This article is written by Harsh Khanchandani, pursuing BBA LLB(Hons.) from SLS Pune.
Ty Case Number: MFA 100233/2014
Judge(s): P.B.BAJANTHRI AND NATARAJ RANGASWAMY
Date of Judgment: 11-Dec-2019
Petitioner: RENUKA W/O. SANGAPPA HUNCHIKATTI
Respondent: SANGAPPA S/O. SOMAPPA HUNCHIKATTI
Bench: Dharwad
Table of Contents
Facts of the case and procedural history
In terms of Hindu customs, the appellant-respondent stated that they were married about 27 years ago in Rabakavi village and had led a happy married life for about six years. They gave birth to a male child whose name was Vithal. The respondent’s claim was that the appellant is from a wealthy family and she decided to lead her life according to her wishes. She used to visit her parental home regularly and often without notifying the respondent. The appellant had been advised by the elders on all these issues, but there was no improvement in her attitude. The appellant resided in her maternal house without reasons and rhyme and declined to lead a marital life with the respondent, which forced him to file a petition for the restoration of conjugal rights under Section 9 of the Hindu Marriage Act.
The appellant had offered to join the defendant during the pendency of such a petition. The respondent withdrew the petition lodged under section 9 of the Hindu Marriage Act on the basis of this guarantee. The claimant did not rectify herself thereafter and also did not rejoin the respondent and proceeded to live in her parental house because of the marital arrangement between the parties that had come to a halt. She also lodged a petition against her husband requesting maintenance. In this context, the respondent filed a petition for the termination of his marriage pursuant to section 13 of the Hindu Marriage Act, solemnized in the month of December 2009. Despite the opposition made by his wife, the divorce was granted by the family court in 2014. Later, the woman opposed the lower court order and moved to the High Court.
Issue(s)
The High court while examining the decision reevaluated the following issues which were presented before the trial court:
- Whether the petitioner proves that the respondent has meted out cruelty?
- Whether the petitioner proves that the respondent has deserted him for more than two years immediately preceding to the filing of the petition?
Rules(s)
- Section 13(1) (i-a) of the Hindu Marriage Act, 1955
- Section 13(1) (i-b) of the Hindu Marriage Act, 1955
Decision of the court
- Trial Court- The Trial Court continued to permit the petition in part, ruling that, by the decree of divorce, the marriage of the respondent that was solemnized with the appellant 18 years ago in the village of Rabakavi was dissolved.
- High Court- The High court considered the view of the respondent and ruled that they have fully proved the ground for desertion and cruelty referring to Section 13 of the Hindu Marriage Act, 1955, and called for no interference in respect of the order passed by the Civil Judge Court in the year 2013.
Analysis of the decision of the court
The court while passing the above decision took into account numerous things. The learned counsel for the appellant pleaded that the Trial Court has made a mistake in failing to understand the respondent’s actions. It was further contended that sufficient evidence was not present in order to conclude that there was cruelty and desertion on part of the appellant. The council highlighted that the appellant was willing to join her husband. Per contra, the council for the respondent side contended that no oral or documentary evidence was provided by the appellant to demonstrate her intention to join the respondent in her marital home and to lead a happy married life. It was further stated that the behavior of the appellant, who had been living independently for more than a decade and a half and refusing to join back her partner after making several promises, amounted to cruelty.
The court after hearing the learned counsels for both the parties addressed the first and the second issue. The court observed that the appellant had not made any attempts to join her husband and also filed a petition seeking partition and maintenance. Contrarily the respondent was seen to have filed a petition under Sec. 9 of the Hindu Marriage Act which was discontinued based on the willingness of the appellant to join the defendant which never happened. Furthermore, the appellant did not produce any evidence in regard to the same. It was noted that she had an ample amount of opportunity so as to join the respondent during the pendency of the case filed in the year 2010. This omission of not returning to her parental house for more than 15 years was held as cruelty and desertion.
The court further went on to refer to a number of cases where the Supreme Court has explained the law relating to marital offenses of cruelty by one or the other partner. It was stated that cruelty is one case that may not amount to cruelty in another. It is a matter to be settled in every case based on the circumstances and facts. When drawing such an inference, consideration must be given to the educational background of the parties, the social status, the probability or otherwise of the parties ever living together in the event that they are already living apart, and all other relevant facts and circumstances which it is neither probable nor desirable to set out in detail. Specifically referring to mental cruelty the court stated that it should be proved using circumstances and facts of a case emerging from evidence. The court in this aspect was right in its approach as an individual one needs to consider what the odds in a case are and what legal cruelty needs to be found, not only based on the facts, but also as an impact on the conscience of the complainant’s partner due to the conduct or omissions of the other. In the present case, the appellant evidently declined to join her husband even though several attempts had been made to carry on their married life. This clearly amounted to cruelty.
Coming to the question of desertion, it was rightly iterated that desertion means segregation of one partner from another, with the sole aim, on the portion of the abandoning partner, of perpetually bringing cohabitation to an end without sufficient justification and without the assent of the other partner. It was observed that there should be two fundamental requirements for the offense of desertion, in so far as the deserting partner is considered, namely (1) the evidence of separation, and (2) the plan to completely end cohabitation.
In the same way, two elements are important as far as the deserted spouse is taken into account: (1) the lack of consent and (2) the lack of conduct which gives a fair cause to the spouse leaving the matrimonial home to make the required intention. The court moved on to evaluating the necessary elements of desertion and concluded that “From 2014-2019 she has not shown any interest to join her husband. The conduct of the appellant-wife is crystal clear that she has no desire to live with the respondent-husband till the date of filing of the petition which is a period more than the statutory period of two years. Further, also she has not shown any interest. The spouse does not care about the deserted one and ceases to live together renouncing his/her marital obligation and duties.” The Hon’ble court rightly interpreted the well-settled principle of reading animus deserendi (the plan to completely end cohabitation) and the fact of separation together.
The Hon’ble High court of Karnataka in this matter affirmed the divorce granted by the lower court and ruled that living away from your partner amounts to cruelty and is a basis for divorce under Section 13 of the Hindu Marriage Act. It also gave a new dimension and interpretation by widening the definition of cruelty. Living away from a spouse has previously been iterated as cruelty only in few cases. This makes the case noteworthy from the perspective of modern jurisprudence in the matters of judicial separation of husband and wife.
Judicial approach in previous judgments
JUDICIAL APPROACH TOWARDS CRUELTY
Smt. Parimi Mehar Seshu vs Parimi Nageswara Sastry (AIR 1994 AP 92)
Bench– G. Radhakrishna Rao and G.V.L. Narasimha Rao, JJ- Andhra High Court
The wedding among the petitioner and the respondent took place in Eluru on 26 February 1982, as per Hindu rituals and practices. Out of their marriage, a male child was born in 1982. She left her parents’ house in 1983. Subsequently, the respondent, as asked by the petitioner, abruptly declined to attend the petitioner. Consequently, the respondent and her mother came to Mangalagiri and stayed for about a month. The respondent also cruelly addressed the petitioner during that time. In February 1984, the respondent and her mother fled the petitioner’s house without telling him. In this matter, it was stated that the wife frequently absenting herself from her husband’s home amounts to cruelty.
Aparna Dey v. Alok Dey (2020 SCC OnLine Tri 411)
Bench-Hon’ble Mr. Justice S.Talapatra And Hon’ble Mr. Justice S.G.Chattopadhyay- Tripura High Court
In this case allegations of desertion and cruelty were made against the wife by the husband, in the context of which, according to Section 13 of the Hindu Marriage Act, 1955, the husband brought a petition before the Family Court to terminate the marriage by a decree of divorce. It would suggest from the depositions of the parties and their testimony that the respondent-wife fled her matrimonial home with her daughter and did not remain with her husband for any time until the lawsuit was filed by her husband to request a divorce. Hence it was held that the actions of the respondent-wife amounted to the desertion of her husband which inflicted him mental cruelty earning him the right to a divorce decree.
Samar Ghose v. Jaya Ghose ((2007) 4 SCC 511)
Bench- B.N. Agrawal, P.P. Naolekar, Dalveer Bhandari- Supreme Court of India
A similar situation arose between two partners where one party got separated for a long period from the other. It was stated in this case by the Hon’ble court that where there has been a long duration of prolonged separation, it can reasonably be inferred that the matrimonial relationship is beyond repair. Marriage is a concept that is assisted by a legal bond. Through refusing to break that bond, the rule in such situations does not serve the sanctity of marriage; on the contrary, it demonstrates no respect for the thoughts and sentiments of the parties. In situations like this, it can lead to mental cruelty.
JUDICIAL APPROACH TOWARDS DESERTION
Geeta Jagdish Mangtani vs Jagdish Mangtani ((2005) 8 SCC 177)
Bench: Arun Kumar, A.K. Mathur- Supreme Court of India
The Supreme Court, after narrating the facts provided in the case, held that the inference was unavoidable that there had never been any effort on the part of the wife to go to the husbands’ home, hence it was obvious from that fact alone that animus deserendi on the part of the wife had developed. She decided to follow a course of action that demonstrated desertion on her part and that it was without a fair cause. Such a long-term course of action suggests the complete abandonment of marriage. It often leads to wilful negligence by the wife of the husband.
Malathi Ravi, M.D. v. B.V.Ravi ((2014) 7 SCC 640)
Bench: Sudhansu Jyoti Mukhopadhaya, Dipak Misra- Supreme Court of India
A similar situation aroused between two parties where marriage between the parties was celebrated in accordance with the Hindu rituals. After the union, the husband and the wife lived together for one and a half years in the house of the husband’s father, but from the very first day the appellant-wife was uncooperative, rude, and her conduct towards the husband’s family members was intolerable. Given the dispute, a male infant was born in wedlock, and so the woman took the child and left the home, opting not to return to her husband or family for a period of three years. It was believed that there had been marital strife and utter incompatibility and that she had abandoned him by severing all relations. All the attempts of the husband to get her back had been an exercise in futility, since the letters he had written had never been received. The Supreme court in this case affirmed the decision passed by the High court and granted the decree of divorce.
Savitri Pandey vs Prem Chandra Pandey ((2002) 2 SCC 73)
Bench: R.P. Sethi, Y.K. Sabharwal- Supreme Court of India
A claim of desertion and cruelty was made by the appellant-wife, towards the spouse, pursuant to Section 13 of the Hindu Marriage Act (hereinafter referred to as the “Act”), submitted to the Matrimonial Court for the termination of her marriage with the respondent by decree of divorce. She also pleaded for directions to the respondent to restore her jewelry given to him at the time of the marriage. The Family Judge approved the appeal and dissolved the relationship of the partners on the basis that the husband had deserted his wife. It was argued that, when the appellant-wife was seen to have been living independently, it was to be supposed that the respondent had abandoned her. The Hon’ble court acknowledged desertion on part of the husband however due to lack of evidence it was not taken into consideration.
Lachman Utamchand Kiriplani vs Meena Alias Mota [1963] INSC 167
Bench: Sinha, Bhuvneshwar P.(Cj), Das, Sudhi Ranjan, Subbarao, K., Dayal, Raghubar, Ayyangar, N. Rajagopala- Supreme Court of India
The complaint was filed on 20 September 1956, and the substantive claim was that the wife had abandoned her matrimonial home on 26 February 1954, and had not since returned to him and that this implied “desertion”. It was held by a plurality that there was no fair excuse for the wife to remain separated from her spouse and that there was desertion on her part. The husband’s application for separation on consideration of the desertion by the wife for 2 years was approved by the High Court of Bombay and this was upheld by the Supreme Court.
Approach of the legislature
The Indian legislature has very much acted to define cruelty and desertion as a ground for divorce under Section 13 of the Hindu Marriage Act, 1955.
Some of the legislations that have been provided in regards with this issue are:
Section 13(1) (i-a) and Section 13(1) (i-b) of the Hindu Marriage Act, 1955 states for cruelty and desertion as a ground for divorce. In the following provisions, it has been stated –
“Divorce. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
1[(i) has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition;”
Matrimonial cruelty has taken its place within civil as well as criminal law. Under civil law, it has been implemented as a civil remedy in the context of divorce, maintenance, and judicial separation, whereas, under criminal law, it has been associated as a crime which is remedied by means of criminal provisions. Thus, it has been commonly divided into two parts. Cruelty in civil law and cruelty in criminal law.
Under the Hindu Marriage Act and the Special Marriage Act, the ground for divorce by cruelty is worded as “has, after the solemnization of the marriage, treated the petitioner with cruelty”. Of all the matrimonial offenses, cruelty is considered to be the most difficult to define. The Judges And Legislations have deliberately avoided formulating the definition of cruelty as acts of cruelty are been seen as infinite variables. Under the Hindu Marriage Act and the Special Marriage Act, cruelty has been interpreted as both mental and physical. Hence cruelty is seen to be interpreted on case to case bases as there is no specific definition provided under the statute. Talking about cruelty from the perspective of criminal law it has been defined under Section 498-A of the Indian Penal Code as :
For the purpose of this section, “cruelty” means,
- “any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
- 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.”
Coming to the issue of desertion, under most of the personal laws in India, desertion is considered to be a ground for judicial separation and ground for divorce. The Hindu Marriage Act lays down that it must extend to 2 years so as to consider it as a ground for judicial separation. Moving on to the interpretation of desertion under the act. Earlier in English cases, it was defined under a restricted approach. Later it was defined under the explanation to Section 13(1) of the Hindu Marriage Act and Section 27(1) of the Special Marriage Act as “desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”
Hence by the way of the aforementioned legislation, it can be rightly noted that the Hon’ble court has been right in its approach by granting a decree of divorce in this case based on Section 13(1) (i-a) and Section 13(1) (i-b) of the Hindu Marriage Act, 1955. Henceforth, Bare reading of the above statutory provisions paves the way for cruelty and desertion on part of the appellant.
Suggestions for improvement of current situation
Firstly the term “cruelty” was not defined under the Hindu Marriage Act of 1955, making it vulnerable to interpretation on the basis of various factors under different circumstances. What may be cruelty to one cannot be cruelty to another and vice versa. Often misinterpretation can lead to unjust and unfair decisions. Which further increases the risk of lawmaking by the judiciary. The understanding of the meaning of a phrase has contributed to a great deal of misunderstanding.
For example, in the case of criminal law, the term cruelty is characterized as involving harassment of a woman in order to compel her or her partnership to satisfy an unreasonable demand for certain property. Although the term cruelty is described in the sense of criminal law, it is not at all susceptible to confusion. What refers to cruelty in criminal law will be equivalent to another interpretation. However, in the case of Personal Laws, Cruelty has different meanings in different situations, causing confusion. Hence, referring to the definition as given by numerous case laws and statues cruelty under Hindu law should be defined accordingly. For example under the Muslim Marriage Act,1939 cruelty has been extensively defined as
“that the husband treats her with cruelty, that is to say,”
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or”
(b) associates with women of evil repute or leads an infamous life, or (b) associates with women of evil repute or leads an infamous life, or”
(c) attempts to force her to lead an immoral life, or (c) attempts to force her to lead an immoral life, or”
(d) disposes of her property or prevents her exercising her legal rights over it, or (d) disposes of her property or prevents her exercising her legal rights over it, or”
(e) obstructs her in the observance of her religious profession or practice, or (e) obstructs her in the observance of her religious profession or practice, or”
Secondly talking about desertion it has been noted after a detailed study that in numerous cases the definition of desertion as provided under the statute proves to be a savior in some cases and negative in others. For instance, the requirement of completion of the duration of 2 years also becomes an obstacle for a deserted partner. The deserted partner is presented with no choice but to wait for the deserting partner because, in situations when the abandoned spouse is informed that the deserting spouse has abandoned him or her, he or she simply does not have the right to knock on the court’s door for a divorce, as the two-year requirement according to the statute is pending, which must certainly be met.
This had been observed in the case of Darshan Kaur v Kashmir Singh (1 (2002) DMC 735).where the spouse had fled India and gone overseas, after which he managed to send money for his child and wife for three years, which he then discontinued and nothing had been heard of him. Further, when the wife approached the court for granting a divorce, the court ruled that there was no reason to support desertion and that the husband had permanently put an end to their relationship. In my opinion, this case provides us with the view that there is certain lacunae relating to the desertion clause and that its components to be established as a valid ground for divorce. Such instances portray that, despite having well-established laws, there are still inconsistencies and certain missing key elements that preclude the law from being an overwhelming success. Hence certain exceptions can be introduced to rule out the statutory period required for cases where the deserting partner agrees to have abandoned his/her spouse.
Thirdly the court determined that the obligation of establishing desertion and all its elements resides upon the petitioner since, normally, the burden rests upon the party which admits the truth, not upon the party which denies it. Nevertheless, the Courts also face a dilemma with contradictory facts, and it is difficult to determine which of the contrasting factual interpretations provided by the two parties is correct.
This is generally so because such situations arise within the safety of the four walls of the house and, in the absence of witnesses to corroborate facts, situations are adverse to the revelation of the truth. This turns into a benefit for the deserting partner. In the earlier cases, following the English Courts, the Supreme Court ruled that all evidence should be beyond a reasonable doubt. Ultimately, the courts ruled that the preponderance of probability could prove a marital offense. However, there have been cases that have been resolved beyond a reasonable doubt, putting enormous pressure on the innocent victim to get justice and let the deserter go free. Hence, Owing to the subjectivity and lack of clarity on the assessment of petitions for desertion, discretion and bias play a significant role in the process. It is clear that each case has to be weighed according to the particular evidence and context, but there is a need to introduce guidelines for the judges for clarity in dispensing justice.
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