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Divorce : 498a, Desertion, Threat to commit suicide,Mental Cruelty

(DB)(Gwalior Bench)

Before:- Mr. Alok Aradhe and Mr. Anand Pathak, JJ.
First Appeal No. 168 of 2002. D/d. 29.7.2016.

Sheel Kumari – Appellant
Asharam – Respondent

For the Appellant :- Shri Prashant Sharma, learned counsel.
For the Respondent :- None.

Anand Pathak, J. – This appeal has been preferred against the judgment and decree dated 20-09-2002 passed by trial Court whereby the marriage between the parties has been dissolved on the grounds of mental cruelty and desertion. In order to appreciate the controversy involved in this appeal few relevant facts need mention which are stated herein under.

2. The respondent entered into the wedlock with the appellant in 1998 at village Manora, District Vidisha as per Hindu rites out of which two children were born. The respondent filed a petition under Section 13 of the Hindu Marriage Act, 1955 inter alia on the ground that his wife intermittently used to prolong her stay at her parental home. She used to insist respondent to live at her parental home at village Manora, to which the respondent did not agree.

3. It was pleaded that after some years, the behaviour of appellant became more and more aggressive and around 1992 she left her matrimonial home and despite persuasion by the respondent, she did not join the matrimonial home. The respondent by a notice dated 15-07-1992 asked the appellant to join the matrimonial home, pursuant to which she returned to her matrimonial home for some time and in February 1994 she again left the matrimonial home without even informing the respondent and took away ornaments with her. She also made a complaint at Police Station Gyaraspur on the basis of which a criminal case was registered. Eventually, the respondent was convicted by the trial Court in 1999 and was sentenced to undergo imprisonment for one year. Against aforesaid judgment, the respondent preferred an appeal and was acquitted vide judgment dated 28-07-2001.

4. It was further pleaded that at the insistence of the appellant, part of some land has been transferred in her name as well as in the name of their children. It was also pleaded that since February 1994 no cohabitation had taken place between the parties which amounts to mental cruelty to respondent and since 1994 the appellant has deserted the respondent, therefore, it was impossible for the respondent to live with his wife. In the aforesaid factual background, the respondent filed the petition for dissolution of marriage.

5. The appellant filed written statement and contested the case. She denied the status of the applicant as unemployed but admitted her stay at village Manora with her parents. Rest of the allegations in the petition were denied by her. In the special pleadings, she mentioned about the misbehaviour and ill treatment meted out to her by the respondent and his parents. It was averred that the demand of dowry was being made by her husband and in-laws, therefore, she left the matrimonial home to save her life as she apprehended danger to her life. It was also averred that due to sentence awarded to the husband for one year by the Court, her husband consistently threatened her with dire consequences, therefore, she left the matrimonial home. It was further pleaded that appellant is ready and willing to join the matrimonial home provided her husband treats her well. It was also pleaded that the petition seeking divorce has been filed with an intention to remarry.

6. The trial Court after framing the issues recorded the evidence of the parties. The respondent as well as one Nandkishore was examined on behalf of respondent whereas the appellant examined herself. After careful scrutiny of material on record, the trial Court came to the conclusion that the respondent has proved the grounds of mental cruelty and desertion and allowed the petition.

7. Learned counsel for the appellant submitted that the trial Court has committed illegality in passing the impugned judgment and decree because the report was lodged whereupon the conviction was recorded, does not amount to cruelty nor does it create any ground for divorce because FIR was registered by the police authority and prosecution was carried by the State authority, therefore, it cannot be a ground for divorce. Further argument of the appellant was that the appellant had left the home to protect her life as her life has been put to danger because of the conduct of the respondent. Further, she again came back to his matrimonial home. In fact, it was cruel attitude of the respondent which compelled her to leave her matrimonial home. According to her, she never deserted the respondent. Counsel for the appellant further submitted that there was no cogent evidence against the appellant, existed regarding her threat to commit suicide. According to her, she never extended such threat and therefore, it cannot be amounted to mental cruelty. The trial Court, according to the counsel for appellant has ignored the conduct of respondent which compelled the appellant to desert him and ignored the readiness and willingness of the appellant to live with the respondent.

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8. We have heard learned counsel for the appellant and have perused the record. The moot question which arises for consideration is whether the trial Court has rightly dissolved the marriage on the grounds of Mental Cruelty and Desertion, in the state of evidence on record.

9. Before proceeding further, we deem it appropriate to take note of well settled legal principles which regard to mental cruelty and desertion. The concept of mental cruelty has been elaborately discussed in the celebrated judgment rendered by the Supreme Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534, the relevant extract of the judgment is reproduced as under:

“The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse,. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.” (1) The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them over-look or gloss over mutual faults and failures. As said by Lord Reid in his speech in Gollins v. Gollins (2) ALL ER 966.

“In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make bout them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.”

The said judgment still holds the field and is source of wisdom time and again in respect of mental cruelty .

10. The aforesaid decision was referred to with approval in AIR 2002 SC 2582 (Praveen Mehta v. Inderjit Mehta), (2007) 4 SCC 511 (Samar Ghosh v. Jaya Ghosh), (2010) 4 SCC 339 (Manisha Tyagi v. Deepak Kumar), (2012) 7 SCC 288 (Vishwanath Agrawal v. Sarla Vishwanath Agrawal), (2013) 2 SCC 114 (U. Sree v. U. Srinivas). In all these cases, the judgment rendered in the case of Dr. N.G. Dastane (supra) is relied upon. In the case of Samar Ghosh (supra), the Supreme Court has enumerated the illustrative instances of human behaviour which may be relevant for dealing with the cases of mental cruelty:
“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) ** ** **
(iii) ** ** **
(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) ** ** **
(viii) ** ** **
(ix) ** ** **
(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) ** ** **
(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) ** ** **
(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.

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It is equally well settled in law that lodging of false complaint amounts to cruelty (See: (2014) 7 SCC Malathi v. B.B. Ravi, (2013) 5 SCC 226 K. Shrinivas Rao v. D.A. Deepa, (2014) 16 SCC 34 K. Shrinivas v. Ku. Sunita and AIR 2003 M.P. 271 Johnson M. Joseph alias Shajoo v. Smt. Aneeta Jhonson))

11. We may now advert to legal principles with regard to desertion. In AIR 1957 SC 176 (Bipinchandra Jaisinghbai Shah v. Prabhavati), the Supreme Court has explained that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there., namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi.

Later on the said principle on desertion is reiterated in AIR 1964 SC 40 (Lachman Utamchand Kirpalani v. Meena alias Mota), (2002) 1 SCC 308 (Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi) to (2006) 4 SCC 558 (Naveen Kohli v. Neelu Kohli).

12. In the light of aforesaid well settled legal principles facts of the case may be seen. The respondent husband (PW-1) in his examination-in-chief has stated that the non-applicant wife is living separately for 8-10 years and despite notice being sent and attempts being made to bring her back, she did not join the matrimonial home. Besides, she lodged a criminal complaint against the applicant and his family members causing severe mental cruelty to them and they had to undergo severe mental trauma and social disrepute, and coerced him to transfer of the land in her name and in the name of their children who were living with her. In the cross-examination, his assertion remained un-rebutted. It is trite law that if in the cross-examination any fact is not rebutted then it is taken to be admitted. Thus facts regarding filing of false criminal case as well as the fact that respondent and his family members were required to undergo mental trauma were established. The witness Nandkishore (PW-2) corroborated the case of the respondent in respect of quarrelsome behaviour of the appellant wife and her intermittent threat to commit suicide. In cross-examination, his deposition remained un-rebutted and being independent witness, intention of the appellant was established wherein she was not at all interested in living with the respondent.

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13. The appellant (DW-1) also entered into the witness box and in para 8 of the cross-examination has stated about her reluctance to live with her husband. Thus intention as well as factum of desertion is also established which fulfills the ingredients of dissolution as per the provisions of the Act.

14. The appellant could not explain the exact time period when the demand for dowry was made by the respondent but the conviction of the respondent indicates bend of mind of the appellant and the evidence led by the parties establishes break down of marriage on the basis of mental cruelty and desertion. The trial Court while appreciating the evidence has rightly concluded that the appellant was living separately for last 8-10 years and despite notice did not join to the matrimonial home. The fact regarding police complaint and subsequent conviction of the respondent has also been appreciated by the trial Court, in proper perspective.

15. Even the fact of transfer of the land in the name of children remained un-rebutted. The plea of perversity as raised by learned counsel for the appellant in respect of transaction of the land does not have material bearing over the controversy in hand because it does not vitiate the ground raised by the respondent for dissolution of marriage and for obtaining the decree of divorce.

16. The trial Court while appreciating the fact of criminal trial has rightly come to the conclusion that the appellant has lodged the false criminal case against the respondent and his family members as the respondent has been acquitted in the appeal. The acquittal of the respondent falsifies the claim of the appellant and establishes the plea of respondent in respect of mental cruelty. [See: Johnson M. Joseph alias Shajoo (supra)].

17. The allegation of mental cruelty levelled by the applicant has been successfully proved in the present case. While applying the prevalent law in the present fact situation of the case, only plausible inference is that behaviour of the non-applicant caused mental cruelty to the applicant and thus the break down of marriage has reached to irretrievable position.

18. Thus, the averment of mental cruelty on the principles as enumerated in the different pronouncements of the Supreme Court on the basis of threat and abuses hurled by the appellant to commit suicide are established. The endeavour of the appellant to implicate the respondent in a criminal case for demand of dowry and desertion for more than 7-8 years and depriving the respondent of the matrimonial pleasure amounts to mental cruelty in the present fact situation of the case and the trial Court has rightly appreciated the evidence by affirmatively answering the issue No. 1&2 namely cruelty and desertion as proved.

19. Learned counsel for the appellant had also prayed for grant of maintenance to the appellant, which is not the subject matter of this case. The appellant is at liberty to prefer an application under Section 25 of the Act which would be decided by the competent Court as per its own merit.

20. The trial Court has rightly passed the impugned judgment and decree dated 20-09-2002 and this Court finds no ground to interfere with the decree for dissolution of marriage.

21. Resultantly, the appeal fails and is hereby dismissed. However, there shall be no order as to costs.

Appeal dismissed.

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