Sunday 30 January 2022

Should the court grant the husband a divorce if the wife refuses to treat her mental illness?

 The testimony of PW4 Doctor is to the effect that, the

appellant was suffering from impulse control disorder which means,

not able to control anger, and exhibiting anger in an excessive

manner, which may adversely affect marital life. The persons

suffering from impulse control disorder may be assaultive in nature

and may throw things or may exhibit homicidal or suicidal tendency

as stated by the doctor. The doctor further stated that there is no

complete cure for this illness, but it could be controlled under

proper medication. Even according to the appellant, after

12.11.2007, she had not continued the treatment. The allegations

of arrogance, and abusive and assaultive nature of the appellant,

spoken to by her husband and children, get corroboration from

Ext.A1 medical report, and the testimony of PW4 Doctor. {Para 18}

19. One may suffer mental stress or strain due to very many

reasons. But, not taking treatment for the same in order to bring

out a peaceful and harmonious family atmosphere, also may have to be counted as cruelty to the persons at the receiving end. The appellant has no case that, she had any difficulty to continue the treatment, but according to her, she had no psychiatric problem and so she discontinued the treatment. The doctor gave testimony to the effect that, the impulse control disorder, will definitely affect a normal family life. If proper treatment is given, it can be brought under control.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No.1119 of 2015

MARY MARGRET  Vs JOS P THOMAS

PRESENT

 MR. JUSTICE A.MUHAMED MUSTAQUE

&

 MRS. JUSTICE SOPHY THOMAS

Dated this the 21st day of January, 2022

Sophy Thomas, J.

“I take you to be my wife/husband, to have

and to hold, from this day forward, for better,

for worse, for richer, for poorer, in sickness

and in health, to love and to cherish, till

death us do part, according to God's Holy law,

in the presence of God, I make this vow.”

In a Christian marriage which is a holy sacrament, the couple

enters into a matrimonial covenant by taking this beautiful and

meaningful wedding vow, on the fervent hope that it is a

partnership of love and life for the whole of their life till death

separates them. But, sometimes their beautiful dreams, hopes and

aspirations stumble in bitter realities of life, and incompatibilities

compel them to part their ways, even when the wedding vow taken

by them in the name of God, stares at them.


2. Here is a case where the appellant and respondent, a

Christian couple, got married as per the Christian rites and

ceremonies taking the wedding vow on 23.10.1988. Both of them

are well educated and they hail from respectable and educated

families. In their wedlock, two girl children were born. The husband,

who is an Engineer cum Yoga Trainer filed O.P.No.1339 of 2009,

before the Family Court, Ernakulam to dissolve their marriage under

Section 10 of the Divorce Act, alleging cruelties, both mental and

physical, and desertion, from the part of the wife, who is a Post

Graduate.

3. The husband was alleging that, from the very inception of

marriage, the wife was showing behavioural disorders. She was

intolerable even on minor domestic problems and she was abusive

and assaultive in nature. She did not give proper attention to the

children. She often threatened the husband that she would slice his

throat and even strangulated him during sleep. Whenever he did

not accede to her demand for unnatural sex, she threatened to slice

away his penis. She often threatened him with suicide, and once

she jumped out of a running car. She went out of the house during

night hours without informing the husband, and there was occasion

to bring her from street during midnight. Though she was taken to


various psychologists and psychiatrists, she was not co-operating

with the treatment. In July 2005, she returned to her paternal

house and thereafter, she never came back to live with her husband

and children. The two girl children were taken care of by the

husband and his mother. She was not bothered about the girl

children, who were school going children, when she left her

matrimonial home. When the husband was admitted in hospital due

to heart attack, she did not care, even to visit him in hospital. She

was extending her cruelties to the age old mother-in-law also. As it

was impossible for the husband to continue his marital relationship

with her, due to her cruel nature and attitude and also because of

desertion, he filed the above O.P for dissolution of his marriage.

4. The wife was contending that the grounds alleged by the

husband for divorce were absolutely false, and in fact, she was illtreated

by the husband and his mother. She was married while she

was doing her post graduation, and she was not even provided food

or clothing by the husband. Whenever the torture became

unbearable, she went back to her paternal house. But the husband

and his mother were attempting to depict her as a mental patient.

She was ready to attend counselling and to undergo treatment to

save her family life. The husband was not ready to do anything to


make his wife happy, and in fact, he was treating her as a slave.

The bitter experiences in life, put her under great mental stress and

strain. The husband also was advised for treatment, but he was not

willing. She was never abusive and she never assaulted him. The

threat of homicide and suicide are only false allegations. She was

willing to lead a normal family life with the husband, but to prevent

her from entering his house, his mother filed an injunction suit.

According to her, there is no ground to dissolve their marriage, and

still she is intending to live with her husband and children.

5. The Family Court formulated necessary issues and the

parties were permitted to adduce evidence. PWs 1 to 4 were

examined and Exts.A1 to A3 were marked from the side of the

petitioner-husband. RW1 was examined and Exts.B1 and B2 were

marked from the side of the respondent-wife. On analysing the

facts and evidence, the Family Court found that the petitionerhusband

could establish the grounds of cruelty and desertion

against the respondent-wife, and so, the O.P was decreed vide

judgment dated 20.08.2015, dissolving their marriage.

6. Challenging the said judgment and decree, the wife has

come up in this appeal alleging that, by the impugned judgment,

the husband was given an incentive for his own cruelty and

desertion. According to her, the husband manipulated and

fabricated false evidence of impulse control disorder for the wife,

and influenced and tutored the children to give testimony against

their mother. The Family Court ought to have found that she had

never intended to terminate her matrimonial life with the husband.

In fact, she was prevented from entering her matrimonial home, by

an injunction suit filed by the mother-in-law.

7. Now let us have a re-appraisal of the entire facts and

evidence, in the light of the grounds urged by the appellant to assail

the impugned judgment and decree.

8. The wife and husband shall be referred as the appellant

and respondent respectively, hereinafter.

9. The respondent was granted a decree of divorce on the

ground of cruelty and desertion. Let us discuss these grounds one

by one.

10. In matrimonial life, cruelty can be defined in many ways.

It has many perspectives which depend upon the socio- economic

status and circumstances of parties to the marriage. It varies from

person to person. It also varies with time, place, economic status

and other circumstances. Cruelty can be physical and mental.

Physical cruelty provides more of a direct evidence, that it can be


perceptible when compared to mental cruelty. Mental cruelty can

be drawn from the facts and circumstances of the case, whereas

physical cruelty can be drawn from the conduct of one spouse

towards other spouse which endangers the other spouse's physical

health. It is true that, mere trivial irritations, quarrels, normal wear

and tear of the married life which happens in day-to-day life would

not be adequate for grant of divorce on the ground of mental

cruelty. The married life should be reviewed as a whole, and a few

isolated instances over a period of years will not amount to cruelty.

11. The Apex Court in Samar Ghosh vs. Jaya Ghosh

((2007) 4 SCC 511) elaborately discussed the nature and scope of

mental cruelty as a ground of divorce. It was held therein, in

paragraph 101, as follows:

“101. No uniform standard can ever be laid down for

guidance, yet we deem it appropriate to enumerate some

instances of human behaviour which may be relevant in

dealing with the cases of 'mental cruelty'. The instances

indicated in the succeeding paragraphs are only illustrative

and not exhaustive.

(i) On consideration of complete matrimonial life of

the parties, acute mental pain, agony and suffering as

would not make possible for the parties to live with each

other could come within the broad parameters of mental

cruelty.

(ii) On comprehensive appraisal of the entire

matrimonial life of the parties, it becomes abundantly

clear that situation is such that the wronged party

cannot reasonably be asked to put up with such conduct

and continue to live with other party.

(iii) 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.

(iv) Mental cruelty is a state of mind. The feeling of

deep anguish, disappointment, frustration in one spouse

caused by the conduct of other for a long time may lead

to mental cruelty.

(v) A sustained course of abusive and humiliating

treatment calculated to torture, discommode or render

miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour

of one spouse actually affecting physical and mental

health of the other spouse. The treatment complained of

and the resultant danger or apprehension must be very

grave, substantial and weighty.

(vii) 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.

(viii) The conduct must be much more than

jealousy, selfishness, possessiveness, which causes

unhappiness and dissatisfaction and emotional upset

may not be a ground for grant of divorce on the ground

of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear

and tear of the married life which happens in day to day

life would not be adequate for grant of divorce on the

ground of mental cruelty.

(x) The married life should be reviewed as a whole

and a few isolated instances over a period of years will

not amount to cruelty. The ill conduct must be persistent

for a fairly lengthy period, where the relationship has

deteriorated to an extent that because of the acts and

behaviour of a spouse, the wronged party finds it

extremely difficult to live with the other party any longer,

may amount to mental cruelty.

(xi) If a husband submits himself for an operation

of sterilization without medical reasons and without the

consent or knowledge of his wife and similarly if the wife

undergoes vasectomy or abortion without medical reason

or without the consent or knowledge of her husband,

such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have

intercourse for considerable period without there being

any physical incapacity or valid reason may amount to

mental cruelty.

(xiii) Unilateral decision of either husband or wife

after marriage not to have child from the marriage may

amount to cruelty.

(xiv) Where there has been a long period of

continuous separation, it may fairly be concluded that

the matrimonial bond is beyond repair. The marriage

becomes a fiction though supported by a legal tie. By

refusing to sever that tie, the law in such cases, does not

serve the sanctity of marriage; on the contrary, it shows

scant regard for the feelings and emotions of the parties.

In such like situations, it may lead to mental cruelty.

12. In the case in hand, the respondent is alleging physical as

well as mental cruelty from the part of wife. He was alleging that

the appellant used to get irritated over minor domestic issues, and

on one such occasion, since he could not heed to her request for

purchasing a nighty from a shop, she bit off a portion of his

shoulder muscle, and the bite mark is still there on his shoulder.

His mother had to call the Police to manage that situation. The

appellant also is admitting the bite mark on the shoulder muscle of

the husband, but, according to her, the elder child bit on his

shoulder leaving the bite mark. PW2, the elder child of the

respondent, gave testimony denying the allegation made by her

mother.

13. The respondent deposed before the Family Court that, the

appellant had threatened to slice his throat during sleep, and she

even threatened to slice his penis whenever he refused her demand

for unnatural sex. She was treating the children also in a cruel

manner, and she abused and assaulted them for silly things. She

strangulated him many a times during sleep. She often threatened

him with suicide and once she tried to jump out of a moving car.

14. The allegations of abusive and assaultive nature of the

appellant is fully supported by her own daughters, PWs 2 and 3.

Both of them gave testimony to the effect that the appellant-mother

always abused and insulted them and she was always fighting with

their father. She went back to her paternal house leaving them at

the mercy of their father and grandmother, while they were school

going children. They informed the appellant when they became

biologically mature, but she did not care to come, even to see

them. They have heard their mother threatening to kill their father

or to kill herself. Both the children were categoric in their

statement that, violence was always initiated by the mother, and

she verbally and physically abused their father. She used to throw

everything at her reach, and they were victims of the violent

behaviour of their mother.

15. The respondent has got a case that, the appellant was

having some behavioural problems and she was taken to various

psychologists and psychiatrists for treatment. RW1, the wife,

admitted before court that she had taken treatment from

psychiatrists. But, according to her, she had no mental problem but

only mental stress and strain, due to the matrimonial cruelties she

was subjected to, by her husband and mother-in-law.

16. The appellant admitted that she had gone to PW4

Dr.Rajiv, a Psychiatrist attached to PVS hospital for treatment. She

is admitting that she was taken to Renewal Centre, Kaloor where

she had consulted Dr.Sr.Pious who was also a Psychiatrist. She is

admitting that the treatment by Dr.Rajiv could not be completed,

because the respondent did not co-operate. Thereafter, no

treatment was taken by her, and according to her, she did not go for

further treatment as she had no psychiatric problems. She would

say that, due to family problems, she was having some tension, and

the medicines she had taken, were only for reducing her tension.

17. PW4 is Dr.Rajiv, a Psychiatrist who was working in PVS

hospital. Ext.A1 treatment records of the appellant for the period

19.06.2007 to 12.11.2007 was proved through him. In Ext.A1, it is

clearly mentioned that, earlier she had been under the treatment of

Dr.Venugopal. She was brought to the doctor with the history of

“always fights over trivial matter, loss of temper and throw things”.

There was history of family discord and separation from family for

past two years. The doctor prescribed medicines for her and there

was regular review till 12.11.2007, as seen from Ext.A1. That

document further shows that she was accompanied by her motherin-

law on 12.09.2007.

18. The testimony of PW4 Doctor is to the effect that, the

appellant was suffering from impulse control disorder which means,

not able to control anger, and exhibiting anger in an excessive

manner, which may adversely affect marital life. The persons

suffering from impulse control disorder may be assaultive in nature

and may throw things or may exhibit homicidal or suicidal tendency

as stated by the doctor. The doctor further stated that there is no

complete cure for this illness, but it could be controlled under

proper medication. Even according to the appellant, after

12.11.2007, she had not continued the treatment. The allegations

of arrogance, and abusive and assaultive nature of the appellant,

spoken to by her husband and children, get corroboration from

Ext.A1 medical report, and the testimony of PW4 Doctor.

19. One may suffer mental stress or strain due to very many

reasons. But, not taking treatment for the same in order to bring

out a peaceful and harmonious family atmosphere, also may have

to be counted as cruelty to the persons at the receiving end. The

appellant has no case that, she had any difficulty to continue the

treatment, but according to her, she had no psychiatric problem and

so she discontinued the treatment. The doctor gave testimony to

the effect that, the impulse control disorder, will definitely affect a

normal family life. If proper treatment is given, it can be brought

under control.

20. During re-examination of PW4 Doctor, learned counsel for

the appellant suggested that, persons suffering from

hyperthyroidism may also exhibit symptoms of similar nature, and

the doctor answered it in the affirmative. But, the appellant did not

have a case in her objection that she was suffering from

hyperthyroidism, and no scrap of paper has been produced by her,

to substantiate that allegation. According to her, mental stress and

strain was caused due to family problems and she had taken

treatment to reduce tension. But, her own testimony, coupled with

the testimony of PW1 and Ext.A1 document, will show that she was

having some behavioural disorders which created troubles in her

family life and she was not continuing her treatment, so as to lead a

normal family life with her husband and children.

21. The appellant herself admitted before court that the

husband was taking her to college while she was doing postgraduation, and she was taken for foreign trips and she was also

gifted with gold ornaments, and even then she was alleging that

she was treated like a slave. Learned counsel for the respondent

would contend that, making bald allegations against the husband,

also will amount to cruelty.

22. PWs 2 and 3, the daughters of the appellant, are of the

view that, if the appellant is permitted to continue her matrimonial

life with the respondent, they will lose their father. PW3, the

younger daughter, was definite in her statement that, it is better to

be the children of divorced parents, rather than children of parents

who murdered the father. The mother went back to her paternal

house in the year 2005, while they were school going children, and

she did not come back, even when their father was hospitalised due

to heart attack.

23. In Sobha Rani vs. Madhukar Reddi ((1988) 1 SCC

105), the Apex Court examined the concept of cruelty and held that

the word 'cruelty' has not been defined in the Hindu Marriage Act.

It has been used in Section 13(1)(i)(a) of the Act in the context of

human conduct or behaviour in relation to or in respect of

matrimonial duties or obligations. It is a course of conduct of one

which is adversely affecting the other. The cruelty may be mental or

physical, intentional or unintentional. If it is physical, it is a question

of fact and degree. If it is mental, the enquiry must begin as to the

nature of the cruel treatment and then as to the impact of such

treatment on the mind of the spouse. Whether it caused

reasonable apprehension that it would be harmful or injurious to

live with the other, ultimately, is a matter of inference to be drawn

by taking into account the nature of the conduct and its effect on

the complaining spouse.

24. In Narayan Ganesh Dastane vs. Sucheta Narayan

Dastane ((1975) 2 SCC 326), the Apex Court observed that, the

enquiry therefore has to be whether the conduct charged as cruelty

is of such a character as to cause in the mind of the petitioner a

reasonable apprehension that it will be harmful or injurious for him

to live with the respondent.

25. In V.Bhagat vs. D.Bhagat (Mrs) ((1994) 1 SCC 337), it

is observed that “Mental cruelty in S. 13(1)(ia) can broadly be

defined as that conduct which inflicts upon the other party such

mental pain and suffering as would make it not possible for that

party to live with the other. In other words, mental cruelty must be

of such a nature that the parties cannot reasonably be expected to

live together. The situation must be such that the wronged party

cannot reasonably be asked to put up with such conduct and

continue to live with the other party. It is not necessary to prove

that, the mental cruelty is such, as to cause injury to the health of

the petitioner. While arriving at such conclusion, regard must be

had to the social status, educational level of the parties, the society

they move in, the possibility or otherwise of the parties ever living

together in case they are already living apart and all other relevant

facts and circumstances which it is neither possible nor desirable to

set out exhaustively. What is cruelty in one case may not amount to

cruelty in another case. It is a matter to be determined in each case

having regard to the facts and circumstances of that case. If it is a

case of accusations and allegations, regard must also be had to the

context in which they were made”.

26. In Samar Ghosh's case (supra), the Apex Court observed

that “the concept of mental cruelty cannot remain static; it is bound

to change with the passage of time, impact of modern culture

through print and electronic media and value system etc. etc. What

may be mental cruelty now may not remain a mental cruelty after a

passage of time or vice versa. There can never be any strait jacket

formula or fixed parameters for determining mental cruelty in

matrimonial matters. The prudent and appropriate way to

adjudicate the case would be to evaluate it on its peculiar facts and

circumstances while taking aforementioned factors in

consideration”. There cannot be any comprehensive definition of

the concept of 'mental cruelty' within which all kinds of cases of

mental cruelty can be covered. The cruelty, whether it be mental or

physical, is a question of fact depending on the evidence in each

case. No uniform standard can be laid down to determine whether

an act would amount to cruelty or not. An act which is tolerable to

one may be intolerable to another.

27. This Court, in A:husband vs. B: Wife (2010 (4) KLT 434)

held that the 'nature of cruelty which would entitle a spouse in

matrimony for divorce must certainly be identical in all religions.

Law cannot recognise different varieties of cruelty as Hindu cruelty,

Muslim cruelty, Christian cruelty or secular cruelty to justify a

decree for divorce. The mere fact that Hindu Marriage Act and the

Special Marriage Act refer to cruelty without any rider or

explanation or the fact that the Divorce Act and the Dissolution of

Muslim Marriage Act give indication of the nature of matrimonial

cruelty that ought to be established, cannot justify the conclusion

that the nature of matrimonial cruelty which would entitle the

spouses for divorce is different under different personal laws. It

would be absolutely safe to draw inspiration from Art.44 of the

Constitution also to jump to the conclusion that nature of cruelty

justifying a decree for divorce cannot be different under different

personal laws. To our mind, it appears that matrimonial cruelty

must have a uniform definition or conceptualisation to justify the

founding of a decree for divorce. Under S.10(1)(x), the cruelty must

be such as to cause reasonable apprehension in the mind of the

petitioner, spouse that it would be harmful or injurious for the

petitioner to live with the respondent. The expression harmful or

injurious cannot be limited to physical harm or injury. Anything that

would hinder the ability of the spouse to blossom into his/ her

fullness and to enjoy life in matrimony must be held to fall within

the sweep of S.10(1)(x) of the Divorce Act. Cruelty which is not

defined in S.13(1)(1a) of the Hindu Marriage Act and S.27(1) of the

Special Marriage Act and cruelty which is explained in S.2(viii) of

the Dissolution of Muslim Marriage Act and S.10(1)(x) of the

Divorce Act must all take inspiration from such understanding of

matrimonial cruelty. We discard the theory that the concept of

matrimonial cruelty to entitle a spouse for divorce can be dissimilar

and different for persons belonging to different religious faiths

merely because different words are used in the relevant personal

law statutes'.

28. In the case in hand, the husband is seeking divorce on

the ground of matrimonial cruelty envisaged under Section 10(1)

(x) of the Divorce Act, 1869. From the available facts and

evidence, he has amply proved that the appellant has treated him

with such cruelty as to cause reasonable apprehension in his mind

that it would be harmful or injurious to him to live with the

appellant. His children also are so anxious to save the life of their

father and according to them, if the appellant and respondent are

again put together, they will lose their father. The facts and

evidence on board are sufficient to show that the nature and

behaviour of the appellant towards the respondent was sufficient

enough to cause reasonable apprehension in his mind that

continuance of matrimonial life with the appellant was harmful and

injurious to his life.

29. Regarding the desertion alleged by the husband, the

appellant herself admitted before court that, in July 2005, she went

back to her paternal house. She has no case that before her

mother-in-law filed injunction suit against her, she preferred any

complaints or petitions before any authority seeking restitution of

conjugal rights or even for getting custody of her minor girl

children. She has no case that, when she left her matrimonial

home, she was prevented from taking her children with her. So,

obviously, she left her matrimonial home even without caring her

little girl children. PWs 2 and 3, the children would say that, even

when she was informed about their biological maturity, she did not

care to see them. In the year 2005, the respondent was

hospitalised due to heart attack and then also, the appellant did not

turn up. Though the appellant contended that, during the period

2005-2009 occasionally she reached her matrimonial home and

stayed with her husband and children, no evidence is forthcoming

to support that fact.

30. PWs 1 to 3 contended that in the year 2009, when the

appellant and her parents tried to make a forcible entry in the

house of her mother-in-law, the mother-in-law filed a civil suit and

obtained injunction. It is true that the injunction was later vacated

and subsequently the mother-in-law not pressed that suit. Only

after the civil suit, the appellant filed Ext.A2 complaint under the

Domestic Violence Act for getting residence order in the shared

household. In Ext.A1 medical report also, the doctor has noted that

when he examined the patient on 19.06.2007, the appellant was

living separated from her family, for the past two years. So, that

also corroborates the testimony of PWs 1 to 3 that she deserted her

husband and children in the year 2005. There is nothing to show

that after 2005, the appellant and respondent lived together as

husband and wife, except the fact that she lodged Ext.A2 complaint

in the year 2009 for a residence order. If she was forcibly sent

away from her matrimonial home, and if she wanted to stay with

her husband and children, she need not have waited for four years

to file a complaint. Admittedly, she did not file any petition for

restitution of conjugal rights or even to get custody of her children.

If her case that she was ill-treated by her husband and mother-inlaw,

and so she often went back to her paternal home is true,

definitely, she should have examined her parents or family

members, who had first hand information about their family life.

But no witnesses were examined by the appellant to substantiate

her contentions. All these facts lead to the irresistible conclusion

that the appellant went back to her paternal house on her own, in

the year 2005 and thereafter she never turned up to live with her

husband and children.

31. As observed by the Apex Court in Samar Ghosh's case

(supra), where there has been a long period of continuous

separation, it may fairly be concluded that the matrimonial bond is

beyond repair. The marriage becomes a fiction though supported

by a legal tie. By refusing to sever that tie, the law in such cases,

does not serve the sanctity of marriage; on the contrary, it shows

scant regard for the feelings and emotions of the parties.

32. On an overall consideration of the factual aspects and

evidence would prove that the appellant was treating her husband

with cruelty both physical and mental, and in the year 2005, she

deserted him.

33. There is no merit in preserving intact a marriage, when

the marital tie becomes injurious to the parties. When there is no

rose, and only thorns left, and there is no scope for the plant to

sprout again, there is no meaning in watering the same, knowing

that it is dead for ever.

34. For the last more than 16 years, the parties are living

separate and their marriage is to be treated as a deadwood where

we could not see any signs of life. Even during the appellate stage,

we tried for a reconciliation. But we could not succeed.

35. We are of the firm view that the appellant could not

succeed in assailing the impugned judgment and decree on the

grounds alleged by her. Whereas the respondent could prove that

the appellant treated him with cruelty causing reasonable

apprehension of harm and injury in his mind, and she deserted him in the year 2005.

In the result, this appeal fails and hence dismissed, confirming

the impugned judgment and decree. The parties shall suffer their

respective costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

SOPHY THOMAS

JUDGE


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