Prabir Kumar Das vs Smt. Papiya Das 51 Mcc/50/2018 Dil … on 29 January, 2018

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

FAM No. 97 of 2014
(Arising out of judgment dated 5.9.2014 in Case No. 30A/2011 of the learned 1st
Additional Principal Judge, Family Court, Raipur)

Judgment Reserved On : 11/10/2017
Judgment Delivered On : 29/01/2018

 Prabir Kumar Das, son of late Shri Vinod Bihari Das, aged about
44 years, resident of Kailash Nagar, Plat No.26, Industrial Area,
Bhilai, District Durg (CG)

—- Appellant

Versus

 Smt. Papiya Das, wife of Shri Prabir Kumar Das, resident of Shri
Madhavchandra Das, Laxmi Nagar, Near Gas Godown, Raipur
(CG), Present Address presently working as Assistant Grade I,
Government Girls Higher Secondary School, Rajim, District
Raipur (CG)

—- Respondent

For Appellant : Shri Sunil Otwani, Advocate.
For Respondent : Shri Shivendu Pandya, Advocate.

Hon’ble Shri Justice Prashant Kumar Mishra
Hon’ble Shri Justice Arvind Singh Chandel

C A V JUDGMENT
The following judgment of the Court was passed by Prashant Kumar
Mishra, J.

1. The appellant-husband would call in question the legality and

validity of the impugned judgment passed by the Family Court
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dismissing his application for grant of decree of divorce on the

ground of cruelty under Section 13 (1)(i-a) of the Hindu Marriage

Act, 1955 (for short ‘the Act’).

2. Facts of the case, briefly stated, are that the parties were married on

21.1.2002. Prayer for divorce is made on the pleadings that the

parties resided together for a period till 5 months prior to the date

of presentation of divorce petition. They have 2 daughters out of

their wedlock. The respondent was misbehaving with the appellant

and his family members soon after the marriage and is not willing

to reside with him. Instead, she wishes to reside in her parental

house as she is working as Shiksha Karmi. Because of her

insistence they resided at Rajim for about 4 years but yet her cruel

behaviour continued. During his absence in the house, the

respondent tried to assault/slap his mother by using obscene

language. When she was confronted with this incident, she started

misbehaving, quarrelling and abusing the appellant. Due to this

behaviour, the appellant came back to his ancestral house with his

mother. The respondent threatened to implicate the appellant in a

false case. She categorically and stoutly stated that she cannot live

with the appellant and wants to be separate.

3. The respondent defended the suit on pleading that the appellant

was indifferent towards her and both the daughters. He did not
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bear the expenses at the time of delivery of the daughters. The

appellant and his mother used to treat her well at the time of drawal

of monthly salary by her. She was made to commute from Raipur

to Rajim for about 3 years after the marriage. The appellant

refused to join her company on the pretext that he has to take care

of his mother and sisters. In para-10 of the written statement, she

has stated that she is ready to reside with the appellant at the place

of her posting. Since the appellant works at Raipur, it is not

possible for him to commute from Bhilai to Rajim. In additional

pleading, she has stated that her mother-in-law is a greedy woman,

because of which the marital dispute has occurred between the

parties. Her mother-in-law is also responsible for ruining the life

of her 2 daughters (appellant’s sisters) by separating them from

their parents in law. When the respondent refused to maintain the

children of the appellant’s sister, the entire dispute began. She also

alleges that her mother-in-law threw slippers on her. It is also

stated that her elder daughter is the student of KPS School, Raipur.

4. The trial Court has refused to grant decree on the ground that the

appellant has failed to prove commission of marital cruelty by the

respondent. Therefore, the only question for determination in this

appeal is whether in the state of evidence on record, the respondent

has committed marital cruelty on the appellant.
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5. Before proceeding to consider and appreciate the evidence to

record finding on the issue of cruelty, one way or the other, it

would be apt to refer to the principles laid down by the Supreme

Court and the illustrative instances where inference of mental

cruelty can be drawn.

6. In Samar Ghosh Vs. Jaya Ghosh1, the Supreme Court has

indicated illustrative cases where inference of mental cruelty can

be drawn. They are reproduced as under:-

“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
1 (2007) 4 SCC 511
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caused by the conduct of other for a long time may
lead to mental cruelty.

(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one
spouse actually affecting physical and mental health
of the other spouse. The treatment complained of and
the resultant danger or apprehension must be very
grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal
standard of conjugal kindness causing injury to mental
health or deriving sadistic pleasure can also amount to
mental cruelty.

(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness
and dissatisfaction and emotional upset may not be a
ground for grant of divorce on the ground of mental
cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and
tear of the married life which happens in day-to-day
life would not be adequate for grant of divorce on the
ground of mental cruelty.

(x) The married life should be reviewed as a whole and a
few isolated instances over a period of years will not
amount to cruelty. The ill conduct must be persistent
for a fairly lengthy period, where the relationship has
deteriorated to an extent that because of the acts and
behaviour of a spouse, the wronged party finds it
extremely difficult to live with the other party any
longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of
sterilisation 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.

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(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.”

7. The Supreme Court in V. Bhagat v. D. Bhagat (Mrs.)2 held that

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
2 (1994) 1 SCC 337
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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.

8. In Naveen Kohli v. Neelu Kohli3, the Supreme Court held that the

word “cruelty” has to be understood in the ordinary sense of the

term in matrimonial affairs. If the intention to harm, harass or hurt

could be inferred by the nature of the conduct or brutal act

complained of, cruelty could be easily established. But the absence

of intention should not make any difference in the case. There may

be instances of cruelty by unintentional but inexcusable conduct of

any party. The cruel treatment may also result from the cultural

conflict between the parties. Mental cruelty can be caused by a

party when the other spouse levels an allegation that the petitioner

is a mental patient, or that he requires expert psychological

treatment to restore his mental health, that he is suffering from

paranoid disorder and mental hallucinations, and to crown it all, to

allege that he and all the members of his family are a bunch of

lunatics. The allegation that members of the petitioner’s family are
3 (2006) 4 SCC 558
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lunatics and that a streak of insanity runs through his entire family

is also an act of mental cruelty.

9. In Narendra Vs. K. Meena4 the Supreme Court has held that if the

wife forces and exerts pressure on the husband to live separate

from his old aged parents or from the joint family without any

reasonable excuse/ground, the same would amount to cruelty. The

Supreme Court would observe thus in paragraphs 12, 13 14 :-

12. The respondent wife wanted the appellant to get
separated from his family. The evidence shows that
the family was virtually maintained from the
income of the appellant husband. It is not a
common practice or desirable culture for a Hindu
son in India to get separated from the parents upon
getting married at the instance of the wife,
especially when the son is the only earning member
in the family. A son, brought up and given
education by his parents, has a moral and legal
obligation to take care and maintain the parents,
when they become old and when they have either
no income or have a meagre income. In India,
generally people do not subscribe to the western
thought, where, upon getting married or attaining
majority, the son gets separated from the family. In
normal circumstances, a wife is expected to be with
the family of the husband after the marriage. She
becomes integral to and forms part of the family of
the husband and normally without any justifiable
strong reason, she would never insist that her
husband should get separated from the family and
live only with her.

13. In the instant case, upon appreciation of the
evidence, the trial court came to the conclusion that
merely for monetary considerations, the respondent
wife wanted to get her husband separated from his
4 (2016) 9 SCC 455
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family. The averment of the respondent was to the
effect that the income of the appellant was also
spent for maintaining his family. The said
grievance of the respondent is absolutely
unjustified. A son maintaining his parents is
absolutely normal in Indian culture and ethos.
There is no other reason for which the respondent
wanted the appellant to be separated from the
family–the sole reason was to enjoy the income of
the appellant. Unfortunately, the High Court
considered this to be a justifiable reason.

14. In the opinion of the High Court, the wife had a
legitimate expectation to see that the income of her
husband is used for her and not for the family
members of the respondent husband. We do not see
any reason to justify the said view of the High
Court. As stated hereinabove, in a Hindu society, it
is a pious obligation of the son to maintain the
parents. If a wife makes an attempt to deviate from
the normal practice and normal custom of the
society, she must have some justifiable reason for
that and in this case, we do not find any justifiable
reason, except monetary consideration of the
respondent wife. In our opinion, normally, no
husband would tolerate this and no son would like
to be separated from his old parents and other
family members, who are also dependent upon his
income. The persistent effort of the respondent wife
to constrain the appellant to be separated from the
family would be tortuous for the husband and in
our opinion, the trial court was right when it came
to the conclusion that this constitutes an act of
“cruelty”.”

10. We shall now discuss the evidence to cull out whether the

respondent has committed cruelty on the appellant.

11. While the appellant has examined himself as PW-1 and his mother

Shefali Das as PW-2, the respondent has examined herself as DW-

1. The appellant has reiterated the plaint allegations and has
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denied that his mother was torturing the respondent and has also

made categorical statement that he cannot live separate from his

mother nor is it possible to send her to old aged home (o`)kJe), as

suggested by the respondent at one point of time. He has also

denied that he does not take care of his daughters. The appellant’s

mother Shefali Das was aged about 65 years at the time of

recording of her statement in November, 2013. Therefore, her

present age would be about 68 years. She has denied that she has

ill-treated the respondent at any point of time.

12. As against the evidence of the appellant and his mother, the

respondent has admitted that she is not living with her husband

since after July, 2010. She also admits that the appellant is the

only son of his mother and that because of death of his father at an

early age, his mother has brought him up. She admits that during

the counseling, she has stated that she cannot live with the

appellant’s mother i.e. her mother-in-law. Significantly she admits

that at one point of time she was transferred from Rajim to Bhilai

but she did not join. She would explain that if she would have

stayed at Bhilai, she would been saddled with the responsibility of

maintaining twins of her Nanad, who were residing with her

mother-in-law at Bhilai. In any case, it can be inferred that she

wanted to stay at Rajim and not at Bhilai where the appellant
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resides with his mother. She also admits that she refused to stay at

Bhilai because even if they would have resided in a separate house,

the appellant would bring his mother at subsequent point of time

because the same has happened at Rajim. She admits that she has

never lodged any report against the husband or his mother for

commission of cruelty. In her written argument duly signed by her

and not by the counsel, which is available in the paper book, she

has stated in paras-8 9 that since the appellant cannot live

separate from his mother, it is possible that he may live with his

mother and the respondent lives with the daughters but decree of

divorce may not be granted. Similar averment has been made by

her in the application under Section 9 of the Guardian and Wards

Act, which has been filed by the appellant along with an

application under Order 41 Rule 27 of the CPC. The said

application is considered and allowed because the document is not

in dispute and would assist this Court in adjudicating the present

dispute. A perusal of the reply filed by the respondent in the said

proceedings under the Guardian and Wards Act would clearly

indicate that as per the respondent herself the appellant’s mother is

suffering from cardiac problem and his sisters are also residing,

therefore, he is more attached with mother and sisters rather than

the respondent/wife.

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13. Complete analysis of the statement of the respondent would clearly

discern that the respondent is not willing to reside with the

appellant/husband. She has also suggested that the mother-in-law

should be sent to old aged home or that the parties may reside

separate without obtaining divorce. The respondent appears to be

indifferent and casual towards matrimonial obligations and institute

of marriage itself which is sacrosanct and is required to be

honoured by both the parties. Insisting upon the husband to live

separate from his mother, who is aged about 68 years and is

suffering from cardiac problem is by itself a cruelty, as held by the

Supreme Court in Narendra (Supra), therefore, the Appeal

deserves to be allowed.

14. In the result, the Appeal is allowed and the impugned judgment is

set aside. The marriage solemnized between the parties on

21.1.2002 is dissolved by a decree of divorce.

15. The parties shall bear their own cost.

16. A decree be drawn accordingly.

Sd/- Sd/-
Judge Judge
(Prashant Kumar Mishra) (Arvind Singh Chandel)
Barve
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HEADLINES

Wife forcing the husband to get separated from his family which

includes his old aged ailing parents. Commission of mental cruelty by

the wife upon husband under Section 13 (1)(i-a) of the Hindu Marriage

Act, 1955 proved. Divorce allowed.

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