IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO No. 340 of 2010.

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Judgment reserved on: 25.4.2018
Date of decision: 07.05.2018

Tarun Mahant …… Appellant/petitioner

Versus

Surabhi Mahant

Coram
r to
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

….. Respondent

Whether approved for reporting? No 1

For the appellant : Mr. Ajay Kumar, Senior Advocate
with Mr. Gautam Sood, Advocate.

For the respondent : Kr. Virender Singh, Advocate.

Tarlok Singh Chauhan, Judge

This appeal is filed by the husband, who has been denied a

decree of divorce by the learned Court below.

2. The appellant/petitioner filed a petition for dissolution of the

marriage under Section 13 (1) (a) of the Hindu Marriage Act, (for short

‘Act’) against the respondent on the allegation that the marriage was

solemnized on 19.1.2001 and out of the said wedlock, one daughter was

born. It was averred by the petitioner that after the marriage, the conduct

of the respondent was cruel towards him and his family members and

she otherwise had deserted him without any reasonable cause and had

left the matrimonial home. The petitioner elaborated the act of cruelty by

stating that the respondent used to threaten him and his family members

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

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that she would implicate them in a criminal case and once she had even

consumed poisonous substance. All these acts, according to the

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petitioner had raised a reasonable apprehension in the mind of the

petitioner that it would be injurious and harmful to live with the

respondent. Not only this, the respondent had lodged a false complaint

against the petitioner and his parents under Section 498-A IPC, wherein

the petitioner was taken into custody and remained as such for more

than a fortnight. Lastly, it was averred that the respondent without any

reasonable and plausible cause had deserted the petitioner on 3.2.2003.

3. On notice, the respondent contested the petition by filing

reply wherein the factual position regarding marriage, its consummation

and birth of daughter were not disputed. However, the other facts as

mentioned in the petition were emphatically denied and it was averred

that it was the petitioner as well as his other family members, who had

compelled and forced her to consume poisonous substance. However,

she was saved by the doctor at Zonal Hospital, Kullu. She further

averred that no complaint was lodged by her against the family members

with the pious hope that good sense will be prevailed upon them and

they may change their behaviour towards the respondent. She admitted

that she lodged FIR against the petitioner and her parents, but the same

was lodged on the basis of facts. The respondent asserted that she had

been forced to leave the house of the petitioner on 9.3.2003 when the

petitioner gave her severe beatings.

4. The petitioner filed the rejoinder wherein the contents of the

reply were denied and those of the petition were reiterated.

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5. On 4.12.2006, the learned trial Court framed the following

issues:

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1. Whether the respondent has withdrawn herself from
the company of the petitioner without any justifiable
cause and thereby deserted him as well as treated

with mental cruelty, if so, to what effect? OPP

2. Relief.

6. After recording the evidence and evaluating the same, the

learned trial Court dismissed the petition and aggrieved thereby, the

appellant has filed the instant appeal on the ground that the findings with

regard to cruelty and desertion as recorded by the learned Court below

are absolutely perverse and therefore, deserves to be set-aside.

I have heard learned counsel for the parties and gone

through the records of the case carefully.

7. It is vehemently argued by Mr. Ajay Kumar, learned Senior

Counsel for the appellant/petitioner that there can be no better proof of

cruelty when it has come on record that the respondent at one stage had

consumed poisonous substance and had lodged a false complaint

against the petitioner and his parents under Section 498-A IPC wherein

the petitioner was initially taken into custody, but lateron acquitted of the

offence. In support of his submission, he would place strong reliance on

the following judgments:

(i) Dr. N.G. Dastane vs. Mrs. S. Dastane AIR 1975 SC
1534 ;

(ii) Shobha Rani vs. Madhukar Reddi AIR 1988 SC
121;

(iii) Surjeet Singh vs. Smt. Paramjit Kaur AIR 2009
Uttarakhand 10 ;

(iv) Major Singh vs. Chhinderpal Kaur All India Hindu
Law Reporter 2011 (1), 40.

(v) K. Srinivas vs. K. Sunita (2014) 16 SCC 34.

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8. On the other hand, Kr. Virender Singh, learned counsel for

the respondent would contend that the mere filing of the complaints at

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the instance of the respondent does not amount to cruelty if there are

justifiable reasons to file the complaints and merely because no action

has been taken on the complaint or after trial the accused is acquitted,

may not be a ground to treat such accusations of the wife as cruelty

within the meaning of the Act and would place strong reliance upon the

judgment of the Hon’ble Supreme Court in Raj Talreja vs. Kavita

Talreja AIR 2017 SC 2138.

9. The first and foremost question that arises for consideration

is whether lodging of a criminal case by the wife against the husband

and his family members in which they have been acquitted would

amount to cruelty.

10. Cruelty has not been defined under the Act and actually

such a definition is not possible. Cruelty in fact can never be defined with

exactitude and would depend upon the facts and circumstances of each

case. In matrimonial relationship, cruelty would obviously mean absence

of mutual respect and understanding between the spouses which

embitters the relationship and often leads to various outbursts of

behaviour which can be termed as cruelty. Therefore, cruelty in

matrimonial behaviour defies any definition and its categories can never

be closed. This is the entirety of the facts and circumstances of a given

case that would determine whether there has been cruelty or not.

11. Bearing in mind the aforesaid, there can be no quarrel with

what has been decided in the cases relied upon by either side, but then it

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has to be remembered that the said decisions have been rendered in

the given facts and circumstances of those cases.

.

12. A Constitution Bench of the Hon’ble Supreme Court in

Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated

some instances where from the inference of mental cruelty can be drawn

and such instances 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 caused
by the conduct of other for a long time may lead to mental
cruelty.

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

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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 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

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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.

13. In a fairly recent judgment rendered by the Hon’ble

Supreme Court in Raj Talreja’s case (Supra), the Hon’ble Supreme

Court observed that mere filing of complaints is not cruelty, if there are

justifiable reasons to file the complaints. It has further held that merely

because no action has been taken on the complaint or after trial the

accused is acquitted may not be a ground to treat such accusations of

the wife as cruelty within the meaning of the Act.

14. Adverting to the facts of the case, it is not in dispute that the

respondent had lodged an FIR under Section 498-A of IPC. It is also not

in dispute that the case registered on the basis of the FIR ended in

acquittal of the appellant and his family members, but such acquittal was

not an honourable acquittal but was on account of failure of the

prosecution to have proved its case beyond reasonable doubt. That

being the fact situation in the present case, no benefit whatsoever can

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be derived by the appellant on account of the so called acquittal in the

aforesaid case.

.

15. It is then vehemently argued by Mr. Ajay Kumar, learned

Senior Counsel for the appellant that the respondent has suicidal

tendencies and at one stage even consumed poisonous substance

which created a reasonable apprehension in the mind of the appellant

that it would be injurious and harmful to live with the respondent. To my

mind, even this submission is without any substance. If the appellant

and his family members have created circumstances which may difficult

or rather impossible for the respondent to reside with the appellant, then

in such circumstances, permitting the appellant to take benefit of the fact

that the respondent had at one stage consumed poisonous substance

would virtually amount to permitting the appellant to take an advantage

of his own wrong.

16. The respondent while appearing as RW-1 has clearly

disclosed the circumstances created by the appellant and his family

members constraining her to take extreme step. It has specifically come

in the statement of the respondent that the appellant had in fact been an

accused of having committed an offence under Section 376 IPC and

also remained in custody.

17. Apart from the above, now in case the pleadings of the

appellant with respect to cruelty are perused, then it would be evidently

clear that the appellant does not contend any specific act of cruelty and

only general allegations have been levelled. Indubitably, the allegations

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of cruelty are only contended in paras 4-5 of the petition which read

thus:

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“4. That after the marriage between the parties, the
conduct of the respondent amounted to mental cruelty on

the petitioner and she treated the petitioner with cruelty,
deserted the petitioner without reasonable cause and
without the consent and without any care taking to petitioner

left matrimonial home and also is guilty of willful neglect of
petitioner. She was insisting upon the petitioner to take
separate residence, she has been adopting intolerable

attitude. She has been insulting the elders and everyone in

the family.

5. That she has been threatening to take drastic step

towards herself and implicate the family members of the
petitioner also. Once she had consumed poisonous

substance. On this petitioner has raised a reasonable
apprehension in his mind that it would be injurious and

harmful for him to live with respondent. She has lodged a
false complaint under Section 498-A IPC against the

petitioner, his father Ram Krishan Mahant and mother Smt.
Bimla Mahant with the PS Kullu in which the petitioner was
detained by police in the said case by the police. Petitioner
and his parents had to seek bail from the Hon’ble Court.
The behaviour of the respondent has been causing
harassment, torture and her conduct towards petitioner and
family members is cruel, intolerable, distrustful and of
criminal intermediation and the respondent deserted the
petitioner and has withdrawn from his company without any
reasonable or lawful excuse on 3.2.2003 and started living
separately from the petitioner in the house of her parents.”

18. Evidently, the para-4 of the petitioner as reproduced above,

clearly shows that no specific instances of cruelty have been spelt out.

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The petitioner has not even set-forth generally what to talk specifically or

with sufficient particulars i.e. time and place of the acts of the alleged

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cruelty. The petitioner was required to specify the specific acts of cruelty

and occasion when and how and the place where such acts had been

committed.

19. As regards the allegations as levelled in para-5 of the

petition (supra), the same have already been dealt with in the earlier

part of the judgment.

20. The petitions under the Hindu Marriage Act are required to

be drafted and framed in accordance with the Hindu Marriage and

Divorce (Himachal Pradesh) Rules, 1982. Sub-rule (g) of Rule 5 thereof

reads as under:-

“5 Contents of the petition.- In addition to the particulars

required to be given under Order VII, Rule 1 of the Code and
section 20(1) of the Act, all petitions under sections 9 to 14 of the

Act shall state:-

“(a) to (f) …. …. …. ….

(g) (iv) In the case of cruelty the specific acts of
cruelty and the occasion when and the place where
such acts were committed and that the petitioner
has not in any manner condoned such acts of the
respondent.”

21. This court in Parvati vs. Shiv Ram and another 1988 (2)

Sim.L.C. 204 while construing the aforesaid rules, observed as under:-

“7. This Court has framed the ‘Hindu Marriage and Divorce
(Himachal Pradesh) Rules, 1982’ in exercise of powers under
sections 14 and 21 of the Act Rule 5, which deals with the
contents of the petition, says that in addition to the particulars
required to be given under Order VII, Rule 1 of the Code of Civil

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Procedure and section 20 (i) of the Act, in a petition for divorce
on the ground of adulterous sexual intercourse with any other

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person other than the spouse, the petitioner shall, amongst other

things, mention the name, occupation and place of residence of
such person or persons so far as they can be ascertained, the
specific act of sexual intercourse and the occasion when and the

place where such acts were committed ; in the case of desertion
it shall state the date and circumstances in which it began ; and
in the case of cruelty, the specific acts of cruelty and the

occasion when and the place where such acts were committed
Rule 7 casts an obligation upon the petitioner to implead the
alleged adulterer as a co-respondent.”

22. Now, insofar as the allegations of desertion are concerned,

the same in fact have not at all been proved. What in fact stands proved

on record from the testimony of PW-1 Dr. Kamal Kapoor, who medico

legally examined the respondent on 12.3.2003 vide MLC Ex.PW-1/A

coupled with the statement of PW-4 Incharge, Women Cell, it is evident

that the respondent was in fact compelled to leave the matrimonial

home because of the circumstances created by the petitioner. Once the

respondent had valid and justifiable reasons to leave the matrimonial

home, she obviously cannot be held to have deserted the

appellant/petitioner without a valid or reasonable cause.

23. In view of the aforesaid discussion, I find no merit in this

appeal and the same is accordingly dismissed, leaving the parties to

bear their own costs.

May 7th, 2018. (Tarlok Singh Chauhan),
(GR) Judge

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