Decided on: 21 April, 2017
Citation: CDJ 2017 BHC 936
Petition No. E- 187/2005
Case Type: Review Petition.
Bench: Hon’ble Mr. Justice A.S Oka and Mr. Justice A.A Sayed, J.
Petitioner: Mrs. Christine Lazarus Menezes
Respondent: Mr. Lazarus Peter Menezes and Anr.
Statutes Referred-
Section 498A and Section 406 of Indian Penal C187ode ,1980, Section 125 of Criminal Procedure Code,1973, Section 10(x) and Section 10(1)(ix) of The Divorce Act, 1869
Cases Referred-
Malathi Ravi, M.D. vs B.V. Ravi, M.D, (2014) 7 SCC 640
V. Bhagat vs D. Bhagat, (1994) 1 SCC 337
Vijaykumar Ramchandra Bhate vs Neela Vijaykumar Bhate (2003) 6 SCC 334
Vishwanath Agrawal vs Sarla Vishwanath Agrawal, (2012) 7 SCC 288
Arnesh Kumar vs State of Bihar & Anr, (2014) 8 SCC 273
Facts:
The husband and wife both the parties were married according to the Christian and Customs on 28-12-1987, both lived in the same building and fell in love. They decided to get married and they both were blessed with two daughters.
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.
When a difference of opinion started coming 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 recorded 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 and 3 witnesses in support of her case.
After hearing the parties, the Family Court decided to dissolve the case on the grounds of “cruelty” and ‘desertion” and allowed the petition of the wife by granting maintenance of Rs.1000/- to both the daughters but not to the wife.
On 7-1-2005 the wife lodged F.I.R against her husband at Kherwadi Police Station under Section 498A and Section 406 of The Indian Penal Code, 1860. She stated that on 3/4 January 2005 night, her husband left the matrimonial house in his own accord and went to his parent’s home.
The police brought her husband to Mumbai and was kept in prison for 7 days. In 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.
After the order of the Family Court, the wife filed an appeal to High Court for denial of maintenance and dissolution of marriage.
Issue involved:
1.Whether divorce can be granted on the grounds of cruelty and desertion?
2.Whether maintenance should be given to the wife?
Contentions by the parties:
Appellant
- The appellant has challenged the decision passed by the Family Court for the denial of maintenance to her and the dissolution of marriage on the grounds of “desertion” and “cruelty.
Respondent’s
- The respondent has resisted that challenge and also contented that she had threatened him to leave the house.
- She admitted that she filed a complaint against him only to bring the him back to the matrimonial house for which he was arrested which clearly shows the case of cruelty by the wife to her husband.
Judgement
In this case, the impugned order of the High Court was partly allowed on the grounds of cruelty and desertion. The High Court observed that ‘Desertion means forsaking or abandonment of one spouse by the other without reasonable cause and against the wish of the other for one to two years.’ In this present case, the husband left the house for 2/3 days before filling the petition and the same was upheld by the High Court. The wife had inflicted mental cruelty upon the husband by filling the false complaints in the police station.
The impugned order of the Family Court rejecting maintenance to the wife which was claimed under Section 125 of Cr.P.C was upheld by the High Court and the maintenance given to his daughters was withdrawn as both of the daughters had attained the age of majority during the pendency of the proceeding. The parties were left to bear own cause.
Ratio Decedendi.
- The question whether the marriage can be dissolved on the grounds of cruelty and desertion, Court interpreted that ‘Desertion means forsaking or abandonment of one spouse by the other without reasonable cause and against the wish of the other for 1 to two years.’ In this present case the husband left the house for 2/3 days before filling the petition. Wife inflicted mental cruelty upon the husband by filling the false complaints in the police stations.
- Court observed that maintenance given to the daughters which was claimed under the Section 125 CrPC was withdrawn as both the daughters had attained the age of majority.
Obiter Dicta
The ultimate objective of our legal system is to punish the guilty and protect the innocents. In this case the misuse of Section 498A and Section 406 of Indian Penal Code was highlighted. In Arnesh Kumar vs State of Bihar & Anr, (2014) 8 SCC 273 it was held in this case that when a complaint is filed under the section 498A of Indian Penal Code due to the rampant misuse of this provision the police must arrest that person after investigation.
In this present case it clearly shows that he did not commit any illegal act under this provision of Indian Penal Code for which he was arrested for 7 days.
Analysis
In this case the concept of misuse of Section 498A and Section 406 of Indian Penal Code is highlighted which clearly shows that her husband was arrested for 7 days wrongfully.
He did not commit any crime under the provision of Indian Penal Code. In this case, the impugned order of Family Court for maintenance to appellant was rejected and was upheld by the High Court that the right of maintenance of both of the daughters is withdrawn.