Cruelty against Husband – A brief analysis

The marital relationship between a husband and wife and is a mutual bond of trust and understanding. Though marriage isn’t gleeful and jubilant in all the cases, in some cases marriage becomes a stumbling block to happiness and peace of mind. Matrimonial matters demand trust, regard, respect, love, affection and belief.  Cruelty is one of the aspects that becomes a hamper against a happy marital relationship.

“Cruelty” is a word with much depth, and its definition may change according to different circumstances and situations. Cruelty, in general, is an inhuman treatment against any person. It may also include physical and mental sufferings. It cannot be assumed that cruelty can only be caused by violence or by giving mental trouble. Cruelty may differ from person to person and individual to individual, as observed in the case Sheldon vs. Sheldon, (1966 (2) All. ER 257). For each human cruelty is different. Someone may feel like a victim of cruelty when forced to do a work which they never wanted to do whereas in the same condition some other person may not feel the same.

Cruelty is not only against wife or women: it may be against male or husband, female, child, old-aged person, living animal etc. It is just that what kind of cruelty is recognized by the law. Cruelty in any marital relation may be of countless variety, it may be brutal or subtle. It may be done by the way of signs, gestures, words, unspoken signals or merely be silence. It may be caused by violence or non-violence. The character of parties, level of tolerance, and adjustment limit must also be taken into consideration. Cruelty will be established when the conduct itself is proved of admitted as held in the case Sobha Rani vs. Madhukar Reddi, (1988 (1) SCC 105).

Now the question arises that, what may amount to cruelty against husband? It is the duty of the court to take into consideration all the facts and circumstances of a case and also look at the physical and mental condition of the applicant as well as the victim to decide that the victim has been subject to cruelty or not. For a thing to fall under the category of cruelty under section 13 (1) (ia) of Hindu Marriage Act, it should create an apprehension in the mind of the other person that living with the other spouse may cause him/her mental or physical injury. Any willful unjustifiable conduct can be called cruelty which causes a problem for the other spouse. Cruelty also includes physical injuries and physical injuries can direct evidence whereas mental injury requires expert advice for corroboration. Mental cruelty is to be assessed bearing in mind the social status of the parties, their customs, traditions, their educational level, and the environment in which they live as stated in G.V.N. Kaneswara Rao vs. G. Jabilli (2002 (2) SCC 296).

In any state law is the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. It is sad to see when there is a law made for any particular section of the society for their protection and later that law is used unreasonably. The laws which were made for the protection of women against the crimes committed against them is now used as a tool by the women to intensify and satisfy their personal hatred against men and his family members. Women are not only given protection under the law but also given a priority by presuming their statement to be bona fide and genuine. There are few grounds which may be taken up and it may be presumed that the husband and his innocent family members were subject to cruelty by the women, by using the laws which are meant for her protection to satisfy her personal enmity against them.

  • Misuse of the laws provided against the demand of dowry, under section 498-A of IPC.
  • Desertion by wife and to bring cohabitation to a complete end. Desertion means withdrawing from all matrimonial obligations as in case Savitri Pandey vs. Prem Chandra Pandey (AIR 2002 SC 591).
  • Wife, choosing second marriage, even though the first one exists.
  • Wife threatening to commit suicide.
  • Abusing, insulting the husband and disrespecting on false grounds.
  • Adultery by the wife.
  • Lodging false FIRs and reports against husband and his family members.
  • Having extramarital affairs by the wife.
  • Accusing the husband to have extramarital affairs as observed in the case. Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16).

Giving justification on the aforementioned grounds and making it obvious for the court to believe that the husband has been subjected to cruelty by wife, the husband can get the decree of divorce.


ABOUT THE AUTHOR

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YOGRICHA VERMA

Yogricha Verma, a fourth-year law student at Amity Law School, Amity University Madhya Pradesh, is also a student of Company Secretary under ICSI. She is a student member of Indian National Bar Association (INBA) and Chartered Institute of Arbitrators (CIArb). Her native is Bhopal, India. She is also a freelancer and an artist and loves to do social works.

Delhi High Court playing with “Irretrievable Breakdown of Marriage”

Is “irretrievable breakdown” of marriage is ground for dissolution of marriage by divorce, under Hindu Marriage Act, 1955? The answer to this question clearly is that no such express provision has been incorporated by the Parliament in Hindu Marriage Act, 1955 (HMA). Then why did the Delhi High Court by its Judgement dated 21st October 2016, in the case of Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)], agree to grant divorce on the ground of “irretrievable breakdown” of marriage?

Precisely a month before the above-mentioned judgement, the Delhi High Court in the judgment dated 21st September 2016, in case of Mini Appa Kanda Swami v. M. Indra [(2016) 234 DLT 243 (DB)], came up with decision that the High Court lacks the jurisdiction to grant divorce on the doctrine of “irretrievable breakdown”.

Why did the Delhi High Court reverse its stance on granting divorce on the basis of the “Doctrine of Irretrievable Breakdown”? Is it following the principles of stare decisis? Many more question arises after the Sandhya Kumari v. Manish Kumar case.

The rationale given by Delhi High Court, in the said judgment[1], was that, by virtue of Madhvi RameshDudani v. Ramesh K. Dudani [2006 (2) Mh.L.J. 307], Shrikumar V. Unnithan v. Manju K. Nair, [2007 (4) KHC 807],  V. Bhagat v. D. Bhagat [(1994) 1 SCC 337], andNavinKohli v. NeeluKohli [(2006) 4 SCC 558], “the concept of cruelty has been blended by the courts with irretrievable breakdown of marriage.”Hence, directly or indirectly, Delhi High court has read doctrine of irretrievable breakdown under ‘cruelty’, which is a ground for granting divorce.

Now coming to Madhvi RameshDudanicase, divorce was granted on the ground of cruelty, and it was only an observation of the Bombay High Court that marriage has been irretrievably broken. There was no observation regarding the blending of the same.

Moving on to another case of  V. Bhagat v. D. Bhagat, theApex Court has said that, HMA does not permit dissolution of marriage on doctrine of “irretrievable breakdown”, and cautioned to keep that in mind while ascertaining the type of cruelty contemplated by Section 13(1)(i-a).

The Apex court gave a clarification that “Irretrievable breakdown of the marriage is not a ground by itself … The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties.”Therefore, this case did not suggest any blending of cruelty with irretrievable breakdown of marriage.On the other hand, it granted divorce on that ground of mental cruelty.

Now here the word”court” can be widely interpreted to include “HighCourt” or any other court, but moving along the line with Anil Kumar Jain v. Maya Jain [(2009) 10 SCC 415], where the Apex court has held that only the Supreme Court can invoke“its extraordinary powers under Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage ties had completely broken and there was no possibility whatsoever of the spouses coming together again.”

It further indicated that, the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution cannot grant divorce despite the fact that the marriage has irretrievably broken down.

Another decision which was mentioned in Sandhya Kumari case, was NavinKohli v. NeeluKohli case. In which the Apex Court discussed major cases where, either the divorce was granted under Section 13B of HMA, stating “irretrievable breakdown” of marriage; or, under Article 142, when divorce was prayed under Section 13.  Mostly, the alleged grounds for divorcee were adultery, desertion, or cruelty. Navin Kohli casewas alsosolved by granting divorce on ground of cruelty and not by invoking the doctrine of “irretrievable breakdown”.

Coming back to the Sandhya Kumaricase, in which the breakdown theory (Doctrine of “irretrievable breakdown”) and fault theory (mental cruelty) regarding divorce has been blended by the Delhi High Court, while foundation of thetwo, lies on two different kinds of bed rocks.

This judgement[2] has violated the precedent laid down by Apex Court in the case of Vishnu Dutt Sharma v. Manju Sharma [(2009) 6 SCC 379], by indirectly reading “irretrievable breakdown” of marriage as ground for divorce. In Vishnu Dutt Sharma Case it washeld that Supreme Court cannot add “irretrievable breakdown” of marriage as ground for divorce under section 13, as that would amount to amending the act, which is thefunction of legislature.

Delhi High Court in Sandhya Kumari Casehas either, acted arbitrarily or, opened a new road  of hope for people who would like to seek divorce easily, by reading “irretrievable breakdown” in cruelty. This decision can be appraised for judicial activism, as much as, it can becriticized, for not following the principle of Stare Decisis.

[1] Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)]

[2] Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)]\



ABOUT THE AUTHOR

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DHRUV CHANDORA

Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.

“Talaq, talaq, talaq”- the concept of Triple Talaq

Talaq is the repudiation or rejection of marriage under Muslim law. Talaq is a unilateral right given to man to divorce his wife.  Husband can give talaq to wife at any point of time, without stating any cause, after attaining the age of puberty. It has been mentioned that a Muslim husband cannot give divorce during the iddat period (4month, 10days).

Under Islamic law, there are different ways of giving divorce. Dissolution of Muslim marriage can be done by either four of them or way.

  1. by husband
  2. by wife
  3. by mutual consent
  4. by judicial separation under dissolution of Muslim Marriage Act, 1939

Triple talaq

“Talaq, talaq, talaq”, when pronounced by the husband, the marriage automatically ends at that particular moment. Triple talaq is practised by Muslims under their personal laws. When a husband pronounced “I divorce you” thrice to his wife, both of them are free from each other. It is the process where husband grants divorce to his wife. Talaq-e-biddat means sinful divorce where husband pronounces talaq thrice for the completion of the divorce process. The pronouncement of talaq thrice is known as Triple Talaq.

 Being a sinful kind of a talaq, Hanafis (Sunnis) allow triple talaq system and makes it a valid one. Once talaq is pronounced thrice, divorce will take place and wife will become totally separated from husband in terms of responsibilities and relationship. Once talaq is done, the husband cannot marry her once again. She becomes prohibited (haram) for him. The provision of remarriage is also given in Muslim law. Husband can remarry her once if she marries another man and that person gives her divorce. Then only, the husband will be allowed to remarry her once again. Triple Talaq is a mental cruelty against the Muslim women as husband can give talaq at any point of time except the iddat period and also without stating any further reasons behind it.

Recent controversies

Considering all these facts, a Muslim lady, Shayara Bano in May, 2016 approached to the Hon’ble Supreme Court to abolish triple talaq[1]. It directly amounts to mental cruelty. Two-judge Bench of the Supreme Court held that there is a gender discrimination against Muslim women by practicing arbitrary divorce and triple talaq.  Shayara Bano said that she only wished to secure a life with dignity, unmarred by discrimination on the basis of gender or religion as when she challenged her Muslim personal laws.

In August, 2016 the hon’ble Supreme Court held that the practices of triple talaq under Muslim personal laws illegal and unconstitutional.

A West Bengal based Muslim woman, Ishrat Jahan with other Muslim women and women’s rights organization filed a petition challenging the constitutionality of triple talaq and polygamy under the Muslim personal law. Supreme Court in its Suo moto action, considered the PIL to consider whether certain practices of marriage and divorce under Islamic personal laws amounts to gender discrimination. Ishrat Jahan filed the petition against her husband Murtaza Ansari challenging the validity of triple talaq. The court issued a notice to the husband. It contended that triple talaq is void and also violative of fundamental rights.

The case was further taken and the respondent contended from their side that personal can’t be amended as it is governed by Article 25 and 26 of the Constitution of India. If personal laws will not prevail, then there will a uniform civil code which is again violative of personal and customary laws.  All India Muslim Personal Law Board (AIMPLB) told to the Supreme Court that personal laws of a community cannot be re-written. Triple talaq reduces those chances of killing wives[2].  It was also contended that triple talaq is a legislative matter and cannot be interfered with.  The practice of triple talaq and polygamy were based on Holy Scripture Al-Quran and courts cannot supplant its own interpretations over the text of scriptures.[3]

On 5th September 2016, Supreme court granted centre four weeks to respond on triple talaq issue as the court feels that it is violative of Article 14(equality), Article 15( non-discrimination) , Article 21(life) and Article 25(religion) of the constitution of India.

Conclusion

Talaq means the dissolution of marriage under Muslim law. But every divorce should be the consensus of mind of the both the parties. Husband and wife should agree and then the divorce process should be initiated. Triple talaq is a concept in Muslim personal law which is followed by Sunnis. Under this, the husband has the power to give divorce to his wife irrespective of any reason. Cases are running in the hon’ble Supreme Court of quashing the validity of triple talaq as it violates fundamental rights f a woman. Women are not a piece of a toy that can be thrown away directly for the course of marriage. Hence, triple talaq should be held unconstitutional and void.

[1] http://www.hindustantimes.com/india/muslim-women-rise-against-triple-talaq/story-Es5CckBWJfsTDLF6MLb3bK.html

[2] http://indianexpress.com/article/india/india-news-india/triple-talaq-islam-muslim-law-board-supreme-court-prevents-killing-wife-divorce-3010683/

[3] http://www.thehindu.com/news/national/sc-gives-centre-four-weeks-to-respond-on-triple-talaq-issue/article9074875.ece



ABOUT THE AUTHOR

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SAKSHI JAIN

Sakshi Jain is currently pursuing her BLS LLB from Government Law College, Mumbai. Although she’s keen to gain knowledge and explore things going around her, her priority always stays focused on law only. Although she yearns for a career in the corporate sector, she’s quite confident regarding her capability to endure in other fields also. A passionate law student and a natural reader, she wants to complete her master degree from Harvard, Oxford, or London University.

Exploring the term ‘Benefit of estate’ as basis of alienation of property

Discerning the meaning of the term benefit of the estate as grounds for alienation of the property by Karta while looking at a myriad of cases stretching over a century and half. With the attempt being to assess whether a cogent, all-encompassing definition concerning for benefit of the estate can be achieved or not.

 

Introduction

The evolution of Hindu law concerning the Hindu family institution is an ardently unique position, to understand and appreciate which, its  pivotal to understand the functioning of the Hindu joint family system. To begin with, one must first explore the gamut of coparcenary relationships and the manner in which the devolution of property takes place ( Thus focusing on the previously established position of law under Mitakshara School).

A standard Hindu Joint family comprises of one common ancestor and all his lineal male descendants up to any generation along with the wives/widows and any unmarried daughters of the common ancestor. However the conception of rights of individuals finds its basis in the concept of coparcenary. A much a narrower concept, it  provides for rights in ancestral property o both male and female[1] members of the family, subsequent to them fulfilling certain conditions.

While the presence of the aspect of individual right is rife, in matters of legal and religious importance the cohesive structure of the family comes to the fore to take decisions on such aspects. Chief amongst them is the position holder of the Karta. The de facto head[2] of the family, the Karta holds myriad of portfolio’s in regard to his responsibilities and powers pertaining to the responsibility of managing the family and their property.

The standard conception entails the senior most member of the family being anointed with the position of the Karta, provided he doesn’t suffer from any mental physical ailments[3]. Additionally, while the senior most member is on principle deemed as the Karta, there can be multiple scenarios where other family members[4] can act in the position of the Karta, provided the requisite provisos are completed.

However it is nigh impossible to juxtapose or categorize the position of the Karta with that of a manager[5] of property or to establish a mere principal-agent relationship between the Karta and the family members. In addition to these, neither can the position of the Karta be understood as one of the trustees of the family property, thus by extension the Karta does not have an inherent responsibility of  having accountability to the rest of the family members. That responsibility emerging only upon being questioned so or when there is an element of fraud in regard to the family’s holdings.

The Karta thus posits oneself as the supreme head of the family while simultaneously serving as the custodian of family property, to be utilized in the interests of the family members[6]. The attempt in discerning the position of the Karta was to have  brief idea about the almost omnipotent/ autocratic position that the Karta occupies. Furthermore contending with the subject matter of the paper i.e. the Karta’s power of alienation ( with specific focus on alienation carried out for the purpose of benefit of estate and the meaning behind the same).

ALIENATION AS A CONCEPT

The term alienation in the context of the discussion regarding the Hindu Family entails the transference of Joint family property for value , thus by extension binding the interest of both the adult and minor coparceners provided it is done in the presence of certain condition. Now before one engages with the aforementioned conditions, some of the entities who can carry out alienation are follows: The Karta, Father, Any Coparcener, Sole surviving coparcener and manager of the property.

For the purposes of this paper our focus will be on the Karta’s power of alienation. Now the powers of alienation as conferred to the above mentioned act on the fulfillment of certain conditions. While the standard position as such entailed that no single coparcener could alienate the property, the Dharmashastra  in certain circumstances allowed for one coparcener to alienate the property.

Furthermore the Vijayneshwara school laid down a trifocal basis for alienation of property by the karta. They are the following, Apatkale[7], it entails the alienation of the Joint Family property in extremely exigent circumstances such as famine, epidemic. However that as a basis has been extended upon in the modern iteration of law[8]. The second criterion being Kutumbarthe which entails alienation carried out for the sake of the family property. The last aspect contending with indispensible duties such as charitable, pious purposes. The Vijayneshwara in regard to this specific aspect mentions one example which is the Dharmarthe i.e. the obsequies of the father such shradha, upanayana amongst others.

Apart from the above set of circumstances the Karta can also alienate the Joint family property in scenario where the family members are in consensus. Though differential stands are taken in regard to when some of the  family member consent to alienate, while other do not by varied schools[9]

ALIENATION CARRIED FOR THE PURPOSE OF BENEFIT TO THE ESTATE

The definitive case which first dealt with the issue of Benefit of estate as basis for alienation of property (apart from legal necessity) was the case of Hanooman Persuad v. Mussumat Babooee[10]. The court in this specific dispute was in a conflict of opinion regarding the exact meaning of them “benefit of the estate”.

One view being that a transaction cannot being deemed as being for the benefit of the estate unless and until it doesn’t possess a defensive character i.e. a transaction carried out to protect the estate from an eminent danger or destruction.[11] While the other view asserted that to classify the alienation under the guise of benefit of estate it is sufficient that owner or a trustee would have carried out the with the knowledge that was available[12] to them at the time of the transaction.

The next case which added another definitive basis to term was the one of Palaniappa v. Deivasikamony  AIR 1917 PC 33[13]. The case dealt with the question of whether a mahant i.e. the head of math possessed the power to alienate a debutter land. The  Judicial committee in this case very appropriately summed the problem  with defining the term benefit to the estate. For basic aspect such as preservation of the estate from extinction, defense against hostile litigation affecting it, protection of certain portion from inundation or injury could very well be construed benefits. However the problem lay with drawing  a clear demarcation as to what constituted benefits and what did not.

In the subsequent years between the above mentioned judgments, an interesting judgment as given by a full bench of the Bombay High Court in the matter of Hemraj v. Nathan[14]stated that while a property cannot be alienated solely for the purpose of enhancing its value. It would however be an equally incorrect assumption to state that no transaction can be of the be of the benefit of the estate which is not of a defensive a character.

In addendum to this came the 1964 Supreme Court in the matter of Balmukund v. Kamlavati & Ors[15]. The matter was instituted by  an individual who had bought a piece of land from the manager of the property (one of the four brothers owning the Joint family property), only for the manager to not go through with the transaction after contractually agreeing for the same. The Supreme Court in the matter averred that a transaction to be regarded as carried for the benefit of the family need not necessarily be of a defensive character. Instead the criterion should be imposed on the basis whether  the said transaction conferred or sought to confer benefit to the family[16].

It was further stated that in a scenario where all the adult members alongside the manager agree on selling the estate with an intent to get a new property would be deemed as being benefit to the estate. Provided all concerned member are well aware of the needs and demands of the family. Thus setting aside the position of the Hemraj[17] case. This position has also found reflection  in the later year cases of  Hari Singh & Anr. v. Umrao Singh & Anr. AIR 1979 All 65 [18], wherein a land not yielding profit was sold only to be used as basis for land yielding profit, this was deemed as being benefit to the estate.

Simultaneously there have been judgments which state that a transaction cannot be deemed as being benefit to the estate if it simply carried for the purpose of buying another piece of land[19].

In recent cases before the Bombay and Madras High Court [20]respectively ,the Court while examining the matter has often pondered the exception as laid out in the Balmukund[21] case contending with the issue of sale of a property to buy another a property. Thus this question serves as the prime basis of contention ( on evidence adduced from the recent years) regarding the definition of the term Karta.

CONCLUSION 

The Court on multiple instances has averred that owing to the inherent subjective nature of this aspect, that the aspect of the term benefit of the estate would be assessed on a case to case basis. However a requisite change that needs to be made in this regard is changing the nomenclature of the term benefit of the estate to the act of good management as stated by J. M. Kumar in the case Jagdish Parshad vs Laxmi Narain And Anr (2003) 135 PLR 481[22]. For an understanding such as that would greatly end the disputation surrounding this subject matter. More specifically if the changing the nomenclature is difficult , then effective/good management[23] should certainly be set in as a qualifier for understanding the concept of alienation of property by Karta. For an attempt such as this if not unify would certainly simplify the various positions that court across the country have taken in regard to alienation under the aegis of benefit of estate.

[1]  The Hindu Succesion Amendment Act, 2005

[2]  Sir Dinshah Fardunji Mulla’s classic Principles of Hindu Law, article 236

[3]  Suraj Bans Koer v. Sheo Prasad (1880) 5 Cal 148

[4]  Nopany investments v. Santokh Singh AIR 2008 SC 673

[5]  Union of India v. Shri Ram Bohra & Ors. AIR 1965 SC 1531

[6]  Id. at 2

[7] Sir Dinshah Fardunji Mulla’s classic Principles of Hindu Law, Ed. 21st , pg. 375

[8] Devulapalli Kameswara Sastri v. Polavarapu Veeracharlu (1911) ILR 34 Mad 422 – this case held that necessity should be understodd in the context of the family as to what will be deemed as proper and reasonable rather  tahn having a notion of something being absolutely indespensible

[9] While the Bombay and Madras schools allow for the share of the consenting coparceners to be bound for alienation, the same is not true as per the West Bengal and the Uttar Pradesh schools.

[10] Hanooman Persuad v. Mussumat Babooee, (1856) 6 MIA 393

[11]  This aspect has been discussed  in the case of  Bhagwan Das v. Mahadeo  (1923) 45 All 390

[12] Sir Dinshah Fardunji Mulla’s classic Principles of Hindu Law ,PAGE 381-380,  §241 A

[13] Palaniappa v. Deivasikamony  AIR 1917 PC 33

[14] Hemraj v. Nathan  (1935) 37 BOMLR 427

[15] Balmukund v. Kamlavati & Ors AIR 1964 SC 1385

[16] Id. at  13

[17] Id. at  14

[18] Hari Singh & Anr. v. Umrao Singh &Anr. AIR 1979 All 65

[19] Nirmal Singh v. Satnam , AIR 1960 Raj 313

[20] Kashinath Rajaram Kasbe And Ors vs Dattatraya Ramchandra Kasbe (2014) 56 BOMLR 472

    Vijayalakshmi vs A. Govindasamy( 2013) ILR 72 Mad 453

[21] Balmukund v. Kamlavati & Ors AIR 1964 SC 1385

[22] Jagdish Parshad vs Laxmi Narain And Anr (2003) 135 PLR 481

[23] As was mentioned in the case of  Hurry Mohan v. Ganesh Chander, (1884) 10 Cal 823



ABOUT THE AUTHOR

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Dhruv Shekhar is at present a law student at Jindal Global Law School (JGLS), having studied History before at St. Stephens College. Intrinsically passionate about the Films, Books and Football, he seeks to examine and study his interests within the ambit of the legalities concerned with the said subject matter.