HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B.CIVIL MISC. APPEAL NO.5188/2008
Smt. Geeta D/o Shri Mangal Singh W/o Raghuveer Singh, B/c Koli,
R/o House No.773/29, Peepali Ka Kuwa, Nag Bai, Ajmer.
—-Appellant
Versus
Raghuveer Singh S/o Shri Chuttan Lal, B/c Koli, aged about 51
years, R/o Ashok Nagar, Bhatta, Nagra, Ajmer.
—-Respondent
__
For Appellant : Mr.Jai Prakash Gupta, Advocate
For Respondent : Mr.Harshad Kapoor on behalf of
Mr.Rajesh Kapoor, Advocate
__
HON’BLE MR. JUSTICE AJAY RASTOGI
HON’BLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment
Judgment reserved on : 04/07/2017
Judgment pronounced on : 17.07.2017
By the Court : Per Hon’ble Mr. Justice Ashok Kumar Gaur] :
Reportable
The present appeal has been filed by appellant-Smt. Geeta
(wife) against the judgment and decree dated 21.11.2008 passed
by the Judge, Family Court, Ajmer, whereby a decree of divorce
was granted against the appellant.
The husband of the appellant viz. Raghuveer Singh-the
respondent, filed an application under Section 13 of the Hindu
Marriage Act for seeking a decree of divorce on the ground of
cruelty and desertion. The respondent pleaded in his application
(2 of 14
[CMA 5188/2008]
that he was married to appellant-Smt. Geeta on 09.07.1984 as
per Hindu Rites. The appellant had left the matrimonial home on
26.07.1986 and since last 21 years she was residing with her own
parents and she had deserted the respondent-husband without
any justification. It was further pleaded in the application that the
appellant-wife never made any efforts to restore the normal
marriage relation for last so many years. The respondent-husband
pleaded that the appellant had filed an application under Section
125 Cr.P.C. dated 29.04.1989 for claiming maintenance and in
para-4 of her application, she levelled allegation about character
of the respondent. It was further pleaded in the application that
due to baseless and false allegations about character of the
respondent, he suffered mental agony and his image was lowered
down in the society and as such, mental cruelty was caused to
him. The respondent also pleaded the fact of leaving matrimonial
home without any reason and in spite of several persuasions, the
appellant-wife refused to come to the matrimonial home.
The appellant-wife filed reply to the application raising
preliminary objection of maintainability of said divorce petition on
the ground of res judicata as earlier application under Section 13
of the Hindu Marriage Act (No.259/1988) was dismissed on
26.04.1985. It was pleaded that the respondent had forcibly
turned her out from matrimonial home and she was staying not on
her own but due to polluted environment created by the
respondent. It was pleaded in para 8 of the reply that the
respondent-husband had relation with other lady and on protest
being raised by her, she was given beating and was turned out of
(3 of 14
[CMA 5188/2008]
matrimonial home.
The Court below on the basis of the pleadings framed
following issues:-
” 1 vk;k izkFkhZ ds lkFk vizkFkhZ;k dk O;ogkj ;kfpdk esa of.kZr
vk/kkjksa ij Øwjrkiw.kZ jgk gS
2 vk;k izkFkhZ dk vizkFkhZ;k us fcuk fdlh ;qfDr ;qDr dkj.k ds nks
o”kZ ls vf/kd vof/k ls ifjR;kx dj j[kk gS
3 vk;k tokcnkos esa vafdrkuqlkj izkFkhZ dk izkFkZuki jslT;wfMdsVk ds
fl)kUr ds vk/kkj ij pyus ;ksX; ugha gS
4 vk;k izkFkhZ vizkFkhZ;k ds fo:) fookg foPNsn dh fMØh ikus dh
vf/kdkjh gS
5 vuqrks”kAIn support of divorce petition, the respondent produced 3
witnesses, AW-1 Raghuveer Singh (himself), AW-2 Hukam Singh
(maternal grand-father of the appellant) and AW-3 Sohan Lal.
The appellant in support of her case produced herself as
NAW-1 and Bhagwan Singh (NAW-2) (brother-in-law of the
appellant) as well as NAW-3 Ved Prakash (neighbour of the
appellant).
The court below on the basis of pleadings and evidence came
to the conclusion that the issue No.1 relating to cruelty was
proved by the respondent and it recorded a finding that the
appellant-wife had levelled allegation of having illicit relation with
one Premlata who was maternal grand-mother (naani) of the
respondent. It was held that the respondent was brought up and
got married by her maternal grand-mother and in support of such
assertion, the husband of Premlata i.e. Hukam Singh (maternal
grand-father) also gave statement that the allegation of illicit
relation with Premlata was absolutely baseless. The court below
found that the appellant miserably failed to prove that the
(4 of 14
[CMA 5188/2008]
respondent had any illicit relation with her maternal grand-mother
and allegation about character of the respondent was absolutely
false and without any foundation. It was found that false
allegation about character assassination of a husband by a wife
was definitely coming within ambit of cruelty and such allegation
indeed affected the prestige and reputation of the respondent and
was taken as mental cruelty as envisaged under Section 13(1)
(i-a) of Hindu Marriage Act.
The court below with respect to the finding of issue No.2 on
‘desertion’ also came to the conclusion that the appellant was
living separately from the last 21 years and in spite of several
efforts being made to bring back the appellant, including holding
of Panchayat, resulted into not convincing the appellant to come
back to matrimonial home. It was found that the appellant had
voluntarily deserted the respondent for 21 years without any valid
justification
Issue No.3 with regard to res judicata was decided by
holding that the application under Section 13 of the Hindu
Marriage Act, which was filed had separate cause of action and the
allegations levelled against the character of the respondent-
husband causing mental cruelty and facts relating to desertion
were not subject matter of earlier application. The issue Nos. 4
5 with regard to grant of relief were decided in favour of the
respondent.
Learned counsel for the appellant has contended before this
Court that the findings of the court below on issue Nos. 1 2 are
not legally sustainable as they are contrary to the material on
(5 of 14
[CMA 5188/2008]
record and as such, suffers from perversity. Learned counsel has
urged that the fact of mental cruelty was not proved and as such,
the marriage could not have been dissolved on the ground of
mental cruelty.
Learned counsel has further urged that the finding with
regard to desertion is also not sustainable as the appellant was
always ready and willing to go to matrimonial home.
Learned counsel for the respondent-husband has supported
the order passed by the court below and has urged that after
considering the entire evidence and material on record, the decree
of divorce has rightly been passed by the court below.
We have considered the rival submissions and perused the
record.
Cruelty, which is a ground for dissolution of marriage, is
willful and unjustifiable conduct of such character as to cause
danger to life, limb or health, bodily or mental or as to give rise a
reasonable apprehension of such a danger. The mental cruelty
falls within purview of a matrimonial wrong. The cruelty has been
used in relation to human conduct and human behaviour. It is the
conduct in relation to or in respect of matrimonial duties and
obligations. Cruelty is a course or conduct of one, which is
adversely affecting the other. Cruelty can be intentional or
unintentional. Cruelty in matrimonial life may be of unfounded
variety, which can be subtle or brutal. It may be by conduct,
words, gestures, by a mere silence, violent or non-violent.
The various decisions of the Apex Court lay down the
principle of adjudging the cruelty. The Apex Court in the case of
(6 of 14
[CMA 5188/2008]
Narendra Vs. K.Meena [(2016) 9 Supreme Court Cases
455], while dealing with the issue of mental cruelty by leveling
baseless allegation without foundation has found it to be a very
serious nature and it has been held that such kind of baseless and
false allegation surely can be a cause for mental cruelty. The Apex
Court has held in the said judgment as under:-
“15. With regard to the allegations about an extra-
marital affair with maid named Kamla, the re-
appreciation of the evidence by the High Court does
not appear to be correct. There is sufficient evidence
to the effect that there was no maid named Kamla
working at the residence of the appellant. Some
averment with regard to some relative has been relied
upon by the High Court to come to a conclusion that
there was a lady named Kamla but the High Court has
ignored the fact that the Respondent wife had levelled
allegations with regard to an extra-marital affair of
the appellant with the maid and not with someone
else. Even if there was some relative named Kamla,
who might have visited the appellant, there is nothing
to substantiate the allegations levelled by the
Respondent with regard to an extra-marital affair.
True, it is very difficult to establish such allegations
but at the same time, it is equally true that to suffer
an allegation pertaining to one’s character of having
an extra-marital affair is quite torturous for any
person – be it a husband or a wife.
16. We have carefully gone through the evidence but
we could not find any reliable evidence to show that
the appellant had an extra-marital affair with
someone. Except for the baseless and reckless
allegations, there is not even the slightest evidence
that would suggest that there was something like an
affair of the appellant with the maid named by the
Respondent. We consider levelling of absolutely false
allegations and that too, with regard to an extra-
marital life to be quite serious and that can surely be
a cause for metal cruelty.
17. This Court, in the case of Vijaykumar Ramchandra
Bhate v. Neela Vijaykumar Bhate, has held as under:-
“7. The question that requires to be answered
first is as to whether the averments,
accusations and character assassination of the
wife by the appellant husband in the written
(7 of 14
[CMA 5188/2008]statement constitutes mental cruelty for
sustaining the claim for divorce under Section
13(1)(i-a) of the Act. The position of law in this
regard has come to be well settled and
declared that levelling disgusting accusations of
unchastity and indecent familiarity with a
person outside wedlock and allegations of
extramarital relationship is a grave assault on
the character, honour, reputation, status as
well as the health of the wife. Such aspersions
of perfidiousness attributed to the wife, viewed
in the context of an educated Indian wife and
judged by Indian conditions and standards
would amount to worst form of insult and
cruelty, sufficient by itself to substantiate
cruelty in law, warranting the claim of the wife
being allowed. That such allegations made in
the written statement or suggested in the
course of examination and by way of cross-
examination satisfy the requirement of law has
also come to be firmly laid down by this Court.
On going through the relevant portions of such
allegations, we find that no exception could be
taken to the findings recorded by the Family
Court as well as the High Court. We find that
they are of such quality, magnitude and
consequence as to cause mental pain, agony
and suffering amounting to the reformulated
concept of cruelty in matrimonial law causing
profound and lasting disruption and driving the
wife to feel deeply hurt and reasonably
apprehend that it would be dangerous for her
to live with a husband who was taunting her
like that and rendered the maintenance of
matrimonial home impossible.”
The word “cruelty” has not been defined in the Hindu
Marriage Act and there cannot be any comprehensive definition of
the concept of “mental cruelty” within which all kinds of cases of
mental cruelty can be covered. The Apex Court while dealing with
the gamut of cruelty has laid down various instances of mental
cruelty on illustrative basis and has further held that the concept
of “mental cruelty” cannot remain static. It is bound to change
with the passage of time. The Apex Court in the case of Samar
Ghosh Vs. Jaya Gosh [(2007)4 SCC 511] has dealt with issue
(8 of 14
[CMA 5188/2008]of mental cruelty as under:-
“98. On proper analysis and scrutiny of the
judgments of this Court and other Courts, we have
come to the definite conclusion that there cannot be
any comprehensive definition of the concept of
‘mental cruelty’ within which all kinds of cases of
mental cruelty can be covered. No court in our
considered view should even attempt to give a
comprehensive definition of mental cruelty.
99. Human mind is extremely complex and
human behaviour is equally complicated. Similarly
human ingenuity has no bound, therefore, to
assimilate the entire human behaviour 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.
100. 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.
101. No uniform standard can ever be laid down
for guidance, yet we deem it appropriate to
enumerate some instances of human behaviour
which may be relevant in dealing with the cases of
‘mental cruelty’. The instances indicated in the
succeeding paragraphs are only illustrative and not
exhaustive.
(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.
(9 of 14
[CMA 5188/2008]
(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 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 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.
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(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.”
The Apex Court in the case of Ramchander Vs. Ananta
[(2015)11 Supreme Court Cases 539] has reiterated that
“mental cruelty” is necessarily a matter of inference to be drawn
from the facts and circumstances of the case and instances of
cruelty are not taken into isolation but cumulative effect of facts
and circumstances emerging from evidence on record and then
drawing a fair inference whether a person has been subjected to
mental cruelty due to conduct of the other spouse. It has been
further held that the “mental cruelty” as set out in Sammar Gosh
(supra) are only illustrative and not exhaustive. The relevant para
of the said judgment is reproduced as under:-
“10. The expression ‘cruelty’ has not been defined in
the Hindu Marriage Act. Cruelty for the purpose of
Section 13(1)(i-a) is to be taken as a behaviour by
one spouse towards the other, which causes a
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. Cruelty can
be physical or mental. In the present case there is
no allegation of physical cruelty alleged by the
plaintiff. What is alleged is mental cruelty and it is
necessarily a matter of inference to be drawn from
the facts and circumstances of the case. It is settled
(11 of 14
[CMA 5188/2008]law that the instances of cruelty are not to be taken
in isolation but to take the cumulative effect of the
facts and circumstances emerging from the evidence
on record and then draw a fair inference whether the
plaintiff has been subjected to mental cruelty due to
conduct of the other spouse. In the decision in
Samar Ghosh case (supra), this Court set out
illustrative cases where inference of ‘mental cruelty’
can be drawn and they are only illustrative and not
exhaustive.”
The facts which have come on record in this case clearly
reveal that the appellant had levelled allegations against the
respondent of having illicit relation with her maternal grand-
mother (naani). It was pleaded in the application filed by the
appellant-wife under Section 125 Cr.P.C. that the character of the
respondent was not good and he was also having relation with
other female. The said allegations without any foundation
definitely amounts to causing mental cruelty to the respondent. In
society, if anybody alleges about illicit relation with pious relations
of maternal grand-mother, it is a serious aspersion on character of
a person and on his entire background. Such kind of allegations
levelled either of spoken words or in writing constitute mental
cruelty and thereby prestige and character of a person is at stake
not only in his own esteem but in society as well.
The submission of the counsel for the appellant about cruelty
not being caused needs to be rejected as the court below after
considering the entire evidence has found that the ground of
cruelty has duly been established by the respondent. We have
carefully gone through the evidence but we could not find any
reliable evidence to hold that the respondent had any extra
marital affairs with someone else except baseless and reckless
(12 of 14
[CMA 5188/2008]
allegations. Leveling of absolutely false allegation with regard to
an extra martial relations is quite serious and that can surely be a
cause for mental cruelty. In the present case, ground of cruelty
has been well established from the pleadings on record.
The learned Family Court has found ‘desertion’ as second
ground to grant decree of divorce. For establishing the ground of
desertion as far as deserting espouse is concerned, two conditions
are necessary: (i) the factum of separation and (ii) the intention
to bring cohabitation permanently to an end (animus descerendi).
Similarly, two elements are essential so far as the deserted
spouse is concerned: (i) the absence of consent and (ii) absence
of conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention.
The Apex Court in the case of Malathi Ravi, M.D. Vs.
B.V.Ravi, M.D., (2014)7 Supreme Court Cases 640 has laid down
the law for proving the desertion. Inferences may be drawn from
certain facts of those acts or by conduct, expression of intention,
both anterior and subsequent to the actual acts of separation. The
relevant para is quoted here under:-
“18. To appreciate the rivalised submissions raised
at the Bar, we have carefully perused the petition
and the evidence adduced by the parties and the
judgment of the Family Court and that of the High
Court. The plea that was raised for grant of divorce
was under Section 13(1)(i-b) of the Act. It provides
for grant of divorce on the ground of desertion for a
continuous period of not less than two year
immediately preceding the presentation of the
petition. The aforesaid provision stipulates that a
husband or wife would be entitled to a dissolution of
marriage by decree of divorce if the other party has
deserted the party seeking the divorce for a
(13 of 14
[CMA 5188/2008]continuous period of not less than two years
immediately preceding the presentation of the
petition. Desertion, as a ground for divorce, was
inserted to Section 13 by Act 68 of 1976. Prior to the
amendment it was only a ground for judicial
separation.
19. Dealing with the concept of desertion, this Court
in Savitri Pandey v. Prem Chandra Pandey has ruled
thus:-
“Desertion”, for the purpose of seeking divorce
under the Act, means the intentional
permanent forsaking and abandonment of one
spouse by the other without that other’s
consent and without reasonable cause. In other
words it is a total repudiation of the obligations
of marriage. Desertion is not the withdrawal
from a place but from a state of things.
Desertion, therefore, means withdrawing from
the matrimonial obligations i.e. not permitting
or allowing and facilitating the cohabitation
between the parties. The proof of desertion has
to be considered by taking into consideration
the concept of marriage which in law legalises
the sexual relationship between man and
woman in the society for the perpetuation of
race, permitting lawful indulgence in passion to
prevent licentiousness and for procreation of
children. Desertion is not a single act complete
in itself, it is a continuous course of conduct to
be determined under the facts and
circumstances of each case. After referring to a
host of authorities and the views of various
authors, this Court in Bipinchandra Jaisinghbai
Shah v. Prabhavati1 held that if a spouse
abandons the other in a state of temporary
passion, for example, anger [pic]or disgust
without intending permanently to cease
cohabitation, it will not amount to desertion.”
20. In the said Savitri Pandey case, reference was
also made to Lachman Utamchand Kirpalani’s case
wherein it has been held that desertion in its
essence means the intentional permanent forsaking
and abandonment of one spouse by the other
without that other’s consent, and without reasonable
(14 of 14
[CMA 5188/2008]
cause. For the offence of desertion so far as the
deserting spouse is concerned, two essential
conditions must be there (1) the factum of
separation, and (2) the intention to bring
cohabitation permanently to an end (animus
deserendi). Similarly two elements are essential so
far as the deserted spouse is concerned: (1) the
absence of consent, and (2) absence of conduct
giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention
aforesaid. For holding desertion as proved the
inference may be drawn from certain facts which
may not in another case be capable of leading to the
same inference; that is to say the facts have to be
viewed as to the purpose which is revealed by those
acts or by conduct and expression of intention, both
anterior and subsequent to the actual acts of
separation.”
The challenge with regard to finding on issue no.2 about
desertion also needs to be rejected as indisputably the appellant-
wife left the matrimonial home on 26.07.1986 i.e. almost after
two years of the marriage and admittedly, the appellant was living
on her own for almost 21 years, whereas, the application for
divorce was filed in the year 2007. In our view, the ground of
desertion is also well supported by the pleadings and evidence on
record.
Consequently, we do not find any legal infirmity in the
impugned judgment and the present appeal deserves to be
dismissed.
In the result, the present appeal is dismissed. No order as to
cost.
(ASHOK KUMAR GAUR),J. (AJAY RASTOGI),J.
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