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Whether husband can seek divorce on ground of cruelty if wife is insisting him to reside at place of her posting?


First Appeal No. 222 of 2016

Decided On: 18.05.2016

Surendra Pal Singh Pawar

Hon’ble Judges/Coram:
Surya Prakash Kesarwani, J.

Citation:AIR 2017(NOC)690ALL

1. Heard Sri Santosh Kumar Srivastava, learned counsel for the appellant. This First Appeal has been filed challenging the Judgment dated 16.4.2016 and decree dated 30.4.2016 passed by the Court of Additional District and Sessions Judge/Fast Track Court No. 2, Baghpat, in case No. 360 of 2009 under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”).

2. Learned counsel for the appellant submits that the Court below has committed a manifest error of law and fact to dismiss the divorce petition even though the appellant has established that the defendant-respondent has committed cruelty and thus made out a ground for divorce under Section 13(1)(i-a)/(i-b) of the Act.

3. In support of his submission he refers to the pleadings made in paragraph No. 4 and 5 of the plaint, a copy of which has been filed as Annexure 1. He further submits that defendant-respondent is living separately since the year 1977 without any allegation against him and out of her own sweet will which amounts to cruelty. He, therefore, submits that in view of these facts the Court below has committed a manifest error of law in not granting the decree for divorce and, therefore, the impugned judgment and decree deserves to be set aside.

4. I have carefully considered the submissions of learned counsel for the appellant and perused the record.

5. Briefly stated the facts of the present case are that plaintiff-appellant was married with the defendant-respondent in the year 1966 when the plaintiff-appellant was unemployed. In the year 1971 the plaintiff-appellant was appointed as a Police Constable. It is alleged in the paragraph No. 4 of the plaint that after the plaintiff-appellant was appointed as Police Constable, the defendant-respondent and her family members started pressing the plaintiff-appellant to keep her with him at the place of his posting as she wants to live with him. This request of the defendant-respondent was refused by the plaintiff-appellant (Husband). According to the plaintiff-appellant, she left his home in August 1977, while according to the defendant-respondent (wife), she was kicked out from her husband’s home. There is no pleading in the plaint giving any detail of efforts made by the plaintiff-appellant to bring back home the defendant-respondent (wife) after August 1977 till 2009. As per own case of the plaintiff-appellant, he made an effort to bring back his wife in the year 2009 before instituting the suit for divorce. Thus, according to the plaintiff-appellant he made an effort after 32 years which is not even supported by any pleadings in the plaint. Undisputedly, there was no complaint of the plaintiff-appellant against defendant-respondent at least till the year 1971. He lived with her since the date of marriage in year 1966 till the year 1977. No evidence of cruelty was led by the plaintiff-appellant before the Court below except the sole allegation that she left the house. On the contrary, serious allegations were made by the defendant-respondent against the plaintiff-appellant as noted in the impugned judgment which were also proved by her in her evidence.

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6. The element of cruelty could not be proved at all by the plaintiff-appellant.

7. Under Section 13(1)(i-a) of the Act marriage can be dissolved by a decree of divorce on petition presented either by the husband or the wife on the ground that the other party has, after solemnization of marriage treated him/her with cruelty. It has been settled by Hon’ble Supreme Court in large number of decisions that the term “cruelty” means where the spouse has so treated the other and manifested such feelings towards her or him so as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with other spouse. Cruelty may be physical or mental. Mental cruelty will have to be judged after applying mind on the facts of each case. No uniform standard can be laid down. In the case of Samar Ghosh v. Jaya Ghosh, MANU/SC/1386/2007 : (2007) 4 SCC 511, Hon’ble Supreme Court held as under:

“No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior 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 behavior 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.

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(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 behavior 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.”

8. In the case of K. Srinivas Rao v. D.A. Deepa, MANU/SC/0180/2013 : (2013) 5 SCC 226 (para 16), Hon’ble Supreme Court observed that to the instances illustrative of mental cruelty noted in Samar Ghosh (supra) few more instances may be added namely, making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the Court against the spouse would also amount to cause mental cruelty to the other spouse.

9. In the case of Darshan Gupta v. Radhika Gupta, MANU/SC/0627/2013 : (2013) 9 SCC 1 (Para 46), Hon’ble Supreme Court observed that the grounds on which divorce can be sought under Section 13(1) of the Act would reveal that the same are grounds based on the fault’ of the party against whom dissolution of marriage is sought. In matrimonial jurisprudence, such provisions are founded on the “matrimonial offence theory’ or the “fault theory’. Under this jurisprudential principle, it is only on the ground of an opponent’s fault, that a party may approach a Court for seeking annulment of his/her matrimonial alliance. In other words, if either of the parties is guilty of committing a matrimonial offence, the aggrieved party alone is entitled to divorce. The party seeking divorce under the “matrimonial offence theory”/the “fault theory” must be innocent. A party suffering “guilt” or “fault” disentitles himself/herself from consideration. Illustratively, desertion for a specified continuous period, is one of the grounds for annulment of marriage. But the aforesaid ground for annulment is available only, if the desertion is on account of the fault of the opposite party, and not fault of the party who has approached the Court. Therefore, if a husband’s act of cruelty, compels a wife to leave her matrimonial home, whereupon, she remains away from the husband for the stipulated duration, it would not be open for a husband to seek dissolution of marriage, on the ground of desertion as happened in the present set of facts. The reason being, that it is the husband himself who was at fault, and not the wife.

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10. In the case of Malathi Ravi v. B.V. Ravi, MANU/SC/0578/2014 : (2014) 7 SCC 640 (para 42), Hon’ble Supreme Court observed that mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be a mental cruelty in the life of two individuals belonging to particular strata of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.

11. Adverting to the present set of facts, I find that the appellant-husband compelled the defendant-respondent (wife) to leave her matrimonial house in August 1977 and has never attempted to bring her back to the matrimonial house except allegedly few days before instituting the petition for divorce in the year 2009.

12. Thus, applying the fault theory as propounded by Hon’ble Supreme Court in the case of Darshan Gupta (supra), I find no error in the impugned judgment inasmuch as the appellant-plaintiff himself was at fault and, therefore he cannot seek divorce on the ground of cruelty.

13. At this point it is also relevant to note that it is own case of the appellant-plaintiff as emerging from the plaint that the respondent-defendant (wife) was insisting to live with him at the place of posting. In my view, the demand of the defendant-respondent wife to live with her husband was not an unreasonable demand rather it was her right. The plaintiff-appellant could not lead any evidence to prove that the defendant respondent was guilty of cruelty. Under the circumstances, I do not find any good reason to interfere with the impugned judgment.

14. It is settled law that burden lies on the party to prove who alleges cruelty vide Neelam Kumar v. Daya Ran, (2001) 13 SCC 298 (para 13), Gurubux Singh v. Harwinder Kaur, MANU/SC/0175/2010 : (2010) 4 SCC 301 (Para 12 and 14). It is also settled law that parties to a case cannot travel beyond pleadings.

15. The findings recorded in the impugned judgment are based on consideration of relevant pleadings and evidences. The appeal is totally devoid of merit and, therefore, does not even deserves admission. In view of the above discussion, this appeal is dismissed with cost of Rs. 10,000/- which the plaintiff-appellant shall pay to the defendant-respondent within 30 days from today.

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