You will surely Get Divorce if you have this thing in Divorce Case
In Divorce cases allegations and counter allegations are quite common if counter allegations are scandalous then surely you will get divorce
In Malar Vijy Vs. Kanthan and another13Wherein it has been
observed as follows;
―22. In Manisha Sandeep Gade v. Sandeep Vinayak Gade14 a Division
Bench of the Bombay High Court, while considering the question as to
whether the unsubstantiated and unproved allegation of adultery leveled
against the husband by the wife would amount to mental cruelty, has
held that it will amount to mental cruelty. It was a case where the
husband has sought for divorce on the ground of cruelty and while
defending the petition, the wife in her written statement, apart from
defending her and refuting the allegations made against her, had made
several allegations against her husband and one such allegation was
that he had illicit relationship with one Leena, wife of Vivek and in fact
he wanted to marry her. While considering the legal effect of such an
allegation, the Division Bench has held as follows:-
“30. What we have to note is that when one party to the petition has
sought divorce on some ground and the respondent to that petition
does not merely defend it to get it defeated, but makes further serious
allegations against the petitioner, it becomes a clear step towards the
dissolution of the marriage. In the present matter, the petitioner has
approached the Court seeking dissolution of his marriage. It is his case
that there is a failure of the marriage and he seeks to point it out by
invoking a ground available under the law. At that point of time, if the
respondent makes a counter allegation in the written statement, that by
itself shows a prima facie failure of the marriage. ….
- …. In a matrimonial matter, one cannot apply the standard of stricter
evidence. Nothing prevented her from establishing her allegations. The
respondent could not have established the negative by leading any
further evidence that the allegations made by the wife were false. The
appellant had made the allegations. The burden was on her. She had
failed to prove those allegations. Once she fails to prove those
allegations and if those allegations are not in consonance with
matrimonial relationship, and the husband complains that they have
caused him agony, the inference that they constitute cruelty has to
follow. - In the circumstances we are satisfied that the learned Judge was
right in coming to the conclusion that the allegations made by the
appellant wife were baseless and false and constituted a cruelty. He
was, therefore, right in granting the decree of divorce on that ground. …” - In Kiran Mandal v. Mohini Mandal15 a Division Bench of that Court,
has held as follows:-
“14. … She made false allegations against her husband that he had illicit
relations with his brother’s wife. These false allegations did have an
injurious effect on the husband.
15 AIR 1989 PUNJAB AND HARYANA 310
Page 30 of 39
- Cruelty within the meaning of S. 13 of the Hindu Marriage Act is not
confined to physical violence but includes mental torture caused by one
spouse to the other. The wife had made it insufferable for the husband
to live with her. Any man with reasonable self respect and power of
endurance will find it difficult to live with a taunting wife, when such
taunts are in fact insult and indignities. Human nature being what it is, a
reasonable man’s reaction to the conduct of the offending spouse is the
test and unending accusations and imputations can cause more pain
and misery than physical beating. ….” - In Smt. Chanderkala Trivedi v. Dr. S.P.Trivedi16
, the husband sued for
divorce on the ground of cruelty by wife. The wife filed a written
statement wherein she attributed adultery to the husband. In reply
thereto the husband put forward another allegation against the wife that
she was having undesirable association with young boys. Considering
the mutual allegations, His Lordship, R.M.Sahai, J., speaking for
Division Bench, observed:
“Whether the allegation of the husband that she was in the habit of
associating with young boys and the findings recorded by the three
Courts are correct or not but what is certain is that once such
allegations are made by the husband and wife as have been made in this
case then it is obvious that the marriage of the two cannot in any
16 1993 (3) Scale 541
Page 31 of 39
circumstance be continued any further. The marriage appears to be
practically dead as from cruelty alleged by the husband it has turned out
to be at least intimacy of the husband with a lady doctor and
unbecoming conduct of a Hindu wife.”
- In the light of the law laid down in the aforesaid decisions, if the
facts of the present case are considered, it could be seen that when
serious allegations of adultery is made by the wife against the husband
and the same stands unsubstantiated that will definitely amount to
mental cruelty as far as the husband is concerned. The unfounded
allegations made by the wife against her husband by itself shows the
prima facie failure of the marriage. - As far as the contentions of the learned counsel for the appellant
that unless and until the 1st respondent substantiates his allegations
contained in the petition, he is not entitled for decree for divorce and
merely on the ground that when the wife has made serious allegations,
he is not entitled to get decree is concerned, it has to be pointed out that
making unsubstantiated allegations about the character of the husband
and accusing him of illicit intimacy would itself amount to mental
cruelty. Therefore, the said contention of the learned counsel for the
appellant cannot be countenanced when the very allegations made
against the 1st respondent will amount to mental cruelty. - Under the above circumstances, it is immaterial that the 1st
respondent should establish the allegations of cruelty pleaded in the
petition. Therefore, the said contention of the learned counsel is
rejected.
Page 32 of 39 - We do not find any other valid reason to interfere with the reasoning
of the Court below. Hence the appeal fails and the same is dismissed.
No order as to costs.‖
The above position is reiterated in a recent Judgement of the Division
Bench of Honourable High Court of Madras in R. Frederick Vs. H. Malini17
,
wherein it has been held as follows:
―19. Even though mental cruelty cannot be defined preciously, yet, it can
be inferred on the basis of the attendant facts and circumstances of the
case. In this context, useful reference could be made to the decision of
the Hon’ble Supreme Court in K.Srinivas Rao Vs. D.A.Deepa18, wherein it
was held as follows:
―10. Cruelty can never be defined with exactitude. What is cruelty, will
depend upon the facts and circumstances of each case. In the present
case, from the facts narrated above, it is apparent that the wife made
reckless, defamatory and false accusations against her husband, his
Family Members and colleagues, which would definitely have the effect
of lowering his reputation in the eyes of his peers. Mere filing of
complaints is not cruelty, if there are justifiable reasons to file the
complaints. Merely because no action is taken on the complaint or after
trial the Accused is acquitted may not be a grounds to treat such
accusations of the wife as cruelty within the meaning of the Hindu
Marriage Act. However, if it is found that the allegations are patently
false, then there can be no manner of doubt that the said conduct of a
spouse, leveling false accusations against the other spouse would be an
act of cruelty……‖ - Thus, the plea of Mental Cruelty cannot be precisely defined, yet,
making unfounded, indecent, defamatory allegations against the spouse
or his or her relatives which may have adverse impact on the business
prospect or the job of the spouse would itself amount to cruelty. In the
present case, the respondent has harped upon by contending that the
Appellant led an adulterous life with one Shubha, Bharathi and other
women, but such allegations are largely not substantiated either by
examining the aforesaid persons or by any other proof to show that the
Appellant was in fact having illicit intimacy with them. Further, it was
proved from the oral evidence as well as pleadings of the respondent
that she has informed the sister, brother and mother of the Appellant as
though the Appellant was living an adulterous relationship with other
woman. When the respondent, without any substance, has informed the
sister, brother and mother of the Appellant as though the Appellant is
leading an adulterous life, definitely, it would be difficult, rather the
Appellant would be ashamed, to even interact or meet his own sister,
brother and mother in the wake of such scandalous and disparaging
remarks made against him by the Respondent. Moreover, we are also of
the opinion that if a suspicious nature of one of the spouse doubting the
fidelity of the husband or wife as the case may be, becomes a perennial
feature without any basis, leading to discord in the matrimonial life, it is
only a reflection of cruelty inflicted by one of the spouse against the
other. In such circumstances, we feel that the accusations made
by the Respondent against the Appellant, which remain largely
unsubstantiated, with respect to adulterous living, would have definitely
caused him a scar, mental disturbance and mental cruelty to him.
Therefore, we hold that the Appellant has proved that he was inflicted
with and subjected to matrimonial cruelty at the hands of the
Respondent.‖
Hence a Lawyer should be very cautious while making the cross
examination and shall ensure that the allegations leveled against the other
spouse should not become fatal to his own case.
Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997
