Latest Trends in Divorce Cases.

LATEST TRENDS IN DIVORCE CASES

Author : Ms. Ambuja Jain, ICFAI Law School, Dehradun.

Introduction

Marriage is one of the most sacred unions between two people and their families where those two people form an emotional and a physical bond with each other. Though it is a relation between two people and since no human or relation is perfect it is highly possible that these two people may stop having that compatibility with each other which they used to have so as to live together for their whole life. Recent statistics reveal that in India the number of divorces is growing with each passing day. Many of us may blame such couples for having less tolerance but the fact is that people have stopped compromising their wants, desires, and needs. This type of attitude has resulted in such situations where a person may be facing cruelty by the hands of their partner, where one partner has left their partner for someone else, or both the partners have mutually decided to get separated.

Here I will be listing down the latest cases of divorce:

  1. Amardeep Singh v. Harveen Kaur[1]

Facts

In this case, the Appellant (husband) and Respondent (wife) got married on 16 January 1994 in Delhi. They had two children out of the wedlock. But after a few years, the parties started having some disputes between them due to which both of them started living separately in 2008. The Disputes resulted in many civil and criminal proceedings against each other. On 28th of April 2017, both the parties arrived at a settlement and applied for divorce by mutual consent. Here, the wife was to be given the alimony of Rs. 2.75 crores. On 8 May 2017, a suit was filed in Family Court where the parties have asked for the waiver of six months on the ground that they have been living separately for more than 8-years and there is no possibility of reconciliation between them. The parties then moved to Supreme Court on the ground that only the Supreme Court can waive the six months period.

Issues

  1. Whether Article 142 of the Constitution can be used to waive the six-month period given under Section 13B(2) of the Hindu Marriage Act?
  2. Whether Section 13B(2) of the Hindu Marriage Act is Mandatory or Directory?

 

Decision

In this case, the Supreme Court held that jurisdiction of this court under Article 142 could not be used to waive the period of six months under Section 13B, as doing so will be passing an order in contravention of a statutory provision, especially when no proceeding was pending before this court and the court was approached only for the purpose of waiver of the statute.

The court further held that, in determining the question of whether the provision is mandatory or directory, language alone is not always decisive. The cooling off period of 6-18 months provided under Section 13B(2) of HMA, 1955 is not mandatory but a directory provision and can be waived off under certain circumstances. And also it is the discretion of the Courts depending on the facts and circumstances of each case and can waive off the given period when there is no possibility of cohabitation.

Observation

I observed that the interregnum or cooling off period provided under Section 13B(2) of Hindu Marriage Act is not mandatory but a directory provision and can be waived off only under certain circumstances and that, the waiver of this cooling period depends on the discretion of the court. In this case, there was no chance of reunion as both the parties have been living separately for the last 8 years.

 

  1. Suman Singh v. Sanjay Singh[2]

Facts

On 26 February 1999, Respondent Sanjay and Appellant Suman got married to each other. During their marriage, they had two daughters. But, as time pass both of them started having disputes. On 19 July 2010 Sanjay filed an application for dissolution of marriage under Section 13(1)(ia) of Hindu Marriage Act alleging that he was regularly harassed and tortured by Suman. Then, Suman also filed an application for restitution of conjugal rights under Section 9 of Hindu Marriage Act alleging that Sanjay used to demand dowry and used to abuse her both physically and mentally and also alleged that he was having extra-marital affair and had left the house.

Here, the Trial Court had allowed the petition filed by the respondent and held that the grounds alleged by the respondent amounted to mental cruelty within the meaning of Section 13(1)(ia) of the act and had granted a decree for dissolution of marriage and had dismissed the petition filed by Suman. Later, Suman filed the first appeal before the High Court, here also the High Court had affirmed the decree of Trial Court and had dismissed the appeal filed by the Appellant. Then the appellant had filed an appeal before the Supreme Court.

 

Issues

  1. Whether the Appellant is entitled to the restitution of Conjugal Rights?
  2. Whether the Respondent was treated with cruelty by the Appellant? Whether the Respondent is entitled to a decree of Divorce?

Decision

In this case, the Supreme Court had allowed the wife’s appeal and had made certain observation that all the grounds taken by the respondent in his petition were stale and isolated and did not support to enable the respondent to seek a decree for dissolution of marriage as the incidents of cruelty alleged had taken place immediately after the marriage i.e. 8-10 years prior to filing of the date of petition which cannot arise cause of action to seek divorce on the ground of cruelty.

Further, the court had granted the plea of the wife seeking restitution of conjugal rights. As according to the court, both the parties had certain duties and responsibilities towards their grown-up daughters.

Observation

I observed that in this case, the incidents which are alleged should be of recurring nature and they should be in near proximity with the filing of the petition. The incidents of long past and that too found to have been accepted due to the compromising behavior of the parties cannot constitute an act of cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act.

 

  1. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes

Facts

In this case, the husband and wife got married as per Christian rites on 28 December 1987. They had two daughters. In 2005, the husband filed a petition before the Family Court for divorce on the grounds of cruelty and desertion. He said that his wife had falsely accused him of having illicit affair with their maid. Then she accused him of having a relationship with his uncle’s daughter and she further accused him of sleeping with their younger daughter. His wife also filed an FIR against him under Section 498A and Section 406 of IPC. In the FIR, his wife accused him of stealing her gold jewellery and demanding Rs.2 lakhs from her to buy a car. The Family Court had passed an order granting the divorce and had rejected the plea for maintenance made by the wife. After the Family Court’s decision, the wife filed an appeal in Bombay High Court challenging the decision of Family Court.

 

Issues

  1. Whether the Respondent is entitled to a decree of divorce? Whether the Petitioner has treated the Respondent with cruelty?
  2. Whether the Petitioner is entitled to get maintenance?

Decision

The Bombay High Court had dismissed the appeal made by the wife and had refused to interfere with the Family Court’s order in granting the divorce on the ground of ‘cruelty’. As both Husband and Wife have been living separately for the past 12 years and there is no chance of reconciliation between them. The court was also of the opinion that the husband was subjected to mental cruelty as during the examination, the wife had admitted that she had lodged an FIR against her husband that was based on false allegations which is a ground for divorce under Section 10(1)(x) of Divorce Act.

Therefore, the order of the Family Court was partly upheld i.e. only on the ground of cruelty and not on desertion as in order to constitute desertion, the husband has to be deserted for two years. But in this case, he was thrown out of their matrimonial house in 2004 and the case for divorce was filed in 2005. The court also upheld that the wife is not entitled to maintenance as she has her own source of Income and she is already occupying the flat that belongs to her husband.

Observation

I observed that if any husband or wife lodges a false complaint under section 498A of Indian Penal Code amounts to cruelty. As in this case, the wife had made false allegations against her husband such as stealing, dowry, and of having an illicit affair which caused mental agony to the husband. Such mental agony was treated as cruelty on the part of the wife.

  1. ShantaramTukaramSarfare v. SandhyaShantaramSarfare

Facts–                                                                                                       

The Appellant and Respondent got married in 1972. The relationship between them used to be warm and friendly, but because of the Respondent’s nature, their relationship became strained. The Appellant in his petition pleaded that the Respondent lodged frivolous and vexatious complaints at the police station and in the Courts and has also involved the Appellants brothers and sisters in a criminal case in which they were acquitted. The Appellant also pleaded that the Respondent had created many hurdles in his promotions, benefits, and privileges in his job. Though the Appellant has always treated her with love, affection but there was no reciprocation from the Respondent.  The Family Court had dismissed the petition for Divorce filed by the Appellant as the Appellant had failed to prove that he was subjected to cruelty at the hands of the Respondent.

Issues

  1. Whether the Appellant has made out the case for setting aside the judgment of the Family Court?
  2. Whether the Appellant has proved that he was treated with cruelty by the Respondent?
  3. Whether the Appellant is entitled to the Decree of Divorce?

Decision

The Bombay High Court observed that the Family Court had already found out that the Appellant and his brothers and sisters had not committed the offences alleged by the Respondent which shows that the Appellant had suffered harassment as they were taken into custody for 8 days. It amounts to cruelty, particularly when the allegation is false. The court also stated that the Family Court judge made a mistake in observing the facts as the Appellant should have specified whether the contents of the complaint were totally false or were the real facts.

Then, the court further observed that the Appellant had made out sufficient case for grant of divorce on the ground of cruelty and the judgement of the Family Court was to be set aside and held that because of the unreasonable criminal proceedings against the Appellant, which had caused him tremendous mental agony and Respondent’s continuous complaints to the Appellant’s employer had also hampered his progress in his job. The cross-examination of the Respondent shows that she was blaming the Appellant for not being able to conceive, which totally amounts to cruelty. However, the court had directed the husband to continue paying monthly maintenance to his wife.

Observation

In this case, a division bench of Bombay High Court comprising Justices K.K.Tated and S.K.Kotwal where they had granted the divorce to a 62-year-old man and held that constantly blaming your partner for failure to conceive amounts to cruelty. Due to this, the Appellant had to go through such mental agony. Due to his wife he was not able to progress in his job, she had totally tarnished his image in front of his employer and colleagues which is totally not acceptable. So, the court had granted a decree of divorce in favour of the Appellant.

  1. Manju Kumar Singh v. Avinash Kumar Singh[3]

Facts-

The Appellant (wife) and the Respondent (husband) got married in 1997. The Appellant was a teacher and the Respondent was practicing as an advocate. They both had a daughter in 1998. But soon after that, their marriage started falling apart. Then, the husband filed a divorce petition in the Family Court against his wife. In his petition, he alleged that his wife treats him with cruelty and has deserted him. The wife (Appellant) denied the allegations of cruelty and desertion. The family court passed a decree of divorce on the ground that the allegations of cruelty and desertion against the Appellant were proved. After the decision of the Family Court, the Appellant filed her first Appeal in the High Court of Jharkhand who also affirmed the decision of the Family Court. Then the Appellant filed an appeal in the Supreme Court of India.

 

Issues

  1. Whether the Respondent is entitled to the relief of decree of divorce on grounds of cruelty and desertion?
  2. To what relief or reliefs the Respondent is entitled to?

Decision-

The court had passed a quietus to all litigations between the parties i.e. all allegation made in pending cases arising out of the matrimonial proceedings including that one also through which this appeal arises are disposed of.

The Court further held that, after considering all the peculiar facts and circumstances of this case, it is appropriate to exercise the power under Article 142 of the Constitution of India in order to do justice to both the parties and had declared the dissolution of marriage subjected to certain conditions. Here, the Respondent (husband) had to pay a total amount of Rs.10 lakh in two installments as permanent alimony to the Appellant and daughter.

 

Observation

In this case, the court had given a quietus to all the litigations between the parties which means that all the litigations, allegation which was previously made will be considered as disposed of. The court was of opinion that for the interest of both the parties it is better to sever all the matrimonial ties between the parties since the marriage has been broken down irrevocably. Hence, the marriage between the parties was dissolved.

[1](2017) 8 SCC 746

[2](2017) 4 SCC 85

[3]AIR 2009 Jhar 35

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