498A

ABSTRACT It is indeed a misfortune that the law which was enacted to protect the interest  of a particular group of people is now being used by the same group of people i n a fallacious manner. Earlier it was believed that women can only be subject to  cruelty by their husband and relatives but now the whole conception and presump tion has undergone a drastic change. Women often use the backing of law as a too l to satisfy their personal hatred towards their husband and his family members.  Huge backlog of cases in courts and frequent petition under section 498A of IPC  shows us the reality of the situation. As cruelty is a ground for divorce under  different laws, in order to get rid of the marriage wife use this section as a powerful weapon against their husband. This paper is a humble attempt to find out what all acts/omissions amounts to cr uelty. How women use the loopholes in law to work for their own benefit? Authors  also intend to explore and find out reason as to why such practice is increasin g day by day with the aid of recent case laws. Towards the end authors aim to fi nd out possible suggestions in order to deal with the issue. I.

Introduction

The concept of cruelty has varied from time to time, place to place and from ind ividual to individual. The cruelty alleged may largely depend upon the type of l ife the parties are accustomed to or their economic and social conditions, their  cultural and human values to which attaches importance(Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778). Cruelty is considered as a ground for divorce in various laws. Often wife and th eir relatives take advantage of this ground in order to use it as a powerful wea pon to threaten husband and their relatives. Some provisions under different law s are: · Section 13 of The Hindu Marriage Act, 1955: Under section 13 of The Hindu marria ge act, cruelty is a ground for divorce. · Section 27 of The Special Marriage Act, 1954, provides for 12 grounds for divorc e. One of them is cruelty. · Section 2 of The Dissolution of Muslim Marriages Act, 1939 also provides for dis solution of the marriage on the ground of cruelty. · Section 32 of The Parsi Marriage and Divorce Act, 1936, provides for 11 grounds for divorce. One of them is cruelty. · Section 10 of The Indian Divorce Act, 1869, provides for 7 grounds of dissolutio n of marriage of Christians. One of them is adultery coupled with cruelty. Every law has its backside. People often tend to mis-use laws to satisfy their p ersonal needs while ignoring the main purpose for which the law was enacted. Now  a days, the laws which were enacted to prevent the interest of women act as a s trong weapon of harassment and cruelty against men. Though it is the women who h ave always been subjected to be tortured and harassed by the husband and relativ es, in fact saying this will not be proper as cases of torture and harassment ag ainst the husband by the wife is increasing day by day. II.

Grounds for cruelty

A wife's conduct of: - humiliating her husband in the presence of family members and friends (Krishna

 Banerjee v. Bhanu Bikash Bandyopadhyay , AIR 2001 Cal 154), taunting her husban d on his physical incapabilities, denying him access to physical relationship, W ife opting out for second marriage without applying for the divorce proceedings,  deliberately wearing clothes which her husband dislikes, neglect, Extra-marital  affairs of wife can also be a ground of cruelty against the husband, coldness and insult, threatening to commit suicide, keeping husband outside the door of h ouse, Cruel behavior of wife where wife tearing the shirt of the husband, refusi ng to cook food properly or on time and breaking of the mangalsutra in the prese nce of husbands relatives, visiting her parent's family off and on against her hu sband's wishes, undergoing an abortion despite her husband asking her not to do so, refusing to do household work, complaining to husband's employer, disobedien ce. All these are not acts of physical violence but yet it has an effect on the husb and's mind and due to this, the husband's health suffers and therefore these act s can be termed as cruel (Sudhir Shah & Asscociates , Cruelty as a Ground For Di vorce). There are countless case laws dealing with the subject eferred here but even then it is fact that no hard and wn as to what act or conduct will amount to cruelty in mount to cruelty in one case may not amount to cruelty

of cruelty which may be r fast rules can be laid do any given case.What may a in another case.

Mental cruelty broadly means; when either party causes mental pain, agony or suf fering of such a magnitude that it severs the bond between the wife and husband.  In other words, the party who has committed wrong is not expected to live with the other party (S.Hanumantha Rao v. S.Ramani, AIR 1999 SC 1318). Making false a llegations by wife against the husband amounts to mental cruelty. In order to consummate marriage, ordinary and complete sexual intercourse must t ake place (Gudivada Venkateswararao v. Gudivada Nagamani, AIR 1962 AP 151). If the serious allegations against husband having illicit relationship with another  woman leveled by wife in written statement remain unsubstantiated, it amounts t o cruelty against husband (Surinder Mohan Chopra v. Nirmala Chopra, AIR 2007(DOC ) 183 (P & H)(DB). Marriage would be avoided or dissolved on the ground of impot ence if it is established that at the time of marriage either spouse was incapab le of effecting the consummation, either due to structural defect in the organs of generation rendering complete sexual intercourse impracticable or due to some  other cause. The wife leveled charge of second marriage on husband, placing reliance on voter s  list. It was held that the electoral roll was not cogent evidence to prove seco nd marriage of husband (Raj Kumari Jaiswal v. Ramesh Kumar Jaiswal ,AIR 2007 Cal  94). Adultery can be a ground for dissolution of marriage. False allegation of adulte ry against husband amounts to divorce (Prem Chand Pandey v. Savitri Pandey ,AIR 1999 All 43). In case of Bipin Chandra Jaisinghbhai Shah Vs Prabhawati ,(1956) SCR 838 the ess ential conditions for the offence of desertion are prescribed as regards deserti ng spouse: · The factum of separation · Intention to bring co habitation permanently to an end As regards deserted spouse: · Absence of consent

· Absence of conduct giving a reasonable cause to the spouse leaving the matrimoni al home for the necessary intention. Where the husband himself, his sister and his parents were always crazy to have a child in the family but the wife always dashed their hopes by resorting to ter mination of pregnancy twice, this conduct of the wife amounts to mental cruelty at least, if not physical to her husband and the husbands will within his right t o claim decree of divorce on that ground (Satya v. Siri ram, AIR 1983 P & H 252) . If the husband takes the plea of cruelty by wife, then the burden lies on him to  establish his case (R.Sivasubramaniam v. S. Krishnaveni, (AIR 2007 (NOC) 584 (M ad)). It is no doubt open for the petitioner husband in a petition for divorce on grou nd of cruelty to seek a decree of divorce on grounds arising out of charges leve led in the written statement by the respondent wife which amounts to cruelty (Se ction 13, Hindu Marriage Act,1955). The wife tearing of bridal garland on the ma rriage day itself also amounts to cruelty (J.Sudhakara Shenoy v. Vrinda Shenoy ,  AIR 2001 Karn 1) In this case petitioner/wife filed a false case against her husband on the groun d of Husband Having Girl Friend which is proved as false in a court of law so it c an be considered as cruelty against husband(Mrs. Deepalakshmi Saehia Zingade v. Sachi Rameshrao Zingade, AIR 2010 Bom 16). Wife leading immoral life amounts to cruelty. The wife had illicit relations wit h another person. it was held that the conduct of wife amounted to mental cruelt y and hence the order decreeing divorce in favor of husband was proper (Vimla La dkani v. Dr Chandra Prakash Ladkani, AIR 1996 MP 86). Acts of commission by a woman in filing a criminal complaint against her husband  and his relatives resulting in the husband being in distress in jail constitute  mental cruelty to him and, therefore, he is entitled to get the relief of divor ce, the Madras High Court has held. The judges said what conduct would amount to  cruelty was a question of fact to be decided on the facts and particulars of ea ch case. Citing a Supreme Court judgment, the Judges observed that cruelty would  normally consist not of harmful acts but of injurious reproaches, complaints, a ccusations or taunts. It should be established that one party in the marriage, i gnoring consequences, had misbehaved, which the other party could not be called upon to endure, and that misconduct had caused injury to health or a reasonable apprehension of such injury (K. T. Sangameswaran, Man granted divorce on grounds  of cruelty, June 4, 2012, The Hindu). Distress and social humiliation heaped on a husband by his wife by filing a fals e complaint and getting him arrested would amount to cruelty, which is a valid g round for divorce, the Madras high court has said. A division bench comprising J ustice Elipe Dharma Rao and Justice M Venugopal, passing orders on an appeal fil ed by a man, said: "The mental cruelty will continue to hurt a person throughout  and any amount of healing words or healing touch would not wipe out the tears/s cars, which continue to cause hurt and prick one's life." The bench said filing of a criminal case, the man's detention in judicial custody for twenty-two days and his acquittal by the criminal court clearly constituted mental cruelty meted  out to him, who admittedly would have undergone a traumatic experience and humi liation in the social circle. All these acts would clearly fall within the ambit  and purview of cruelty," the bench concluded, adding that the husband was entit led to the relief of divorce. The man had filed a divorce plea in the family cou rt on the ground that his wife quarreled with him and his family members for tri vial matters and frequently threatened to commit suicide unless he agreed to sep arate from the joint family. His petition said she later lodged a complaint of d

owry harassment and ill-treatment against him and six of his family members (A S ubramani, Man gets divorce for harassment by wife, Jun 2, 2012, The Times of Ind ia). III.

Section 498A of IPC and its mis-use

Initially section 498A came into existence in order to protect women from dowry harassment and domestic violence. But presently, the instances of misuse of this  provision have become a daily phenomenon. It is no wonder that Supreme Court in  the landmark case of Sushil Kumar Sharma vs. Union of India (2005 (6) SC 266). has condemned 498A as Legal Terrorism. Since cruelty is a ground for divorce under  section 13 (1) (ia) of Hindu marriage Act, 1955. Wife often use this provisions  in order to threaten husband. According to the information received from the Honble High Courts (during the yea r 2011), 3, 40,555 cases under Section 498-A IPC were pending trial in various c ourts towards the end of 2010. There were as many as 9, 38,809 accused implica ted in these cases excluding Punjab and Haryana courts (243rd report of Law comm ission on section 498A of IPC). This data makes it crystal clear that day by day  the problem is getting more severe. A strict law in this regard needs to be passed by the parliament in order to pun ish those who act malafidely and tries to misguide the system of law. Law commi ssion in its 243rdreport opined that the Section together with its allied Cr.PC provisions shall not act as an instrument of oppression and cou nter-harassment and become a tool of indiscreet and arbitrary actions on the par t of the Police(243rd report of Law commission on section 498A of IPC). When women accuse their husbands under S.498A IPC by making the offence non-bail able and cognizable, if the man is innocent he does not get a chance quickly to get justice and justice delayed is justice denied(243rd report of Law commission o n section 498A of IPC). IV.

Suggestions

Women NGOs should not serve as a catalyst to promote frivolous complaints rather  they should fight against false complaints. Trivial matters should be dealt in trivial manner. Wife and their relatives should be made aware of the consequence s of their act. It has been observed that, during the pendency of the case filed under section 4 98A, husband and their relatives are forced to come to court in order to defend their case. In the process, even though final verdict is in favour of husband, t he mental and financial agony suffered during the entire proceeding is also a ma tter of concern. Hence, focus should also be on speedy and prompt disposal of th e cases. For this some amendments should be brought into force which specifies t ime-period for the same. Unless required, husband should not unnecessarily be bu rdened to show physical presence. Further, some concepts should be made clear i n order to do away with ambiguity. By now it is clear that the law is tilted towards women. In order to combat with  the present scenario, law should be made gender neutral. In addition to this, p enalty should also be given for making false accusation. It is rightly said that : The significance of the court's directive goes beyond what happens to Section 49 8A. It marks a conceptual shift, a turn away from the culture where women were s een only as victims who were incapable of leveling false allegations. The concep tion of women as the silent suffering sort who could do no wrong has influenced the administration of justice in both open and subtle ways. The assumption of wo

men's innocence is apparent in laws devised to deal with rape and other crimes a gainst women where the presumption of innocence is not available to the accused (Amend dowry law to stop its misuse, SC tells govt, Aug 17, 2010, The Times of I ndia). Hence, some flexibility should be there. Unlike centers for women, for men no such organization is there. In order to dea l with mental torture, some centers across the country should be established. IPSITA MISHRA, BA.LLB (HONS.), 3RD YEAR, NATIONAL LAW UNIVERSITY, ODISHA. ================================================================================ == Why Indian men should be very careful in filing divorce 30 Jan 2015 by videv To understand some of the terminology and context used in this post, reading som e of the important posts is a must. Now this post will cover the majority of cases of calls and issues received by m ens rights activists (MRAs) all over India. Almost 80-90% of callers have been i nto very short marriages, anywhere from 1 year to 3 years where the time wife wa s in same home as husband maybe anywhere from few weeks, few months, or maximum maybe 1.5 years or so. So even if the marriage happened 3 years back, the time wife stayed with husband maybe 1.5 years or so only. These are just guidelines. The important thing to understand is wife spent a significant time away from h usband in initial few years of marriage and it was not due to practical issues r elated to job/workplace. These husbands were unfortunate to get a bride from feminist/matriarchal familie s, who play by the simple rule that either husband is under their thumbs, or the y file legal/criminal cases on him to extort a mutual divorce and settlement runni ng starting from demand of 20 lakhs to no upper limit, or/and properties of husb ands family. After that, they may enjoy that settlement money or target their ne xt bakra. But it has been seen that their intention in life is more about destroy ing things and it is probably true that they dont care about their societal image  or even giving second marriage any seriousness. For them, the only serious bus iness about marriage is how to enslave husband and get his property and money if  he balks at it. Why most men facing 498A, DV, maintenance etc are into private sector jobs? My theory is its by design, not by chance. Most of such men facing these issues are into professional jobs like IT, finance, BPO etc. Very few will be from bus iness or such related work. Also, it is rarer to see men from independent profe ssions like CA, doctors etc. There is a reason behind it too. The conclusion I  have reached is that professionals working in companies are targeted because of  the following reasons: They are from typical middle-class families, with a mindset of playing by the ru les, and being good citizens etc. It is easier to manipulate such families. They start earning well in early part of carrier, and the feminist families targ et them for their ability to pay up possibly large sums of money within few year s of marriage. Being from such middle-class mindset, they are especially worried about image in  society and police cases and such things.

It is rare also to see those in independent professions like CA, doctors facing 498A etc, and my guess is the feminist families dont target them because they may start to earn well only after putting many years of experience. That kind of long waiting game is not what the feminist wives and their mothers have in mind. So they prefer to target the high-earning men in private esp MNC jobs and pref er them as husbands. For those in family business, if one person has a legal case to attend, other fa mily members or workers can carry out the things in his absence. But for a prof essional working in a 9-6 job, leaving work to attend court becomes a half-day o r full-day leave from work. Why filing divorce can be dangerous for men Having gone through the problems created by wives and in-laws, many men are fed up, mentally tortured, and plainly looking for a way out of daily uncertainty th at has become their life. So filing for divorce seems like a natural way to proceed. Many of them are als o misled by the wily wives (and in-laws) who tell them: lets file for mutual divor ce. Our straight/linear thinking professional men dont give a serious thought to  the question that if the wife wants a divorce anywhere after 1 day to few month s of marriage, why the hell did she agree to get married in the first place? No, they dont dwell on that question much, because for them wife saying lets go for  mutual divorce almost seems like a Nirvana compared to the being married experie nce they have seen thus far. If you married daughter from a feminist family, then once you file divorce, any or all of the following can happen: Wife will file DV (domestic violence case), and ask for both monthly maintenance , and compensation. Or she may file CrPC 125 and ask for monthly maintenance. Here the advantage fo r her is that she may or may not make that serious allegations as in DV, so she keeps one option open to show that she can still come back. Your wife may file RCR (Restitution for conjugal rights), which means wife says that she wants to come back. Then you get trapped because in front of the famil y court, you appear like the dowry-seeking, not-satisfied-with-one-wife kind of husband that the old TV serials used to show. And your wife will appear to be t he ablaa-naari who wants to dutifully go back to husbands home but is so scared r ight now that she stays at he parents home. She could simply file HMA 24 to claim interim maintenance while you run in court s for next few years trying to speed up the case. Again, she will be able to sh ow she is the hapless woman left by husband because that story is all too easily  believed by the white knights in society. Wife/in-laws will file IPC 498A on you. This may happen before, after and any t ime gap with DV or maintenance cases. Along with IPC 498a, other things like IPC 406A (recovery of stridhan), 324 (ass ault), IPC 506 (criminal intimidation) and such sections are added usually too. The latest trend is that wife may file IPC 377 on you (unnatural sex), IPC 376 ( rape) or 354 (outraging modesty of a woman) on your father or your brother etc. So what happens usually is that once people face these cases, they forget about divorce and spend their time fighting above cases. The whole scenario changes t o proving you are not a bad husband/person from proving wife was not a good wife ! Most husbands who file divorce are totally unprepared They are unprepared for the delays in family courts of India, where the cases st art after about 1.5 to 2 years and only after 5 years or so are pursued seriousl y by the judges. Its also be design, the family court judges award only mutual c

onsent divorces, everyone else is supposed to do the rounds of courts for 7-10 y ears at the least for having done the unpardonable crime of having applied a div orce petition to family court! Read this post where a recent example of delay i s pointed out by Chennai HC, this kind of a thing is the norm, not the exception ! Most people who apply do it out of frustration to get out of their situation. T hey do not collect much evidence, and all they have to tell the court is that th eir wife has left them and hasnt come back. At maximum, they will have some mess ages from wife where she says that she will come back if he takes a different ho use, doesnt stay with parents etc. Such messages will not prove anything conclus ively whether it was wife who left him deliberately or she was troubled by her p arents which will be her routine answer. The woman empowerment theme which is a ll the rage these days means that her words even if full of contradictions and l ies will carry weight compared to his defence of his parents. They are unprepared to handle the DV, 498a, maintenance cases filed by wife. Men file divorce, and then flock to mens support groups We had started discussion and community groups for men on WhatsApp and Facebook in Jan 2015. It has been going quite well, and joining these groups has given p eople courage to take a firm stand instead of giving up even before a fight. Wha t is being seen is that many men are joining these groups AFTER filing divorce o n wife, and then coming to us when they face multiple retaliatory cases by wife which can be any combination of DV (domestic violence) case, CrPC 125 for mainte nance, IPC 498A to keep you (and family) busy in criminal courts, and so on. It  is clear that their learned lawyers didnt inform them of the 99% chance that you r wife will file such cases after you file divorce case on her. Thats how the la wyers work, their focus (and maybe even duty) is about filing cases, and not get ting any defined results for client. But it maybe not too late to learn even no w for those husbands who have filed a divorce case. Buy book: How to Fight and Reduce Maintenance under CrPC 125 and DV Act Kindle E dition Get FREE Guidance To tackle this issue of rising divorce filings by men, and subsequent flocking t o mens support groups; I have written a book on the topic of divorce for men: con taining topics like wifes cruelty, desertion, false cases/allegations by wife, ad ultery by wife, annulment due to fraud in marriage etc. One reason of writing t hat book was also because many of our members were deeply curious about the topi c of divorce, and when people are curious about something but they are unable to  satisfy that; they will most likely head to a lawyers office in search of a solu tion, and the only solution lawyer can give is to file a divorce petition. Hes n ot going to look at merits of case, probability of winning, how many years it mi ght take the client to get divorce even if he has good evidence, and so on. Law yer will file the case, and then the client will be there for at least 1.5-2 yea rs, by which time the client again starts to lose patience, and this time he com es to mens rights groups asking about: my wife is not coming to court in my divorc e case, but she is attending all her maintenance hearings. That is the rule, not  the exception. If you are in same situation, what you are going to do about it  is what matters. Or is there anything you can do about it at all? To tackle such issues and reduce time and effort of MRAs getting diverted into t hese issues, I have written the book on topic of divorce for men. It contains m ore than 70 judgments on topics of divorce due to cruelty, desertion, adultery, false cases by wife, wifes adultery, annulment etc. The best way to approach thi s book is as a self-study guide. Read the judgments (including my summary, and commentary), and make own conclusions about strength/weakness of your evidence, case (if already filed), and what to expect down the line.

================================================================================ ============================= Following things need to be done whenever faced with allegation of impotence: Buy book: How to Fight and Reduce Maintenance under CrPC 125 and DV Act Kindle E dition Get FREE Guidance Of course deny it completely in your written statement/objection to her main pet ition. Do not listen to lawyer that we will do some mediation or some such BS. How will mediation remove this allegation against you? There is no need to go for any potency test or such thing at time of filing obje ction. That is a matter of husbands evidence or wifes cross-exam and that stage c omes much later after wifes evidence is over. Count maybe 2 years and more for f amily court cases. If wife has made this allegation in any open forum, social media like Facebook, Twitter, Whatsapp etc and it has spread all around, then you may have to serious ly consider filing defamation and damages at some point of time. If it is on an  online forum, then you could use Information Technology Act Sec 66A to proceed against wife too. Because such an allegation could destroy your future chances of marriage, and even if one doesnt want to remarry, such an allegation cant be le ft to disappear on its own with passage of time. There are many such cases and one of them is here: Wife to pay 2 lakh damages for alleging husband was impoten t Do not entertain any other offer of compromise, financial settlement, mutual conse nt divorce because even if you accept it, the word may leak out that your first marriage broke because of impotence. Try proving people wrong once they have ma de opinion about you based on reliable grapevine! Make it as a major point during any mediation proceedings that it is you the husba nd/respondent/accused who needs to be compensated to a sum of Rs 10 Crore becaus e such an allegation is made against you.