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Abortion Without Husbandís Consent Ground for Divorce, Indian Supreme Court Rules

by Gopalan on  November 9, 2008 at 10:51 AM Medico Legal News   - G J E 4
 Abortion Without Husbandís Consent Ground for Divorce, Indian Supreme Court Rules
The Supreme Court of India has ruled that abortion by a woman without her husband's knowledge and consent will amount to mental cruelty and hence sufficient ground for divorce.
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It was upholding the plea of Sudhir Kapur that he was entitled to seek divorce under the Hindu Marriages Act, as his wife Suman Kapur had undergone three abortions without his consent.

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Sudhir claimed that his wife resorted to the abortions as she was more interested in pursuing her career in the US rather than bringing up a family.

He further claimed that Suman constantly insulted his parents and other family members.

A matrimonial court granted divorce to Sudhir on the basis that the charges had been established. The woman moved the Delhi High Court which confirmed the findings of the matrimonial court, following which Suman filed an appeal.

The apex court after perusing the records and citing a number of judicial rulings said that the actions of Suman amounted to mental cruelty and her husband was entitled to a decree of divorce.

†"Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time may lead to mental cruelty. A sustained course of abusive and humiliating treatment calculated to torture, discommode or render life miserable for the spouse," said a Bench consisting of Justices C.K. Thakker and D.K. Jain.

Writing the judgment, Justice Thakker said: "The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness, causing injury to mental health or deriving sadistic pleasure, can also amount to mental cruelty."

The conduct must be much more than jealousy, selfishness, possessiveness, which caused unhappiness and dissatisfaction and emotional upset but might not be a reason for grant of divorce on the ground of mental cruelty.

The Bench said: "To establish legal cruelty, it is not necessary that physical violence should be used. Continuous cessation of marital intercourse or total indifference on the part of the husband towards marital obligations would lead to legal cruelty. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs the act complained of could otherwise be regarded as cruelty. Mens rea (criminal intent) is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill treatment."

The court said: "Mere coldness or lack of affection cannot amount to cruelty; frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable."

The judges fully concurred with the findings of the lower courts that three abortions without the knowledge and consent of the husband was a valid ground for divorce.

However, since Sudhir married another woman during the pendency of the appeal, the apex court directed him to pay a compensation of Rs 5 lakh to Suman.



Source: Medindia
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