High Court of Judicature at Bombay
|Name of the Case||Mrs. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes and Anr.|
|Citation||CDJ 2017 BHC 936|
|Year of the Case||21 April, 2017|
|Appellant||Mrs. Christine Lazarus Menezes|
|Respondent||Mr. Lazarus Peter Menezes|
|Bench/ Judges||A.S Oka, J.; A.A Sayed, J.|
|Acts Involved||The Divorce Act, 1869 The Code of Criminal Procedure, 1973 The Indian Penal Code, 1860|
|Important sections||Section 125 in The Code of Criminal Procedure, 1973 Section 498A in The Indian Penal Code Section 10(x) in The Divorce Act, 1869 Section 10(1)(ix) in The Divorce Act, 1869|
When looked in the naked eye it is a matrimonial dispute. But in a matrimonial dispute, several aspects are involved intricately. Most of the matrimonial disputes arise due to cruelty and desertion. In this case also, the cruelty aspect and maintenance aspect is involved. When we analyse this case law we’ll notice that it covers most of the ancillary issues involved in a matrimonial dispute.
Section 125 in The Code of Criminal Procedure, 1973, Section 498A in The Indian Penal Code, 406 of The Indian Penal Code, Section 10(x) in The Divorce Act, 1869, Section 10(1)(ix) in The Divorce Act, 1869.
The case is between husband and wife, where the husband has suffered from mental cruelty done by his wife. First, the case was adjudicated in Family court after the order of the family court the wife went for an appeal in the high court. By fully observing the scenario the high court gave their decision.
Background of the case
Both the parties lived in the same building and fell in love and eventually they got married. When a difference of opinion came between them the husband filed a petition for the dissolution of marriage and the wife filed a petition for maintenance in the family court. The family court decided to dissolve the marriage and granted maintenance for the two daughters but not to wife. After the order of the family court, the wife made an appeal in the High Court by questioning the dissolution of marriage and the denial of maintenance to her. The High Court decided to dissolve the marriage on the ground of cruelty and no maintenance will be given to anybody as the daughters became adult the parties have to bear their costs.
Both parties are herein referred to as husband and wife. They were married according to the Christian rites and customs on 28-12-1987. They both fell in love while they were residing in the same house and they decided to get married. They both were blessed with two daughters born on 29-9-1988 and 8-5-1990. At the time of marriage, the husband was an electrical contractor and his wife was a clerk in a school at Bandra. After the marriage in 1989, the husband got a job as an electrician at Hindustan Petroleum Corporation.
The Family Court recorded the common evidence in the husband’s Petition for divorce and the wife’s petition for maintenance. The husband has examined himself. The wife examined herself with 3 witnesses in support of her case. At last, the family court decided and allowed the petition of the husband and passed a decree of dissolution of the marriage between the parties on the grounds of ‘cruelty’ and ‘desertion’ and partly allowed the petition of the wife by granting maintenance of Rs. 1000/- per month to each of the two daughters and rejected the prayer of maintenance to the wife.
On 07-01-2005 the wife lodged an FIR with the Kherwadi Police Station against her husband under section 498A and 406 of The Indian Penal Code, 1860. In the wife’s written statement she mentioned that on 3/4 January 2005 night the husband left the matrimonial house in his own accord and went to his parent’s home and on 10 January 2005 the police brought her husband to Mumbai from his parent’s home and was kept in prison for 7 days and after he was granted bail. In the cross-examination, the wife admitted that she filed the complaint only to bring her husband back to the matrimonial house for which he was arrested for 7 days which clearly shows the case of cruelty by the wife to her husband.
At the time of filing the Petitions the wife was shown as residing in the matrimonial home at Bandra viz.- Room No.2219, Building No.45, Gandhi Nagar, Bandra (East). In the wife’s written statement and cross-examination, she stated that her husband owns a flat being flat No.603, Building N0.4, Krishna Green land Park, KasarWadali Naka, Ghodbunder Road, Thane (West). Since April 2005 after the petition was filed she has moved to the said Flat that her husband owns. She also stated that she lodged a criminal complaint at Ghodbunder Road Police Station, Thane, against her husband in September 2005 as she was threatened to leave the house.
She has stated that in order to pay the education expenses and daily expenses of her children she had rented the matrimonial home in Bandra and shifted to the said Flat in Thane. She denied the suggestionthat she broke the lock of the said Flat No.603 with a constable and forcibly entered the said flat. She further admitted that the said flat came in her possession, thus, her husband does not have a place to live other than that. She also further mentioned that her husband is welcomed to come and live with her. She also admitted that she has not filed any petition for restitution of conjugal rights. It is also an admitted position before the court that the husband now lives in Goa.
Then the husband filed a petition for divorce for cruelty against his wife and he also mentioned that the wife is of suspicious nature and doubted his character and made his life miserable. In his statement, he said that his wife started accusing him of illicit relationships with Beryl who was staying in his parent’s building and he stated that his wife also accused him of having a relationship with the maidservant. He further averted that his wife accused him of having a relationship with his uncle’s daughter.
- Whether divorce can be granted on the grounds of cruelty and desertion?
- Whether maintenance should be given to the grown-up daughters?
- Section 125 in The Code of Criminal Procedure, 1973 – states the Order for maintenance of wives, children, and parents.
- Section 498A in The Indian Penal Code – states state about Husband or relative of husband of a woman subjecting her to cruelty
- Section 10 in The Hindu Marriage Act, 1955 – states about the judicial separation
- Section 10(x) in The Divorce Act, 1869 – says that if the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.
- Section 10(1)(ix) in The Divorce Act, 1869 – says that if the respondent has deserted the petitioner for at least two years immediately preceding the presentation of the petition
- K.SrinivasRaovsD.A.Deepa, (2013) 5 SCC 226
- Dr. (Mrs.) Malathi Ravi, M.D vs Dr. B.V. Ravi M.D, (2014) 7 SCC 640
- V. Bhagatvs D. Bhagat, (1994) 1 SCC 337
- Vijay Kumar RamachandraBhatevsNeela Vijay Kumar Bhate, (2003) 6 SCC 334
- VishwanathAgrawalvsSarlaVishwanathAgrawal, (2012) 7 SCC 288
The judgment was given by the High Court of Judicature at Bombay, addressing the appeal of the wife questioning the order of the Family court. The order of the family court was partly allowed,the marriage between the husband and wife shall be dissolved on the ground of cruelty and the challenged order of the Family court will be to that extent.
Here, cruelty is defined as willful and 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 a danger.In this case, the wife inflicted mental cruelty upon the husband by filing false complaints in the police stations and also occupied his flat forcefully. She also alleged that he had illicit relationship with Beryl, the housemaid, his uncle’s daughter, and even went to the extent and said that he had a relationship even with the uncle’s younger daughter. This clearly says that the husband has gone through mental cruelty by his wife.
The impugned order of the family court granting dissolution on the ground of desertion was set aside. Court observed that here desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage. There must be a minimum of 1-2 years of desertion by the husband or wife before filing the petition on desertion. In this case, the husband left the house only 3/4 days before filing the petition.
The impugned order of the family court rejecting maintenance to the wife which was claimed under Section 125 of the Code of Criminal Procedure Code, 1973 was upheld by the High Court and the maintenance given to his daughter was aside as both the daughters had attained majority during the pendency of the proceedings (the elder daughter is present bout 28 years of age and younger one about 26 years). The Parties were left to bear their own cause.
The prime objective of criminal justice system is;-“It is better that ten guilty persons escape than that one innocent suffer.”
The major concept highlighted in this case was the misuse of 498A and 406 of the Indian Penal Code, 1860. In Arnesh Kumar vs State of Bihar &Anr, (2014) 8 SCC 273 it was held that when a complaint is given under Section 498A of the Indian Penal Code due to the rampant misuse of this provision, the police must arrest that person after some investigation and with reasonable satisfaction that the crime has happened. One can clearly conclude after reading the case that here the husband was imprisoned for 7 days wrongfully, i.e. he didn’t committed any illegal act under the provisions of penal code.
Frequently Asked Questions (FAQs)
- Does the Court take any actions against the misuse of section 498A of The Indian Penal Code?
- Can a marriage be dissolved by the Court for irretrievable breakdown?
- Whether in this case the wife is entitled to claim maintenance for herself?