Delhi High Court
Swati vs Arvind Mudgal on 29 January, 2015
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of decision: 29th January, 2015
% MAT. APP. 5/2013
SWATI ..... Appellant
Through : Ms. Meenakshi Agarwal, Advocate
Mr. Sunil Mittal, Amicus curiae
versus
ARVIND MUDGAL ..... Respondent
Through : Ms. Dimple Vivek, Advocate
CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The appellant has challenged the judgment of the learned
Additional District Judge whereby her petition for divorce on the
ground of cruelty has been dismissed. For the sake of convenience,
the parties shall be referred as per their ranks before the learned
Trial Court as „petitioner‟ and „respondent‟, respectively.
Petitioner's case
2. The respondent married the petitioner on 14th June, 2009 by
using force, undue influence and coercion. The respondent used to
go wild after drinking liquor and he used to utter filthy abuses to
the petitioner. The respondent never allowed the petitioner to visit
her parents even for a day. The respondent used to quench his
thirst of inner instinct by humiliating the petitioner in public by
abusing, slapping or dragging her by her hairs. The respondent
used to beat the petitioner with whatever came to his hand that
might be racket, shoes, slipper, belt, lamp-shed. The verbal
abusiveness, violent tendencies and the paranoid behavior practiced
by the respondent upon the petitioner within short span of about
two weeks of marriage badly shattered inner soul of the petitioner.
3. On 29th June, 2009 i.e. after 15 days of the marriage, the
petitioner was arrested by the police for the murder of a boy,
named Gopal under Sections 302/34 IPC.
4. After about two weeks of the arrest of the respondent i.e. in
second week of July, 2009, the mother of the respondent started
humiliating the petitioner by taunting her that her son went to jail
because of marrying her and she demanded Rs.2 lakh from the
petitioner for pursuing the Court case.
5. On 26th August, 2009 at 9.30 AM, the petitioner went to
Butler Public School to attend the parents-teacher meeting of the
respondent‟s minor sister, Anjali on the instructions of her mother-
in-law. The petitioner returned at around 11.30 a.m. when she
found her mother-in-law in objectionable clothes with a middle age
man who left on seeing the petitioner whereupon her mother-in-law
tortured and slapped the petitioner.
6. On 9th October, 2009, the petitioner‟s mother-in-law took her
to Tis Hazari Court. The petitioner‟s step-father also came there.
The respondent as well as his mother abused and humiliated the
petitioner‟s step-father. The petitioner‟s mother-in-law on several
occasions took her to Tis Hazari Court where she disgracefully
insulted her. The petitioner‟s mother-in-law also abused the
petitioner‟s mother several times on telephone.
7. On 5th November, 2009, the petitioner left the matrimonial
home and came back to her parents for her safety. At that time, the
respondent‟s mother had gone to Agra to visit her other son,
Kuldeep who was lodged in Agra Jail. The petitioner received
many telephonically threats directly from her mother-in-law and
unknown persons threatening on behalf of the respondent.
8. On 5th April, 2011, the petitioner instituted a petition for
grant of divorce on the ground of cruelty under Section 13(1)(ia) of
the Hindu Marriage Act, 1955.
9. On 2nd May, 2011, the respondent was convicted under
Section 302/34 IPC by the Court of learned Additional Sessions
Judge and sentenced to imprisonment for life.
10. The respondent challenged his conviction before this Court
in Criminal Appeal 923/2011 which was dismissed on 19 th March,
2014.
Respondent's case
11. The petitioner is a greedy and cruelsome lady and has filed
the divorce petition only to extort money from the respondent. The
petitioner demanded Rs. 5 lakh from the respondent and his mother
to purchase a new house for her family with a threat to make their
life hell. The petitioner used to tell the respondent that she married
him to buy a new house for her parents with the respondent‟s
money and if the respondent failed to fulfill her demands, she will
implicate the respondent and his family in false cases.
12. The respondent‟s mother succumbed to the threats of the
petitioner and gave Rs.5 lakh to the petitioner to save the
matrimonial home of her son. The petitioner purchased a new
house bearing No.F-183A, Gali No.6, Wazirabad, Delhi for her
parents with the aforesaid amount.
13. The petitioner pressurized the respondent and her family
members to transfer the title deeds of his residence (which is in the
name of respondent‟s mother) in the name of the petitioner. The
illegal demands of the petitioner increased day by day and the
respondent and his family members tried their level best with the
hope that better sense will prevail upon the petitioner one day, but
the petitioner‟s greed became very high and she started
pressurizing the respondent and his family members to transfer the
title deeds of their residence in her favour. However, the
respondent and his mother overlooked this demand.
14. The petitioner in collusion with her childhood friend, Anju
falsely implicated the respondent for the murder of Gopal in FIR
No.111/2009, P.S. Timarpur, New Delhi under Sections 302/34
IPC because the respondent and her mother refused to transfer the
title deeds of their residence in favour of the petitioner.
15. Even when the respondent was in custody, the petitioner
threatened him to transfer the title of his residence in her favour
and in return, she will ask her friend Anju, (widow of Gopal who
was murdered), not to depose against the respondent, but if the
transfer of the title was not done by the respondent in her favour,
the petitioner will falsely implicate the respondent, which she
actually did.
16. The petitioner wants divorce without any rhyme or reason
because the respondent has been convicted in a false case at the
behest of the petitioner for failing to fulfill the desires of the
petitioner and her family members of leading a luxurious life with
the respondent‟s money, as he was earning handsomely, which she
had anticipated at the time of marriage.
17. The petitioner‟s father also threatened the respondent to
transfer the title of his residence in petitioner‟s name, failing which
the respondent would remain in jail for ever. The respondent asked
the petitioner‟s father where his family would go after transferring
the title whereupon the petitioner‟s father said that it was not their
concern.
18. On 5th November, 2009, the respondent‟s mother went to
Agra to look after her ailing husband. At the time of leaving for
Agra, the respondent‟s mother handed over the keys of the locker
to the petitioner in which her jewellery of about 8 to 10 tolas and
cash of about Rs.3 lakh were kept for medical treatment of her
husband. When the respondent‟s mother reached Agra, she got the
news that the petitioner had run away from the matrimonial home
and has taken away the entire jewellery and cash of Rs.3 lakh kept
in the locker for the medical expenses of her husband.
Evidence led by the parties before the Trial Court
19. The petitioner appeared in witness box as PW-1 and
reiterated the case set up by her in the divorce petition. She was
cross-examined at length by the respondent‟s counsel. The
petitioner clearly admitted in cross-examination that her marriage
to the respondent was a love marriage. However, in cross-
examination not even a single question/suggestion was put to her
with respect to the defence set up by the respondent more
particularly with respect to the allegations that the respondent‟s
mother had paid Rs.5 lakh to the petitioner to enable her to
purchase a house for her family; that the petitioner threatened the
respondent to transfer the title of her mother‟s house in her name,
which was not agreed to by the petitioner and, therefore, she falsely
implicated the respondent for murder of Gopal; that the
respondent‟s mother left for Agra on 5th November, 2009 after
leaving the locker keys with the petitioner; and that the petitioner
left the matrimonial home on 5th November, 2009 and took away
the entire jewellery of the respondent‟s mother and cash of Rs.3
lakh from the locker. The petitioner‟s mother Ramesh Kumari
appeared in the witness box as PW-2 and she reiterated the case set
up by the petitioner. PW-2 was also cross-examined at length but
again the aforesaid defence set up by the respondent was not put to
her.
20. The respondent appeared in the witness box as RW-1 and
reiterated the defence set up by him in his written statement. The
respondent reiterated in cross-examination that the marriage
between the parties was a love marriage. He was cross-examined at
length. In cross-examination, the respondent pleaded complete
ignorance as to when the petitioner‟s parents purchased house
No.F-183A, Gali No.6, Wazirabad, Delhi. He pleaded complete
ignorance of the statement made in the written statement and
examination-in-chief that his mother gave Rs.5 lakh to the
petitioner.
Findings of the Trial Court
21. The learned Trial Court held that the marriage between the
parties was a love marriage and, therefore, the allegations of force,
undue influence and coercion by the petitioner were mis-founded.
The learned Trial Court held that the parties lived together only for
a period of 15 days from 14th June, 2009 to 29th June, 2009 and the
allegations of cruelty have not been substantiated since the
petitioner has not given the specific dates and detailed particulars
of the alleged incidents. The learned Trial Court further held that
arrest and conviction of the respondent for the offence of murder
cannot be termed as cruelty as is envisaged in the Hindu Marriage
Act. The learned Trial Court further observed that the petitioner
has not specifically pleaded and proved that the conviction and
imprisonment for life of the respondent has resulted any cruelty to
her.
Additional evidence led by the petitioner before this Court
22. During the pendency of the appeal, the petitioner moved an
application for permission to lead additional evidence, which was
allowed by this Court vide order dated 18 th September, 2014,
whereupon the petitioner filed her additional evidence by way of
affidavit in which she deposed as under:-
(i) The criminal background of the respondent and his
subsequent conviction has caused immense mental pain and
agony to her and she is looked upon in the society and
amongst the family members as murderer‟s wife because of
the heinous crime committed by the respondent.
(ii) The respondent‟s cruel act has resulted in physical
deprivation of matrimonial relationship which has caused
physical and mental pain and torture.
(iii) The conviction and incarceration of the respondent in jail
has also resulted in constructive desertion.
(iv) The petitioner proved the certified copies of the judgment of
the Sessions Court as Ex.AW-1/1 and certified copy of the
judgment of the High Court in Criminal Appeal
No.923/2011 as Ex.AW-1/2 and the complaint made to the
police as Ex. AW-1/3.
(v) On 21st August, 2014, between 10:30 p.m. to 11:00 p.m.,
the petitioner found respondent roaming around her house
and he threatened the petitioner to eliminate her entire
family. Some unknown person also visited petitioner‟s
house at the instance of the respondent and she received a
threatening call from phone No.9711311391.
(vi) On 28th August, 2014, the petitioner again received a call
from mobile No.8750605013 from the respondent when he
threatened the petitioner to withdraw this appeal, failing
which he would throw the petitioner from rooftop as the
punishment of one murder and 10 murders is the same.
(vii) The petitioner reported the matter to the police vide Diary
No.63B on 4th September, 2014, copy whereof was proved
as Ex.AW-1/3.
Submissions of the petitioner
23. Learned counsel for the petitioner has urged at the time of
hearing that the petitioner has duly proved various instances of
cruelty suffered by her. It is further submitted that the respondent
brutally murdered Gopal which resulted in his conviction and
imprisonment for life which has resulted in mental cruelty to the
petitioner. Learned counsel has referred to and relied upon Vimla
Bai v. Panchu lal, AIR 2007 Rajasthan 99; Mohanan v.
Thankamani, 1994 (2) KLJ 777; Sri Ganesha v. Smt. Vijaya,
M.F.A No.11864/2011(FC), decided by Karnataka High Court on
19th March, 2012; and Sunita Devi v. Om Prakash, (2010) 174
DLT 471 in which the Courts have granted the decree of divorce on
the ground of the conviction of the spouse for the offence of
murder under Section 302 IPC. Reliance was placed on Shobha
Rani v. Madhukar Reddi, (1988) 1 SCC 105; A. Jayachandra v.
Aneel Kaur, (2005) 2 SCC 22; Vinita Saxena v. Pankaj Pandit,
(2006) 3 SCC 778; Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC
511; Vishwanath Agrawal v. Sarla Vishwanath Agrawal , (2012)
7 SCC 288; K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 in
which the Courts laid down the principles relating to the meaning
of the term „cruelty‟. Learned counsel further submitted that the
conviction resulting in sentence of imprisonment for a period of
seven years and upwards is a valid ground of divorce under Section
27(1) of the Special Marriage Act, 1954, Section 2(iii) of the
Dissolution of Muslim Marriage Act, 1939 and Section 32(f) of the
Parsi Marriage and Divorce Act, 1936. Reference was made to the
matrimonial laws in Arizona, Illinois and Texas of USA which
provide the conviction for serious offences as a valid ground for
divorce.
Submissions of the respondent
24. Learned counsel for the respondent has urged at the time of
the hearing that the marriage between the parties was a love
marriage and the parties lived together only for a period of 15 days.
The instances of cruelty relied upon by the petitioner are vague and
in any case, they are not sufficient to constitute cruelty for granting
divorce to the petitioner. The petitioner did not plead before the
Trial Court that the offence of murder has resulted in cruelty to her
and the additional evidence led by the petitioner is beyond the
pleadings before the Trial Court. The petitioner did not agitate
before the Trial Court that false allegations in the written statement
have caused mental cruelty to her. Learned counsel further
referred to K.R. Mohan Reddy v. M/s Net work Inc. Rep. Tr.
M.D., AIR 2008 SC 579; State of Gujarat v. Mahender Kumar,
AIR 2006 SC 1864; Haryana State Industrial Development
Corporation v. Cork Manufacturing Co., AIR 2008 SC 56 in
support of her contention that good reason must be shown for
leading additional evidence. Reliance was placed on Malyalam
Plantations ltd. v. State of Kerala, VIII (2010) SLT 452; Mahavir
Singh v. Naresh Chandra, VIII (2000) SLT 163 in support of the
proposition that additional evidence cannot be permitted to be
adduced to fill up the lacuna or patch up weak points of a case.
Reliance was placed on Appasahab v. State of Maharashtra,
(2007) 9 SCC 721 where the Supreme Court held that the demand
of the accused for domestic expenses and purchasing manure
cannot be said to be dowry and Sunil Bhiku Yadav v. State of
Maharashtra, 2009 CriLJ 4262 in support of the proposition that
the dowry refers to the property given or agreed to be given at or
before or at any time after marriage or in connection with marriage.
Submissions of the Amicus Curiae
25. Vide order dated 18th September, 2014, this Court appointed
Mr. Sunil Mittal, Advocate, as amicus curiae to assist this Court,
particularly on the issue as to whether the offence of murder
committed by the respondent would constitute cruelty to the
petitioner. Learned amicus curiae has further submitted that the
instances of cruelty proved by the petitioner are sufficient to grant
a decree of divorce to her. Learned amicus curiae referred to
Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, A.
Jayachandra v. Aneel Kaur, (2005) 2 SCC 22; Vinita Saxena v.
Pankaj Pandit, (2006) 3 SCC 778; Samar Ghosh v. Jaya Ghosh,
(2007) 4 SCC 511; Vishwanath Agrawal v. Sarla Vishwanath
Agrawal , (2012) 7 SCC 288; K. Srinivas Rao v. D.A. Deepa,
(2013) 5 SCC 226; Parveen Mehta v. Indermeet Mehta, AIR 2002
SC 82; Keshorao Krishanji Londhe v. Nisha Londhe, AIR 1984
BOM 413 (FB) with respect to the meaning of the term „cruelty‟.
Learned amicus curiae submitted that though the ground of raising
false and defamatory statements against the petitioner in the written
statement was not specifically pressed by the petitioner before the
Trial Court, but there is no impediment in pressing this ground in
appeal which is the continuation of suit. Learned amicus curiae
referred to K. Srinivas Rao v. D.A. Deepa (supra); Hemwanti
Tripathi v. Harish Narain Tripathi, AIR 2012 DELHI 1; D.N.
Sharma v. USha Sharma, AIR 2004 DELHI 109; Jai Dayal v.
Shakuntala Devi, AIR 2004 DELHI 39; Ramesh Kumar Sharma
v. Akash Sharma, (2008) II DMC 315 HP; Mohinder Kaur v.
Bhag Ram, AIR 1979 P&H 71; Pushpa Datt Mishra v. Archana
Mishra, AIR 1992 260 (Madhya Pradesh) on the proposition that
wild, false, scandalous and unsubstantiated allegations made in the
written statement amount to cruelty. Reliance was placed on
Shobha Rani v. Madhukar Reddi (supra); A. Jayachandra v.
Aneel Kaur; S. Latha Kunjamma v. K. Anil Kumar, 2008 (2) KLJ
49, Pushpa Rani v. Krishan Lal, AIR 1982 Delhi 107, Parihar
(Priti) v. Parihar (Kailash Singh), AIR 1978 Rajasthan, where the
Courts held that subsequent events can be looked into by the
appellate Court. Learned amicus curiae also referred to Vimla Bai
v. Panchulal, AIR 2007 Rajasthan 99; Mohanan v. Thankamani,
1994 (2) KLJ 777; Sri Ganesha v. Smt. Vijaya, M.F.A No.
11864/2011(FC), decided by Karnataka High Court on 19th March,
2012; Sunita Devi v. Om Prakash, (2010) 174 DLT471; Ram Lalli
v. Soney Lal, (1990) I DMC 518 (Madhya Pradesh High Court), in
which the Courts upheld the conviction for murder under the Indian
Penal Code as a valid ground for divorce. Learned amicus curiae
also referred to Section 27(1) of the Special Marriage Act, 1954,
Section 2 (iii) of the Dissolution of Muslim Marriage Act and
Section 32(f) of the Parsi Marriage and Divorce Act where the
sentence to imprisonment for a period of seven years and upwards
has been specifically made ground of divorce. Learned amicus
curiae also referred to the matrimonial laws in Arizona, Illinois and
Texas of USA, Italy and UK where the conviction for a serious
offence is recognized as a valid ground of divorce. Reference was
made to Stanwich v. Stanwich, (1970) 3 All. E.R. 983; Cade v.
Cade, (1957) All. E.R. 609, Sheldon v. Sheldon, 1966 (2) All.
E.R.257 at 259.
26. Cruelty under Section 13(1)(ia) of Hindu Marriage Act
Under Section 13(1)(ia) of the Hindu Marriage Act, 1955, a
marriage can be dissolved on the ground of cruelty by one spouse
to the other. „Cruelty‟ may be physical or mental. The term
„cruelty‟ means when one spouse has so treated the other and
manifested towards him or her so as to cause such feelings towards
him or her as to cause in her or his mind reasonable apprehension
that it will be harmful or injurious to live with the other spouse. In
the recent pronouncement of the Supreme Court in Dr. (Mrs.)
Malathi Ravi v. Dr. B.V. Ravi, (2014) 7 SCC 640, the Supreme
Court noted all the relevant cases which dealt with the issue of
mental cruelty and therefore, this judgment alone is sufficient to
note the relevant principles. The relevant portion of the said
judgment is reproduced hereunder:
"29. Before we proceed to deal with the issue of mental
cruelty, it is appropriate to state how the said concept
has been viewed by this Court. In Vinita
Saxena v. Pankaj Pandit [(2006) 3 SCC 778] , while
dealing with the issue of mental cruelty, the Court held
as follows:
"31. It is settled by a 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.
xxx xxx xxx
35. 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."
30. In Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC
511] this Court has given certain illustrative examples
wherefrom inference of mental cruelty can be drawn.
The Court itself has observed that they are illustrative
and not exhaustive. We think it appropriate to
reproduce some of the illustrations: (SCC pp. 546-47,
para 101)
"(i) On consideration of complete matrimonial
life of the parties, acute mental pain, agony and
suffering as would not make possible for the
parties to live with each other could come
within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that the
wronged party cannot reasonably be asked to
put up with such conduct and continue to live
with other party.
(iv) Mental cruelty is a state of mind. The
feeling of deep anguish, disappointment,
frustration in one spouse caused by the conduct
of other for a long time may lead to mental
cruelty.
xxx xxx xxx
(vii) Sustained reprehensible conduct, studied
neglect, indifference or total departure from the
normal standard of conjugal kindness causing
injury to mental health or deriving sadistic
pleasure can also amount to mental cruelty.
xxx xxx xxx
(x) 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 fairly
lengthy period, where the relationship has
deteriorated to an extent that because of the
acts and behaviour of a spouse, the wronged
party finds it extremely difficult to live with the
other party any longer, may amount to mental
cruelty.
xxx xxx xxx
(xiv) Where there has been a long period of
continuous separation, it may fairly be
concluded that the matrimonial bond is beyond
repair. The marriage becomes a fiction though
supported by a legal tie. By refusing to sever
that tie, the law in such cases, does not serve
the sanctity of marriage; on the contrary, it
shows scant regard for the feelings and
emotions of the parties. In such like situations,
it may lead to mental cruelty."
31. In the said case the Court has also observed thus:
(Samar Ghosh case [(2007) 4 SCC 511]
"99. 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 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.
100. Apart from this, 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...."
32. In Vishwanath Agrawal v. Sarla Vishwanath
Agrawal (2012) 7 SCC 288, while dealing with mental
cruelty, it has been opined thus:
"22. The expression „cruelty‟ has an
inseparable nexus with human conduct or
human behaviour. It is always dependent upon
the social strata or the milieu to which the
parties belong, their ways of life, relationship,
temperaments and emotions that have been
conditioned by their social status."
33. In the said case, analysing the subsequent events
and the conduct of the wife, who was responsible for
publication in a newspaper certain humiliating aspects
about the husband, the Court held as follows:
"54. ... In our considered opinion, a normal
reasonable man is bound to feel the sting and
the pungency. The conduct and circumstances
make it graphically clear that the respondent
wife had really humiliated him and caused
mental cruelty. Her conduct clearly exposits
that it has resulted in causing agony and
anguish in the mind of the husband. She had
publicised in the newspapers that he was a
womaniser and a drunkard. She had made wild
allegations about his character. She had made
an effort to prosecute him in criminal
litigations which she had failed to prove. The
feeling of deep anguish, disappointment, agony
and frustration of the husband is obvious."
34. In U. Sree v. U. Srinivas (2013) 2 SCC 114 , the
Court, taking note of the deposition of the husband that
the wife had consistently ill-treated him inasmuch as
she had shown her immense dislike towards his
"sadhna" in music and had exhibited total indifference
to him, observed as follows:
"23. ... It has graphically been demonstrated
that she had not shown the slightest concern for
the public image of her husband on many an
occasion by putting him in a situation of
embarrassment leading to humiliation. She has
made wild allegations about the conspiracy in
the family of her husband to get him remarried
for the greed of dowry and there is no iota of
evidence on record to substantiate the same.
This, in fact, is an aspersion not only on the
character of the husband but also a maladroit
effort to malign the reputation of the family."
35. In K. Srinivas Rao v. D.A. Deepa [(2013) 5 SCC
226, while dealing with the instances of mental cruelty,
the Court opined that to the illustrations given
in Samar Ghosh [(2007) 4 SCC 511] certain other
illustrations could be added. We think it seemly to
reproduce the observations:
"16. ... Making unfounded indecent defamatory
allegations against the spouse or his or her
relatives in the pleadings, filing of complaints or
issuing notices or news items which may have
adverse impact on the business prospect or the
job of the spouse and filing repeated false
complaints and cases in the court against the
spouse would, in the facts of a case, amount to
causing mental cruelty to the other spouse."
27. Whether conviction of a respondent for the offence of
murder and sentence of life imprisonment amounts to
cruelty
27.1 In Sunita Devi v. Om Prakash 174 (2010) DLT 471, the
wife sought divorce on the grounds of cruelty and desertion caused
by the husband who had illicit relationship with a lady named
Geeta and he used to beat his wife mercilessly and secondly, the
husband killed his illegitimate daughter born out of his illicit
relationship with Geeta and he has been convicted under Section
302 IPC and sentenced to life imprisonment. The District Judge
dismissed the petition against which the wife came in appeal before
this Court. This Court allowed the appeal holding that the husband
has caused mental pain of such a magnitude that it has severed the
bond between husband and wife as a result of which it has become
impossible for the wife to live with the husband. This Court
further noted that although the judgment of conviction is a
subsequent development but since an appeal is a continuation of
the original petition, the same can be taken note for deciding the
issue involved. Relevant portion of the said judgment is
reproduced hereunder:
"6. Section 13(1)(ia) of the Hindu Marriage Act, 1955
makes cruelty as a ground for divorce. The term „cruelty‟
however has not been defined in the Act. The Court has
to rest its decision on the facts and circumstances of each
case on assessment of human nature and human affairs
with due regard to social conditions and customs of the
parties. Here it would be useful to the judgment of the
Apex Court in the case of Shobha Rani v. Madhukar
Reddi, (1988) 1 SCC 105, wherein it was held that:
"Section 13(1)(i-a) uses the words "treated the
petitioner with cruelty". The word "cruelty" has
not been defined. Indeed it could not have been
defined. 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 of one which
is adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional. If
it is physical the Court will have no problem to
determine it. It is a question of fact and degree. If
it is mental the problem presents difficulty. First,
the inquiry must begin as to the nature of the cruel
treatment. Second, the impact of 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. There may, however, 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."
xxx xxx xxx
8. Human emotions do not run on dotted lines. Every
person has a different level of tolerance and sensitivity
and certain allegations of cruelty levelled by one spouse
may cause mental cruelty to his/her spouse and the same
very allegations in some other case may not be
considered of that magnitude to cause cruelty of such
nature. Each case is dependent upon various factors;
social, economic, family background, upbringing,
education, etc. However, one thing which can be
considered universal in all situations is that no spouse
can tolerate his/her spouse having illicit relations or
extra marital relations. It would be useful to refer to the
judgment of the Apex Court in the case of Naveen
Kohli v. Neelu Kohli, (2006) 4 SCC 558 : AIR 2006 SCC
1675, here where it was held that:
"To constitute cruelty, the conduct complained of
should be „grave and weighty‟ so as to come to the
conclusion that the petitioner spouse cannot be
reasonably expected to live with the other spouse.
It must be something more serious than „ordinary
wear and tear of married life‟. The conduct taking
into consideration the circumstances and
background has to be examined to reach the
conclusion whether the conduct complained of
amounts to cruelty in the matrimonial law.
Conduct has to be considered, as noted above, in
the background of several factors such as social
status of parties, their education, physical and
mental conditions, customs and traditions. It is
difficult to lay down a precise definition or to give
exhaustive description of the circumstances,
which would constitute cruelty. It must be of the
type as to satisfy the conscience of the Court that
the relationship between the parties had
deteriorated to such extent due to the conduct of
the other spouse that it would be impossible for
them to live together without mental agony,
torture or distress, to entitle the complaining
spouse to secure divorce. Physical violence is not
absolutely essential to constitute cruelty and a
consistent course of conduct inflicting
immeasurable mental agony and torture may well
constitute cruelty within the meaning of Section 10
of the Act. Mental cruelty may consist of verbal
abuses and insults by using filthy and abusive
language leading to constant disturbance of
mental peace of the other party.
The Court dealing with the petition for divorce on
the ground of cruelty has to bear in mind that the
problems before it are those of human beings and
the psychological changes in a spouse's conduct
have to be borne in mind before disposing of the
petition for divorce. However, insignificant or
trifling, such conduct may cause pain in the mind
of another. But before the conduct can be called
cruelty, it must touch a certain pitch of severity. It
is for the Court to weigh the gravity. It has to be
seen whether the conduct was such that no
reasonable person would tolerate it. It has to be
considered whether the complainant should be
called upon to endure as a part of normal human
life. Every matrimonial conduct, which may cause
annoyance to the other, may not amount to cruelty.
Mere trivial irritations, quarrels between spouses,
which happen in day-to-day married life, may also
not amount to cruelty. Cruelty in matrimonial life
may be of unfounded variety, which can be subtle
or brutal. It may be words, gestures or by mere
silence, violent or non-violent."
9. In the present case, from the facts on the record it is
clearly borne out that the respondent has caused mental
pain of such a magnitude that it has severed the bond
between the wife and husband and as a result of which
it has become impossible for the appellant wife who has
suffered to live with the other party. Thus the
requirement of Section 13(1)(ia) stands fulfilled.
Therefore if a spouse is found living or having any kind
of illicit relationship with any other person then such an
act in itself is sufficient to prove cruelty on the part of
such spouse. Although the passing of the judgment of
conviction is a subsequent development but since an
appeal is a continuation of the original petition
therefore the same can be taken into consideration for
deciding the issue involved."
(Emphasis supplied)
27.2 In Vimla Bai v. Panchu Lal, AIR 2007 Raj. 99, the wife was
involved in a murder case, which was held to be cruelty by the
Rajasthan High Court to grant divorce to the husband. Relevant
portion of the said judgment is reproduced hereunder:
"11. Cruelty as a ground of divorce under Section
13(1)(ia) is a conduct of such type that the husband could
not reasonably be expected to live with the wife. In our
opinion, involvement of the appellant wife in a murder
case amounts to cruelty and learned Family Court has
rightly granted decree of divorce. We find no infirmity
in the impugned judgment and decree."
(Emphasis Supplied)
27.3 In Ganesha v. Vijaya, MFA 11864/2011 (F.C.), decided by
Karnataka High Court on 12th March 2012, the wife sought
divorce on the grounds of cruelty and desertion caused by her
husband who was facing a charge of murder of one person and
injuring others. The husband made false allegations against the
wife that she had remarried one Nagaraja. The Sessions Court
convicted the husband to seven years of imprisonment, which was
enhanced to life imprisonment by the High Court. Karnataka High
Court held that making false allegations of re-marriage against the
wife amounts to mental cruelty. Karnataka High Court further held
that the wife cannot be made to suffer for no fault of hers as the
husband had been convicted for life. The relevant portion of the
said judgment is reproduced hereunder:-
"7...That after the marriage, the appellant has been
convicted for life and he is serving the sentence at
Central Jail, Bellary. It is also his case that the wife has
re-married to one Nagaraja and requested to bring
Nagaraja as a party to the suit To show that the wife
has married Nagaraja, no material is placed. In other
words, such allegations amounts to mental cruelty. In
the circumstances, we are of the view that the Trial
court is justified in granting a decree of divorce on the
ground of cruelty.
8. Be that as it may, when the appellant has been
convicted for life, even the ground of desertion has to be
taken into account legally because the appellant cannot
live with the wife and give conjugal happiness to her. For
the rest of the life for no fault of the wife, she cannot be
made to suffer, if the marriage tie being allowed even
though the husband convicted for life. In the
circumstances, it is not a case for interference."
(Emphasis supplied)
27.4 In Mohanan v. Thankamani, ILR 1995 (1) Kerala 83 the
wife was convicted for the offence of murder of two minor
children, which was held to be sufficient to constitute cruelty to
dissolve the marriage between the parties by the Kerala High
Court. The relevant portion of the said judgment is reproduced
hereunder: -
"2...Even a single act of violence which is of grievous and
inexcusable in nature satisfies the test of cruelty. The
allegation that the respondent had killed her children is
not a matter to be trifled with, in the petition itself the
allegation that the respondent had killed her children is
specifically stated. Conviction by the Sessions Judge
against the respondent under Section 302 of the Indian
Penal Code is not a matter in dispute. Pendency of the
appeal is not a mitigating factor. Eventual acquittal in the
criminal case would not be sufficient to assuage the
embittered feelings of the father (appellant). The single act
of violence against the children establishes the cruel
conduct of the respondent. Even if it is assumed that the
respondent had not treated the appellant with cruelty the
crime perpetrated against the children would certainly
amount to cruelty to him also"
27.5 Section 27(1)(c) of the Special Marriage Act, 1954; Section
2(iii) of the Dissolution of Muslim Marriage, Act, 1939; and
Section 32(f) of the Parsi Marriage and Divorce Act, 1936,
specifically provide the sentence of imprisonment for 7 years or
more for an offence as defined in Indian Penal Code as a ground
for divorce. The relevant provisions are reproduced hereunder:
27.5.1 Special Marriage act, 1954
"Section 27-Divorce
(1) Subject to the provisions of this Act and to the rules made
thereunder, a petition for divorce may be presented to the district
court either by the husband or he wife on the ground that the
respondent-
(c) is undergoing a sentence of imprisonment for seven years or
more for an offence as defined in the Indian Penal Code."
27.5.2 Parsi Marriage and Divorce Act, 1936
"Section 32-Grounds for divorce
Any married person may sue for divorce on any one or more of the
following grounds, namely:-
(f) that the defendant is undergoing a sentence of imprisonment for
seven years or more for an offence as defined in the Indian Penal
Code"
27.5.3 Dissolution of Muslim Marriage Act, 1939
Section 2- Grounds for decree for dissolution of marriage
A woman married under Muslim law shall be entitled to obtain a
decree for the dissolution of her marriage on any one or more of
the following grounds, namely:
(iii) that the husband has been sentenced to imprisonment for a
period of seven years or upwards"
27.6 The matrimonial laws in following countries provide the
conviction for a serious offence as a valid ground of divorce:
S. Name of Name of the Code Ground of Divorce Hyper Link
No the and Section
Country
1. South Divorce Act, 1979 , The defendant has, in terms of http://www.justice.gov.z
Africa Sec. 4(2)(c) a sentence of a Court has been a/legislation/acts/1979-
declared a habitual criminal 070.pdf
and is undergoing
imprisonment as a result of
such a sentence, as proof of the
breakdown.
2. Georgia 2010 Georgia Code , The conviction of either party http://law.justia.com/co
(U.S.A) Domestic Relations for an offense involving moral des/georgia/2010/title-
§ 19-5-3 turpitude, under which he is 19/chapter-5
sentenced to imprisonment in a
penal institution for a term of
two years or longer
3. New York Domestic Relations The confinement of the http://www.nycla.org/P
(U.S.A) Laws § 170(3). Action defendant in prison for a period DF/Domestic%20Relati
for divorce of three or more consecutive ons%20Law%20Section
years after the marriage of s.pdf
plaintiff and defendant.
4. Arizona Title 25 - Marital The Respondent spouse has http://www.azleg.gov/A
(U.S.A) and Domestic committed a felony and has rizonaRevisedStatutes.a
Relations -Article - been sentenced to death or sp?Title=25
903 -Dissolution of imprisonment in any federal,
a covenant marriage; state, country or municipal
grounds correction facility.
5. Illinois Illinois Marriage and "That, without cause or http://law.justia.com/co
(U.S.A) Dissolution of provocation by the petitioner:
Marriage Act - Sec. the respondent... or has been des/illinois/2010/chapte
401 r750/075000050HPt_IV
convicted felony of a felony or
other infamous crime." .html
6. Texas Texas Family Code - Conviction of Felony. (a) The http://www.statutes.legi
( U.S.A) Sec. 6.004
court may grant a divorce in s.state.tx.us/Docs/FA/ht
favor of one spouse if during m/FA.6.htm
the marriage the other spouse:
(1) has been convicted of a
felony;
(2) has been imprisoned for at
least one year in the Texas
Department of Criminal
Justice, a federal penitentiary,
or the penitentiary of another
state; and
(3) has not been pardoned.
7. Italy The Law of 1 Either of the spouses may http://ec.europa.eu/civilj
December 1970, No. apply for divorce:
898, as amended by a. for any offence carrying a ustice/divorce/divorce_i
the Law of 1 August sentence of life ta_en.htm
1978, No. 436 and imprisonment or
by the Law of 6 imprisonment for more
March 1987, No. 74, than 15 years, possibly as
a result of multiple
sentencing, for pre-
meditated offences, apart
from political offences and
offences committed on
specific moral or social
grounds;
b. for any offence carrying a
custodial sentence for
incest (section 564 of the
Criminal Code) or violent
sexual offences under
sections 609bis (sexual
violence), 609quater,
609quinquies, 609octies
(introduced by Act No 66
of 1996);
c. for any offence carrying a
custodial sentence for
murdering the spouse's
child(ren) or for attempted
murder of the spouse or
their child(ren);
d. for any offence carrying a
custodial sentence, where
the person has been found
guilty on two or more
counts of grievous bodily
harm, failure to fulfil
family support obligations,
abuse in the family or of
minors or circumvention
of an incapable harming
the spouse or their
child(ren), except where
the applicant for divorce
has been convicted on
conspiracy or where it has
been established that they
are again living together);
27.7 Although the conviction of a person for murder has not been
specifically made ground for divorce under the Hindu Marriage
Act, but it would definitely amount to mental cruelty on the ground
that it results in deprivation of conjugal rights, as well as food,
shelter and security; and it would cause mental pain, agony and
apprehension in the mind of other spouse that it would be harmful
or injurious to live with the other.
28. Appellate Court can consider the subsequent events
28.1 It is well settled that the Appellate Court can take subsequent
events into consideration to shorten the litigation between the
parties and for doing complete justice to them. Although many
judgments have been cited before this Court, the recent judgment
of the Supreme Court in Dr. (Mrs.) Malathi Ravi v. Dr. B.V. Ravi,
(supra) deals with this issue very exhaustively in a divorce case and
is therefore, sufficient to decide this issue.
28.2 In Dr. (Mrs.) Malathi Ravi v. Dr. B.V. Ravi (supra) the
husband sought dissolution of marriage on the ground of desertion
under Section 13(1)(ia) of the Hindu Marriage Act, which was
rejected by the family Court. The High Court, in appeal, took the
subsequent events into consideration and dissolved the marriage by
a decree of divorce. The wife approached the Supreme Court and
urged that the ground of desertion was not established. It was
further urged that the subsequent events relating to the cruelty
could not have been considered by the High Court. The Supreme
Court held that the subsequent conduct of the wife can be taken
into consideration and the decree of divorce granted by the High
Court was upheld on the ground of cruelty. Relevant portion of the
said judgment is reproduced hereunder: -
24. ...It is settled in law that subsequent facts under
certain circumstances can be taken into
consideration.
25. In A. Jayachandra v. Aneel Kaur [(2005) 2 SCC
22] it has been held thus: (SCC p. 32, para 16)
"16. ... If acts subsequent to the filing of the
divorce petition can be looked into to infer
condonation of the aberrations, acts subsequent
to the filing of the petition can be taken note of to
show a pattern in the behaviour and conduct."
26. In Suman Kapur v. Sudhir Kapur [(2009) 1 SCC
422 : (2009) 1 SCC (Civ) 204] this Court had accepted
what the High Court had taken note of despite the fact
that it was a subsequent event. It is necessary to
reproduce the necessary paragraphs from the said
decision to perceive the approach of this Court: (SCC
pp. 437-38, paras 46-47)
"46. The High Court further noted that the
appellant wife sent a notice through her advocate
to the respondent husband during the pendency of
mediation proceedings in the High Court wherein
she alleged that the respondent was having
another wife in USA whose identity was
concealed. This was based on the fact that in his
income tax return, the husband mentioned the
social security number of his wife as 476-15-
6010, a number which did not belong to the
appellant wife, but to some American lady (Sarah
Awegtalewis).
47. The High Court, however, recorded a finding
of fact accepting the explanation of the husband
that there was merely a typographical error in
giving social security number allotted to the
appellant which was 476-15-6030. According to
the High Court, taking undue advantage of the
error in social security number, the appellant wife
had gone to the extent of making serious
allegation that the respondent had married an
American woman whose social security number
was wrongly typed in the income tax return of the
respondent husband."
27. From the acceptance of the reasons of the High
Court by this Court, it is quite clear that subsequent
events which are established on the basis of non-
disputed material brought on record can be taken into
consideration. Having held that, the question would
be whether a decree for divorce on the ground of
mental cruelty can be granted. We have already
opined that the ground of desertion has not been
proved. Having not accepted the ground of desertion,
the two issues that remain for consideration are
whether the issue of mental cruelty deserves to be
accepted in the obtaining factual matrix in the
absence of a prayer in the relief clause, and further
whether the situation has become such that it can be
held that under the existing factual scenario it would
not be proper to keep the marriage ties alive.
28. The learned counsel for the appellant has urged
with vehemence that when dissolution of marriage was
sought on the ground of desertion alone, the issue of
mental cruelty can neither be raised nor can be
addressed to. Regard being had to the said submission,
we are constrained to pose the question whether in a
case of the present nature we should require the
respondent husband to amend the petition and direct
the learned Family Judge to consider the issue of
mental cruelty or should we ignore the fetter of
technicality and consider the pleadings and evidence
brought on record as well as the subsequent facts
which are incontrovertible so that the lis is put to rest.
In our considered opinion the issue of mental cruelty
should be addressed to by this Court for the sake of
doing complete justice. We think, it is the bounden
duty of this Court to do so and not to leave the parties
to fight the battle afresh after expiry of thirteen years
of litigation. Dealing with the plea of mental cruelty
which is perceptible from the material on record
would not affect any substantive right of the
appellant. It would be only condoning a minor
technical aspect. Administration of justice provokes
our judicial conscience that it is a fit case where the
plenitude of power conferred on this Court under
Article 142 deserves to be invoked, more so, when the
ground is statutorily permissible. By such exercise we
are certain that it would neither be supplanting the
substantive law nor would it be building a structure
which does not exist. It would be logical to do so and
illogical to refrain from doing so."
(Emphasis supplied)
28.3 In Sunita Devi v. Om Prakash, (supra) this Court took note
of the judgment of conviction passed during the pendency of the
appeal to grant the decree of divorce to the wife who was convicted
under Section 302 IPC and was sentenced to life imprisonment.
Relevant portion of the said judgment is reproduced in para 27.1
above.
29. False, scandalous and malicious allegations made in the
written statement amount to cruelty
29.1 In V. Bhagat v. D. Bhagat (1994) 1 SCC 337 the wife, in
her written statement, alleged that the respondent was suffering
from mental hallucination, that he was a morbid mind and needed
expert psychiatric treatment and that he was suffering from
paranoid disorder. The wife‟s counsel in her cross-examination
suggested several questions to the husband that several members of
his family, including her grandfather, were lunatics. The Supreme
Court held the pleadings of the wife and the questions in cross-
examination are bound to cause immense mental pain and anguish
to the husband.
29.2 In Vijay Kumar Ramchandra Bhate v. Neelam Vijaykumar
Bhate, (2003) 6 SCC 334, the husband made disgusting
accusations of unchasty and indecent accusations against the wife
with a neighbor in the written statement. The Supreme Court held
that the allegations are of such quality, magnitude and consequence
as to cause mental pain, agony and suffering amounting to the
reformulated concept of cruelty in matrimonial law causing
profound and lasting disruption and driving the wife to feel deeply
hurt and reasonably apprehend that it would be dangerous to live
with her husband.
29.3 In Navin Kohli v. Neelu Kohli, (2006) 4 SCC 558, the wife
got an advertisement issued in the newspaper that her husband was
her employee. She got another news item published cautioning his
business associates to avoid dealing with him. The Supreme Court
treated all this as mental cruelty to the husband.
29.4 In K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the
wife made false and defamatory allegations against her husband
and his mother to the police. The wife also lodged a complaint
with the Karnataka High Court where her husband was employed,
seeking his removal from the job. The Family Court granted a
decree of divorce, which was set aside by the High Court in appeal
on the ground that the parties stayed together only for a day. The
Supreme Court held that a spouse can cause mental cruelty by
his/her conduct even while he or she is not staying under the roof.
Staying together under the same roof was not a pre-condition for
mental cruelty. Relevant portion of the said judgment is
reproduced hereunder:
"16. Thus, to the instances illustrative of mental cruelty
noted in Samar Ghosh[(2007) 4 SCC 511] , we could add a
few more. Making unfounded indecent defamatory
allegations against the spouse or his or her relatives in
the pleadings, filing of complaints or issuing notices or
news items which may have adverse impact on the
business prospect or the job of the spouse and filing
repeated false complaints and cases in the court against
the spouse would, in the facts of a case, amount to
causing mental cruelty to the other spouse.
xxx xxx xxx
29. In our opinion, the High Court wrongly held that
because the appellant husband and the respondent wife did
not stay together there is no question of the parties causing
cruelty to each other. Staying together under the same
roof is not a precondition for mental cruelty. Spouse can
cause mental cruelty by his or her conduct even while he
or she is not staying under the same roof. In a given case,
while staying away, a spouse can cause mental cruelty to
the other spouse by sending vulgar and defamatory letters
or notices or filing complaints containing indecent
allegations or by initiating number of judicial proceedings
making the other spouse's life miserable. This is what has
happened in this case.
xxx xxx xxx
30. It is also to be noted that the appellant husband and
the respondent wife are staying apart from 27-4-1999.
Thus, they are living separately for more than ten years.
This separation has created an unbridgeable distance
between the two. As held in Samar Ghosh [(2007) 4 SCC
511] , if we refuse to sever the tie, it may lead to mental
cruelty."
(Emphasis supplied)
29.5 In Hemwati Tripathi v. Harish Narain Tripathi, (2011) 181
DLT 237, the husband leveled false, scandalous and malicious
allegations against the wife that she had relationship with one
sadhu and her stay out of the house during nights in the written
statement which was held to be cruelty and wife was granted
decree of divorce against the husband. Relevant portion of the said
judgment is reproduced hereunder:
"16. In the facts of the present case also despite the fact
that the physical beating given by the respondent on many
occasions by itself constitutes cruelty, but the scandalous
allegations leveled by the respondent attacking the moral
character of the appellant or attributing her relationship
with some Sadhu certainly amounts to worse form of
cruelty in the absence of any corroboration to such
allegations. That the ratio of Ashok Kumar v. Santosh
Sharma (supra) and Savitri Balchandani (supra) wherein
it was held that a decree of divorce on the ground of
cruelty can be passed on the strength of false, baseless,
scandalous and malicious allegations in the written
statement by one party on the other is thus found
applicable to the facts of the present case because in the
case at hand the husband has not led any evidence in
support of his allegations.
...serious and malicious allegations of the appellant
having relationship with one Sadhu and her staying out of
the house during nights also leveled by the respondent and
as per the settled legal position, casting such aspersions
on the character of the other spouse has the affect of
causing deleterious affect on the mind of such spouse and
the same is a worse form of cruelty. It has not been denied
by the respondent that no evidence was led by him to prove
that the appellant used to go out during night to stay with
that Sadhu."
(Emphasis supplied)
29.6 In D.N. Sharma Sharma v. Usha Sharma AIR 2004 Delhi
198, the husband filed a petition for divorce against the wife who
levelled false allegations against the husband having extra martial
relations with a lady in the written statement which was held to be
cruelty sufficient to dissolve the marriage between the parties.
Relevant portion of the judgment of this Court is as under:
"2. In the written statement, the respondent besides
denying the allegations of assault etc. upon the appellant
also stated that the appellant wanted to get rid of the
respondent in order to marry another lady Sushila Bist
with whom the appellant was having affair for the last
almost 20 years and for whom the appellant not only used
to misbehave with the respondent but also forced her to
leave the matrimonial home alongwith the daughter...
... It was also stated that the appellant was having an affair
with Sushila Bist with whom he had even been going to hill
stations secretly and was roaming with her openly. It was
alleged that the appellant had even displayed his
photographs with Sushila Bist in the drawing room and he
had thrown to wind all norms of decency as he openly
moved around and even used to bring her home in later
years in the presence of grown up daughters. It was
alleged that the appellant was so engrossed with Sushila
Bist that he totally neglected his family and started
harassing them. It was also alleged that the appellant
wanted to live with his mistress Sushila Bist after obtaining
divorce and wanted to legalise her illegal deeds of secret
marriage with the said lady.
xxx xxx xxx
16. In view of the aforesaid, in my opinion, writing letters
to the authorities making slanderous allegations against
the appellant, repeating the same not only in her own
statement but also suggesting them to the appellant during
the course of his cross-examination lends credence to the
fact that the wife was persisting them to humiliate and
wounding the feelings of the husband which have made
impossible for him to live in the matrimonial home with the
wife. These allegations are of such quality, magnitude
and consequence as to cause mental pain, agony and
suffering amounting to the reformulated concept of
cruelty in matrimonial life causing profound and lasting
disruption driving the husband to feel deeply hurt and
reasonably apprehend that it was impossible for him to
live with the respondent."
(Emphasis supplied)
29.7 In Jay Dayal v. Shakuntala Devi AIR 2004 Delhi 39, the
wife sought divorce against the husband who levelled allegations
of unchastity and indecent familiarity of the wife with different
persons outside the wedlock and having extra martial relations with
other persons in the written statement which was held to be cruelty
which caused reasonable apprehension in her mind that it is
dangerous to live with the husband. Relevant portion of the said
judgment is reproduced hereunder:
"2. ... It was alleged that the appellant issued a legal
notice dated 6.12.1996, levelling serious allegations of
immorality on the petitioner and her having illicit relations
with one Mr. Kishore Kumar and then filed a complaint
dated 9.5.1997, with the Commissioner of Police levelling
similar allegations...
xxx xxx xxx
9. ... It is thus clear that the appellant has levelled
disgusting allegations of unchastity and indecent
familiarity of the respondent with different persons
outside wedlock and her having extra martial relations
with other persons. These themselves, in my opinion, will
amount to cruelty.
xxx xxx xxx
11. In view of the foregoing these allegations without
anything else by themselves, in my opinion, amount to the
appellant treating the respondent with cruelty causing
reasonable apprehension in her mind that it is dangerous
to live with the appellant. In my opinion, therefore, the
Trial Court was fully justified in dissolving the marriage of
the parties by a decree of divorce and no case had been
made out to interfere with the same..."
(Emphasis supplied)
29.8 In Ramesh Kumar v. Aakash Sharma, II (2008) DMC 315,
the husband sought divorce against the wife who levelled allegations
in the written statement that the husband was having illicit sexual
relation with sister-in-law. However, the wife could not prove or
substantiate these allegations and therefore, it was held to be cruelty
by the Himachal Pradesh High Court. Relevant portion of the said
judgment is reproduced hereunder:
"21. The evidence on record leaves no doubt in my mind
that the appellant has been subjected to constant mental
cruelty by the respondent more especially her allegations
of sexual misbehaviour and mis-conduct against the
appellant accusing him of having illicit sexual relations
with his sister-in-law (Bhabhi), for consideration, who is
treating him like a younger brother. The evidence, clearly
points out to the fact that the respondent has treated the
appellant with cruelty within the meaning of the Act. In
terms of the pronouncement of the Hon'ble Supreme
Court in Samar Ghosh's case, I am satisfied that not only
has the marriage broken down irretrievably because of
the acts on the part of the respondent, and it is not
possible for the appellant to live in an atmosphere which
is vitiated and surcharged by allegations of adultery etc.
Indian Society is sensitive to the relationships of brother
and sister and mother and son which are not only
respected but venerated. There has been no cohabitation
between the parties since 1982."
(Emphasis supplied)
30. Findings
30.1 The conviction of the respondent and sentence of life
imprisonment under Section 302 IPC for murder has caused mental
pain, agony and apprehension in the mind of the petitioner that it is
not safe to live with him and it clearly amounts to cruelty. The
respondent‟s cruel act has also resulted in physical deprivation of
matrimonial relationship which has caused physical and mental
pain and torture.
30.2 The cruel offence of murder committed by the respondent
has traumatized the petitioner for her life. The family of Gopal
who was murdered by the respondent are not the only one‟s to live
a life of self-denial, there are others too. The wife of the accused
also pays a huge price for her husband‟s crime. The society treats
her as murderer‟s wife. Her honour is lost forever. Is there a
greater punishment than bearing the burden of humiliation
throughout one‟s life? Probably not.
30.3 The respondent‟s crime resulting in life imprisonment has
opened up a chapter of profound uncertainty. Who will now earn
and feed the petitioner? The respondent has not made any provision
for her sustenance. The respondent‟s family is also not ready to
support her. The conviction and life imprisonment of the
respondent has resulted in the deprivation of the conjugal rights as
well as food, shelter and security from the husband. The
petitioner‟s life is on an endless slide backward. Admittedly, the
petitioner is innocent and all this has happened due to the cruel act
of the respondent. All this constitutes the worst form of cruelty
which will continue unless the relationship is severed and
therefore, it is in the interest of justice to dissolve the marriage by a
decree of divorce to put an end to the endless misery and sufferings
to enable her to live her own life.
30.4 Learned counsel for the respondent has raised a plea that the
conviction of the respondent for the offence of murder under
Section 302 IPC has not been specifically made a ground for
divorce before the Trial Court and additional evidence led before
this Court is beyond the pleadings. This Court is of the view that
the petitioner had specifically pleaded in the divorce petition that
the respondent has been arrested for the offence of murder in FIR
No.111/2009, P.S. Timarpur, New Delhi under Sections 302/34
IPC. The trial of the criminal case had not concluded at that time.
The trial concluded during the pendency of the petition resulting in
conviction of the respondent, which is not disputed. The
respondent challenged his conviction before this Court in Criminal
Appeal bearing 923/2011 which has been dismissed by this Court
vide judgment dated 19th March, 2014. The respondent has led
additional evidence before this Court to prove the conviction as
well as the dismissal of the appeal. The judgment of the Sessions
Court is Ex.AW-1/1 and the judgment of High Court in appeal is
Ex.AW-1/2. It is well settled that this Court can take note of the
subsequent developments to shorten the litigation between the
parties and for doing complete justice to them. This case is
squarely covered by the principles laid down by the Supreme Court
in Malathi Ravi v. Dr. B.V. Ravi, (supra).
30.5 Learned counsel for the respondent has next contended that
the petitioner has adduced additional evidence to fill up the lacuna.
As discussed above, the petitioner had specifically pleaded in the
petition for divorce that the respondent has been arrested for the
offence of murder on 28th June, 2009. The respondent was
convicted during the pendency of the petition and his appeal was
dismissed during the pendency of the present appeal. The
conviction of the respondent and dismissal of his appeal against
conviction are subsequent events. The petitioner has led additional
evidence to prove the certified copies of the judgments of the
Sessions Court and High Court as Ex.AW-1/1 and Ex.AW-1/2
respectively. The petitioner has further proved that the conviction
of the respondent and sentence to life imprisonment has caused
mental cruelty to the petitioner and, therefore, the foundation had
already been laid by her in the pleadings before the Trial Court.
30.6 The respondent has made following serious allegations
against the petitioner in his written statement:
(i) The petitioner demanded Rs.5 lakh from the respondent to
purchase a house for her parents whereupon the respondent‟s
mother paid Rs.5 lakh to the petitioner who purchased a house
bearing No.F-183A, Gali No.6, Wazirabad, Delhi for her parents;
(ii) The petitioner threatened the respondent to transfer the title
of the residential house in her name failing which she would
implicate the respondent in a false case;
(iii) The petitioner falsely implicated the respondent in a false
murder case because the respondent refused to transfer the title of
his mother‟s house in the name of the petitioner; and
(iv) The respondent‟s mother handed over the locker keys to the
petitioner on 5th November, 2009 while leaving for Agra. During
that period, the petitioner took out the entire jewellery of about 8
to 10 tolas and cash of Rs.3 lakh from the locker and left from the
matrimonial home.
30.7 Admittedly, the respondent has not led any evidence
whatsoever to prove the aforesaid accusations made by him in the
written statement. The respondent also did not put these
accusations to the petitioner when she was in the witness box.
30.8 The allegations made by the respondent are of such quality,
magnitude and sequence as to cause mental pain, agony and
suffering amounting to cruelty in matrimonial relationship causing
profound and lasting disruption driving the wife to feel deeply hurt
and reasonably apprehend that it would be dangerous for her to live
with the husband.
30.9 The scandalous allegations made by the respondent against
the petitioner constitute grave assault on her character, honour,
reputation and amounts to worse form of insult and cruelty which
is sufficient by itself to substantiate cruelty in law.
30.10 The unfounded false allegations have been made by the
respondent against the petitioner have not only caused harassment
and humiliation to the petitioner but also affected her mental health
and these acts of cruelty are sufficient to dissolve the marriage
between the parties.
30.11 The respondent has alleged in the written statement that the
petitioner wife has falsely implicated him in the murder case. The
petitioner has placed on record the certified copy of the judgment
of the Sessions Court, which is Ex.AW-1/1 and the judgment of
this Court dismissing the respondent‟s appeal, which is Ex.AW-
1/2. The Sessions Court and this Court in appeal have held that the
respondent murdered Gopal on 28th June, 2009. The deceased
Gopal had married Maina alias Anju on 04th November, 2008 and
they were staying in Jhuggi No.1, Gali No.1, Wazirabad Village,
Delhi, whereas the respondent and his brother were residing in Gali
No.6 of the same village. Three months prior to the marriage, there
was a quarrel between the respondent, his brother and mother with
Gopal when the respondent had beaten up Gopal. On the second or
third day of Gopal‟s marriage, the respondent and his associates set
the jhuggi of Gopal on fire. On 28th June, 2009, the respondent
along with other persons gave a beating to Gopal, who fell down
when the respondent lifted a big concrete stone and struck on the
head of Gopal which resulted in his death. PW-3, Maina, wife of
deceased and PW-6, Ram Dashrath, brother of the deceased were
the eye witnesses to the murder, who have been believed by the
Sessions Court as well as by this Court. This Court has gone
through the judgment of the Sessions Court as well as the High
Court. In his statement under Section 313 Cr.P.C., the respondent
stated that he made a complaint against the deceased Gopal for
theft of water motor and the wife of the deceased had threatened to
implicate him in a false case, which has been rejected by the
Sessions Court as well as by the High Court. The respondent also
set up a plea of alibi, which was not believed by both the Courts.
The petitioner herein had no role whatsoever in the said criminal
case of murder and, therefore, accusation of false implication made
by the respondent in his written statement is absolutely false. The
respondent‟s false accusation against the petitioner that she has
implicated the respondent in a false criminal case is such a grave
act of cruelty which itself is sufficient to grant the decree of
divorce.
30.12 As per the settled legal position, the false, baseless,
scandalous and malicious allegations made by the respondent in his
written statement against the petitioner has the effect of causing
deleterious effect on the mind of the petitioner and is the worse
form of cruelty. This case is squarely covered by the well settled
principles laid down in V. Bhagat v. D. Bhagat (supra), Vijay
Kumar Ramchandra Bhate v. Neelam Vijaykumar Bhate (supra),
Navin Kohli v. Neelu Kohli (supra), K. Srinivas Rao v. D.A.
Deepa (supra), Hemwati Tripathi v. Harish Narain Tripathi
(supra), D.N. Sharma Sharma v. Usha Sharma (supra), Jay Dayal
v. Shakuntala Devi (supra), Ramesh Kumar v. Aakash Sharma
(supra).
30.13 With respect to the respondent‟s contention that the
petitioner cannot raise this ground of false and scandalous
allegations in the written statement amounting to cruelty because
she did not urge this ground before the Trial Court, this Court is of
the view that the appeal being a continuation of the suit, this
ground which arises out of the pleadings and evidence before the
Trial Court and law on this issue being well settled, the petitioner is
well within her right to raise this ground before this Court.
30.14 The petitioner has also proved other instances of cruelty
mentioned in para 22 above which show that the respondent‟s
conduct even during the pendency of this appeal was cruel.
30.15 After taking into consideration the conduct of the husband
and all the circumstances of this case, this Court finds it impossible
for the wife to live with her husband. The conduct complained of is
so grave and weighty that there is an absolute impossibility that
duties of married life can be discharged.
30.16 The marriage has broken down beyond repair and there is
no possibility that the spouses can ever again live together as
husband and wife. In such a situation, it is unrealistic and unfair
that law should keep a marriage alive, which is an empty shell and
dead for all practical purposes. The continuing of such an empty tie
will create more and more bitterness whereas dissolution of the
marriage in such circumstances will end the miserable relationship
once for all.
Conclusion
31. Taking all the facts and circumstances of this case into
consideration, this Court is satisfied that the offence of murder
committed by the respondent resulting in life imprisonment, has
caused immense pain, agony and apprehension in the mind of the
petitioner that it is not safe to stay with the respondent anymore
which is sufficient to dissolve the marriage on the ground of
cruelty. That apart, the respondent has also treated the petitioner
with cruelty by leveling serious false, scandalous and defamatory
accusations against her in the written statement, namely, that the
petitioner demanded Rs.5 lakh from the respondent to purchase a
house for her parents whereupon the respondent‟s mother paid Rs.5
lakh to the petitioner by which the petitioner purchased a house for
her parents bearing No.F-183A, Gali No.6, Wazirabad, Delhi; the
petitioner threatened the respondent to transfer the title of his
residential house in her name failing which she would implicate the
respondent in a false case; the petitioner falsely implicated the
respondent in a false murder because the respondent refused to
transfer the title of his mother‟s house in the name of the petitioner;
the respondent‟s mother handed over the locker keys to the
petitioner on 05th November, 2009 while leaving for Agra and the
petitioner took out the entire jewellery of about 8 to 10 tolas of the
respondent‟s mother and cash of Rs.3 lakh from the locker and left
from the matrimonial home on 05th November, 2009. The
aforesaid false accusations leveled by the respondent in the written
statement also constitute cruelty which is sufficient to grant the
decree of divorce to the petitioner. This Court is thus satisfied that
the petitioner is entitled to the decree of divorce on the ground of
cruelty under Section 13(1)(ia) of Hindu Marriage Act, 1955.
32. The appeal is allowed. The impugned judgment and decree
are set aside. The marriage between the petitioner and the
respondent is dissolved by a decree of divorce under Section
13(1)(ia) of the Hindu Marriage Act, 1955.
33. Copy of this judgment be given dasti to both the parties and
amicus curiae under the signatures of Court Master.
J.R. MIDHA
(JUDGE)
JANUARY 29, 2015
rsk/dk
