While mincing no words on making clear that the increasing trend of husband being labelled as ‘alcoholic’ or ‘womaniser’ would be considered as cruelty, the Bombay High Court in a most laudable, learned, landmark and latest judgment titled Nalini Nagnath Uphalkar V/s Nagnath Mahadev Uphalkar in Family Court Appeal No. 45 of 2006 pronounced as recently as on October 12, 2022 held in no uncertain terms that a wife making unsubstantiated allegations against her husband in a court labelling him as an ‘alcoholic’ and a ‘womanizer’ amounts to cruelty. It must be mentioned here that a Division Bench comprising of Hon’ble Mr Justice Nitin Jamdar and Hon’ble Ms Justice Sharmila U Deshmukh dismissed an appeal filed by the appellant/wife challenging family court’s decision to grant divorce decree to her husband. The Court minced just no words to say that the conduct of the petitioner amounts to cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. Very rightly so!

At the outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Ms Justice Sharmila U Deshmukh for a Division Bench of the Bombay High Court comprising of Hon’ble Mr Justice Nitin Jamdar and herself sets the ball rolling by first and foremost putting forth in para 1 that:
Rule, returnable forthwith. By consent of parties, Appeal is taken up for final hearing.

As we see, the Division Bench then states in para 3 that:
By this Appeal, the Appellant-wife takes an exception to the judgment and decree dated 22 November 2005, passed by the Family Court (Court No.3), Pune in Petition no. A-65 of 2004, whereby the counter claim of the Respondent-husband was allowed and the marriage between the Appellant wife and Respondent husband was dissolved by a decree of divorce under Section 13 of Hindu Marriage Act. During the pendency of the Appeal, the Respondent husband expired and his legal heir was brought on record. For the sake of convenience, the parties are referred to by their status as before the Family Court.

To put things in perspective, the Division Bench then envisages in para 4 that, Few facts are necessary to appreciate the controversy in issue. On 25 October 2015, after the death of his first wife, the Respondent and Petitioner got married. In the year 2004, Petition No. A-65 of 2004 was filed by the Petitioner-wife, under section 9 of the Hindu Marriage Act, 1955 for Restitution of Conjugal Rights, to which the Respondent-husband filed his reply and also filed a counter claim seeking decree of divorce. In the said proceedings, preliminary issue came to be framed by the Family Court, as to whether the petition by the Petitioner-wife is tenable in view of the petition filed by the petitioner for maintenance under section 18 of the Hindu Adoption and Maintenance Act and the passing of a decree in favour of the Petitioner-wife in PC No.84 of 2001 on 18 February 2002, which was answered against the Petitioner wife and an order dismissing the petition was passed. The Family Court then proceeded to decide the counter claim of the Respondent-husband, wherein the impugned judgment and decree dissolving the marriage under Section 13 of Hindu Marriage Act, 1955 was passed and an order of payment of maintenance of Rs.2000/- p.m. to the Petitioner-wife was granted.

As it turned out, the Division Bench then enunciates in para 5 that:
Prior to the present proceedings, the Respondent-husband had filed a petition seeking decree of divorce on the ground of cruelty being PA No.271 of 2002 which came to be dismissed on 6 August 2003.

It is worth stating that the Division Bench then points out in para 8 that, Learned Counsel appearing for the Respondent supports the impugned judgment and submits that the allegations made by the Petitioner-wife constitute an act of cruelty as she has failed to substantiate the allegations and hence the learned Family Court Judge has rightly passed the decree of divorce. In support of his submissions, he relies upon the following judgments.

(i) X versus Y, reported in 2016 (3) AIR Bom R 122;

(ii) Tejas Shah vs. Ms Aditi Tejas Shah, in Family Court Appeal No. 71 of 2008 of this Court (Coram: A.S. Oka & A.K. Menon, JJ) dated 12 February 2015.

Of course, the Division Bench then stipulates in para 9 that:
We have considered the rival submissions of the parties. In our opinion, the issue which arises in the present case is whether the allegations made by the Petitioner-wife in her reply to the counter claim constitute cruelty within the meaning of Section 13(1)(i-a) of Hindu Marriage Act, 1955 so as to entitle the Respondent-husband to a decree of divorce. The learned Family Court Judge has based the decree of divorce on the unsubstantiated allegations of the Petitioner in the pleadings.

Be it noted, the Division Bench then specifies in para 11 disclosing that:
A scrutiny of the evidence of the Petitioner is required to ascertain as to whether the Petitioner has been able to prove the allegations. The Petitioner has examined herself and her sister Madhuri Anand Pawar. Petitioner has deposed that the Respondent used to be constantly under the influence of liquor and used to physically assault her; that apart from being an alcoholic, he was also a womaniser; that due to his vices he used to return home late at night and that she was deprived of her conjugal rights; and that he was in the habit of visiting her sister - Yashoda Pawar, on one pretext or the other. In the cross-examination a suggestion was given that she has made false and defamatory statements against the Respondent, which was denied by her and she maintained that the allegations made by her are correct. It is important to note that the Petitioner’s sister– witness No.2- Madhuri Anand Pawar has not corroborated the case of the Petitioner and has only deposed that the Respondent used to consume liquor.

It cannot be lost on us that the Division Bench then points out in para 12 that, Considering the above evidence, we find that apart from filing her affidavit of evidence reproducing the contents of the reply, there is no evidence produced by the Petitioner to substantiate her allegations. Pertinently, the Petitioner’s own sister has not corroborated the case of the Petitioner and has merely deposed that the Respondent used to consume liquor, but there is no assertion of being alcoholic which has distinct connotation. The Petitioner has alleged that the Respondent used to visit her sister on one pretext or other, yet the evidence of the Petitioner’s sister does not give any details. The evidence on record produced by the Petitioner fails to prove the allegations made by her in pleadings.

It also cannot be glossed over that the Division Bench then states in para 13 that:
Pertinently, it is the specific case of the Respondent that the Petitioner has caused him mental agony by making false and defamatory allegations against him in society. In his evidence, Respondent has deposed that the Petitioner had approached the members of the institution wherein he was doing social work and leveled the same allegations against him, defaming him in society and by reason of this conduct, his marital as well as social life has been completely destroyed. He has further deposed that the Petitioner has separated him from his children and his grand-children and due to loneliness, he immersed himself in social work and even at the institution where he was carrying out social work, the Petitioner has defamed him causing him mental agony. There is no cross examination on this aspect, not even a suggestion that the case put up by the Respondent regarding the defamation by the Petitioner is false. In view thereof, the testimony of the Respondent to this extent stands uncontroverted.

It is worth noting that the Division Bench then observes in para 14 that:
In the earlier round of litigation, similar allegations were made by the Petitioner, however, the learned Family Court Judge held that the same cannot be construed as an act of cruelty, in the absence of contention by the Respondent-husband, that by virtue of such allegations, he has suffered mental torture. In the present case, we find that it is the specific case of the Respondent that the Petitioner has defamed him in the society by making false and baseless allegations, causing him mental agony, which is proved by the Respondent. On the other hand, the Petitioner has failed to substantiate the allegations made by her in the reply to the counter claim. We, therefore do not find any substance in the contention of the learned Counsel for Petitioner, that on same set of allegations, in earlier round of litigation, the allegations were not held to constitute an act of cruelty and therefore the same allegations in the present case cannot be held to be an act of cruelty. There is a distinction in as much as in the present case, the Respondent has come with a specific case that the Petitioner has defamed him in the society by making false and baseless allegations against him, causing him mental agony.

Quite significantly, the Division Bench then hastens to add in para 16 stating that:
It is settled position in law that cruelty can broadly be defined as a conduct which inflict upon the other party such mental pain and suffering as would make it not possible for that other party to live with the other. While considering the conduct of a party , in the context of cruelty as contemplated under the provisions of Section 13(1)(i-a) of Hindu Marriage Act, 1955, the strata of the society to which the parties belongs is also relevant. In the present case, the Respondent is an ex-army man retired as Major and as stated by the Petitioner in her pleadings, belongs to upper strata of society and has a standing in the society.

Most significantly, the Division Bench then minces no words to state upfront in para 17 holding that:
We find that the Petitioner has repeatedly made allegations assassinating the character of the Respondent, in both the rounds of litigation. The conduct of the Petitioner in continuing to make unwarranted, false and baseless allegations pertaining to the Respondent’ character labelling him as an alcoholic and womaniser has resulted in shredding his reputation in the Society. In such circumstances, and considering the standing of the Respondent in the society, the stand of the Respondent that he could not put up with such conduct of the Petitioner defaming him in the society where he was carrying out social work and that he cannot continue with the matrimonial relationship in the face of such allegations cannot be said to be unjustified. Considering the above, we find that the conduct of Petitioner constitutes cruelty within the meaning of Section 13 (1) (i-a) of Hindu Marriage Act, 1955.

Most remarkably and also most forthrightly, the Division Bench then concedes in para 18 while holding that:
We are mindful of the fact that the Petitioner is entitled to take all defence necessary to oppose the Respondent’s application including the defence that it is the Respondent who is guilty of causing cruelty and cannot take advantage of his own wrong, the caveat being that the Petitioner is able to substantiate the allegations, lest it constitutes an act of cruelty. In the present case, the Petitioner has failed to prove the allegations and looking at the gravity of the allegations, it is fit case for grant of divorce.

Finally, the Division Bench then concludes by holding in para 19 that, Considering the above discussion, we are of the opinion, that no infirmity can be found in the impugned Judgment of the learned Family Court Judge. The Appeal is therefore without merit and is liable to be dismissed. Hence, following order is passed;

ORDER
Appeal is dismissed.

All in all, we thus see that the Bombay High Court has not left any stone unturned to make it pretty clear that labelling a husband as ‘alcoholic’, ‘womaniser’ without any substance is cruelty. It was also made clear by the Court that in this case the petitioner has failed to prove the serious allegations which she levelled against the respondent-husband. So it was but natural that the husband was very rightly granted divorce by the Bombay High Court. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.