A wife is not entitled to any Maintenance Allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by sub-section (4) of section 125, Cr. P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure. Ashwani K. Lal v. Deepa Kumari Chauhan, Cr.MMO No. 358 of 2016, decided on October 31, 2019
Tag Archives: Physical Cruelty
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.
In Narendra v. K. Meena, 2016 (5) KHC 180, it was held as under: “In a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the respondent wife to constrain the appellant to be separated from the family would be torturous for the husband and in our opinion, the trial court was right when it came to be conclusion that this constitutes an act of ‘cruelty’.” Ranjith P.C. V. Asha Nair P., Mat. Appl. No. 137 of 2014, decided on May 20, 2020
The Hon’ble Supreme Court in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334, had the occasion to consider the question 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)(ia) of the Act. The Hon’ble Court has observed that the position of law in that regard has come to be well settled and declare that leveling disgusting accusations of unchastity and indecent familiarity with the 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 allegations and aspersions made in the written statement or suggested in the course of examination and by way of cross-examination 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. Such unfounded accusations and character assassinations causes mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and causes 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 life impossible. Debashis Choudhury v. Nibedita Choudhury, Mat. App. 22 of 2018 decided on 24.09.2019.
Sub-Section 2 of Section 25 of Protection of Women from Domestic Violence Act provides that the aggrieved person or the respondent may approach before the Magistrate by filing an application for alteration, modification or revocation of any order made under this Act. If any such application is filed before the Magistrate praying for alteration, modification or revocation of any order made under this Act either by the aggrieved person or by the respondent then the Magistrate may for reasons to be recorded in writing pass order, as he may deem appropriate. Sub-Section 2 of Section 25 of Protection of Women from Domestic Violence Act has conferred right both on the aggrieved person and the respondent to approach before the Magistrate for alteration, modification or revocation of any order made under this Act. Sub-Section 1 of Section 25 is restricted only to the protection orders under Section 18 of the Protection of Women from Domestic Violence Act. The recourse under Sub-Section 1 of Section 25 can be availed of only by the aggrieved person not by the respondent. Whereas, Sub-Section 2 of Section 25 deals with the alteration, modification and revocation of any order made under the Act and recourse can be taken both by the aggrieved person and the respondent. The scope of application of Sub-Section 2 of Section 25 is much wider than Sub-Section 1 of Section 25. In view of the provision as contained in Sub-Section 2 of Section 25, it can be presumed that the order passed under the Act is not perpetual in nature and the order passed under this Act may be altered, modified or revoked, if there is a change in the circumstances and for that purpose the aggrieved person or the respondent may approach before the Magistrate under the Act. If such prayer is made the Magistrate may for reasons to be recorded in writing pass such order, as he may deem appropriate. Krishnendu Das Thakur v. State of West Bengal, (2019) 3 HLR 114.
The problem arises with the meaning of phrase “at any point of time”. That does not mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship. At any point of time, indicates that the aggrieved person has been continuously living in the shared household as a matter of right, but if for some reason if the aggrieved person has to leave the house temporarily and when she returns she is not allowed to enjoy her right to live in the property. Where a family member leaves the shared household to establish his or her own household, he or she cannot claim to have a right to move an application under Section 12 of the DV Act on the basis of domestic relationship. This proposition of law came up before the Delhi High Court in the case of Vijay Verma v. State (NCT) of Delhi reported in (2010) 172 DLT 660, wherein it has been observed as under:
6. A perusal of this provision makes it clear that domestic relationship arisen in respect of an aggrieved person if the aggrieved person had lived together with the respondent in a shared household. This living together can be either soon before filing of petition or ‘at any point of time’. The problem arises with the meaning of phrase “at any point of time”. Does that mean that living together at any stage in the past would give right to a person to become aggrieved person to claim domestic relationship? I consider that “at any point of time” under the Act only means where an aggrieved person has been continuously living in the shared household as a matter of right but for some reason the aggrieved person has to leave the house temporarily and when she returns, she is not allowed to enjoy her right to live in the property. However, “at any point of time” cannot be defined as “at any point of time in the past” whether the right to live survives or not. For example if there is a joint family where father has several sons with daughters-in-law living in a house and ultimately sons, one by one or together, decide that they should live separate with their own families and they establish separate household and start living with their respective families separately at different places; can it be said that wife of each of the sons can claim a right to live in the house of father-in-law because at one point of time she along with her husband had lived in the shared household. If this meaning is given to the shared household then the whole purpose of Domestic Violence Act shall stand defeated. Where a family member leaves the shared household to establish his own household, and actually establishes his own household, he cannot claim to have a right to move an application under Section 12 of Protection of Women from Domestic Violence Act on the basis of domestic relationship. Domestic relationship comes to an end once the son along with his family moved out of the joint family and established his own household or when a daughter gets married and establishes her own household with her husband. Such son, daughter, daughter-in-law, son-in-law, if they have any right in the property say because of coparcenary or because of inheritance, such right can be claimed by an independent civil suit and an application under Protection of Women from Domestic Violence Act cannot be filed by a person who has established his separate household and ceased to have a domestic relationship. Domestic relationship continues so long as the parties live under the same roof and enjoy living together in a shared household. Only a compelled or temporarily going out by aggrieved person shall fall in phrase ‘at any point of time’, say, wife has gone to her parents house or to a relative or some other female member has gone to live with her some relative, and, all her articles and belongings remain within the same household and she has not left the household permanently, the domestic relationship continues. However, where the living together has been given up and a separate household is established and belongings are removed, domestic relationship comes to an end and a relationship of being relatives of each other survives. This is very normal in families that a person whether, a male or a female attains self sufficiency after education or otherwise and takes a job lives in some other city or country, enjoys life there, settles home there. He cannot be said to have domestic relationship with the persons whom he left behind. His relationship that of a brother and sister, father and son, father and daughter, father and daughter-in-law etc. survives but the domestic relationship of living in a joint household would not survive & comes to an end. N.S. Lellavathi v. Dr. R. Shilpa Brunda, Cri. Revision Petition No. 1146 of 2019 decided on 11.12.2019
Cruelty under Section 498A means any willful conduct which is of such nature as is likely to drive the woman to commit suicide. It also means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Therefore, the prosecution has to prove a willful conduct, which is of such nature as is likely to drive the woman to commit suicide. No such willful conduct has been established because none of the witnesses have given evidence to have seen the Accused indulging in such willful conduct that could drive a woman to commit suicide. Moreover, if a woman is harassed, that harassment should be with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security, or is on account of failure by her or any person related to her to meet such demand. Therefore, the prosecution has to prove that there was any unlawful demand for any property or valuable security by the Accused. None of the witnesses have stated that there was any such demand by the Accused. Therefore, the charge under Section 498A cannot stick. State of Maharashtra v. Anil Kurkotti, (2019) 3 HLR 823.
The word “cruelty” and the kind or degree of “cruelty” necessary which may amount to a matrimonial offence has not been defined in the Act. What is cruel treatment is to a large extent a question of fact or a mixed question of law and fact and no dogmatic answer can be given to the variety of problems that arise before the court in these kinds of cases. The law has no standard by which to measure the nature and degree of cruel treatment that may satisfy the test. It may consist of a display of temperament, emotion or perversion whereby one gives vent to his or her feelings, without intending to injure the other. It need not consist of direct action against the other but may be misconduct indirectly affecting the other spouse even though it is not aimed at that spouse. It is necessary to weigh all the incidents and quarrels between the parties keeping in view the impact of the personality and conduct of one spouse upon the mind of the other. Cruelty may be inferred from the facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence and inference on the said point can only be drawn after all the facts have been taken into consideration. Where there is proof of a deliberate course of conduct on the part of one, intended to hurt and humiliate the other spouse, and such a conduct is persisted cruelty can easily be inferred. Neither actual nor presumed intention to hurt the other spouse is a necessary element in cruelty. Sujata Uday Patil v. Uday Madhukar Patil, (2006) 13 SCC 272
Section 13(1)(i-a) of the Hindu Marriage Act is comprehensive enough to include cases of physical as well as mental cruelty. Modern view has been that mental cruelty can even cause more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be ascertained from the facts. Though no uniform standard can be laid down for the guidance, yet certain instances of human behavior may be relevant in dealing the cases of ‘mental cruelty.’ Vinay Kumar Pathak v. Annapurna Awasthi, 2017 (125) ALR 453.
There is no quarrel to the proposition that initiation of the criminal case by the wife would not automatically lead to passing a decree of divorce on the ground of cruelty. There is, also, no denial that irretrievable breakdown of marriage is no ground for divorce. No decree for divorce could be granted on the ground of ordinary quarrels that is to say, the cruelty simplicitor is not enough, and the husband is to prove that cruelty is of a nature as to give rise to a reasonable appreciation in his mind that it will be harmful for him to live with his wife.
On the complaint of the wife under Sections 498A, 406 and 313 of the Indian Penal Code, 1860, not only the husband but also his parents, his elder brother and his sisters-in-law were implicated and charge sheeted. The husband and his parents were arrested. The husband and his father remained in police custody for nine days. On trial, all the accused persons were acquitted as the criminal Court disbelieved the evidence of the prosecution. Rather it was proved that respondent/wife was conceived and on 17.06.2007 she got aborted in one Nursing Home out of her own volition. The respondent/wife had no intention of living with the husband as would appear from the facts and circumstances of the case and respondent/wife deliberately made wild allegations against the husband and his relatives. Inference can be drawn that the wife had no intention to reside with the husband and her intention was to terminate the matrimonial relationship. Hence such acts of the respondent/wife, specially filing a criminal case and for which her husband and father-in- law languished in the custody amounts to cruelty so as to create an apprehension about life and, thus, it amounts to ground of divorce. Suchitra Kumar Singha Roy v. Arpita Singha Roy, F.A. No. 135 of 2014, decided on 20.03.2020 (Cal HC)
The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498-A of the Penal Code. The definition of “domestic violence” in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or well-being, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanations (a) & (b) to Section 498-A of the Penal Code which define “cruelty”. The provisions contained in Section 498-A of the Penal Code, undoubtedly, encompass both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would amount to commission of cruelty within the meaning of Section 498-A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. Rupali Devi v. State of U.P., (2019) 5 SCC 384