned MM, not even a penny has been paid by the respondent-husband.
(ii)
She had to agree for
divorce by mutual consent under undue influence of her counsel and that she could
not receive maintenance all the while, despite the order passed to that effect
as appeals/ revision are preferred;
(iii)
The allegations made in the divorce petition
were defamatory and the husband was trying to raise a finger on her character
by concocting false story. She was subjected to harassment, ill-treatment and
cruelty and was thrown out of the matrimonial home by the respondent;
(iv)
The wife was left with no
option but to take shelter in the portion of her house which was left for her
by her father. Her dowry articles, cash, jewellery, etc. have been retained by
the respondent;
(v)
The respondent failed to
take the responsibility of the child and once he thrashed his son in such a way
that he lost his hearing ability. Presently, he has 80% hearing loss in his
left ear and is facing difficulty in his professional life. She has no money
for proper treatment or to purchase a hearing aid for the son.
The wife, thus, claimed that the
divorce petition was liable to be dismissed.
After full dress
trial by the family court, the husband was granted decree of divorce by family
court on the grounds of desertion and cruelty and the same was upheld by the
high court.
The Delhi High Court analysed
the facts of the appeals in the touchstone of law. The judicial precedents relied
upon by the parties are as under:
|
S.N |
Title/Citation |
Remark |
|
1. |
Suman Singh vs Sanjay Singh (2017) 4 SCC 85 |
Reliance by wife |
|
2. |
Nagendra vs K Meena (2016) 9 SCC 455 |
Reliance by husband |
|
3. |
A vs BS 249 (2018) DLT 544 (DB) |
Reliance by husband |
|
4. |
Harpreet Kaur vs Amarjeet Singh 266 (2020) DLT 597 (DB) |
Reliance by husband |
|
5. |
Ritesh Babber Vs Kiran Babbar 2022 SCC OnLine Del 726 |
Reliance by husband |
|
6. |
Jyoti Yadav vs Neeraj Yadav 2022 SCC OnLine Del 795. |
Reliance by husband |
The hon’ble Division
bench in S P Supra) has held as
under in para 37, 41 & 42:
“37. The Apex Court in the case of A. Jaychandra vs. Aneel Kaur 2005 (2) SCC
22, observed that cruelty is a course or conduct of one, which adversely
affects the other. If the cruelty is physical, it is easy to comprehend but the
problem arises when the cruelty is claimed to be mental. It was explained that
first an inquiry must be made about the nature of the cruel treatment,
secondly, its impact on the mind of the spouse and whether it caused reasonable
apprehension that it would be harmful or injurious to the spouse. Ultimately,
inference has to be drawn of the effect on the complaining spouse. If the
conduct complained of itself is bad, it is enough to conclude against the
spouse and no further inquiry need to be held. The proof of conduct itself is
sufficient to prove the conclusion of cruelty”.
“41. The Supreme Court in the case of Raj Talreja v. Kavita Talreja, (2017) 14
SCC 194 , while relying on Ravi
Kumar v. Julmidevi (2010) 4 SCC 476, has categorically held that reckless,
false and defamatory allegations against the husband and family members would
have an effect of lowering their reputation in the eyes of the society and it
amounts to cruelty. It was observed that filing mere complaints is not cruelty,
if there are justifiable reasons of filing them”.
“42. Thus, making of false allegations
in a complaint filed after seven years of separation, amounts to cruelty”.
Similarly, in S P (Supra) in para 46 it
is held:
“46. The Apex Court in the case of Rajib Kumar Roy vs Sushmita Saha 2023 SCC
OnLine SC 1221, observed as under:- Continued bitterness, dead emotions and
long separation, in the given facts and circumstances of a case, can be
construed as a case of irretrievable breakdown of marriage, which is also a
facet of cruelty. In Rakesh Raman v.
Kavita reported in 2023 SCC OnLine SC 497, this is precisely what was held,
that though in a given case cruelty as a fault, may not be attributable to one
party alone and hence despite irretrievable breakdown of marriage keeping the
parties together amounts to cruelty on both sides.”
In P V
(Supra) it is held as under in para 28 and 29:
“28. In the case of K. Srinivas Rao v. D. A. Deepa (AIR
2013 SC 2176), it had been held by the Supreme Court that making unfounded
indecent defamatory allegations against the spouse or his or her relatives in
the pleadings amount to causing mental cruelty to the other spouse.
29. The Supreme Court in the
case of Raj Talreja v. Kavita Talreja,
(supra) , while relying on Ravi
Kumar v. Julmidevi (2010) 4 SCC 476, has categorically held that “reckless,
false and defamatory allegations against the husband and family members would
have an effect of lowering their reputation in the eyes of the society” and it
amounts to cruelty. Similar observations were made by the coordinate bench of
this court in the case of Rita v. Jai
Solanki 2017 SCC OnLine Del 9078. 30. In the case of K. Srinivas Vs. K. Sunita X (2014) SLT 126 the Supreme Court held
that filing of the false complaint against the husband and his family members
also constitutes mental cruelty for the purpose of Section 13 (1) (ia) of the
Hindu Marriage Act. Similarly, it has been held by the Supreme Court in Mangayakarasi v. M. Yuvaraj (2020) 3
SCC 786, that an unsubstantiated allegation of dowry demand or such other
allegations made against the husband and his family members exposed them to
criminal litigation. Ultimately, if it is found that such allegations were
unwarranted and without basis, the husband can allege that mental cruelty has
been inflicted on him and claim a divorce on such a ground.
It was therefore held by the
Division bench of Delhi High Court in P
V (Supra) that leveling of said allegations must have caused immense
cruelty to the respondent/husband. According to the High Court, the learned
Principal Judge, Family Court has rightly observed that “making such
scandalous, defamatory, unsubstantiated allegations against the father of the
respondent/husband and the respondent/ husband regarding the character of the
respondent/ husband and also that the respondent/husband had tried to kill her
without any evidence amounts to cruelty. The Delhi High Court on similar
premise has dismissed the appeal in the case of SP as well.
The Hindu Marriage Act 1955 contains
the grounds of divorce and as regards the present appeals, the case revolved
around 13(1)(ia) and 13(1)(ib) of the HMA, 1955 i.e
on the grounds of desertion and cruelty. There is no magical charm associated
the word cruelty and desertion and that could be ascertained only in the course
of trial. Any of the spouse if found victim of cruelty and desertion can apply
for divorce on the said premise or premises, even if contested on the basis of
evidence on record if found proved decree of divorce in favour of aggrieved spouse
could be granted by a competent family court. There is no straight jacket
formula for ascertaining that and the veracity of allegation and defence shall
vary in case to case basis. However, cosmetic complaints with ritualistic
averments shorn of specifics may not pass muster. It is often seen that a
complaint or defence predicated on mala
fide are found to be segregated like chauff
and grain.
-------
Anil K Khaware
Founder
& Senior Associate
Societylawandjustice.com
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