Relying on the Landmark judgements of Dastane and Ghosh, the Division bench of the Kerala High Court delivered a good judgment and granted Divorce to Husband on the ground of Mental cruelty.
Prabin Gopal Vs Meghna on 18 May 2021Tag: HM Act – Mental Cruelty Proved
Sarita Gosawi Vs Bharat Gosawi on 05 Mar 2021
There was mental cruelty done to husband and the High Court nailed the point straight.
From Paras 18 and 19,
18. Keeping in mind the aforesaid guiding parameters, now we proceed to examine the evidence on record. Apart from the allegations and counter allegations by the parties against each other with regard to their mutual misbehavior, the crucial point on which the respondent/ husband sought decree of divorce, and which according to him is the reason for his mental sufferings and anguishes, is the suspicious and skeptical nature of the appellant/ wife, as she used to have a doubt on his character. She was doubting his relations with one lady employee from his office. It is his case that the appellant/ wife used to visit his office and used to create scenes. She used to abuse him in filthy language on his character and used to humiliate him in front of their adolescent daughters.
19. The respondent/ husband, in his pleadings and evidence, further stated that he had purchased one plot of land and constructed a house thereon on loan and at present, the same is in possession of the appellant/ wife. He is paying installments for the repayment of the loan for house from his
salary account. To pacify her, he even transferred his house in her name. He has stated that fed-up with her acrimonious behaviour, he had to lodge reports at police station, and there were counselling before the Women Cell, and in consequence thereof, she resumed cohabitation. Lastly, he said, he had no option but to leave the house and to reside in a rented house.
20. A perusal of the written statements of the appellant/ wife would reflect that she has not denied, even by way of simple denial, about the contents in para 3 of the divorce petition of the respondent/ husband which are with regard to the suspicious nature of the appellant/ wife, doubting his character, abusing in a filthy language and visiting his office and creating scenes etc.
Crucial Paras 22 and 25,
22. In the instant case, admittedly, there are no positive allegations with regard to the character of the respondent/ husband in the written statement of the appellant/ wife. However, maintaining silence in her written statement and not countering the case of cruelty of the respondent/ husband on this ground, coupled with the fact that there were specific suggestions in the cross-examination of the respondent/ husband by taking the name of the alleged lady, in the opinion of this Court, is nothing but the unfounded allegation on the character of the husband as held in the above cited case.
25. A collective reading of his cross-examination, it appears, it is more focused on the maintenance part and less on the allegations of mental cruelty as alleged by the respondent/ husband. So the material allegations, with regard to mental cruelty as pleaded by the respondent/ husband, have neither be denied in the written statement of the appellant/ wife nor have they been sufficiently countered during his cross examination. As per law, the facts, which are not denied, are deemed to have been admitted. As per Order 8 Rule 5 of the Code of Civil Procedure, 1908, the facts which are not denied specifically are deemed to have been admitted, and simple denial is no denial. In the instant case, there is no denial at all.
Law involved,
26. The effect of non cross-examination of a witness was discussed by the Hon’ble Apex Court in the case of Muddasani Venkata Narsaiah (Dead) Through Legal Representatives Vs. Muddasani Sarojana, reported in (2016) 12 SCC 288, wherein Their Lordships have held that the cross-examination is a matter of substance not of procedure one isrequired to put one’s own version in cross-examination of opponent. It is further observed that the effect of non-cross examination is that the statement of witness has not been disputed. In the said judgment, the Hon’ble Apex Court relied on the judgment in the case of Maroti Bansi Teli Vs. Radhabai, reported in AIR 1945 Nag 60, wherein it has been laid down that the matters sworn to by one party in the pleadings notchallenged either in pleadings or cross-examination by other party must be accepted as fully established.
Closure:
Sarita Gosawi Vs Bharat Gosawi on 05 Mar 202131. As rightly pointed out by the learned counsel for the respondent/ husband the case of Vijaykumar Bhate (supra) wherein, the Hon’ble Apex Court took the view that the false and malicious allegations against the character of a spouse is a ground for dissolving the marriage on account of causing mental cruelty.
32. Furthermore, the appellant/ wife could not prove her allegations with regard to demand of dowry and ill-treatment. On the contrary, it is borne out from the record that the respondent/ husband himself had to leave from his own house fed-up with her mis-behaviour.
Vijay Kumar Ramachandra Bhate Vs Neela Vijay Kumar Bhate on 16 April, 2003
Supreme Court talks as follows regarding Mental Cruelty:
The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1) (i-a) of the Act. The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they 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 for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.
Precisely,
As to what constitute the required mental cruelty for purposes of the said provision, in our view, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Courts perhaps need consider the further question as to whether their continuance or persistence over a period time render, what normally would, otherwise, not be a so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonable conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement leveled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only.
Vijay Kumar Ramachandra Bhate Vs Neela Vijay Kumar Bhate on 16 April, 2003
Citations : [2003 SCC 6 334], [2003 ALLMR SC 3 777], [2003 AIR SC 2530], [2003 SUPREME 3 416], [2003 AIR SC 2462], [2003 SCALE 4 134], [2004 BOMCR SC 2 384], [2003 ALD SC 3 124], [2003 AWC SC 3 2101], [2003 BLJR 3 1658], [2003 DMC SC 1 685], [2003 JCR SC 3 1], [2003 JT SC 4 85], [2003 LW 4 609], [2003 MLJ SC 3 115], [2003 PLJR 2 200], [2003 SCR 3 607], [2003 UC 2 1211], [2003 UJ 2 947], [2003 AIR SCW 2530]
Other Sources :
https://indiankanoon.org/doc/1228342/
https://www.casemine.com/judgement/in/5609ade1e4b01497114126d8
https://www.indianemployees.com/judgments/details/vijay-kumar-ramachandra-bhate-vs-neela-vijay-kumar-bhate
Kirti Nagpal Vs Rohit Girdhar on 20 Nov 2020
Delhi High Court confirmed the Divorce granted by Trail Court.
Kirti Nagpal Vs Rohit Girdhar on 20 Nov 2020Index is here.
Ranjith.P.C. Vs Asha Nair.P on 20 May 2020
For the act of asking to do household chores by her Mother-in-law, this women forced husband to setup a separate family ditching the elderly mother-in-law. Family Court fell for it but Kerala High Court (Justice Many Joseph) granted divorce in favor of husband on the ground of cruelty (Mental cruelty).
Funny facts
Married on 17.04.2003
Left the matrimonial home on 10.02.2011
Case no: OP 805/2011
Decision of Family Court, THALASSERY on 21-01-2014
Mat.Appeal.No.137 OF 2014
Decision of Kerala High Court on 20-05-2020
From Para 19,
19. From the above discussion of the pleadings and evidence, it cannot be said that the oral evidence tendered is totally devoid of support of necessary pleadings. Moreover, the respondent has no case that the petitioner was a drunkard at the time when he married her. On the contrary her specific case was that he was lovable and affectionate and their life was smooth, happy and comfortable. Evidence indicates that the respondent and the petitioner’s mother were not cordial and clashes were frequent. Therefore, it is natural for the petitioner to be a scapegoat of the in-differences. It is also natural for a wife in that scenario to make persistent effort to constrain her husband to be separated from the family life and that would undoubtedly be tortuous for him. In the case on hand the petitioner’s turning to be a drunkard can only be taken as the natural outcome of the pressure exerted on him by the respondent to have a separate residence to the exclusion of petitioner’s mother. The persistence of the respondent was
unbearable for the petitioner, could be seen from his conduct of avoidance of the company of the respondent after leaving her at the parental home on 10.02.2011.
From Para 22,
22. No family is totally devoid of clashes among members constituting it. It is common for elders to scold and sometimes abuse youngsters. Making a daughter in law to do the house hold/domestic work is also not something unusual. From the evidence tendered by the respondent, it is all the more clear that the aforestated factors formed the basis for her ill-will to petitioner’s mother.
Hehe Para 24,
24. We have no hesitation to hold that the Family Court was highly unjustified in making the above observations. The Family Court has taken the role of a councilor rather than an adjudicator while doing so. It is after much efforts and counseling that a case comes up before the court for adjudication. Then the role of the court is to adjudicate the issue involved in the case based on the evidence after duly appreciating it. The Family Court is not supposed to advice the remedies to the parties and issuing directions. We are not satisfied with the way in which the Family Court had dealt with the case on hand.
Ranjith.P.C. Vs Asha Nair.P on 20 May 2020
Archana Sharma Vs Mukesh Kumar Sharma on 22 September, 2014
Another thieving knife bites the dust. No alimony for the knife due to the conduct of the knife. Hon’ble Allahabad HC delivered this judgment.
From the perusal of the impugned judgment, we also find that after the examination-in-chief of the respondent, no cross-examination was done for a period of three years and as such having no other alternative, the Court closed the opportunity of cross-examination.
And then,
A perusal of the record further indicates that the appellant also moved an application for summoning the witnesses, which was rejected by the learned court below on 28.05.2004. This order was never challenged by the appellant and as such the same attained finality. An application for amendment of the written statement was also moved by the appellant, which was also rejected on 16.01.2004 and this order also became final as the same was not assailed before any Court. In view of above facts that the appellant did not cross-examine the respondent and also did not produce any evidence, the evidence adduced by the respondent stood un-rebutted. The learned court below has relied upon the evidence of the respondent on the ground that the appellant did not rebut the evidence of the respondent either by cross-examination or by adducing any other evidence. However, the law is that even if the evidence of the respondent remains un-rebutted and the appellant does not produce any evidence in defence, it is the duty of the Court to examine the evidence on record and come to a conclusion as to whether the cruelty as alleged by the respondent has been proved and such cruelty is to such an extent that the marriage between the parties should be dissolved by means of a decree of divorce.
Filing false FIR,
The appellant also lodged a false FIR against the respondent and other members of his family with false allegations of demand of dowry etc. upon which the police conducted the investigation and finally submitted final report. This fact is not disputed by the appellant. However, the appellant filed objection against the submission of the final report of the police upon which the Magistrate summoned the respondent and he had to seek bail from the Court of Judicial Magistrate. The Judicial Magistrate after the trial acquitted the respondent and other members of his family, who were falsely implicated in the said case but they had to undergo mental stress for several years before the court.
Alleged alimony demand for divorce,
The learned court below also tried to amicably settle the dispute by calling upon them before the court but the appellant did not agree without being paid a handsome amount by the respondent. The appellant also moved an application for payment of Rs.70,000/- as alimony and it was clearly mentioned in the said application that she would accept the divorce only in case the aforesaid amount is paid to her. This prima-facie indicates that the appellant instead of making any efforts towards amicable settlement always insisted for the alimony.
Here is another para,
Archana Sharma Vs Mukesh Kumar Sharma on 22 September, 2014Whenever an effort was made for reconciliation, the appellant demanded a handsome amount to settle the matter. Thus, the conduct of the appellant was such that the learned court below did not find it proper to award any permanent alimony. The learned court below on the basis of the evidence has come to the conclusion that the appellant was getting only Rs.3,875/- per month after deduction. The appellant on the other hand was getting salary of Rs.5,631/- per month from Sahara India Office. The learned court below has also found that as required by the Rules, the appellant did not submit any details of her income and keeping in view the income of the appellant as well as that of respondent and also taking into account the conduct of the appellant, she was not entitled for any permanent alimony.
Indiankanoon.org link: https://indiankanoon.org/doc/9174631/
Citation:
