The Bombay High Court warns warrying spouses

'Mind language in divorce pleas'

23 Sep 2007, 0231 hrs IST , Swati Deshpande , TNN

MUMBAI: Mind your language-in bed and out of it. This could be the new warning mantra for warring spouses, especially those who knock on the family court's door. The Bombay high court recently directed that language in divorce petitions had to be clean and temperate, and deleted several paras of a husband's explicit rant against his wife's alleged “unnatural sexual demands''.

The man, who cited these demands as an infliction of “mental cruelty'', wanted out on these grounds. His wife maintained that the descriptions in his petition were “scandalous, torturous, indecent and traumatic'' and should be struck off the record. The family court in Mumbai rejected her plea, but the Bombay high court was more understanding.

The high court held that a court of law should not permit a divorce proceeding “to be converted into a source of continued embarrassment and harassment to a party'' and struck off the offensive portions from the written plea. “The judgment will help bring sobriety into nasty courtroom divorce dramas where dirty linen gets washed,'' said a lawyer.

The HC judgment by Justice S C Dharmadhikari has come as a huge relief not just for a 30-something educated Mumbai wife but will benefit hundreds of spouses, especially wives, against whom divorce petitions are increasingly being filed on the sole grounds of mental cruelty.

Mental cruelty is a broad term, and all manner of “allegedly unacceptable or intolerable behaviour'' gets lumped into petitions that seek to paint a picture of matrimonial dysfunction and unhappiness, say divorce lawyers.

Often actions and abusive words are reproduced verbatim even in vernacular languages, say lawyers. This adds to the humiliation of the spouse who is at the receiving end, irrespective of gender.

The case at hand was of a double-income-single-child urban couple which wanted to split. Sheetal (name changed), a young corporate executive with a seven-year-old son from a previous marriage, couldn't believe her eyes when she was served a copy of the divorce petition by her husband, a banking executive in his 30s. In fact, she was unable to read through the entire document. The petition was peppered with her alleged demands for sex and contained detailed bedroom scenes. Demanding that the court expunge the pleadings, her lawyers Sadhana and Ramesh Lalwani said the language of the petition was “very crude and very explicit''. Both spouses were divorcees and had married in November 2004.

The Lalwanis were relying on the civil procedure code, the guiding force behind civil court proceedings. Quoting from it, they said that if court proceedings and pleadings were used to inflict humiliation on a party, or were frivolous and vexatious and would not help in a fair trial, they could be deleted. “No decent woman will be able to stand in a family court and discuss the case if such unsavoury pleadings are allowed to creep into pleadings,'' said Ramesh Lalwani.

Even though the proceedings of the family court are held in-camera and are out of bounds for outsiders including the media, there is still the shame of having to contend with the presence of court staff, opposing lawyers and witnesses, the lawyer pointed out. Besides, such pleadings remain on record in documented form and could prove to be a source of embarrassment and trauma to a child of such couples who may read it later.

Justice Dharmadhikari heard the Lalwanis as well as N V Gangal who defended the husband. Gangal said that deleting the portion in question would be prejudicial to the husband as it contained details of the alleged cruelty that would assist the family court in deciding the controversy.

Justice Dharmadhikari even met the couple in his chamber and asked them to amicably resolve their matrimonial problem as an educated duo. But his advice failed to work and the couple will now fight out their contested divorce case in the family court at Bandra. The judge relied on a Supreme Court ruling in a non-matrimonial dispute case to hold that temperate language was central to fair legal proceedings even in disputes that arise under the Family Courts Act.

The high court, however, did say that the husband was not precluded from making any statement and disclosing necessary particulars in his oral deposition before the family court, and that the wife was at liberty to cross-examine him in such a case. “Ultimately, it is for the family court to decide the evidentiary value of these statements and allegations. Also the family court judge is at liberty to regulate and control the proceedings and based on the objections raised by either parties to disallow any question or permit any question to be answered.''

Justice Dharmadhikari made it clear that in such cases, evidentiary value would be decided by the judge and merely because the divorce petitioner was permitted to depose on the basis of the averments in the petition during the oral deposition, it did not necessarily mean that the court had to treat that as evidence. In view of the seriousness of the cruelty charges, the HC directed the family court to expedite the hearing.

http://timesofindia.indiatimes.com/Bombay_HC_warns_warring_spouses/rssarticleshow/2394123.cms

With Thanks from The Times of India

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