Sri Prasanta Kumar Mishra vs Smt. Suryamani Mishra on 11 August, 2017

HIGH COURT OF ORISSA: CUTTACK

S.A. No.338 of 1999

From the judgment and decree dated 28.8.1999 and 9.9.1999 respectively
passed by Shri M.C. Ray, learned Additional District Judge, Angul in T.A.
No.4 of 1997/27 of 1998 confirming the judgment and decree dated
15.1.1997 and 27.1.1997 respectively passed by Sri A.K. Dey, learned
Civil Judge (Sr. Divn.), Talcher in O.S. No.31/1993.
———-
Sri Prasanta Kumar Mishra …………… Appellant
—versus–
Smt. Suryamani Mishra ……………… Respondent

For Appellant : Mr. Gautam Mukherji, Advocate
For Respondent : Mr. D.K. Mohapatra, Advocate

JUDGMENT

P R E S E N T:

THE HON’BLE DR. JUSTICE A.K. RATH

———————————————————————————–
Date of Hearing : 28.7.2017 │ Date of Judgment: 11.08.2017

———————————————————————————–
Dr. A.K. Rath, J. Plaintiff is the appellant against confirming judgment in
a suit for dissolution of marriage.

2. The case of the plaintiff is that both the parties are Hindus.
The marriage between the plaintiff and respondent was solemnized in
accordance with the Hindu Rites and Customs on 10.2.1991. After
marriage, the respondent came to her matrimonial house. On 17.10.1991,
she gave birth to a male child. Five months after marriage, the respondent
picked up quarrel with the plaintiff and insisted to leave her matrimonial
house. She threatened to commit suicide in the event the plaintiff will not
leave the quarter where his father resides. Her behaviour towards the
father of the plaintiff was indecent. On 28.2.1992, the respondent and her
father abused the plaintiff. The respondent disclosed that she had been
conceived before marriage. Thereafter she went to her father’s house. The
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conduct of the respondent inflicted unbearable mental pain. The plaintiff
lost his mental balance and as a result of which he met with an accident.
On 17.3.1992, the respondent came to her matrimonial house. She
showed indecent behaviour. Due to negligence of the respondent, the child
fell down and became unconscious. She again picked up quarrel with the
plaintiff and threatened to commit suicide. She left to her father’s quarter.
Thereafter her father came to the house of the plaintiff, picked up quarrel,
assaulted the plaintiff and inflicted injury on his mother. The plaintiff
lodged an F.I.R. in the Police Station. The respondent and her father
lodged F.I.R. against the plaintiff alleging demand of dowry. While the
matter stood thus, on 27.4.1992, the respondent deserted the plaintiff
without any reasonable cause and deprived the plaintiff from the conjugal
relationship. All the persuasions made by the plaintiff ended in a fiasco. It
was further pleaded that the respondent instituted a case under Sec.125
Cr.P.C. against the petitioner in the court of the learned S.D.J.M., Talcher.
According to the plaintiff, the respondent persistently and repeatedly
threatened him with cruelty, which caused reasonable apprehension in the
mind of the plaintiff that will be harmful and injurious for him. The
reprehensible conduct of the respondent towards plaintiff was grave and
weighty which constitute mental cruelty. With this factual scenario, the
plaintiff instituted the suit seeking the releifs mentioned supra.

3. Pursuant to issuance of summons, the respondent entered
appearance and filed written statement denying the allegations made in
the plaint. The specific case of the respondent is that the plaintiff had
made frivolous allegations besmirching her character. The plaintiff
demanded dowry and tortured her. He assaulted the respondent on
several occasions and drove her out from her matrimonial house. She was
willing to join with the plaintiff. Their marriage had not been broken down
without any rhyme and reason.

4. Stemming on the pleadings of the parties, learned trial court
struck seven issues. Both parties led evidence, oral and documentary, to
prove their respective cases. On an anatomy pleadings and evidence on
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record, learned trial court came to hold that respondent had not made any
attempt to commit suicide. The marriage between the plaintiff and
respondent was solemnized on 10.2.1991. Thus it was not improbable to
deliver a baby child within the aforesaid time span. No independent
witness was examined to prove the allegation that the respondent had
uttered harsh words to the plaintiff. The plaintiff had not made any sincere
attempt to bring back the respondent. The plaintiff had failed to establish
his plea of cruelty and as such he is not entitled to a decree of divorce.
Held so, it dismissed the suit. The unsuccessful plaintiff challenged the
judgment and decree of the learned trial court before the learned
Additional District Judge, Angul in T.A. No.4 of 1997/27 of 1998, which
was eventually dismissed.

5. The second appeal was admitted on 17.2.2000 on the
following substantial questions of law enumerated in paragraph nos.13(a),

(b), (c), (d), (f) and (k) of the appeal memo. The same are quoted
hereunder.

“13(a) Whether the lower appellate court has committed an
illegality by not scanning and scrutinizing the evidence on
record ? Whether the lower appellate court was justified in
arbitrarily accepting the findings of facts, rendered by the
trial court, without assigning any reason, and by so doing
has failed to discharge his obligation as a final court of fact?

(b) Whether the trial court is justified in ignoring vital pieces
of material evidence on record and whether the lower
appellate court is justified in accepting the findings of the
trial court without making any effort to re-appreciate the
evidence adduced by the parties ?

(c) Whether the respondent’s plea to reside separately with
her husband discarding her parents-in-law amounts to
cruelty ?

(d) Whether the attempt of the respondent to commit
suicide amounts to cruelty ?

(f) Whether the respondent’s admission that she had
conceived the child prior to her marriage to the appellant
amounts to mental cruelty ?

(k) Whether the lower appellate court has committed an
illegality by not taking into consideration the appellant’s
application U/o 41, Rule 27 C.P.C. at the time of final
disposal of the appeal ?”

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6. Heard Mr. Gautam Mukherji, learned counsel for the appellant
and Mr. D.K. Mohapatra, learned counsel for the respondent.

7. Mr. Mukherji, learned counsel for the appellant submitted that
the marriage between the appellant-plaintiff and respondent was
solemnized on 10.2.1991. She delivered a child on 17.10.1991. She
disclosed that she conceived before marriage. In her cross-examination,
the respondent had also admitted the said fact. He further submitted that
the respondent had given repeated threats to commit suicide. The
behaviour of the respondent was unduly. She left the matrimonial house
on March, 1992 and lived separately. The aforesaid act constituted mental
cruelty. To buttress his submission, he relied on the decision of the apex
Court in the cases of V. Bhagat vs. Mrs. D. Bhagat, AIR 1994 SC 710,
Praveen Mehta vs. Inderjit Mehta, AIR 2002 SC 2582, Samar Ghosh vs.
Jaya Ghosh, (2004) 4 SCC 511, Pankaj Mahajan vs. Dimple @ Kajal,
(2011) 12 SCC 1.

8. Per contra, Mr. Mohapatra, learned counsel for the
respondent submitted that the plaintiff had made scandalous remarks
besmirching the character of the respondent. The allegations made in the
plaint are vague and without any basis. There is no foundational fact with
regard to attempt to commit suicide. There was hot exchange of words
between the couple during quarrel. It is not unusual on the part of the
couple to exchange hot words during quarrel. The same cannot constitute
metal cruelty. The respondent is still ready and willing to join companion
to the plaintiff. Both the courts on a threadbare analysis of the evidence
on record dismissed the suit. There was no perversity or illegality in the
findings of the court below.

9. Cruelty simpliciter is a ground for divorce under Sec.13 of the
Hindu Marriage Act (Act 25 of 1955). Section 13 provides, so far it is
material:

“13.Divorce.-(1) Any marriage solemnized,
whether before or after the commencement of this
Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of
divorce on the ground that the other party–

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(i) xxx xxx xxx
(i-a) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or
xxx xxx xxx”

10. In Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121, the
apex Court held thus:

“4. Section 13(1)(i-a) uses the words “treated the
petitioner with cruelty”. The word “cruelty” has not
been defined. Indeed it could not have been
defined. It has been used in relation to human
conduct or human behaviour. It is the conduct in
relation to or in respect of matrimonial duties and
obligations. It is a course of conduct of one which
is adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional. If it
is physical the court will have no problem to
determine it. It is a question of fact and degree. If
it is mental the problem presents difficulty. First,
the enquiry must begin as to the nature of the
cruel treatment. Second, the impact of such
treatment in the mind of the spouse. Whether it
caused reasonable apprehension that it would be
harmful or injurious to live with the other.
Ultimately, it is a matter of inference to be drawn
by taking into account the nature of the conduct
and its effect on the complaining spouse. There
may, however, be cases where the conduct
complained of itself is bad enough and per se
unlawful or illegal. Then the impact or the injurious
effect on the other spouse need not be enquired
into or considered. In such cases, the cruelty will
be established if the conduct itself is proved or
admitted.

5. It will be necessary to bear in mind that
there has been marked change in the life around
us. In matrimonial duties and responsibilities in
particular, we find a sea change. They are of
varying degrees from house to house or person to
person. Therefore, when a spouse makes complaint
about the treatment of cruelty by the partner in life
or relations, the Court should not search for
standard in life. A set of facts stigmatised as
cruelty in one case may not be so in another case.
The cruelty alleged may largely depend upon the
type of life the parties are accustomed to or their
economic and social conditions. It may also depend
upon their culture and human values to which they
attach importance. We, the Judges and lawyers,
therefore, should not import our own notions of
life. We may not go in parallel with them. There
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may be a generation gap between us and the
parties. It would be better if we keep aside our
customs and manners. It would be also better if we
less depend upon precedents. Because as Lord
Denning said in Sheldon v. Sheldon, (1966) 2 All
ER 257 (259) “the categories of cruelty are not
closed.” Each case may be different. We deal with
the conduct of human beings who are not generally
similar. Among the human beings there is no limit
to the kind of conduct which may constitute
cruelty. New type of cruelty may crop up in any
case depending upon the human behaviour,
capacity or incapability to tolerate the conduct
complained of. Such is the wonderful/realm of
cruelty.”

11. In V. Bhagat (supra), the apex Court held thus:

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

12. The apex Court enumerated instances of human behaviour
which may be relevant in dealing with the cases of mental cruelty in
Samar Ghosh (supra). The instances are only illustrative and not
exhaustive. The apex Court held thus:

“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
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“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.

xxx xxx xxx

(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.

xxx xxx xxx

(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.

xxx xxx xxx”

13. In Pankaj Mahajan (supra), the apex Court held that giving
repeated threats to commit suicide amounts to cruelty.

14. In Praveen Mehta (supra), the apex Court held thus:

“21. Cruelty for the purpose of Section 13(1)(ia) is
to be taken as a behavior by one spouse towards
the other which causes reasonable apprehension in
the mind of the latter that it is not safe for him or
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her to continue the matrimonial relationship with
the other. Mental cruelty is a state of mind and
feeling with one of the spouses due to the behavior
or behavioral pattern by the other. Unlike the case
of physical cruelty the mental cruelty is difficult to
establish by direct evidence. It is necessarily a
matter of inference to be drawn from the facts and
circumstances of the case. A feeling of anguish,
disappointment and frustration in one spouse
caused by the conduct of the other can only be
appreciated on assessing the attending facts and
circumstances in which the two partners of
matrimonial life have been living. The inference
has to be drawn from the attending facts and
circumstances taken cumulatively. In case of
mental cruelty it will not be a correct approach to
take an instance of misbehavior in isolation and
then pose the question whether such 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.”

15. On a cursory perusal of the plaint, it is evident that the
plaintiff pleaded that the respondent had threatened to commit suicide and
the respondent had disclosed that she had conceived before marriage. The
plaintiff in his evidence had stated that five months after, the respondent
insisted him for staying separate. When he refused, she threatened to
commit suicide. She had even attempt to commit suicide. In cross-
examination, the respondent admitted that there was a quarrel between
her and her husband. On 28.02.1992, she disclosed that she was
conceived through other. What more is required to prove the mental
cruelty ? The plaintiff will suffer the ignominy throughout his life. He
cannot live in peace. It is highly undesirable on the part of the husband to
live with the company of an insensible wife. There is a sanskrit sloka; “Aja
yuddha, rishi shradha, prabhate meghadambaru, dampatya kalahesachiba
bahwadambare laghu kriya” (fight of goats, shhradha of rishis, quarrel
between spouses and morning clouds start with a bang but end with a
whimper). But then the quarrel between the spouses reached to the extent
of attempting to commit suicide by wife. Confession of the respondent
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before the plaintiff that she had conceived before marriage and repeated
threats to commit suicide constitute mental cruelty. Both the courts did
not delve into the same in its proper perspective. The findings of the
courts below are perverse.

16. The next question crops up as to the amount the respondent
is entitled to towards permanent alimony. In course of hearing, an
affidavit has been filed by the appellant-plaintiff stating therein that he has
paid an amount of Rs.93,100/- towards maintenance to the respondent.
During conciliation, he offered an amount of rupees three lakhs towards
permanent alimony. But the conciliation failed. He filed the salary slip of
April, 2017 issued by the Manager (Personnel) Ananta OCP, Mahanadi
Coalfields Limited. The same indicates that he is getting Rs.41,203/-
towards salary. When the suit was filed in the year 1993, the respondent
was 23 years of age. She is at present 47 years. Considering her age and
status of her husband, this Court feels that ends of justice shall be better
served, if an amount of Rs.12,36,000/- (rupees twelve lakhs thirty-six
thousand), i.e., 25% of the salary x 12 x 10 years is granted to the
respondent towards permanent alimony. The said amount is calculated
keeping in view the interest that would fetch in the event the amount is
invested in any nationalized Bank in fixed deposit keeping in view the
present rate of interest. The amount so granted shall be paid by the
appellant to the respondent within three months, failing which, the
respondent may recover the amount by executing decree.

17. In the result, the judgments and decrees of the courts below
are set aside. The appeal is allowed to the extent indicated above. No
costs.

……………………………….

Dr. A.K. Rath,J.

Orissa High Court, Cuttack
The 11th August, 2017/Basanta

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