HIGH COURT OF ALLAHABAD
Decided on September 12,2012
Arti Pandey Appellant
Vishnu Kant Tiwari Respondents
Prakash Krishna, J.;—
This is an appeal under section 19 of the family courts act 1984 at the instance of wife against the judgment and decree dated July 2011 passed by the Principal Judge, Family Court, Allahabad in Matrimonial Petition No.688 of 2005, decreeing the petition filed by the husband for divorce.
2. Smt. Arti Pandey, the appellant, daughter of a District Bank Co-operative Officer, having urban background, resident of Allahabad city got married to Vishnu Kant Tiwari, the respondent, resident of a Village of Allahabad District of rural back ground, a student at the time of marriage, on 14.5.1997. The parties are Brahmin by caste. The father of the husband mostly resides at Kolkata in connection with his business, leaving his wife (mother in law of the appellant) and son respondent to reside in the Village, and used to visit once or twice in a year.
3. As per custom prevalent in the community, the wife remained in her parental house after the marriage and after about five years on 9.3.2002, ‘gouna’ ceremony was performed (second marriage) and then she visited to her matrimonial house in the Village where she lived happily for 15 to 20 days. Thereafter, she went to her parents’ house. The husband says that the parents of the wife wanted that the husband should reside with them at City Allahabad and that is the reason they used to create all sorts of obstructions and hurdles on the occasion of ‘Bidai’ of the wife to her matrimonial home.
4. The husband had earlier filed a petition under section 9 of the hindu marriage act for restitution of conjugal rights on 27.9.2002 being petition no. 519 of 2002, against his wife and her parents. After getting the information of the said petition, the parents of the wife acceded to his request and the parties compromised the dispute. The wife visited her matrimonial home in the month of 2003, consequently, the said petition was got dismissed in default on 21.5.2003.
5. The case of the husband in brief is that after about 10 months, in-laws again started pressurizing (the husband) to leave his parents and shift to Allahabad. The wife lived with him up to 11.3.2005 before Holi in his Village and thereafter without any lawful excuse, she has refused to come to her matrimonial house. It was further pleaded that he being a student and belongs to a family of limited means and the only son, it is not possible for him to have a separate accommodation in the City Allahabad although he has all love and affection for his wife and has all respect for her. Last effort for ‘Bidai’ was made on 25.10.2005 but without any success, on the above allegations a petition no.688 of the 2005 for restitution of conjugal rights, was presented.
6. In reply, the factum of marriage and of ‘Gauna’ held on 9.3.2002 was admitted by the wife. She came out with the case that the husband and his family members treated her very badly for inadequate dowry. She is also lone daughter of her parents besides a brother. She was beaten many times and was turned out by the husband and his family members. The allegation that mother-in-law is an old lady was denied and it was stated that even grandmother of the husband is alive. The husband and his other family members made murderous assault on her and it would be better if she resides in her parent’s house, it would also be better for both the parties. There is no question in the facts and circumstances of the present case for passing a decree for restitution of conjugal rights.
7. During the pendency of the petition for restitution of conjugal rights, the wife filed a case being Case No. 20 of 2006 for maintenance.
8. Certain other developments which goes to the root of the case were taken place during the pendency of these proceedings. The husband who was preparing for competitive examination of Indian Administrative Services took a room on rent in the city for preparation of the competition. The wife also resided at her parent’s house. She completed the nursery teachers training course and thereafter joined law classes and obtained the LLB degree. With the passage of time, she got herself enrolled as an Advocate and started practice. The husband successfully competed the I.A.S exams and was declared successful in IAS allied services. He was selected in Indian Railways in May 2006 and joined there on 15.1.2007. He joined the training college at Railway Staff College, Barodara on 15.1.2007.
9. Thereafter, the things started moving very fast at the end of the wife. She diverted all her energy to malign and started levelling all sorts of allegations against him. The subsequent events which took place will be narrated in the later part of the judgment, suffice it to say that the husband filed an amendment application to amend the petition. By amendment he added certain paragraphs in the petition raising grounds of ‘cruelty’ and ‘desertion’ on the part of the wife and sought a decree for divorce instead of restitution of conjugal rights. The amendment application was hotly contested by the wife but without success. She also approached this Court by filing writ petition which came to be dismissed.
10. The Family Court as well the High Court took out conciliation proceedings to settle the dispute between the parties but this exercise became futile.
11. In response to the amended petition for divorce, the wife filed additional written statement and took the stand that she has always discharged the obligation of a Hindu wife and it is the husband who did not discharge his part of obligation. The grounds for seeking divorce are all false and fabricated and she is prepared to live with her husband. She never treated the husband or his family members with cruelty. The fact remains that it is the husband and his family members who ill treated her because of inadequate dowry. She lived most of the time over a period 2002-2005 in her matrimonial house and now the husband having been selected in IAS services, she is being ill treated and has been turned out. For the first time she pleads that she had become pregnant and there was miscarriage on account of the ill behavior of her husband and his family members. She, shifts her stand and by filing a petition u/s 9 of hindu marriage act prayed that the decree for restitution of conjugal rights be passed instead of a decree for divorce.
12. The parties led evidence oral and documentary in support of their respective cases. The respondent examined himself as PW1, the wife examined herself as DW1. She also examined Shesh Nath Tewari as DW2, Akchaybar Nath Pandey her father as DW3 and Ram Pher as DW 4. The family court by the judgment under appeal dated 14.7.2011 has accepted the petition for divorce of the marriage dated 14.5.1997 and also dismissed the petition filed by the wife under section 9 of the hindu marriage act.
13. Heard Shri O.P.Singh, learned senior counsel along with Shri Satya Prakash, Advocate, in support of the appeal, Shri Navin Sinha, learned senior counsel along with Shri M.C.Chaturvedi, learned counsel for the respondent.
Having heard the learned counsel for the parties, we are of the opinion that the fate of the appeal depends on appreciation of facts on the basis of which the family court has decided the case against the appellant. Broadly speaking the following points fall determination before us.
1. Whether the allegation of the husband that he has been treated with mental cruelty by the wife is established within the meaning of section 13 of the hindu marriage act?
2. Whether the wife who is residing since 11.3.2005 or 15.6.2005 (as per appellant’s allegation) separately in her parental house amounts ‘desertion’ on her part? The appellant had a justified cause for not returning to the husband/respondent?
14. Before, however, dealing with these two points which are crux of the matter, it is necessary to summarize briefly the history of the marriage life of the parties.
15. The parties belong to Brahmin community. As per custom prevailing in this community, the marriage was performed on 14.5.1997 but the wife remained in her parental house and there was no ‘joint living’ of the parties. The parties got the occasion of ‘joint living’ after about five years when ‘gauna ceremony’ was performed on 9.3.2002. The wife came to her matrimonial house and lived there happily for 15 to 20 days. She was married to a person who was student and was an unemployed youth. He belongs to rural background and living in a Village namely, Nahawai, Meja of District Allahabad. The wife was brought up in a family having urban background in the City Allahabad. Her father is employed as Manager District Cooperative Bank. It looks to us as if it is possible that the trouble between the spouses erupted in part at least due to these variations.
16. It appears that immediately after a short span of marriage, the wife found it difficult to adjust herself in the atmosphere of Village in her in-law’s house. The trouble started shortly after the marriage. Her disinclination to live in the Village with her mother in law and that too with unemployed husband, compelled the husband to file a petition no. 519 of 2002 for restitution of conjugal rights. The said petition was not pursued further and it was got dismissed in default as in the meantime, the well wishers and family friends of the parties intervened in the matter and persuaded the wife to live with her husband in the Village. The wife tried to adjust in the family of her husband by living in the Village but some how she could not adjust and finally came to her parents house on the occasion of Holi festival somewhere in the month of March 2005. Here the parties are at variance. According to wife she is living in her parent’s house since 15.6.2005. This variation in dates is not of much importance.
17. We have narrated the incidents up to the year 2005.
18. Thereafter, the husband was selected in IAS Allied in the year 2006 and joined the training at Barodara. How far the success of the husband has been appreciated by the appellant is the next question. The wife could not tolerate the success of the husband and she became furious. With a revengeful attitude she filed the following complaints/applications with wild allegations against her husband before various authorities on various dates. The bone of contention is whether these complaints/letters written by the appellant against the respondent husband, amount to cruelty or not. The contents of these complainants may be noticed in brief:-
1. The appellant made a complaint to the Director General, Railway Staff College, Barodara, paper no.70C/20. The tenor of the complaint speaks a lot. There the wife alleged that Sri Vishnu Kant Tiwari, the selected candidate, her husband, is a ‘corrupt person’. She has been treated inhumanly by her husband, father in law, sister in law, brother in law by demanding dowry. An attempt was made to kill her by giving electric shock unsuccessfully, boiling water was thrown on her. She was turned out from her matrimonial home almost in dying state and was hospitalized and could recover after treatment for a considerable period of time. It is further stated that Sri Vishnu Kant Tiwari is a man of ‘criminal reputation’ and has ‘contacts with unsocial and undesirable elements’. He on 22nd September, 2005 visited her parent’s house and threatened to kill her. In this connection, he on 22nd of June, 2006 made a criminal assault on her. Information was given through application to the authorities concerned. Criminal Case No.C/28/2005 under sections 323, 504, 506, 324, 498 a ipc read with 3/4 of dowry prohibition act, Arti Vs. Vishnu Kant Tiwari is pending. In addition, criminal case no.20/2006, under section 125 cr.p.c. is pending before Judge, Family Court, Allahabad. Similarly, a case under section 9 of the hindu marriage act, vishnu Kant Tiwari Vs. Arti is pending. She concludes that Sri Vishnu Kant Tiwari is an ‘accused person’ involved in number of cases. 17.2.2007, 21.2.2004, 14th March, 2007 are the dates fixed in those cases and a sum of Rs. 75/- was imposed as cost and he has been directed to pay a monthly sum of Rs.400/- as interim maintenance. He remained absent in the court proceedings and information has been given by her to the President of India, Prime Minister of India, Home Ministry and the Chairman, Union Public Service Commission, New Delhi etc. etc..
It has been further stated that Sri Vishnu Kant Tiwari has been appointed in utter violation of indian civil service rules and of railway account service rules. action be taken against him. The complaint further recites that she is giving necessary information in the interest of justice and in the interest of public so that ‘legal proceedings may be ensured against him’. In the concluding part, she again asserts that the husband is a ‘corrupt person’ and has been selected in violation of the relevant Rules.
2. She filed second complaint dated 19th February, 2007 with the Secretary, Union of India (Karmik). It is paper no.70/18. In the complaint it has been alleged that the said complaint is being sent with reference to her earlier letters dated 28.12.2006, 13th December, 2006 and 5th of February, 2007. It has been stated that Sri Vishnu Kant Tiwari having roll number 153888 rank no.243 has been selected in the Civil Services Exam 2005, is a ‘corrupt person’ and it was prayed that an action may be taken against him. The allegations are that Sri Vishnu Kant Tiwari is quarrelsome, a person of inhuman behaviour and has attempted unsuccessfully to kill her and is an accused person under law. He is ‘wanted by court’ in a proceeding under Dowry prohibition act in connection with sections 323, 504, 506, 324, 598 A etc.. It has been further stated that he is such a person against whom ‘criminal cases’ detailed therein are pending against him. He, obtained the selection by playing ‘fraud’ and ‘concealing the material fact’ from the Public Service Commission, although he is ‘not qualified’ for the post of public servant. He by giving ‘false declaration’ has secured the service of Indian Administrative Services. A prayer was made ‘to terminate his services’ and to get lodged a criminal case against him under the provisions of Indian Penal Code for obtaining services by committing ‘forgery and fraud’ of fabricating documents, under intimation to her.
3. She filed the third complaint before the Senior Superintendent of Police, Allahabad paper no.70C/23 apprehending danger to her life and property and abduction at the hands of Sri Vishnu Kant Tiwari and unsocial elements. It has been stated therein that Sri Vishnu Kant Tiwari is a ‘corrupt and mischievous person’ and has ‘connection with hardened criminals of the city’. On 14 of March, 2007 he was seen along with four to five unknown persons around her residence at 8:00 PM. He abused her and her mother and threatened to kill her. Thereafter, all of them disappeared in a Jeep which was waiting at some distance. Due to darkness she could not notice the registration number of the Jeep. All unknown persons were armed with weapons. She and her family members are in a state of fear and therefore, it was prayed that necessary steps be taken for safety and security of life and property of the appellant and her family members. The copies of the aforesaid complaint were sent to the District Magistrate, Allahabad, Director General, Railway, Staff College Barodara and the Secretary, Union of India (Karmik).
4. The appellant again filed an application before the Senior Superintendent of Police, Allahabad dated 4th July, 2007 making all sorts of wild allegations against her husband and inlaws. It has been stated therein that boiling water was thrown on her person to kill. She was given electric shock and an attempt was made for miscarriage of her pregnancy. She has been turned out from her matrimonial house and is residing with her parents and details of various criminal cases etc. have been mentioned therein. It is paper no.70C/24 and copies of this complaint have been sent to District Magistrate, Allahabad, DIG, Lucknow and the Chief Minister.
5. She filed an application under section 156(3) cr.p.c before the Chief Judicial Magistrate, Allahabad for registering a criminal case against her husband Sri Vishnu Kant Tiwari and two unknown persons for abusing her and for threatening her. It was rejected by the order dated 25th June, 2007. It is paper no.70C/27.
6. Paper no. 70C/8 is again a complaint to the Senior Superintendent of Police, Allahabad against the selection of her husband on the allegations that she has reason to believe that her husband Sri Vishnu Kant Tiwari has obtained fitness certificate with regard to physical verification proceeding, by giving ‘illegal gratification’ to the police and administration who submitted a ‘false report’. Number of cases are pending against Sri Vishnu Kant Tiwari and therefore, an inquiry may be instituted against him in the interest of public.
7. Then, on 14th of August, 2007, a complaint was given to the Secretary (Karmik and Training) and to the Authorized Officer, Secretary/Information Officer, Union of India, North Block, New Delhi with the allegations that she has not been informed in the light of her letter dated 28th December, 2006 as to what ‘departmental proceeding’ has been initiated against Sri Vishnu Kant Tiwari. She demanded the following information:-
(i) What action has been taken on her earlier letter dated 28th December, 2006 by the department?
(ii) Whether the police verification of Sri Vishnu Kant Tiwari has been done or not? And whether the factum of cases pending against him have been noticed or not?
(iii) The trainee has been appearing on the dates fixed before the court in connection with the criminal cases pending against him at Allahabad District Court and the High Court as well. It may be informed whether Sri Vishnu Kant Tiwari is attending the courts after obtaining leave?
8. Sri also got lodged a First Information Report against her husband at the Police Station being F.I.R. No.40/05 dated 6th of December, 2005 under sections 323, 504, 506, 324, 598a ipc and 3/4 of the dowry prohibition act against her husband, mother in law Smt. Mithilesh Tiwari, Shambhu Nath Tiwari, Smt. Priyanka (Nand) and Praveen Kumar Mishra (Nandoi). The matter was investigated by police who on 30th December, 2005 submitted a final report as no evidence in support of the allegations in the First Information Report was found. She then filed an application before the Senior Superintendent of Police, Allahabad for reinvestigation by Special Force. The matter was reinvestigated and a final report was submitted on 20th July, 2006. The police has stated that the appellant has expressed reluctance/unwillingness to reside in the village, due to this reason there is lack of marital happiness with her husband. Paper no.70C/14 is the report of Police Station, Colonel Ganj, Allahabad to the Chief Judicial Magistrate, Allahabad in connection with her application under section 156(3) of cr. p.c. in respect of an alleged incidence dated 3rd of July, 2006 involving Sri Vishnu Kant and his two friends in the incidence of Marpit and abusive language. The police has found that the said allegations made by the wife are unfounded and wrong.
Paper 70C/32 is a report submitted to the Senior Superintendent of Police, Allahabad by the Circle Officer, Allahabad. It is dated 2nd of November, 2007. The Circle Officer has reported that the complainant (appellant) is original resident of District Allahabad. While her matrimonial house is in rural area. She appears to be a lady of progressive thoughts (Vah Swakshand Vicharon Ki Mahila Prateet Hoti Hai). The said report totally discards the allegations made by the appellant against her husband and his family members, as untrustworthy. It further recites that the appellant has filed the application within a view to take revenge after concealing the stay order passed by the High Court with a view to mislead. The stay order dated 24th August, 2007 passed in Misc. Writ Petition No.21355 of 2007 by the High Court has restrained the police from taking any action in the matter. The allegations made by the appellant in absence of any evidence could not be established.
9. On 15th December, 2007, being paper no.70C/36 a complaint was made to the Civil Officer (O.B.) and Central Public Information Officer, Railway Staff College, Barodara with regard to the alleged forgery and irregularities committed by Sri Vishnu Kant Tiwari, IRS. Through this complaint it was stated that Sri Vishnu Kant Tiwari has attended the Court on 29th October, 2007 and was also present in the training College on the same date, which is not possible. He has committed criminal offence and should be punished accordingly.
10. This is an undated letter being paper no.70C/37 addressed to Ms. Mamta Kandpal, Deputy Director (GR), Railway Board, New Delhi wherein similar kind of allegations referred to herein above as mentioned in the earlier complaints were reiterated. It was stated that Sri Vishnu Kant Tiwari is attending the cases in the courts and is simultaneously getting training in the College. Are these two things possible simultaneously? He is playing fraud. Number of criminal cases are pending against him. He has obtained the character verification report by use of money, power and influence.
11. Paper no.70C/40 is a letter dated 9th April, 2008 being addressed to Public Information Officer, Railway Staff College, Ministry of Railway, Government of India making various allegations against the character, reputation and working of Sri Vishnu Kant Tiwari. The allegations are of wild nature. They are repetitions of the allegations made in earlier to various authorities referred to above.
12. The appellant through her letter dated 16th of June, 2008 being paper no.70C/42 addressed to Public Information Officer inquired as to what action has been taken by the department against Sri Vishnu Kant Tiwari on her earlier complaints, failing which she will approach the Central Information Commission and the High Court and Supreme Court, at his costs.
13. The appellant has not left even the Chief Justice, High Court, Allahabad. The background fact is that the sister in law is married to one Praveen Kumar who is working as Stenographer in the District Court, Fatehgarh. With a view to create pressure, she made a complaint to the Hon’ble the Chief Justice against Praveen Kumar Stenographer through her complaint dated 12th of March, 2010 when he has hardly to do anything in the matter. An explanation was called for from him by the District Judge, Fatehgarh.
19. Faced with this situation, the husband respondent filed application for amendment of his petition to convert it, into a petition for divorce under section 13 of the hindu marriage act by incorporating the facts relating to cruelty and desertion based on the complaints made by the wife. The amendment as noticed herein above, was allowed.
20. Submission of the learned senior counsel for the appellant is that these allegations do not amount to cruelty.
21. It is not disputed that all these complaints etc. were written by the appellant. She admitted her signatures on photostat copies of these complaints produced in evidence by the husband. The learned counsel submitted that since no action has been taken on the basis of these complaints, therefore, it does not amount to cruelty. Much emphasis was laid by him on the deposition of the respondent husband that he possessed the original copies of these documents, which is an impossibility. It is of little importance as to where the original documents lie. Here is a case where the parties appeared in person before the Court and themselves conducted the case. The ‘original’ word in the context of this factual ground, would mean the ‘original’ from which photostat copies were made, as the public in general understands it and not in the legal sense, as one finds mention in the Evidence Act. The fact is that the writing of these complaints is not in dispute and has not been disputed by the appellant in her deposition. The question which falls for consideration is – Whether making of such type of complaints by a spouse against the other spouse amounts to cruelty within the meaning of section 13(1) (ia). It says that a decree for divorce can be obtained on the ground that the other party has, after solemnisation of the marriage, treated the petitioner with cruelty. The word “cruelty” has not been defined anywhere in the Hindu Marriage Act.
22. The learned counsel for the appellant submitted that these letters were written by the wife with a view to obtain the whereabouts and details of the posting etc. of her husband and there is nothing wrong about it. He submitted that the wife has always been ready and willing to reside with her husband but it is the husband who after his selection in IAS has refused to give his company. Further, the allegation that the wife refused to live in the village or compelled the husband to reside at Allahabad is concoction and cannot be relied upon. After getting selected in the IAS examination, the husband wants to remarry with another girl. It was also submitted that after the marriage, the husband concentrated and focussed his attention to get success in the competitive examination. In other words, the husband was having more interest in shaping his career and was not interested in appellant. That is the reason the appellant took the training of Nursery Course. Thereafter, she joined LLB classes and got herself enrolled as a practising advocate with the U.P. Bar Council. No case for grant of divorce decree has been made out, submits the appellant.
23. The learned counsel for the respondent submitted that in the unamended written statement dated 25th November, 2006, the only allegation put forward by the wife is that she was turned out from her matrimonial house many times after Marpit, vide para 5 of the written statement. In para 6 it has been stated that many times the husband and his family members made murderous assault on her person and she left the house and is leading a life of a deserted wife under compulsion in her parents’ house. Still danger to her life and property persists in laws’ house therefore, there is no question of restitution of conjugal rights and it would be in the interest of justice and beneficial to both of them if they reside separately.
24. Elaborating the argument, he submitted that the wife took a somersault, after she came to know about the success of her husband in the competitive examination. She took an ‘U’ turn and now set up the plea that she is prepared to live with her husband. The said plea of the wife is nothing but an eye-wash. In totality of the circumstances, the wife left no stone unturned to spoil both the life and career of the respondent. The learned counsel for the respondent pointed out many contradictions and holes in the case of the appellant and submitted that taking an overall picture of the case it is but apparent that the appellant is not telling truth. On the other hand, the husband all times till the filing of complaints by the wife against him was ready and willing to continue the marital relations. This is evident from the fact that he earlier filed a petition for restitution of conjugal rights and withdrew it when the appellant on intervention of the well-wishers returned to the husband’s house. Further, in the second petition for restitution of conjugal rights he has not levelled any serious allegation against the character of the appellant. In the petition he has used a very temperate language with the hope that with the passage of time the wife would become mature and would join his company. Para-7 of the petition for restitution of conjugal rights makes it crystal clear that the husband was confident about his success in the competitive examination and has expressed hope that within two to four years he will be able to have a residential accommodation in the city and by that time his father would return from Kolkata. He, with his beloved wife would lead a respectful and peaceful happy married life together. He, never used any intemperate language against the appellant either in the petition or in evidence. The things became unbearable and reached to the point of no return when the appellant crossed all the limits of propriety and decency and got lodged false complaints one after the other on false and frivolous and manipulated grounds. This not only affected him but also his other family members including the mother who became seriously ill and was taken to Delhi for treatment. The appellant left no member of husband’s family unhurt. The appellant went to the extent of making complaints to the Hon’ble the Chief Justice against the husband of sister (Nand), who is a class – III employee in a Civil Court and a newly wed. Every attempt was made to involve the husband and his family members to rope them in criminal cases, be under the provisions of ipc, dowry of prohibition act or relating to service. The life of husband has been made hell and only then under the compelling circumstances an application to amend and convert the matrimonial petition into a petition for divorce, was filed. The relations between the parties on account of action of the appellant is very strained and in such circumstances, the Court below has committed no illegality in passing a decree of divorce.
25. Considered the respective submissions of the learned counsel for the parties. In the earlier part of the judgment, the various complaints made against the husband by the wife have been summarised. The filing of these complaints by the appellant is admitted. She in her deposition admitted her signatures on these complaints. Filing of these complaints was a conscious decision of the appellant with motive, which is crystal clear, to torpedo the career of the husband at its threshold. The first complaint is dated 8th February, 2007 addressed to the Director General of the Training College where the husband was getting training after his selection in IRS. She described her husband as a ‘corrupt candidate’ (Bhrastha Abhyarthi) and a person of criminal image who still has ‘illegal connections with unsocial and undesirable elements’. The tenor of the complaint is to paint the husband as a criminal man involved in criminal cases. With a view to give colour to the complaint a false statement (as discussed below) that the husband and his family members tried to kill the complainant with electric shock was made. Similarly, incorrect allegations that boiling water was thrown to kill her and she was turned out after Marpit on 10th July, 2002 in a dying state while she was pregnant, with the result, she suffered miscarriage, were made.
26. The above allegations regarding the giving of electric shock with a view to kill her or throwing of boiling water or compelling her to leave the house on 10th July, 2002 during pregnancy are all incorrect in view of her deposition in the case. She has deposed in her cross examination that on 27th July, 2002 at the time of her Bedai a demand of dowry was made and a threat was given that if she comes again without dowry she would be put to trouble (Pareshan Karenge). The incidence of Marpit started after 27th July, 2002 because of dowry. She further states that she was never beaten earlier. Meaning thereby the things were smooth according to her own deposition up to 27th July, 2002. In further cross examination, she could not even state at what time she was beaten on 10th July, 2002. She could not tell even whether she was beaten in morning or after noon or in the evening. It seriously doubts the correctness of the allegation. This sounds strange that a newly wedded lady who is in laws’ house for the first time after marriage was manhandled, according to her, by her husband and family members and she could not even remember the time of such incident but could remember the date. She further states that her father fetched her to his house and was got treated there. She was hospitalized in the year 2002 and was under treatment for about one and half months. It is unbelievable and does not appeal to reason. No such complaint by anybody from the side of appellant or her parents, was ever made earlier. She further admits that she got lodged the first information report in the month of December, 2005. A bare perusal of the First Information Report reveals that there is no such allegation of any such incident of the year 2002.
27. The truth of allegation of her manhandling, on account of which she suffered miscarriage, of giving electrical shock and throwing of boiling water on her, may be examined.
28. At this juncture, it is apt to notice the pleading of the appellant as was set out in her written statement filed to the original petition. It is strange that there is no whisper in the written statement of any such incident dated 10th July, 2002 regarding giving of electric shock, throwing boiling water or miscarriage of pregnancy. The averments which could be found out in this regard are contained in paragraphs 5, 6 and 11. General allegations of murderous assault and demand of dowry without specifying anything as regards the time, place or date etc. have been made therein. Had any such incident happened in the year 2002, it must have found mention in the written statement dated 25th of November, 2006 filed to the unamended petition for restitution of conjugal rights. For the sake of convenience these three paragraphs are reproduced below:-
@ Hindi @
(Reproduced as it exists in the Paper Books, supplied by the parties)
29. It was rightly submitted by the learned counsel for the husband that had there been even nano fraction of truth with regard to the allegations made in the complaint made by the appellant, these should have been disclosed in the First Information Report lodged in December, 2005, or at any rate in the written statement dated 25/11/2006. Logically, it can be inferred that after 25/11/2006, there appears to be sea change in the stand of the appellant.
30. With regard to the miscarriage of pregnancy the stand of the husband respondent is that he was never made aware of the pregnancy. According to him, she intentionally got terminated the pregnancy without his knowledge or consent as the appellant was not prepared to lead a married life with him. There is no material on record to show that at any point of time either the husband respondent or his family members were informed about the pregnancy of the appellant. Whether it was a miscarriage of pregnancy or intentional termination could be established by producing the medical reports. The appellant admits that this happened in her father’s house and according to her she was under medical treatment, hospitalized too. She has not filed the relevant documents. She has filed only one report of Prayag Scanning Centre dated 30th August, 202 and one prescription of Y.P. Naithani Memorial Hospital dated 2nd of September, 2002 showing her pregnancy. Nothing more and nothing less than that. The allegation of the appellant that the miscarriage was caused due to manhandling does not inspire any confidence nor it finds corroboration from the attending facts and circumstances of the case. It does not appeal to reason that the appellant or her parents would have kept mum, had such an incident taken place. The marriage was only of few months old. First, pregnancy is a matter of joy and happiness. It is unbelievable that due to Marpit the miscarriage occurred, but the appellant and her parents accepted everything silently. Logically, it follows that the allegations made in this regard in the complaints by the appellant were wrong. The appellant persisted in her attempt to spoil the future and career of the respondent at its very inception. She should have relished and felt lucky had there was a sincere desire of love and affection of re-union, on the successful selection of the respondent husband in IAS (Allied). The Indian Administrative Services is the most cherished government service of the country. This is one of the most toughest competitive examination. Only laborious, determined and brilliant persons can compete. Selection in such services is not a matter of chance or luck. The appellant instead of having a feeling of proud and elevation apparently felt dejection and humiliation. Making of series of complaints to higher ups on false and baseless allegations against the respondent, makes it evident that she could not relish the success secured by the respondent. She forgot duties of a concerned wife towards her husband. She not only wrote complaints to higher authorities but expected from them that they would act on her false complaints to the detriment of the respondent. With this sadistic approach she used the worst adjectives against the respondent by describing him as a ‘corrupt person’ (Bhrastha Abhyarthi), ‘man of criminal image’, ‘man of illegal connection with unsocial and unwanted elements’ (vide complaint dated 8th February, 2007), obtained the service ‘by giving false declaration’ (vide complaint dated 19th February, 2007), ‘has connection with hardened criminals of the District’ (Jile Ke Shatir Apradhiyon Se Bhi Sambandh Hai), vide complaint dated 17th of March, 2007, involved in half a dozen cases and made unsuccessful attempt to kill her (vide complaint dated 12th July, 2007), obtained physical verification report from the police and the administration by giving them ‘illegal gratification’ (complaint dated 12th July, 2007), attending criminal cases without taking leave (vide complaint dated 14th August, 2007) etc. etc.. There seems to be no end. Wife in Indian culture is considered as Ardhangini, better half, who remains with the husband like shadow in happiness and sorrow always. In Hindu Law marriage is sacrament by taking of seven steps before sacred fire by the parties. They jointly take the following vow:-
shall always remain together in happiness and sorrow,
shall express love and affection for one another,
shall aim for contentment and respect for all,
shall remain loyal and support each other under any circumstances,
shall always keep the family integrity,
shall care endlessly so that our love shines,
shall practise all religious and family responsibilities sincerely diligently and faithfully.”
31. It is also admitted to the appellant that she filed First Information Report against her husband in the month of December, 2005 under the various sections of ipc and dowry prohibition act already referred to above. The matter was investigated twice by the police no truth was found in those allegations of the appellant. Police submitted a final report. On a protest petition filed by the appellant notice has been issued to the respondent by the concerned Magistrate, but we have been informed that the criminal proceedings have been stayed by the High Court. Be that as it may, till date, there is no supportive material to corroborate the allegations of the appellant.
32. The investigation report submitted by the police has been placed before us. The police has found that it is the appellant who all times was pressing the respondent herein to live in the city on a rental house which was not acceptable to the respondent due to his financial constraints and family problems. The appellant is a lady of progressive thoughts and could not adjust herself with the orthodox family to which the respondent belongs, finds mention in the police report.
33. There is evidence on record to show that besides making complaints against her husband to higher authorities and the police, attempts were made by the appellant to involve the husband in other criminal cases. She filed applications one after the other before the Chief Judicial Magistrate under section 156(3) cr.p.c. for taking cognizance of the alleged incidents involving the respondent. The Chief Judicial Magistrate after obtaining the report from the police dismissed them.
34. The learned counsel for the appellant submitted that the filing of these complaints does not amount to cruelty. The submission of the appellant that being wife of the respondent, she wanted to collect information with regard to the husband’s whereabouts, is meritless. It is not expected from a man of ordinary prudence and intelligence to make such complaints against her husband informing the authorities concerned that the husband is attending the Court during training hours without taking leave or has obtained the service by making false declaration or the husband is a man of criminal image and has association with unsocial and unwanted elements of the society. The question now arises as to whether such an act and behaviour amounts to cruelty within the meaning of section 13(1) (ia) of hindu marriage act or not.
35. In Dr. N.G. Dastane Vs. Mrs. S. Dastane, AIR 1975 SC 1534 the Apex Court has held as follows:-
“The inquiry therefore has to be whether the conduct charged a,.- 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. 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.
If the danger to health arises merely from the fact that the spouses find it impossible to live together as where one of the parties shows an attitude of indifference to the other, the charge of cruelty may perhaps fail. But under section 10(1) (b), harm or injury to health, reputation, the working career 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 cruelty having regard to the principles of English law, but whether the petitioner proves that the respondent has 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. (Emphasis supplied)
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The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse,. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.”(1) The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them over- look or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins, (1963) 2 All ER 966:
“In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better.”
36. In Shobha Rani Vs. Madhukar Reddi, (1988) 1 SCC, 105, the Apex Court has held as follows:-
4. “section 13(1)(i-a) uses the words “treated 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 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 mental, the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the 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, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”
37. In V. Bhagat Vs. D. Bhagat (Mrs), (1994) 1 SCC, 337, the Apex Court has held as follows:-
16. “Mental cruelty in section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
38. In GVN Kameshwara Rao Vs. G. Jabillia (2002) 2 SCC 294, the Apex Court has held as follows:-
12. “The Court has to come to a conclusion whether the acts committed by the counter-petitioner amount to cruelty, and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard to the sanctity and importance of marriages in a community life, the Court should consider whether the conduct of the counter- petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is cruelty on the part of the counter-petitioner. This is to be judged not from a solitary incident, but on an overall consideration of all relevant circumstances.”
39. In Vijaykumar Ramchandra Bhate Vs. Neela Bhate, AIR 2003 SC 2462, the Apex Court has held as follows:-
11……………..”A conscious and deliberate statement leveled with pungency and that to placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations leveled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelated and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement.”
12. “The submission on behalf of the appellant that once the decree for divorce is set aside, there may be fresh avenues and scope for reconciliation between parties to revert back to matrimonial home, does not appeal to us in any manner, viewed in the context of the attitude of the wife, seriously contesting the claims of the appellant, by filing her reply in this Court, with enclosures thereto, though not appearing either in person or through counsel. The allegations and counter allegations exchanged are indicative of the strong hatred and rancour between them. Judged in the background of all surrounding circumstances noticed by the courts below and what has been observed by us supra, the claim appears to us to be too desolate merely born out of despair rather than based upon any real, concrete or genuine purpose or aim. Once the decree for divorce is confirmed, the relief sought for by the husband for restitution has to inevitably fail.”
40. In A. Jayachandra Vs. Aneel Kaur, AIR 2005 SC 534, the Apex Court has held as follows:-
“16. The matter can be looked at from another angle. If acts subsequent to the filing of the divorce petition can be looked into infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in the behaviour and conduct. In the instant case, after filing of the divorce petition a suit for injunction was filed, and the respondent went to the extent of seeking detention of the respondent. She filed a petition for maintenance which was also dismissed. Several caveat petitions were lodged and as noted above, with wrong address. The respondent in her evidence clearly accepted that she intended to proceed with the execution proceedings, and prayer for arrest till the divorce case was finalized. When the respondent gives priority to her profession over her husband’s freedom it points unerringly at disharmony, diffusion and disintegration of marital unity, from which the Court can deduce about irretrievable breaking of marriage.”
41. In Parveen Mehta Vs. Inderjit Mehta, (2002) 5 SCC 706, the Apex Court has held as follows:-
“19. Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91).”
42. In Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511, the Apex Court has held as follows:-
101. “No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(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.
(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.
(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.
(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.
xx xx xx xx xx xx xx xx
xx xx xx xx xx xx xx xx
(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.”
43. Recently, the Supreme Court again considered the matter in Vishwanath Vs. Sau. Sarla Vishwanath Agrawal, 2012 JT (6) 62. It has taken into consideration its various earlier judgements referred to above. In this case the assertion against the wife was that she used to hide the pressed clothes of her husband while he was ready to go to the factory. She used to crumple the ironed clothes and hide the keys of the motorcycle or closed the main gate to cause trouble to the husband. This was held to be cruelty on the party of the wife.
44. On an application of the ratio of the decisions referred to above, it would be clear that the action of the wife of making false complaints against her husband to the higher authorities, lodging false first information reports with the police officials, initiating the criminal proceedings before the Court of Magistrate by levelling false and fictitious allegations, would amount to mental cruelty. The explanation of the wife that she was trying to find out the whereabouts of her husband being a concerned wife is nothing but an eye-wash. At no stage, she expressed any regret or remorse. Allegations of very serious nature were made against the working and conduct of husband by calling him a person having criminal background involved in criminal cases and has connection with unsocial and undesirable elements of the city. Such type of allegations to a person having self respect and reputation are more humiliating than death. She made conscious and deliberate statements with poignancy. They cannot be ignored so lightly. The verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post. Though the candidate has passed the written test and interview and physical test too, he can be dismissed on account of his antecedent record. In our considered opinion, a normal reasonable man is bound to feel the sting and pungency. The conduct of the appellant makes it graphically clear that she had really humiliated the respondent and caused mental cruelty. The feeling of deep anguish, disappointment agony and frustration of the husband is obvious. She had made attempts to prosecute him in criminal litigations which she had failed to prove.
45. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious belief, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now, may not remain mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances.
46. Humiliating words were written in the complaints. The fault, if any, lies with the appellant who could not adjust herself with her husband’s orthodox family living in a village. Instead of making adjustments, she not only raised hue and cry but focussed all her attention, energy and time to destroy the respondent’s career completely, to ruin him. A reading of paragraph 4 of the additional written statement filed to the amended petition supports our above conclusion. It has been stated therein that the wife before the marriage had understanding that she is being married to an advanced family residing in a developed village wherein the facilities are not less than a city which turned to be incorrect. We have also considered the plea regarding the demand of dowry. The said plea appears to have been put forward as an excuse by the appellant. The pleadings as set out in the written statement before the amendment are quite interesting. It contains only general allegations and not more than that. The matter on the demand of dowry complained by the appellant was investigated by the police and it has been found to be incorrect. In the circumstances of the case, we are not prepared to accept the testimony of the appellant in this regard and hold that matrimonial charge of cruelty is established; the appellant treated the respondent with mental cruelty, as discussed above. Having regard to the facts of the case, we reject the plea with regard to the demand of dowry or ill-treatment of the appellant by the respondent or by his family members. Now, the question of desertion may be considered.
47. The respondent husband has come out with the case that the appellant is living separately in her father’s house since 11th March, 2005 when she had gone there on the Holi festival. The appellant, on the other hand, states that she is living separately since 15th June, 2005. The question is whether she is living separately since then for any sufficient cause or not?
48. The cause of separate residence given by the appellant wife is that she was ill-treated in her in laws house wherefrom she has been turned out. The husband has a different story to tell. According to him, she is living separately out of her own free-will and the attempt for Bidai of appellant proved futile. The unsuccessful attempt for appellant’s Bedai was made by his father who visited the appellant’s residence on 25th October,2005 (It is customary that usually the father of the husband goes for Bedai). This was the cause of action for filing of the petition for restitution of conjugal rights. The appellant, on the other hand, submitted that the husband and his father visited her house on 21st September, 2005 and demanded dowry, in absence of her parents. Appellant’s father at that time had gone to bank in connection with his duty, while her mother was away for the purposes of marketing. Taking the advantage of the absence of the her parents, she was abused, threatened and beaten. Indisputably, the first information report with regard to the said incident was lodged in the month of December, 2005 after about three months, apparently with a view to deter the husband and his family members not to compel her to live in her matrimonial home. The appellant’s written statement to the unamended petition is dated 25th November, 2006 wherein she took the stand in para 9 that there is no justification for restitution of conjugal rights as her life, property is in danger and in the prevailing tense atmosphere it is better for both the parties if she lives in her parental house. In her written statement she contested the husband’s claim for restitution of conjugal rights and has not even whispered that she is ready and willing to join the company of her husband. Cause for separate residence, as found above, while dealing the question of cruelty, is not justified. Appellant permanently repudiated the marriage tie as is apparent from her subsequent conduct already discussed above.
49. In Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308, the Apex Court has held as follows:-
“Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are :
1. The factum of separation;
2. The intention to bring cohabitation permanently to an end animus deserndi;
3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period; The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include willful neglect of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.”
50. The Apex Court in Ramani Vs. Saraswathi, (2000) 10 SCC 458, has held as follows:-
“8. The question whether the wife was guilty of desertion or not is essentially a question of fact. Both the trial court and the lower appellate court had, on the basis of the evidence on record, concurrently come to the conclusion that the wife had deserted the husband about three and a half years prior to the filing of the divorce petition. This concurrent finding of fact has been upset on the basis that the wife did not know about the address of her husband when he had gone away to Kuwait. We, however, find, as noticed by the District Judge, that the parents of the respondent were living only 4 km away from Chidambaram and there is nothing to show that any effort was made by the respondent or her parents for finding out the address of the appellant. Moreover, the evidence of PW 2 has, unfortunately, not been discussed by the High Court. We find from the documents which had been filed in the trial court that a letter Exh. B-6 is stated to have been written by the respondent to the appellant on 16-10-1985 nearly one year after filing of the divorce petition. No document had been placed on record by the respondent to show that any such letter was written by her to the appellant between April 1981 and 18-10-1984. Under these circumstances, the High Court ought not to have reversed the concurrent finding of fact of the trial court and the lower appellate court. From the evidence on record, it is clear that the appellant was entitled to a decree of divorce on the ground of desertion.”
51. Coming to the facts of the present case, the marriage somehow survived for about a period of three years. The parties are living separately. The marital life was not happy, even to start with. They got the opportunity of cohabitation in the month of March, 2002, for the first time, and quarrel started within few months thereafter. First petition for restitution, which was withdrawn, was filed on 27.9.2002. The wife’s version is that she was ill-treated by her in laws on the occasion of first Bedai which took place on 29.7.2002 when she was pregnant.
52. It has come on record that the parties are living separately since the year 2005. The husband resided in a rented room at Allahabad for the purposes of preparation of competitive examination. While the wife was residing at her parental house, according to her, since 15th June, 2005. The uncontroverted evidence of the husband is that he visited his inlaws house only twice. First time on the occasion of his marriage i.e. on 14th of May, 1997 and second time on 9th March, 2002 when Gauna, the second marriage, took place. There is also no evidence nor the case is of either party that the parties had gone to meet each other while both were living at Allahabad. The lodging of FIR and spate of complaints with all sorts of allegations by wife against the husband is indicative of the fact that there was no desire on the part of the wife to continue the marital relation with the husband. Obviously, she could not adjust herself in the rural atmosphere prevailing in the husband’s house and she took a conscious decision to break the marital tie permanently and with this design in her mind she did not care the husband any more.
53. We are not impressed by the appellant that the respondent husband has not examined his parents to prove the cruelty and desertion, a fact weighs heavily against him. In the case on hand, the questions are being addressed on the almost undisputed documentary evidence in the shape of the letters written by the appellant her pleading.
54. The learned counsel for the appellant (wife) has relied upon the following cases:-
1. Brajesh Kumar Vs. Anjali, (2009) DMC 579;
2. Devram Bilve Vs. Indumati, (2000) 10 SCC 540;
3. Smt. Purnima Gupta Vs. Ajit Kumar Gupta and others, 2009 Femi-Juris CC 781 (Alld);
4. Neelam Kumar Vs. Dayarani, 2010 (92) AIC 239 (SC);
5. M. Pushpalatha Vs. M. Venkateshwerlu, 2010(91) AIC 585 (AP);
6. Ganesh Ch. Banerjee Vs. Francy Banerjee, 1(2009) DMC 606 (DB);
7. Rajendra Kumar Jajodia Vs. Puja Jajodia, 1(2009) DMC 332;
8. Rajesh Kumar Madan Vs. Mamta @ Venna, II(2005) DMC 101 (DB);
9. Pranab Kumar Chakraborty Vs. Kumkum Chakraborty,1(2005) DMC 457 (DB);
10. Arundhati Tripathy Vs. Durga Prasanna Tripathy, 1(2005) DMC 262(DB);
11. Ajay Pratap Singh Vs. Smt. Amar Bala Singh, 1(2002) DMC 708;
12. Narayan Roy Vs. Smt. Jamuna Dey Roy, 2010(90) AIC 757 (Gau);
13. ML Joshi Vs. Nirmala Joshi, 1(2007) DMC 849;
14. Rakesh Goyal Vs. Deepika Goyal, 1(2007) DMC 457;
15. Smt. Renu Vs. Sanjai Singh, AIR 2000 Alld. 201;
16. Ram Babu Babelay Vs. Smt. Sandhya, AIR 2005 (61) Alld. 435;
17. Bahadur Singh Vs. Smt. Jaswinder Kaur, AIR 2010 (NOC)546(PRH);
18. Dr. Tara Charan Agarwal Vs. Smt. Veena Agarwal, FAFO No. 37 of 1992 (Dt. 5.7.2011);
19. Smt. Guru Bachan Kaur Vs. Preetam Singh, AWC 1998 (1) 275;
20. Chiranjeevi Vs. Smt. Lavanya, AIR 2006 AP 269;
21. Harish Chander Drall Vs. Suresh Wati, II (2007) DMC 450;
22. Krishan Kumar Vs. Shankari, II (2007) DMC 367;
23. K. Palanisamy Vs. P. Samiathal, (2002) 1-Femi Juris CC 164 (Mad);
24. Ajay Sayajirao Desai Vs. Mrs. Rajashree Ajay Desai, AIR 2005 (Bom) 278;
25. Smt. Bulbul Sharma Vs. Vijoy Kumar Sharma, 2012 (113) AIC 346 (Gau H.C.);
26. Prakash Rao Vs. Smt. Jyoti, 2012 (113) AIC 657 (MP);
27. Goka Kameshwari Vs. Goka Venkataramaiah, 2011(107) AIC 823 (AP);
28. Satyajeet Nath Vs. Smt. Ratna Nath, 2012(115) AIC 640(Chhatt.);
29. Sri Srikanth Vs. Smt. P.B. Nandhini, 2010 (1) Femi-Juris CC 29 (Kant);
30. Smt. Deepika alias Baby Vs. Naresh Chandra Singhania, AIR 2000 Alld. 148.
55. It is not necessary for us to discuss the cases relied upon by the learned counsel for the appellant, individually. Most of the cases relied upon by him are judgements of different High Courts and they do not lay down and cannot lay down a proposition of law which may be contrary to the judgements of the Apex Court referred to above. So far as the proposition of law is concerned, there is no dispute. The difficulty arises about the application of proposition of law in a given facts and circumstances of the case. In one case mere writing of letter by wife under compulsion with an instinct of survival may not amount to cruelty, but in other case like the present one, written with a view to destroy the career of her husband when it is about to take off, will amount to cruelty.
56. Much was argued by the appellant’s counsel that since there is no reaction or action by the authorities concerned on the complaints of the appellant, the letters/complaints may be treated as meaningless. To constitute cruelty that there should be corresponding action. The argument proceeds on wrong footing. Mental cruelty means causing pain and suffering due to intolerable conduct of the other side. It is nature and conduct of the other spouse and it’s impact on the complaining spouse in context of their standard of living, which is relevant.
57. Some argument was also advanced on the footing that the appellant is prepared to live with the respondent. It was bounden duty of the Family Judge to have settled the matter by taking recourse to the conciliation proceeding. Attention of the Court was invited towards the fact that an application for conciliation was filed by the wife being 165 Ga dated 1st of July, 2011 which was rejected on the ground that the same is not bonafide and has been filed for the purposes of adjournment. The learned counsel for the appellant is not right in criticising the Judge, Family Court. It is a matter of record that the re-conciliation proceedings were taken out but without success before the Family Court. Not only that, when the matter had reached at an interlocutory stage at the instance of the appellant in the High Court, an attempt was made for reconciliation but without any success. The record of this appeal shows that the matter was sent to the Mediation Centre, High Court also, in this appeal. The parties could not come to terms. On the asking of the appellant’s counsel we inquired about any possibility of re-conciliation from the respondent’s counsel. The respondent’s counsel stated that there is no possibility of any reconciliation.
58. The argument of the learned counsel for the appellant that the counter claim filed by the wife for restitution of conjugal rights has been dismissed in one sentence which is not justified, is liable to be rejected. When the court was passing a decree of divorce, obviously the question of restitution of conjugal rights does not arise.
59. On a reflection of the facts of the case, rekindle of flame of love and affection between the parties is mirage. The prolonged legal battle has eaten away their emotional feelings for each other. It is appropriate to note that inhuman treatment has many facets. It fundamentally can cover such acts which have been inflicted with an intention to cause physical suffering or severe mental pain. Complaints by the appellant revealed her unhappiness, anger and jealousy. William Shakespear’s Othello says, “Jealousy cannot make any one happy and betrayal is the ultimate insult of the emotion called love.
60. Torture is not merely physical but may even consist of mental and psychological torture calculated to create fright to submit to the demands of the other spouse.
61. Viewed as above, it is proved that the appellant has treated the respondent with mental cruelty and also permanently deserted the respondent in terms of section 13(1) (ia) and 13(1) ib) of the hindu marriage act. Since the year 2005 at least.
62. Deliberate and calculated attempts were made by the appellant to cause damage to the reputation of the husband, by making baseless allegations. Recently, in Vishwanath Vs. Sau. Sarla Vishwanath Agrawal (supra), 2012 JT (6) 62, while dealing with the aspect of reputation the Apex Court has observed as follows:-
“Reputation which is not only the salt of life but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity.”
63. The appellant joined Law Classes in the year 2005 as admitted by her and obtained the Law Degree of Kanpur University and she got herself enrolled as an advocate with the U.P. Bar Council and is now a practising lawyer. Being dissatisfied with the marriage, she took the decision to obtain a professional degree to sustain herself and establish in life.
64. Now, the appellant is a part of legal fraternity where sky is the limit. We take this opportunity to advise her that she should not be disheartened and should now focus her energy, intelligence and devote time to attain the new heights in the profession and the life. Both the parties should keep in mind the two words for each other –“forget and forgive.” It will make their lives peaceful and happy and will dissolve all the bitterness which has come in their way due to the present litigation. Both of them are at the beginning of their career. They should pursue it dutifully with a sense of devotion and commitment. This is not an end of life but the beginning of new opportunities.
65. Any other point was not pressed. The appeal is dismissed. But no order as to costs.