Divorce : Cruelty,Irretrievably broke down,

HIGH COURT OF DELHI : NEW DELHI

MAT App. No.90/2007 & CM No.814/2008

Judgment reserved on: August 05, 2008

Judgment delivered on: 24th November, 2008

Smt.Vimla Mehra
W/o Sh.K.S.Mehra
D/o Sh.T.C.Sohal,
R/o D-1/180, Satya Marg,
New Delhi. ….Appellant

Through: Mr.Aman Lekhi, Sr.Adv. with Ms.Meenakshi Lekhi, Mr.Jaspreet Singh Rai and Mr.Rakesh Kumar, Advs.

Versus

Shri K.S.Mehra
S/o Sh.M.R.Mehra
B-61, Aditi Appartments,
Patparganj,
Delhi-110091. …Respondent.

Through: Ms.Geeta Luthra with Mr.Sanjeev Sahay and Ms.Aanchal Mullick, Advs.

Coram:HON’BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

V.B.Gupta, J.
This appeal has been filed by the appellant(wife) under Section 28 of Hindu Marriage Act, 1955 (for short as,Act?) against the impugned judgment and decree dated 15th October, 2007 passed by Sh.Gurdeep Singh, Addl.District Sessions Judge, Delhi.

2. Vide the impugned judgment, the trial court has decreed the petition under Section 13(1)(i-a) of the Act for divorce filed on behalf of the respondent-husband.

3. The brief facts of this case are that parties were married according to Arya Samaj rites and ceremonies on 12th November, 1978 at Delhi. The marriage was also registered. Out of the wedlock, two sons were born, namely, Kanak Mehra on 2nd February, 1981 and Vaibhav Mehra on 27th November, 1982.

4. After solemnization of the marriage between the parties, the appellant has treated the respondent with cruelty as under:-

(A) The respondent is an IAS Officer of 1978 Batch (U.P.Cadre) and at the time of filing of petition was posted as Joint Secretary to the Government of India (Ministry of Textiles). The appellant is an IPS Officer of 1978 batch (U.T.Cadre) and was posted as DIG, Group Centre, C.R.P.F., Bangalore.
(B) Both being civil servants and of the same batch decided to tie a nuptial knot in 1978. Both completed their training in 1980 and thereafter were posted at Andaman and Nicobar till 1984.
After that both were at Delhi between 1984 to 1990, at Arunachal Pradesh between 1990 to 1992 and again at Delhi after 1992 till the appellant got himself transferred to Bangalore on 16.11.1998 and the respondent continued to be in Delhi till date.
(C) Their matrimonial life went on well after the marriage for another 10-11 years. However, due to appellant?s misbehavior, ill-treatment, ego problems, cruel acts, etc., with time the matrimonial life of the parties greatly deteriorated.

(D) The appellant on the smallest pretext would pick up a fight with the respondent and would humiliate, insult and abuse the respondent in front of the children and also in front of the relatives of the respondent. The appellant even refused to do the normal household chores. On smallest pretext, the appellant would pack up respondent?s clothes and ask him to leave as the residence was on her name since sometimes the residence was allotted to the appellant. The respondent in order to make the marriage survive and especially to keep the atmosphere conducive for the upbringing of the children, kept on bearing the mental torture, cruelty, humiliation and the insult. The respondent would normally do the household chores and the appellant would not even help the respondent. The appellant though earning well, has not been contributing towards domestic expenditure for the last 4-5 years and the entire household expense is being borne by the respondent so as to humiliate and harass the respondent as she has deliberately taken the expenditure beyond affordable limits of the respondent. The stage came when the appellant in order to show her domination and pride used to humiliate and insult respondent on every possible occasion and pick up fight almost every day. Whenever, respondent?s father or brother or relatives came to visit the respondent, the appellant would ill-treat them and fight with the respondent as to why they were there and they should leave immediately. When the niece of the respondent, namely Urmila, got married on 2.5.1995, the respondent invited the couple to his residence on 4.5.1995, the appellant not only objected but rather ridiculed the respondent. (E) One of the brothers of the respondent, namely, Sh.I.S.Mehra, an IPS Officer (U.P.Cadre), expired on 29.10.1993. The appellant objected to the dead body being brought from Lucknow to 31, Ashok Road, New Delhi (Official residence of the respondent/appellant at that point of time). Even the wife of Sh.I.S.Mehra, who was also an IPS Officer (U.P.Cadre) expired on 12.10.1997. Therefore, their children, namely, Vertika and Vivek, came to stay with the respondent being their uncle and the natural guardian and especially due to the fact that they would find the same atmosphere in which they were staying. Though, Vivek was studying in Ghaziabad and staying in the College Hostel over there but he used to visit the respondent on week-ends but Vertika was studying in College in Delhi and staying with the respondent. The appellant instead of having a humanitarian approach in taking care of the two orphans who were undergoing a bad phase, used to openly say that they were orphans and actually she does not want them to come or stay in the house. The appellant even ill-treated and misbehaved with both the children and also humiliated and insulted them even in front of their friends. The appellant would not allow Vertika to celebrate her birthday or call her friends at home or go out with her friends. In fact, in order to harass and humiliate the respondent on 27.02.1998, when the respondent was going to Ghosi (UP) on Election Duty, the appellant started creating problems and stated that after the respondent had gone she would throw Vertika out of the house. The respondent requested her not to do so and wait till he returned from his duty after a few days. But she told that in any case if the respondent did not make alternative arrangements for the stay of his niece Vertika, she would throw her out of the house. In sheer desperation and with a sense of help-lessness, the respondent requested one of his nephews namely, Ajay Mehra to take Vertika away to avoid and untoward incident. Even the respondent?s nephew Vivek stopped visiting the respondent. This whole episode has greatly tortured the respondent mentally. The respondent has been humiliated, insulted and harassed by this act of the appellant. (F) The respondent did not stop her acts of cruelty there. Thereafter, in June, 1998 when respondent?s father came to visit the respondent, the appellant used to shout at the respondent and his father as to why his father was there. Instead of taking care of the old man, she never used to allow him to come in her sight and insult him and the respondent in case he came down from his room. One day when the respondent?s father came down from his room to go to the toilet, the appellant insulted him and told the respondent and his father that, the old man was intruding into her privacy and he should stay in his room and not to come out from the room whenever she is in the house. Thereafter, the respondent?s father left the house and since June 1998 has been staying with the younger brother of the respondent namely, Sh.P.S. Mehra. This greatly affected the psyche of the respondent who felt insulted and humiliated that he cannot even take care of his aged father. Even earlier on many occasions, the father of the respondent had to be sent away on her insistences as she would say that she could not stand him (the respondent?s father). It was the sad plight of the son (the respondent) who had to bear all these insults and humiliation in silence just to ensure that there was peace at home.

(G) That the appellant in order to demoralize and harass the respondent got herself posted to Bangalore where she joined her duties on 16.11.1998. The respondent requested her not to do so since this would completely breakdown their family life. But the appellant refused to listen to his requests and in fact took the eldest son Kanak with her to Bangalore. Moreover, the appellant has kept a room under the lock in the present house of the respondent for herself even though the accommodation is a Government accommodation allotted in the name of the respondent. All this the appellant has done to psychologically pressure and mentally torture the respondent.

(H) That the appellant came from Bangalore to Delhi in February, 1999 for a short visit. On 09.02.1999, the appellant again started fighting with respondent alleging that he is having a mistress and that he is not giving money to the children. When the argument became heated up, all of sudden she threatened the respondent that she will call the S.H.O. of the concerned area and file a false complaint against him so as to make him know that she is very powerful and he has to do all such things what she wants him to do. However, after repeated requests by the respondent, the appellant was pacified. Even the eldest brother of the respondent had called up Sh.Uday Singh (brother of the appellant) at Sonepat to intervene but he informed that he was busy in a meeting. (I) Thereafter on 12.02.1999 so as to defame, humiliate and harass the respondent, the appellant went to the office of the respondent and met his senior, who is the Secretary to the Government of India. To him the appellant narrated a false and frivolous story that the respondent is bad husband, he does not take care of his children, he wants to keep a mistress and he beats her up. This has greatly lowered the respect of the respondent in the office and has caused great mental torture to him. Thereafter also, the appellant has come to Delhi but on each occasion has humiliated and threatened respondent that she would meet the senior of the respondent and further humiliate him.

5. It is further stated that the appellant has left no stone unturned in ruining the life of the respondent and has perpetrated acts of cruelty as stated above and it has become impossible for respondent to live with the appellant. The respondent has not in any manner condoned the cruelty.

6. The divorce petition was contested by the appellant before the trial court.

7. Appellant in her written statement took certain preliminary objections, namely, that the petition filed is legally not maintainable since the same is not in accordance with the rules framed under the Act.

8. It is also stated that the petition is not maintainable under Section 23 of the Act as respondent never filed petition immediately when as alleged the appellant has treated him with cruelty.

9. On merits, the factum of marriage has been admitted. It also admitted that two sons were born out of the wedlock.

10. The appellant denied all the allegations made by the respondent in the petition and stated that the marriage between the parties has gone through a normal wear and tear, over a period of 24 years and the appellant feels that there is nothing wrong with her marriage with the respondent.

11. Misunderstandings and tensions are not unknown to the married couples and should be occasioned for correction rather than excuses for dissolution. Both the parties are at Delhi and situation can still be retrieved. Even otherwise, the appellant is a traditional and God fearing woman who wants to keep the family together.

12. It is not disputed that respondent is an IAS Officer and used to remain posted from one place to another and was posted as Joint Secretary to Government of India, Ministry of Textile at the time of filing of the petition.

13. It is also not disputed that appellant is an IPS Officer of 1978 batch (UT Cadre) and was earlier posted as D.I.G. (Group Centre C.R.P.F.) Bangalore, but presently she is posted in Delhi as Joint Commissioner in Women Cell of Delhi Police and is living with children in the same house where the respondent was/is also living.

14. The respondent has presently been posted to Lakshadweep Islands but the matrimonial home is being retained and the respondent resides in the said home whenever he visits Delhi.

15. The appellant was earlier posted to Bangalore and joined the respondent and children after her transfer in Delhi and both the parties started living peacefully under the matrimonial home. It is further stated that respondent has intentionally and deliberately not mentioned in the petition that he and the appellant knew each other for about two years prior to their marriage being the civil servants of 1978 Batch and married each other after complete understanding and due deliberations. It was the respondent who encouraged the appellant to join IPS.

16. It is denied by the appellant that she got herself transferred to Bangalore on 16th November, 1998 but in fact the transfer was in accordance of the policy of the Government and she has been posted back to Delhi on 5th April, 2000 and has been living peacefully with the respondent under the same roof. Even while posted in Bangalore, she was visiting Delhi quite often to be with the family and she would like to continue living with the respondent and be known as his wife. There has never been any complaint either on her part or the respondent during their previous posting from one place to another.

17. It is denied by the appellant that after10-11 years of marriage, the matrimonial life of respondent greatly deteriorated due to her misbehavior, ill-treatment, ego problem, cruel acts etc. The behaviour of appellant has always been cordial, adjustable and with love and affection and there has never been any ill-treatment or any ego problem as alleged. The appellant never committed any act of cruelty. Therefore, there is no question of matrimonial life of the parties to have greatly deteriorated as alleged by the respondent.

18. The appellant is devoted as a wife, is conscious of her duties, considers herself open to criticism and correction and wants to work on problems rather than make them a cause to snap ties. In fact there has never been anything wrong with the marriage and the marriage has gone through the normal wear and tear over the period of time.

19. The intention of respondent is not bonafide as he wanted to oust the appellant from the matrimonial home for which purpose he filed suit for permanent injunction against the appellant, which is pending in the court of Civil Judge.

20. It is denied that the appellant would pick up a fight with the respondent on the smallest pretext or humiliate, insult or abuse him either in front of children or in front of the relatives of the respondent. It is also denied that she has refused to do the household chores as alleged by the respondent, in fact she attended the all household chores more so because the respondent could not attend to them.

21. The respondent has also not mentioned any date, month and year when he is alleged to be bearing any mental torture, cruelty or humiliation to keep the atmosphere conducive for the upbringing of the children or in order to make the marriage survive.

22. It is admitted that sometimes the residence was allotted in the name of the appellant but she never ever remotely tried to assert her lien over the house. Since June, 1994, the family of appellant/respondent staying in Chankya Puri in the house allotted to the respondent.

23. It is denied that the appellant has never contributed towards domestic expenditure. On the other hand, she at all times contributed to the best of her ability towards households expenditure as well as towards education of their children. During her posting in Bangalore, she took along the elder son and bore the entire expenditure of his study as well as his boarding and lodging at Bangalore and did not leave both the sons with respondent and hence shared the responsibility equally. Further, she has contributed equally towards the purchase of residential flat in Delhi and a plot at Greater Noida as well as towards the purchase of other households items like A/C, Washing Machine, Computer etc. and other households items.

24. It is further denied that the appellant in order to show her domination and pride used to humiliate and insult the respondent on every possible occasion and pick up fight almost every day. It is also wrong that whenever the respondent?s father or brother or other relatives come to visit respondent, the appellant would ill-treat them and fight with the respondent as to why they were there and they should leave immediately. It is also denied that when the niece of the respondent namely Urmila got married on 2nd May, 1995, the appellant objected to the respondent inviting the couple to his residence on 4th May, 1995. Regarding invitation to the newly married couple to the house it is stated that it was not only that 8-9 guests had dinner party in the house but they also stayed in the house overnight. The appellant extended most generous hospitability to the newly wed couple and also presented expensive gifts to them.

25. It is also stated that the respondent has not mentioned any date, month and year when the appellant is alleged to have insulted or humiliated the respondent either in front of the children or in front of his relatives. The respondent has not mentioned the name of even a single relative in whose presence she is alleged to have insulted or humiliated or abused the respondent.

26. It is admitted that one of the brother of the respondent, namely I.S.Mehra an IPS Officer U.P.Cadre committed suicide on 29th October, 1993 but is denied that the appellant objected to the dead body being brought from Lucknow to 31, Ashok Road, New Delhi. It is stated that when the brother of the respondent committed suicide on 29th October, 1993, the respondent himself was also undergoing treatment for depression. In fact, the sequence of events is very different from what has been alleged. On the fateful day, the appellant was in a meeting at the I.B. Office where she received the said news of her brother-in- law?s unnatural death. She immediately left the meeting and rushed to locate the respondent. In the meantime, informed other relatives, made arrangements for travel to Lucknow as the family of the deceased and the dead body was at Lucknow. The appellant was able to locate the respondent only late in the evening at around 5.30 p.m. as he was untraceable during the day and nobody knew about his whereabouts. The appellant undertook it to be her own responsibility to arrange for whatever was to be done and she was also concerned that the respondent?s condition does not deteriorate so she was constantly in touch with the Doctor who was treating the respondent. The appellant took a loan from her friend Mrs. Nargis Rajkumar to buy Air Tickets for Lucknow. One of the appellant?s officers even went to the airport to buy the tickets and oversee the arrangements for the respondent and relatives visit to Lucknow. Under the circumstances, there is no question of appellant?s saying anything as alleged. The dead body was brought to the house at Ashok Road and from there it was taken to Village Mundhela Kalan for cremation in the afternoon. All the arrangements were made by the appellant as per her wisdom and capacity and she took leave and stayed in the village for 13 days, arranged „Garuda Puran? Path in the village for the entire duration, at the same time she was looking after the treatment of the respondent, welfare of the bereaved family and her family.

27. It has not been denied by the appellant that the wife of Sh.I.S.Mehra also expired on 12th October, 1997. The appellant never objected to stay of Vertika and Vivek, children of Sh.I.S.Mehra as alleged by the respondent. It is denied that the appellant instead of having humanitarian approach in taking care of the children used to openly say that they were orphans and she does not want them to come or stay in the house. It is denied that she ill-treated and misbehaved with the children or humiliated and insulted them in front of the friends.

28. Vivek was doing his medical first year from Santosh Medical College, Ghaziabad and he used to stay in the Hostel and used to come to their house on weekends and on quite a few occasions appellant and respondent used to go his college to meet him and to deliver food, clothes etc. in order to support him.

29. The appellant got Vertika admitted in a music college in Saket and paid her fees etc. She also took her for swimming at Talkatora Indoor Stadium. For treatment of depression, Vertika was also taken to the same Psychiatrist who was treating the respondent. Vertika was pampered in every possible way like appellant?s own daughter. Her friends from Ghaziabad used to come and stay in their house very often which was encouraged to make Vertika feel at home. Appellant even tried to teach Vertika cooking and made efforts in that direction. It is denied that Vertika was not allowed to celebrate her birthday or call her friends at home or to go out with her friends. In fact Vertika and appellant share the same birthday and Vertika?s birthday was celebrated and her friends did visit the house.

30. It is further denied that in order to harass and humiliate the respondent on 26th February, 1998 when he was going to Ghosi, U.P. on election duty, the appellant started creating problems and stated that after the respondent had gone, she would throw Vertika out of the house. In fact on 27th February, 1998 when the respondent was going to Ghosi (U.P.) and the appellant was posted in RAF, the job of appellant involved a lot of touring. The appellant?s two sons were having their Board Examination for X and XII which required a lot of preparation and concentration. The appellant requested the respondent to send Vertika to respondent?s brother?s house or to Vertika?s aunt?s house for a month, so that the children could study without any distraction and disturbance. Respondent refused to pay any heed to her request. Ultimately, respondent did make arrangement for Vertika to go to respondent?s brother house when Sandeep, Vertika?s cousin came to pick her up. The appellant never differentiated between them and her children and rather showed more love and affection towards them and pampered them.

31. It is further stated that the respondent has not been able to mention even a single incidence from 1993 to 27th February, 1998 when the appellant might have objected either to the stay of the children with the appellant or any incident of cruelty which is alleged to have caused any humiliation or insult to the respondent.

32. It is denied by the appellant that in June 1998 when the father of respondent visited him, she used to shout on him and his father as to why his father was there. The appellant neither ignored her father-in-law nor ill-treated or mistreated him. The appellant?s father-in-law continued staying in the same house till the respondent was transferred to Lakshadweep and continues to stay in the said house as and when the respondent visits Delhi. The appellant has always extended warm welcome and has given due respect and taken care of her father-in-law. The allegations made by the respondent in this regard are false and fabricated.

33. It is denied that the appellant in order to demoralize and harass the respondent, got herself posted to Bangalore where she joined her duties on 16th November, 1998. The appellant would have preferred not to go but was compelled. It is denied that the respondent had requested her not to do so since this would completely break down the family life. In fact, even while in Bangalore she remained in touch with her family and was available whenever required.

34. The appellant has also denied in her written statement that she kept a room under her lock in the accommodation allotted in the name of respondent. In fact, the appellant was transferred to Bangalore as part of exigencies of service and the exigencies of service has again brought her to Delhi. Bangalore was her only temporary address and her permanent address continues to be at Delhi and is the same as that of the respondent.

35. It is denied that on 9th February, 1999, she had any fight with the respondent or she has ever threatened to file a false complaint against him.

36. It is further stated that on 25th October, 1999 when she visited Delhi, the respondent threatened to forcibly oust her from the matrimonial home. Respondent even called his two nephews namely Ajay Mehra and Sandeep Mehra to help him achieve his objectives. Besides this, the respondent even threatened his sons (Kanak and Vaibhav) to make their mother (appellant herein) leave the premises failing which the respondent would call the police.

37. The appellant has denied that on 12th February, 1999 in order to defame, humiliate and harass the respondent, she went to his office and met his senior, who is the Secretary to the Government of India. She denies having narrated any false and frivolous story to him. It is also denied that she ever stated to any such Secretary that the respondent does not take care of the children or wants to keep a mistress.

38. It is admitted that she took appointment with the Secretary to Delhi Government, that is, senior colleague of the respondent not to humiliate him. It was merely to use the intervention to sort out the differences between her and the respondent.

39. Lastly, it is stated by the appellant that she has been making frantic efforts to normalize the relationship but the respondent for no sound reason has become stubborn and adamant and is refusing to discuss the issues about their children?s education and welfare. The appellant being a traditional woman is still hopeful of reconciliation and there are no serious differences between the parties. Communication gap, consequent misunderstanding coupled by wrong feeding by the relatives is causing further strain on the relationship. The parties together have brought their children on this earth and it is their joint responsibility to give them good family atmosphere by overlooking small differences, if there are any and try to make adjustment for their good future and proper upbringing. Thus, the appellant has never committed any act of cruelty, therefore, there is no question of condoning the same by the respondent.

40. In the replication filed by the respondent, he has controverted the allegations made by the appellant.

41. I have heard the learned counsel for the parties at length and have gone through the record.

42. As per contentions of learned counsel for the appellant, the sole issue in this case is as to whether after solemnizing of the marriage, respondent was treated with cruelty or not.

43. According to the learned counsel, what is meant by cruelty in matrimonial proceedings is not defined in the Act. For this purpose, learned counsel has referred to various other provisions of the law in which cruelty has been defined. One such provision is explanation attached to Section 498A IPC, Section 41 of the Children Act, 1960, Section 2 of Dissolution of Muslim Marriages Act, 1935, Section 10 of Divorce (Amendment) Act, 2001, Section 18 of Hindu Adoptions and Maintenance Act, 1956, Section 27 of Special Marriage Act, 1954 and illustrations annexed to Explanation 2 of Section 14 of Evidence Act, 1872.

44. The next contention of learned counsel for the appellant is that Hindu Marriage is sacrament and is not a contract. The respondent cannot be allowed to take advantage of his own wrongs. The sanctity attached to the relationship of husband and wife and the near inseparability of this relationship is the foundation of the Dharma of Hindu social life. Notwithstanding the conduct of the respondent, the appellant does not desire any release from her husband. There is sanctity in a Hindu marriage and if that sanctity is not preserved by those who are well educated and well placed in life the only spot on earth called India where the remnants of Hindu way of life exists will melt away to oblivion.

45. It is also contended that the appellant wants to keep the marriage intact while respondent wants to break it. Quarrels usually take place in every house and these quarrels are normal wear and tear in the married life which cannot be said to the act of cruelty. Some incidents have been blown out of proportion and no allegation with regard to cruelty has been made from 1978 to 1998 in the petition. The marriage is still alive. Since respondent has deserted the appellant, as he had moved out of matrimonial house, hence he is not entitled to any relief.

46. There is no question of the matrimonial life of the parties to have greatly deteriorated as alleged by respondent. The appellant devoted as a wife, is conscious of her duties and consider herself open to criticism and correction and want to work on problems rather than make them a cause to snap ties.

47. Learned counsel in support of his contentions has cited various decisions of Apex Court as well as this Court namely:-

Smt.Aloka Dey v. Mrinal Kanti Dey AIR 1973 Calcutta 393, Subramani and Ors v.

M.Chandralekha (2005) 9 Supreme Court Cases 407, Dr.N.G.Dastane v. Mrs. S.Dastane (1975) 2 Supreme Cases 326.

48. On the other hand, contentions of learned counsel for the respondent are that the respondent has proved the various incidents of cruelty against the appellant. Though on some issues, the trial court disagreed with the respondent and there are observations in favour of the appellant also. It is also contended by learned counsel for the respondent that even a single incident of cruelty is sufficient to grant of divorce.

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49. Learned counsel for the respondent has referred to each incident of cruelty and has discussed the evidence with regard thereto, which shall be dealt with later on, herein under.

50. The marriage between the parties have broken down irretrievably and marriage cannot be said to be alive, as since 1998 there has been no cohabitation. There is complete loss of trust and faith between the parties. There is no love between the parties. It is not a normal wear and tear. It is complete break down and as per decisions of Apex Court, such marriage cannot be allowed. There is no infirmity in the judgment of the Trial Court.

51. In support of its contention, learned counsel for the respondent has cited a large number of judgments namely;

Smt. Mayadev v. Jagdish Prasad, AIR 2007 SC 1426, V. Bhagat v. Mrs. D.Bhagar 1993 (4) SCALE 488, A Jayachandra v. Aneel Kaur, 2004 (10) SCALE 153, Ashok Hurra v. Rupa Bipin Zaveri, 1 (1997) DMC 491, Naveen Kohli v. Neelu Kohli, 128 (2006) DLT 360 (SC), Dr.Autar Singh Paintal v. Mrs. Iris Paintal, AIR 1986 Delhi 60, Samar Ghosh v. Jaya Ghosh, 2007 (2) JCC 1028, Lajwanti Chandhok v. O.N.Chandhok, 1981 (II) DMC 97, Shakuntala Kumari v. Om Prakash Ghai, 19 (1981) DLT 64, Narain Datt Sharma v. Santosh Sharma, 1986 (1) HLR 573, Smt.Savita Chadha v. Ravinder Singh Chadha, 1987 (2) All India HLR 412, Kishan Pal Singh v. Smt.Bimla, I (988) DMC 39, Vinod Kumar Sharma v. Nutan Sharma, 1986 (I) HLR 625, Dr. N.G. Dastane v. Mrs. S. Dastane AIR 1975 S.C. 1534 and Shardha Nand Sharma v. Kiran Sharma 28 (1985) Delhi Law Times (SN)

32.

52. The cruelty is a ground for divorce under Section 13 of the Act and the relevant portion of this Section reads as under;

“13. Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(i) x x x (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) to (vii) x x x Explanation- x x x”
53. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. D. Tolstoy in his celebrated book “The Law and Practice of Divorce and Matrimonial Causes” (Sixth Edition, p. 61) defined cruelty in these words:

“Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.”
54. The Shorter Oxford Dictionary defines “cruelty” as “the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness”.

55. The term “mental cruelty” has been defined in Black’s Law Dictionary [8th Edition, 2004] as under:

“Mental Cruelty – As a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”
56. The concept of cruelty has been summarized in Halsbury’s Laws of England [Vol.13, 4th Edition, Para 1269] as under:

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse.
Malevolent intention is not essential to cruelty but it is an important element where it exits.”
57. In 24 American Jurisprudence 2d, the term “mental cruelty” has been defined as under:

“Mental Cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.”
58. In Dr. N.G. Dastane v. S. Dastane, (supra), the Apex Court has observed as under;

“…whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the Respondent”.
59. In the case of Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, the Apex Court has observed as under;

“Section 13(1)(ia) uses the word “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 behavior. 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.”
60. The Court further observed;

“The context and the set up in which the word “cruelty” has been used in the Section seems to us, that intention is not a necessary element in cruelty. That the word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, that act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill- treatment.”
61. In the case of V. Bhagat v. D. Bhagat, (Supra), the Apex Court has observed as under:

“Mental cruelty in Section 13 (1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
62. Again in Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591, the Apex Court has observed as under;

“Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.”
63. In Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582, the Apex Court has laid down as to what constitute cruelty;

“Cruelty for the purpose of Section13(1)(ia) is to be taken as a behavior by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behavior is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”
64. Again in A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534, a three judge Bench of Apex Court observed that ;

“The expression „cruelty? has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife.
Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.”
The Court further held;
“To constitute cruelty, the conduct complained of should be „grave and weighty? so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than „ordinary wear and tear of married life?. The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non- violent.
The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper- sensitive approach would be counter- productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court.”
65. The Apex Court in Vinita Saxena v. Pankaj Pandit, AIR 2006 SC 1662, has observed as under;

“As to what constitute the required mental cruelty for purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.”
66. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in 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 beliefs, 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 a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

67. The appellant/wife examined herself as RW1, Ms. Madhu Chandra as RW2, Ms. Nargis Rajkumar as RW3, Ms. Murti Devi, mother of the appellant as (RW4), Ms. Jaya Kumari (though RW-5 but again written as RW4), Sh. Dhanpat Singh, brother-in-law of the appellant, Sh. Manmohan Singh RW-7 (but again written as RW6), brother of the appellant, Mrs. Neelam Singh (as RW8), R.R. Bansal (as RW9), Smt. Sushila Bansal (as RW10), Ram Lal as RW11 and Smt. Nirmala as RW12.

68. The respondent / husband examined himself as PW1 and filed his evidence by way of affidavit, PW2 Sh. V.K. Sharma, PW3 Vertika, niece of the respondent and, PW4 Sh. S.S. Mehra, elder brother of the respondent.

69. Allegations with regard to the grounds of cruelty have been enumerated in Para 4 hereinabove. But the question to be seen in the present case is as to whether in fact they constitute cruelty or not?

70. Para 4(A) and (B) gives the status and place of posting of both the appellant as well as respondent. The facts mentioned in these paras by no stretch of imagination can be said to be an incident of cruelty.

71. Para 4(C) mentions about the general behaviour of the appellant, ill-treatment, ego problems and her cruel acts etc. It nowhere states about any specific incident of cruelty. As per Rules framed under the Act, incidents of cruelty are to be specifically mentioned with date, time and place but in this para, no specific incident of cruelty has been mentioned.

Misbehaviour, ill-treatment etc. of appellant towards respondent and his family members:

72. Marriage between the parties was solemnized on 12.11.1978 and as per averments made in the petition, their matrimonial life went on well for about 10-11 years. This shows that the matrimonial life was going smooth till 1989 and all the differences started between the parties thereafter.

73. Allegations with regard to the misbehaviour by the appellant, as alleged in the petition are that she on smallest pretext would pickup fight with respondent and would humiliate, insult and abuse him in front of children and also in front of his relatives. Whenever, father or brother or relative of the respondent came to visit him, appellant would ill-treat them and fight with the respondent, as to why they were there and they should leave immediately.

74. No date, time etc. of any such incident has been mentioned in the pleading.

75. As stated above, the appellant would pick up a fight with respondent and humiliate, insult and abuse the respondent in front of the children. The best evidence to prove these allegations would have been the children, who in this case are sons, born on 02.02.1981 and 27.11.0982 respectively.

76. The recording of evidence in this case started in year 2002 and by that time, both the sons have become major and as such they would have been best person to depose about these allegations made by the respondent in his petition. For reasons best known, the respondent has not examined either of his son to prove this fact that appellant would pick up a fight with him and humiliate, insult and abuse him in front of the children.

77. As far as humiliation, insult and abuse in front of the relatives of the respondent is concerned, the respondent has examined PW4 S.S.Mehra, his elder brother on this point beside, himself.

78. No specific date, time of any such incident has been given either by the respondent or PW4 Sh.S.S.Mehra.

79. It is well settled law that any evidence which is led beyond pleadings cannot be looked into (see AIR 1930 privy council 57). Thus whatever evidence which has come on record but which is beyond pleading, will not be looked into or considered at all by this Court.

80. However, respondent has mentioned specifically about one incident when he was ridiculed by the appellant and that incident is dated 04.05.1995, when niece of the respondent Ms. Urmila got married and respondent invited the couple to the residence.

81. Respondent claimed that whenever, his father or brother or relatives came to visit them, the appellant would ill-treat them and fight with him as to why they were there and they should leave immediately. When Ms. Urmila, the newly married niece of the respondent with her family, were invited by respondent at their residence on 4.5.1995, the appellant not only objected, but rather ridiculed him.

82. The respondent in his cross-examination stated that the programme was fixed one day prior to the marriage after the consultation with the appellant. Urmila, her husband along with some relatives including mother of the husband of Urmila came for dinner and had stayed overnight and left on the next day. Appellant had objected to the stay of Urmila and told him as to why he had invited them.

83. Respondent denied the suggestion that invitation to Urmila and her husband was given by both of them. He stated that he does not remember as to when he had discussed the invitation with the appellant. The suggestion to invite them was of his own.

84. He denied that the gifts were given by the appellant to Urmila and her husband. He further stated that he had brought the gift, but do not remember what were the gifts given to Urmila and her husband.

81. In his cross-examination, respondent admits that on the next day, Urmila and her in-laws went to their house happily. He also admits that the photographs of the party were also taken and this occasion was also celebrated with bottle of champagne.

85. PW4, S.S. Mehra, brother of the respondent, regarding the dinner hosted by the respondent on 04.05.95, has stated that he found the appellant was not at all hospitable and respectful to anyone of them and it was a sad experience for them.

86. In his cross examination, he stated that the respondent invited them and denied the suggestion that the appellant had given gifts to his daughter and her in-laws. He also stated that there was no conversation between himself and appellant before 04.05.95 regarding going for the dinner. He stated that the photographs were also taken. He also admits that they had enjoyed good food but he claimed that they were not given good treatment.

87. On the other hand, appellant claimed that she had given expensive gifts to them.

88. In view of the above evidence on record, it stands established that PW4 S.S. Mehra brother of respondent along with family were invited for dinner along with his newly married daughter Ms. Urmila and her husband.

89. Had there been any objection to this dinner by the appellant, the dinner invitation would have not materialized. Respondent and his witness have no where stated as to in what manner the appellant “ridiculated them”.

90. It is not the case of the respondent that appellant did not join in this dinner. Admittedly, gifts were given to the newly wedded couple. As per statement of PW4 S.S. Mehra, they had good food while, respondent admits that photographs of the party were also taken and this occasion was celebrated with bottle of champagne. Moreover, respondent also admits in his cross-examination that on the next day, Ms. Urmila and her-in-law went to their house happily.

91. So, where was the cruelty in the dinner party of 4th May, 1995? The findings of Trial Court on this point are affirmed.

Objection to the dead body of respondent’s brother being brought to their residence:

92. There is no dispute that the husband?s brother expired on 29.10.93.

93. The respondent claims that appellant has objected to the dead body being brought from Lucknow to 31, Ashoka Road, New Delhi, their official residence. He had also stated that appellant neither did take loan or brought air tickets or made arrangements for him and his relatives visit to Lucknow nor took any leave or stayed in village for 13 days or arranged „Garuda path? in the village. The tickets were purchased by his elder brother S.S. Mehra (PW4).

94. In his cross-examination, respondent stated that;

“I came to know about the death of my brother at 5 p.m. when I came to house on 29.10.93 from duty. It is wrong to suggest that the intimation about the death of my brother was given to me by the respondent. When I reached home at 5 p.m., there was crowd of persons at house and they also told me. It is correct that decision to bring the dead body at Ashok Road was already taken when I reached house at 5 p.m. The decision to bring dead body was not taken by me. My elder brother had taken the decision to bring the dead body at Ashok Road.”
Further he stated that;
“It is correct that dead body from Airport was brought to 31, Ashok Road. It was our official residence. I accompanied the dead body from Delhi Airport to 31, Ashok Road. It was 30th October, 1993 early morning. It was decided by me to bring the dead body to 31, Ashok Road.”
95. PW 4, S.S. Mehra has deposed in his affidavit that when he informed Vimla Mehra about the demise of his brother I.S. Mehra, she informed him that she would come after attending the meeting. The place of cremation was finalized as Mundela Kala Village as per the wish of deceased I.S. Mehra?s wife. When they said that the dead body will be brought to Ashoka Road house and then it will be taken to the village, Vimla Mehra argued rudely that the dead body should not be brought to Ashoka Road residence and only after her parents persuaded her that she agreed to allow the dead body to be brought to her Ashoka Road residence. He stated that he arranged for the money for the air tickets for his journey as well as the journey of his relatives from Delhi to Lucknow.

96. In his cross examination he stated that he was told about the death of I.S.Mehra by his cousin brother over the telephone at about 1 pm on 29.10.93. He did not enquire him regarding the death. His father was at Lucknow with his brother who died. He tried to contact the respondent but he could not be contacted then he contacted appellant over telephone to inform regarding the death. Apart from them, he did not inform anybody. He himself reached at Ashoka Road. He called the respondent in his office but he was not available. He could not contact the respondent and without meeting him, he left with his uncle to Lucknow. He left for Lucknow by air at 5 pm. Respondent did not go to Lucknow. Appellant has met him at the residence before he left Delhi. He had spoken to her as it was solemn occasion of death and she told him that she was in meeting.

97. He admitted that the appellant had arranged for the air tickets though they had paid the fare and he had also left for airport in her official car. She had arranged for two tickets to his knowledge and he had paid the money of the tickets to Sh.Mukhtiyar Singh, police man at the airport as the tickets were with him.

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95. He denied that he collected the tickets from U.K. Chaudhary ACP, on behalf of the appellant. However, he admitted that all the arrangement for bringing the dead body was made by the appellant on her own and the same was appreciated. He stated that he told the appellant that the dead body would be brought to Ashoka Road to which she had objected.

98. RW3, Nargis Raj Kumar in her examination-in- chief has stated that she had lent some money to the appellant to meet the unforeseen required expenditure due to the death of I.S.Mehra.

99. It is clear from the perusal of the record that PW4, S.S. Mehra has more or less admitted the version of the appellant except that he has made the payment. From the testimony of RW3/Nargis Raj Kumar, it appears that initially the appellant might have borrowed money from RW3, but at the time of leaving the airport, she might have been paid money, for the tickets brought by the police man.

100. As per version of PW4/S.S. Mehra, the appellant agreed for the dead body to be brought at Ashoka Road after intervention of her parents but her mother was not given any suggestion that the appellant has objected to the dead body being brought to the Ashoka Road residence.

101. As regards the version of the appellant staying there for 13 days, RW4 has not stated that the appellant had remained at the village for 13 days in the Puja. However PW3 Vertika in her cross-examination has stated that tervi of her mother was on 24th October, 1997 when respondent was in Lucknow, who stayed with them in Lucknow till 1st November, 1997. She admits that respondent also attended tervi of her mother but she did not stay there.

102. RW3, Nargis Kumar claims that she had attended the last rites of I.S. Mehra and she had gone to the village with the dead body.

103. In her cross-examination, she stated that she did not remember whether she had gone alone in the car or somebody else or appellant was with her in the car for the cremation of Sh.I.S. Mehra. She also stated that she did not remember at what time she came to know about the death of I.S.Mehra. She stated that she neither remember the time after how much time of her reaching the place, the body was brought and who had brought the body from Lucknow nor she remember as to whether the respondent reached Ashoka Road prior to her reaching to Ashoka Road or subsequently.

104. After scanning through the evidence, it stands clearly established that all the arrangements for bringing the dead body were made by the appellant on her own and the same were appreciated. It is also proved from the record that appellant arranged for the Air Tickets and PW4 had left for airport in appellant?s official car and she had also attended tervi of wife of brother of respondent.

105. Can it be said under these circumstances, that appellant had raised objection to the dead body of respondent?s brother being brought to their residence. On the other hand, appellant readily and willingly provided all the possible assistance for making all necessary arrangements required for the purpose. These acts of appellant in any manner cannot be said to be “cruel acts”.

“Ill-treatment to the children of the deceased brother of respondent”.

106. Respondent has stated that as the wife of Sh. I.S. Mehra, his brother, who was also an IPS Officer (U.P. Cadre) expired on 12.10.1997, therefore, their children, namely, Vertika (PW3) and Vivek, came to stay with him being their uncle and the natural guardian and especially due to the fact that they would find the same atmosphere in which they were staying. Vivek was studying in Ghaziabad and staying in the College Hostel over there but he used to visit him on week-ends but Vertika was studying in College in Delhi and staying with him.

107. It is the case of respondent that, the appellant instead of having a humanitarian approach in taking care of the two orphans who were undergoing a bad phase, used to openly say that they were orphans and actually she does not want them to come or stay in the house. The appellant would not allow Vertika (PW3) to celebrate her birthday or call her friends at home or go out with her friends.

108. In fact, in order to harass and humiliate the respondent, on 27.02.1998, when the respondent was going to Ghosi (UP) on Election Duty, the appellant started creating problems and stated that after the respondent had gone, she would throw Vertika (PW3) out of the house. The respondent requested her not to do so and wait till he returned from his duty after a few days. But she told that in any case, if the respondent did not make alternative arrangements for the stay of his niece Vertika (PW3), she would throw her out of the house.

109. In sheer desperation and with a sense of help- lessness, the respondent requested one of his nephews namely, Ajay Mehra to take Vertika (PW3) away to avoid an untoward incident. Even the respondent?s nephew Vivek, stopped visiting the respondent. This whole episode has greatly tortured the respondent mentally. The respondent has been humiliated, insulted and harassed by this act of the appellant.

110. On the other hand, appellant claimed that she never objected to stay of Vertika (PW3) and Vivek, children of Sh.I.S.Mehra as alleged by the respondent. It has been denied by her that she ill-treated and misbehaved with the children or humiliated and insulted them in front of the friends. She claimed that Vivek was doing his medical first year from Santosh Medical College, Ghaziabad and he used to stay in the Hostel and used to come to their house on weekends and on quite a few other occasions.

111. The appellant pampered Vertika in every possible way like her own daughter. She got Vertika admitted in a music college in Saket and paid her fees etc. She also took her for swimming at Talkatora Indoor Stadium and for treatment of depression, Vertika was also taken to the same Psychiatrist who was treating the respondent. Her friends from Ghaziabad used to come and stay in their house very often which encouraged to make Vertika feel at home. Appellant even tried to teach Vertika cooking and made efforts in that direction.

112. It is denied by the appellant that Vertika was not allowed to celebrate her birthday or call her friends at home or to go out with her friends. In fact, Vertika and appellant, share the same birthday and Vertika?s birthday was celebrated and her friends did visit the house.

113. Appellant further stated that there is no dispute that on 26th February, 1998, the respondent was going to Ghosi, U.P. on election duty and on the said day, Vertika was taken by his nephew but reason for this is that her children were also having their Board Examination for X and XII class which required a lot of preparation and concentration. The appellant requested the respondent to send Vertika to respondent?s brother?s house or to Vertika?s aunt?s house for a month, so that the children could study without any distraction and disturbance. Respondent never used to pay any heed to her request. Ultimately, appellant did make arrangement for Vertika to go to respondent?s brother house when Sandeep, Vertika?s cousin came to pick her up. The appellant never differentiated between them and her children and rather showed more love and affection towards them and pampered them.

114. In her cross examination, appellant has stated that she took Vertika to musical school and the fees was paid by her in cash and the same was discussed with the respondent before taking Vertika to the school. She further stated that she do not have the receipt. She knew the Principal and Director of the institute.

115. These facts have not been disputed by Vertika. She admits that she had gone to musical school but she claims that she had gone only for once. She also admitted that appellant had gone for swimming with her which fact the respondent has denied that she had ever gone with the appellant.

116. In her cross examination, appellant has admitted that Vertika?s birthday was not celebrated, but her friends had visited at night. In her cross examination she stated that she did not remember about the percentage of marks secured by her sons in the examination and whether the percentage of elder son was 66% and of younger son 78%. She admitted that Vertika was having the examination of XII class in the same year and her elder son and Vertika, were both in XII class, having the same subject. She denied the suggestion that both had prepared together. The appellant claimed that the exams were on 2/3rd March and Vertika was sent on 27.2.98.

117. It is also the case of respondent that Vertika was told by the appellant not to mourn at the death of her mother by crying.

118. So, the main grouse of respondent is that after the death of his brother and his brother?s wife, his children namely Vertika and Vivek came to his house but both these orphan children, were ill-treated by the appellant and respondent was forced to send Vertika away to his brother?s house.

119. Vertika in her cross-examination has stated that since November, 1997 till 27th February, 1998 she was living in Chanakayapuri with her uncle, the respondent in Flat No.DI/180. Further, she has stated that since August, 1999 off and on she was living at Chankyapuri till she moved to Lakshdweep off and on. During this period she was residing at her Mausi?s and Tauji?s place at Shalimar Bagh.

120. Vertika in her cross-examination admits that during November, 1997 to February, 1998 her friends stayed with her in room mark „C?. Vertika has also stated in her cross-examination that once or twice her friends might have stayed.

121. Second time also Vertika has stayed with appellant and respondent, as she states that, second time respondent was posted in Delhi in MCD during her stay with him from July 1999 to June 2001 and during her stay, appellant was again transferred to Delhi in June/July 2000.

122. Vertika in her cross-examination also states that “My Tauji, my uncle enquired from me where I want to live after death of my mother and I replied that I will live in Delhi at Chankyapuri”.

123. She also states that she was not having much interaction with the children of respondent as she was not visiting Delhi much but her brother was having not only interaction but visiting Delhi frequently.

124. Vertika further said in her cross-examination that she had not joined any music school or swimming. However, she states that on her desire to swim, her aunt (i.e. Appellant) sent her for swimming and she was sent in official vehicle by her aunt.

125. She also admitted that she had gone to Bhatt Khande Sangeet Vidhyalaya, B-6, Qutab Institutional Area, New Delhi for learning vocal music and appellant accompanied her to said Sangeet Vidhyalaya.

126. Vertika further stated that she was only having interaction with her aunt of wishing good morning and good night. She had drawn the conclusion that her aunt was emotionless with the fact that she was asked by her not to cry in her house for her dead parents and she was used to such dramas.

127. However, she (Vertika) did not lodge any complaint or grievance with any of her family members that she was not comfortable in Chankayapuri flat. Vertika also states that her cousin brothers also used to sit and talk with her while her stay at Chankyapuri flat and she used to have dinner with other family members while sitting on the same dinning table only on some occasions. When she came to reside with respondent at Chankyapuri, she was not crying, it is after her admission to Music School through appellant, that appellant asked her not to cry at her house for her dead parents. Vertika said that she cannot tell the exact dates, etc., however, appellant ridiculed and maltreated her several times.

128. Vertika denied the suggestions that she left the house due to the board exams of the children of parties. She admits that she again came to live with the parties in July, 1999. She further admits that even today, some of her belongings are lying at Chankyapuri residence and keys of almirah are with her.

129. There is nothing on record to show that brother of Vertika namely Vivek who was staying in Hostel at Ghaziabad was ever ill-treated by the appellant, though he had been visiting the parties, frequently quite often on weekends. Nor Vivek has appeared in the witness box to depose about ill-treatment given to him by appellant.

130. As far as ill-treatment to Vertika is concerned, except for oral testimony of Vertika that she was asked by the appellant not to cry on the death of her parents, there is no other incident of ill-treatment.

131. Vertika has admitted in her cross-examination that on her desire to swim, she was sent for swimming by appellant in her official car, and appellant got her admitted in music school and also accompanied her. She also admits that her friends used to stay with her at appellant?s place and she used to have dinner with family members at dinning table.

132. So, where are the incidents as alleged by Vertika that she was ill-treated and ridiculed by appellant?

133. Much stress has been laid on the incident of Vertika leaving parties house on 27th February, 1998, when, appellant asked her to leave the house.

134. Assuming for arguments sake that Vertika was asked to leave the house, but the reason was justified, since both the son?s of the parties had to appear in their Tenth and Twelth class board examinations. Every mother would ensure that study of their children is not disturbed and they are able to concentrate and prepare for Board Examination. It is a common knowledge then when the children are preparing for their final board examinations, and if both parents are employed, then one of them even take leave from office and assist their children in study. Thus, in asking Vertika to go to respondent?s brother place, during the exams of children of the parties, cannot in any manner be called a cruel act.

135. If in fact, the appellant was cruel to Vertika, then why she came back again to live with the parties from July, 1999 to June 2001.

136. No prudent person will if she/he had been abused, ridiculed by another person would like to stay even for a single minute in that person?s house.

137. So, from the entire evidence on record, it stands clearly established that appellant never ill-treated the children of the deceased brother of the respondent.

Behaviour of appellant towards father of respondent.

138. As per averments made in the petition, the allegations of the respondent are that whenever his father came to visit him, the appellant ill-treated him and fight with the respondent as to why his father and other relatives were there and they should leave immediately. In June, 1998, when respondent?s father came to visit the respondent, the appellant used to shout at the respondent and his father, as to why his father was there. Instead of taking care of the old man, she never used to allow him to come in her sight and insulted him and the respondent, in case he came down from his room.

139. One day when the respondent?s father came down from his room to go to the toilet, the appellant insulted him and told the respondent and his father that the old man was intruding into her privacy and he should stay in his room and not to come out from the room whenever she is in the house.

140. Thereafter, the respondent?s father left the house and since June, 1998 has been staying with the younger brother of the respondent namely, Sh. P.S. Mehra. This greatly affected the psyche of the respondent, who felt insulted and humiliated that he cannot even take care of his aged father. Even earlier on many occasions, the father of the respondent had to be sent away on appellant?s insistence as she would say that she could not stand him (respondent?s father). It was the son (respondent) who had to bear all these insults and humiliation in silence just to ensure that there was peace at home.

141. In his examination-in-chief, respondent has stated that in October, 1995, the appellant specifically told him that she cannot stand his father and he should be taken away out of the house. Even otherwise, during the period, his father was staying with him, the appellant misbehaved, insulted and humiliated him.

142. Further, respondent in his examination-in-chief has stated that in June, 1998, when his father came to visit him, appellant used to shout at him and his father as to why his father was there. Instead of taking care of old man, she never used to allow him to come in her sight and insulted him (the respondent) and his father in case he comes down from his room. One day, when his father came down from his room to go to the toilet, the appellant insulted him and told him (the respondent) and his father that the old man was intruding into her privacy and he should stay in his room, and not to come out from the room whenever she is in the house. Thereafter, his father left the house and since June, 1998, has been staying with his younger brother Sh. P. S. Mehra.

143. In his cross-examination, respondent admitted that he has not mentioned in his petition the incident of October, 1995, when appellant told him that she cannot stand his father and he should be taken out of the house. Respondent also admitted that he has not mentioned the name of any person in whose presence, the appellant humiliates him and he did not tell the date, month or year to his advocate when the appellant used to humiliate and insult him. Respondent has further stated in his cross-examination that it was every day?s affair and therefore, there was no need to give any specific date. His father left him in May, 1998 when he went to live with his younger brother namely Sh. P.S. Mehra.

144. On the other hand, appellant in her examination- in-chief has stated that she neither ignored her father- in-law nor ill-treated or mistreated him. She denied that when her father-in-law came from her room to go to toilet, she insulted him and told the respondent that the old man was intruding him in her privacy and he should stay into his room and not to come down from his room whenever she was in the house. Appellant further stated that her father-in-law continued staying in the same house till the respondent was transferred to Lakshadweep and continued to stay in the said house as and when respondent visited Delhi from Lakshdweep.

145. The case of respondent is that his father was ill- treated by the appellant and appellant used to shout at him as to why the old man was there and he should leave immediately.

146. As per examination-in-chief of the respondent, in October, 1995, the appellant specially told him that she cannot stand his father and he should be taken away out of the house. If this was the behavior of the appellant towards the father of respondent then why his father continued to live in the same house till 1998, that is, for over three years, because as per averments made in the petition, in June 1998, when respondent?s father came to visit him, the appellant used to shout at the respondent and his father, as to why his father was there. The case of respondent is that since June 1998, father of respondent left respondent?s house, has been staying with respondent?s younger brother Sh. P.S. Mehra.

147. As per respondent?s case, where in October, 1995, appellant specially told him that she cannot stand his father and he should be taken out of house, then it does not appeal to common sense, that the father-in-law of appellant, who had been humiliated, in October, 1995 and have been asked in uneqvovical terms not to stay with the parties and to leave immediately, then why he continued to live for more than three years undergoing worst humiliation. It is not the case of respondent, that there was no one besides him to take care of his old father, when admittedly, in June, 1998 again after humiliation, his father went to live with respondent?s younger brother Sh. P.S. Mehra.

148. Surprisingly, when respondent and his father had suffered humiliation at the hands of appellant in October, 1995, then it does not appeal to common sense that again in 1998 his father would come and stay with the parties.

149. When the statements of the parties are on equal footings, then the Court has to look for some other corroborative evidence. The case of respondent is that his father was being humiliated by the appellant while appellant in her statement has denied these allegations and have stated that she was respectful to her father-in-law.

150. Under these circumstances, Sh. P.S. Mehra, younger brother of the respondent was an independent and material witness, as since June 1998, respondent?s father left parties? house and has been staying with the younger brother of the respondent namely Sh. P.S. Mehra. For reasons best known to respondent, he has not examined this material witness.

151. Recording of evidence of respondent started in the Year 2002 and at that time his father was alive. Thus, father of the respondent was the best person to depose about the humiliation and abuses suffered by him at the hands of the appellant. Father of respondent died on 9th October, 2004 and there is nothing on record to show as to what prevented the respondent to produce the primary and best evidence, that is, his father in the Court. So, inference has to be drawn against respondent on this count.

152. Moreover, respondent in his cross-examination has also admitted that after appellant left for Bangalore his father came to live with him. This shows that father of respondent has been visiting respondent quite often.

153. So, from the evidence on record it does not inspire confidence and it is also not established that appellant humiliated, ill-treated either respondent or his father during October, 1995 till June 1998, when respondent?s father was staying with parties. Transfer to Bangalore and locking of the master bed room

154. In this regard the respondent?s case as per petition is that the appellant in order to demoralize and harass him got her posting to Bangalore where she joined her duties on 16th November, 1998. The respondent requested her not to do so since this would completely break down their family life but the appellant refused to listen and in fact took the elder son Kanak with her to Bangalore. Moreover, the appellant has kept a room under lock in the present house of the respondent for herself even though the accommodation is a government accommodation allotted in the name of the respondent and all this has been done by the appellant to psychologically pressurise and mentally torture the respondent.

155. In his affidavit, the respondent has corroborated these averments made in the petition.

156. On the other hand, case of the appellant is that on 16th November, 1998, she was transferred to Bangalore. She never got herself transferred to Bangalore but in fact the transfer was in accordance with the policy of the Government and subsequently she was posted back to Delhi on 5th April, 2000 and even since then has been living peacefully with respondent under the same roof. Even while posted at Bangalore, she was visiting Delhi quite often to be with the family and there has never been any complaint either on the part of respondent or herself during their previous posting from one place to another.

157. Further, it has been stated by the appellant in her affidavit that respondent was posted to Lakshadeep since 2001 but he continued to remain residing with her in the same house and kept visiting the matrimonial home every now and then. Appellant in her affidavit also stated that she never in order to demoralize and harass the respondent got herself posted to Bangalore but she would have preferred not to go but she was compelled to obey government orders. In fact she took the elder son Kanak with her to Bangalore.

158. The trial court in the impugned order has held that the circumstances of this case suggest that it was a managed transfer. Learned counsel for the appellant has assailed this finding of the trial court that it was a managed transfer.

159. As per averments made by the respondent in his divorce petition, it has been stated that both parties are civil servants and they are married in 1978 and both completed their training in 1980 and thereafter were posted in Andaman and Nicobar till 1984. After that both were in Delhi between 1984 to 1990 and at Arunachal Pradesh between 1990 to 1992 and again at Delhi after 1992 till the appellant got her transferred to Bangalore on 16th November, 1998. It has also alleged by the respondent in the divorce petition that the matrimonial life went on well after the marriage for another 10-11 years.

160. From 1990 to 1998 the parties have been residing together, that is, for two years at Arunchal Pradesh and thereafter continued staying together for six years at Delhi, till the appellant was transferred to Bangalore.

161. Though the relation between the parties became worse from 1990 onwards as per respondent?s allegation, even then for 8 long years the parties stayed together and there is nothing on record to show that during these 8 years, that is, from 1990 till 1998, appellant made any attempt to get herself transferred to any other place, other than the place of posting of the respondent.

162. The mere fact that the appellant did not oppose the transfer or did not make any written representation for transfer to Bangalore, does not show that the appellant has managed her transfer to Bangalore.

163. On the other hand, it appears that the transfer to Bangalore even if it was managed, it was for the welfare of the family because the elder son Kanak was taken by the appellant to Bangalore and if the transfer was managed one, then it is not clear as to how the appellant got back again posted in Delhi in a period of less than 1 ½ years, that is, by 5th April, 2000 when usually the transfers are effected for at least a period of three years.

164. Respondent in his cross-examination has stated that his son, was living in Bangalore with his mother (the appellant) who was posted there at that time. He also states that Kanak was in Bangalore from 15th November, 1998 to about 15th November, 2001. The fact that Kanak son of the parties was staying in Bangalore and he had remained there for three years, so there was nothing wrong if the appellant also got her posted at Bangalore and in that process she looked after her son who was studying in Bangalore. Moreover if the appellant had managed her transfer then why not any other city, except Bangalore. The fact that she was transferred to Bangalore goes on to show that it was for the welfare of the elder son of the parties and it cannot be said that there was anything wrong, even if the appellant has got herself transferred to Bangalore.

165. The fact that appellant was transferred back to Delhi in April, 2000 while her son stayed in the Bangalore till 2001, goes on to show that to stay at Bangalore was not in the hand of the appellant and appellant had to obey the transfer order passed by her department. Moreover, as per appellant?s case the respondent was posted to Lakshadweep Island since 2001, so can it be said that respondent also managed his transfer to Lakshadweep. The posting and transfer in a Government job are routine matter. When both husband and wife are in high posts in civil service, it is not possible for the government to accommodate both husband and wife, every time at one place. So these transfers of husband and wife to different places at different time, are routine matter and no malafide can be attributed when the appellant was transferred to Bangalore on 16th November, 1998.

166. Now coming to the locking of the room the allegations made by the respondent in the petition are that appellant had kept a room under her lock in the present house of the respondent for herself even though the accommodation is a government accommodation allotted in his name and this has been done by the appellant to psychologically pressurise and mentally torture him.

167. The respective case of the parties on this issue is that, the appellant has locked the master bed room when she was transferred to Bangalore and nobody could use this room whereas, the appellant has denied this fact and has stated that she never locked this room.

168. When there is oath vs. oath with regard to a particular fact then it becomes difficult to distinguish as to which person is telling truth and which person is telli ng lie. In these circumstances, the Court has to look for some independent evidence or corroborative material.

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169. Respondent in his examination-in-chief has stated that at the time of institution of the civil suit No.247/99, the portion of point „A?, the bed room Ex.PW-1/DB was locked by the respondent when she was posted to Bangalore and remaining portion was utilized by her as and when she came to Delhi.

170. After scanning through the entire evidence, I could lay hand on the statement of respondent?s own witness PW-3 Vertika which clinches this issue. She in her cross-examination has stated that room marked „A? has been in use and occupied by the appellant which is the master bed room. She also stated that Vaibhav (son of the parties) used to use sometimes room Mark „C? and sometimes room Mark „A? during the period of her stay from July, 1999 to 1st June, 2001. Even in the absence of her aunt Vimla Mehra (appellant), Vaibhav used to occupy the said rooms Mark „A? and „C?. She also stated that she had not stayed in room Mark „A? but might have gone in the said room to inform about telephone etc. to Vaibhav or to respondent if she was there in the said room. She has further stated that when she came on 1st November, 1997 to stay at Chankya Puri flat, his uncle (respondent) sometimes used to sleep in room Mark „C? or in room Mark „A? or in drawing room.

171. So as per statement of PW-3 Vertika, when Vaibhav, son of the parties was using and enjoying room Mark „A? then where was the question of locking the room Mark „A? which is admittedly the master bed room as alleged by the respondent.

172. Thus it stands established that room Mark „A?, that is the master bed room, was never under the lock and key of the appellant and it was being used by other family members also in the absence of appellant when she has been transferred to Bangalore. Threatening to call the police

173. The case of respondent as stated in the petition is that the appellant came from Bangalore to Delhi in February, 1999 for a short visit. On 9th February, 1999, the appellant started fighting with respondent alleging that he is having mistress and he is not giving money to the children. When the arguments became heated up, all of a sudden she threatened the respondent that she will call the SHO of the concerned area and will file a false complaint against him so as to make him know that she is a very powerful lady and he has to do all such things what she wants him to do. However, after repeated request of the respondent, the appellant was pacified. Even the elder brother of the appellant had called up Sh.Udai Singh (brother of appellant) at Sonepat to intervene but he informed that he was busy in the meeting. The same averments have been corroborated by the respondent in the affidavit filed by him.

174. Neither in the petition nor in the affidavit of the respondent, there is a whisper about PW-2 V.K.Sharma or his wife, having been present at the time of this incident or the respondent having telephoned Sh.V.K.Sharma to come to his house on 9th February, 1999.

175. PW-2 V.K.Sharma in his affidavit regarding incident dated 9th February, 1999 has stated as under;

“That in the morning of 9.2.1999, I got a telephone call from Shri K.S.Mehra informing me that Smt.Vimla Mehra was in a very bad mood following some trivial incident and that she had called the police to book him under Section 498A IPC. I rushed to their residence along with my wife and we were shocked to see that Smt.Vimla Mehra was shouting at the top of her voiced and threatening him i.e. Shri K.S.Mehra and all his relatives that she would send them all to jail. I along with my wife pleaded with her that she should not take such a drastic step on such a trivial incident but to no avail. My wife then fell at her feet and with folded hands requested her to cool down. After lot of persuasion she cooled down only on one condition that Shri K.S.Mehra pay her Rs.2 lacs which he had borrowed from her in case he wanted his freedom and that in case he did not pay the money by that evening should would send him to jail. I, therefore, helped him by arranging Rs.50,000/- which I collected from several of my friends and Shri K.S.Mehra paid a sum of Rs. 2 lacs by evening and we all heaved a sigh of relief.”
176. Another witness examined by the respondent on this point is his brother PW-4 S.S.Mehra who in his affidavit has stated about the incident of 9th February , 1999 as under;

“That my brother Shri K.S.Mehra informed me on 9.2.1999 that he had to give a sum of Rs.2 lacs to his wife as she was shouting at him that unless he paid her the money she would call the police and get Section 498A IPC invoked. He requested me to arrange the money from somewhere so that he could get his freedom. I could manage to collect Rs.50,000/- and send the money with my son Ajay Mehra to my brother on the same day with a heavy heart that such a day should come when a wife demanded money from the husband in lieu of his freedom.”
177. The appellant has denied the incident of 9th February, 1999 in its totality.

178. In the petition as well as in the affidavit of the respondent, there is no mention of the fact that unless and until respondent pays Rs.2 lacs to the appellant she will not cool down and would not call the police. This story of Rs.2 lacs has been introduced by the witnesses of the respondent in their affidavit as well as by the respondent himself in his cross-examination. This story of Rs.2 lacs as demanded by the appellant was nowhere pleaded at all by the respondent. So any evidence which is beyond pleadings cannot be looked into and as such there is no reason for this Court to waste time on this story of Rs.2 lacs as put forward by respondent?s witnesses.

179. Another interesting aspect is that respondent in his petition or in his affidavit nowhere states that he made a telephonic call on 9th February, 1999 to PW-2 V.K.Sharma informing him that the appellant is in a very bad mood and had threatened that she will call the SHO of the concerned area and will file false complaints against him.

180. PW-2 V.K.Sharma has gone out of the way to support the respondent as he states in his affidavit that;

“Sh.K.S.Mehra informed him that Smt.Vimla Mehra was in a very bad mood following some trivial incident and she had called the police to book him under Section 498-A IPC.”
181. It is not the case of the respondent that the appellant had called the police to book him under Section 498-A IPC. On the other hand, the case of the respondent himself is, that the appellant threatened him that she will call the SHO of the concerned area and will file a false complaint against him

182. Another interesting aspect is with regard to the statement of PW-4 S.S.Mehra who states that respondent informed him on 9th February, 1999 that he had to give sum of Rs.2 lacs to his wife and she was shouting on him that unless he paid her the money, she would call the police and get Section 498A IPC invoked and the respondent requested him to arrange the money from somewhere so that he can get his freedom. PW-4 states that he could manage to collect Rs.50,000/- and sent the money with his son Ajay Mehra to his brother on the same day.

183. This story put forward by PW-4 S.S.Mehra about the receiving telephonic call from his brother and that respondent had to pay Rs.2 lacs to the appellant and PW-4 sent Rs.50,000/- through his son Ajay Mehra, has nowhere been pleaded either in the petition or in the affidavit by the respondent.

184. On the other hand, respondent in his affidavit clearly states that “after his repeated request, the appellant was pacified.” In the petition, there is no mention of Rs. 2 lacs as demanded by the appellant or sending of Rs. 50,000/- by the elder brother through his son to the respondent.

185. So, the respondent as well as his two witnesses with regard to incident dated 9th February, 1999 have given different version and each one had put forward his story, which are beyond pleadings.

186. The facts remains that the PW-2 V.K.Sharma and his wife has visited the house of the parties on 9th February, 1999 and this fact has been admitted by the appellant also. Appellant in her cross-examination admits as correct that Sh.V.K.Sharma and his wife visited but she cannot give any specific reason why they visited in the morning.

187. The fact that V.K.Sharma has visited the house of the parties on 9th February, 1999, does not lead to conclusion that appellant had threatened the respondent to implicate her in 498-A IPC case when the case of the respondent as per averments made in the petition is that the appellant started fighting with him alleging that he is having a mistress and he is not giving money to the children. There is no mention of payment of Rs.2 lacs as demanded by the appellant.

188. Under these circumstances, I have no hesitation in holding that even if a fight amongst the parties have taken place on 9th February, 1999, this incident cannot be taken to be a cruel act on the part of the appellant. Making complaint to the superior of the respondent

189. The allegation made by the respondent in the petition in this regard are that on 12th February, 1999 so as to defame, humiliate and harass him, the appellant went to his office and met with his senior who is the Secretary to the Government of India. To him the appellant narrated the false and frivolous story that respondent is a bad husband, he does not take care of his children, he wants to keep a mistress, and he beats her up. This caused great mental torture to him. Thereafter also, the appellant has come to Delhi on each occasion has humiliated and threatened him that she would meet the senior of respondent and further humiliate him.

190. Respondent in his affidavit has corroborated all the averments which he has made in the petition and has further stated that on 12th February, 1999 appellant met the Secretary to Government of India, Ministry of Textile, where he was posted as Joint Secretary and complained him that he (respondent) was not a good husband and a good father and was keeping a mistress and represented the Secretary to take action against him. It was an oral complaint made by the appellant to his Secretary and no action was taken on the complaint.

191. On the other hand, the appellant in para 19 of her affidavit by way of evidence filed on record has denied all the averments. However, in para 20 of the affidavit the appellant admits that she took appointment from the Secretary to the Government of India. The relevant portion of the para 20 of the affidavit of the appellant reads as under;

“That I say that I took appointment from the Secterary to Govt. not to humiliate the latter as I care for the Petitioner and is solicitous of his well being. It was merely to use the intervention to sort out the differences as I was and still remain desperately keen to save my marriage. The tension did ease thereafter. The Petitioner even promised to help me financially whenever the Respondent was in difficulty. Out life looked bright and sunny even at that time.”
192. In her cross-examination, the appellant states that it is correct that she met Shyamal Ghosh, Secretary, Government of India, Ministry of Textile, that is, the boss of respondent officially. However, she has denied that she told Shyamal Ghosh that respondent is a bad father and debouch.

193. Appellant in her affidavit has stated that she sought the intervention of respondent?s Secretary to sort out the differences. Appellant has nowhere stated in her statement, as to what were the differences between the parties.

194. So in view of the admission made by the appellant, it stands clearly established that she took appointment from the Secretary to the Government of India, who was admittedly the boss of the respondent.

195. When appellant has admittedly met the Secretary to Govt. of India and has sought his intervention to sort out the difference between the parties, then the best witness with regard to the complaint made against the respondent was his Secretary.

196. Since, appellant had met him first, so it was for the appellant to have examined this witness in support of her version. However, for reasons best known to appellant, she has not examined this independent witness to prove her version and as such inference should be drawn against her.

197. Nevertheless, the conduct of the appellant in meeting the boss of the respondent, without knowledge or consent of the respondent is a very serious matter and it constitute worse type of cruelty. It shows there was a complete betrayal of the trust between the parties and the appellant had gone to the boss of the respondent to make complaint against his own husband. This was highly deplorable on the part of the appellant. It cannot be expected that between parties, the wife would go to the office of her husband and make complaint to boss of his husband about domestic problems.

198. In a decision of this Court in Shakuntala Kumari v. Om Prakash Ghai (supra), it has been laid down that a false complaint by the wife to the husband?s employer would amount to mental cruelty, justifying decree of divorce. It has been laid down that;

“A false complaint of this nature to an employer would certainly amount to mental cruelty. It would bring down the employee, in the eyes of his employer, and would reflect on his career and promotional opportunities. This would certainly play on his mind and affect his mental peace.
A Government servant is expected to maintain a reasonable and decent standard of conduct in his private life and not bring discredit to his service by his misdemeanours……….”
199. In Vinod Kumar Sharma v. Nutan Sharma (supra), this Court held as under;

“The court have had occasion to consider the effect of complaints made to the employer, to persons in authority, and to the police, in F.A.O. No 124/84 and Shakuntala Kumari v. Om Parkash Ghai, 1981 (1) DMC 25 ; N.G. Dastane v. S. Dastane, AIR 1975 SC 1534;
Lajwanti Chandhok v. O.N.
Chandhok, 1981 (II) DMC 97 ; Kiran Kapur v. Surinder Kumar, 1982 RLR (Note) 37 at page 36 ; Sharda Nand Sharma v Kiran Sharma, 28 (1985) DLT (SN) 32; Girdhari Lal v. Santosh Kumari, (1982) I DMC 180; and Jorden Dlengdoh v. S.S. Chopra, (1982) I DMC 224.
Such complaints, which are found to be baseless and to have been made by one of the spouses, have in these cases led to a finding of cruelty against the person complained against. I see no reason why a complaint by a person other than the spouse, who his identified himself with the spouse on whose behalf or at whose behest he has complained, should not be equated to the spouse, and the act of such a person be not deemed to be the act of the spouse. Here the person complained against was the husband. I note from the judgment of the court below that none of these judgments have been noticed by him, and he is of the view that these complaints do not amount to cruelty.
In view of the aforesaid judgments of this court, and of the Supreme Court there has to be a finding of cruelty by the wife towards the husband. She made complaints or got the complaints made to the employers and the police which were found to be baseless on enquiry. Cruelty of the wife being established, the husband would be entitled to a divorce on that ground.”
200. In Smt. Mayadevi v. Jagdish Prasad, (supra), the Apex Court has observed as under;

“The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper- sensitive approach would be counter- productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane v. Dastane AIR 1975 SC 1534).”
201. In Sanghamitra Ghosh v. Kajal Kumar Ghosh, I (2007) DMC 105 (SC), the Apex Court has observed as under;

“In the case of Ashok Hurra v. Rupa Bipin Zaveri etc. reported in I (1997) DMC 491 (SC)=(1997) 4 SCC 226, this Court while dealing with a matrimonial matter quoted few excerpts from the Seventy-first Report of the Law Commission of India on the Hindu Marriage Act, 1955 – “Irretrievable Breakdown of Marriage” – dated 7.4.1978. We deem it appropriate to reproduce some excerpts from the said report as under:
“Irretrievable breakdown of marriage is now considered, in the laws of a number of countries, a good ground of dissolving the marriage by granting a decree of divorce.
* * * Proof of such a breakdown would be that the husband and wife have separated and have been living apart for, say, a period of five or ten years and it has become impossible to resurrect the marriage or to reunite the parties. It is stated that once it is known that there are no prospects of the success of the marriage, to drag the legal tie acts as a cruelty to the spouse and gives rise to crime and even abuse of religion to obtain annulment of marriage.
* * * The theoretical basis for introducing irretrievable breakdown as a ground of divorce is one with which, by now, lawyers and others have become familiar. Restricting the ground of divorce to a particular offence or matrimonial disability, it is urged, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a facade, when the emotional and other bounds which are of the essence of marriage have disappeared. After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. The parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.
* * * Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one’s offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage –“breakdown”- and if it continues for a fairly long period, it would indicate destruction of the essence of marriage – “irretrievable breakdown”.”
202. In Naveen Kohli v. Neelu Kohli (supra), the Apex Court has observed as under;
“Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into services, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act, 1955.
The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.
In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these word:
“The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this Court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.” In the Report it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet there has arisen a situation in which the marriage cannot be worked. The marriage has all the external appearances of marriage, but none of the reality. As is often put pithily, the marriage is merely a shell out Page 1408 of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bounds which are of the essence of marriage have disappeared.
It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfillment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation.
Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.
On May 22, 1969, the General Assembly of the Church of Scotland accepted the Report of their Moral and Social Welfare Board, which suggested the substitution of breakdown in place of matrimonial offences. It would be of interest to quote what they said in their basis proposals:
“Matrimonial offences are often the outcome rather than the cause of the deteriorating marriage. An accusatorial principle of divorce tends to encourage matrimonial offences, increase bitterness and widen the rift that is already there. Separation for a continuous period of at least two years consequent upon a decision of at least one of the parties not to live with the other should act as the sole evidence of marriage breakdown.”
Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties. A law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behavior as bring the institution of marriage into disrepute.
We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised 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 do not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.”
203. In Satish Sitole v. Smt. Ganga, Civil Appeal No. 7567 of 2004, decided on 10.07.2008, the Apex Court has followed the decision in Romesh Chandra v. Savitri, AIR 1995 SC 851 and observed as under;
“Having dispassionately considered the materials before us and the fact that out of 16 years of marriage the appellant and the respondent had been living separately for 14 years, we are also convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably.
In the said circumstances, following the decision of this Court in Romesh Chander’s case (supra) we also are of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved………”
205. The marriage between the parties was performed in the year 1978 and since 1998 there has been no cohabitation between the parties. There is complete loss of trust and faith between the parties and there is no love between the parties. There is a complete break down of the marriage and the marriage between the parties have broke down irretrievably and it cannot be said to be alive. This Court also made efforts for re-conciliation but failed. Since marriage between the parties has broken down and there is no chance of it being retrieved, the continuance of such marriage, would itself amounts to cruelty and as such the respondent is entitled to a decree of divorce on the ground of cruelty as per Section 13(1)(ia) of the Act.

206. The appeal filed by the appellant stand dismissed.

207. Parties are left to bear their own costs.

208. Trial court record be sent back.

November 24, 2008 V.B. GUPTA, J.Bisht

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