Ordinary wear and Tear is not Cruelty

Mumbai High Court

Arlene Uday Heble vs Uday Laxman Heble on 14/6/1995

JUDGMENT

A.V. Savant, J.

1. This is an appeal filed by the wife-Arlene Heble against the Judgment and
Decree dated 27th April, 1983 passed by the Family Court, Bombay, in Petition
No. A-85/90. The said petition was filed by the respondent/husband – Uday Laxman
Heble on January 30, 1990 claiming that the marriage solemnised with the
appellant on the 7th August, 1981, at Muscat, be dissolved by a decree of
divorce and that the custody of their two minor children : Namrata – born on
11th August, 1983 and Sidharth -born on 15th September, 1986 be given to him.
The brief facts leading to the dispute are as under :

2. The appellant-wife has passed her senior Cambridge Examination from a
convent school at Deolali, Nasik, whereas the respondent-husband has passed B.A.
(Hons) with Economics from Delhi University. The wife is an Anglo Indian
Christian and the husband is a Hindu. The husband was a bachelor working in
Muscat in 1981. The wife was a divorcee, having two daughters Melissa and
Merelyn from her earlier husband. She was working in the same Departmental Store
as a sales girl where the husband was working as the Manager. Having come in
contact with each other, they were married on the 7th August, 1981 at Muscat
under the Foreign Marriage Act, 1969. They lived at Muscat and daughter Namrata
was born on 11th August, 1983 at Muscat, whereas the second child Sidharth was
born on the 15th September, 1986 at New Delhi. The husband alleges that soon
after the marriage the wife started behaving indifferently and exhibited her
adamant and stubborn attitude in the day to day routine matters in life and
picked up quarrels and used to break and throw costly glasswares. The husband
has then narrated certain instances which amount to cruelty in matrimonial law.
He alleged that her conduct was such that he cannot reasonably be expected to
live with her.

3. “Cruelty” under matrimonial law consists of conduct so grave and weighty
as to lead one to the conclusion that the husband cannot reasonably be expected
to live with the wife. It must be more serious than the ordinary wear and tear
of married life. The cumulative conduct, taking into consideration all the
circumstances and background of the parties, had to be examined to reach the
conclusion whether the conduct complained of amounts to cruelty in matrimonial
law. While doing so, several factors such as social status, family background,
customs, tradition, caste and community, upbringing, public opinion prevailing
in the locality etc. will have to be taken into account. As held by the Supreme
Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane, reported at , we are
not concerned with

simple trivialities which can truly be described as a reasonable wear and
tear of married life. It is in the context of such trivialities that one can say
that the spouses take each other for better or worse. One can only consider the
grave and weighty incidents to find what place they occupy on the marriage
canvas. Recently in the case of V. Bhagat v. Mrs. D. Bhagat, reported at , the
Supreme

Court has observed that mental cruelty 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 together. 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 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.

4. The first instance alleged by the respondent is of December 1981 when the
couple had come to India and the respondent had gone to his brother Col. Anil
Heble’s flat at Colaba, Bombay. Respondent had another brother Vinay who was an
Air Force Officer, but had died in an air-crash in 1979. Vinay’s widow Leena
came to meet this couple at Col. Anil Heble’s flat at Colaba. The appellant-wife
did not appreciate Leena’s visiting them and picked up a quarrel and exhibited
her temper. She started abusing respondent-Uday and also his brother Col. Anil
and his aged parents. She latter on picked up her luggage and went from Colaba
to Worli to stay with her male bachelor friend Mr. George Chandy. This incident
is deposed to by the respondent, his brother Col. Anil and their mother Nirmala
Heble.

5. The second incident is of the alleged ill-treatment by the wife to her
parents-in-law when they visited Muscat before the birth of their first grand
child-Namrata. As stated earlier, Namrata was born on 11th August, 1983. Uday’s
parents visited Muscat in July 1983 and stayed only till September 1983. It is
alleged by the husband that the appellant-wife was none too happy to find her
parents-in-law at Muscat and insulted them repeatedly. When they all returned to
India in September 1983 Col. Anil & his wife had gone to the Airport to receive
this couple, as also the aged parents. Appellant straight away drove from the
Airport in a taxi and went to her male bachelor friend Mr. George Chandy, at
Worli, and did not even allow Anil and his wife to touch the new born baby
Namrata.

6. The father of the respondent died on 6th October, 1985. The first death
anniversary of the respondent’s father was to be performed on 6th October, 1986
at his Versova flat where the respondent used to live with his mother Nirmala,
who is witness No. 3 for the respondent. On that day certain religious
ceremonies were to be performed in connection with the first death anniversary.
It so happened that the appellant’s first husband arrived on the scene with an
order from the High Court directing the appellant to hand over the custody of
his two daughters from the appellant to him. As stated earlier, the wife has two
daughters from her first husband, viz. Melissa and Merelyn. They were aged
approximately 15 and 13 ….years in October 1986. The first husband of the
appellant came armed with the High Court order and also with a lady police
constable and demanded the custody of his two daughters Melissa and Merelyn. The
appellant was reluctant to part with the custody of the said two daughters but
her first husband took away his two daughters from the appellant. The appellant
was enraged at this and, surprisingly, started screaming and abusing the
respondent her second husband, his brother Col. Anil as also their mother. The
result was that the religious ceremonies in connection with the first death
anniversary of the father of the respondent could not be performed and the
family had to leave the Versova flat without performing the religious
ceremonies.

7. The next incident alleged is of 21st June, 1988 when the couple came to
India. Admittedly, all the four children viz. Melissa, Merelyn, Namrata and
Sidharth were staying with the couple. When the couple came to India and was
staying at the Versova flat, the appellant alleged that the respondent had an
extra-marital affair with his widowed sister-in-law Leena Heble. When the
respondent denied the allegation, the wife attacked and assaulted him. This
resulted in the respondent leaving his own house late in the night and going to
his brother Col. Anil Heble’s flat at Sleater Road where he stayed for a short
while. By this time, Col. Heble had shifted from his Colaba Quarters to his own
flat at Sleater Road.

8. In September 1988, the wife quarelled with the husband regarding
arrangement of furniture and when the spouses disagreed, she physically attacked
him, resulting in the husband’s spectacles being broken, leaving him without
spectacles for about three days.

9. The next incident is of 12th September, 1989 when the wife alleged that
the husband had an affair with his neighbour Miss Sandhya Singh, who was an Air-
hostess. The husband did not have a telephone at his Versova flat and when he
got calls at his neighbour’s house, he had to go to receive the telephone calls.
The wife went to their neighbour Sandhya Singh’s house, accused the husband,
Sandhya Singh and her mother and fought with Sandhya Singh and her mother. This
caused severe embarrasment to the husband and the secretary of the Housing
Society also questioned the husband in respect of the conduct on the part of his
wife, the appellant.

10. The next incident is of 2nd December, 1989 when the husband came home
late at night and the wife suspecting the husband’s conduct physically attacked
him and scratched his face with her nails. The two young children got up. It was
about 2.00 A.M. by that time. The wife took her luggage and the younger child
Sidharth and went to Worli. The husband took his daughter Namrata and went to
his brother Col. Anil Heble’s flat at Sleater Road.

11. There are some other minor instances referred to in the petition filed by
the husband. But we are not referring to them since, in our view, they
constitute the normal wear and tear of matrimonial life. On these grounds, the
husband sought a decree for dissolution of the marriage under section 27(1)(d)
of the Special Marriage Act, 1954 read with section 18 of the Foreign Marriage
Act, 1969.

12. The wife filed per written statement on 5th February, 1992. She has
admitted that she was a divorcee, having two daughters from her first husband
when she married respondent Uday at Muscat. She has, however, denied the
allegations of cruelty attributed to her by the respondent. On the contrary, she
alleges that the respondent had an extra-marital affair with the widow of his
brother Vinay. She has suggested that on the death of Vinay in the air-crash,
there was a suggestion from Leena’s mother that Uday should marry Leena.
However, Uday’s mother Nirmala opposed the suggestion, which was turned down.

13. In para 4(d) of her written statement, the wife has referred to the
extra-marital affair of Uday and Leena and she has repeated the allegations in
para 11 of her written statement in the following words :-

“It was only as recent as April, 1990 when the petitioner started having
his extra-marital affairs with the widowed sister-in-law which was the main
cause for the souring of relation between the respondent and the petitioner,
that the allegation of the petitioner being accused of having such a clandestine
affair with the widowed sister-in-law, was made by the respondent and none-the-
less there has been no doubt about it no matter what pain and anquish it caused
the petitioner.”

Again in para 15 of the written statement, the wife says as under :

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“It must be stated that the question of the petitioner having extra-marital
relationship with his widowed sister-in-law, has only surfaced in April, 1990.”

14. With reference to the incident of 12th September, 1989 in Sandhya Singh’s
flat, the wife reiterated that it was not a case of simple use of neighbour’s
telephone, but that it was her husband’s extra-marital affair. She has stated so
in para 20 of her written statement.

“It is not a fact to say that the respondent had a fight with the
petitioner over the simple use of the neighbour’s telephone by the petitioner,
and instead, an argument ensued between the petitioner and the respondent,
because on some excuse or another, the petitioner would clandestinely go to meet
the widowed sister-in-law and spend hours with her at a time on the pretext that
he was searching for a job.”

15. Thus, the main case sought to be made out in the written statement is,
apart from denial of allegations made by the husband, that of the husband’s
extra marital relations with either Leena Heble or Sandhya Singh. There is no
whisper in the written statement about the husband coming home late at night in
a drunken state.

16. In support of his petition, the husband examined himself at Exh. 39, as
witness No. 1. His second witness is his brother Col. Anil Heble, at Exh. 64 and
the third witness is his mother Nirmala Heble at Exh. 70. Wife Arlene examined
herself as Exh. 74 and has also put up her young daughter Namrata, aged barely 9
years, as her witness at Exh. 75 to depose to the alleged extra-marital affair
of Uday with Leena. The learned trial Judge, who had the benefit of watching the
witnesses depose had also directed the Marriage Counsellor to visit the
residence of the spouses, meet the concerned people, including the children and
Leena Heble and make a report. Accordingly, first report dated 13th March, 1991
is by Miss P.D. Gheewala, Marriage Counsellor. This report shows that both
Namrata and Sidharth were apparently attached to the father. However, Namrata
appeared to be echoing her mother’s views in respect of the ‘other woman’
involved with her father Uday. After this report was made on 13th March, 1991,
the learned Judge had passed another order on 23rd July, 1991 appointing Mrs.
M.S. Desai, another Marriage Counsellor, for local inspection and report. She
has made a report of her impressions. Mrs. Desai has also referred to the fact
that both the children Namrata and Sidharth appeared to be attached to the
father, though they appeared to be influenced more by the mother and daughter
Namrata seemed to echo her mother’s views in her talks.

17. On appreciation of the above evidence, the learned trial Judge came to
the conclusion that certain instances amounting to cruelty were fully
established and in this behalf, a reference is made to the incident of December
1981 when on their first visit to Col. Anil Heble’s flat at Colaba, the
appellant had taken objection to Leena’s visit and had abused the respondent and
all other family members. Similarly, the treatment meted out to the parents of
the husband when they visited Muscat in July/September 1983, the conduct of the
appellant on arriving in India in September 1983 and proceeding to Worli in a
taxi alone was held proved. The incident of 6th October, 1986, when the
appellant misbehaved and started abusing the respondent and his brother and
mother resulting in the death anniversary ceremonies being abandoned was also
held to be proved by the learned trial Judge. The incident of going to Sandhya
Singh’s flat in September 1989 and abusing her and her mother has been held
proved.

18. On the question of the wife making wild and baseless allegations against
the husband, the learned trial Judge has referred to the fact that though the
wife had made the allegations in her written statement, as reproduced above,
there was nothing in her examination-in-chief to support the same and she had
not made herself bold to depose to those allegations. Instead, she preferred to
put up her minor daughter Namrata, aged 9 years, to say that when she was
staying with the respondent at Versova flat, she had once seen Uday and Leena on
the bed. The learned trial Judge came to the conclusion that Namrata was a
tutored child witness, as is clear from her evidence. Referring to the standard
of proof required for proving such serious allegations, the learned Judge came
to the conclusion that the appellant-wife had not discharged the burden, though
she had chosen to make wild and reckless allegations against the husband,
involving two other women-Leena Heble and Sandhya Singh. In the result, the
learned Judge allowed the husband’s petition and ordered that the marriage
solemnised on 7th August, 1981 was dissolved.

19. On the question of custody of the two children, the learned Judge has
granted the custody to the appellant-wife. There is no dispute before us on that
count. On the question of maintenance, an order has been passed directing the
husband to pay Rs. 4000/- to the wife and there is no controversy before us on
that count either. Each of the two children has been granted maintenance of Rs.
1000/- p.m. Apart from that, all the school fees and other expenses in
connection with the education of the children such as their uniforms, transport
to school etc. is to be borne by the husband and is being borne by the husband
alone. The flat at Versova is in the name of the respondent-husband and he has
been directed to pay the outgoings of the said flat, as also the electricity
charges. Thus, it is admitted that an amount of approximately Rs. 8000/- per
month is being paid by the husband on various counts mentioned above. There is
an application before us for enhancement of the children’s maintenance from Rs.
1000/- to Rs. 1500/- per child per month and we will separately deal with this
application at the end of the judgment.

20. When this matter was called out for arguments on the 8th June, 1995, we
enquired from both the learned Counsel-Mr. Pawar and Mr. Bhatt as to whether in
view of the passage of time it was possible to settle the matter. Both the
learned Counsel mentioned to us their respective versions of the proposed
settlement and the matter was adjourned to next day. On the 9th June, 1995,
however, we were told that though the husband was willing to transfer the
Versova flat in the name of the wife and his two children and make a lumpsum
payment of Rs. 4 lacs to the wife and still bear his two children’s educational
expenses, the wife was insisting on being paid Rs. 10 lacs to secure her
maintenance. Admittedly, the wife is occupying the Versova flat with her four
children. When both the learned Counsel expressed their inability to arrive at
any settlement, we proceeded with the hearing of the matter. Yesterday, on 13th
June, when arguments concluded for the day, we again requested both the learned
Counsel to try to bring about a settlement. The husband stood by his offer made
earlier, but the wife raised her demand from Rs. 10 lacs to Rs. 20 lacs. This is
in addition to the fact that the flat is to be transferred to her and the two
children’s name. In the result, we are left with no alternative but to decide
the matter on merits.

21. We have heard both the learned Counsel at length; Mr. Pawar for the
appellant-wife and Mr. Bhatt for the respondent-husband. They have taken us
through the entire oral evidence, which consists of three witnesses on the
husband’s side and two on the wife’s side. Mr. Pawar has raised only 3
contentions before us, namely, (1) the incidents alleged do not amount to
cruelty in matrimonial law; (ii) assuming that the said incidents amount to
cruelty, the incidents are stale and (iii) at any rate, the husband must be
deemed to have condoned the conduct of the wife and resumed co-habitation with
her. We will consider these contentions in the light of the law laid down by the
Supreme Court referred to in para 3 above on the basis of the above evidence.

22. “Cruelty” under matrimonial law consists of conduct so grave and weighty
as to lead one to the conclusion that the husband cannot reasonably be expected
to live with the wife. It must be more serious than the ordinary wear and tear
of married life. The cumulative conduct, taking into consideration all the
circumstances and background of the parties, has to be examined to reach the
conclusion whether the conduct complained of amounts to cruelty in matrimonial
law. While doing so, several factors such as social status, family background,
customs, tradition, caste and community, upbringing, public opinion prevailing
in the locality etc. will have to be taken into account. As held by the Supreme
Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane, reported at , we are
not concerned with

simple trivialities which can truly be described as a reasonable wear and
tear of married life. It is in the context of such trivialites that one can say
that the spouses take each other for better or worse. One can only consider the
grave and weighty incidents to find what place they occupy on the mariage
canvas. Applying the test laid down by the Supreme Court in Dr. Dastane’s case
(supra), we have no alternative but to hold that the acts complained of by the
husband amount to “cruelty” within the meaning of section 27(1)(d) of the
Special Marriage Act, 1954.

23. As stated earlier, barring the trivialities which amount to the ordinary
wear and tear of matrimonial life, the incidents on which the evidence has been
concentrated are as under : The spouses were married in Muscat on the 7th
August, 1981. They came to India in December 1981. They went to Col. Anil
Heble’s flat at Colaba. Leena, widow of deceased brother of Uday viz. Vinay
called on the couple. The wife took objection and created a scene and left the
house with her baggage and went to stay with her male bachelor friend, at Worli,
viz. Mr. George Chandy. This incident is deposed to by the husband himself, his
brother Anil and their mother Nirmala.

24. The second incident of cruelty, relates to the treatment given to the
husband’s parents during their stay at Muscat in July/September 1983 on the eve
of the birth of the first child of the appellant. She delivered her first child
Namrata on the 11th August, 1983. She did not appear to be very happy on the
visit of her parents-in-law to Muscat and the evidence suggests that she
insulted and ill-treated them. This is deposed to not only by the husband and
the mother herself (the father of the husband is no more having died on 6th
October, 1985), but this is also deposed to by Col. Anil Heble, to whom the
mother reported her embarrasment. So bitter was the relationship between the
appellant and her parents in law at Muscat that on reaching India in September
1983, she did not allow her child to be taken to Col. Anil’s place, but
straightaway drove in a taxi with the child to Mr. George Chandy’s place, at
Worli. Though on the evidence before us we find nothing in the cross-examination
of the witnesses to disbelieve their consistent version in that behalf, we are
not attaching much importance to these incidents which took place between
December 1981 and September 1983, because it may be possible to contend that
these facts of cruelty have been condoned on account of the subsequent conduct
of the spouses. We do not, therefore, propose to dilate on this aspect of the
matter any longer.

READ  Wear and Tear of Marital Life will not lead to divorce

25. On the 6th October, 1986, however, when the family met at the Versova
flat in connection with the first death anniversary of the father of Uday,
certain religious ceremonies were to be performed. To the misfortune of all of
them, the first husband of the appellant arrived on the scene with an order from
the High Court, directing the wife to hand over the custody of the two daughters
Melissa and Merelyn to her first husband. The first husband came with a lady
police constable and a woman activist with him and despite the appellant’s
reluctance, she was forced to hand over custody of her two daughters to the
first huband. However, we find no reason whatsoever to justify her abusing the
respondent-her second husband, his brother Col. Anil and Anil’s wife and more
particularly, their mother Nirmala. Uday, Anil and mother Nirmala have deposed
consistently that they were required to abandon the death anniversary ceremonies
and had to leave the Versova flat.

26. Similar is the incident of 21st June, 1988 when the wife made allegation
that the husband had extra marital relations with Leena and when the husband
denied the said allegation, she physically attacked him. The husband’s evidence
in the examination-in-chief in this respect has not been questioned in the
cross-examination. Again, in September, 1988, the wife physically attacked the
husband on a dispute regarding the position of the furniture in the house,
resulting in the spectacles of the husband being broken and his going without
them, for about 3 days. As stated earlier, we are ignoring the earlier incidents
between 1981 and 1983 and we are concerned only with the conduct of 6th October,
1986 and onwards. The evidence in respect of the allegation of assault on the
husband on 21st June, 1988, at Bombay, as also the evidence in respect of
physical assault in September, 1988, resulting in the spectacles of the
respondent being broken is, in our view, quite satisfactory.

27. Then comes the incident in neighbour Sandhya’s flat. If the husband
received a call at the neighbour’s flat, the wife may have prevented the husband
from going to Sandhya Singh’s flat. However, we see no justification for the
appellant to go to Sandhya Singh’s flat and quarrel with her and her mother and
abuse them. The appellant did not stop there. She made allegation of the
respondent having extra-marital relationship also with Sandhya Singh. However,
she has not ventured to say anything in her examination-in-chief in respect of
the allegation of extra-marital relations of her husband, either with Leena
Heble or with-Sandhya Singh. It is true that in the examination-in chief the
wife has tried to suggest that the husband was coming late at night in a drunken
state. This is not stated in the written statement. What is stated in the
written statement is the extra-marital relations of Uday with Leena Heble and
Sandhya Singh, but there is not even a whisper in the examination-in-chief. What
is sought to be stated in the examination-in-chief regarding drunkenness is not
stated in the written statement.

28. The evidence of the husband that the wife was making allegations against
him regarding his having extra-marital relations is also supported by the
evidence of his mother Nirmala, which refers to the fact that whenever Uday came
home late, the appellant used to pick up quarrel with him and allege that he had
relations with other woman. There is nothing in the cross-examination of either
Uday or his mother Nirmala to detract from the correctness of their version.

29. Even the incident of 2nd December, 1989 referred to in the petition by
the husband is clearly deposed by the husband that when he returned late at
night, his wife attacked him physically and started scratching his face with
nails. These incidents of 6th October, 1986, 21st June, 1988, September 1988,
the incident in Sandhya Singh’s flat on 12th September, 1989 as also the
incident of 2nd December, 1989, in our view, clearly show that the wife has
treated the husband with cruelty within the meaning of section 27(1)(d) of the
Special Marriage Act, 1954.

30. As we have stated earlier, though the incidents of December 1981 and
September, 1983 have been held proved, we are ignoring these incidents because
it may be possible to contend that either these incidents are stale or that the
conduct has been condoned on account of the subsequent co-habitation. It must be
borne in mind that the first child Namrata was born on 11th August, 1983 and the
second child Sidharth was born on 15th September,1986. However, what happened on
6th October, 1986 and thereafter is a matter which cannot be brushed aside.
These incidents of 6th October, 1986 onwards have been held proved by us and it
is not possible to accept Mr. Pawar’s contention that the incidents do not
amount to cruelty in law. The incidents continued from 6th October, 1986 till
December 1989. The petition has been filed on 30th January, 1990. We are,
therefore, unable to accept the second contention of Mr. Pawar that the said
incidents are stale and must, therefore, either be ignored or deemed to have
been condoned. We are of the view that the conduct of the wife reflected from
these incidents between 6th October, 1986 and 2nd December, 1989 was clearly
such that she has repeatedly treated the husband with cruelty within the meaning
of section 27(1)(d) of the Special Marriage Act, 1954.

31. Apart from the above, we must bear in mind that the wife has chosen to
make allegations against the husband of his having extra marital relations with
both Leena Heble and Sandhya Singh. As reproduced earlier in paras 13 and 14
above, these specific allegations are contained in the written statement in para
4(b), para 11, para 15, and para 20 of the written statement. Having made these
serious allegations, casting aspersions not only on the character of her
husband, but on the character of two other women, it is strange that the
appellant has not even whispered anything in her examination-in-chief in this
behalf. On the contrary, a different story is sought to be made out for the
first time in the evidence regardig his coming home late at night in a drunken
state, which is not at all mentioned in the written statement. It is true that
in the cross-examination, the wife was constrained to admit that she came to
know of Leena’s relations with her husband for the first time in April, 1990.
The incident in Sandhya Singh’s flat in September 1989 also shows that she is
now trying to prevaricate by suggesting that she came to know of Leena’s
relation with her husband for the first time in April, 1990. If what she now
says in her cross-examination is to be believed, we fail to understand any
justification for her conduct between 1988 and 1990, leave alone her conduct in
December 1981 in Col. Anil Heble’s flat at Colaba when Leena Heble came to meet
them and the appellant disliked it and started quarreling.

32. What is, however, worse and unfortunate is that the appellant has put up
her minor daughter Namrata to depose to something which does not stand to
reason. Not having had the courage to depose about her husband’s relationship
with his widowed sister-in-law Leena, Namrata was tutored to say that whenever
the father had access to the children, he used to take the children to Leena
Heble’s flat at Khar. The flat belongs to the respondent’s brother Vinay. That
flat has two bedrooms. The mother of Uday used to sleep in one bed-room. Uday
and Leena were supposed to be sleeping in the other bed-room, in which itself,
it is suggested that, the two children were made to sleep. We are further told
to believe that when Namrata once got up in the midst of night, she saw her
father Uday and Leena sleeping on the same bed. The learned Judge has referred
to this evidence and in the light of the answers given by Namrata in her cross-
examination, one cannot but agree with the conclusion of the learned trial Judge
that the child witness was completely tutored to say something which she had not
seen. It is relevant to note that this important incident was not pleaded in the
written statement. Had Namrata really seen respondent Uday and Leena on one bed
at night, in our view, she would not have failed to mention this incident
immediately to her grand-mother in the adjoining room and particularly to her
own mother. If that be so, the appellant would not have failed to mention this
incident in the written statement since it is the only direct circumstance
alleged in support of the allegation of extra-marital relations between Uday and
Leena. It is relevant to note that in para 8 of her cross-examination, Nirmala,
the mother of the respondent, has categorically denied that Uday and Leena were
sharing the same bed in the Khar flat.

33. The reports of the two Marriage Counsellors show that the two children
had apparently no grievance with either the mother or the father. Namrata is
sought to be used to malign her father and reading her cross-examination, we
have no doubt whatsoever that she has been tutored to say something which is
absurd. In the first place, if Uday wanted to sleep with Leena when his young
children were around, he would have taken the elementary care of putting the
children with his mother in the adjoining bed-room. Secondly, he would have
taken care of locking his bed-room from inside. Nothing of the kind was
suggested and what was suggested was that despite the fact that the husband
wanted to sleep with Leena, he kept the children in the same bed-room. All this
is supposed to be at a time when the proceedings were already pending in the
Family Court. An occasional access was provided to the father under the orders
of the Court, which right he was exercising. It is unfortunate that the mind of
the young girl Namrata is tried to be prejudiced by such absurd stories. We have
no hesitation in rejecting the evidence of Namrata. Under the circumstances, we
are of the opinion that the appellant has indulged in making wild and reckless
allegations against her husband that he was having extra-marital affairs with
Leena Heble and Sandhya Singh.

34. In this behalf, we may refer to the Supreme Court decision in the case of
V. Bhagat v. Mrs. D. Bhagat, reported at . The Supreme Court has dealt with what
constitutes mental cruelty in matrimonial law, though it was a case under the
Hindu Marriage Act, 1955. What the Supreme Court has observed is that mental
cruelty 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 together. 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 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
cause may not amount to cruelty in another case. After observing as above, the
Supreme Court has dealt with the allegations made by the wife in the written
statement and the questions put by her Counsel to the husband in the case before
the Supreme Court. The wife had made allegations that the husband was not a
normal person, that he required psychological treatment to restore his mental
health, that he is suffering from paranoid disorder and mental hallucinations
and that he and members of his family were a bunch of lunatics. The Supreme
Court observed that the allegations were not made in a fit of anger and they
were made in formal pleadings and questions were sought to be put in support of
the averments. On rejecting the case of the wife, the Supreme Court held that
making of such wild and baseless allegations in the written statement amounted
to mental cruelty of such a nature that the husband cannot reasonably be asked
to live with the wife.

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35. We have carefully considered the ratio of the Supreme Court decision in
Bhagat’s case (supra). We are of the view, that the said ratio would apply to
the facts of the case before us on the question as to whether the conduct of the
wife in making wild and baseless allegations against the husband in the written
statement amounts to cruelty in law. The appellant-wife has made wild and
baseless allegations against the respondent-husband that he was having extra-
marital relations with Leena Heble and Sandhya Singh. She did not even attempt
herself to depose to these allegations in her evidence. We have already
indicated above, that we are not satisfied with the evidence of Namrata, who
appeared to be wholly tutored. The result is that the wife has indulged in
making wild and baseless allegations without herself attempting to prove them.
This Court also has taken a similar view in the case of Smt. Nirmala Manohar
Jagesha v. Manohar Shivram Jagesha, reported at of the Judgment at page 272 of
the report it is observed as under :

“In view of the above, I am of the opinion that though the husband has
failed to prove point Nos. 1 and 2 framed above, he would be entitled to a
decree for divorce on the third point namely, cruelty, as a result of the wife’s
having made wild, reckless and baseless allegations in the written statement.
Though, therefore, the husband has failed to prove on the averments made by him
in the petition and on his evidence that the wife has treated him with cruelty,
still he is entitled to succeed under section 13(1)(l). Similarly, the husband
has failed to prove that his wife was suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that he cannot
reasonably be expected to live with the wife. The decree of the learned trial
Judge on both these grounds will have to be reversed.”

A similar view has been taken by another Division Bench of this Court in the
case of Rajan Vasant Revankar v. Mrs. Shobha Rajan Revankar, (Family Court First
Appeal No. 37 of 1993) decided on 24th and 25th March, 1994.

36. Having considered the entire material on record and observed the conduct
of the parties including the attitude adopted by the appellant-wife in the trial
Court and in this Court, we are of the view, that there is an irretrievable
break down of the marriage. The learned trial Judge has referred to the conduct
of the wife when the petition was pending in the trial Court for about 3 years.
The findings of the learned trial Judge in paras 27 and 28 are some what
disturbing though we are not basing our conclusions on the said findings. As we
have mentioned earlier in para 20 above, even in this Court the wife’s attitude
appeared to be extremely un-reasonable despite the fact that the husband had
taken a very reasonable attitude. We are reminded of the observations of the
Supreme Court in paras 22 and 23 of the judgment in Bhagat’s case at pages 719
and 721 of A.I.R. 1994 Supreme Court. As in Bhagat’s case so in this case it is
abandantly clear that the marriage between the parties has broken down
irretrievably and there is no chance of their coming together or living together
again. We are aware that irretrievable break down of the marriage is not a
ground by itself for granting a decree for divorce. However, after having
appreciated the entire evidence and recorded our findings, we are mentioning
this additional factor which needs to be borne in mind.

37. Mr. Bhatt, the learned Counsel for the respondent-husband is justified in
contending that the incidents between 6th October, 1986 and 2nd December, 1989
constitute cruelty on the part of the wife. Counsel is also justified in
contending that these incidents are not at all stale since the petition was
filed on 30th January, 1990. Having rejected the first two contentions of Mr.
Pawar, Namely, (i) the incidents alleged could not amount to cruelty in
matrimonial law; and (ii) assuming that the said incidents amount to cruelty,
these incidents are stale, we must consider the last submission of Mr. Pawar.
The submission is that at any rate the husband must be deemed to have condoned
the conduct of the wife and resumed co-habitation with her. In the first place,
as far as making of wild and baseless allegations in the written statement is
concerned, there is no condonation pleaded after the filing of the written
statement. Nothing has been suggested to show that the husband has condoned the
making of the wild and baseless allegations in the written statement, which was
filed as recently as on the 5th February, 1992. The plea of condonation, if any,
could therefore relate to the acts of cruelty such as those of 6th October,
1986, 21st June, 1988, September, 1988, 12th September, 1989 and 2nd December,
1989. The learned trial Judge has already recorded a finding that there was no
legal impediment under section 34 of the Special Marriage Act, 1954, to pass a
decree for divorce.

38. Apart from the fact that there is not even a plea of condonation in the
written statement in respect of the acts of cruelty referred to above, nothing
has been said in the examination-in-chief by the wife herself. Mere passage of
some time is not by itself, condonation. The conduct complained of is from 6th
October, 1986 till 2nd December, 1989. The petition for divorce was filed on
30th January, 1990. In our view, no case has been made to content that there was
condonation by the husband of the wife’s cruel conduct.

39. In this behalf, we may only refer to the observations of the Supreme
Court in Dastane’s case where it has been observed that “condonation” means
forgiveness of the matrimonial offence and restoration of the offending spouses
to the same position as he or she occupied before the offence was committed. To
constitute “condonation”, there must be two things:—(i) forgiveness and (ii)
restoration. There is no evidence of condonation led at all. In fact, there is
no pleading in that behalf, but we are not taking a technical view of the
matter. Having considered the entire evidence on record, we are of the view that
even if we are to ignore the earlier incidents from December, 1981 to September,
1983, as far as the incidents from 6th October, 1986 to 2nd December, 1989 are
concerned, there is neither any plea nor any evidence of condonation.

40. At any rate, as far as the alleged wild and baseless allegations in the
written statement are concerned, in the facts of this case, there is no question
of any condonation at all. The wife must be held guilty of having treated the
husband with cruelty also by reason of her having made wild and baseless
allegations of the husband having extra marital relations with Leena Heble and
Sandhya Singh. In fact, after making those wild and baseless allegations in
different paras of the written statement quoted above, namely, paras 4(d), 11,
15 and 20 of the written statement, the appellant/wife has herself stated in
para 26 of the written statement that the relationship between the spouses had
not only soured but took a downward dive towards destruction of their marriage
mainly because of the husband’s duel relationship with his widowed sister-in-
law. There is thus no doubt, in our mind, that there is a irretrievable break
down of the marriage between the spouses. The averments in para 26 referred to
above, specifically refer to the destruction of the relationship during the last
11/2 to 2 years. Thus there is not even a faint suggestion of any condonation of
the conduct of the wife which we have held to amount to cruelty. Under the
circumstances, Mr. Pawar’s last contention that the husband must be deemed to
have condoned even the subsequent acts of cruelty between 1986 to 1989 cannot be
accepted.

41. In conclusion, we are of the view that the incidents of 6th October,1986, 21st June, 1988, September, 1988, 12th September, 1988 and 2nd December,1989 amount to such conduct in law as would inflict upon the husband such mental pain and suffering as would make it impossible for him to live with the appellant/wife. The situation is such that the husband cannot reasonably be asked to put up with such repeated conduct and continue to live with the wife.
The alternate submission that the incidents are stale has no merit. Infact, we are ignoring the conduct between December, 1981 and September, 1983. One of the reasons being that the first child was born on 11th August, 1983 at Muscat and the second child was born on 15th September, 1986 at New Delhi. As stated above, the plea of condonation has to be stated merely for the purpose of being rejected. Thus there is no merit in any of the three contentions raised on behalf of the appellant. The appeal must fail and is accordingly dismissed. In the circumstances of the case, however, there will be no order as to costs.

42. As far as the question of permanent alimony and maintenance to the wife and children is concerned, we are passing a separate order in Civil Application