Irretrievable breakdown of marriage owing to severe and/or insuperable incompatibility does not amount to cruelty, holds the Bombay High Court, dismissing a husband's plea for divorce owing to her wife's constant visits to pubs

The Bombay High Court has held in a recent judgment that irretrievable breakdown of marriage owing to severe and/or insuperable incompatibility does not amount to cruelty, and cannot be a ground for securing a decree of divorce.

Bombay High Court

A Division Bench comprising of Justices Vijaya Kapse Tahilramani and Anil Menon was considering the husband's bid to get divorce end his 20-year-old marriage on grounds of cruelty alleging that his wife, a businesswoman and resident of Pedder Road, liked to visit pubs and neglected their child and they had fights during their honeymoon. The couple have been living apart for the past 16 years.

The Family Court before which the husband had filed his petition for divorce dismissed the same in 2012, following which he had approached the Bombay High Court by way of appeal.

The Bench, dismissing the appeal filed by the husband held "At best, evidence shows insuperable incompatibility between the parties falling short of cruelty. Be that as it may, irretrievable breakdown of marriage owing to severe and/or insuperable incompatibility does not amount to cruelty and as such no relief can be granted."

"As far as visits to discos and pubs are concerned, it has come in the cross-examination that they both visited discos and pubs even during the period of courtship," the judges said, pointing out that the man also admitted that he had not complained to anyone about the fights during their honeymoon.

With regard to the other allegations, the HC said that the few "incidents highlighted by the husband over a period of four years of co-habitation do not, in our considered opinion, amount to mental cruelty". Referring to a Supreme Court judgment, the High Court said, "Mere coldness or lack of affection cannot amount to cruelty and it's only when the petulant behaviour reaches such an extent that married life becomes intolerable that cruelty can be proved."

The High Court however said that the wife, who runs her family's business and owns properties, had refused to divulge her income, which led it to conclude that she had substantial income of her own. It partly set aside the family court's order asking the husband to shell out Rs 50,000 as monthly maintenance from 2002. Instead, the judges ordered staggered amounts—Rs 30,000 per month till 2004, Rs 40,000 from 2005-09 and Rs 50,000 from 2009.

 

Man granted interim bail arrested by police after registering second crime in respect of similar offence; Bombay HC orders probe into the 'high-handed' conduct of the investigating officer

The Bombay High Court has taken strong exception to the act of the Bandra Police in arresting a city resident despite being given interim protection from arrest in a similar case by the Court before.

Bombay High Court

The Bandra Police registered a second case, lodged by the same complainant, just 30 minutes before the man, Abid Hussain, was to arrive at the police station on the High Court's orders. Livid at the circumvention of the court orders, Justice Sadhna Jadhav directed the Deputy Commissioner of Police (zone 9) to look into the conduct of the probe officer.

"It is apparent on the face of record that the investigating officer has been hand-in-glove with the complainant.Only to bypass an order passed by this court granting interim relief in favour of Hussain, (the officer) has attemp ted to register a fresh FIR and arrested him although (the officer) was fully aware that in a similar transaction, he (Hussain) has been protected by this court," Justice Jadhav said.

The High Court also pointed out that police had violated procedure by not sending a copy of the FIR to the magistrate and by detaining Hussain's family at the police station to secure his arrest.

"The high-handedness of the police officer is writ large on the face of record. The DCP, zone-9, shall personally look into the manner of the functioning of the investigating officer," the Bombay High Court said, giving the DCP six weeks to conduct an inquiry and file a report in the court before the next hearing of the case on February 6. 

Cognizance of alleged offence of bigamy cannot be taken on a complaint at the instance of the second wife if she knew about her husband's first wife at the time of marriage, holds the Bombay High Court

In a significant ruling, the Bombay High Court has held that cognizance of offence of bigamy cannot be taken on a complaint at the instance of the second wife if she knew about her husband's first wife at the time of marriage.

The case involved one Kishor Rambhau Mandalik, 45, alias Dada Maharaj whose second wife had lodged a complaint with the police in November 2012 under the Indian Penal Code for the offences of cheating and bigamy. She had alleged that Mandalik had lured her into marriage on the promise that he was in the process of getting a divorce. However, within a week of the wedding, he allegedly abandoned her, claiming he dreamt of his father warning him that if they remained in wedlock, it would bring them both misfortune. After investigation, the police had laid a charge sheet before the jurisdictional magistrate’s Court against him.

The Magistrate, an an application filed by Mandalik, granted him an order of discharge on the ground of bigamy, retaining only the charge of cheating against him.  

Bombay High Court

Aggrieved by the order of discharge passed by the Magistrate’s Court, the state government then challenged the magistrate's order before the Sessions Court. The Sessions Court set aside the order of discharge passed by the Magistrate, following which Mandalik then challenged the order of the Sessions Court before the Bombay High Court. 

The Bombay High Court, considering Mandalik’s appeal from the order of the Sessions Court, found that the second wife, in her FIR, said she was aware of Mandalik's first marriage when she married him. It noted: "The learned magistrate rightly took a view that she could not be treated as an 'aggrieved person', and therefore, in view of the provisions of section 198 of the Code of Criminal Procedure, the cognizance of the alleged offence could not be taken at her instance."

Terming the order of the sessions judge as "patently incorrect", the Bombay High Court set aside the order, observing that the order of the magistrate was "well reasoned".

"When cognizance of the offence punishable under section 494 of the IPC could not have been taken at all on the complaint of the second wife, who was aware of the first marriage, the question of taking such cognizance on the basis of a police report, on the ground that the case was a police case, was not proper," held the Bombay High Court, while allowing the appeal filed by Mandalik.

Bombay High Court upholds life imprisonment awarded to youth for killing prostitute

The Bombay High Court has upheld the life sentence awarded by the Sessions Court to a 21-year-old youth for stabbing to death a prostitute, who refused to marry him, in the year 2009.

Bombay High Court

A Division Bench of the Bombay High Court comprising of Justices VK Tahilramani and Anil Menon recently dismissed an appeal filed by the convict, Anant alias Rakesh Ratan Let, against the judgment of the Sessions Court order convicting him for the murder of a prostitute by name Zarina, and sentencing him to life imprisonment on that count. The Sessions Court had also sentenced him to one year’s imprisonment for causing injuries to one Reshma, also engaged in prostitution. The Sessions Court had directed that the sentences were to run concurrently. 

While dismissing his appeal, the Bombay High Court observed: "We are of the opinion that there is sufficient evidence to prove beyond reasonable doubt that the appellant committed murder of Zarina by assaulting her with a knife and in the course of the incident, injuries were also inflicted on Reshma, also engaged in prostitution, who tried to save the victim."

The finding of the Sessions Court on the charge of causing injuries to Reshma by the convict was also upheld by the Bombay High Court. 

"Finding of the blood group of the deceased (Zarina) on the clothes of the appellant (shirt, pant and underwear) is a strong incriminating factor against the appellant," the Bench said. 

Besides, the accused was found to have sustained a deep cut injury on his left thumb. "This is sufficient to prove that he had been involved in the attack on Zarina and Reshma," said the Court.

Reshma and her neighbour had identified Anant as the person who had stabbed Zarina. Reshma had seen him attacking Zarina after the latter shouted for help while the other witness, who stayed in the neighbourhood, had heard Zarina's cries for help, the Bench noted.

The assailant was overpowered by people after Reshma grappled with him at a residence in Grant Road where they were engaged in prostitution.

Every case of 'physical contacts' before breach of promise to marry cannot be said as rape, says the Bombay High Court

In a significant decision, the Bombay High Court has held that every breach of promise to marry does not necessarily amount to rape. The Court also observed that pre-marital sex between couples is no longer shocking in India's big cities. 

Bombay High Court

The observations of the Court came earlier this month, during the hearing of an anticipatory bail application filed by a Nashik resident who was booked on charges of cheating and rape following a complaint filed by his former girlfriend.

The victim who claimed she was pregnant with the petitioner’s child, said despite promising to marry her, he had married another girl. The petitioner, on the other hand, claimed the relationship was consensual, and they could not marry as they belonged to different religions. The victim and the accused, both lawyers, knew each other since 1999 and had a physical relationship since 2006. The victim claimed that the accused had promised to marry her. In 2009, when he said he could not, she had tried to commit suicide. She said that they continued physical relations even after that. 

"Nowadays keeping (a) sexual relationship while having an affair or before marriage is not shocking as it was earlier. A couple may decide to experience sex. Today especially in metros like Mumbai and Pune, society is becoming more and more permissive," said Justice Mridula Bhatkar, adding, "Though unlike western countries, we have social taboo and are hesitant to accept free sexual relationship between unmarried couples or youngsters as their basic biological need; the court cannot be oblivious to a fact of changing behavioural norms and patterns between man and woman relationship in society."

The court said a major and educated girl was expected to know the demands of her body and the consequences of sexual relationships, and in a case it would have to be tested independently if her decision to have sex with a man was a conscious one or not. 

"Today the law acknowledges live-in relationship(s). The law also acknowledges a woman's right to have sex, a woman's right to be a mother or a woman's right to say no to motherhood. Thus, having sexual relationship with a man whether is her conscious decision or not is to be tested independently depending on the facts and circumstances of each and every case and no straightjacket formula or any kind of labelling can be adopted," the judge said. 

The High Court also gave examples of what could be an offence under Section 376 of Indian Penal Code relating to rape - an uneducated poor girl being induced into a sexual relationship after promise of marriage or a man suppressing his first marriage to have sexual relations with a girl. 

The Court also pointed out that a couple may fall out of love and questioned if the physical relationship they had before could be termed as rape. "A couple in love may be having sexual relationship and realize they are not compatible, and sometimes love between the parties is lost and their relationship dries gradually, then earlier physical contacts cannot be said as rape. A marriage cannot be imposed," said the judge. 

The High Court said both the victim and the accused were educated. "The complainant is an educated girl and it shows it was her conscious decision to keep sexual relations. Prima facie at this stage, possibility of non-committal, consensual relationship cannot be denied," the judge said, while granting anticipatory bail to the accused. 

The High Court said if the victim chooses to have the baby, she could adopt legal proceedings against the accused to secure the child's rights.