Continued Abuse & Humiliation By “Insensible & Patriarchal” Husband Amounts To Cruelty: Calcutta High Court Upholds Divorce Decree

The Calcutta High Court has upheld a decree of divorce passed by the Trial court, dissolving the marriage between the appellant (husband) and respondent (wife) under Section 13 of the Hindu Marriage Act, 1955 (“HMA”).

Court further upheld the trial court's rejection of custody and dismissed an appeal by the appellant for custody of his son under Section 26 HMA due to non-payment of maintenance.

In upholding the verdict of the trial court and finding the appellant guilty of “cruelty” under the HMA, a division-bench of Justice Soumen Sen and Justice Sidhhartha Roy Chowdhury held:

The petitioner [wife] was physically abused by the opposite party husband. Instead of being supportive, he was instrumental in throttling her aspirations. He failed to accord her with dignity she deserved. The husband withdrew himself from the company of his wife and moved to the upper tier of the duplex. Such conduct is but expression of his intention to make the marriage dead. Sustained course of abusing and humiliating treatment by the husband should be considered as cruelty. There was absolute loss of affection. It would be detrimental for the mental and physical health of the respondent if she is asked to live with the appellant.

Brief Facts of the Case

The present appeal was preferred by the husband against an order of the trial court, which dissolved his marriage to the petitioner/respondent in 2011.

Petitioner contented that they were married in 2005 and she had moved with her husband to Bangalore, only to find out that he was an alcoholic.

Petitioner contended that she had secured a job in Manipal hospital, which was not appreciated by her husband who insisted that she credit her salary to a joint account, though he had never disclosed his income to her.

Petitioner submitted to being physically abused by the appellant since he could not accept her status as a working lady, and was forcefully made to quit her job by him.

Exhausted by the husbands abusive tirades, the petitioner had lodged a complaint with the Bangalore police and decided to return home with her parents.

Appellant/husband convinced her to return with him after promising to not abuse her physically and made her withdraw her police complaint.

In 2006, the petitioner became pregnant and the respondent did not allow her parents to stay with her, leading to her becoming ill, and discovering that her child would be born with cleft lip, requiring surgery upon birth.

In 2007, when the petitioner had secured another job, the husband refused to share the household expenses, and reacted violently to any demands.

Petitioner returned to Kolkata with her child, since the husband refused to shoulder any responsibility when the child became very hill, denying to pay Rs 25,000 for the treatment of his own son.

Husband began staying in the 2^nd floor of their duplex since 2008, and did not shoulder any financial burden for the petitioner or her child.

He continued to threaten her in a drunken state, and in 2009, when he physically abused her again, she was admitted to hospital, and informed the police before returning home to Kolkata.

Petitioner then filed a petition under Section 13(1) of the HMA for divorce on the ground of cruelty, which was contested by the husband by denying all material allegations made against him and tried to depict himself as the victim, albeit without any evidence.

Proceedings before the High Court

Court found that the husband in not cross-examining the wife before the trial court had admitted to her testimony and that her unchallenged testimony would demonstrate the cruel nature of her husband who did not have any respect towards his wife.

Court further noted that since ‘cruelty’ had not been statutorily defined, the Court was given a wide berth to interpret the same depending on the upbringing, education and social strata to which the parties belong, their ways of life temperament and emotion that have been conditioned by their social status.

It was further observed that when the parties were residing together, the husband had withdrawn himself from the company of the wife, and moved to the upper floor of the duplex, while the petitioner and their son stayed on the lower floor, leading to his conduct suggesting that he intended to make the marriage dead.

"Appellant by his conduct has proved himself to be the epitome patriarchi and an utterly insensible person, having no respect for his wife far to speak of love and compassion. He has virtually made his intention clear to trample the promises he made during the marriage. He withdrew himself from the company of his wife and started living separately though in the same house, which can also be considered as his apathy towards his wife and child as well. There was absolute loss of affection. It would be detrimental for the mental and physical health of the respondent if she is asked to live with the appellant."

Court held that the husband had proven himself to be the epitome of patriarchy, who lacked the basic respect for his wife, virtually making his intention clear to trample the promises made during marriage.

It was also held that the appellant had tried to drag the proceedings before both the trial court and High Court, and that even after the Court had taken a lenient view due to his appearance-in-person, “started abusing the process of law” by attempting to withdraw his appeal from the present bench.

Court noted that even after repeated concessions, the appellant refused to make his case, or file written notes of argument in an attempt to protract the litigation.

In dealing with the rejected Section 26 HMA application for custody of the child by the appellant/husband, the Court noted that it had been apprised of the fact that the appellant was not paying the maintenance as he had been directed to do for his son.

It held that, while it was aptly clear that the husband possessed the means to pay the maintenance, he had refused to disclose his income or comply with the court’s order for payment of maintenance.

It was further observed that the appellant had even refused to interact with his son in-person, choosing to do so virtually, after a court order had directed the wife to let the son interact with his father at an advocates chambers.

In denying custody of the son to the appellant, and directing him to clear the arrears of maintenance, the Bench concluded:

Non-payment of maintenance to the minor son and at the same time non-submission of affidavit to substantiate the claim that he has been paying maintenance to his minor son regularly, the appellant has exhibited his apathy towards the child. He cannot be held to be a fit person to have the custody of the child. Taking into consideration the paramount welfare of the child we do not find any reason to interfere with the decision of learned Trial Court.

Citation: 2023 LiveLaw (Cal) 320

Case: Manojit Basu vs. Shyamasree Basu (nee Ghosh)

Case No: FA 208 of 2022

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