Smt. Surabhi Trived vs Pushkar Trived on 11 September, 2017

1

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR

First Appeal No. 465 of 2013
Parties Name Smt. Surabhi Trivedi
vs
Pushkar Trivedi
Bench Constituted Hon’ble Shri Justice S.K. Gangele
Hon’ble Shri Justice Ashok Kumar Joshi
Judgment delivered by Hon’ble Shri Justice S.K. Gangele
Whether approved for Yes/No
reporting
Name of counsels for parties For appellant: Atulanand Awasthy,
Advocate.

For respondent/State: None.

Law laid down
Significant paragraph
numbers

(J U D G M E N T)
Pronounced on : 11.09.2017

1. Appellant has filed this appeal against the judgment dated

02.04.2013 passed in Civil Suit No.158-A/2011 by Shri R.K.

Joshi, First Additional Sessions Judge, Family Court, Jabalpur.

The trial Court dismissed the suit of the appellant filed under

Section 13(1) of Hindu Marriage Act, 1955 and refused to grant

decree of divorce.

2. The appellant-plaintiff pleaded before the trial Court that

her marriage with the respondent was solemnized on 01.03.2008

in accordance with Hindu rituals. The appellant pleaded that the

respondent and his family members made a demand of dowry.

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Allegations were leveled that the appellant had illegal relationship

with her cousin brother. The respondent performed sexual

intercourse with the appellant in most cruel manner. He inserted

his thumb in her private part and also inserted some artificial

instrument in her vagina. She was also beaten. The respondent

used to have unnatural sexual intercourse: oral as well as anal.

The appellant lodged a report at police station against the

respondent for commission of offence punishable under Sections

498-A, 377/34 of India Penal Code and Section 3/4 of Dowry

Prohibition Act. The respondent was tried for the aforesaid

offence. The trial Court acquitted the respondent. It was not

possible for the appellant to live with the respondent, hence, she

filed a civil suit for decree of divorce before the trial Court. The

trial Court issued notice to defendant-respondent by registered as

well as ordinary mode. When nobody appeared, a notice was

published in daily newspaper. After proper service, the defendant-

respondent was proceeded exparte. He did not file any written

statement before the trial Court.

3. The appellant in her evidence deposed that her marriage

was performed with the respondent on 01.03.2008 by Hindu

rituals at Indore. After marriage, the family members of the

respondent made a demand of dowry of near about Rs.12 lacs and

when the dowry was not paid, the appellant was subjected to

cruelty. She was abused and beaten. The respondent had made

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allegation that the appellant had illicit relationship with her

maternal brother. The respondent used to do abnormal sexual

intercourse i.e. oral as well as anal.

4. The mother of the appellant also tendered her evidence by

way of affidavit. She pleaded that a demand of dowry was made

by the family members of the respondent and cruelty was

practiced with the appellant. The appellant told her that

respondent was habitual of abnormal sexual intercourse. A report

was lodged at the police station and a criminal case was

registered.

5. The trial Court rejected the case of the appellant on the

ground that no case is made out by the appellant. This Court

issued notice to the respondent. A substituted service was also

allowed and notice was published in daily newspaper ‘Dainik

Bhaskar’ having wide circulation in Indore. Inspite of publication,

nobody appeared on behalf of the respondent. Hence, this Court

held that there was deemed service on the respondent.

6. The Apex Court in the case of Samar Ghosh Vs. Jaya

Ghosh (2007) 4 SCC 511 has held as under in regard to mental

cruelty which is a ground of divorce under Section 13(1)(i)(i-a) of

the Hindu Marriage Act:-

“No uniform standard can ever be laid down
for guidance, yet we deem it appropriate to
enumerate some instances of human behaviour which

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may be relevant in dealing with the cases of ‘mental
cruelty’. The instances indicated in the succeeding
paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life
of the parties, acute mental pain, agony and
suffering as would not make possible for the
parties to live with each other could come within
the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes
abundantly clear that situation is such that the
wronged party cannot reasonably be asked to put
up with such conduct and continue to live with
other party.

(iii) Mere coldness or lack of affection cannot
amount to cruelty, frequent rudeness of language,
petulance of manner, indifference and neglect
may reach such a degree that it makes the
married life for the other spouse absolutely
intolerable.

(iv) Mental cruelty is a state of mind. The feeling
of deep anguish, disappointment, frustration in
one spouse caused by the conduct of other for a
long time may lead to mental cruelty.

(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.

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(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 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.”

“Under the breakdown theory, divorce
should be seen as a solution and an escape route
out of a difficult situation. Such divorce is
unconcerned with the wrongs of the past, but is
concerned with bringing the parties and the
children to terms with the new situation and
developments by working out the most
satisfactory basis upon which they may regulate
their relationship in the changed circumstances.
Once the parties have separated and the
separation has continued for a sufficient length of
time and one of them has presented a petition for
divorce, it can well be presumed that the
marriage has broken down. The court, no doubt,

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should seriously make an endeavour to reconcile
the parties; yet, if it is found that the breakdown
is irreparable, then divorce should not be
withheld. The consequences of preservation in
law of the unworkable marriage which has long
ceased to be effective are bound to be a source of
greater misery for the parties.”

7. The Apex Court further in the case of Suman Kapur Vs.

Sudhir Kapur (2009) 1 SCC 422 has held as under in regard to

mental cruelty:-

“30. The concept of cruelty has been dealt with in
Halsbury’s Laws of England [Vol.13, 4th Edition
Para 1269] as under;

“The general rule in all cases of cruelty is that
the entire matrimonial relationship must be
considered, and that rule is of special value when
the cruelty consists not of violent acts but of
injurious reproaches, complaints, accusations or
taunts. In cases where no violence is averred, it is
undesirable to consider judicial pronouncements
with a view to creating certain categories of acts
or conduct as having or lacking the nature or
quality which renders them capable or incapable
in all circumstances of amounting to cruelty; for
it is the effect of the conduct rather than its nature
which is of paramount importance in assessing a
complaint of cruelty. Whether one spouse has
been guilty of cruelty to the other is essentially a
question of fact and previously decided cases
have little, if any, value. The court should bear in
mind the physical and mental condition of the
parties as well as their social status, and should
consider the impact of the personality and
conduct of one spouse on the mind of the other,
weighing all incidents and quarrels between the
spouses from that point of view; further, the
conduct alleged must be examined in the light of
the complainant’s capacity for endurance and the
extent to which that capacity is known to the other
spouse”.

31. In Gollins V. Gollins 1964 AC 644: (1963)2 All
ER 966, Lord Reid stated:

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“No one has ever attempted to give a
comprehensive definition of cruelty and I do not
intend to try to do so. Much must depend on the
knowledge and intention of the respondent, on the
nature of his (or her) conduct, and on the
character and physical or mental weakness of the
spouses, and probably no general statement is
equally applicable in all cases except the
requirement that the party seeking relief must
show actual or probable injury to life, limb or
health”.

32. Lord Pearce also made similar observations;
“It is impossible to give a comprehensive
definition of cruelty, but when reprehensible
conduct or departure from normal standards of
conjugal kindness causes injury to health or an
apprehension of it, is, I think, cruelty if a
reasonable person, after taking due account of
the temperament and all the other particular
circumstances would considered that the conduct
complained of is such that this spouse should not
be called on to endure it”. [see also Russell v.
Russell, (1897) AC 395 : (1895-99) All ER Rep
1].

33. The test of cruelty has been laid down by this
court in the leading case of
N.G. Dastane v. S.
Dastane, (1975)2 SCC 326 thus:

“The enquiry therefore has to be whether the
conduct charges as cruelty is of such a character
as to cause in the mind of the petitioner a
reasonable apprehension that it will be harmful
or injurious for him to live with the
respondent….”

34. In Sirajmohmedkhan Janmohamadkhan v.
Haizunnisa Yasinkhan Anr., (1981) 4 SCC 250,
this Court stated that the concept of legal cruelty
changes according to the changes and advancement
of social concept and standards of living. It was
further stated that to establish legal cruelty, it is not
necessary that physical violence should be used.
Continuous cessation of marital intercourse or total
indifference on the part of the husband towards
marital obligations would lead to legal cruelty.

35. In Shobha Rani v. Madhukar Reddi, (1988) 1
SCC 105, this Court examined the concept of cruelty.

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It was observed that the term `cruelty’ has not been
defined in the
Hindu Marriage Act. It has been used
in
Section 13(1)(ia) of the Act in the context of
human conduct and behavior in relation to or in
respect of matrimonial duties or obligations. It is a
course of conduct of one spouse which adversely
affects the other spouse. The cruelty may be mental
or physical, intentional or unintentional. If it is
physical, it is a question of degree which is relevant.
If it is mental, the enquiry must begin as to the nature
of the cruel treatment and then as to the impact of
such treatment on the mind of the other spouse.
Whether it caused reasonable apprehension that it
would be harmful or injurious to live with the other,
ultimately, is a matter of inference to be drawn by
taking into account the nature of the conduct and its
effect on the complaining spouse.

36. 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. The absence of intention should
not make any difference in the case, if by ordinary
sense in human affairs, the act complained of could
otherwise be regarded as cruelty. Mens rea is not a
necessary element in cruelty. The relief to the party
cannot be denied on the ground that there has been
no deliberate or wilful ill-treatment.

37. In V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC
337, the Court observed;

“Mental Cruelty in Section 13(1)(ia) 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
unintentional. If it is physical, it is a question of
fact and degree. If it is mental, the enquiry must
begin as to the nature of the cruel treatment and
then as to the impact of such treatment on the
mind of the spouse. Whether it caused reasonable

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apprehension that it would be harmful or
injurious to live with the other, ultimately, 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. The absence
of intention should not make any difference in the
case, if by ordinary sense in human affairs, the
act complained of could otherwise be regarded as
cruelty. Intention is not a necessary element in
cruelty. The relief to the party cannot be denied
on the ground that there has been no deliberate
or wilful ill-treatment or 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”.

38. This Court in Chetan Dass v. Kamla Devi, (2001)
4 SCC 250, stated;

“14. Matrimonial matters are matters of delicate
human and emotional relationship. It demands
mutual trust, regard, respect, love and affection
with sufficient play for reasonable adjustments
with the spouse. The relationship has to conform
to the social norms as well. The matrimonial
conduct has now come to be governed by statute
framed, keeping in view such norms and changed
social order. It is sought to be controlled in the

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interest of the individuals as well as in broader
perspective, for regulating matrimonial norms for
making of a well-knit, healthy and not a disturbed
and porous society. The institution of marriage
occupies an important place and role to play in
the society, in general. Therefore, it would not be
appropriate to apply any submission of
“irretrievably broken marriage” as a straitjacket
formula for grant of relief of divorce. This aspect
has to be considered in the background of the
other facts and circumstances of the case”.

39. Mental cruelty has also been examined by this
Court in
Parveen Mehta v. Inderjit Mehta (2002) 5
SCC 706 thus;

“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
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, 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 behavior 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.”

40. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC
22, the Court observed as under:

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“10. The expression “cruelty” has not been
defined in the Act. Cruelty can be physical or
mental. Cruelty which is a ground for dissolution
of marriage may be defined as wilful and
unjustifiable conduct of such character as to
cause danger to life, limb or health, bodily or
mental, or as to give rise to a reasonable
apprehension of such a danger. The question of
mental cruelty has to be considered in the light of
the norms of marital ties of the particular society
to which the parties belong, their social values,
status, environment in which they live. Cruelty, as
noted above, includes mental cruelty, which falls
within the purview of a matrimonial wrong.

Cruelty need not be physical. If from the conduct
of the spouse, same is established and/or an
inference can be legitimately drawn that the
treatment of the spouse is such that it causes an
apprehension in the mind of the other spouse,
about his or her mental welfare then this conduct
amounts to cruelty. In a delicate human
relationship like matrimony, one has to see the
probabilities of the case. The concept proof
beyond the shadow of doubt, is to be applied to
criminal trials and not to civil matters and
certainly not to matters of such delicate personal
relationship as those of husband and wife.
Therefore, one has to see what are the
probabilities in a case and legal cruelty has to be
found out, not merely as a matter of fact, but as
the effect on the mind of the complainant spouse
because of the acts or omissions of the other.
Cruelty may be physical or corporeal or may be
mental. In physical cruelty, there can be tangible
and direct evidence, but in the case of mental
cruelty there may not at the same time be direct
evidence. In cases where there is no direct
evidence, Courts are required to probe into the
mental process and mental effect of incidents that
are brought out in evidence. It is in this view that
one has to consider the evidence in matrimonial
disputes.”

41. In Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC
778, the Court said;

“31. It is settled by a catena of decisions that
mental cruelty can cause even more serious

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injury than the physical harm and create in the
mind of the injured appellant such apprehension
as is contemplated in the section. 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.

32. The word “cruelty” has not been defined and
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 and one
which is adversely affecting the other. The cruelty
may be mental or physical, intentional or
unintentional. There may 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”.

42. It was further stated:

“35. Each case depends on its own facts and must
be judged on these facts. The concept of cruelty
has varied from time to time, from place to place
and from individual to individual in its
application according to social status of the
persons involved and their economic conditions
and other matters. The question whether the act
complained of was a cruel act is to be determined
from the whole facts and the matrimonial
relations between the parties. In this connection,
the culture, temperament and status in life and
many other things are the factors which have to
be considered.

36. The legal concept of cruelty which is not
defined by the statute is generally described as
conduct of such character as to have caused
danger to life, limb or health (bodily and mental)
or to give rise to reasonable apprehension of
such danger. The general rule in all questions of

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cruelty is that the whole matrimonial relations
must be considered, that rule is of a special value
when the cruelty consists not of violent act but of
injurious reproaches, complaints, accusations or
taunts. It may be mental such as indifference and
frigidity towards the wife, denial of a company to
her, hatred and abhorrence for wife, or physical,
like acts of violence and abstinence from sexual
intercourse without reasonable cause. It must be
proved that one partner in the marriage however
mindless of the consequences has behaved in a
way which the other spouse could not in the
circumstances be called upon to endure, and that
misconduct has caused injury to health or a
reasonable apprehension of such injury. There
are two sides to be considered in case of
apprehension of such injury. There are two sides
to be considered in case of cruelty. From the
appellants, ought this appellant to be called on to
endure the conduct? From the respondent’s side,
was this conduct excusable? The Court has then
to decide whether the sum total of the
reprehensible conduct was cruel. That depends
on whether the cumulative conduct was
sufficiently serious to say that from a reasonable
person’s point of view after a consideration of
any excuse which the respondent might have in
the circumstances, the conduct is such that the
petitioner ought not be called upon to endure.”

8. The Apex Court has specifically held that a long period of

continuous separation and no efforts by the party to take

unilateral decision or refusal to have intercourse for considerable

time without there being any physical incapacity or valid reason

may amount to mental cruelty. The marriage becomes a fiction by

refusing to sever the law. In the present, the respondent has not

contacted the appellant since long. He neither appeared before the

trial Court nor before this Court despite service of notice. Neither

he filed any written statement before the trial Court nor any reply

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before this Court. He has also not informed the Court whether

still he is willing to live with the appellant or not.

9. Looking to the aforesaid conduct of the respondent, in our

opinion, the respondent has been practicing cruelty with the

appellant. It is well settled principle of law that Court can look

into past conduct of the party before passing judgment and decree

of divorce.

10. Looking to the evidence and facts of the case, in our

opinion, it would be just and proper to award a decree of divorce

in favour of the appellant. Consequently, the appeal filed by the

appellant is hereby allowed. The impugned judgment and decree

passed by the trial court is hereby set-aside. A decree of divorce is

hereby granted in favour of the appellant. It is further declared

that the marriage solemnized between the appellant and

respondent is nullified.

11. Parties shall bear their own costs.

(S.K. Gangele) (Ashok Kumar Joshi)
Judge Judge

vkt
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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR

First Appeal No. 465 of 2013

Smt. Surabhi Trivedi

versus

Pushkar Trivedi
JUDGMENT

FOR CONSIDERATION

(S.K. GANGELE)
JUDGE
.09.2017

HON. SHRI JUSTICE ASHOK KUMAR JOSHI

(ASHOK KUMAR JOSHI)
JUDGE

Post for:

/09/2017

(S.K. GANGELE)
JUDGE
.09.2017

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