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Satish Kumar vs Smt. Poonam on 20 December, 2017

Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL

First Appeal No. 47 of 2016

Satish Kumar ……. Appellant
Versus

Smt. Poonam ……. Respondent

Present: Mr. Arvind Vashisth, Senior Advocate assisted by Mr.
Ashish Sinha, Advocate for the appellant.
Mr. Siddhartha Bisht, Advocate for the respondent.

Coram:- Hon’ble Rajiv Sharma, J.

Hon’ble Sharad Kumar Sharma, J.

Reserved on 10.07.2017
Delivered on : 20.12.2017
Per – Hon’ble Sharad Kumar Sharma, J.

The appellant-husband questioning the
judgment dated 16.04.2016 passed by the learned
Additional Judge, Family Court, Roorkee, District Haridwar
in OS. No. 397 of 2014 “Satish Kumar Vs. Smt. Poonam”,
where the learned family Court Roorkee, had disposed of
the petition by rejecting the relief claimed by the appellant-
husband under Section 13(1)(i-a) of the Hindu Marriage
Act, seeking a relief for dissolution of marriage.

2. The relief as claimed by the appellant in the
instant appeal, while questioning the veracity of the
judgment dated 16.04.2016 is that apart from the judgment
being contrary to the pleadings and the material placed
before the Court below, the learned family Court has not
considered the evidence and the pleading in its correct
2

perspective and has recorded a perverse finding while
rejecting the plea taken under Section 13 of the Hindu
Marriage Act. Learned counsel for the appellant submits
that since the dissolution of marriage was simpliciter on
the ground of cruelty and he submits that the factum of
cruelty was established by him but the same was not
rightly appreciated in its true spirit by the learned family
Court, and also as in accordance with the material placed
by him.

3. For the purposes of establishment of cruelty, the
appellant tried to submit that as per the Rules framed
under the Hindu Marriage Act, it necessarily requires that
each and every incidence of the cruelty should be pleaded
by giving full details of the cruelty while filing of a petition
under Section 13 of the Hindu Marriage Act. Learned
counsel for the appellant submits that since each incident
of cruelty was pleaded by him and was proved during the
trial of the matter but despite of the same having been
settled has not been considered by the learned Court
below, thus Court below had failed to appreciate the case
placed by the appellant, thus the judgment impugned is
perverse.

4. He in the Memorandum of Appeal has pleaded
by taking ground that the finding of cruelty on issue Nos. 1
and 2 with regard to other relief which the appellant could
have been entitled has been wrongfully decided as the
3

vital issues of inflection of cruelty has not been considered
or dealt with after considering the evidence on record. His
contention is that the learned trial Court has not discussed
the material evidence led by the parties and has merely
quoted the pleadings and evidences of the parties without
appreciating it by application of mind in various paragraphs
of the judgment and has not weighed or appreciated the
evidences so as to arrive at a reasonable conclusion.

5. He submits that though he was married with the
respondent but right from the inception of the marriage, he
was not treated in the manner in which a husband would
expect to have and an extreme cruelty was exercised
against him and sometimes he was forced to act de horse
to his own will and even was forced to function and spend
his life under the threat of dire consequences, if the
husband failed to fulfill the illegitimate demands of the
respondent-wife. The appellant submitted that the
respondent-wife is more dominated by superstition and
supernatural powers, because she was a strong believer in
it, that in case if the supernatural powers or superstition
often results into spoiling the relationship and hence
according to her all precautions are required to be taken in
for a period of allegedly so-called by her as “black month”.

6. The husband further contended that under the
pretext of there being doctrine of unnatural super elements
which play dominant role during the period of black month,
4

she, under that pretext used to pressurize the husband to
take her to tantrik to adopt means of worship as per her
wishes and to satisfy appellant’s deceased mother’s soul.
As according to the husband she often contended that the
deceased mother is responsible for the ill fate of the
defendant as her soul is still wandering and has not yet
been laid in peace.

7. The husband’s case was that he belongs to an
extremely poor family belonging to a lower income strata
and there was always a dearth in routine life even to meet
the bare necessities of life. Even so much so, he submitted
that he was forced to quit his job and become a teacher so
as to make the matrimonial life more compatible and
peaceful. He in the grounds taken in the Memorandum of
Appeal further submitted that the allegations levelled by
the wife so as to bring it within the ambit of cruelty, from
the view point that the fetus was aborted, it was not
because of any untoward act of the appellant but rather
according to the appellant it was due to
inappropriate/underdeveloped growth of fetus.

8. The husband further submitted that further a
pressure was being exercised by the wife along with her
parents to visit tantrik who take care of appellant’s
deceased mother. But none of these aspects of cruelty as
pleaded by the husband was taken care of or considered
by the learned Court below while dismissing of his petition
5

for dissolution of marriage. The husband further submitted
that the wife has gone to such an extent that she also
pressurized that if the husband and his family members
refused to visit her tantrik living in Himachal Pradesh, she
would file frivolous petitions under the Dowry Prohibition
Act or other law for the purposes of adopting a
retrogressive attitude and mental cruelty.

9. There had been some biological complications
of child in the conception and after conceiving in the womb
too as there was a gland by way of growth and under the
pretext of getting it cured, the wife has gone to her parents
home at Delhi where his son Dhairya was born and her
atrocities has gone to such an extent that she has never
permit the husband to meet his son.

10. In the grounds further taken by the husband he
had submitted that the mother-in-law often used to
threaten of filing of frivolous concocted case against the
appellant in the Women Cell at Srinivaspuri, Delhi. On the
complaint being filed, the Women Cell conducted the
counseling on 05.01.2012 and despite of the instructions
given by the Counselor to both the husband and wife to
live their life peacefully and spend their matrimonial life in
harmony at Roorkee and to resolve their differences
therein. Accordingly, the Women Cell submitted a report
on 21.12.2012 but despite of the efforts made by the
Women Cell, nothing positive happened.

6

11. The appellant further submitted that once there
was a complete break down of relationship and it was
becoming practically impossible to live further together as
husband and wife and to discharge the harmonious
relationship of husband and wife, the appellant was
constrained to file a divorce proceeding in Saket Court,
Delhi, where both the parties were called for mediation on
21.01.2014. During the mediation the parties entered into
a compromise, but later on it resulted into failure due to
non satisfaction of the terms of the compromise Despite of
assurances given in the compromise before the Mediation
on 21.01.2014, the respondent-wife did not withdrew the
proceeding as instituted against the appellant under the
Dowry Prohibition Act. Despite the fact that the husband
agreed to pay the amount as directed by the Mediation
and he fulfilled all the conditions of the settlement dated
21.01.2014.

12. The husband further contended that he was
made to believe by the wife in the Mediation dated
21.01.2014 about the resolution of their disputes and as a
result of which he withdrew the divorce petition. It is the
case of the appellant that in pursuance to the settlement
dated 21.01.2014 in the Matrimonial Case he has taken a
loan of Rs. 2 lakh from Punjab National Bank and Rs. 1
lakh from HDFC Bank to provide all comfort and luxuries to
7

the respondent as argued to. But ultimately all efforts
made by him failed.

13. Left with no other recourse of redressal of his
apathy, the husband-appellant instituted the proceedings
under Section 13(1)(i-a) of the Hindu Marriage Act seeking
dissolution of marriage as held between them on
02.12.2009.

14. Brief facts leading to the filing of the petition was
that since both were the followers of the Hindu religion and
thus they got married as per the Hindu rites and rituals at
Delhi. The appellant’s case was that the mediator who got
the marriage settled had created an impression that the
family member of the wife were highly educated family and
are reputed in the society and the respondent-wife has
taken her education from IGNOU and since they being
qualified they are not interested in any dowry, but they
were only interested to have an educated girl and a girl
who is with full of ethics. It was the husband’s case that
even at the time of marriage, it was informed to the family
of the wife that they are a middle class family and the
husband is working in a company called as “Infotech
Enterprises” and from where he is getting only is salary of
Rs. 10,300/- per month.

15. The husband further submitted that it was also
informed that the father of the plaintiff has got a tailoring
8

shop from which family has a very low income. He
submitted that looking to the family, its strength and
coupled with the dependency of the younger brother. At
this stage of the settlement of the marriage when the
family members of the respondent visited the family of the
appellant they expressed their desire that the appellant’s
family should come to Delhi to solemnize marriage. But
since there was the financial crisis with the husband’s
family they decline to come to Delhi as they were not
economically sound.

16. According to the husband, the family members
of the respondent-wife even before marriage became so
adamant with regards to the choice of the place of
marriage that they had even gone to an extend that the
marriage should be held in Delhi or they will not extend
their consent for the marriage to be held at any other place
and they would rather prefer to decline to solemnize the
marriage.

17. The husband submitted in his pleadings that
whatsoever the information which was provided by the
mediator about the qualification of the family of the wife, all
proved to be false for the reason that they were highly
superstitious and on small issues they often use to have
doubt for various reasons. According to the husband
immediately after the marriage when the wife join back the
husband’s family immediately she started submitting that
9

she is not happy with the marriage and she further
submitted by humiliating the husband that she didn’t
wanted to get married. There had been various occasions
where both the parties were not in agreement on small
issues and sometimes the mother of the respondent-wife
also threatened that if the appellant’s family declines to
marry her daughter, she will ever remain as spinster. The
mother of the respondent-wife further threatened that if
due to non solemnization of marriage if anything untoward
happens to her daughter, she will take all the revenge from
the husband and his family members.

18. The husband submitted that the wife was so
much under the influence of her mother, that whatsoever
her mother used to advise her she used to blindly
accepted the same and as a result of which the mother of
the respondent-wife acted as a catalyst in increasing the
misunderstanding between the husband and wife. The
superstitious aptitude of the mother of the wife and the
wife was so grievous that he even suggested the wife to
not to live with the husband during the black month and
she has even left the husband and gone to Delhi to reside
with her parents, she alleged that if they live together
during black month it will have affect on the family. Under
these unavoidable reasons, he was forced to send her to
her parent’s home at Delhi.

10

19. After the expiry of the alleged black month the
husband made efforts to bring back his wife, so that she
may discharge her matrimonial obligations but the wife
expressed her inability to join back the husband and
suggested that he should rather come his in-law’s place
and to complete his studies from there. The reason
assigned by the wife behind it was that she was doing her
graduation from IGNOU. The husband’s case was that all
these stories which was developed by the wife was
absolutely false because the information which was
imparted to him at the time of marriage by the mediator
that she is pursuing her graduation from IGNOU was false
because according to the husband he has been informed
that the respondent is not even 10th pass.

20. This fact was extremely shocking to the husband
and he felt cheated and felt that the marriage was
consequence of a fraud, said to have been committed by
his in-laws. Husband submitted that under the aforesaid
backdrops of cruelty and the belief which the wife had over
supernatural powers, her visits to tantrik, he made various
efforts with the friends and other relatives to bring his wife
back from her parent’s home. On reaching Roorkee every
time she used to misbehave and leave the matrimonial
home along with her son, without any prior information, for
consent of the appellant/husband. The husband submitted
that he extremely felt humiliated when the respondent-wife
and her family members had lodged a false complaint on
11

28.05.2012 and the criminal proceedings were initiated
against the appellant, his father and the brother under the
Domestic Violence Act which is pending before the Delhi
Court.

21. The husband submitted that despite of the
aforesaid backdrop, where it is apparent that the marriage
has been completely broken down, wife was venturing to
reasons not to live with the husband. He made efforts to
bring his wife back but all his efforts to make her
understand failed. Husband submitted that on 06.12.2012,
the case which was filed by the wife i.e. the matrimonial
case before the learned family Court, Saket, Delhi and on
the decision of the Mediation it was compromised, the
respondent-wife had expressed her willingness to join her
husband after the completion of her class 10th standard
examination.

22. Husband further contended that when he heard
that she is not even class 10th pass, he advised her to
complete her studies. Wife informed this to her mother.
Her mother got angry and said – “don’t humiliating her,
irrespective of the fact that no matter how much she has
studied, threatened not to harass her for this reason. Since
you have married, she is now your responsibility, its’ your
duty to maintain her.”

12

23. She often used to pass sarcastic remark alleging
that husband has a service from where he earns much
less amount, and is related to an extremely poor family
often use to pressurize him to change his job and become
a teacher by which she contended that he would given
more time to her, for outing.

24. To ensure peace in family, husband’s case is
that even he joined in B.Ed after leaving the job and
deposited all the fees for B.Ed. It was further the case of
the husband that in 2010, few days before
Rakshabandhan festival, a girl child was born in the family
of the cousin sister of wife. Husband took respondent/wife
and left her to her parent’s house. On return, he would
learn about the ploy of the wife when he found that locker
was empty and there was no ornaments left in it, on query
at later stage, she informed on phone that she has carried
all ornaments to Delhi.

25. Husband further submitted before the Court
below that on return from Delhi, respondent/wife informed
the appellant/husband that there is a good news, on which
as per husband he told her that he will take her to Govt.
Hospital next morning for the check-up, according to him,
after conducting of ultra sound on her, the doctors
informed that the child is not having any growth in the
womb, husband submitted that this information was given
to the mother of the respondent/wife. Also informed that
13

doctor had advised for abortion. He submitted that he had
to give his B.Ed paper at Almora, he left for that place, and
since in the meantime the mother of the respondent/wife
and her uncle had arrived both of them with the help of
neighbours took respondent to the hospital and abortion
was done.

26. Under the pretext of rest mother of respondent
took her to Delhi and used filthy language to the husband
on telephone from there, alleging had he agreed for taking
her to her tantrik this would not have happened, warned
that she will not send her back till the departed soul of
mother of husband, which is yet to reach to salvation and
peace is not cured by her tantrik. Husband alleges that he
tried to make understand his wife that her mother is
wrongly interfering in his family matters which is the
reason for aggravated misunderstanding.

27. Wife got pregnant for second time in 2011, some
complications developed, later on diagnosis it revealed
that she is having “Rasoli”, (a disease prevalent in
females), yet a son Dhairya was born on 10.10.2011. But
she never permitted the husband or his family members to
meet the newly born son. As per husband not only this,
she lodged a complaint against the husband and his family
members before Crime Against Women Cell,
Shrinivaspuri, New Delhi, sorted out and sent to Roorkee
with son of the appellant on 20.02.2012. They live for
14

about few months together. Later on 28.05.2012, she
again lodged a complaint against the appellant/husband,
his father and brother, which is pending before Delhi
Court. Faced with these precarious situation, husband filed
under Section 13 for dissolution of marriage before the
learned Family Court, Saket, New Delhi on 06.12.2012.

28. The husband’s case was further that in the
settlement which was held before Mediation, an
agreement was executed in which she expressed that she
would go back on completing her class 10th exam in April
2014 and withdraw the Domestic Violence proceedings
after receiving a sum of Rs. 20,000/- no such withdrawal of
the Domestic Violence case was done by the wife as
assured to be withdrawn on 28.01.2014 in the settlement
of 21.01.2014 and is still pending before the Delhi Court
which itself is a constant harassment to him and his family
members.

29. Based on the aforesaid settlement it was also
assured by the husband that he will withdraw his family
Court proceedings filed by him before the Saket Court,
Delhi the appellant alleges that he has withdrawn under
Section 13. One of the conditions of the settlement of
21.01.2014 was that it would be open for the husband to
visit his in-laws at Delhi whenever he feels and both the
families respect to one another and the elderly persons of
the family.

15

30. The husband submitted that in terms of the
settlement dated 28.01.2014, he has remitted a sum of Rs.
20,000/- before the Saket Court, New Delhi on 28.01.2014
and has withdrawn his divorce petition filed by him before
the Saket Court, Delhi.

31. He further submitted that based on the
compromise he has provided all the amenities to the wife
after taking loan from the banks. On completion of paper of
the wife, it is the case of the husband that on 22.04.2014,
he brought his wife and son and they lived together and
the husband and the appellant as a husband discharged
all his responsibilities attached to the matrimonial life. The
parents of the wife after revival of the relationship on the
basis of compromise dated 21.01.2014 when they stood
satisfied and they returned back to their home at Delhi.

32. There are various stands taken by the husband
that every month the wife goes to her parent’s home at
Delhi to meet them and this action of the wife was never
objected by the husband and he never imposed any
restrictions on her movement as per her wishes. The
husband’s case was that whenever he tried to express his
affection and concerns towards the wife and showed his
expression to accompany him to any other place, she used
to refuse. He further submitted that the mother of the wife
in August 2014 had given a phone call after conspiring
16

with respondent and informing that dated fixed is not
30.09.2014 but rather 30.08.2014 is the date fixed
whereas actually the date fixed in the Matrimonial Case
was 30.09.2014. Under the belief on the information by the
mother-in-law to be 30.08.2014, the husband’s case is that
he went to Delhi on the date fixed and found date fixed
was 30.09.2014 and not 30.08.2014 as informed by the
mother-in-law.

33. Under the aforesaid information, it is the case of
the husband that he visited the Delhi Court along with the
wife and son to attend proceedings as informed to be
30.08.2014 and there he could learn that actually the case
was fixed for 30.09.2014. It has also come to the
knowledge of the husband later that when she had gone to
the Delhi to attend the Court proceedings allegedly
informed for 30.08.2014, she has taken all the valuables
from the matrimonial home and when on being asked to
join back the matrimonial home at Roorkee, she took an
excuse that since there was a Ganpati Puja at her parent’s
home and deity Ganpati is to be installed she expressed
her unwillingness to join the matrimonial home at Roorkee.

34. The husband even while requesting her
informed that he has got the returned reservation and on
the husband having been made consisted request to the
wife that they have to get their children admitted in the play
school, but none of the hue and cry of the husband was
17

heard and by forced the mother of the wife had taken the
respondent and her son to her residence at Delhi from the
Court premises itself. The husband submitted that all the
settlements which were arrived at before the Saket Court,
Delhi was not honoured by the respondent wife nor she
has withdrawn her case and thus she has committed a
contempt of Court and liable to be punished.

35. It has also come on record that when the plaintiff
has given a phone calls to the respondent’s home, the
uncle of the defendant has threatened the plaintiff-
husband that if he ever gives a call he would be dealt with
severely against which the husband has lodged a
complaint and has also recorded the voice of the uncle on
the telephone. And it was due to this threat the family is
always living under a threat perception given by the
members of the wife’s family.

36. The husband submitted that he made all efforts
to make the wife understand to join back the matrimonial
home, the wife given all lame excuse that she has no
enough money to travel, the husband supplied the money
for travel to the wife by depositing the amount in her
account but despite of it according to the husband she has
not returned to the matrimonial home. On the other hand,
he being a Hindu husband, and strong believer of the
social customs and restrictions, continued to discharge his
matrimonial obligations.

18

37. Under these backdrops husband has submitted
that the wife ever since 30.08.2014 is residing separately
and the situation inter se between them has reached to
such an stage that it was practically not safe for him to live
together as husband with her because there was a
possibility of anything untoward can happen because of
the threat perception and the misunderstandings which
has reached beyond control by now. Hence husband filed
a petition under Section 13 of the Hindu Marriage Act.

38. The wife filed her written statement as paper No.
12-A. She denied the allegations raised in the plaint except
the fact that she was married and she submitted that the
husband resided with the wife for considerable time for last
4 years in Delhi. She submitted that because of the fact
that they had resided together lastly in Delhi the Roorkee
Family Court has no jurisdiction to entertain the suit.

39. The defendant’s case was also that by filing of
the proceedings in the Roorkee Court, since she being
placed in Delhi she will not be able to avail all the facilities
because it would be impossible for her to travel from Delhi
to Roorkee on each date along with her child who was 3
years of age only, which would deprive her from actively
participating in the proceedings and putting her defense.

19

40. She submitted in her written statement that after
the marriage, immediately thereafter the attitude of the
appellant-husband was atrocious towards the respondent-
wife, due to which she was forced to lodge a proceedings
under Domestic Violence Act in Delhi Court in 2014.
Though it was compromised and they both have started
living together but she submitted that since there was no
change in the attitude and behaviour of the husband hence
she decided to leave the husband and live separately. She
denied the fact that after the wife being left for Delhi the
husband has never came back to Delhi to take her back
after August 2014, and thus she submitted that the plaint is
based on false assertion and deserves to be dismissed
because rather it’s a deliberate desertion at the behest of
the husband himself and having not made any efforts to
bring back wife after August 2014.

41. While denying the allegation of para 13 and 14
of the plaint, the wife submitted that the allegations of
threat as leveled by the husband against the wife are
absolutely false as she has never given any threat and
submitted that since he himself is engaged in service and
for getting a better job perspective he wants to pursue his
studies further it was his choice; and not because of any
pressure exerted by the wife. She submitted that the
husband used to raise demand from in-laws. While
denying para 17 of the plaint with regards to the facts of
desertion the wife in her written statement submitted that
20

in the year of 2010 on the occasion of Raksha Bandhan,
the husband has left the wife to her parent’s home and
thereafter the husband has never visited the in-laws to
bring her back. In response to the pleading of para 19, 20
and 21 of the plaint, the respondent-wife while partly
admitting the contents submitted that she had aborted at
Ramnagar, and the husband has not discharged any of the
responsibilities when the wife was in her family way. And it
was rather after the persuasion of the father of the
appellant and with his consent that the defendant was sent
to Delhi for treatment.

42. The respondent submitted that she on number
of occasions tried to contact the plaintiff-husband but
neither plaintiff-husband nor his father had received the
call deliberately. She submitted that she always lived with
the husband peacefully and discharged her all matrimonial
obligations.

43. While denying paras 24 and 26 of the plaint, she
submitted that apart from the fact that all reasons of
cruelty, which have been pleaded by the husband are
concocted but still she unequivocally wants to live with the
husband and she wants to discharge her matrimonial
obligations. She submitted that all the misunderstandings
have aggravated because the atrocious attitude of the
plaintiff-husband, which she endured for considerable long
time. She submitted that the pleadings raised by the
21

husband that all the expenditure of delivery was met by
him was absolutely false.

44. On an overall scrutiny of the defense taken by
the wife in her written statement, it is rather allegation
against the husband/appellant aptitude towards her from
time to time, she in a nutshell wanted to submit that the
husband was an escapist who wanted to shy away from
his domestic responsibilities, apart from the fact all bunch
of allegation developed by husband for the purposes of
filing petition for dissolution of marriage are based on facts
pleaded but not proved only any cogent and independent
evidence.

45. Based upon the aforesaid, learned Trial Court
framed two major issues :

(i) As to whether the defendant-wife has
commissioned any cruelty against the plaintiff-
husband and its effect;

(ii) Other relief the plaintiff is entitled to receive.

46. Thus husband appeared in the witness box and
recorded his statement as PW-1 and produced Mr.
Heeralal as PW-2 filed some documents with plaint. On
the other hand, the respondent-wife appeared in the
witness box and recorded her statement as DW-1. Both
the parties to the dispute had filed their respective affidavit
in examination in chief.

22

47. On overall pleadings as raised, it seems that
primarily dispute between the parties was in relation to the
cruelty and partially also with some element of desertion
as pleaded by wife after August 2014. To bring the case
within the ambit of cruelty, the husband submitted that
when the marriage was settled, the mediator, Raj Kumar
alias Raju, who was the cousin brother (Mausi’s son) of
the husband had wrongfully informed that the defendant-
respondent is a graduate from IGNOU whereas as a
matter of fact according to husband it later revealed that
she was not a graduate. Secondly, the plaintiff submitted
that although the mediator has informed the in-laws about
the income of the husband but still they pressed upon him
to get the marriage functions performed in Delhi, to which
the husband’s family expressed their inability due to
shortage of funds and their financial condition which was
not very sound.

48. Plaintiff argued that it was a cruelty exerted by
the entire family members because the mother of the
defendant-respondent rather never wanted the marriage to
be settled with the appellant but on threat/pressure being
given by the respondent to her mother that she wants to
marry with the appellant only and no one else, and if the
said marriage is not settled, she will never marry with any
other male, due to which the mother of the respondent got
the marriage settled between them. Thirdly, the husband’s
case to bring the divorce petition within the ambit of
23

Section 13 was that the belief of the wife in supernatural
powers and the belief in dauntless tantrik, was also
creating a cruelty on the husband because she has taken
the said ground as to be the ground for leaving away from
her husband as husband used to obstruct her from taking
to tantrik made of prayer, as it was spoiling family
situation.

49. The husband’s case was that due to massive
concealment made by wife and her family members, for
the purposes of marriage and to its subsequent revelations
has created and aggravated the misunderstanding and it
was impossible for the husband to live anymore together
as husband and wife. It was also specific case of the
husband that in the year 2010, on the occasion of Raksha
Bandhan, few days prior to it the cousin sister of the
respondent-wife had given birth to a daughter and under
the pretext to see her she has gone to Delhi and asked the
husband to take her back after a week. But after going
there she expressed her unwillingness to join back and
wanted to continue to reside with her parent’s home.

50. According to the husband, the attitude of the
respondent-wife was unpredictable. She was neither
conclusive and rather she used to act on her whims and
fancies. She after her return, about couple of days before
the festival of Karva Chauth she came to force upon the
husband to visit to Tantrik Baba but when he refused she
24

became too angry and threatened the husband. According
to the husband, after first abortion, when she conceived
again in January 2011 and the in-laws of the appellant-
husband took her to Delhi, where it was found that there
was a growth of gland in her womb. After some treatments
though she was able to deliver the child on 10.10.2011, a
male child named ‘Dhairya’ but being the father of the
child, he was not provided the status of being a father and
all efforts were made by the respondent-wife to increase
the distance between the child and the appellant-father as
according to husband, though not proved by him he was
never permitted to meet his son.

51. The husband submitted that when he returned
from his official work in the afternoon he found that the
wife along with his son was missing. He rang the mother of
the wife and she informed that she has left his place and
gone to Delhi. On being objected by the husband quite
obviously he was misbehaved and the family members of
the wife used abusive languages against him.

52. According to the husband he has lodged the
police complaints. The husband submitted that it was an
extreme cruelty and emotional blackmail when the son
was born on 10.10.2011 no information of any nature
whatsoever about the birth of the child was given to the
father and he could for the first time learnt about the birth
of the child from an information which was imparted to him
25

from the cousin of the husband. Further he submitted that
the pleading of the wife to the effect that he was informed
by Poonam (respondent-wife) about the birth of the child
on 10.10.2011 from the Hospital itself on telephone and
the pleadings to the effect that he was informed about the
date of christening of the son is absolutely false because
no such information or telephone call was ever received by
him and this would amount to be a cruelty because at least
a father is expected to be informed about the birth of a son
and about the function of his sons christening.

53. In any given case when husband pleads that he
expressed his desire to meet the child by visiting Delhi as
a plea to prove cruelty and he was threatened, that he
should not endeavour to meet him at Delhi and he
submitted that it is absolutely a false story which has been
developed by him rather there is no independent evidence
that he had ever made any efforts to meet his son. Rather
to the contrary after receiving the information when he
alleges to have expressed his willingness he was
threatened thus in itself will not amount to be a mental
cruelty, entitling the husband for dissolution of marriage
because if there was threat, the appellant ought to have a
recourse of taking appropriate legal remedy available to
him under law. There is nothing on record to show that he
had ever taken any such action, hence the theory of threat
never stood proved.

26

54. He submitted rather admitted that it is true that
he could not meet the expenses of the birth of the child
because the birth has taken place at Delhi on 10.10.2011
yet again the pleading lack any effort which appellant
could be said to have made to perform his responsibilities
as a father. But he submitted that when the counseling
was done at Delhi on 21.01.2014, she has gone back to
Roorkee and started residing in her matrimonial home. But
all of a sudden she left the matrimonial home and went to
Delhi and this act of leaving the matrimonial home would
absolute be a cruelty and would amount to be a withdrawal
from the society of the husband without his consent. This
story rationally could not be believed with, in this advance
era of awareness, it is prime responsibility of the husband
to have made a sustainable effort to know about the
whereabouts of his wife when she was found missing from
home. Except pleading that wife left the home, there is no
substantiate plea of steps taken by the appellant/husband
to know about her whereabouts. Thus this story cannot be
believed with for the purposes of satisfying the ingredients
required for dissolution of marriage by invoking under
Section 13 of the Hindu Marriage Act.

55. The husband submitted that in the proceedings
under the Protection of Women from Domestic Violence
Act, 2005, he had moved an application to permit him to
meet his son which was deprived by the wife wherein she
has posed number of conditions before permission could
27

be granted to the husband. Learned trial Court, while
considering the statements of PW-2, Hiralal who is the
father of the plaintiff, who was since an interested witness
was bound to support the version of the husband and
submitted that looking to the economical condition of the
PW-2, it is practically difficult for them to accept the
conditions as forced upon by the wife’s family pertaining to
the controversy for getting the marriage performed from
Delhi and with regards to the exchange of money which
took place during the course of the marriage. All seems to
be hearsay and concocted story for the purposes of
decree of divorce.

56. PW-2 Hiralal further submitted that whatsoever
money has exchanged hand was an amount towards the
‘Shagun’ and not a dowry hence this will not be an
atrocious act on the part of the in-laws of the respondent-
wife. On scrutiny of statement of PW-2 about exchange of
gift by terming it as ‘shagun’ was a clever plea as revealed
from scrutiny of statement, by change of its nomenclature.
The learned trial Court while considering the cross
examination of Poonam (respondent-wife) that the
mediator of the marriage namely Raju has given all the
true information about the family conditions of the
defendant-wife to the family members of the plaintiff-
husband because all the terms and conditions of the
marriage were settled in the home of Satish (appellant-
husband) and it was witnessed by all. Since Raju was not
28

produced in the witness box, the alleged mediator, who
was the cousin of appellant/husband an adverse inference
would be drawn against him that he had the knowledge of
all the facts of respondent/wife’s family and her
background. It was also settled as number of persons who
would accompany the marriage procession. Respondent-
wife raised and allegation that after the settlement of the
marriage and when the cards had already been
distributed, the husband and his family members started
raising demands for dowry.

57. On perusal of the oral scrutiny and pleadings
and cross examination, what is projected is that the
disputes between the parties to the appeal was nothing but
was a dispute of misunderstanding and the nature of the
cruelty which the husband was pleading for the purposes
of making it as a ground for divorce undoubtedly was
required to be proved by him by leading evidence. On
overall scrutiny of the statements and the affidavit in
examination in chief as filed by the husband, it was the
only document on which he has placed reliance. Apart
from it, there is no other documentary evidence placed on
record by him.

58. On perusal of the affidavit in examination in chief
and the statement recorded by him before the learned
Court below cannot be treated as to be a strict proof of any
cruelty, said to have been committed by the wife. What is
29

relevant further is that merely because a wife for the
purposes of pursuing her studies or for undergoing the
delivery visits her parent’s place will not amount to be a
cruelty because it is quite a natural phenomena when the
wife normally goes to her parent’s home to have more care
and attention when she is in a family way. Being a believer
of certain superstitions, for example; believing the
separation during the black month itself is not a cruelty
because the perception of cruelty merely because a
statement of the wife that – it is a black month and they
should live separately, will not amount to be a cruelty.
Apart from it to bring the cruelty under the Hindu Marriage
Act, it is absolutely a vague term and it is not specifically
defined under the Act. It is only the aid of the judgment
which has come forward as to which circumstances could
be attributed to be a cruelty which would depend upon the
circumstances from case to case. The factum of cruelty
has to be established, which, in the instant case, the
husband has failed to discharge and thus the cruelty was
not established.

59. In a judgment rendered by the coordinate Bench
of this Court in Mohan Singh Mawri Vs. Haripriya, 2017
(1) U.D., 34 has held as under:

“13. Their Lordships of the Hon’ble Supreme
Court in the case of Shobha Rani v. Madhukar
Reddi reported in AIR 1988 SC 121 have
explained the term “cruelty” as under:

30

“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 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 E.R. 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.”

14. Their Lordships of the Hon’ble Supreme Court
in Samar Ghosh vs. Jaya Ghosh reported in
(2007) 4 SCC 511, have enumerated some
instances of human behaviour, which may be
important in dealing with the cases of mental
cruelty, as under:

“98. On proper analysis and scrutiny of the judgments of this
Court and other Courts, we have come to the definite
conclusion that there cannot be any comprehensive definition
of the concept of ‘mental cruelty’ within which all kinds of
cases of mental cruelty can be covered. No court in our
considered view should even attempt to give a comprehensive
definition of mental cruelty.

31

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 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.

32

(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.”

15. Their Lordships of the Hon’ble Supreme Court
in Ashok Kumar Jain vs. Sumati Jain, AIR
2013 SC 2916 have held that it is always open to
the Court to examine whether the person seeking
divorce “is not in any way taking advantage of his
or her own wrong or disability for the purpose of
such relief.” On such examination if it is so found
that the person is taking advantage of his or her
wrong or disability it is open to the Court to
refuse to grant relief.”

60. Thus, as a matter of fact, what would be the level
of cruelty which would go to an extent that it would be
falling within the parameters of cruelty as laid down by the
Hon’ble Apex Court in the case of K. Srinivas Vs. K.
Sunita reported in (2014) 16 SCC 34. Para 5 of the
judgment is quoted hereunder :-

“5 The Respondent-Wife has admitted in her cross-examination
that she did not mention all the incidents on which her Complaint is
predicated, in her statement under Section 161 of the Cr.P.C. It is not
her case that she had actually narrated all these facts to the
Investigating Officer, but that he had neglected to mention them. This, it
seems to us, is clearly indicative of the fact that the criminal complaint
was a contrived afterthought. We affirm the view of the High Court that
33

the criminal complaint was “ill advised”. Adding thereto is the factor that
the High Court had been informed of the acquittal of the Appellant-
Husband and members of his family. In these circumstances, the High
Court ought to have concluded that the Respondent-Wife knowingly and
intentionally filed a false complaint, calculated to embarrass and
incarcerate the Appellant and seven members of his family and that
such conduct unquestionably constitutes cruelty as postulated in Section
13(1)(i-a) of the Hindu Marriage Act.”

61. What is relevant is that an effect of cruelty which
undoubtedly is required to be proved has to be a ground
pleaded and has to be a ground which has to be proved by
either of the party, seeking dissolution of marriage.
Amongst Hindu since marriage is a sacrament, slight
deviations in ideologies and thoughts should not be taken
as base for severing the pious relationship of well
recognized system of sat padi, more particularly, when it is
not proved as per law. In the instant case, there is not
even a single evidence, which has been brought on record
or established by the husband in consonance to the
pleadings to attract the concept of cruelty and thus the
petition has rightly been dismissed by a cogent and
justified reasons by the learned Court below. Thus the
Appeal fails and is hereby dismissed.

62. No order as to costs.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
20.12.2017
Mahinder/

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