The Procedure for Divorce to husband when wife makes allegations against the husband who was living with another women

When the husband is living extra- martial affair with the staff, for adultery the wife have to prove the adulteress relationship with another women. But for cruelty the strained relationship caused by the husband in leading a affair with the staff is enough.

In extra – ordinary cases the wives suspect the husband having relationship with their own sister or mother or with the relative of the husband are covered under cruelty done by the wife. These are the psychic attitude  of the wives. If a wife file divorce on this grounds it some times put a U-turn and may help husband to get divorce on cruelty grounds or for the dismissal of the divorce petition, when the wife fails to prove with strong evidence before the court.

When the wife engaged detective agents to spy and monitor the husband day-to-day activities, which caused mental agony and distress to the husband and the husband privacy was unnecessarily disturbed due to the wife cheap attitude. The court consider this as the mental cruelty caused by the wife.

The wife allegations of husbands adulterous or affair life will fall under Adultery coupled with Mental cruelty. Cruelty is not defined under the marriage laws in India. But the Court has certain guidelines to determine the mental cruelty for the suspicious life of the husband character by the wife.

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 exists.

The concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the wife that the husband is unchaste are all factors which lead to mental or legal cruelty.

The husband can file his case for divorce when the wife alleges that husband is leading a immoral life or having affair or suspecting the character of the husband or alleging illicit contacts with the staff’s in the working place or spreading news that among friends and neighbours that the husband have illicit relationships. The divorce petition can be filed at the place where marriage took place or where the husband and wife lastly resided together or at the place of wife.

Author K.P.Satish Kumar., Advocate Madras High Court

Top divorce Lawyer in Chennai.

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Mental cruelty for Divorce : Golden Rules framed by the Supreme Court of India.

Authour : K.P.Satish Kumar M.L. Advocate, Madras High Court

Leading Divorce Advocate

Mental Cruelty is not defined in the Hindu Marriage Act. The supreme Court of India Held :-

(1) There cannot be any comprehensive definition of the concept of 'mental Cruelty  ' within which all kinds of cases of mental Cruelty  can be covered. No Court should even attempt to give a comprehensive definition of mental Cruelty .

(2) What is Cruelty  in one case may not amount to Cruelty  in other case. The concept of Cruelty  differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

(3) Concept of mental Cruelty  cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. What may be mental Cruelty  now may not remain a mental Cruelty  after a passage of time or vice versa.

What is mental Cruelty  and what is not.

 Illustrations summed up by Supreme Court :-

WHAT IS Cruelty 

(1) Undergoing sterillisation without knowledge or consent of spouse.

(2) Wife having abortion without medical reason or without consent of spouse.

(3) Not having intercourse without physical incapacity or valid reason.

(4) Unilateral decision not to have child.

(5) Sustained reprehensive conduct, studied neglect.

(6) Actions aimed to derive sadistic pleasure.

(7) Abuse and humiliation.

(8) Sustained unjustified conduct affecting physical and mental health of spouse.

(9) Frequent rudeness, indifference and neglect.

What is not a Mental cruelty :

 (1) Wear and tear of marriage.

(2) Jealousy, selfishness and possessiveness causing unhappiness or stress.

(3) Mere coldness or lack of affection.

(4) View married life as a whole; isolated instances not Cruelty .

CONCLUSION: There cannot be any comprehensive definition of the concept of 'mental Cruelty  ' within which all kinds of case of mental Cruelty  can be covered. Supreme Court of India has asked the Indian courts to  considered to view framed by the Apex court and it  has not  even attempt to give a comprehensive definition of mental cruelty.

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What are the factors for Mental cruelty which is a immediate cause for Divorce.

Authour : Advocate K.P.Satish Kumar M.L. Madras High Court.

Leading Divorce Lawyer in Chennai.

After the solemnization of the marriage when any of the spouse either the husband or the wife is treated with cruelty, they are eligible for divorce. Section 13 (i) (a) of the Hindu marriage has not defined the term cruelty. But the courts has interpreted that cruelty falls under Physical and mental cruelty. And the cruelty may be intentional or unintentional.   

If it is physical, the court will have no problem to determine it . It is a question of fact and degree . If it is mental, the problem presents difficulty.

The Supreme court at various circumstances has summed up the situations which are fall under mental cruelty.

The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour . It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.

The conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living. To establish legal cruelty, it is not necessary that physical violence should be used.

A set of facts stigmatized as cruelty in one case may not be so in another case.  The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions.

Each case may be different. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of.

Mental Cruelty in Section 13(1)(ia) of Hindu Marriage Act 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.

What is cruelty in one case may not amount to cruelty in the other case :- How to fix Mental cruelty.

1.The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious belief, human values and their value system.

2.Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case.

3.Question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live.

Guidelines for Mental cruelty :

1.Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.  It may be words, gestures or by mere silence, violent or non-violent

2. Cruelty should be wilful unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such  danger.

3. Proof beyond doubt, as in criminal trials is not required to prove cruelty.

4.In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence - For proof of mental cruelty Court has to find out nature of cruel treatment, impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.

5.There may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal - Then the impact or injurious effect on the other spouse need not be enquired into or considered.

6.Whether the conduct of a spouse amounted to cruelty has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions.

7.Mere trivial irritations, quarrels between spouses, which happen in day- to-day married life, may also not amount to cruelty.
8.The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.

Circumstances to Mental cruelty :-

1.   Wife publishing a notice in newspaper that her husband was womaniser, drunkard and a man of bad habits.  It was mala fide and the motive was to demolish the reputation of the husband in the society. It created a dent in his reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life.

2.   Husband getting ready to go to factory, the wife sometimes used to crumple the ironed clothes.

3.   The wife who hides the keys of the motorcycle when the husband goes to job.  

4.   The wife closes  the main gate when the husband goes to job.

5.    Wife launched prosecution under Section 498-A against husband and other relatives while ended in acquittal.

6.   Wife made baseless allegation in written statement that her husband had extra marital relations with another woman.

7.   Husband and wife both professional doctors. Wife advised her husband not to ask certain female staff members to come and work on off-duty hours when nobody else was available in the hospital. Not to work behind the closed doors with certain members of the staff. There were clear manifestations of her suspecting the husband's fidelity, character and reputation. Constant nagging on those aspects, certainly amounted to causing indelible mental agony and amounts to cruelty.

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If a Hindu married couple is separating by mutual consent then they no longer need to wait for six months for getting a separating order from the court.

Supreme Court held that marriage between two Hindus can be legally terminated in just a week as the “cooling off” period can be waived off as it is not mandatory.

The Apex court clarified that if all the efforts to reunite parties and mediation and conciliation also fails between them then the wait for a six-month period can be done away with.

This ruling was passed by the court after a petition was filed by a couple seeking direction to waive off the cooling off period as they have been living separately for 8 years and they had already settled all issues pertaining to child custody and alimony.The couple made a plea before the Supreme Court that delay in divorce would affect their chances to resettle in life.

In the present matter, the court took a stand that delay in proceedings only prolongs subsequent resettlement. Waiving off period can be considered if the parties have been living separately already for a year.

The court said, “The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of the status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period was to safeguard against a hurried decision if there was otherwise the possibility of differences being reconciled.”

The bench comprising of Justice AK Goel and UU Lalit said that the object of the cooling off period is to safeguard against a hurried decision taken by a couple to get separated and to allow them to explore ways to settle their disputes however this could not be made mandatory.

As per Section 13B(2) of the Hindu Marriage if both the parties do not change their pleas for divorce in a time period not less than six months and not later than 18 months, then the court pass the decree to declaring the marriage to be dissolved.

The court observed that the period of six months to 18 months provided in section 13B is an interregnum to give time and opportunity for the couple to reflect on their move. This period can be waived off if conciliation fails and parties have genuinely settled their differences pertaining to alimony, custody of the child or any other issues pending between them.

The bench observed, “The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option.”

The Supreme Court bench after examining all the issues came to the conclusion that Section 13B(2) is mandatory and not a directory. The court held that the cooling off period could be waived off if the court is satisfied that the parties are living separately for more than a year with no chance of reconciliation and a further waiting period would only prolong their agony. The bench held that the parties can file a waiver application just one week after the divorce petition is filed and the court will take a call on the waiving off period. 

The Author K.P.Satish Kumar M.L. is the top Divorce lawyer in Chennai

For Free Legal queries call Daniel & Daniel At 9884883318

Welfare of the Minor is the paramount consideration of Child Custody

The minors should not be treated as “Chattel” for claiming custody.

In the present matter, the six-year Jhanvi was staying with her father. Jhanvi’s mother deserted her husband and her young daughter on 23rd March 2012. At that time, Jhanvi was only 2- year old. Subsequently, Jhanvi’s father filed for a divorce and sought permanent custody of their daughter.

During the pendency of this above petition, Jhanvi was allowed to meet her mother twice a week and during summer and winter vacations.

Petitioner claims that her daughter was physically abused by her mother on multiple occasions. Also, her medical reports confirm that she suffered “multiple bruises, apart from tenderness over her arms, roots of nose and back” after meeting her mother on January, 28.

Again, she suffered similar injuries on February 18. Later she informed her father that she does not intend to meet her mother as she use to hit and pinch her.

The petitioner pleads that since his daughter has been physically tortured and traumatized by her mother, she should not be allowed to meet her mother. At the same time, he also requested the court to get his daughter evaluated by a child psychologist.  

Subsequent to the request of the petitioner, the family court appointed Dr. Harish Shetty who is a  psychiatrist as Jhanvi’s psychologist. However, the petitioner vehemently objected to this as Dr. Harish was a psychiatrist and not psychologist.

Jhanvi's mother blatantly denied all the allegations and stated that Jhanvi was not with her when such incidents are claimed to have occurred.

The Bombay High Court observed that this was a clear case of child abuse and “It is well settled that welfare of minor is paramount consideration for deciding even a temporary custody of a minor. Minors cannot be treated as chattel for claiming custody.”

Considering Jhanvi’s apprehension and looking into her safety and well-being, the court has stayed the order passed by Family Court which permitted her mother to meet her.
Article by Advocate K.P.Satish Kumar M.L. leading child custody advocate in Chennai
for legal queries contact Daniel & Daniel @ 9884883318

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One Night Stand cannot be considered as Marriage under Hindu Law

The physical relationship between a man and woman by choice or by chance or by accident cannot be termed as “marriage” under Hindu Laws.

It was also held by this Court that a baby born out of this relationship will have no rights over the father’s property if no marriage can be proved in the court.

Justice Mridula Bhatkar said that “Broadly either customary solemnisation of marriage is required or performance of legal formality is a condition precedent to label that matter relationship as a marriage. Any sexual intercourse that took place by choice or chance or by accident is not considered as marriage.”

The court does take a note of that our society is going through a sea change as to how marriage is seen in today’s scenario and as defined under Section 16 of the Hindu Marriage Act. It held that “In some countries, homosexual unions are  accepted as marriages, so also live-in relationships and children born within such relationships have posed as complicated issues and a challenge to legal thinkers to define the term of marriage, whether in wider or narrow meaning.”

The rights of a child are determined only on the basis of the institution of marriage even though it has been subsequently held void. In a leading case, the man had married twice. As per Hindu Laws, his second marriage was void as he has not divorced the first one. Though in the instant case the second marriage was considered void but the daughter from his second wife had legitimate rights in the share of his property. 

Article by Advocate K.P.Satish Kumar M.L. leading divorce lawyer in Chennai

for free legal queries call Daniel & Daniel @ 9884883318.

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Biological father taking away of child does not amount to Kidnapping

The biological father cannot be charged for kidnapping his own child.

In the instant matter, the court was hearing a petition filed by Mumbai’s businessman, Sajid Shah for challenging his extradition request from the Netherlands to India. His estranged wife Nazneen has filed a complaint against him for abducting their 2-year-old daughter from Amsterdam. After kidnapping the daughter he brought her back to India in September 2016. She has accused Sajid Shah of “violently kidnapping their daughter” from her house and also launched an online campaign for the child’s return. Subsequently,  an Interpol notice was issued for Sajid’s arrest. Following the Interpol notice, the Netherlands government approached the Indian authorities.

Nazneen and Sajid married in 2011 and got separated in 2016.  After the couple separated, a Dutch court awarded Nazneen their daughter’s custody in 2016. Meanwhile, Sajid filed a divorce and custody petition before Bandra family court. Sajid claimed he was trying to protect his daughter from his “abusive wife”.

The MEA, in it’s May 5, 2017, letter, rejected the extradition request. The center in its affidavit submitted “Since the taking away of a child by her biological father does not amount to kidnapping, it is not an extraditable offence.”  MEA has rejected the extradition request while stating that Sajid shall not be arrested and no corrective steps will be taken against him and his daughter.

Article by Advocate K.P.Satish Kumar M.L. leading Child Custody Advocate

for free legal queries call Daniel & Daniel @ 9884883318.

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