The Telegraph
Since 1st March, 1999
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Harried husbands can seek relief
Lost world: A new judgement defines the word cruelty in a new light

Naveen and Neelu Kohli were married with children, but they were not a couple who lived happily thereafter. Soon after marriage, the wife started misbehaving with the husband and the in-laws — quite the opposite of what we often get to see in our society where wives, and not husbands, are targets of marital cruelty. So much so that Naveen was forced to leave his own home. He started staying in a rented flat. The ordeal did not end there. Neelu filed several criminal complaints against her husband, put him behind bars and even issued public notices in the newspapers to embarrass him. And finally, she took over her husband’s multi-crore business.

Till then, everything was going fine for the wife. But after staying separately for 10 years, Naveen wanted a divorce by mutual consent. Neelu, however, refused to give that. Though the high court verdict went in the wife’s favour, a landmark judgement of the Supreme Court granted the husband a divorce. A three judge bench of Justice B.N. Agrawal, A.K. Mathur and Dalveer Bhandari held: “Considering the circumstances where both parties had brought charges of mental cruelty and has (sic) been staying separately for more than 10 years, one has to consider that the marriage is virtually dead. In such a case, irretrievable breakdown of marriage can be a ground for divorce.”

“This judgement is unique as irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act and the court of law could not grant a divorce on this ground. The Supreme Court of India has for the first time included this ground for granting divorce,” says Debashish Ghosh, lawyer, Calcutta High Court.

What’s ground-breaking is that the apex court has recommended that the Union of India should seriously consider bringing an amendment in the Hindu Marriage Act of 1955 and incorporate “irretrievable breakdown of marriage” as a ground for divorce. A criminal lawyer of Calcutta High Court, Joy Sengupta, notes, “Such recommendations are rare and quite noteworthy as the apex court wants an amendment in law.”

Will such amendments then help aggrieved husbands to get justice in cases where wives take advantage of legal grounds and refuse to consent to a divorce just to harass them' No doubt, there are instances where husbands are tortured by wives or in-laws and are thrown out of their own houses. And with judges taking a soft stand on women’s cases in recent times, husbands face a tough time. Lawyer Prashanta Bishal recalls a case where a doctor, a victim of alleged marital torture, was later murdered by his wife and her accomplices. Swapan Bose Roy Chowdhury was murdered in Haldia and a CID investigation ordered by Calcutta High Court later led to the arrest of his wife who is said to have repeatedly tortured her husband and to have had an adulterous relationship with another man, as per the investigation report.

There are instances where husbands are even jailed when a wife brings in false allegations under Section 498A of the Indian Penal Code just to demean and harass the husband and his family. Women do take advantage of legal sections to teach their husbands a lesson.

Mamata Sinha recalls her son’s story where the daughter-in-law brought allegations of torture against her in-laws though she never stayed with them. “Owing to charges brought under Section 498A of the Indian Penal Code by my daughter-in-law, my husband and son were both jailed for no fault of theirs. We never even stayed with my son and his wife, how come then we tortured her,” laments Sinha.

However, Supreme Court lawyer Amlan Ghosh says: “It will be wrong to state that the courts are biased towards women. Women in India have been the weaker section of society and at the receiving end for centuries. So anything involving the personal law of women in India requires protective discrimination. But that does not mean that the Supreme Court is blind and will allow injustice. It has always given protection to the aggrieved party, whether men or women.”

Ghosh also feels the suggestion of the Supreme Court will help both parties as an irrevocable breakdown of marriage should be a ground for divorce. Sengupta also reflects that this judgement has defined the word cruelty in a new light by stating “each case has to be decided on its own merit, rather than generalising the grounds”.

The judgement states that cruelty is the course of conduct of one that adversely affects the other. The cruelty inflicted might be mental or physical, intentional or unintentional. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and the culture and human values to which they attach importance. Hence, each case has to be decided on its own merit.

“Mental cruelty as defined in Section 13(1) of Hindu Marriage Act can be broadly defined as the conduct that inflicts upon the other party such mental pain and suffering as would make the other party not to live with the other.” But the apex court now holds in this recent judgement “what is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regards must also be had to the context in which they were made”.

Just like there are cases similar to Sinha’s where the husband is at the receiving end, there are also several cases where wives have died because of dowry abuse and physical and mental torture. So it’s for the courts to ensure that no party, whether wife or husband, gets the opportunity to abuse the law.

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