On a careful reading of Clause (c)
of Section 12(1) of the Hindu Marriage Act, 1955, it will appear that both the parties,
in case of adult, are obliged to divulge mutually and unequivocally the
material fact or circumstances to each other before or at least at the time of
marriage so much so that element of deception is ruled out. The words material
facts or circumstances have not been defined or specified. It varies from one
family to another, according to culture, ethos and social system in ages and
situation. For example in a conservative family having attachment with puritan
society in a marriage inevitable and unerring expectation is that both the bride
and the groom must not have any record of prior marriage in any sense nor will
have any marriage in any sense, not even any premarital affairs with other boy
or girl (as the case may be). They cannot think of even marrying outside their
caste and community, conversely , a family with liberal and cosmopolitan approach,
thought, particularly in urban area will not mind in case of marriage even
having knowledge of background of prior marriage or premarital affair with
other counter sex outside their caste and community. In case of former,
concealment of caste, community or background of prior marriage or premarital
affairs before or at the time of marriage is obviously extremely material and
it amounts to fraud in obtaining consent.
the case of Saswati Chattopadhyay v. Avik Chattopadhyay, (2011) 3 ICC 51, the
husband was not informed about the earlier marriage at the time of negotiation or
at the time of solemnization of the marriage. On inquiry, the husband came to
know that there had been previous marriage of the appellant with one Sudip and
it was also discovered that the earlier marriage was dissolved by consent. When
the matter reached to the Family Court, it came to the conclusion that there
has been suppression of the relevant fact with regard to the premarital status
of the appellant and such relevant fact goes to the root of the matrimonial
relationship. On an appeal, the Calcutta High court endorsed the view taken by the
trial court and observed that premarital status of a party is a material fact
which the other party must know before imparting consent for marriage. Pradeep Kumar Maheshwari v. Smt. Anita Agarwal, 2019 (2) AWC 1369.
The intention of the legislation is at least
to consider the rival contentions of the parties to matrimony and when there is
sufficient material on record to show that the ingredients under Section 13 of the
Hindu Marriage Act are made out, and under the given circumstances there is
cruelty, the Court should either make effort to settle the dispute or
relationship has to be brought to a complete end. One party to the proceeding
cannot be permitted to take advantage and cannot be permitted to abuse the
process of law court and on the other hand simultaneously resorting to all the
process of misbehaving with the husband and harassing him. Such type of
attitude by the respondent (wife) cannot be permitted coupled with the fact
that the order happens to be an ex parte order because the wife has
deliberately avoided participating in the proceedings, despite the notice being
served by the publication which would deemed to be served under law. Anirudh Guru Pratap Singh v. Harmit Kaur, 2017 (125) ALR 358.
can never be defined with exactitude. What is cruelty will depend upon the facts
and circumstances of each case. In case the wife makes 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 ground to treat such
accusations of the wife as cruelty within the meaning of the Hindu Marriage Act,1955.
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. Raj Talreja v. Kavita Talreja, 2017 (123) ALR 835.
case of Saranan Banerjee v. State of Jharkhand, 2007 (2) AIR 82
(Jhar), it was held that an order of maintenance would not be set aside merely
on the ground that wife refused to live with the husband despite decree for
conjugal rights where she alleges torture and ill-treatment. It was further
held as under:
“Finally it has been submitted that since
the wife is not ready to live with her husband in spite of conciliation and
efforts taken by the court and also in view of the decree of restitution of
conjugal rights as claimed by the husband, the wife is not entitled to
maintenance at all.
The husband had obtained a decree under
section 9 of the Hindu Marriage Act for restitution of conjugal rights as
against the wife and in spite of conciliation and efforts she was not inclined
to live with her husband on the plea that a case for the offence under Section
498-A, IPC was pending against the husband on the allegation of torture, misbehavior,
demand of dowry and many other allegations and for such reason she was
apprehensive at the hands of her husband. The judgment and decree under Section
9 of the Hindu Marriage Act for restitution of conjugal rights is a decree,
which cannot be executed by force. Therefore the maintenance amount awarded to
the wife and her daughter cannot be sweeped and set aside only on the ground
that she was not inclined to abide by the decree of the restitution of conjugal
rights passed against her. Vimal Kumar
Verma v. Kavita Verma, 2018 (105)
Hindu Marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is a combination of bone to bone and flesh to flesh. To a Hindu wife her husband is God and her life becomes one of the selfless service and profound dedication to her husband. She not only shares the life and love, but the joys and sorrows, the troubles and tribulation of her husband and becomes an integral part of her husband’s life and activities. Colebrooke in his book Digest of Hindu Law, Vol.II, described the status of wife thus:
“A wife is considered as half the body of her husband, equally sharing the fruit of pure and impure acts: whether she ascends the pile after him or survives for the benefit of her husband, she is a faithful wife.”
Further Colebrooke in his book Digest of Hindu Law, Vol. II quoted the Mahabharata at page 121 thus:
“Where females are honoured, there the deities are pleased; but where they are unhonoured there all religious acts become fruitless.” Anuradha Samir Vennangot v. Mohandas Samir Vennangot, (2015) 16 SCC 596.
Rayden on Divorce has summarized thus:
“Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party.”
In Halsbury’s Laws of England (3rd Edition), Vol. 12, it has been held as under:
“In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, ‘the home’. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition where the offence appears as a cross charge, of the answer . Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.”
Thus the quality of permanence is one of the essential elements which differentiates desertion from willful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Anand Singh v. Smt. Kunti, 2017 (121) ALR 146.
The word “cruelty” has not been defined in the Hindu Marriage Act. The word appears to have been used in the section in context of human behavior in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behavior or conduct of one spouse which adversely affects the other. Thus broadly speaking “cruelty” as a ground for the purpose of divorce under Section 13(1)(i-a) of the Hindu Marriage Act can be taken as a behavior of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively.
Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular stratum of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances. Puja Suri v. Bijoy Suri, 2016 (119) ALR 140.