Unilateral Backing out of the Mutual Consent Divorce petition is Mental Cruelty

>>> “There can never be any straight jacket formula or fixed parameters for determining the mental cruelty in matrimonial matters”

>>> Important Ruling by High Court: Held that after mutually agreeing to divorce, withdrawal of consent by a spouse constitutes mental cruelty.

Unless there is sufficient or just cause, such withdrawal of consent without valid reasons adds to misery of the other partner.

The bench concluded that unilateral withdrawal of consent by the husband, despite the fact that the wife was always willing to abide by all the terms and conditions of the settlement deed entered in the First Motion joint statement.

This adds to misery of the wife and a form of cruelty meted out to her by the Husband.

The Bench of judges gave this finding while granting divorce to a woman on grounds of mental cruelty and opined that in the circumstances insisting them to retain this matrimonial bond would rather be putting the wife under further intense mental cruelty.

>>> The Shorter Oxford Dictionary defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness'. The term "mental cruelty" has been defined in the Black's Law Dictionary [8th Edition, 2004] as under: "Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse."

The concept of cruelty has been summarized in Halsbury's Laws of England [Vol.13, 4th Edition Para 1269] as under:

"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits."

>>> “Under the circumstances court cannot agree with unilateral withdrawal by a spouse at the time of mutual divorce.”

2. This petition under Article 227 of the Constitution of India challenges the order dated 31.3.2004 passed by Additional District Judge who declined to modify and rectify the order dated 1.10.2003 and for passing decree of divorce under Section 13B(2) of the Hindu Marriage Act,1955 (hereinafter referred to as 'Act').

3.  In a troubled marriage there were pending criminal matters and divorce proceedings. Eventually divorce by mutual consent and settlement of all criminal and civil disputes was agreed to by both the spouses resulting inter alia in the wife withdrawing her criminal complaints and dropping all claims towards maintenance for herself and her daughter. The husband enjoyed all the benefits of the settlement and then remarried and has a child from the second marriage and yet withdrew his consent for divorce by mutual consent leading to the situation where by the impugned judgment the learned Additional District Judge has declined to grant divorce to the petitioner/wife by permitting the unilateral withdrawal of mutual consent by the respondent/husband leading to the present petition under Article 227 of the Constitution.

4. The facts of the case as per the unrebutted averments in the writ petition are as under:

k) On 1.10.2003 the learned Additional District Judge passed the following order;-

"From the statement of the petitioners it is also evident that the consent of the petitioners for divorce is free from force, fraud or undue influence and there is no collusion in filing this petition.

m) That on 19.1.2004 the respondent filed an application for withdrawal of his consent in a second motion and admitted in the said application that the Learned Additional District Judge was pleased to grant permission to file the second motion then by waiving the stipulated period of 6 months. The only ground mentioned for withdrawal of the consent was that the respondent after signing the second motion has realized his approach on matrimonial matter is not correct and further felt that the matrimonial relationship must continue.

7. That the respondent/husband had availed all the benefits and enjoyed the fruits of settlement and compromise between the parties in the following manner :-

(i) by not giving any stridhan and maintenance to the petitioner or to his minor child,
(ii) by handing over the custody of the child to the petitioner without taking any liability for her welfare,
(iii) by forcing the petitioner under the garb of the said compromise to withdraw the complaint under section 498 and 406 IPC filed with the Anti-Dowry Cell and the said complaint was in fact not persued by the petitioner and the same was closed on account of such compromise.
(iv) by re-marrying himself and having a child out of the said re-marriage.

17. The learned Additional District Judge allowed the respondent to withdraw his consent unilaterally because of a misreading of the position of law laid down by the Hon'ble Supreme Court in (1991) DMC 313 (SC) = AIR 1992 SC 1904 in Sureshta Devi's case but in my view the said decision is not applicable in the present facts and circumstances of the case.

22. Furthermore, this Court cannot be a helpless spectator to the chicanery and duplicity of the respondent-husband who induced the hapless wife, the petitioner, to forego the maintenance claims of not only herself and her daughter but also duped her into agreeing to the withdrawal of the criminal complaints in the hope of starting her life afresh. The husband has by this conduct put the wife in a position of a huge disadvantage. In view of the position of the law as noted above, no spouse can unilaterally withdraw its consent for divorce by mutual consent when the grounds such as fraud, undue influence, force, misrepresentation and such consent not being free not having been pleaded and proved satisfactorily. In the present case, if the withdrawal of the consent by the respondent-husband is upheld, it will lead to an anomalous situation where the petitioner-wife who is law abiding is left high and dry without recourse to any remedy and saddled with a dead marriage whereas the respondent-husband who has resorted to fraud and misrepresentation enjoys his freedom and enjoys another marriage. The respondent-husband inspite of forsaking his mutual consent for divorce by remarrying has on his own showing committed a crime of bigamy underSection 494 of Indian Penal Code and is enjoying his life afresh whereas the wife is tethered to a dead marriage. Courts of law particularly a writ court under Article 227 in its power of superintendence must reach out to correct such obvious and gross miscarriage of justice to provide succor and relief to the petitioner-wife who otherwise will be left ruing the misfortune befallen on her by the interpretation of law in the impugned judgment.

"3. As would be apparent from the above narrative, the instant case does not involve any substantial question of law of general or public importance. Although counsel for the appellants has strenuously assailed the correctness of the findings of the Revenue Tribunal and of the High Court, we are unable to accede to his contention. We have not, despite careful consideration of the judgments and objections submitted to us, been able to discern any legal infirmity or error either in the decision of the Revenue Tribunal or of the High Court. It is a well settled rule of practice of this Court not to interfere with the exercise of discretionary power under Articles 226 and 227 of the Constitution merely because two views are possible on the facts of a case. It is also well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution."

23. In this view of the matter it is evident that the withdrawal of the consent by respondent is tainted with malafide, baseless and is unjust. Thus, it is a fit case where a decree of divorce by way of mutual consent should have been granted. Accordingly, the impugned orders dated 1.10.2003 and 31.3.2004 of the Learned Additional District Judge is set aside and the present petition is allowed and the marriage solemnized between the parties Rachana Jain and Neeraj Jain on 12.3.1996 is dissolved by decree of divorce under section 13B(2) of the Act.

24. The petition stands allowed and disposed of accordingly. Office to draw up the decree accordingly.

Delhi High Court
Smt. Rachna Jain vs Shri Neeraj Jain on 25 May, 2005
Equivalent citations: 120 (2005) DLT 365, II (2006) DMC 410
Author: M Mudgal
Bench: M Mudgal
JUDGMENT Mukul Mudgal, J.
https://indiankanoon.org/doc/1308307/

>>> The Apex Court described the test of Mental Cruelty.

“If on consideration of complete matrimonial life of the parties, actual mental pain, agony and suffering as would not make possible for the parties to live with each other would come within the broad parameter of mental cruelty. 

It was further held that where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. 

The marriage rather becomes a fiction though supported by a legal tie. 

By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

In such like situations, it may lead to mental cruelty.”

In the instant case, our main endeavour would be to define broad parameters of the concept of 'mental cruelty'. Thereafter, we would strive to determine whether the instances of mental cruelty enumerated in this case by the appellant would cumulatively be adequate to grant a decree of divorce on the ground of mental cruelty according to the settled legal position as crystallized by a number of cases of this Court and other Courts.

"16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. 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, regard must also be had to the context in which they were made."

In the backdrop of the spirit of a number of decided cases, the learned Additional District Judge was fully justified in decreeing the appellant's suit for divorce. In our view, in a case of this nature, no other logical view is possible.
On proper consideration of cumulative facts and circumstances of this case, in our view, the High Court seriously erred in reversing the judgment of the learned Additional District Judge which is based on carefully watching the demeanour of the parties and their respective witnesses and the ratio and spirit of the judgments of this Court and other Courts. The High Court erred in setting aside a well-reasoned judgment of the trial court based on the correct analysis of the concept of mental cruelty. Consequently, the impugned judgment of the High Court is set aside and the judgment of the learned Additional District Judge granting the decree of divorce is restored.

Supreme Court of India
Samar Ghosh vs Jaya Ghosh on 26 March, 2007
Author: D Bhandari
Bench: B.N. Agrawal, P.P. Naolekar, Dalveer Bhandari

>>> Unilateral withdrawal of consent by a spouse at the time of mutual divorce without any grounds amounts to mental cruelty, the Delhi High Court has said. 

A bench of justices Pradeep Nandrajog and Yogesh Khanna said this while dealing with a case filed by a husband against a trial court's order by which the couple, who got married in March 2004, mutually decided to separate.
The bench noted that the respondent (woman) was always willing to abide by the terms and conditions of the settlement deed and had voluntarily given up her claim of alimony and honoured her commitment arising out of the settlement. "Thus, the unilateral withdrawal of consent by the appellant herein without any sufficient or just cause, in the circumstances, rather added to the cruelty meted to her," the court said.

1. The appellant and the respondent entered into marital bond on March 12, 2004 in accordance with Hindu rites and ceremonies in Delhi. 

2. Their relations soon became sour and the respondent herein filed a petition for divorce under Section 13(1)(ia) of HM Act alleging that:

There has always been a demand of dowry from the side of the appellant and that he took away all her money; used to lock her in the room before leaving for his job; beat her and ridicule her before his friends. 

As facts goes, immediately after their marriage, they both shifted to District Kannaur, Himachal Pradesh where the appellant was serving as an assistant teacher in Central School, at Recknong Peo, District Kinnaur, Himachal Pradesh. They lived there till May 27, 2004 when the respondent returned to Delhi to stay with her parents. 

The appellant also resigned and came to Delhi. On December 26, 2004 a male child was born to them.

2. They both got job as teachers in Delhi and went on to live in a rented house in Saad Nagar, Delhi for some time. Then they shifted to a rented house at Dwarka, Delhi. 

However, per allegations of the respondent herein there was no change in the behavior of the appellant, who allegedly used to take drinks; beat her and that on August 07, 2009 left the respondent in her matrimonial home and took away his son to stay with his parents at village Jonti, Delhi. 

He also took away all her belongings and household items. Though, he returned at night, but left the next day i.e. on August 08, 2009, never to join the company of his wife and that she lived all alone thereafter. The respondent was always apprehensive of the appellant that he may end her life.

3. The appellant in his pleadings denied allegations of cruelty and rather alleged that the issues were trivial arising out of child care, upbringing, interference of her parents, her repeated demand to live near her parents, her refusal to take care of the respondent’s elderly and ill parents etc. The appellant stated that he performed all his martial obligations whole heartedly towards his wife and in-laws and did whatever was expected of a husband and that he always took care of his wife and son and since he is a heart patient, the respondent herein was getting rid of him by filing divorce

6. The respondent also deposed that appellant used to cast aspersions on her character and used to remark that she looks like mother of two kids and definitely had physical relations with someone. He used to comment that she is worst than whore. The respondent also deposed that her father purchased her a LIG flat at Sector 2, Rohini for ₹ 6.40 Lac, which they sold and then purchased a flat at Dwarka in the joint names of the appellant and the respondent and even at that time her father contributed Rs.2.60 Lac. However, the appellant did not return the money to her father.

8. The respondent further deposed that it is no longer possible for her to live in the company of the appellant and she apprehend danger to her health and personal safety, the appellant though later gave an apology letter dated June 18, 2010, Mark A to the Assistant Commissioner of Police, CAW Cell, Dwarka, New Delhi to save his skin. 

In cross-examination she though admitted that the appellant herein would take her for outings on LTC tours but denied suggestions put to her on all crucial issues viz. of beating her, casting aspersions, not repaying money to her father, raising demand of dowry or salary etc. The respondent admitted that in the year 2011 she did attend the marriage of her devar but because of the above reasons.

16. Additionally, we also take note of the fact that the appellant had entered into a settlement with the respondent, duly recorded in their joint statement dated May 24, 2014, they made before the learned Judge, Family Court, Dwarka, Delhi in petition HMA No.337/2014 under Section 13 (B)(1) of the HM Act. The terms and conditions of such settlement, per Settlement Deed (Ex.C-4) are as under:- 

“1. It has been mutually agreed between us that petitioner no.1 shall not claim any monetary benefit from petitioner No.

2. Towards the full and final settlement amount including permanent alimony, maintenance (past, present and future) or any other amount claimed under any other head including jewellery/articles/ istridhan/ goods etc.

It has been mutually agreed between us that the custody of the child namely Kartikya shall remain with the petitioner No.2/father and petitioner No.1/mother has no visitation rights to meet the child.

3. It has been mutually agreed between us that petitioner No.1 shall withdraw her case pending under Section 13(1) (ia) bearing HMA No.463/09 and if petitioner No.2 fails in co-operating in tendering his statement during the second motion in that event the said petition will be resorted to its original stage/position.

4. It has been further mutually agreed between us that petitioner No.1 shall withdraw her case pending under Domestic Violence Act, within a week after recording of statement of second motion. 

5. It has been further mutually agreed between us that petitioner No.1 shall co-operate in quashing of FIR bearing no.195/10, PS Palam within a month after recording of statement of second motion.

6. It has been further mutually agreed between us that we shall withdraw our all respective cases filed against each other or family members, if any. 

7. That the above settlement is arrived at between the parties out of their free will and without any coercion, fraud and force from any corner. 

8. We have also agreed that we shall not file any sort of litigation in future relating to this marriage. 

9. Both the parties will be bound by the terms and conditions of the mutual consent petition and settlement deed Ex.C-4.” 17. 

On the basis of the settlement incorporated in the joint statement, their petition under Section 13 (B-1) of the HM Act was allowed by the learned Family Judge, Dwarka Court, New Delhi on May 24, 2014 and they both were advised to make efforts for reconciliation or revival of their matrimonial home and in case they fail or wish to part ways permanently, they may approach for dissolution of their marriage, per Section 13 (B-2) of the HM Act on the basis of mutual consent.

18. Admittedly, the petition under Section 13 (B-2) of the HM Act was also filed before the learned Judge, Family Court, Dwarka, Delhi, but when it came up for hearing on October 29, 2015, the appellant herein rather made a statement that he does not intend to proceed further in the petition and hence withdrew his consent for divorce by mutual consent. 

The said petition, thus, was held to be nonmaintainable and was dismissed as withdrawn. 

19. It was a unilateral withdrawal of the consent by the appellant, despite the fact that the respondent was always willing to abide by the terms and conditions of the Settlement Deed dated May 24, 2014 Ex.C-4, entered in the joint statement recorded on the same day and the respondent herein did not claim permanent alimony/maintenance or the custody of her son. The second motion, though was filed just before the expiry of 18 months statutory period, but the appellant despite enjoying the benefits of settlement, put the respondent in a disadvantageous position and caused her mental cruelty and financial losses. An order dated January 23, 2016, of the learned Family Court proves the respondents’ voluntarily giving up of her claim of alimony and that she honoured her commitment arising out of the settlement dated May 24, 2014. 

Thus, the withdrawal of consent by the appellant herein without any sufficient or just cause, in the circumstances explained above, rather added to the cruelty meted to her.

20. Though the appellant asserted his right to withdraw his consent at any time prior to the divorce being granted by mutual consent, but the fact is where he has entered into a settlement with his wife and there being no allegation that he ever signed such settlement due to force, fraud or under influence and also when the respondent had acted upon such settlement by withdrawing her divorce petition; forsaking her claim to custody of their son and of her permanent alimony then the withdrawal of consent would have a different connotation as it adds to the misery of the respondent. 

21. We also note that a Complaint case viz. No.1007/1/2015 under Section 12 of the Domestic Violence Act, filed by the respondent against the appellant herein also was allowed vide order dated May 31, 2016 of the Court of learned MM, Delhi wherein the appellant was directed not to commit any acts of domestic violence; not to contact the respondent directly and also to pay her the compensation of ₹ 10,000/- which he had not paid till date. Admittedly, this order dated May 31, 2016 is not challenged uptill now and had attained the finality. 

22. Thus, we are of the considered opinion that there is no merit in this appeal, primarily, on two counts viz firstly, the unilateral withdrawal of consent by the appellant which rather lead to an anomalous situation where the respondent wife, a law-abiding lady, adhering to the terms and conditions of settlement, dated May 24, 2014 was left high and dry with a dead marriage and whereas the appellant husband kept on enjoying his freedom without paying any maintenance, alimony etc. and; secondly, the apology letter Mark A which rather proves the contentions of the respondent that the appellant used to beat her; did not allow her to visit her home; cast aspersions upon her character; snatched her salary; took money from her father, which he did not return and rather asked for dowry, thus committed cruelty upon her. We agree with the learned Judge, Family court, Dwarka, on both these counts. The allowing of complaint case No.1007/1/2015 further confirms the case of the respondent.

26. Similar is the situation in the present case, the parties are living separately since the year 2009 and considering the conduct of the parties, there seems to be no possibility of their joining together so to insist to retain this matrimonial bond in the circumstances stated above would rather be putting the respondent under intense mental cruelty.

27. Thus, the totality of the evidence, establishes the mental cruelty upon the respondent by the appellant herein and as such, there is no infirmity in the impugned judgment passed by learned Judge, Family Court, Dwarka, Delhi. The appeal is thus dismissed. 

28. No costs.

RAJIV CHHIKARA
versus 
SANDHYA MATHUR

MAT.APP.(F.C.) No.163/2016 

IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On : December 05, 2016 
Judgment Delivered On : December 08, 2016

(YOGESH KHANNA) JUDGE 
(PRADEEP NANDRAJOG) JUDGE   

http://lobis.nic.in/ddir/dhc/YKH/judgement/08-12-2016/YKH08122016MATFC1632016.pdf