Showing posts with label divorce. Show all posts
Showing posts with label divorce. Show all posts

07 February 2021

Falsely implicating husband and his family in domestic violence case with intention to ensure that the parties were sent to counselling in order to settle their disputes amounts to mental cruelty entitling husband to seek divorce

Allegations of cruelty in divorce case should be specifically challenged in cross examination

    Now, given that matrimonial disputes rarely involve production of concrete evidence in documentary or audio-visual form, and mostly proceed on the relative strength of the opposing allegations made by the parties, the entire process of leading and recording evidence has a significant role to play in establishing one's case. Thus, notwithstanding her denials in the written statement, the appellant was expected to properly and specifically cross-examine the respondent to prove her allegations of cruelty against him and disprove those he had levelled against her. The importance of properly discharging this function of cross-examination was discussed by the Supreme Court in the following paragraphs of its decision in Rajinder Pershad Vs. Darshana Devi (2001) 7 SCC 69:
"4. The only point urged albeit strenuously on behalf of the appellant by Mr P.S. Mishra, the learned Senior Counsel is that as there has been no valid service of notice, so all proceedings taken on the assumption of service of notice are illegal and void. He has invited our attention to the judgment of the learned Rent Control Tribunal wherein it is recorded that Exhibit AW 1/6 dated 5-8-1986 was sent by registered post and the same was taken by the postman to the address of the tenant on 6-8-1986, 8-8-1986, 19-8-1986 and 20-8-1986 but on those days the tenant was not available; on 21-8-1986, he met the tenant who refused to receive the notice. This finding remained undisturbed by both the Tribunals as well as the High Court. Learned counsel attacks this finding on the ground that the postman was on leave on those days and submits that the records called for from the post office to prove that fact, were reported as not available. On those facts, submits the learned counsel, it follows that there was no refusal by the tenant and no service of notice. We are afraid we cannot accept these contentions of the learned counsel. In the Court of the Rent Controller, the postman was examined as AW 2. We have gone through his cross-examination. It was not suggested to him that he was not on duty during the period in question and the endorsement "refused" on the envelope was incorrect. In the absence of cross-examination of the postman on this crucial aspect, his statement in the chief examination has been rightly relied upon. There is an age-old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. In State of U.P. v. Nahar Singh (1998) 3 SCC, a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed: (SCC p. 567, para 14) "14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 R 67 (HL)] clearly elucidates the principle underlying those provisions. It reads thus:
'I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.' (emphasis supplied)[Para No.11]

    Although the appellant, in the grounds adopted in the appeal, has assailed the reliance of the learned Family Court on the decision in State of U.P. v. Nahar Singh (1998) 3 SCC 561 to contend that the same was a criminal case and the precedent arising therefrom could not apply to cross examinations in matrimonial proceedings, which are civil proceedings by nature, there is no merit to this opposition; especially in the light of the observations of the Supreme Court in Darshana Devi's case which was a civil proceeding. In fact, the standard of proof in a matrimonial proceeding- which is also in the nature of a civil proceeding is not as strict, as in criminal proceedings. Thus, the case is required to be proved on preponderance of probabilities and not the legal standard of being beyond a reasonable doubt. Keeping in view the aforesaid, it is evident that there was a crucial responsibility placed on the shoulders of the appellant which was to ensure that she challenged the specifics of the allegations raised by the respondent and establish their lack of veracity. Paragraphs 44 to 46 of the impugned judgment clearly show that the appellant had not cross-examined the respondent/husband on these important aspects, and, thus, completely failed to draw out the facts as claimed by her. In fact, even before us, the appellant, other than contending that the onus of proving cruelty rested upon the respondent, has failed to provide any cogent reasons for failing to cross-examine the respondent in support of her own case, or to challenge his allegations of cruelty. It is a settled proposition of law that the Court would normally accept unchallenged and uncontroverted assertions of fact. The failure of the appellant to effectively cross-examine the respondent shows that she neither seriously challenged his version of the factual position, nor established her own version. Therefore, in our view, the Family Court was justified in accepting the unrebutted testimony of the respondent.[Para No.12]

    When we view this in addition to the fact that in her written statement, the appellant had admitted to having levelled false allegations against the respondent and his family under the DV Act, we find there were plenty of holes in the appellant's story. Her feeble explanation for this ill-thought out act of falsely implicating the respondent and his family was that the same was not done malevolently, but only with an intention to ensure that the parties were sent to counselling in order to settle their disputes. That explanation barely comes to the aid of the appellant considering that the Supreme Court in K. Srinivas Rao Vs. D.A. Deepa 2013 III AD (SC) 458 has already held that any act of making unfounded complaints to the police shall be treated as an act of mental cruelty. The relevant extracts of this decision read as under:
"14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, 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.

10 September 2020

Divorce can be granted if the ground of cruelty or desertion is partly proved where sentiments and emotions between spouse have dried up

In the present case the petitioner husband, aged 52 years, is admittedly a small businessman and his 41 years old respondent wife is a house wife. The petitioner has proved his case that his wife abandoned him along with their daughter when he lost his vision and was in dire need of their company and the support of his wife. His illness is not denied by the respondent wife. Such conduct of the wife must have hurt the sentiment of the petitioner husband and affected their relationship. After abandoning her husband, she lebelled allegations of harassment for dowry against her husband in a proceeding under Section 498A IPC followed by a proceeding under the Protection of Women from Domestic Violence Act. She not only prosecuted her husband, the elder sister of her husband was also implicated in the case instituted by her under Section 498A IPC though both of them were ultimately acquitted in appeal. [Para No.40]

    It is true that the wife is not expected to endure the harassment meted out to her by her husband or in-laws without raising protest or filing appropriate proceeding against them, but in the given case the cumulative effect of the facts and circumstances emerging from the evidence on record lead us to a fair inference that her unprovoked humiliating treatment caused serious mental pain and suffering to her husband which no doubt constitutes cruelty.[Para No.41]

Divorce can be granted if the ground of cruelty or desertion is partly proved where sentiments and emotions between spouse have dried up
    Admittedly the present appellant wife and her respondent husband are staying apart from 12.01.2007. They are thus living separately for more than 13 years. During this period they never stayed together even for a single day which indicates that their sentiments and emotions have dried up and there is hardly any chance of restoration of their conjugal life.[Para No.42]

    In this regard, the Apex Court in Naveen Kohli vs. Neelu Kohli reported in (2006) 4 SCC 558 held as follows:
"74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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."[Para No.43]

01 July 2020

In matrimonial dispute, secret recording is admissible in evidence if found to be relevant

Electronic Evidence obtained illegally - Petition for divorce u/s. 13(1)(ia) of The Hindu Marriage Act - CCTV footage recorded without knowledge of wife - In recording wife was found to be talking on phone with her lady friend in a manner derogatory and defamatory to the husband - Husband produced CD of this recording as the evidence in divorce proceeding - Wife in her written statements opposed that CD to be tampered with and inadmissible as it is procured in breach of her right of privacy - After this objection husband made an application to family court to get the genuineness of CD examined from Forensic Lab - Family allowed that application and the same challenged by wife before High Court

Can CCTV audio-video secretly recorded by a spouse be permitted to be used against other spouse in a matrimonial dispute?

Held: In matrimonial dispute, secret recording is admissible in evidence if found to be relevant to the facts-in-issue; and the other party can initiate legal action action the party for adopting illegal means; but such action would not render the illegally obtained evidence inadmissible if it is otherwise relevant for the  purpose of deciding the matrimonial dispute between the parties.

   The sequitur to the aforesaid constitutional and legal landscape is that :
(a) The settled rule, purely from the standpoint of the law of evidence, is that evidence is admissible so long as it is relevant, regardless of how it is collected. Digressing from this settled position would have wide ramifications and consequences; and would be a serious hindrance to judicial proceedings across the board, in several foreseeable and unforeseeable ways. On the other hand, the possible misuse of this rule of evidence, particularly in the context of the right to privacy, can be addressed by prudent exercise of judicial discretion by a court not at the time of receiving evidence but at the time of using evidence at the stage of adjudication ;

25 June 2020

Refusal by Hindu-wife to wear 'sindoor' is cruelty against husband

Refusal by Hindu-wife to wear 'sindoor' and preventing husband performing duties towards his parents; is cruelty against husband.

   Upon due perusal of the judgment it is seen that the discussion of the court below does not refer to certain pertinent evidences, which were brought before the Court by the contesting parties while adducing evidences. As discussed above, it is not disputed by the respondent wife that there was indeed an agreement entered into by and between the appellant husband and the respondent wife whereby the appellant was required to provide separate accommodation to the respondent wife in a rented house away from the matrimonial house and that the appellant's family members were not to be permitted to come and visit them. The respondent wife categorically admitted in her cross- examination about the presence of the said clause in the said agreement. It is also seen from the evidence that the respondent had filed another case before Digboi Police Station being Digboi P.S. Case No.230/2013, under Sections 471/420 IPC pending before the SDJM, Margherita, District Tinsukia wherein, it was submitted at the bar that charge sheet has been filed against the petitioner and other accused. PW1/appellant also adduced in his evidence that the respondent had refused to wear 'sakha and sindoor' any more. Such statement was not confronted to the appellant during the cross-examination, and accordingly, the same remained uncontroverted and is therefore an evidence material for the purpose of this proceedings. Under the custom of Hindu Marriage, a lady who has entered into marriage according to Hindu rituals and customs, and which has not been denied by the respondent in her evidence, her refusal to wear ' sakha and sindoor' will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant. Such categorical stand of the respondent points to the clear intention of the respondent that she is unwilling to continue her conjugal life with the appellant. Under such circumstances compelling the appellant husband to continue to be in matrimony with the respondent wife may be construed to be harassment inflicted by the respondent upon the appellant and his family members.

Refusal by Hindu-wife to wear 'sindoor' is cruelty against husband

This evidence although available before  the Family Court during the evidence adduced, was not taken into account during the discussion in the impugned judgment. As such the Family Court erred in evaluating the evidence in the proper perspective. During the course of hearing it was submitted at the bar that the criminal proceedings pursuant to filing of Digboi P.S. Case No.159/2013, under Section 498(A) IPC against the appellant has been dismissed as the informant, namely the respondent wife was not pursuing the said proceeding. As such the allegation of subjecting the respondent wife to cruelty was not sustained. Such acts of lodging criminal cases on unsubstantiated allegations against the husband and/or the husband's family members amounts to cruelty as held by the Supreme Court. In this context, the Hon'ble Supreme Court in a recent judgment being Rani Narasimha Sastri vs. Rani Suneela Rani, 2019 SCC Online SC 1595 has held that filing of criminal cases like case under Sections 498(A) IPC etc. against the husband and the family members and which are subsequently dismissed/rejected by the Family Court, is sufficient to be construed as an act of cruelty by the wife. The Hon'ble Supreme Court has held as under:.....[Para No.15]

19 June 2020

Divorced Muslim woman cannot claim maintenance under Section 125 of the Cr.P.C. from her husband

Muslim divorced wife - entitlement of maintenance - sec.125 of CrPC - Sec. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 - jurisdiction and power of family court to convert an application filed u/s.125 of CrPC into an application u/s. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Held: A divorced Muslim woman cannot claim maintenance under Section 125 of the Cr.P.C. from her husband after the enactment of the 1986 Act for Muslim Women. However, under Section 3  read with Section 4 of the 1986 Act for Muslim Women, a divorced Muslim woman is entitled to an order of maintenance, if she is unable to maintain herself after the Iddat period and has not remarried.

Family Court would have jurisdiction under Section 7 of the Family Courts Act to entertain an application under Section 3 and 4 if The Muslim Women (Protection of Rights on Divorce) Act, 1986.

It is now settled that a divorced Muslim woman cannot claim maintenance under Section 125 of the Cr.P.C. from her husband after the enactment of the 1986 Act for Muslim Women. However, under Section 3 read with Section 4 of the 1986 Act for Muslim Women, a divorced Muslim woman is entitled to an order of maintenance, if she is unable to maintain herself after the Iddat period and has not remarried. Section 5 of the 1986 Act for Muslim Women provides that a divorced woman and her former husband might decide by an affidavit or any other declaration in writing, that they would prefer to be governed by the provisions of Section 125 to 128 of the Cr.P.C.[Para No.56]

Divorced Muslim woman cannot claim maintenance under Section 125 of the Cr.P.C. from her husband

Sub-section (2) of Section 3 is an enabling provision which enables a divorced Muslim woman to make an application to a Magistrate for an order for payment of maintenance or mehr or dower or delivery of properties, as the case may be. The non- obstante clause is restricted to sub-section (1) of Section 3 and does not cover sub-section (2) of Section 3 of the 1986 Act for Muslim Women. There is no conflict between Section 3(2) of the 1986 Act for Muslim women and the Family Courts Act. On the other hand, Section 20 of the Family Courts Act, 1984 gives overriding effect to the Family Courts Act notwithstanding anything therewith contained in any other law in force. The Family Court is to exercise all the jurisdiction exercisable by any District Court or any other subordinate Civil court in respect of a proceeding for maintenance.

30 May 2020

Agreement by wife for relinquishment of her right to claim maintenance is not enforceable even if voluntarily entered by her

Divorce by mutual consent - Wife agreed not to claim any maintenance including Streedhan, husband assured to continued marrital relationship and maintain her- Husband and wife continued their marrital relationship inspite of paper decree of divorce - After some years husband discontinued this relationship and not made any arrangement for maintenance of wife who has been divorced by him - Wife claimed maintenance u/s.125 of CrPC - Husband's defence that she had given up her claim for maintenance, when the decree for divorce by mutual consent was passed; and she has income source as she is running a beauty parlour.


   A woman after divorce becomes destitute. If she cannot maintain herself and remains unmarried, the man who was once her husband continues to be under a duty and obligation to provide maintenance to her.[Para No.20]

04 May 2020

Plaintiff must plead and prove specific instances of cruelty or intention of desertion for obtaining divorce

Section 13 (I) (i-a) clearly provides for grant of decree of divorce on the ground of cruelty which can be physical or mental.
Plaintiff in order to succeed in a suit for divorce on the ground of cruelty must plead and prove specific instances of cruelty or allege and prove such allegations, which if considered singularly or cumulatively make cohabitation impossible.Section 13 (i) (i-b) of Hindu Marriage Act 1955, on the other hand provides for grant of decree of divorce on the ground of 'desertion'. However, in order to seek decree of divorce on the ground of 'desertion', plaintiff must prove that he/she has been deserted for a continuous period of not less than two years immediately, preceding the presentation of the petition. Therefore, what implies from plain reading of Section 13 (i) (i-b) of Act 1955 is that defendant must have deserted petitioner for a continuous period of two years prior to the date of institution of suit. The aforesaid requirement can be termed as a necessary pre- condition for seeking a decree of divorce on ground of desertion. Therefore, it is imperative on the part of plaintiff to plead and prove that defendant has deserted plaintiff and has continued doing so uninterruptedly for a period of two years, prior to the institution of suit. Apart from aforesaid, the issue relating to separate living, (factum deserdendi) and intention of committing desertion (Animus deserdendi) have to be established.[Para. No.31]
Allegations made in plaint are vague and general and do not give specific instances of cruelty. Further allegation of cruelty alleged in plaint if considered either singularly or cumulatively do not lead to the conclusion that co-habitation is not possible.
No infirmity in the dismissal of suit for divorce.

03 May 2020

Family Court has jurisdiction to award permanent alimony to Muslim wife while granting the decree of divorce in her favor

The point to be stressed is that the relief of maintenance whether to the wife or the children is incidental to the relief of 'dissolution of marriage'. Merely because 'The Dissolution of Muslim Marriages Act, 1939', does not mention that the Court is also having the jurisdiction or power to grant such relief, it cannot be said that the Court is not having the jurisdiction to grant it, if it is incidental, claimed and the Court finds it necessary to grant the same. Moreover, the right of maintenance given to wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father.
The law expects that the parties should not be driven to approach the different forums but in one forum itself they should be granted whatever reliefs to which they are entitled.[Para No.56]
The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage. In other words, the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding.[Para No.79]

   The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much an integral part of the decree of 'dissolution of marriage'. The Law contemplates that the husband has two separate and distinct obligations; (I) to make "reasonable and fair provision" for his divorcee wife and (ii) to provide "maintenance" for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.
   The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.
   When the Family Court makes an order of permanent alimony or for one time payment in the proceedings instituted by the wife for divorce, it is not founded on any stipulation that any part of the sum would be refunded either in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. It is something different from the obligation to her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the husband from her future liabilities unconditionally.[Para No.80]

Gujarat High Court

Tarif Rashidbhai Qureshi
Asmabanu Alimohmmad Idarbhai Qureshi

Decides on 19/03/2020

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