IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO-M-315 of 2013

Date of Decision: 16.12.2014

Nisha Rani….Appellant.
Versus
Ashok Kumar…Respondent.

CORAM:- HON’BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON’BLE MRS. JUSTICE SNEH PRASHAR.

PRESENT: Mr. Inderjeet Sharma, Advocate for the appellant.

Mr. Munish Bansal, Advocate for the respondent.

AJAY KUMAR MITTAL, J.
1. This appeal has been filed by the wife against the judgment and decree dated 21.8.2013 passed by the Additional District Judge, Bathinda, whereby the petition filed by the husband under Section 13(1) of the Hindu Marriage Act, 1955 (in short “the Act”) for dissolution of marriage by a decree of divorce was allowed.

2. The facts, in brief, necessary for adjudication of the present appeal as narrated therein may be noticed. The instant petition has been filed with the averments that the marriage of the parties was solemnized on 24.4.2008 at Bathinda according to Hindu Vedic rites and ceremonies. After the marriage, the parties resided together as husband and wife at Maur Mandi, District Bathinda and consummated the marriage. Out of the said wedlock, one child, namely, Devansh was born who at presently is residing with the appellant. The appellant was a quarrelsome lady and started harassing and humiliating the respondent and his family members. She showed disrespect and disregard to the parents of the respondent. She used to spend lavishly the hard earned money of the respondent. The appellant under the influence of her parents pressurized the respondent to live separately and to transfer ownership of the house in her name. Even the appellant threatened the respondent and his family members to falsely involve in criminal cases if they did not toe her line. In the month of May, 2008, the appellant along with her minor son went to her parental house with her brother and promised to come back after some days. She also took away all her gold ornaments and other valuables and cash of ` 10,000/-. When the appellant did not return back after considerable time, the respondent went to her parental house to bring her back but she flatly refused to accompany him. The respondent also convened a Panchayat to take her to the matrimonial home but to no avail. In November, 2008, the respondent filed a petition under Section 9 of the Act for restitution of conjugal rights which was withdrawn on 12.10.2009. The appellant filed a criminal complaint under Sections 406, 498-A, 506, 323, 109 of the Indian Penal Code against the respondent and his family members. The respondent filed divorce petition under Section 13 of the Act on 20.11.2009. However, in the said proceedings, the parties compromised the matter. As per the said compromise, the respondent was to pay a total sum of ` 3 lacs as permanent alimony including past, present and future maintenance. Thereafter, the divorce petition under Section 13 of the Act filed on 20.11.2009 was withdrawn and a joint petition under Section 13-B of the Act was filed on 28.1.2012. The respondent paid ` 1,25,000/- to the appellant at the time of statement of first motion and the balance amount of ` 1,75,000/- was to be paid at the time of second motion statement. On 6.8.2012, when the case was fixed for recording of statement on second motion, the appellant made a statement that she did not want to take divorce by mutual consent even after receiving a sum of ` 1,25,000/- as part payment of permanent alimony. The trial court vide judgment dated 6.8.2012 dismissed the petition as infructuous filed under Section 13-B of the Act. During the stay of the parties, the appellant treated the respondent with cruelty. Accordingly, the respondent filed the petition under Section 13 of the Act for dissolution of marriage by a decree of divorce. The said petition was contested by the appellant by filing a written statement. Besides raising various preliminary objections in the written statement, it was pleaded that the respondent agreed to pay a total sum of ` 8,25,000/-, i.e. ` 1,25,000/- towards the arrears of interim maintenance awarded by the Chief Judicial Magistrate, Bathinda vide order dated 24.4.2010 at the rate of ` 2000/- per month (` 1000/- p.m. for the appellant and ` 1000/- p.m. for the minor child); ` 3 lacs as lump sum amount for the appellant, ` 2 lacs as lump sum amount for the minor child and ` 2 lacs paid to him in cash at the time of marriage. The respondent also failed to return the dowry articles given at the time of marriage and had only paid ` 1,25,000/- towards arrears of interim maintenance. It was further alleged that on 29.1.2009, the appellant gave birth to a son but the respondent and his family members had not come to see the child. The other averments made in the petition were denied and a prayer for dismissal of the petition was made. From the pleadings of the parties, the trial court framed the following issues:-

1) Whether the respondent treated the petitioner with cruelty? OPP

2) Whether the respondent has deserted the petitioner, without any reasonable cause? OPP

3) Whether the petitioner is entitled to decree of divorce for dissolution of their marriage? OPP

4) Whether the petitioner has concealed material and true facts from this Court? OPR

5) Relief.

3. The respondent in support of his case besides examining himself as PW4, examined Pawan Kumar as PW1, Sanjeev Kumar as PW2 and Ramesh Kumar as PW3. To rebut the evidence of the respondent, the appellant herself appeared as RW1 and examined her uncle Amar Nath as RW2 and her brother Vishal Kumar as RW3 who tendered their respective affidavits in evidence. She also tendered in evidence order dated 28.1.2012 as Ex.R1 and order dated 24.4.2012 as Ex.R2.

4. The trial court on appreciation of evidence led by the parties, decided issue No.1 in favour of the respondent holding that the appellant treated the respondent with cruelty as she had levelled the allegations without any supporting evidence. Issues No.2 was decided in favour of the respondent holding that the appellant had deserted him without any sufficient cause as she was ready to live with the respondent with the condition that she would not reside in the joint family. Issues No.3 and 4 were decided against the appellant. Accordingly, the trial court vide judgment and decree dated 21.8.2013 passed a decree of divorce in favour of the respondent. Hence, the present appeal by the wife.

5. Learned counsel for the appellant submitted that the respondent-husband was required to establish cruelty after the earlier petition filed under Section 13 of the Act was withdrawn. According to the learned counsel, no fresh instances had been enumerated in the petition or any evidence was led to show that there was cruelty after the withdrawal of the petition under Section 13-B of the Act. In such circumstances, the acts having been condoned by way of filing petition under Section 13-B of the Act which was dismissed as infructuous, Ex.P3, the divorce petition allowed by the trial court was erroneous.

6. On the other hand, learned counsel for the respondent besides supporting the judgment and decree passed by the trial court submitted that the husband and other relations were acquitted on 5.3.2014 by the trial court in a complaint filed by the appellant under Sections 406, 498-A, 506, 323, 109 of the Indian Penal Code.

7. After hearing learned counsel for the parties and perusing the record, we do not find any merit in the contentions of learned counsel for the appellant.

8. The question that arises for consideration in this appeal is whether the appellant had treated the respondent with cruelty more particularly in view of the acquittal of the husband and his family members of matrimonial offences under Sections 406, 498-A, 506, 323, 109 of the Indian Penal Code so as to entitle him to a decree of divorce under Section 13(1)(ia) of the Act.

9. Section 13(1)(ia) of the Act empowers the Court to dissolve the matrimonial ties between the parties by a decree of divorce on a petition by either spouse where the said spouse has been treated with cruelty after the solemnization of the marriage. Cruelty has not been defined in the Act but various pronouncements of the Apex Court and other High Courts have outlined the scope of the term ‘cruelty’. Cruelty is evident where one spouse treats the other and manifests such feelings towards him or her as to cause reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental. Whether a spouse is inflicted with physical cruelty or not, it can be judged on the basis of direct evidence whereas mental cruelty is to be inferred on analyzing the factual matrix of each case and drawing conclusion thereon.

10. The Apex Court in Parveen Mehta v. Inderjit Mehta 2002 (3) RCR (Civil) 529 had very elaborately analyzed the expression ‘cruelty’ as a ground of divorce under the Act. The relevant portion thereof reads thus:-

“Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger.
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21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other.
Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”

11. Further, setting out illustrative cases of mental cruelty, the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 had held as under:-

“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 addition to the aforesaid, certain other illustrations were added by the Apex Court in K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226 as under:-

“Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.”
13. Elucidating ‘mental cruelty’ the Apex Court in K. Srinivas Rao’s case (supra) concluded that if a false criminal complaint is filed against the spouse and his/her relatives regarding matrimonial offences, it would be a case of mental cruelty. Following the aforesaid pronouncement, the Division Bench of this Court in Imlesh v. Amit, AIR 2014 Punjab and Haryana 89, observed as under:-

“So far as the finding of the trial Court regarding cruelty on the basis of involvement in a false criminal case is concerned, it may be said that it in itself constitutes sufficient ground for granting divorce as it amounted to cruelty. Reference in this regard may be made to the case in K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226: AIR 2013 SC 2176, where it was held by Hon’ble the Supreme Court that where indecent/ defamatory statements are made in the complaint/ criminal proceedings, the same singly and cumulatively amounted to mental cruelty warranting grant of divorce. If a false complaint is filed against the spouse or his/her relatives, it amounted to mental cruelty. In the said case also, wife had filed a case under Section 498-A IPC and the husband and his family members were acquitted and decree of divorce was granted to the husband on that ground, as it amounted to mental cruelty.”
14. Similar view was reiterated by the Supreme Court in K. Srinivas v. K. Sunita Civil Appeal No. 1213 of 2006 decided on 19.11.2014 with the following observations:-

“4. In the case in hand, learned counsel for the Respondent-Wife has vehemently contended that it is not possible to label the wife’s criminal complaint detailed above as a false or a vindictive action. In other words, the acquittal of the Appellant and his family members in the criminal complaint does not by itself, automatically and justifiably, lead to the conclusion that the complaint was false; that only one complaint was preferred by the Respondent-Wife, whereas, in contradistinction, in K.Srinivas Rao a series of complaints by the wife had been preferred.
The argument was premised on the averment that the investigation may have been faulty or the prosecution may have been so careless as to lead to the acquittal, but the acquittal would not always indicate that the Complainant had intentionally filed a false case. What should be kept in perspective, it is reasonably argued, that the Complainant is not the controlling conductor in this Orchestra, but only one of the musicians who must deliver her rendition as and when and how she is called upon to do. Secondly, according to the learned counsel, the position would have been appreciably different if a specific finding regarding the falsity of the criminal complaint was returned, or if the Complainant or a witness on her behalf had committed perjury or had recorded a contradictory or incredible testimony. Learned counsel for the Respondent-Wife states that neither possibility has manifested itself here and, therefore, it would be unfair to the Respondent-Wife to conclude that she had exhibited such cruelty towards the Appellant and her in-laws that would justify the dissolution of her marriage.

5. The Respondent-Wife has admitted in her cross-examination that she did not mention all the incidents on which her Complaint is predicated, in her statement under Section 161 of the Cr.P.C. It is not her case that she had actually narrated all these facts to the Investigating Officer, but that he had neglected to mention them. This, it seems to us, is clearly indicative of the fact that the criminal complaint was a contrived afterthought. We affirm the view of the High Court that the criminal complaint was “ill advised”. Adding thereto is the factor that the High Court had been informed of the acquittal of the Appellant- Husband and members of his family. In these circumstances, the High Court ought to have concluded that the Respondent-Wife knowingly and intentionally filed a false complaint, calculated to embarrass and incarcerate the Appellant and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1)(ia) of the Hindu Marriage Act.

6. Another argument which has been articulated on behalf of the learned counsel for the Respondent is that the filing of the criminal complaint has not been pleaded in the petition itself. As we see it, the criminal complaint was filed by the wife after filing of the husband’s divorce petition, and being subsequent events could have been looked into by the Court. In any event, both the parties were fully aware of this facet of cruelty which was allegedly suffered by the husband. When evidence was lead, as also when arguments were addressed, objection had not been raised on behalf of the Respondent-Wife that this aspect of cruelty was beyond the pleadings. We are, therefore, not impressed by this argument raised on her behalf.

7. In these circumstances, we find that the Appeal is well founded and deserves to be allowed. We unequivocally find that the Respondent-Wife had filed a false criminal complaint, and even one such complaint is sufficient to constitute matrimonial cruelty.”

15. Examining the factual matrix involved herein, it may be noticed that on account of settlement between the parties, a petition under Section 13-B of the Act for divorce by mutual consent was filed and the statements at first motion of the parties were recorded. As per the settlement, it was agreed that the respondent would pay a total sum of ` 3 lacs to the appellant towards future and past maintenance and all other expenses of her marriage. The appellant also acknowledged receipt of ` 1,25,000/- and the remaining amount of ` 1,75,000/- was to be paid at the time of final statement. The appellant agreed to withdraw the complaint filed under Sections 406/498-A of the Indian Penal Code against the respondent and his family members but on 6.8.2012, she refused to agree for divorce by mutual consent and also refused to repay the amount of ` 1,25,000/- received by her. Further, the appellant while appearing as RW1 had stated that she was ready to reside with the respondent but at the same time she put a condition that she was not ready to reside with the respondent in joint family and in this way, she deserted the respondent. PW1 Pawan Kumar who was the mediator of the marriage, in his cross-examination had admitted that the appellant was under the influence of her parents and she used to exert pressure on the respondent to live separately. Besides this, PW1 also supported the stand of the respondent regarding compromise. Similarly, PW2 Sanjeev Kumar and PW3 Ramesh Kumar also supported the version of the respondent regarding maltreatment and harassment by the appellant to the respondent and his family members. The irresistible conclusion on appreciation of the evidence is that the appellant-wife had treated the respondent-husband with cruelty.

16. Additionally, the appellant lodged a criminal complaint against the respondent and his family members under Sections 406, 498-A, 506, 323, 109 of the Indian Penal Code. It was undisputed that in the said complaint, the respondent and his family members were acquitted by the trial court vide judgment dated 5.3.2014. The findings recorded by the trial court are based on evidence on record.

17. In view of the above, no illegality or perversity could be found in the findings recorded by the trial court being based on misappreciation or misreading of evidence on record which may warrant interference by this Court. Accordingly, finding no merit in the appeal, the same is hereby dismissed. No costs.

(AJAY KUMAR MITTAL)(SNEH PRASHAR)
JUDGE

December 16, 2014