Domestic violence and 498a
Guest
(Querist) 30 March 2016
This query is : Resolved
I am fighting for justice for last 3.5 years for my myself and my innocent kids.
I have faced enough from husband and inlaws for the cruelty they gave because of Dowry demand & associated DV.
I want some useful judgements from SC / HC or Delhi courts which can be an additional support for my on-going cases.
Thank you
SAINATH DEVALLA
(Expert) 30 March 2016
FAMILY COURT > HINDU MARRIAGE ACT 1955 >
CRUELTY AS A GROUND FOR DIVORCE
Hindu Marriage Act, 1955, Sec.13 (1) (ia) deals with the cruelty as a ground for divorce. "The said provision does not define cruelty. 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"1. "What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each case keeping in view the facts and circumstances of that case"2. "What constitutes mental cruelty for the purposes of section 13 (1) (ia) will not depend upon the numerical count of such incident or only on the continuous course of such conduct but one has to 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 conductive matrimonial home"3. "Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case"4. Allegation made in the written statement and the evidence brought on record and came to hold that the said allegations and counter allegations were not in the realm of ordinary plea of defence and did amount to mental cruelty 2. A conscious and delibe statement levelled with pungency and that too placed on record, through the written statement, cannot be so lightly ignored or brushed aside 5.
In V.Bhagat versus. D.Bhagat (Mrs.), (1994) SCC 337 a two judge Bench referred to the amendment that had taken place in section 10 and 13 (1) (ia) after the Hindu Marriage Laws (Amendment) Act, 1976 and proceeded to hold that the earlier requirement that such cruelty has caused a reasonable apprehension in the mind of a spouse that it would be harmful or injurious for him / her to live with the other one is no longer the requirement. Thereafter, this court proceeded to deal with what constitutes mental cruelty as contemplated in section 13 (1) (ia) and observed that mental cruelty in the said provision can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. To put it differently, the mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was further observed, while arriving at such conclusion, that regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances. What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each case keeping in view the facts and circumstances of that case. That apart, the accusations and allegations have to be scrutinized in the context in which they are made. Be it noted, in the said case, this court quoted extensively from allegations made in the written statement and the evidence brought on record and came to hold that the said allegations and counter allegations were not in the realm of ordinary plea of defence and did amount to mental cruelty.
In A. Jayachandera versus. Aneel Kaure; (2005) 2 SCC 22 it has been ruled that the question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live. If from the conduct of the spouse, it is established and /or an inference can legitimately be drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse about his or her mental welfare, then the same would amount to cruelty. While dealing with the concept of mental cruelty, enquiry must begin as to the nature of cruel treatment and the impact of such treatment in the mind of the spouse. It has to be seen whether the conduct is such that no reasonable person would tolerate it.
In Samar Ghosh versus. Jaya Ghosh, (2007) 4 SCC 511 It was held "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 belief, human values and their value system".
"in matrimonial relationship,cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty.Cruelty in a matrimonial relationship may take the form of violence,some time it may take a different form. At times, it may be just an attitude or an approach.Silence in some situations may amount to cruelty.Therefore,cruelty in matrimonial behaviour defies any definition and its category can never be closed.Whether husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula.Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words".2010(1)UAD 757(supreme court of India)Ravi kumar v.Julmi Devi.
Mental Cruelty.-illustration.-
“No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(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.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(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.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(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.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset, may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of year 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 behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife under goes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an actof the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(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”.Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 : 2007 (2) SCCD 589.
Insulting Husband before friends and relatives:-
Hindu marriage Act, 1955, Sec. 13. and Family Courts Act, 1984. Sec. 19
Divorce petition by husband, on the ground of cruelty by wife.
Allegation by husband--insulting husband before friends and relatives by saying "tu cori hea, teri ma bhi cori hea", and has lodged First Information Report against petitioner, his mother and sisters u/s 498A/323/506/308 I.P.C. Petitioner had to remain in jail in connection with the said case.
Held, utterances quoted above certainly constitute the mental cruelty to the husband and cannot be set aside lightly.---Considering the economic status of the parties, and facts and circumstances of the case. we think it just and proper to pass the conditional decree of divorce by directing the husband to pay a lumsum permanent alimony amount of Rs. 6,00,000/ to the wife (respondent) within a period of three month.
2011 (1) UAD 354, UTTARAKHAND HIGH COURT. Yogesh Chandra joshi versus Munni Joshi
Publication of defamatory notice in the newspaper:-
That husband is womaniser, drunkard and a man of bad habits. She had made wild allegations about his character. She had made an efforts to prosecute him in in criminal litigations which she had failed to prove. Husband is entitled to a decree for divorce on the basis of cruelty. Vishwanath versus SAU. Sarla Vishwanath Agrawal. 2012 (2) UAD 439 SC
Mental cruelty -- staying together under the same roof is not a precondition :-
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. k. Srinivas Rao Vs. D. A. Deepa 2013 (1) U.A.D. 661 SC
Rajendra K Goyal
(Expert) 30 March 2016
Judgement / citation not provided.
State material facts of the problem if any.
Guest
(Querist) 31 March 2016
I am looking for cases where the person is convicted by the court for the dowry demand harrassment & cruelty against female baby.
Guest
(Querist) 31 March 2016
Also don't want divorce related - as this not the solution to the problem of Dowry harrassment.
Guest
(Querist) 31 March 2016
Reference to cases can be highted Sir?
Nadeem Qureshi
(Expert) 31 March 2016
Dear Aman
which type of judgments do you want?
Guest
(Querist) 31 March 2016
Sir,
Looking for judgements/papers regarding following:
1.Dowry demand cruelty and harassing wife to forcefully take divorce.
2.Conviction for the culprit in 498a/406/34 – true cases. Is death of victim only substantial clause
3.Female infanticide
4.Maintenance provided to children by their biological father
5.Domestic Violence Act – Clause 18, 19,20,21,22,23
Thanks everyone
Guest
(Querist) 31 March 2016
Your reply is not helpful Sir.
It appears more obvious.
If you know many examples, at least identify one from your experience ?
Guest
(Querist) 01 April 2016
Can references to conference "FEMICIDE" by Academic Council on the United Nations System be presented on court as reference for some explanation. (2012 held at Vienna). A number Indian Lawyers were present at this conference.
Still awaiting any reference to SC judgments?
Guest
(Querist) 03 April 2016
Ok. Thanks.
Guest
(Querist) 04 April 2016
I saw so many queries on this website where citations and judgements provided - in particular when people write false cases etc.
What about real honest cases?
Devajyoti Barman
(Expert) 04 April 2016
Most of the experts have in consensus decided not to supply citations here.
One of two members who are not frequent here may disagreed with us and may provided the same.
But do note that most of us agreed not to provide the same.
If you have other problem you are always welcome to get our advices.
Guest
(Querist) 04 April 2016
Ok. But I only requested for giving examples of best practice of our law system. Not the complete judgement or citation here.
I thought this was good platform to at least get views from experts pertaining to best practices in 498a/DV/Female infanticide/Maintenance.
Anyways.
V R SHROFF
(Expert) 04 April 2016
We do not provide judgements from SC / HC or Delhi courts.
ur adv legwork...
Guest
(Querist) 05 April 2016
Ok Sir.
Interesting but lot of references judgement HC/SC are within this websites regarding Divorce or false Dowry cases. Maybe these are popular.
What is purpose of this Lawyers club? I thought for good discussion showing best practices in our law.
But afraid not.
It's not rocket science to find Judgements.
There will some Lawyers who believe in knowledge sharing illustrating best practices.
I didn't find any response helpful or guided where to locate the information.
Guest
(Querist) 05 April 2016
Secondly every case is unique and independent on its own. Judgements and good papers only show best practices.
Sir than what kind of help can we get from this website?
Guest
(Querist) 15 April 2016
I feel disappointed & depressed after reading judgements on 498a/406/34 , DV, & 125. This law has never shown a strong impact to stop dowry harrassment.
Already my kids & I have faced a lot & thrown outside. I have been in so much depression that one point I feel like not living. My kids and I have beaten several times & abused, neglected & left alone to die. Often getting emotionally disturbed is more painful than physically hurt. I and my kids have been admitted in hospital because we were beaten up so brutally but over years this have healed.
Court proceedings & police investigation is going at pace of turtle walk. More than 3 years now, even charge sheet is not filed. Everyone talks about false cases & but true cases are getting no importance.
With these cases - only I am struggling to get justice for myself & kids for our simple rights.
My lawyer has already taken lot of money but till date only paper work is done. My lawyer so little time to discuss on the progress.
My Husband lawyer forcing me take divorce such that Husband family can remarry him. Like my life & kids are nothing. I don't want divorce.
Financially I not stable. Yes working for my life & kids.
What should one do in such situation? What are the legal rights of Wife & kids. Does court provide them or generally give another harrassment to us.
