Divorce and its grounds
Divorce is the legal termination of a marriage by a court in a legal proceeding, requiring a petition or complaint about divorce by one party. Contested divorce refers to the proceedings filed u/s 13 of the Hindu Marriage Act, 1955 (Act) that provides the grounds for divorce.
As per Section 13(1) of the Act, divorce can be filed on one or more of the following grounds:
- Cruelty;
- Adultery;
- Desertion;
- Venereal disease;
- Conversion of religion;
- Insanity;
- Renunciation; and
- Presumption of death.
Section 13 (2) of the Act, provides exclusively grounds available to the wife, that includes: Rape, Sodomy, or Bestiality; etc.
In the case of Rita v. Balkishan Nijhawan[i]– The High Court stated that \”If either of the parties to a marriage being healthy and having physical capacity refuses to sexual intercourse, the same would amount to cruelty entitling the other to a decree.”
In another case of Sri Kant v. Anuradha[ii]– The Court held, “Failure to comply with one of the essential obligations of marital life by husband by persistent refusal to marital intercourse without any cause amounts to subjecting wife to cruelty.”
Defense for baseless allegations for divorce
There are two kinds of remedies defensive and counterclaims:
Defensive remedies
Under this your remedy is to defend yourself against the false allegations, following are the safeguards:
- Record all the conversations that took place with your spouse including chats, emails, etc. there may be some incidence where your spouse is threatening you to charge with false allegations;
- Very importantly, gather proof demonstrating that there was no demand for dowry;
- Gather information demonstrating that the spouse left matrimonial obligations without any due cause;
- All this evidence will be useful for getting anticipatory bail from the Court.
In Ram Kumar Nanki v. State of Madhya Pradesh[iii]-The Apex Court has acquitted a man convicted who was charged in a dowry death case. The accused’s wife committed suicide by setting herself on fire. In the letter, she mentioned the reason that she is dying because of her husband. The lower courts condemned him to be detained for ten years. However, the Apex Court acquitted him finding the case to be bogus against the husband.
In Rakhi Paul v. Amit Paul, 2020[iv]– The wife made strong allegations in her written statement against her husband and she stated before the Trial Court that her husband and his family members had forced her to undergo an abortion. However, she failed to support her allegations with any documents before the trial Court. The medical documents submitted did not indicate any finding by a medical professional suggesting a forceful abortion. The Apex Court held, “The allegation of forcing her to undergo forcible abortion being a very serious allegation against the husband without corroboration has to be construed to be an act of cruelty. Such unfounded serious allegations made by the appellant wife against the husband amounts to acts of cruelty”.
Counter-claim under the Hindu Marriage Act
Section 23A: Relief for respondent in divorce and other proceedings
“In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner\’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner\’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.”
As mentioned above, you may defend yourself and may also file a counter-claim u/s 23A of the Act. This provision was inserted through the Amendment Act of 1976. It says that the opposite party may oppose the divorce and may also file a counter-claim against the grounds and allegations made by the spouse. If the petitioner’s cruelty or desertion is proved, the court may grant any relief provisioned under the Act to which the respondent is entitled as if he/she has presented a petition seeking such relief on that ground. A petition may be filed before the court to seek relief[v].
The Supreme Court bench comprising of Justices L Nageswara Rao and Aniruddha Bose[vi] dismissed the plea of a wife who had made allegations against her husband. In the instant matter, the couple got married in 2012 and soon after marriage, the husband moved to the court for seeking nullity of their marriage on the ground that it could not be consummated due to the wife’s impotency. The Court stated that making such baseless allegations against a spouse amounts to cruelty and divorce can be granted on that ground.
Counter-claim: Under Criminal Laws
You can file counter cases against your spouse under the following provisions:
- A criminal case can be filed under Section 120B of the IPC if the husband finds that his wife is criminally conspiring against him and his family members.
- If false information is given to the police by your wife then you may precede u/s 182 of the IPC. The police officer will write a complaint and will forward it to the concerned officer and criminal proceedings shall start.
- A case can be brought under Section 191 of the IPC against the wife if she is bringing false evidence on record of the court.
- Section 197 of IPC, 1860: Issuing or signing a false certificate Perjury is a crime; one can\’t sign a false certificate and claim it to be valid. Consequently, if somebody suffers due to some wrong certificate, he can prove himself innocent after showing adequate evidence.
- Where a case is already pending against you in the court you may initiate criminal proceedings under Section 211 of the IPC that deals with ‘false charges made with intent to injure’. An application under Section 340 CrPC is to be filed before the court where the trial is going.
- Section 471 of IPC, 1860: Whoever falsely or unscrupulously utilizes as genuine any [document or electronic record] which he knows or has a reason to accept to be a forged [document or electronic record], will be punished similarly as though he had manufactured such [document or electronic record].
- File a countersuit under Section 500 of the IPC i.e. for defamation; you can file a suit claiming that your wife is trying to malign your and your family’s reputation by putting false accusations.
- A counterclaim under Section 506 of the IPC for criminal intimidation can be filed if a wife threatens her husband or his family members.
In the case of Manisha Sandeep Gade v. Sandeep Vinayak Gade[vii]– The High Court of Bombay considered the question as to whether the unsubstantiated allegation of adultery against the husband by the wife would amount to mental cruelty and held that it would amount to mental cruelty[viii].
Conclusion
The false allegations against men for seeking a divorce have been increasing each day, and it\’s a significant issue as it disregards basic fundamental liberties. We cannot deny the fact that women have been misusing the law for harassing their husbands and to satisfy their unlawful demands against their spouses. Time and again in various judgments the courts have mentioned that there is a need for an amendment to laws protecting Indian men. The Delhi Court[ix] stated that “It is time now to have laws to protect and restore the dignity of men charged with false rape cases as everyone is just fighting to protect the honor of women”.
[i] AIR 1973 Del. 200
[ii] AIR 1984 Kar. 8
[iii] [Criminal Appeal No.814 of 2020]
[iv] https://indiankanoon.org/doc/157917007/
[v] https://divorcelawyersinchandigarh.com/counter-claim-in-divorce-under-the-hindu-marriage-act-1955/
[vi]https://timesofindia.indiatimes.com/india/false-impotency-allegation-ground-for-divorce-sc/articleshow/85055527.cms
[vii] AIR 2005 Bom 180
[viii] https://lexspeak.in/2020/07/you-will-surely-get-divorce-if-you-have-this-thing-in-divorce-case
[ix] https://www.firstpost.com/india/time-to-have-laws-protecting-dignity-of-men-charged-with-false-rape-cases-delhi-court-2637154.html