Rajasthan High Court
Smt. Pramila Bhatia vs Vijay Kumar Bhatia on 19 May, 2000
Equivalent citations: I (2001) DMC 251, 2000 (3) WLC 496, 2000 (3) WLN 330
Bench: A Singh
ORDER Singh, J.
(1). Heard the learned counsel for the parties.
(2). On a petition filed by the respondent u/S. 13 of the Hindu Marriage Act, 1955, the District & Sessions Judge, Sri Ganganagar, granted the decree for divorce. Feeling aggrieved, the appellant-non-petitioner, has filed this appeal.
(3). According to the averment made in the petition, the marriage between the parties was celebrated on 15.12.1985 according to Hindu rites at Sri Ganganagar. After marriage, the appellant gave birth to a daughter Shobhna who was about 7 years of age on the date of the filing of the petition. The respondent in his petition, prayed for the decree for divorce u/S. 13 of the Hindu Marriage Act on the ground of cruelty. It was alleged in the petition that the respondent’s mother was the owner of house No. 5A/38 situated at Jawahar Nagar and the appellant asked the respondent’s mother to transfer the house to her and threatened that if the house was not transferred to her, a report would be lodged at the Police Station, Sri Ganganagar alleging cruelty and dowry. The house was constructed by the respondent’s mother by spending her hard earned money. On 18.7.86, the respondent went to Jaipur in order to obtain training. He returned from Jaipur on 7.1.1987. On his return, he came to know that in his absence the appellant-non-petitioner, with the help of her father Bhoor Singh and some others, forcibly entered into house no. 5A/38 situated at Jawaharnagar in which the respondent’s parents were residing and after giving beating to the respondent’s parents and terrifying them turned them out of the house and unlawfully occupied the house. This incident occurred some time in January 1987 before the respondent returned from Jaipur. As a consequence of the above incident, the respondent’s parents suffered physical and mental pain and they started residing in a quarter constructed in the hospital where respondent’s mother was serving. After returning from Jaipur, respondent contacted the appellant-non-petitioner. She made a false statement before him to the effect that his parents had gone away to the quarter situated in hospital campus after giving the beating to her parents. On the same day, the respondent with some well-wishers went to the house of his mother and found that the appellant-non- petitioner’s father Bhoor Singh and his helpers were there. They misbehaved with the respondent, assaulted him and turned him out of the house. The appellant-non-petitioner was present at that time but she did not make any protest against the conduct of his father. It was also alleged in the petition filed by the respondent that on G.2.87, the appellant-non-petitioner filed a petition u/S. 125 of the Criminal Procedure Code in the court of Chief Judicial Magistrate, Sri Ganganagar. That petition was dismissed by the Chief Judicial Magistrate, Sri Ganganagar by order dated 23.12.89. A revision petition was filed in the court of Additional District Judge N. 2 and the revision petition was dismissed by the Additional District Judge No, 2 by order dated 10.10.91. It was alleged by the respondent that in the application the appellant-non-petitioner, with a view to bring bad name to the appellant and his parents made a false allegation to the effect that the petitioner and his parents used to harass with the object of forcing her to bring money from her parents and it was also false alleged by her that she had brought a sum of Rs. 20, 000/- from her father and that a further sum of Rs. 50, 000/- was demanded from her. These allegations, according to the averments made in the petition filed by the respondent were false. It was also alleged in the petition that the appellant- non-petitioner filed a civil suit no. 77/87 in the court of the Munsif, Sri Ganganagar. The suit was decreed on 6.2.1901 and an appeal was filed in the court of Additional District Judge No. 1, Sri Ganganagar against the decree passed by the Munsif, Sri Ganganagar. In appeal, the Additional District Judge No.1, Sri Ganganagar, set aside the decree passed by the Munsif ant! allowed the appeal by judgment and decree dated 20.5.1994. When the respondent’s mother Kamla Devi filed a suit for recovering the possession of the house no. 5A/38 belonging to her, an objection as to the deficiency of the court fee was raised by the appellant-non-petitioner and, therefore, a court fee of Rs. 3945/- was paid. The suit was ultimately decreed on 5.8.93 and an appeal against that decree is pending before the High Court. The case set up by the respondent in his petition u/S. 13 of the Hindu Marriage Act was that the appellant-non-petitioner, is guilty of committing cruelly and that he is entitled to a decree for divorce on the ground of cruelty.
(4). In reply, it was admitted by the appellant-non-petitioner that her marriage had taken place on 15.12.1985 according to Hindu riles. She denied the allegation that she asked the respondent’s mother to transfer the house no. 5A/38 situated in Jawaharnagar to her and gave any threat to her for the purpose of obtaining the house. In her reply, the appellant-non-petitioner alleged that in her marriage, her parents gave dowry beyond their means and that after that she was harassed. With a view to bring money from her parents and when she refused to comply with the demand, she was beaten. It was also alleged that on two occasions, her father give Rs. 10, 000/- on each occasion and these amounts were forcibly taken away by her mother-in-law and further demand of Rs. 50, 000/- was made and when she could not comply with this demand, she was subjected to harassment. In her reply, the appellant-non-petitioner further pleaded that her mother-in-law voluntarily left the house and went to live in the quarter situated in the hospital campus and this was done with a view to make false allegations against her. In short, the allegation of cruelly as alleged in the petition by the respondent was denied.
(5). A rejoinder was filed in which all the allegations made by the appellant-non-petitioner were denied by the respondent.
(6). The learned District and Sessions Judge framed three issues. The first issue was whether the non-petitioner was guilty of cruelty as alleged in para no. 3 to 10 of the petition and the petitioner was entitled to obtain a decree for divorce on the ground of cruelty. The second issue was regarding the question whether the marriage between the parties has irretrievably broken, if so, to what effect. The third issue was regarding relief.
(7). The respondent Vijay Kumar Bhatia (A.W.I) was examined himself and produced her mother Smt. Kamala (A. W.2) in support of the allegations made by him. The appellant-non-petitioner Smt. Pramila (N.A.W.1) examined herself and produced her father Bhoor Singh (N.A.W.2) in support of the case set up by her in the written statement. The certified copies of the statement recorded in earlier proceedings and the certified copies of some other documents were also produced by the parties.
(8). The learned District and Sessions Judge, after considering the evidence of both the parties, decided issues no. 1 and 2 in favour of the respondent-petitioner and granted decree for divorce u/S. 13 of the Hindu Marriage Act, 1955 on the ground of cruelty.
(9). The learned counsel for the appellant has submitted that the learned District & Sessions Judge has not appreciated the evidence of the parties in the proper perspective and has committed grave error by deciding issues no. 1 and 2 together because they deal with different questions. Regarding the allegation of cruelly made by the respondent in his petition as well as in his statement, the learned counsel for the appellant has submitted that the allegations of cruelty are completely false and there is absolutely no ground for grant of divorce under Section 13 of the Hindu Marriage Act. He has prayed that the appeal be allowed and thej udgment and decree of divorce granted by the District & Sessions Judge be set aside. On the other hand, the learned counsel for the respondent has submitted that the allegations of cruelty, have been proved by oral as well as documentary evidence produced by the respondent-petitioner and the learned District Judge has committed no error in coming to the conclusion that the issues no. 1 and 2 should be decided in favour of the respondent. He has, Therefore, prayed for dismissal of this appeal.
(10). The expression ‘cruelly’ has not been defined in the Hindu Marriage Act. In Smt. Meera vs. Vijay Shankar Talchidia (1), Hon’ble the Chief Justice observed:
“Cruelty is a ground for divorce u/S. 13(1)(ia) of the Hindu Marriage Act. Whether particular conduct amounted to cruelty would be determined in each case. It has not been defined in the Act as it was not possible to do so. Sec. 13(1)(ia) has undergone a change by 1976 amendment made by the parliament.
“Before the amendment of 1976, the Act contained a different formulation of cruelty. At that time, the petitioner was required to show that the respondent had treated him or her with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the respondent. The change in the formulation of cruelty under the Hindu Marriage Act brings it at par with the Special Marriage Act. It has also simplified it. Cruelly in such cases has to be of the type which should satisfy the conscience of the Court to believe that the relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible for them to live together without mental agony, torture or distress.
Cruelly as a ground of divorce u/S. 13(1) (ia) is a conduct of such type that the petitioner could not reasonably be expected to live with the respondent. Now, the act or omission or conduct which constitutes cruelly need not cause any sort of apprehension in the mind of the petitioner.
No rigid meaning can be assigned to cruelty in order to come u/S. 13(1) (ia). What may amount to cruelly in one case may not amount to cruelly in another case. In order to consider whether a particular act complained against amounted to cruelty or not, the Court has to lake into account the social status, the environment, the education.
the mental and physical conditions and the susceptibilities of the innocent spouse as also the customs and manners of the parties.
The court dealing with a petition for divorce u/S. 13(1) is expected to bear in mind that the problem before it is that of human beings and that all psychological changes in a man’s conduct has to be borne in mind before granting or rejecting the petition. It is not that every insignificant or trifling conduct could constitute cruelty of one on the other”.
(11). In V. Bhagat vs. Mrs. D. Bhagat (2), in para 13, the Hon’ble Supreme Court observed:
“Cruelty contemplated by the sub-clause is both physical and mental. We are concerned herein with the latter. It is not possible to define ‘menial cruelty’ exhaustively. As observed by Lord Reid in Gollin vs. Golins, 1964 AC 644:
“No one has ever attempted to give a comprehensive definition of cruelly and I do not intend/try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirements that the party seeking relief must show actual or probable injury to life, limb or health. It is easy to see that the origin of this requirement is the decision in the well known case of Russel vs. Russel (1987 AC 395)”
To the same effect are the observations of Lord Pearce (at 695):
It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from normal standards of conjugal kindness causes injury to health or an apprehension of it, it is, I think, cruelly if a reasonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called to the endure it….
I agree with the Lord Merriman whose practice in cases of mental cruelty was always to make up his mind first whether there was injury or apprehended injury to health. In the light of that vital fact the court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable person’s point of view, after a consideration of any excuse which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called on to endure it…..
“The particular circumstances of the home, the temperament and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstances that attends the act or conduct complained of may all be relevant.”
(12). The Hon’ble Supreme Court further considered the amendment brought in 1976 and observed:
“The change of law brought about by the Hindu Marriage Laws (Amendment Act), 1976 deserves notice. Prior to the said Amendment Act, cruelly was not a ground for claiming divorce under the Hindu Marriage Act. It was a ground only for claiming judicial separations u/S. 10. By the said Amendment Act, cruelly was made a ground for divorce as well as evidently in recognition of the changing mores of the society. While doing so, it is significant, the words “as to cause a reasonable apprehension in the mind of the. petitioner that it will be harmful or injurious for the petitioner to leave with the other party,” qualifying the expression “cruelty” in Sec, 10 (1)(b), were omitted by the Parliament. It is, therefore, not necessary for the party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension – a reasonable apprehension – in his/her mind that it will be harmful or injurious for him/her to live with the other party. Now what does this change mean? Surely, the deletion of the said words could not have been without a purpose. The cruelty of the nature described in Sec. 10(1)(b) has been explained in this Court’s decision in Dastane vs. Dastane, AIR 1975 SC 1534. Chandrachud, J., speaking for the Bench, held that where an allegation of cruelty is made, the inquiry 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.” The learned Judge held further: “it is not necessary, as under the English Law, that the cruelty must be of such a character as to cause “danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or injurious for one spouse to live with the other….. But u/S. 10(1)(b) harm or injury to health, reputation, the working carreer or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelly having regard to the principles of English Law, but whether the petitioner proves that the respondent had treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent. “This requirement is no longer present in Sec. 13(1)(ia).
If so, the question arises what kind of cruel treatment does clause (ia) contemplate? In particular, what is the kind of menial cruelly that is required to be established? While answering these questions, it must be kept in mind that the cruelly mentioned in clause (ia) is a ground now for divorce as well as for judicial separation u/S. 10. Another circumstance to be kept in mind is that even where the marriage has irretrievably broken down, the Act, even after 1976 (Amendment) Act, does not permit dissolution of marriage on that ground. This circumstance may have to be kept in mind while ascertaining the type of cruelty contemplated by Sec. 13(ia).
Mental cruelty in Sec. 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 reasonable 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 cruelly 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 steady 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 the case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
(13). Their Lordships of the Supreme Court referred to the judgment given by the Supreme Court in Shobha Rani vs. Madhukar Reddy (3). In that judgment the Hon’ble Supreme Court had observed:-
“Sec. 13(1)(ia)F uses the words “treat the petitioner with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It has been used in relation to human conduct or. human behaviour. It is the conduct in the relation to or in respect of matrimonial duties and 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 the Court will have no problem to determine it. It is a question of fact and degree. If it is menial, the problem presents difficulty. First, the inquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, the cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then impact or the injuries effect on the other spouse need not be inquired into or considered, in such cases, the cruelty will be established if the conduct itself is proved or admitted.
It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaints about the treatment of cruelly by the partner in life or relation, the Court should not search for standard in life. A sat of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in paralled with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon vs. Sheldon (1966 (2) All ER 257, 259 “The categories of cruelty are not closed”. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.”
(14). Hon’ble the Supreme Court also referred to the observations made by Hon’ble Mr. Justice Shetty, at page 127, wherein it was observed:-
“Sec. 13(1)(ia) of the Hindu Marriage Act provides that the party has after solemnization of the marriage treated the petitioner with cruelty. What do these words mean? What should be the nature of cruelly ? Should it be only intentional, wilful or deliberate? Is it necessary to prove the intention in matrimonial offence? We think not. We have earlier said that cruelly may be of any kind and any variety. It may be different in different cases. It is in relation to the conduct of parties to a marriage. That conduct which is complained of as cruelly by one spouse may not be so for the other spouse. There may be instances of cruelty by the unintentional but inexcusable conduct of any party. The cruel treatment may also result by the cultural conflict of the spouse. In such cases, even if the act of cruelty is established, the intention to commit suicide cruelly cannot be established. The aggrieved party may not get relief. We do not think that that was the intention with which the Parliament enacted Sec. 13(1)(ia) of the Hindu Marriage Act. The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not a necessary element in cruelty. That world has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty, could be easily established. But 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 cruelly. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.
(15). In Smt. Chandrakala Trivedi vs. Dr. S.P. Trivedi (4) the wife filed a written statement. In reply thereto, the husband put-forward another allegation against the wife that she was having undesirable association with the young boys. Considering the mutual allegations, R.M. Sahai, j, speaking for Division Bench observed:
“Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three Courts arc correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife.”
It was argued on behalf of the husband that the wife has failed to establish the charge of adultery levelled against him and that the charge of adultery must be proved beyond reasonable doubt. Dealing with the argument, the learned Judge observed:
“But we do not propose to examine it as we are satisfied that the marriage is dead and the findings of fact cannot be set aside by this Court except that the appeal can be sent back to Division Bench to decide it again, which would mean another exercise in futility leading to tortuous litigation and continued agony of the parties”.
(16). It is not necessary to cite other authorities to find out the meaning of word ‘cruelty’ which is aground for divorce u/S. 13(1)(ia) of the Hindu Marriage Act, 1955.
(17). After carefully going through the observations made by the Hon’ble Supreme Court and the. High Courts, it appears necessary to consider the question of cruelty in the context of all the circumstances of the case. The reason being that the relation between the husband and wife, is primarily a human relationship which has been granted legal recognition and is sought to be regulated by the provisions of the Hindu Marriage Act, 1955. There is a basic distinction between a human relationship and legal relationship. A legal relationship is brought into existence by law but a human relationship, can be brought into existence only by the deliberate will of both the parties !o create such a relationship and subsequent conduct on their part in conformity with the requirement of the relationship which they intend to create. The conduct, which is necessary for the creation of human relationship, involves, voluntary obedience of several laboos and voluntary performance of several duties in relation to one another even when such taboos and such duties have not been codified bylaw. In the preamble to the Constitution of India, fraternity has been regarded as one of the four basic objectives of the Indian Constitution and the expression “fraternity” deserves to be interpreted in such a manner as to include within it all kinds of human relationships among the human beings. How these relationships can be brought into existence; how they can be preserved and perpetuated, is a matter on which very little work appears to have been done because it is primarily the function of the people as well as those who specialise in the study of human relationships to find out the ways in which human relationships may be created and perpetuated. The Courts, arc primarily concerned with law as enacted by the legislature and, therefore, the entire attention of the court is ordinarily drawn to the ascertainment of law and to apply the law to the facts proved before the Courts. Issues concerning human relationships, are seldom directly agitated before the Courts except in those cases where the consideration of a human relationship, becomes essential for the purpose of dispensing justice as is the case when a prayer for divorce is made on the ground of cruelly.
(18). The bond of human relationship, between husband and wife, owes its origin to their determination to create and perpetuate and their deliberate efforts to do that which is necessary and to abstain from doing that which is harmful for such relationship. If they do not have the determination to create or perpetuate the relationship or they have no desire to do that which is necessary for creating or perpetuating it, or they do not desire to abstain from doing that which is harmful for the relationship, it is obvious that the human relationship can neither be brought into existence nor it can be perpetuated notwithstanding the legal relationship which is brought into existence by performance of certain ceremonies of marriage as required by Sec. 6 of the Hindu Marriage Act, 1955.
(19). The object of the provisions of the Hindu Marriage Act, 1955 is to grant recognition to the human relationship between husband and wife and to regulate the conduct of the parties to the relationship in such a manner as may benefit them as well as the society. But the legislature has its limitation. The laws do not have any power to create a human relationship though law can create legal relationship, the reason being that a legal relationship is a creature of law but a human relationship can be created only by determination of the parties and obedience of taboos as well as the performance of duties necessary for creation and perpetuation of the human relationship. As soon as the parties, give up the desire to maintain the relationship or they, avoid observance of taboos and performance of duties necessary for the human relationship, the human relationship between them is imperilled and cannot be saved by anything. In these cases, it is said that the marriage between the parties has irretrievably been broken even if the ground for divorce u/S. 13 of the Hindu Marriage Act are not established. The performance of the duties and observance of certain taboos necessary for creating and perpetuating the relationship of husband and wife is so important for the relationship that even an unintentional violation of the taboo or unintentional neglect in commission of the duty, creates danger to the relationship.
(20). In Shobha Rani vs. Madhukar Reddi (supra) the Hon’ble Supreme Court pointed out that the relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.
(21). If the ground for divorce made u/S. 13 of the Hindu Marriage Act are considered in light of the fact that the relationship between husband and wife is primarily a human relationship which can be created and perpetuated only if they have the intention to create and perpetuate it and they deliberately observe the taboos and perform their duties which are necessary for creating and perpetuating this relationship, then it will not be difficult to say that if the parties are wanting in determination to continue the marriage or they have by their conduct, violated the taboos or omitted to perform the duties expected of them, the human relationship of husband and wife cannot perpetuate. The act of giving up of the determination to continue the marriage as well as violation of taboos necessary for the relationship and omission to perform the duties necessary for the relationship may, in appropriate cases, be held to be amounting to act of cruelty which is the ground for divorce u/S. 13 of the Hindu Marriage Act.
(22). In the instant case, both the parties belong to middle class families. The respondent’s mother is a Nurse in the maternity department of the hospital run by the local authorities. The petitioner earns his livelihood by culling and polishing semi-pieces stones. The appellant-non-petitioner is neither in service nor she is carrying any trade or business of her own. It is an admitted fact that the house in dispute which is presently in possession of the appellant(non-petitioner) was constructed by respondent’s mother Smt. Kamala (A.W.2). Unless it is proved that any other person who wants to deprive her of the whole or any part of the house, is entitled to do so, Smt. Kamala cannot be deprived of her title and right to possession over the house in dispute. The allegation made by the respondent and her mother is that respondent’s mother Smt. Kamala was forcibly turned out of the house by the appellant-non-petitioner and her father and, therefore, she started living in the quarter situated in the hospital campus. The story set up by the appellant-non-petitioner is that Smt. Kamala herself left the house because the hospital itself requires her to be available in the hospital campus for attending emergency cases. Smt. Kamala (A.W.2) admitted that the employees of the hospital are required to live in the quarters situated in the hospital campus but she has stated in the examination-in-chief that right from the date of marriage, Smt. Pramila (the appellant) was asking her to transfer the house to her and she did not do so and, therefore, Smt. Pramila used to quarrel with her and gave her beating with the help of her brother and, therefore, she left the house in the year 1986. Smt. Pramila (N.A.W.1) has denied this fact and Bhur Singh (N.A.W.2) has said that Smt. Pramila’s mother-in-law left the house and went to the quarter situated in maternity ward with her luggage in order to live there.
(23). After carefully considering the facts and circumstances of the case, I am of he opinion that it cannot be said that the respondent’s mother Smt. Kamala had voluntarily left her house with a view to live in the quarter situated in hospital campus. It is against human nature to abandon the property which a person has constructed by utilising the money, which has been collected by making several sacrifices or by taking loan. The story set up by the appellant-non-petitioner in her reply as well as her evidence, is completely unreliable. I am, therefore, of the view that statement of Smt. Kamala (A.W.2) inspires confidence and it shows that she was asked to transfer the house to the appellant-non-petitioner and when she refused to do, she was harassed and maltreated by the petitioner-appellant and her brother and, that she was forced to shift her residence to the quarter which was allotted to her in the hospital.
(24). The crucial question is whether the act of demanding from Smt. Kamala to transfer the house to the appellant-non-petitioner and on her refusal to do so, causing of harassment to her, in any manner amounts to cruelty mentioned in Sec. 13(1)(ia) of the Hindu Marriage Act.
(25). It is also alleged by the respondent that when he went to the house where the appellant-non-petitioner was residing, the appellant’s brother gave him a beating in presence of the appellant and, in place of objecting to such act of her brother, the appellant asked her brother to beat the respondent. On a careful consideration of the evidence on record, I am of the opinion that this statement of respondent Vijay Kumar (A.W.1) appears to be correct. The question is whether the act of the appellant-non-petitioner, as alleged by the respondent amounts to cruelty which is the ground of divorce. It is true that cruelty has not been defined every where but in view of the fact that the relation between the husband and wife is primarily a human relationship which needs the determination on the part of the parties to create and perpetuate the relationship and to avoid doing any such thing as is harmful to the relationship and to deliberately perform the duties which are necessary for relationship, it may be said, without any hesitation that any conduct of either party to the marriage, which manifests, a contrary intention may amount to cruelty if it is proved and is of such a nature, as to lead to the inference that living together of the parties as husband and wife, would be harmful to them, having regard to all the facts and circumstances of the case. The appellant’s act of asking the respondent’s mother to transfer her house to the appellant and on her refusal to do so causing of-harassment to the respondent’s mother in such a manner, as to force her to leave the house and start living in the quarter allotted in the hospital campus, in the fads and circumstances of the case, does amount to cruelty. Besides, the conduct of the appellant asking her brother to give a beating to the respondent and not to stop them from beating the respondent must be regarded as an act of cruelty. The human relationships are required to be peaceful and free from any hostility. When any party to the marriage, instigates another person to cause any kind of harm, particularly the physical harm to the either party to the marriage, it must be said that such instigation for causing of harm, manifests hostility as well as an attempt to cause harm and it amounts to cruelty. I therefore, have no doubt in it, that the appellant has been proved to have committed the above mentioned acts of cruelty.
(26). There is another act of cruelty which is manifested by her reply as well as her statement and the statement of her father. She has alleged that she was asked to bring dowry and that on two occasions, she brought the amount of Rs. 10, 000/- on each occasion and that on the third occasion, she was asked to bring a sum of Rs. 50, 000/- and when she refused to fulfil this demand, she was harassed and given a beating. These allegations have not been proved by reliable evidence. The allegations of this nature are easy to be made but unless they are proved, as required by Sec. 3 of the Evidence Act, the allegations must be treated as not proved. Making false allegations is no doubt an act of cruelly if the object behind the making of false allegations is to lower the dignity or self-esteem or destroy the reputation or to bring some harm to the person against whom the allegations are made. Therefore, any one who makes allegations which are detrimental to the dignity, self-esteem, reputation or well being of the persons against whom they are made, must be careful in making such allegations. In other words, such allegations may not be made unless there is sufficient evidence to prove them. Anyone who makes allegations of serious nature against any one without sufficient evidence to prove them, must bear responsibility for making such allegations. If the allegations are made falsely or without sufficient evidence to prove them, the act of making allegations against either party may amount to cruelly.
(27). In Omprakash vs. Shakuntala (6), a learned Single Judge of this Court considering the question whether accusation made in the reply filed by the non-petitioner against the petitioner and his father amounts to cruelly. The learned Single Judge has observed:-
“The mailer is now required to be viewed as to whether the accusations and aspirations made by the non-petitioner no. 1 against the petitioner and his father amount to mental cruelty to the petitioner? ….. Such accusations cannot be lightly ignored by simply stating that when accusations were made against the non-petitioner no.1, so in turn the non-petitioner no. 1 as well, retorted in the same manner. In my opinion, such accusations and aspersions do amount to mental cruelty and they can certainly be taken into consideration. In Parihar (Priti) vs. Parihar (Kailash Singh) there were two letters sent by the wife to the Air Force Authorities of her husband and certain allegations were made in cross-examination of the husband regarding his sister’s doubtful Character. Such conduct on the part of the wife was considered to amount to causing menial cruelty to the husband and in respect of the two letters it was observed that the letters were the act of cruelty not slight enough to effect revival only but per se constitute cruelly in the first instance and it was observed that the complaint which the wife made against the husband to his officers could have even cost him his job and is certainly an act which would bring about mental cruelty. These acts on the part of the wife took place after the presentation of the petition and a question arose as to whether they could be taken into account and it was also considered whether in the circumstances these acts were provoked by the husband himself and, therefore, do not amount to mental cruelty. After consideration of the case law and the evidence it was found that these acts on the pan of the wife amounted to mental cruelly. It was observed in that case that it is not correct to say that the subsequent cruelty is on account of wrong committed by the husband.”
(28). The accusation made by the appellant-non-petitioner in her reply as well as in her statement, that dowry was demanded from her and on two occasions, she brought Rs. 10, 000/- on each occasion and a sum of Rs. 50, 000/- was further demanded from her and that she was harassed when she failed to fulfil the demand, must be held to be untrue. These allegations, in view of the decisions referred to above amount to cruelty. I, therefore, have no hesitation in coming to the conclusion that finding on issue no. 1 given by the learned District & Sessions Judge is correct and does not call for any interference. As regards finding on issue no.2 the facts and circumstances of this case clearly show that since January, 1987 the parties are living separately and their is no chance of reconciliation between them. Therefore, the finding on issue no. 2, as given by the learned District & Sessions Judge, does not appear to be incorrect.
(29). For the reasons mentioned above, this appeal has no force. It deserves to be dismissed and is hereby dismissed.
(30). During the pendency of the appeal, an application was filed by the appellant u/S. 24 of the Hindu Marriage Act praying that maintenance allowance at the rate of Rs. 2000/- per month be granted to her and her daughter Shobhna. The reply has been filed by the respondent. The respondent has filed his affidavit in support of the reply and the affidavit shows that previously he was employed as a Trainee Professional Sales Officer on a salary of Rs. 1200/- per month with M/s Penzy Pharmaceuticals Pvt. Ltd. Delhi but his services have been terminated and he is presently out of his job and is dependent on his mother for his day to day needs and that the appellant is earning a sum of Rs. 2000/- by letting the house belonging to his mother on rent. There is no counter affidavit to controvert the fact that the respondent is unemployed and is not earning any money and is dependent on his mother. In view of these circumstances, the appellant cannot be granted any maintenance allowance u/S. 24 of the Hindu Marriage Act.
(31). The application u/S. 24 of the Hindu Marriage Act is, therefore, dismissed.
(32). The parties are directed to bear their own costs.