Court: HIMACHAL PRADESH HIGH COURT
CASE NO.321 of 1998
Bench: JUSTICE R.L. Khurana M.R. Verma
MAJOR ATUL MEHTA On 16 July 1999
This appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the ‘Act’) is directed against the judgment and decree dated September, 1, 1998 passed by the learned District Judge, Solan, whereby the petition of the husband/respondent under Section 13 of the Act has been allowed and the marriage between the parties has been dissolved.
2. The facts leading to the presentation of this appeal are as follows. The marriage between the parties was solemnised on September 28, 1984 at Shamli (Uttar Pradesh) in accordance with the Hindu rites and ceremonies. The parties thereafter cohabited as husband and wife at Delhi, Belgaum, Chandigarh and lasty at Subathu. Out of the wedlock son Karan and daughter Nidhi were born respectively on October 23, 1986 at Delhi and on November 25.1990 at Chandimandir. The respondent/husband filed a petition under Section 13 of the Act praying for a decree for dissolution of the marriage on the ground of cruelty in the Court of the learned District Jucge, Solan on August 6, 1993. His case, as made out in the petition, is that right from the beginning the attitude and behaviour of the appellant/wife has been uncompromising and unaccommodating and with the passage of time her attitude became more aggressive and nagging and she developed the habits of raising quarrels without any basis and constantly humiliating, insulting and harassing the respondent/husband. The respondent in his petition has mentioned various instances to show that the appellant has been treating him in a manner which constitutes mental cruelty. It is averred that the father of the appellant fixed their marriage during “Sharad” which the respondent and his parents wanted to avoid but in vain. After marriage while on honeymoon at Sikkim, the appellant informed the respondent that she did not marry him because of love but on the asking of her father and did not like him. On the death of grandmother of the respondent on October 23, 1984, the appellant reluctantly came to Solan to mourn the death whereas none from the parental side came to mourn the death nor sent any condolence letter etc. In the year 1985 the appellant started avoiding and disliking the parents of the respondent and started raising quarrels. When Karan was born on October 23, 1986, the mother the respondent could not be present on this occasion for want of leave. The appellant created a scene and turned a beautiful moment into ugly one. In 1989 the respondent was posted to a non-family station. The appellant then preferred to stay with her parents and stayed at Chandigarh with her parents. When the respondent came on annual leave in November, 1989, he visited her at Chandigarh and asked her to accompany him to Solan as he wanted to stay there with his parents during the leave period, but the appellant refused to oblige and quarrelled with him with the result that he had to proceed to Solan alone. While returning to his place of posting after availing the leave, the respondent again visited the appellant at Chandigarh and came to know that she had taken a job in D.A.V. Public School, Chandigarh for which she never took the respondent into confidence. He advised the appellant to stay at Solan instead of Chandigarh but she retorted by saying that he had to make a choice between the appellant, their son Karan and his parents. The insult and humiliation met out to the respondent led to development of psychiatric disorder and had to remain admitted in Command Hospital at Chandigarh and he was diagnosed to be a case of depression. The illness of the respondent was taken by the appellant casually and visited him in the hospital only once or twice. In March, 1993 the respondent was posted at Subathu and the appellant joined him there but her insulting and humiliating attitue aggravated and she could insult and humiliate him even in the presence of his superiors and juniors. In the absence and without the knowledge of the respondent, the appellant took almost all his belongings and shifted them to her parents house at Panchkula. The respondent reported the missing of his important articles to the police without knowing that the appellant had taken them away. Since after this incident the appellant is residing in her parental house in Panchkula. While at Panchkula, the appellant on April 8, 1993 lodged a false complaint against the respondent to the GOC, Headquarters Delhi Area with a copy to COAS. The said complaint contained allegations of demand for dowry, physical assault on the appellant and children and their non-maintenance by the respondent. It was further alleged that he had extra-marital affairs with rich women and one woman was even named therein and a request to provide financial help was made. The respondent had to submit replies to the authorities in this regard and such allegations were false. The situation thus created by the appellant finally led the respondent to seek premature retirement. The appellant who is residing at Panchkula since March, 1993, is not permitting the respondent to visit his children. It has, therefore, been claimed that the appellant has treated the respondent with cruelty which she has not condoned.
3. The appellant/wife in her reply denied the allegations of cruelty as averred in the petition and claimed that the behaviour of the respondent and his parents in fact has been very cruel and unbecoming and a complaint under Section 6 of the Dowry Prohibition Act, 1961 read with Sections 406/34 of the Indian Penal Code is pending in the Court of the Chief Judicial Magistrate, Solan. It is also pleaded that while posted at Sabathu, respondent developed affinity and intimacy with a bank officer and is so charmed by her wealth and status that he is bent upon to divorce the appellant so that he may marry said bank officer. Taking the job of a teacher by the appellant has been admitted but it is claimed that for this the respondent was a consenting party. It is also admitted that the respondent developed some psychiatric disorder for which he remained admitted in Command Hospital, Chandigarh. It is, however, claimed that the appellant attended on the ailing respondent day and night and that her behaviour and conduct has always been normal. Making of a request to provide financial assistance to the authorities has been admitted but it is claimed that the request was based on true facts. It has also been admitted that since March, 1993 the appellant is residing with her parents in Panchkula.
4. The respondent filed rejoinder to the reply of the appellant thereby denying the grounds of defence in the reply and re-affirming the claim as in the petition.
5. The learned trial Judge led the parties to trial on the following issues :
“1. Whether the respondent treated the petitioner with cruelty, as alleged?
2. If issue No. 1 is proved in favour of the petitioner, whether he is entitled to a decree of divorce by dissolution of marriage ?
6. Earlier the petition was allowed by the learned District Judge vide judgment dated March 27, 1996 but on appeal by the appellant, that judgment was set aside by a Division Bench of this Court as the entire evidence on record was found to have not been discussed and appreciated therein and the case was remanded for fresh decision according to law. The petition has now been disposed of by the impugned judgment whereby issue Nos. 1 and 2 have been held in favour of the respondent and consequently decree dissolving the marriage between the parties has been granted.
7. We have heard the learned Counsel for the parties. To succeed in a petition under Section 13 of the Act on the ground of cruelty, the party seeking dissolution of marriage on such ground, has to prove :
(i) that there is a subsisting relationship of husband and wife between the parties;
(ii) that the spouse against whom the relief is claimed has treated the petitioner with cruelty, mental and/or physical;
(iii) that there is no collusion between the parties in presenting the petition;
(iv) that the respondent has not condoned the acts and omissions constituting such cruelty; and
(v) that the petitioner is not taking advantage of his/her own wrong or disability.
8. In this case there is no dispute about the relationship of husband and wife between the parties and it is also admitted case of the parties that there is no collusion between them in presenting the petition.
9. The dissolution of marriage in this case has been claimed on the ground of cruelty. The legal concept of cruelty and the kind or degree of cruelty necessary to amount to a matrimonial offence have not been defined by any statute of the Indian Legislature relating to marriage and divorce; nor has the expression been defined in the Matrimonial Causes Act, 1950. The accepted legal meaning of this expression, which is rather difficult to define, had been “conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger. “In Dr. N.G. Dastane v. Mrs. Dastane, AIR 1975 SC 1534=1975 HLR 111 (SC), the Supreme Court critically examined the matrimonial ground of cruelty and observed that the inquiry in any case had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent. It was also pointed out that it was not necessary, as under the English Law that the cruelty must be of such a character as to cause danger to life, limb or health or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. What was required, was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.
(See : Kamaljit Bhullar v. Nimrat Preet Singh Bhullar, 1991 (1) HLR 231 (HP).
10. The expression ‘cruelty’ when relevant to the relations inter se the husband and wife have been defined only in one Indian legislation that is, under Section 494-A of the Indian Penal Code, 1860 wherein the said section had been inserted by Act No. 46 of 1983. The expression “cruelty” as defined therein reads as follows :
Explanation—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
11. The above definition is for the purpose of Section 498-A of the Code and is so worded as to cover such acts and conduct as may be “cruelty” vis-a-vis a married woman, amounting to an offence punishable under the said section. It essentially embarrasses the act and conduct of the husband and his relations and not of the wife. Thus, this definition is not only one-sided but is also intended to bring certain acts and conduct of the husband and his relatives within the scope of penal law and to punish the offender. It cannot be disputed that it is only an offending conduct of serious nature which entails a criminal liability whereas even an offending conduct of lesser degree may give rise to a cause of action for a civil action.
12. Against the aforesaid background, in a case under Section 13 of the Act, it has to be judged independently of the above definition of “cruelty” as to whether the acts and conduct imputed to the opposite party in a petition under Section 13 of the Act amounts to cruelty or not. Therefore, the Courts have to interpret, analyse and define what would constitute “cruelty’ in a given case depending upon many factors such as social status, background, customs, traditions, caste and community, upbringing, public opinion prevailing in the locality etc. The act and conduct as alleged and proved must be of the type which satisfies the conscience of the Court that it had led the relationship between the parties to an extent that there is danger to life, limb or health, bodily or mental, or a reasonable apprehension thereof and it has become impossible for them to live together without agony, torture or distress. The conclusions in this regard may be based on the instances of alleged cruelty in isolation or collectively.
13. In this case all pleaded instances of cruelty except the one regarding allegedly false allegation of illicit intimacy between the respondent and a Bank Officer namely, Vanita Kapur, relate to the period prior to March, 1993. Two of such instances are, (i) that the father of the appellant insisted on arranging the marriage of the parties in ‘Sharadh’ and (ii) that the parents of the appellant did not come to condone nor sent any condolence message on the death of the grandmother of the respondent. None of these instances, even if proved to be correct, are acts of cruelty by the appellant. Other pre-March, 1993 allegations, as pleaded, are not proved for want of consistent, cogent and reliable evidence. There is no dispute that a son was born to the parties on October 23, 1986 and a daughter was born on November 25, 1990 out of the wedlock. Even thereafter they lived together and cohabited lastly at Subathu upto March, 1993 when the appellant lastly withdrew from the society of the respondent. Thus even if it is presumed that there is any truth in the pre-March, 1993 instances, those stood condoned by the respondent as is evident from the contents of para 20 of the petition wherein while referring to the pre-March, 1993 instance of alleged cruelty, it has been averred that “the petitioner in the interest of matrimonial tie tolerated all misbehaviour of the respondent”. Therefore, the respondent could not succeed on the basis of pre-March, 1993 act and conduct of the appellant even if such instances singularly or collectively qualify the test of ‘cruelty’ as they stood condoned.
14. After March, 1993, the appellant made a complaint dated April 18, 1993 against the respondent. A photo copy of such complaint is Ext. PA. The allegations against the respondent in this complaint are, (i) that the appellant had been constantly harassed and physically assaulted by the respondent on the ground that she had not brought sufficient dowry; (ii) that he had failed to provide maintenance to her and their children; and (iii) that the respondent had extra-marital affairs with rich women including one Vanita Kapur, an employee of State Bank of India”, and wanted to marry her after divorcing the appellant. While re-asserting the above allegations in paras 5, 10 and 18 of the reply, the appellant as her sole witness has reiterated these allegations and admitted making of complaint Ext. PA. In view of the statement of the respondent (PW 1) read with the contents of his reply Ext. PW 1/A addressed to the Station Headquarters Delhi, letter Ext. PW 1/B from Under Secretary to the Government of India, Ministry of Defence, addressed to the respondent and his application for premature retirement Ext. PW 1 /D and Ext. PW 1/E, it is evident that the respondent was called upon by his superior authorities to show cause in the matter, he denied the allegations and finally sought pre-mature retirement from service, extremely traumatic marital life being one of the grounds, for such retirement. He was prematurely retired from service as S/Major in the Army vide Ext. PW 1/H. There is nothing on the record on the basis whereof the aforesaid allegations made against the respondent by the appellant vide Ext. PA may be held to have been condoned by the respondent.
15. It has been held by a Division Bench of this Court in Kamaljit Bhullar v. Nimrat Preet Singh Bhullar’s case (supra), that the allegations of the nature made in the application Ex. PA as well as in paras 5, 10 and 18 of the reply levelled by one spouse against the other, if not proved to be correct, would constitute legal cruelty.
16. Therefore, it has to be examined whether the allegations made in application Ext. PA and in paras 5, 10 and 18 of the reply are true or false so as to ascertain whether such allegations amount to legal cruelty.
17. The appellant while appearing as her sole witness, has not stated that on the allegations of having brought less dowry, she was harassed and physically assaulted by the respondent. Thus, this allegation evidently is false. It is also not her case in her statement that the respondent failed to maintain her and their children at any point of time and she has not stated anything in her statement to substantiate this allegation. On the contrary, the contents of para 17 of the petition averring that as is duty bound, the respondent had spent his hard earned money on the appellant and their children and provided them all comforts, he could within his means, and had joint accounts with the appellant who was free to operate such accounts of her own and all his F.D. Rs. were also in the joint names either with the appellant or their children, have not been denied in the reply of the appellant and it has been admitted that the respondent was behaving normally as regards providing of funds to her and the children, Thus, this allegation is also false.
18. Regarding the allegation of extra-marital affairs of the respondent with rich women including one Vanita Kapur, the appellant in her statement has stated that in March, 1993 she was turned out of the house by the respondent saying that he wanted to marry Vanita Kapur. The appellant has not stated that the respondent had illicit intimacy with rich women including Vanita Kapur. Whatever she states on this count is not corroborated by any other independent evidence on record. She plainly admits in her cross-examination that she has no proof of the allegations levelled by her against the respondent in her application Ext. PA. It can thus be concluded without hesitation that the allegations made by the appellant against the respondent in application Ext. PA are unfounded, baseless and false and as such amount to legal Cruelty.
19. In the application Ext. PA submitted to the superiors of the respondent, the appellant levelled false allegations of harassment, physical assault, not providing maintenance to her and the children and having extra-marital relations with rich women against the respondent and allegation of extra-marital relationship has been pleaded in paras 5, 10 and 18 of the reply filed by her also. The respondent ultimately had to seek premature retirement on the ground of extremely traumatic marital life. Making of the aforesaid false allegations vide Ext. PA and paras 5, 10 and 18 of the reply of the appellant constitute ‘cruelty’ which has led the parties to a situation in which it has become impossible for them to live together without agony, depression and distress. There is nothing on the record to show that the respondent is in any manner taking advantage of his own wrongs. Therefore, the respondent is entitled to the relief claimed.
20. For the reasons stated herein above, we find no reason to interfere with the impugned judgment and decree. As a result, the-appeal is dismissed. No order as to costs.