Harjit Kaur vs Jaspal Singh on 11 May, 2017

FAO-M-124-2017 -1-

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

FAO-M-124-2017

Date of Decision: 11.5.2017

Harjit Kaur
….Appellant.

Versus

Jaspal Singh

…Respondent.

CORAM:- HON’BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU.

PRESENT: Ms. Jasneet Nehra, Advocate for the appellant.

AJAY KUMAR MITTAL, J.

1. Feeling aggrieved by the judgment and decree dated 12.4.2017

passed by the Additional District Judge, Amritsar, whereby the petition filed

by the respondent-husband under Section 13 of the Hindu Marriage Act,

1955 (in short “the Act”) for dissolution of marriage by a decree of divorce

was allowed, the appellant-wife has approached this Court by way of instant

appeal.

2. A few facts necessary for adjudication of the present appeal as

narrated therein may be noticed. The marriage between the parties was

solemnized on 20.1.2002 at village Sidhwan, Tehsil and District Amritsar

according to Hindu rites and rituals. Both the parties lived together as

husband and wife and cohabited as such. From the said wedlock, a male

child was born on 3.2.2006. At the time of marriage, the respondent-

husband was serving in Indian Army. The parents of the respondent-

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husband treated the appellant-wife like their own daughter and provided all

the basic amenities. However, the behaviour and attitude of the appellant-

wife towards the respondent-husband and his parents was very rude, cruel

and harsh. She was a very short tampered lady and used to pick dispute on

petty matters. Even she compelled the respondent-husband to get share of

the property from his parents and to live with her parents as a ‘Ghar Jawai’

or to purchase some kothi in her name in Amritsar. The appellant-wife did

not discharge her matrimonial duties as she flatly refused to prepare tea or

meals etc. On 21.8.2009, the appellant-wife again asked the respondent-

husband to get share from his parents and to purchase a kothi in Amritsar in

her name and on his refusal, the appellant-wife left her matrimonial home

along with minor son and also took cash and jewellery with her. Inspite of

best efforts made by the respondent-husband, the appellant-wife did not turn

up to her matrimonial home. She got lodged a criminal case under Sections

406/498-A of the Indian Penal Code against the respondent-husband and his

parents. However, they were acquitted in the said case by the trial court

vide judgment dated 3.2.2016. In this way, the appellant-wife treated the

respondent-husband and his family members with cruelty. Accordingly, the

respondent-husband filed a petition under Section 13 of the Act for

dissolution of marriage by a decree of divorce. The said petition was

resisted by the appellant-wife by filing a written statement. Besides raising

various preliminary objections, it was pleaded that from the very first day of

the marriage, the respondent-husband and his family members were not

satisfied with the dowry and they started taunting, teasing and tormenting

her. They started giving beatings to the appellant-wife and turned her out of

the matrimonial home by saying that if she wanted to rehabilitate her, she

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had to bring more dowry. In February, 2009, she was turned out of her

matrimonial home due to non-fulfilment of the demand of dowry and then

her mother gave ` 25,000/- to the respondent-husband and his family

members. On 21.8.2009, the jeth and jethani of the appellant-wife talked

telephonically with the respondent-husband that as she had not brought the

car, she be eliminated and they would handle the situation. At their

instigation, the appellant-wife was given kick blows by the respondent-

husband at her abdomen. The respondent-husband and his family members

turned out the appellant-wife from the matrimonial home in the wearing

apparels along with the minor child. Due to her physical health, the

appellant-wife was admitted in Civil Hospital on 27.8.2009. The other

averments made in the petition were denied and a prayer for dismissal of the

same was made. The respondent-husband controverted the averments made

in the written statement by filing rejoinder and reiterated those of the

averments made in the divorce petition. From the pleadings of the parties,

the trial court framed the following issues:-

1. Whether the respondent has treated the petitioner

with cruelty? OPP

2. If issue No.1 is proved, whether the petitioner is

entitled for a decree of divorce? OPP

3. Whether the petition is not maintainable? OPR

4. Relief.

3. In support of his case, the respondent-husband besides

examining himself as PW1 also examined Balkar Singh as PW2. On the

other hand, to rebut the evidence of the respondent-husband, the appellant-

wife examined herself as RW1 and Manjit Kaur as RW2 and also tendered

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into evidence the certified copy of appeal.

4. The trial court took issues No.1 and 2 together being

interconnected and on appreciation of evidence led by the parties, decided

both the issues in favour of the respondent-husband holding that he was

entitled to a decree of divorce on the ground of mental cruelty caused by the

appellant-wife by getting false criminal case registered against the

respondent-husband and his family members. Issue No.3 was decided

against the appellant-wife holding that the divorce petition was

maintainable. Accordingly, the trial court vide judgment and decree dated

12.4.2017 allowed the petition and dissolved the marriage between the

parties by a decree of divorce on the ground of cruelty. Hence, the present

appeal.

5. After hearing learned counsel for the appellant-wife, we do not

find any merit in the appeal.

6. The primary question that arises for consideration in this appeal

is whether the acquittal of the husband and his family members of

matrimonial offences under Sections 406, 498-A of the Indian Penal Code

would be sufficient to hold that it has caused mental cruelty to the husband

so as to entitle him to a decree of divorce under Section 13 of the Act.

7. Section 13(1)(ia) of the Act empowers the Court to dissolve the

matrimonial ties between the parties by a decree of divorce on a petition by

either spouse where the said spouse has been treated with cruelty after the

solemnization of the marriage. Cruelty has not been defined in the Act but

various pronouncements of the Apex Court and other High Courts have

outlined the scope of the term ‘cruelty’. Cruelty is evident where one spouse

treats the other and manifests such feelings towards him or her as to cause

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reasonable apprehension that it will be harmful or injurious to live with the

other spouse. Cruelty may be physical or mental. Whether a spouse is

inflicted with physical cruelty or not, it can be judged on the basis of direct

evidence whereas mental cruelty is to be inferred on analyzing the factual

matrix of each case and drawing conclusion thereon.

8. The Apex Court in Parveen Mehta v. Inderjit Mehta 2002(3)

RCR (Civil) 529 had very elaborately analyzed the expression ‘cruelty’ as a

ground of divorce under the Act. The relevant portion thereof reads thus:-

“Under the statutory provision cruelty includes both

physical and mental cruelty. The legal conception of

cruelty and the kind of degree of cruelty necessary to

amount to a matrimonial offence has not been defined

under the Act. Probably, the Legislature has advisedly

refrained from making any attempt at giving a

comprehensive definition of the expression that may

cover all cases, realising the danger in making such

attempt. The accepted legal meaning in England as also

in India of this expression, which is rather difficult to

define, had been ‘conduct of such character as to have

caused danger to life, limb or health (bodily or mental),

or as to give rise to a reasonable apprehension of such

danger.

XX XX XX

XX XX XX

21. Cruelty for the purpose of Section 13(1)(ia) is to be

taken as a behavior by one spouse towards the other

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which causes reasonable apprehension in the mind of the

latter that it is not safe for him or her to continue the

matrimonial relationship with the other. Mental cruelty is

a state of mind and feeling with one of the spouses due to

the behaviour or behavioural pattern by the other. Unlike

the case of physical cruelty the mental cruelty is difficult

to establish by direct evidence. It is necessarily a matter

of inference to be drawn from the facts and

circumstances of the case. A feeling of anguish,

disappointment and frustration in one spouse caused by

the conduct of the other can only be appreciated on

assessing the attending facts and circumstances in which

the two partners of matrimonial life have been living.

The inference has to be drawn from the attending facts

and circumstances taken cumulatively. In case of mental

cruelty it will not be a correct approach to take an

instance of misbehaviour in isolation and then pose the

question whether such behaviour is sufficient by itself to

cause mental cruelty. The approach should be to take the

cumulative effect of the facts and circumstances

emerging from the evidence on record and then draw a

fair inference whether the petitioner in the divorce

petition has been subjected to mental cruelty due to

conduct of the other.”

9. Further, setting out illustrative cases of mental cruelty, the

Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 had

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held as under:-

“No uniform standard can ever be laid down for

guidance, yet we deem it appropriate to enumerate some

instances of human behaviour which may be relevant in

dealing with the cases of ‘mental cruelty’. The instances

indicated in the succeeding paragraphs are only

illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of

the parties, acute mental pain, agony and suffering as

would not make possible for the parties to live with each

other could come within the broad parameters of mental

cruelty.

(ii) On comprehensive appraisal of the entire

matrimonial life of the parties, it becomes abundantly

clear that situation is such that the wronged party cannot

reasonably be asked to put up with such conduct and

continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount

to cruelty, frequent rudeness of language, petulance of

manner, indifference and neglect may reach such a

degree that it makes the married life for the other spouse

absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of

deep anguish, disappointment, frustration in one spouse

caused by the conduct of other for a long time may lead

to mental cruelty.

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(v) A sustained course of abusive and humiliating

treatment calculated to torture, discommode or render

miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of

one spouse actually affecting physical and mental health

of the other spouse. The treatment complained of and the

resultant danger or apprehension must be very grave,

substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect,

indifference or total departure from the normal standard

of conjugal kindness causing injury to mental health or

deriving sadistic pleasure can also amount to mental

cruelty.

(viii) The conduct must be much more than jealousy,

selfishness, possessiveness, which causes unhappiness

and dissatisfaction and emotional upset may not be a

ground for grant of divorce on the ground of mental

cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and

tear of the married life which happens in day to day life

would not be adequate for grant of divorce on the ground

of mental cruelty.

(x) The married life should be reviewed as a whole

and a few isolated instances over a period of years will

not amount to cruelty. The ill-conduct must be persistent

for a fairly lengthy period, where the relationship has

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deteriorated to an extent that because of the acts and

behaviour of a spouse, the wronged party finds it

extremely difficult to live with the other party any longer,

may amount to mental cruelty.

(xi) If a husband submits himself for an operation of

sterilization without medical reasons and without the

consent or knowledge of his wife and similarly if the

wife undergoes vasectomy or abortion without medical

reason or without the consent or knowledge of her

husband, such an act of the spouse may lead to mental

cruelty.

(xii) Unilateral decision of refusal to have intercourse

for considerable period without there being any physical

incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after

marriage not to have child from the marriage may amount

to cruelty.

(xiv) Where there has been a long period of continuous

separation, it may fairly be concluded that the

matrimonial bond is beyond repair. The marriage

becomes a fiction though supported by a legal tie. By

refusing to sever that tie, the law in such cases, does not

serve the sanctity of marriage; on the contrary, it shows

scant regard for the feelings and emotions of the parties.

In such like situations, it may lead to mental cruelty.”

10. In addition to the aforesaid, certain other illustrations were

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added by the Apex Court in K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC

226 as under:-

“Making unfounded indecent defamatory allegations

against the spouse or his or her relatives in the pleadings,

filing of complaints or issuing notices or news items

which may have adverse impact on the business prospect

or the job of the spouse and filing repeated false

complaints and cases in the court against the spouse

would, in the facts of a case, amount to causing mental

cruelty to the other spouse.”

11. Elucidating ‘mental cruelty’ the Apex Court in K. Srinivas

Rao’s case (supra) concluded that if a false criminal complaint is filed

against the spouse and his/her relatives regarding matrimonial offences, it

would be a case of mental cruelty. Following the aforesaid pronouncement,

the Division Bench of this Court in Imlesh v. Amit, AIR 2014 Punjab and

Haryana 89, observed as under:-

“So far as the finding of the trial Court regarding cruelty

on the basis of involvement in a false criminal case is

concerned, it may be said that it in itself constitutes

sufficient ground for granting divorce as it amounted to

cruelty. Reference in this regard may be made to the case

in K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226:

AIR 2013 SC 2176, where it was held by Hon’ble the

Supreme Court that where indecent/ defamatory

statements are made in the complaint/ criminal

proceedings, the same singly and cumulatively amounted

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to mental cruelty warranting grant of divorce. If a false

complaint is filed against the spouse or his/her relatives,

it amounted to mental cruelty. In the said case also, wife

had filed a case under Section 498-A IPC and the

husband and his family members were acquitted and

decree of divorce was granted to the husband on that

ground, as it amounted to mental cruelty.”

12. Similar view was reiterated by the Supreme Court in K.

Srinivas v. K. Sunita Civil Appeal No. 1213 of 2006 decided on

19.11.2014 with the following observations:-

“4. In the case in hand, learned counsel for the

Respondent-Wife has vehemently contended that it is not

possible to label the wife’s criminal complaint detailed

above as a false or a vindictive action. In other words, the

acquittal of the Appellant and his family members in the

criminal complaint does not by itself, automatically and

justifiably, lead to the conclusion that the complaint was

false; that only one complaint was preferred by the

Respondent-Wife, whereas, in contradistinction, in

K.Srinivas Rao a series of complaints by the wife had

been preferred. The argument was premised on the

averment that the investigation may have been faulty or

the prosecution may have been so careless as to lead to

the acquittal, but the acquittal would not always indicate

that the Complainant had intentionally filed a false case.

What should be kept in perspective, it is reasonably

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argued, that the Complainant is not the controlling

conductor in this Orchestra, but only one of the

musicians who must deliver her rendition as and when

and how she is called upon to do. Secondly, according to

the learned counsel, the position would have been

appreciably different if a specific finding regarding the

falsity of the criminal complaint was returned, or if the

Complainant or a witness on her behalf had committed

perjury or had recorded a contradictory or incredible

testimony. Learned counsel for the Respondent-Wife

states that neither possibility has manifested itself here

and, therefore, it would be unfair to the Respondent-Wife

to conclude that she had exhibited such cruelty towards

the Appellant and her in-laws that would justify the

dissolution of her marriage.

5. The Respondent-Wife has admitted in her cross-

examination that she did not mention all the incidents on

which her Complaint is predicated, in her statement

under Section 161 of the Cr.P.C. It is not her case that

she had actually narrated all these facts to the

Investigating Officer, but that he had neglected to

mention them. This, it seems to us, is clearly indicative of

the fact that the criminal complaint was a contrived

afterthought. We affirm the view of the High Court that

the criminal complaint was “ill advised”. Adding thereto

is the factor that the High Court had been informed of the

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acquittal of the Appellant-Husband and members of his

family. In these circumstances, the High Court ought to

have concluded that the Respondent-Wife knowingly and

intentionally filed a false complaint, calculated to

embarrass and incarcerate the Appellant and seven

members of his family and that such conduct

unquestionably constitutes cruelty as postulated in

Section 13(1)(ia) of the Hindu Marriage Act.

6. Another argument which has been articulated on

behalf of the learned counsel for the Respondent is that

the filing of the criminal complaint has not been pleaded

in the petition itself. As we see it, the criminal complaint

was filed by the wife after filing of the husband’s divorce

petition, and being subsequent events could have been

looked into by the Court. In any event, both the parties

were fully aware of this facet of cruelty which was

allegedly suffered by the husband. When evidence was

lead, as also when arguments were addressed, objection

had not been raised on behalf of the Respondent-Wife

that this aspect of cruelty was beyond the pleadings. We

are, therefore, not impressed by this argument raised on

her behalf.

7. In these circumstances, we find that the Appeal is

well founded and deserves to be allowed. We

unequivocally find that the Respondent-Wife had filed a

false criminal complaint, and even one such complaint is

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sufficient to constitute matrimonial cruelty.”

13. Examining the factual matrix in the present case, the

respondent-husband and his family members were acquitted vide judgment

dated 3.2.2016, Ex.P1 in the dowry case got registered vide FIR No. 113

dated 30.8.2009, under Sections 498-A, 406 of the Indian Penal Code.

Against the judgment of acquittal, the appeal filed by the appellant-wife is

pending before the appellate court. In such circumstances, it would cause a

reasonable apprehension in the mind of the husband that it was not safe for

him to live with the wife. Besides, refusing to attend household chores and

showing disrespect to the respondent-husband and his family members

amounted to cruelty towards the respondent-husband. Thus, the irresistible

conclusion would be that the appellant-wife had treated the husband-

respondent with cruelty.

14. In view of the above, learned counsel for the appellant-wife

was unable to demonstrate that there was any error or perversity in the

findings recorded by the trial court which may warrant interference by this

Court. Accordingly, finding no merit in the appeal, the same is hereby

dismissed. No costs.

(AJAY KUMAR MITTAL)
JUDGE

May 11, 2017 (HARINDER SINGH SIDHU)
gbs JUDGE

Whether Speaking/Reasoned Yes

Whether Reportable Yes

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