Smt. Sangita Nigam vs Saurabh Nigam on 22 November, 2017

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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
DIVISION BENCH: Hon’ble Shri Justice S.K. Gangele
Hon’ble Shri Justice Anurag Shrivastava

First Appeal No.114 of 2013

Smt. Sangita Nigam

Versus.
Saurabh Nigam
—————————————————————————-
Shri Anoop Saxena, counsel for the appellant.
Shri Vijay Kumar Mishra, counsel for the respondent.
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JUDGMENT

(Pronounced on 22.11.2017)
As per S.K. Gangele, J:

1. Appellant has filed this appeal against the judgment and

decree dated 21.12.2012 passed by District Judge, Chhatarpur in

Hindu Marriage Case No.8-A/2012.

2. The respondent/husband filed a suit for grant of divorce. He

pleaded that marriage of the respondent with appellant was

solemnized on 23.02.1999 in accordance with Hindu rituals at

Chhatarpur. They were living at Jabalpur and two children namely;

Mimansha and Manas were born from their wedlock on 23.01.2001

and 04.09.2003. The behaviour of the appellant was cruel. She used

to leave the house of the respondent and abuse him. She had

beaten children also. The respondent had taken house at Mother
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Teresa Colony, Jabalpur and he was living in that house with the

appellant. Inspite of that, appellant left the house and she did not

return back to the matrimonial home. The appellant lodged a report

at Police station Gohalpur on 26.04.2005 against the respondent and

his father. An affidavit was filed on 04.05.2005 to the effect that

appellant and respondent would live peacefully. However, the

appellant-wife did not return to the house of the respondent. She

had illicit relationship with one Mr. Ramesh Patel and he used to visit

the house of the respondent.

3. Appellant-wife in her written statement denied the pleadings

of the respondent-husband. She denied the fact that she misbehaved

with the respondent and his family members. Contrary to this, she

pleaded that respondent had forced her to leave the matrimonial

home. She also denied the fact that she had any illicit relationship

with any other person including Mr. Ramesh Patel. Appellant filed an

application under Section 9 of the Hindu Marriage Act for restitution

of conjugal rights, it was decreed by the trial Court on 11.11.2008.

Appellant pleaded that demand of dowry was made by the family

members of the respondent and she was forced to lodge complaint

against the respondent and his family members .On the complaint of

appellant, criminal case vide Crime No.23/05 for commission of

offence punishable under Sections 498-A/34 of IPC and under
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Section 3 and 4 of Dowry Prohibition Act was registered and the case

was pending before the Court of ACJM, Chhatarpur.

4. Before the trial Court, the respondent examined himself and his

father Pushpendra Nigam, Haricharan Prajapati his neighbor and

Rajendra Prasad Saxena. The appellant examined herself and his

brother Shiv Bhagwan and another person Gorelal Mishra.

5. After appreciation of evidence, the trial Court disbelieved the

allegations levelled by the respondent that the appellant was living in

adultery and she had illicit relationship with Mr. Ramesh Patel. The

trial Court held that the appellant without any sufficient cause left

the house of the respondent and she was living separately. She filed

criminal case against the respondent and his father hence, she

practiced cruelty and on this ground, the trial Court awarded decreee

of divorce.

6. Learned counsel appearing on behalf of the appellant has

submitted that the trial Court has committed an error of law in

awarding a decree of divorce. The trial Court failed to appreciate the

fact that the appellant filed an application for restitution of conjugal

rights which was decreed. The appellant forced to leave the

matrimonial home. There is no evidence to prove the cruelty against

the appellant hence the judgment and decree passed by the trial
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Court is contrary to law. In support of his contentions, learned

counsel relied on the following judgments.

(1) Prakash Rao vs. Jyoti MPLJ 2012 (2) (522)

(2) Kanta Raikwar Vs. Kailashchandra Verma, ILR 2009, MP-197.

(3) Vijay Prakash Chaturvedi vs. Preeti Chaturvedi, ILR 2009,
MP 3158.

(4) Vishvanath vs. Sarla Agrawal, MPLJ 2012 (4) 265.

(5) Vishnudutt Sharma vs. Manju Sharma, MPLJ 2010 (1), 18.

(6) Naveen Kohli vs. Neelu Kohli, MPLJ 2006 (3), 1.

7. Respondent in his evidence deposed the same facts as stated

by him in his evidence. Father of respondent deposed that the

appellant lodged a false complaint against him at Police Station. The

police found the complaint false. Appellant does not want to live with

his son and she was living separately for the last six to seven years.

Both children are living with him.

8. Another witness (PW-3) Haricharan Prajapati deposed that

children had told me that the appellant used to beat them. I tried to

pursue the appellant to live peacefully and live with her husband,

however, she did not listen to my advise. Another witness Rajendra

Prasad Saxena deposed that appellant left the house without any

reason and in the absence of respondent, one Mr. Ramesh Patel used

to visit the house at Jabalpur.

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9. Appellant in her evidence denied the fact that she left the

house of respondent on her own will. She pleaded that she was

forced to leave the house. The nature of the respondent-husband

was not proper. A demand of dowry was made from her and

respondent and his family members had beaten her hence, she

lodged the report. Same facts have been deposed by Shiv Bhagwan

and another witness Gorelal Mishra.

10. The apex Court in the case of Samar Ghosh vs. Jaya Ghosh

reported in (2007) 4 SCC 511 in regard to mental cruelty:-

40. The term “mental cruelty” has been defined in the Black’s

Law Dictionary [8th Edition, 2004] as under:

“Mental Cruelty – As a ground for divorce, one spouse’s course
of conduct (not involving actual violence) that creates such
anguish that it endangers the life, physical health, or mental
health of the other spouse.”

41. The concept of cruelty has been summarized 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
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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.
Malevolent intention is not essential to cruelty but it is an
important element where it exits.”

42. In 24 American Jurisprudence 2d, the term “mental cruelty” has been
defined as under:

“Mental Cruelty as a course of unprovoked conduct toward
one’s spouse which causes embarrassment, humiliation, and
anguish so as to render the spouse’s life miserable and
unendurable. The plaintiff must show a course of conduct on
the part of the defendant which so endangers the physical or
mental health of the plaintiff as to render continued
cohabitation unsafe or improper, although the plaintiff need
not establish actual instances of physical abuse.”

43. In the instant case, our main endeavour would be to
define broad parameters of the concept of ‘mental cruelty’.

Thereafter, we would strive to determine whether the
instances of mental cruelty enumerated in this case by the
appellant would cumulatively be adequate to grant a decree
of divorce on the ground of mental cruelty according to the
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settled legal position as crystallized by a number of cases of
this Court and other Courts.

44. This Court has had an occasion to examine in detail the
position of mental cruelty in N.G. Dastane v. S. Dastane
reported in (1975) 2 SCC 326 at page 337, para 30 observed
as under :-

“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.”

45. In the case of Sirajmohmedkhan Janmohamadkhan
v. Haizunnisa Yasinkhan Anr. reported in (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. With the advancement of
our social conceptions, this feature has obtained legislative
recognition, that a second marriage is a sufficient ground for
separate residence and maintenance. Moreover, to establish
legal cruelty, it is not necessary that physical violence should
be used. Continuous ill-treatment, cessation of marital
intercourse, studied neglect, indifference on the part of the
husband, and an assertion on the part of the husband that the
wife is unchaste are all factors which lead to mental or legal
cruelty.

46. In the case of Shobha Rani v. Madhukar Reddi
reported in (1988) 1 SCC 105, this Court had an occasion to
examine the concept of cruelty. The word ‘cruelty’ has not
been defined in the Hindu Marriage Act. It has been used in
Section 13(1)(i)(a) of the Act in the context of human
conduct or behaviour in relation to or in respect of
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matrimonial duties or 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, 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 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.

47. In Rajani v. Subramonian AIR 1990 Ker. 1 the Court aptly
observed that the concept of cruelty depends upon the type of
life the parties are accustomed to or their economic and social
conditions, their culture and human values to which they
attach importance, judged by standard of modern civilization
in the background of the cultural heritage and traditions of our
society.

48. Again, this Court had an occasion to examine in great
detail the concept of mental cruelty. In the case of V. Bhagat v.

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D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, the Court
observed, in para 16 at page 347, as under:

“16. 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.”

49. This Court aptly observed in Chetan Dass v. Kamla Devi
reported in (2001) 4 SCC 250, para 14 at pp.258-259, as under:

“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
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norms and changed social order. It is sought to be controlled
in the 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.”

50. In Savitri Pandey v. Prem Chandra Pandey reported in
(2002) 2 SCC 73, the Court stated as under: “Mental cruelty is
the conduct of other spouse which causes mental suffering or
fear to the matrimonial life of the other. “Cruelty”, therefore,
postulates a treatment of the petitioner with such cruelty as to
cause a reasonable apprehension in his or her mind that it
would be harmful or injurious for the petitioner to live with the
other party. Cruelty, however, has to be distinguished from the
ordinary wear and tear of family life. It cannot be decided on
the basis of the sensitivity of the petitioner and has to be
adjudged on the basis of the course of conduct which would, in
general, be dangerous for a spouse to live with the other.”

51. This Court in the case of Gananath Pattnaik v. State of
Orissa reported in (2002) 2 SCC 619 observed as under:

“The concept of cruelty and its effect varies from individual to
individual, also depending upon the social and economic status
to which such person belongs. “Cruelty” for the purposes of
constituting the offence under the aforesaid section need not be
physical. Even mental torture or abnormal behaviour may
amount to cruelty and harassment in a given case.”

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52. The mental cruelty has also been examined by this Court in
Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 at
pp.716-17 [para 21] which reads as under:

“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 reasonable apprehension in the mind of the latter that
it is not safe for him or her to continue the matrimonial
relationship with the other. Mental cruelty is a state of mind
and feeling with one of the spouses due to the behaviour or
behavioural pattern by the other. Unlike 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
misbehaviour in isolation and then pose the question
whether such behaviour is sufficient by itself to cause
mental cruelty. The approach should be to take the
cumulative effect of the facts and circumstances emerging
from the evidence on record and then draw a fair inference
whether the petitioner in the divorce petition has been
subjected to mental cruelty due to conduct of the other.”

53. In this case the Court also stated that so many years have
elapsed since the spouses parted company. In these circumstances
it can be reasonably inferred that the marriage between the parties
has broken down irretrievably.

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

“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
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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.

12. To constitute cruelty, the conduct complained of
should be “grave and weighty” so as to come to the
conclusion that the petitioner spouse cannot be
reasonably expected to live with the other spouse. It must
be something more serious than “ordinary wear and tear
of married life”. The conduct taking into consideration
the circumstances and background has to be examined to
reach the conclusion whether the conduct complained of
amounts to cruelty in the matrimonial law. Conduct has to
be considered, as noted above, in the background of
several factors such as social status of parties, their
education, physical and mental conditions, customs and
traditions. It is difficult to lay down a precise definition or
to give exhaustive description of the circumstances,
which would constitute cruelty. It must be of the type as
to satisfy the conscience of the Court that the relationship
between the parties had deteriorated to such extent due to
the conduct of the other spouse that it would be
impossible for them to live together without mental
agony, torture or distress, to entitle the complaining
spouse to secure divorce. Physical violence is not
absolutely essential to constitute cruelty and a consistent
course of conduct inflicting immeasurable mental agony
and torture may well constitute cruelty within the
meaning of Section 10 of the Act. Mental cruelty may
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consist of verbal abuses and insults by using filthy and
abusive language leading to constant disturbance of
mental peace of the other party.

13. The Court dealing with the petition for divorce on
the ground of cruelty has to bear in mind that the
problems before it are those of human beings and the
psychological changes in a spouse’s conduct have to be
borne in mind before disposing of the petition for
divorce. However, insignificant or trifling, such conduct
may cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain
pitch of severity. It is for the Court to weigh the gravity. It
has to be seen whether the conduct was such that no
reasonable person would tolerate it. It has to be
considered whether the complainant should be called
upon to endure as a part of normal human life. Every
matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations,
quarrels between spouses, which happen in day-to-day
married life, may also not amount to cruelty. Cruelty in
matrimonial life may be of unfounded variety, which can
be subtle or brutal. It may be words, gestures or by mere
silence, violent or non-violent.”

55. This Court in Vinita Saxena v. Pankaj Pandit reported in
(2006) 3 SCC 778 aptly observed as under:

“37. As to what constitutes the required mental cruelty for the
purposes of the said provision, will not depend upon the
numerical count of such incidents or only on the continuous
course of such conduct but really go by the intensity, gravity and
stigmatic impact of it when meted out even once and the
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deleterious effect of it on the mental attitude, necessary for
maintaining a conducive matrimonial home.

38. If the taunts, complaints and reproaches are of ordinary nature
only, the court perhaps need consider the further question as to
whether their continuance or persistence over a period of time
render, what normally would, otherwise, not be so serious an act
to be so injurious and painful as to make the spouse charged with
them genuinely and reasonably conclude that the maintenance of
matrimonial home is not possible any longer.”

56. In Shobha Rani’s case (supra) at pp.108-09, para 5, the Court
observed as under:

“5. Each case may be different. We deal with the conduct of
human beings who are no 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 (sic) realm of cruelty.”

57. In this case, the Court cautioned the lawyers and judges not
to import their own notions of life in dealing with matrimonial
problems. The judges should not evaluate the case from their own
standards. There may be a generation gap between the judges and
the parties. It is always prudent if the judges keep aside their
customs and manners in deciding matrimonial cases in particular.

58. In a recent decision of this Court in the case of Rishikesh
Sharma v. Saroj Sharma reported in 2006 (12) Scale 282, this
Court observed that the respondent wife was living separately
from the year 1981 and the marriage has broken down
irretrievably with no possibility of the parties living together
again. The Court further observed that it will not be possible for
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the parties to live together and therefore there was no purpose in
compelling both the parties to live together. Therefore the best
course was to dissolve the marriage by passing a decree of divorce
so that the parties who were litigating since 1981 and had lost
valuable part of life could live peacefully in remaining part of
their life. The Court further observed that her desire to live with
her husband at that stage and at that distance of time was not
genuine.

59. This Court observed that under such circumstances, the High
Court was not justified in refusing to exercise its jurisdiction in
favour of the appellant who sought divorce from the Court.

60. “Mental cruelty” is a problem of human behaviour. This
human problem unfortunately exists all over the world. Existence
of similar problem and its adjudication by different courts of other
countries would be of great relevance, therefore, we deem it
appropriate to examine similar cases decided by the Courts of
other jurisdictions. We must try to derive benefit of wisdom and
light received from any quarter.”

11. The apex Court has held that in considering the cases of

cruelty, entire matrimonial relationship has to be considered and if

the act of a party causes apprehension in the mind of another party

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

relationship with other, then decree of divorce has to be granted.

12. In the present case, the trial Curt has analysed the evidence on

record. It is a fact that appellant-wife has been living separately with

her husband for the last twelve years. The respondent-husband
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published a notice in the news paper and requested the appellant-

wife to live with him inspite that, she did not turn back. Two children

have been living with the respondent. The trial Court noted the fact

that children have no affection and intimacy with the appellant. The

witnesses also deposed that the behaviour of the appellant was not

proper with the children. She used to beat them. In our opinion,

after considering all the evidence, the trial Court has rightly held that

the appellant practised cruelty with the respondent and awarded a

decree of divorce.

13. In this view of the matter and taking into consideration the

principle of law laid down by the apex Court in the case of Samar

Ghosh vs. Jaya Ghosh [supra] in our opinion, the trial Court has

passed the proper judgment. Consequently, we do not find any merit

in this appeal. It is hereby dismissed. No order as to the costs.

(S.K. Gangele) (Anurag Shrivastava)
Judge Judge
Pb

Digitally signed by PRASHANT BAGJILEWALE
Date: 2017.11.22 16:43:26 +05’30’

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