HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 4071/2007
Smt. Meeta Sharma W/o Shri Shashikant Bhardwaj D/o Late Shri
Laxmikant Sharma, Aged About 33 Years, R/o 1/195, Beech Ka
Mohalla, Munshi Bazar, Alwar.

—-Appellant
Versus
1. Shashikant Bhardwaj S/o Late Shri Ram Sharma, by Caste
Brahmin, Aged About 37 Years, R/o House No. 414, Bharat Vihar,
10-B-Scheme, Gopalpura, Jaipur. (To Be Served Through Head
Master, Government Primary School Manpur Gate, Rainwal, Tehsil
Phagi, District Jaipur.

2. Judge, Family Court No. 2, Jaipur City, Jaipur.

—-Respondents
__
For Appellant(s) : Ms.Anita Agrawal, Advocate with
Mr.Laxmikant Sharma, Advocate
For Respondent(s) : Mr.Saugath Roy, Advocate with
Mr.Vineet Pareek, Advocate
__
HON’BLE MR. JUSTICE AJAY RASTOGI

HON’BLE MR. JUSTICE ASHOK KUMAR GAUR
JUDGMENT
Judgment reserved on : 05/07/2017

Judgment pronounced on : 24.07.2017

By the Court : Per Hon’ble Mr. Justice Ashok Kumar Gaur] :

The present appeal has been filed by the appellant

challenging the judgment and decree dated 28.06.2007 whereby

the Family Court No.2, Jaipur has allowed the application of
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[CMA-4071/2007]

respondent-husband granting him decree of divorce under Section

13(1) (i-a) and 13(1) (i-b) of the Hindu Marriage Act, 1955 and

has further granted permanent alimony of Rs.2000/- per month

under Section 25 of the Hindu Marriage Act.

Briefly stated facts of the case are that respondent-

applicant-Shashikant Bhardwaj was married with the appellant-

non-applicant- Smt.Meeta Sharma as per Hindu rites on

15.02.1996. The appellant and respondent were residing at Joshi

Colony, Barkat Nagar, Jaipur though the respondent was serving

as Government Teacher and was posted at Raniwal Maji, Tehsil

Phagi, District Jaipur. The appellant started residing at Raniwal

from the year 1999 in a rented premise and out of wedlock, a

child (son) was born on 25.04.2000. The respondent-husband filed

an application on 22.05.2003 in the Family Court No.2, Jaipur

under Section 13(1)(i-a) 13(1)(i-b) of the Hindu Marriage Act,

1955 (hereinafter referred to as “the Act of 1955) for seeking a

decree of divorce on the grounds of cruelty and desertion. It was

pleaded in the application that the appellant-wife started abusing

the respondent soon after marriage. She started giving threat of

lodging false criminal case for demand of dowry and not willing to

work. She also threatened that she had six brothers and they will

break the legs and hands of the respondent. It was alleged that

the appellant-wife caused mental cruelty to the respondent-

husband by various acts like not accepting the Saari from her

sister-in-law (nanad); the appellant threw hot water upon the

respondent on asking for serving tea to his friend; started

demanding money etc. The respondent told his brother-in-laws
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about the cruelty meted to him but in turn they abused him. The

respondent-husband also alleged about the misbehaviour with his

sister and elder brother; frequent visits to her brother’s house at

Alwar; new demands and requirement of money and not fulfilling

of the same threatening for lodging a false criminal case and

putting him in jail. It was also stated in the application that the

wife of one of brother-in-law of respondent-husband, namely,

Smt. Madhu, who was also a Teacher posted at Raniwal started

misguiding the other colleagues Teachers. The appellant refused to

attend the Mundan ceremony and left the house by taking away

Rs.4000/-, clothes and other articles. Further, after returning from

her parents house on 10.7.2000, she abused the respondent-

husband and also came to the school with her brothers and

started demanding Rs.25,000/- and on refusal all started abusing

in presence of staff of the school. The respondent was also

summoned by police several times on false complaint filed by the

appellant.

It was further pleaded in the application that without any

reasonable cause, the appellant-wife deserted the respondent

from 10.03.2000 and on 16.05.2003, the respondent came to

learn about lodging of FIR by brothers of the appellant-wife on

23.04.2003. It was prayed in the application that on the ground of

cruelty and desertion, the decree of divorce was liable to be

granted.

Per contra, the appellant-wife filed reply to the application,

and allegations with regard to cruelty and desertions were denied

outrightly. It was pleaded in the reply that she made all efforts to
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maintain the happy family life and the respondent was used to

drink daily and beat her regularly. It was denied that she had

thrown the saari as alleged on floor and in fact, it was her sister-

in-law who did it. The appellant pleaded that she did not go to her

brother house out of her own wish but because on many occasions

husband locked the house and she had remained in the house

without any food and water. She pleaded that for 2 years she was

not allowed to visit her parents place.

It was also pleaded by appellant that there was demand of

Rs.21,000/- and of gas-cylinder by the husband and when she

was 8 months pregnant she was alone in the house and she had

no money for day to day work and the husband did not come for

10 days and she had to go to her inlaws house at Jaipur. He

refused to keep her and closed the doors and as such she had to

go to Alwar where she remained till the delivery of her son. She

denied the fact of taking money and any articles, and alleged that

the respondent-husband came to know that she is residing at

Alwar but he did not make any attempt to come back. It was

pleaded that she did not desert her husband but it was her

husband who left her and no efforts were made by him to bring

her back and in the circumstances, she had to live with her

brother at Alwar.

The Family Court framed as many as 4 issues on the basis of

the pleadings, which are as under:-

” 1- D;k vizkfFkZ;k us izkFkhZ ds lkFk ;kfpdk esa of.kZr Øwjrkiw.kZ O;ogkj
fd;k ftlls izkFkhZ fookg foPNsn dh fMØh izkIr djus dk vf/kdkjh
gS
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[CMA-4071/2007]

2- D;k vizkFkhZ;k us fnuakd 10-03-2000 ls fujUrj fcuk fdlh ;qfDr;qDr
dkj.k ds izkFkhZ dk ifjR;kx dj j[kk gS ftlls Hkh og fookg foPNsn
dh fMØh izkIr djus dk vf/kdkjh gS
3- D;k ;g vkosnu bl U;k;ky; ds Jo.kkf/kdkj dk ugha gS
4- vuqrks”kA”

The respondent-husband in support of his divorce petition

produced PW-1 (himself), PW-2 Jagdish Sharma (colleague of the

respondent) , PW-3 Triloki Prasad (neighbour). The appellant got

examined herself as DW-1, DW-2 Shivkant Sharma (brother), DW-

3 Saraswati Kant and DW-4 Ankur Sharma.

The Family Court decided the issue no.1 of cruelty in favour

of respondent-husband and came to conclusion that the various

acts/complained of causing cruelty were proved by the

respondent. The issue no.2 with regard to desertion was also

found to be proved as the appellant had admitted in her cross-

examination that she was not staying with the respondent-

husband since 10.03.2000.

The learned counsel for the appellant has urged before this

Court that finding of the Family Court on both the issues nos. 1

2 is not legally sustainable as cruelty and desertion were not made

out and the Family Court has committed a cross illegality in

passing the decree of divorce.

The learned counsel for the appellant has made submission

that in the present case, the incidents narrated are of general

allegations and there are no details. It was argued by learned

counsel for the appellant that Section 23(1)(b) of the Act of 1955

provides that ground of cruelty alleged in the petition for grant of

divorce have been condoned and due to compromise in behaviour
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of the parties, the cruelty cannot be said to be committed under

Section 13(1)(i-a) of the Act of 1955.

Learned counsel for the appellant has further argued that the

Family Court below has passed the impugned judgment on the

basis of surmises and conjectures as undue weightage to the

question of non-lodging of FIR has been given in regard to

demand of dowry and in regard to injuries meted with the brother

of the appellant.

Learned counsel for the appellant has submitted that the

issue no.2 with regard to desertion has also been not decided as

per requirement of law as there was sufficient cause for not

residing with the respondent. Learned counsel submitted that

appellant after the birth of her son herself came to the house of

respondent but he behaved very rudely with the appellant and as

such, she had no option but to leave the matrimonial house.

Learned counsel submits that since, even basic needs of the

appellant were not met and even food was not provided under the

compelling circumstances she had to live with her brothers. It has

been submitted that basic ingredients of desertion were not

proved and as such, the grant of decree of divorce is vitiated.

Learned counsel for the appellant has relied upon the

judgments rendered in the case of: (i) Suman Singh Vs. Sanjay

Singh, 2017(4) SCC 85, (ii) Samar Ghosh Vs. Jaya Ghosh,

2007(4) SCC 511, (iii) Neelam Kumar Vs. Dayarani, 2010(13) SCC

298, (iv) Smt. Mayadevi Vs. Jagdish Prasad, AIR 2007 SC 1426,

(v) Prabhat Vs. Swati, 2008 SCC Bombay 835, (vi) Lachman

Utamchand Kirpalani Vs. Meena alias Mota, AIR 1964 SC 40 and
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(vii) Shyam Sunder Kohli Vs. Sushma Kohli @ Satya Devi, 2004(7)

SCC 747.

Per contra, learned counsel for the respondent-husband has

supported the judgment and decree passed by the courts below

and has urged that the court below has rightly decided both the

issues of cruelty and desertion. Learned counsel submits that the

various acts of causing mental cruelty were well established by

leading evidence and the issue of desertion was also rightly found

to be proved as the appellant had deposed that she was not living

together with her husband after 10.03.2000 and the witnesses

DW-3 DW-4 also deposed in their examination-in-chief that the

appellant was living separately since March, 2000.

It has been further submitted by the learned counsel for the

respondent that Family court passed the judgment and decree on

28.06.2007 and present appeal has been filed on 26.09.2007 and

Registry of this court had pointed out the defect that appeal had

time barred by 60 days. Moreover, the respondent solemnized re-

marriage with one Beena Kumari Sharma and out of this marriage,

a son was also born on 30.09.2009 and this fact was brought into

notice of the Court by way of filing an application. It was urged

that statutory time of filing of the appeal had expired and he got

re-married on 09.11.2008 after expiry of limitation period and

thus, the appeal has been rendered infructuous.

Reliance is placed on the following judgments: (i) Malathi

Ravi Vs. B.V.Ravi, (2014)7 SCC 640, (ii) Vishwanath Agarwal Vs.

Sarla Agarwal, (2012)7 SCC 288, (iii) Alka Dadhich Vs. Ajay
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[CMA-4071/2007]

Dadhich, (2008) 1 RLW 248 and (iv) G.V.N Kameshwar Rao Vs.

G.J.Abilli, AIR 2002 SC 576.

We have considered the rival submissions and perused the

record.

It is settled by a catena of decisions of Apex Court that

mental cruelty can cause even more serious injury than the

physical harm. It is to be determined on whole facts of the case

and the matrimonial relations between the spouses. To amount to

cruelty, there must be such willful treatment of the party which

caused suffering in body or mind either as an actual fact or by way

of apprehension in such a manner as to render the continued

living together of spouses harmful or injurious having regard to

the circumstances of the case. Mental cruelty and its effect cannot

be stated with arithmetical exactitude. It varies from individual to

individual from society to society and also depends on the status

of the persons. What would be a mental cruelty in the life of two

individuals belonging to particular strata of the society may not

amount to mental cruelty in respect of another couple belonging

to a different stratum of society. The agonized feeling or for that

matter a sense of disappointment can take place by certain acts

causing a grievous dent at the mental level. The inference has to

be drawn from the attending circumstances.

The Apex Court in the case of 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
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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
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
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[CMA-4071/2007]

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

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
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‘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.

(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
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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.

(xii)Unilateral decision of refusal to have
intercourse for considerable period without
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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
law that the instances of cruelty are not to be taken
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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 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
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
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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
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
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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.”

While considering the aforementioned judgments, this

Court has recently decided the issue of “cruelty” in D.B.Civil

Misc. Appeal No.5188/2008 (Smt. Geeta Vs. Raghuveer

Singh) vide judgment dated 17.07.2017, as under:-

“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.”

In the case at hand, the Family court on the basis of

evidence brought on record has recorded a finding that the ground

of cruelty was well established by pleadings and evidence. The

Family Court on the basis of evidence has recorded a finding that

the appellant was quarrelsome, used to leave her house on her

own and on being asked about her whereabouts she used to abuse

the respondent-husband and used to threaten to implicate in a

criminal case. The fact of throwing hot water in presence of

colleagues of the respondent is found to be proved. It has been

found that the appellant along with his brother came to the school
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and threatened the respondent-husband to dire consequences,

including the threat to physically harm him. The Family Court has

further found that allegation of staying in a separate room by the

appellant was also not proved as there was admission by the

appellant herself that they used to stay in only one room.

We find that the various incidents which have been found to

be proved on the basis of evidence, requires no interference by

this Court.

The submission of the counsel for the appellant that the

findings have been given without considering the evidence in

proper perspective needs to be rejected as the Family Court has

considered the evidence of both the parties and then has recorded

a finding. The argument of the learned counsel for the appellant

that solitary incident or all other allegations/sporadic incidents do

not constitute cruelty also needs to be rejected. The Family court

has not only taken one or two incidents but has considered entire

incidents and then has recorded its finding. In our view, throwing

of hot water in presence of colleagues of a person; misbehavior

and fight at work place; threatening to lodge a false criminal case;

use of force by brothers of the appellant, misbehaviour at several

junctures lead to a situation where ill-treatment and mental agony

as well as mental torture is indeed suffered by the respondent-

husband.

The argument of the learned counsel for the appellant that

cruelty was condoned as per requirement of Section 23(1)(b) of

the Act of 1955 is liable to be rejected . There has been no

condonation of the alleged mental cruelty by the husband. It has
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neither been pleaded nor proved that all those acts which

constituted mental cruelty were condoned by the respondent-

husband.

The submission of the appellant with regard to desertion not

being proved, requires to be rejected. On bear reading of the

statement of the appellant herself that she has not been living

with her husband since March, 2000 itself prove that she was not

living with her husband since long. It is apparent from the

evidence on record that the appellant had not stayed with the

husband without any justifiable reason. The finding of the Family

court are well supported on all issues.

The reference of judgment of the Apex Court made by the

learned counsel for the appellant in regard to cruelty in case of

Suman Singh Vs.Sanjay Singh (supra) does not apply in the facts

of the present case. The Apex Court in the said judgment has held

that if there are no details of mental cruelty and solitary incident

is reported without giving detail of such mental cruelty, Court

cannot record finding of cruelty. The case in hand is not relating to

one solitary incident of cruelty and on the contrary various

incidents with details have been given and as such, the said

judgment of the Apex Court is of no assistance to the appellant.

The Apex Court has also held in the said case that few isolated

incidents of long past and that too found to have been condoned

due to compromising behaviour of the parties cannot, constitute

an act of cruelty. In the instant case, there has been no

condonation or compromising behaviour of the parties and as

such, the judgment of the Apex Court will not cover the case of
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the appellant.

In the case of Samar Ghosh Vs. Jaya Ghosh (supra), on

which the reliance was placed by learned counsel for the

appellant, the Apex Court held that no uniform standard can ever

be laid down for guidance to adjudge the cruelty but certain

instances by way of illustrations were enumerated and in the said

judgment itself in para 101, the Apex Court held that instances

indicated in the judgment were only illustrative and not

exhaustive.

The reliance on the judgment of Apex Court in the case of

Smt. Mayadevi Vs. Jagdish Prasad (supra) has also no application

in the instant case. In the said case, it is held that for constituting

cruelty the conduct, complained should be grave and weighty so

as to come to the conclusion that the spouse cannot be reasonably

expected to live with the other spouse. The facts in the present

case clearly established various acts of causing mental cruelty and

as such, become impossible for the husband to stay with his wife.

The judgment relied by the learned counsel for the appellant

in the case of Prabhat Vs. Swati (supra) also does not support the

case of the appellant. The appellant herself has admitted that she

was not staying with her husband since March, 2000 and there

was no justifiable cause for her not going back to her matrimonial

home. The other judgments relied by the learned counsel for the

appellants in the case of Lachman Utamchand Kirpalani Vs. Meena

@ Mota and Shyam Sunder Kohli Vs. Sushma Kohli @ Satya Devi

are of no assistance to the learned counsel for the appellant and

does not apply in the present facts of the case.

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[CMA-4071/2007]

We are also not inclined to dwell into the issue of re-

marriage of respondent, which he alleges to have solemnized

during the pendency of the present appeal. We have considered

the ground of cruelty and desertion being found proved, as such,

the fact of re-marriage of the respondent is not relevant for

deciding the present controversy.

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.

NK/62