Debra Clare Seymour vs Pradeep Arnold Seymour
2002 Latest Caselaw 490 Del

JUDGMENT

J.D. Kapoor, J.

1. The parties are Christians. The petitioner wife had initially sought a decree for judicial separation on the ground of cruelty but subsequently converted it into a petition for dissolution of marriage though under Section 10 of the India Divorce Act, 1869, a Christian wife subjected to cruelty cannot seek divorce on the ground of cruelty alone unless it is accompanied with the ground of adultery whereas a Christian husband can dissolve the marriage on the ground of adultery alone. Relevant extracts of Section 10 are as under:-

"10. When husband may petition for dissolution Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.

When wife may petition for dissolution - Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his profession of Christianity for the through a form a marriage with another woman; or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

Contents of petition - Every such petition shall state, as distinctly as the nature of the case permits, the facts on which the claim to have such marriage dissolved is founded."

2. As is apparent from the aforesaid provisions the Indian divorce Act treats Christian wives differently not only than the woman belonging to the other religions but also on the ground of sex. On the one hand the christian woman has to prove adultery to put an end to the marriage even if she succeeds in proving cruelty unto her while on the other hand the husband can break the marital bond if he succeeds in proving unto him or adultery alone. The bias against females is writ large. I am reminded of the Paul's words to the Ephesians in the New Testament:-

"Wives submit yourself unto your own husbands as unto the Lord. For the husband is the head of wife, even as Christ is the head of he Church and he is the saviour of the body....."

3. Even otherwise such a discrimination is per se violative of Articles 14 & 15 of the Constitution. Article 14 mandates the State not to deny to any person equality before the law or equal protection of the laws within the territory of India. The mandate of Article 15 is that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any them.

4. Provisions of Section 10 of the Indian Divorce Act came up for scathing criticism by Bombay High Court in Mrs. Pragati Varghese v. Cyril George 1997 Bombay 349 and Kerala High Court in Amini E.J. v. UOI . Both the High Courts took the view that Section 10 of the Indian Divorce Act is ultra vires of Articles 14 & 15 of the Constitution of India. However the Kerala High Court adopted a safer course. Instead of striking down the entire provisions of Section 10 of the Act it held that the offending portions of the provisions are severable and they are liable to be quashed as ultra vires whereas the remaining portions of the provisions can remain as valid provisions allowing dissolution of marriage on grounds of ad adultery simplicitor and desertion and cruelty independent of adultery.

5. Being in complete agreement with the view taken by Bombay and Kerala High Court I hold that the provision of Section 10 discriminating the Christian wives vis-a-vis ground of cruelty are ultra vires of Article 14 and 15 of the Constitution as they hit at the very fount of concept of equality and non-discrimination on the ground of sex and adopt t he course suggested by Kerala High Court and entertain the petition for dissolution of marriage, on the ground of cruelty alone.

6. Case of the petitioner lies in moderate compass. The parties entered into the wedlock on 6th August, 1977 in the Catholic Church at Gole Dak Khana, New Delhi. After the marriage the petitioner stayed in Delhi while the respondent went to Chandigarh which was his place of business where he had an Intercom's Agency. The petitioner being unemployed was totally dependant upon the respondent. After waiting for the respondent to make arrangement for her stay at Chandigarh the petitioner went to Chandigarh and found the respondent occupying a huge Bungalow and sharing the same with his friend, though he had been representing to the petitioner that he was looking for house for her. It is alleged that shortly after the marriage the respondent had shown utter careless attitude towards his responsibilities and duties.

7. From the wedlock one male child was borne on 2nd June, 1978 in Chandigarh. It is alleged that no money for household expenses was given by the respondent to the petitioner nor any toys or clothes were bought by the respondent for their son. Even the house was furnished with the petitioner's savings and clothes for the child were also bought from her money. To earn the livelihood and to keep the sone alive the petitioner joined a job in International Data Management Private Limited. In the meantime the respondent got a good offer for intercoms in South India. The parties shifted to Madras in April, 1981 and the petitioner also got herself transferred from Delhi to Madras. However in the year 1982 the parties again moved to Delhi.

8. Rather than being grateful to her for taking up her responsibilities so well, the respondent stopped communicating altogether with her. He took to drinking heavily. He even stopped doing the odd jobs at home that he did in the past like buying the groceries, picking up and dropping their son to school and it was left to her to earn to support the family and manage the house.

9. The respondent's behavior had n ow degenerated to being vile and abusive. He would threaten her with dire consequences if she did not succumb to his demands completely. The respondent treated her like a servant. The most painful of all was when the respondent began making allegation of adultery against her whenever she was constrained to work late in the office. On several occasions she tried to invite some office colleagues to her home for a meal, the respondent got drunk on these occasions only to be able to abuse then and embarrass her in front of her colleagues. The respondent constantly complained about her capabilities. The respondent put her down in front of his friends and say that she was incapable of independent thought and so nothing she said should be taken seriously.

10. In February, 1989 the respondent repented and came to her with the plea of giving their marriage another chance. He said he missed his son. It was in June, 1989 she returned to her matrimonial home in the hope that relationship between them might take a turn for the better.

11. The father-in-law of the petitioner entered into an agreement with a building contractor to build ten flats on his land in Saket. The builder was to take five flats and five were to remain with her father-in-law. Due to the signing of the contract the family was supposed to move to rented premises. The respondent told her that he would not allow her to move into the apartments at MB Road and he would throw all her belongings on the road and on 8th September, 1990 the respondent ordered her to leave the house within 24 hours.

12. The respondent resumed his acts of cruelty only a month after her return to her matrimonial home. The respondent started going out every night and return in the early hours of morning drunk and waking both her and their son and then trying to scare them with his vile abuses and threats. The petitioner felt that she would suffer a nervous breakdown if she stayed in the matrimonial home any longer and decided to leave in the interest of the lives of herself and her son. While leaving she tried to take a few of her belongings with her and upon this the respondent grabbed hold of her and began beating her and she locked herself in the bedroom in abject terror. The next day she lodged a report with the police and did not mention in the report about the beating by the respondent as she still hoped that her husband would one day return to her and she did not want to reduce the possibility of a reconciliation by making serious allegations and also to protect her interests. Finally on 15th September, 1990 the petitioner left her matrimonial home.

13. The respondent met with an accident on 2nd January, 1991. The petitioner used to go to see him daily in the hospital. When the respondent returned home from the hospital his father became critical and was admitted to the hospital and on 24th February, 1991 he died. On 15th September, 1990 the petitioner was thrown out of the matrimonial home and had suffered great and continued cruelty by her husband. Since that date she never returned to the house of the respondent.

14. Respondent was proceeded ex parte as he did not choose to contest the allegations despite service of petition. By way of evidence the petitioner has filed the affidavit in support of the allegations.

15. However the concept of happiness in marriage is a modern concept and a result of progressive social philosophies and doctrine of bona(blessings) of marriage. According to Litchen Berger, a renowned modern sociologist, marriage is a part of normal human relations and is based on individual and social expediency and utility. According to him marriage is entered into and perpetuated according to its prescriptions of the civil contract. In his opinion, respect for the institution of marriage could hardly be enhanced by insistence on the preservation of the external form in instances in which the internal relations had a mockery or when the actuality of these relations had disappeared.

16. In his Book 'Divorce- A social interpretation (1931) he has compared the dissolution of marriage with the readjustment of legal status of persons. According to him where every marriage tie has been severed, parties have gone their separate ways and discontinued their marital relations, the marriage has actually no longer any existence in fact. Dissolution is nothing but the readjustment of the legal status of persons formerly married but between whom marital relations already have ceased to exist.

17. It is this development of concept of happiness in marriage that the concept of cruelty encompasses the mental cruelty also and is not confined to the cruelty culminating in the injury or danger to life or limb or health of a person through physical violence. Verbal wounds or indifferent conduct even bereft of physical harm inflict more severe blows psychologically and mentally. That is why course of conduct that destroys peace of mind or grievously hurts the mental feelings of he other or renders the living together insupportable amounts to cruelty. However petty pin-pricks and minor bickerings or trivials are normal incidences of marriage and allowances have also to be made to the temperament, social status and eduction of both the parties.

18. Even the Supreme Court in Dr. N.G. Dastane v. Mrs. S. Dastane has unequivocally stated that cruelty charged must be of such a character as to cause in mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It was also pointed out that it was not necessary as is the requirement of 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. Harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not.

19. The Supreme Court also laid down the tests though these cannot be put in straight-jacket, to determine whether cruelty is made out or not in V. Bhagat v. D. Bhagat wherein the mental cruelty was broadly defined as a conduct or mental sufferings as would make it not possible for the party to live with the other. These are:-

(i) Mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together.

(ii) The situation must be such that the wronged party cannot reasonably be asked to put up with such a conduct and continue to live with other party.

(iii) It is not necessary to prove that mental cruelty is such so as to cause injury to the health of the petitioner.

(iv) 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 may not amount to cruelty in another case.

20. In a recently decided case S. Hanumantha Rao v. S. Ramani the Supreme Court held that the cruelty means that when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and husband and as a result of which it becomes impossible for the party who has suffered to lie with the other party.

21. While applying the aforesaid tests the incidents of cruelty cited by the petitioner and proved byway of affidavit come within the ambit of 'cruelty.' Some of these instances may be summed up as under:-

Immediately after the marriage the respondent left the petitioner alone in Delhi on the assurance that he would find a place for her living in Chandigarh and, he did not see her for four months since the date of her wedding and when she decide don her own to join the respondent in Chandigarh she was shocked to see that he was living in a large Bungalow. The respondent refused to support the petitioner and their child. Rather he expected his wife to pay for day to day running of the house. He never allowed the petitioner to accompany him to parties and dinners. After moving to Delhi the respondent's behavior degenerated to be vile and abusive. Whenever she invited her office colleagues at his house he would get drunk and abuse her by calling her stupid. incompetent, bad cook. This caused her to loose confidence in herself. She withdrew completely into herself and became nervous and began suffering from acute mental sufferings and break down. She was thrown out of the matrimonial home Along with her son. However when she rejoined him he resumed violence. He would go out every night and return in the early hours of the morning drunk and would scare them with abuses and threats. Under these circumstances the partitioner cannot be expected to live with the respondent as she would suffer mentally, psychologically and physically.

22. As a consequence the petition is allowed and marriage is dissolved. A decree of divorce in hereby passed