Grounds for Divorce
Querist :
Anonymous
(Querist) 27 October 2010
This query is : Resolved
At the outset, apologies for the detailed msg but would like to provide complete details before asking for suggestions.
We are an joint family (me, father, mother, brother, sister-in-law & my wife). There were some fire accidents at our home in Apr'10. Reason for the fire accident is unknown. Some of our household articles (mainly clothes, bed spreads) went on fire. The police and the fire department were informed and they werent able to identify the reason for the fire.
Since my wife was in a kind of shock, her parents came and took her to their place. We were planning to go to Tirupathi after a week and hence we requested them to bring her to Tirupathi and we were planning to bring her back to our house.
We werent able to go to Tirupathi, as planned, during that weekend and was pushed to the subsequent week. Hence went to her place and asked her to come with us. Since the Tirupathi plan was pushed by a week, they informed us that they would like keep their daughther for one more week and send her with us from Tirupathi and we were also fine.
We went to Tirupathi and things changed there. They started complaining that we asked for more sreedhan and was giving their daughter 2nd degeree treatment. We tried our best to make them understand is that there was never such intentions and its more imagination on their daughter's. They werent in a mood to agree which resulted in a quarell and they took back their daugther to their place. We came back to our house.
Few days later, her father sent a letter stating that marriage happened on such and such date...fire accidents happened..but no action was taken from our side..we ill-treated their daugher because the streedhan they gave was less..etc etc
We responded to each and every point mentionted in the letter denying the allegations & assumptions and providing the actual infomration.
Her father sent a letter apologising for any mistakes they might have committed and asked us to provide a date when they come to come to have a discussion and iron out any misunderstandings
We informed a date. They came on the date along with the person who help us get this alliance (he is their close relative and our distant relative). But within 5 mins of the discussions, they started shouting that their daughter wont be happy at our house anymore and started pulling her Mangal Sutra from her neck..it was almost removed. My uncle intervened and said that he will not allow such things to happen at our house and questioned them on the intentions of they coming to our house..they werent ready to listen to anything..shouted at the top of their voices and left the palce..
After this one of their relatives had a meeting with me and my wife alone. She didnt show any signs of rejoinig but started complaining about petty things (such as i forgot to buy her a fruit..i gifted a dog doll on her birthday with the intention that she should lick my legs and waive her tail all through her life etc)..and the meeting didnt yeild any positive results.
This relative, using his influence, gave an false oral complaint to the police that i had an illegal relationship, that too in a police station that is outside the jurisdiction of our house. Police came in search of me and since i wasnt there at my house, took my father for an enquiry. My uncle then got the services of an lawyer who went to the police station and asked for the complaint. The police werent able to provide. They approached senior offices and got my father out from the clutches of the ploice but all of us had to go through an huge amount of mental pressure for 6-7 hrs.
We filed an RCR and is now set for hearing on 04-Jan-2011
Recently they came to our house to take back all items provided during marriage. they were silent until the time all their items got loaded to the truck. once done they started shouting, abusing us in bad words, throwing stones and mud on our house etc. The entire neighbourhood watched this and are ready to testify, if required.
Our entire family is totally hurt because of these incidents and dont see any point in continuing this relationship. Can anyone pls sugest if i can file a divorce and if so under what grounds pls
A V Vishal
(Expert) 27 October 2010
Under clause (ia) of sub-section (1) of section 13 and under sub-section (1) of section 10 of the Hindu Marriage Act, 1955 cruelty is a ground of divorce as well as judicial separation respectively. Whether a particular act or conduct complained of is covered under the ground of cruelty or not, will always be decided on facts and circumstances in each case.
Under the English Law, legal concept of cruelty is conduct of such a character as to cause danger to life, limb or health (physical or mental) or as to give rise to a reasonable apprehension of such danger. Before the amendment of the Hindu Marriage Act, which was brought in the year 1976, the rigid meaning and interpretation was given to the ground of cruelty. But even before the amendment, the Supreme Court in Dastane Vs. Dastane, AIR 1975 SC 1534, tried to give a literal meaning to the ground of cruelty applicable in terms of divorce or judicial separation.
Though the concept of English Law and the Hindu Marriage Act in terms of cruelty as a ground for divorce or judicial separation is more or less the same, yet the learned Judges in India still hold that marriage is a sacrament taking into consideration the social and cultural conditions of our country.
In Sukumar Vs Manohar Shivaram Jagesha, the Court observed:
The question whether a particular act or behaviour would amount to cruelty or not depends upon the character, way of life of the parties, their social and economic conditions, their status, customs and traditions. Each case is to be decided on the facts of its own. The judges and the lawyers should not import their own notions of life while dealing with matrimonial cases.
Cruelty is classified into two heads.
1. Physical cruelty and
2. Mental cruelty
Physical Cruelty:
It is a settled law that physical violence is not necessary ingredient of cruelty. Unending accusations and imputations can cause more pain and misery than a physical beating. Therefore, it goes without saying that the act of cruelty consists of mental torture or physical violence. If it is a physical violence, there will be no problem for a court to arrive at a decision while determining a case presented before it, but in case of mental torture or harassment, the court finds comparatively more difficult to come to final conclusion.
Firstly the court begins its enquiry as to the nature of cruel treatment as well as the impact of that treatment in the mind of the spouse. Ultimately it is a matter of inference to be drawn by taking into account of the nature of the conduct and its effect on the complaining spouse.
Mental Cruelty:
An act of mental cruelty is far more severe and dangerous than an act of physical violence. The eye opener cases of mental cruelty are Mohit Bhatnagar Vs Sangeeta Bhatnagar and Deepak Johri Vs Kum Kum Johri, the case of Mohit Bhatnagar has since been decided by the Matrimonial Court after 7 years of long battle and the case of Deepak Johri is still pending in the High Court of Delhi.
In the judgment of the Supreme Court in V. Bhagat Vs D. Bhagat, the learned judges granted the relief by cutting short the delay oriented procedure adopted by the District Court as well as the High Court of Delhi. Every matrimonial petition may be heard on day to day basis, and be disposed of within six months from the service of the petition on the respondent. The High Court is also required to dispose of every appeal within three months of the service of the notice of appeal to the respondent.
Inspite of the fact that the law provides that every matrimonial proceeding should be completed within six months, no serious efforts are made either by the courts or by the advocates to adhere to the time limit. And the reality is that no matrimonial proceedings are completed before five or ten years. This long delay itself is also the cause of mental torture or mental cruelty to all aggrieved parties facing matrimonial proceedings in the courts.
The standard of in case of mental cruelty need not be beyond reasonable doubt, as is required in the criminal trials. What is required in such cases is that the court must be satisfied of preponderance of probabilities and not satisfaction beyond all reasonable doubts.
The act of mental cruelty in matrimonial homes, matrimonial violence and wife battering continues all over the world. Often the unwanted acts of mental cruelty prove to be much more devastating than the acts of physical violence.
Mental cruelty can be inflicted by many ways. A false criminal case to harass the husband would be an act of cruelty. Refusal to have marital intercourse, false complaints to the employees by the wife, an act of nagging, false, scandalous, malicious and baseless charges etc. come under the purview of mental cruelty.
Where a wife is found to be of bad temperment and makes false allegations against her husband it amounts to an act of cruelty.
False allegations of the wife that an attempt by the husband was made to burn her amounts to cruelty.
A V Vishal
(Expert) 27 October 2010
One thing unclear in your query is the date of marriage.
Querist :
Anonymous
(Querist) 27 October 2010
Marriage happened on 22-11-2009
A V Vishal
(Expert) 27 October 2010
Refer S.14. of the Hindu Marriage Act that No petition for divorce to be presented within three years of marriage.- (1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition three years have elapsed since the date of the marriage:
Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf , allow a petition to be presented before three years have elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of three years from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said three years upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of three years from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said three years.
Raj Kumar Makkad
(Expert) 27 October 2010
Nothing remains to be told after reading detailed provisions of law put forth by vishal.
Devajyoti Barman
(Expert) 27 October 2010
The restriction of time limit is 1 year from the date of marriage.
Second thing if you have already filed RCR then you are deemed to have condoned all her acts of cruelty and hence on the cause of action which happened till date, you could no more file any suit for divorce. Only if subsequently a fresh cause of action arises then after withdrawing the RCR with the leave of the court you could file a suit for divorce.
Querist :
Anonymous
(Querist) 28 October 2010
Respected People,
Pls advise what could be our next steps if we want to apply for divorce. Can we withdraw the RCR and file a divorce on the basis of cruelty?
Thanks!
A V Vishal
(Expert) 28 October 2010
Advise not to withdraw RCR, if the wife doesnot resume co-habitation it can as well be grounds for divorce.
Kirti Kar Tripathi
(Expert) 28 October 2010
I have read to query and also the position of law as referred by my learned friend. concurring with their advise, my opinion is since you have already filed the RCR, so wait for reply of your wife. in case, her intention is not to resume co-habitation, decide your further action. At present it is too early to react.
Querist :
Anonymous
(Querist) 28 October 2010
Respected people,
After going through all the pain (especially false complaint & their behaviour while taking back their articles), we have no intentions of reconciliation and would like to go for divorce. My worry is what if they use this as a gate way to comeback and inflict more pain??
Also, the RCR is fixed for hearing on 04-Jan-11. Would they be filing their response before that date or would it be filed only on that date??? how can we get to know what response they are filing??
Querist :
Anonymous
(Querist) 29 October 2010
Respected People,
I read in another post that once RCR is filed, it means that the petitioner has condoned all the acts of the respondent and the case would become weak if the petitioner withdraws the RCR and files divorce. The situation is exactly the same in my case too.
RCR was filed on 01-Oct. However i am not sure when it was sent to the respondent as my lawyer took care of it. On 14-Oct, my inlaws came and took away all their items. Is this a good cause of action to withdraw the RCR?
