(O&M;) Dilbag vs Sushila on 9 May, 2017

FAO-M-107-2004 -1-

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

FAO-M-107-2004

Date of Decision: 9.5.2017

Dilbag
….Appellant.
Versus

Smt. Sushila
…Respondent.

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

PRESENT: Mr. Amit Aggarwal, Advocate for
Mr. Sudershan Goel, Advocate for the appellant.

None for the respondent.

AJAY KUMAR MITTAL, J.

1. Having remained unsuccessful in a petition filed under Section

13 of the Hindu Marriage Act, 1955 (in short “the Act”) for dissolution of

marriage by a decree of divorce before the Additional District Judge,

Bhiwani, the appellant-husband has approached this Court by way of instant

appeal challenging the judgment and decree dated 31.1.2004.

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

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

solemnized in the year 1981 at village Mandola, Tehsil Dadri, District

Bhiwani, according to Hindu rites and ceremonies. They lived together as

husband and wife at village Imlota and cohabited as such. From the said

wedlock, a male child was born on 2.2.1988. After 1½ years, the respondent

started behaving in an abnormal manner as she stopped doing the routine

household work. She used to go to her parental home when asked to behave

properly. After making efforts for reconciliation, she was brought back to

1 of 10
::: Downloaded on – 03-06-2017 22:49:28 :::
FAO-M-107-2004 -2-

the matrimonial home. The younger sister of the respondent was also

married to the younger brother of the appellant and they were residing as

husband and wife in ordinary manner in the same house jointly. In April,

1990, the respondent left her matrimonial home on the pretext that she was

going to field to meet the appellant but had gone to her parents house.

When the parents of the appellant again made efforts in the year 1992 to

reconcile the matter and had gone to her parents along with some

respectables of the village, some ladies misbehaved with the mother of the

appellant and gave her slap. In April, 1990, the respondent had deserted the

appellant. Accordingly, the appellant filed a petition under Section 13 of

the Act for dissolution of marriage between the parties by a decree of

divorce. The said petition was contested by the respondent-wife by filing a

written statement. Besides raising various preliminary objections, it was

pleaded that the behaviour of the appellant was not good and he always used

to quarrel with her without any reason. Further, the appellant and his mother

did not allow the respondent to live in the matrimonial home. She is ready

to live with the appellant. The other averments made in the petition were

denied and a prayer for dismissal of the same was made. The appellant filed

replication controverting the averments made in the petition and reiterated

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

court below framed the following issues:-

1. Whether the petitioner is entitled to dissolution of

marriage on the grounds of desertion and cruelty as

mentioned in the petition? OPP

2. Whether the petition is not maintainable in the

present form? OPR

2 of 10
03-06-2017 22:49:30 :::
FAO-M-107-2004 -3-

3. Relief.

3. In support of their case, the parties have led their respective

evidence.

4. The trial court on appreciation of evidence led by the parties,

decided issue No.1 against the appellant holding that no evidence was

produced to show that the respondent had caused cruelty and desertion by

her act and conduct. Further, it was held that the appellant had failed to

establish that the respondent had left the matrimonial home without his

consent and not returned thereafter. Issue No.2 was decided against the

respondent being not pressed. Accordingly, the trial court vide judgment

and decree dated 31.1.2004 dismissed the divorce petition filed under

Section 13 of the Act. Hence, the present appeal.

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

any merit in the appeal.

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

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

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

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

various pronouncements of the Apex Court and other High Courts have

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

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

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

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

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

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

matrix of each case and drawing conclusion thereon.

3 of 10
03-06-2017 22:49:30 :::
FAO-M-107-2004 -4-

7. 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 behaviour by one spouse towards the other

which causes reasonable apprehension in the mind of the

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

matrimonial relationship with the other. Mental cruelty is

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

the behaviour or behavioural pattern by the other. Unlike

4 of 10
03-06-2017 22:49:30 :::
FAO-M-107-2004 -5-

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.”

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

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

held as under:-

“No uniform standard can ever be laid down for

guidance, yet we deem it appropriate to enumerate some

instances of human behaviour which may be relevant in

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

5 of 10
03-06-2017 22:49:30 :::
FAO-M-107-2004 -6-

indicated in the succeeding paragraphs are only

illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of

the parties, acute mental pain, agony and suffering as

would not make possible for the parties to live with each

other could come within the broad parameters of mental

cruelty.

(ii) On comprehensive appraisal of the entire

matrimonial life of the parties, it becomes abundantly

clear that situation is such that the wronged party cannot

reasonably be asked to put up with such conduct and

continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount

to cruelty, frequent rudeness of language, petulance of

manner, indifference and neglect may reach such a

degree that it makes the married life for the other spouse

absolutely intolerable.

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

deep anguish, disappointment, frustration in one spouse

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

to mental cruelty.

(v) A sustained course of abusive and humiliating

treatment calculated to torture, discommode or render

miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of

one spouse actually affecting physical and mental health

6 of 10
::: Downloaded on – 03-06-2017 22:49:30 :::
FAO-M-107-2004 -7-

of the other spouse. The treatment complained of and the

resultant danger or apprehension must be very grave,

substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect,

indifference or total departure from the normal standard

of conjugal kindness causing injury to mental health or

deriving sadistic pleasure can also amount to mental

cruelty.

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

selfishness, possessiveness, which causes unhappiness

and dissatisfaction and emotional upset may not be a

ground for grant of divorce on the ground of mental

cruelty.

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

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

would not be adequate for grant of divorce on the ground

of mental cruelty.

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

and a few isolated instances over a period of years will

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

for a fairly lengthy period, where the relationship has

deteriorated to an extent that because of the acts and

behaviour of a spouse, the wronged party finds it

extremely difficult to live with the other party any longer,

may amount to mental cruelty.

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

7 of 10
::: Downloaded on – 03-06-2017 22:49:30 :::
FAO-M-107-2004 -8-

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.”

9. In the present case, the instances of the appellant were merely

the result of wear and tear of the married life and could not be treated as

cruelty of such a degree that the parties could not live together or their

marriage needs to be dissolved. Further, the averments made in the petition

and the evidence led in support thereof only show the sensitivity of the

appellant with respect to the conduct of the respondent which could not be

8 of 10
::: Downloaded on – 03-06-2017 22:49:30 :::
FAO-M-107-2004 -9-

termed more than ordinary wear and tear of the family life. The

circumstances or the allegations levelled by the appellant are not of such

serious nature as no specific date, month or year of the alleged incidents had

been given either in the pleadings or in the statements. Further, the

appellant had not brought on record any substantive, trustworthy and

independent evidence to prove the allegations that the respondent was of

quarrelsome nature. There are no concrete instances and evidence to show

the conduct of the respondent-wife to be cruel. In such circumstances, the

appellant had failed to prove that he was treated with cruelty by the

respondent. Further, the trial court had held that the witnesses examined by

the appellant were interested witnesses and even the appellant had failed to

produce any evidence to show that the respondent had caused cruelty and

desertion by her act and conduct. The respondent was ready to live with the

appellant but he had thrown her out from the matrimonial home. It was also

held that the appellant had failed to establish that the respondent had left the

matrimonial home without the consent of her husband.

10. The trial Court after appreciating the testimonies of various

witnesses had rightly concluded that no cruelty or desertion on the part of

the respondent stood established. The relevant findings recorded by the trial

court read thus:-

“8. I have perused the statements of the parties and
witnesses examined by them. All the witnesses
examined by the petitioner are his relatives. PW2 Bharat
Singh is the grand-father of the petitioner. PW3 Baljit
Singh is the brother of the petitioner. PW4 Subhash
Chander is also the relative of the petitioner. They are
interested witnesses. There is no evidence on the file to
show that the respondent has caused cruelty and

9 of 10
03-06-2017 22:49:30 :::
FAO-M-107-2004 -10-

desertion by her act and conduct. The respondent has
deposed that she is ready to live with the petitioner, but it
is the petitioner who has thrown her out from the
matrimonial home. The petitioner has kept his son Sonu
with him of his own. PW3 Baljit Singh has deposed that
she used to throw stones upon them in market but in
cross-examination he could not tell the date and month
when she pelted stones upon them. The statement of this
witness is not reliable. No person who has joined the
Bhai Biradari Panchayat was examined by the petitioner.
The younger sister of the respondent has been living in
the matrimonial home with her husband, therefore, it
cannot be believed that the respondent has deserted the
petitioner. It is not established on the record that the
respondent has left the matrimonial home without
husband’s consent and not returning thereafter.
Therefore, in my opinion, the cruelty and desertion have
not been proved on the record.”

11. No illegality or perversity could be pointed out by the learned

counsel for the appellant in the aforesaid findings recorded by the trial court

which may warrant interference by this Court. Accordingly, the present

appeal being devoid of any merit, is hereby dismissed.

(AJAY KUMAR MITTAL)
JUDGE

May 9, 2017 (HARINDER SINGH SIDHU)
gbs JUDGE

Whether Speaking/Reasoned Yes

Whether Reportable Yes

10 of 10
03-06-2017 22:49:30 :::

Leave a Comment

Your email address will not be published. Required fields are marked *