HIGH COURT OF ORISSA: CUTTACK
S.A. No.338 of 1999
From a visualisation and proceed antiquated 28.8.1999 and 9.9.1999 respectively upheld by Shri M.C. Ray, schooled Additional District Judge, Angul in T.A. No.4 of 1997/27 of 1998 confirming a visualisation and proceed antiquated 15.1.1997 and 27.1.1997 respectively upheld by Sri A.K. Dey, schooled Civil Judge (Sr. Divn.), Talcher in O.S. No.31/1993.
Sri Prasanta Kumar Mishra …………… Appellant
Smt. Suryamani Mishra ……………… Respondent
For Appellant : Mr. Gautam Mukherji, Advocate
For Respondent : Mr. D.K. Mohapatra, Advocate
P R E S E N T:
THE HON’BLE DR. JUSTICE A.K. RATH
Date of Hearing : 28.7.2017 ¦ Date of Judgment: 11.08.2017
Dr. A.K. Rath, J. Plaintiff is a appellant opposite confirming visualisation in a fit for retraction of marriage.
- The box of a plaintiff is that both a parties are Hindus. The matrimony between a plaintiff and respondent was solemnized in suitability with a Hindu Rites and Customs on 10.2.1991. After marriage, a respondent came to her matrimonial house. On 17.10.1991, she gave birth to a masculine child. Five months after marriage, a respondent picked adult argue with a plaintiff and insisted to leave her matrimonial house. She threatened to dedicate self-murder in a eventuality a plaintiff will not leave a entertain where his father resides. Her poise towards a father of a plaintiff was indecent. On 28.2.1992, a respondent and her father abused a plaintiff. The respondent disclosed that she had been recognised before marriage. Thereafter she went to her father’s house. The control of a respondent inflicted intolerable mental pain. The plaintiff mislaid his mental change and as a outcome of that he met with an accident. On 17.3.1992, a respondent came to her matrimonial house. She showed faulty behaviour. Due to loosening of a respondent, a child fell down and became unconscious. She again picked adult argue with a plaintiff and threatened to dedicate suicide. She left to her father’s quarter. Thereafter her father came to a residence of a plaintiff, picked adult quarrel, assaulted a plaintiff and inflicted damage on his mother. The plaintiff lodged an F.I.R. in a Police Station. The respondent and her father lodged F.I.R. opposite a plaintiff alleging proceed of dowry. While a matter stood thus, on 27.4.1992, a respondent forlorn a plaintiff though any reasonable means and deprived a plaintiff from a conjugal relationship. All a persuasions done by a plaintiff finished in a fiasco. It was serve pleaded that a respondent instituted a box underneath Sec.125 Cr.P.C. opposite a postulant in a probity of a schooled S.D.J.M., Talcher. According to a plaintiff, a respondent steadfastly and regularly threatened him with cruelty, that caused reasonable confinement in a mind of a plaintiff that will be damaging and damaging for him. The reprehensible control of a respondent towards plaintiff was grave and pithy that consecrate mental cruelty. With this significant scenario, a plaintiff instituted a fit seeking a releifs mentioned supra.
- Pursuant to distribution of summons, a respondent entered coming and filed created matter denying a allegations done in a plaint. The specific box of a respondent is that a plaintiff had done whimsical allegations besmirching her character. The plaintiff demanded dowry and tortured her. He assaulted a respondent on several occasions and gathering her out from her matrimonial house. She was peaceful to join with a plaintiff. Their matrimony had not been damaged down though any rhyme and reason.
- Stemming on a pleadings of a parties, schooled conference probity struck 7 issues. Both parties led evidence, verbal and documentary, to infer their sold cases. On an anatomy pleadings and justification on record, schooled conference probity came to reason that respondent had not done any try to dedicate suicide. The matrimony between a plaintiff and respondent was solemnized on 10.2.1991. Thus it was not extraordinary to broach a baby child within a aforesaid time span. No eccentric declare was examined to infer a claim that a respondent had spoken oppressive difference to a plaintiff. The plaintiff had not done any frank try to pierce behind a respondent. The plaintiff had catastrophic to settle his defence of cruelty and as such he is not entitled to a proceed of divorce. Held so, it discharged a suit. The catastrophic plaintiff challenged a visualisation and proceed of a schooled conference probity before a schooled Additional District Judge, Angul in T.A. No.4 of 1997/27 of 1998, that was eventually dismissed.
- The second seductiveness was certified on 17.2.2000 on a following estimable questions of law enumerated in divide nos.13(a),
(b), (c), (d), (f) and (k) of a seductiveness memo. The same are quoted hereunder.
“13(a) Whether a reduce appellate probity has committed an illegality by not scanning and scrutinizing a justification on record ? Whether a reduce appellate probity was fit in arbitrarily usurpation a commentary of facts, rendered by a conference court, though assigning any reason, and by so doing has catastrophic to liberate his requirement as a final probity of fact?
(b) Whether a conference probity is fit in ignoring critical pieces of element justification on record and possibly a reduce appellate probity is fit in usurpation a commentary of a conference probity though creation any bid to re-appreciate a justification adduced by a parties ?
(c) Whether a respondent’s defence to reside alone with her father dispatch her parents-in-law amounts to cruelty ?
(d) Whether a try of a respondent to dedicate self-murder amounts to cruelty ?
(f) Whether a respondent’s acknowledgment that she had recognised a child before to her matrimony to a appellant amounts to mental cruelty ?
(k) Whether a reduce appellate probity has committed an illegality by not holding into care a appellant’s focus U/o 41, Rule 27 C.P.C. during a time of final ordering of a seductiveness ?”
- Heard Mr. Gautam Mukherji, schooled warn for a appellant and Mr. D.K. Mohapatra, schooled warn for a respondent.
- Mr. Mukherji, schooled warn for a appellant submitted that a matrimony between a appellant-plaintiff and respondent was solemnized on 10.2.1991. She delivered a child on 17.10.1991. She disclosed that she recognised before marriage. In her cross-examination, a respondent had also certified a pronounced fact. He serve submitted that a respondent had given steady threats to dedicate suicide. The poise of a respondent was unduly. She left a matrimonial residence on March, 1992 and lived separately. The aforesaid act constituted mental cruelty. To strut his submission, he relied on a preference of a peak Court in a cases of V. Bhagat vs. Mrs. D. Bhagat, AIR 1994 SC 710, Praveen Mehta vs. Inderjit Mehta, AIR 2002 SC 2582, Samar Ghosh vs. Jaya Ghosh, (2004) 4 SCC 511, Pankaj Mahajan vs. Dimple @ Kajal, (2011) 12 SCC 1.
- Per contra, Mr. Mohapatra, schooled warn for a respondent submitted that a plaintiff had done shameful remarks besmirching a impression of a respondent. The allegations done in a wail are deceptive and though any basis. There is no foundational fact with courtesy to try to dedicate suicide. There was prohibited sell of difference between a integrate during quarrel. It is not surprising on a partial of a integrate to sell prohibited difference during quarrel. The same can't consecrate steel cruelty. The respondent is still prepared and peaceful to join messenger to a plaintiff. Both a courts on a meagre research of a justification on record discharged a suit. There was no perversity or illegality in a commentary of a probity below.
- Cruelty simpliciter is a belligerent for divorce underneath Sec.13 of a Hindu Marriage Act (Act 25 of 1955). Section 13 provides, so distant it is material:
“13.Divorce.-(1) Any matrimony solemnized, possibly before or after a derivation of this Act, may, on a petition presented by possibly a father or a wife, be dissolved by a proceed of divorce on a belligerent that a other party–
(i) xxx xxx xxx (i-a) has, after a solemnization of a marriage, treated a postulant with cruelty; or xxx xxx xxx”
10. In Shobha Rani vs. Madhukar Reddi, AIR 1988 SC 121, a peak Court hold thus:
“4. Section 13(1)(i-a) uses a difference “treated a postulant with cruelty”. The word “cruelty” has not been defined. Indeed it could not have been defined. It has been used in propinquity to tellurian control or tellurian behaviour. It is a control in propinquity to or in honour of matrimonial duties and obligations. It is a march of control of one that is adversely inspiring a other. The cruelty might be mental or physical, conscious or unintentional. If it is earthy a probity will have no problem to settle it. It is a doubt of fact and degree. If it is mental a problem presents difficulty. First, a enquiry contingency start as to a inlet of a vicious treatment. Second, a impact of such diagnosis in a mind of a spouse. Whether it caused reasonable confinement that it would be damaging or damaging to live with a other. Ultimately, it is a matter of deduction to be drawn by holding into comment a inlet of a control and a outcome on a angry spouse. There may, however, be cases where a control complained of itself is bad adequate and per se wrong or illegal. Then a impact or a damaging outcome on a other associate need not be enquired into or considered. In such cases, a cruelty will be dynamic if a control itself is valid or admitted.
5. It will be compulsory to bear in mind that there has been noted change in a life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from residence to residence or chairman to person. Therefore, when a associate creates censure about a diagnosis of cruelty by a partner in life or relations, a Court should not hunt for customary in life. A set of contribution stigmatised as cruelty in one box might not be so in another case. The cruelty purported might mostly count on a form of life a parties are accustomed to or their mercantile and amicable conditions. It might also count on their enlightenment and tellurian values to that they insert importance. We, a Judges and lawyers, therefore, should not import a possess notions of life. We might not go in together with them. There might be a era opening between us and a parties. It would be improved if we keep aside a etiquette and manners. It would be also improved if we reduction count on precedents. Because as Lord Denning pronounced in Sheldon v. Sheldon, (1966) 2 All ER 257 (259) “the categories of cruelty are not closed.” Each box might be different. We understanding with a control of tellurian beings who are not generally similar. Among a tellurian beings there is no border to a kind of control that might consecrate cruelty. New form of cruelty might stand adult in any box depending on a tellurian behaviour, ability or incompetence to endure a control complained of. Such is a wonderful/realm of cruelty.”
- In V. Bhagat (supra), a peak Court hold thus:
] “17. Mental cruelty in Section 13(1)(i-a) can broadly be defined
] as that control that inflicts on a other celebration such mental
] pain and pang as would make it not probable for that party
] to live with a other. In other words, mental cruelty contingency be
] of such a inlet that a parties can't pretty be expected
] to live together. The conditions contingency be such that a wronged
] celebration can't pretty be asked to put adult with such control and
] continue to live with a other party. It is not compulsory to
] infer that a mental cruelty is such as to means damage to the
] health of a petitioner. While nearing during such conclusion,
] courtesy contingency be had to a amicable status, educational turn of
] a parties, a multitude they pierce in, a probability or
] differently of a parties ever vital together in box they are
] already vital detached and all other applicable contribution and
] resources that it is conjunction probable nor fascinating to set
] out exhaustively. What is cruelty in one box might not volume to
] cruelty in another case. It is a matter to be dynamic in each
] box carrying courtesy to a contribution and resources of that case.
] If it is a box of accusations and allegations, courtesy contingency also
] be had to a context in that they were made.”
- The peak Court enumerated instances of tellurian poise that might be applicable in traffic with a cases of mental cruelty in Samar Ghosh (supra). The instances are usually scholastic and not exhaustive. The peak Court hold thus:
] “101. No uniform customary can ever be laid down for guidance,
] nonetheless we hold it suitable to enumerate some instances of human
] poise that might be applicable in traffic with a cases of
] “mental cruelty”. The instances indicated in a succeeding
] paragraphs are usually scholastic and not exhaustive:
] (i) On care of finish matrimonial life of the
] parties, strident mental pain, agonise and pang as would not
] make probable for a parties to live with any other could come
] within a extended parameters of mental cruelty.
] (ii) On extensive estimation of a whole matrimonial life
] of a parties, it becomes extravagantly transparent that conditions is
] such that a wronged celebration can't pretty be asked to put up
] with such control and continue to live with other party.
] xxx xxx xxx
] (iv) Mental cruelty is a state of mind. The feeling of deep
] anguish, disappointment, beating in one associate caused by the
] control of other for a prolonged time might lead to mental cruelty.
] (v) A postulated march of violent and degrading treatment
] distributed to torture, inconvenience or describe miserable life of
] a spouse.
] (vi) Sustained unworthy control and poise of one
] associate indeed inspiring earthy and mental health of the
] other spouse. The diagnosis complained of and a resultant
] risk or confinement contingency be really grave, estimable and
] xxx xxx xxx
] (x) The married life should be reviewed as a whole and a few
] removed instances over a duration of years will not volume to
] cruelty. The ill control contingency be determined for a sincerely lengthy
] period, where a attribute has run-down to an extent
] that since of a acts and poise of a spouse, a wronged
] celebration finds it intensely formidable to live with a other party
] any longer, might volume to mental cruelty.
] xxx xxx xxx”
- In Pankaj Mahajan (supra), a peak Court hold that giving steady threats to dedicate self-murder amounts to cruelty.
- In Praveen Mehta (supra), a peak Court hold thus:
] “21. Cruelty for a purpose of Section 13(1)(ia) is to be taken
] as a function by one associate towards a other that causes
] reasonable confinement in a mind of a latter that it is not
] protected for him or her to continue a matrimonial relationship
] with a other. Mental cruelty is a state of mind and feeling
] with one of a spouses due to a function or behavioral
] settlement by a other. Unlike a box of earthy cruelty the
] mental cruelty is formidable to settle by proceed evidence. It
] is indispensably a matter of deduction to be drawn from a facts
] and resources of a case. A feeling of anguish,
] beating and beating in one associate caused by the
] control of a other can usually be appreciated on assessing the
] attending contribution and resources in that a dual partners of
] matrimonial life have been living. The deduction has to be drawn
] from a attending contribution and resources taken cumulatively.
] In box of mental cruelty it will not be a scold proceed to
] take an instance of misconduct in siege and afterwards poise the
] doubt possibly such poise is sufficient by itself to cause
] mental cruelty. The proceed should be to take a cumulative
] outcome of a contribution and resources rising from a evidence
] on record and afterwards pull a satisfactory deduction possibly a petitioner
] in a divorce petition has been subjected to mental cruelty due
] to control of a other.”
15. On a cursory conference of a plaint, it is clear that a plaintiff pleaded that a respondent had threatened to dedicate self-murder and a respondent had disclosed that she had recognised before marriage. The plaintiff in his justification had settled that 5 months after, a respondent insisted him for staying separate. When he refused, she threatened to dedicate suicide. She had even try to dedicate suicide. In cross- examination, a respondent certified that there was a argue between her and her husband. On 28.02.1992, she disclosed that she was recognised by other. What some-more is compulsory to infer a mental cruelty ? The plaintiff will humour a indignity via his life. He can't live in peace. It is rarely unattractive on a partial of a father to live with a association of an inanimate wife. There is a sanskrit sloka; “Aja yuddha, rishi shradha, prabhate meghadambaru, dampatya kalahesachiba bahwadambare laghu kriya” (fight of goats, shhradha of rishis, argue between spouses and morning clouds start with a crash though finish with a whimper). But afterwards a argue between a spouses reached to a border of attempting to dedicate self-murder by wife. Confession of a respondent before a plaintiff that she had recognised before matrimony and steady threats to dedicate self-murder consecrate mental cruelty. Both a courts did not excavate into a same in a correct perspective. The commentary of a courts subsequent are perverse.
- The subsequent doubt crops adult as to a volume a respondent is entitled to towards permanent alimony. In march of hearing, an confirmation has been filed by a appellant-plaintiff saying therein that he has paid an volume of Rs.93,100/- towards upkeep to a respondent. During conciliation, he offering an volume of rupees 3 lakhs towards permanent alimony. But a conciliation failed. He filed a income trip of April, 2017 released by a Manager (Personnel) Ananta OCP, Mahanadi Coalfields Limited. The same indicates that he is removing Rs.41,203/- towards salary. When a fit was filed in a year 1993, a respondent was 23 years of age. She is during benefaction 47 years. Considering her age and standing of her husband, this Court feels that ends of probity shall be improved served, if an volume of Rs.12,36,000/- (rupees twelve lakhs thirty-six thousand), i.e., 25% of a income x 12 x 10 years is postulated to a respondent towards permanent alimony. The pronounced volume is distributed gripping in perspective a seductiveness that would fetch in a eventuality a volume is invested in any nationalized Bank in bound deposition gripping in perspective a benefaction rate of interest. The volume so postulated shall be paid by a appellant to a respondent within 3 months, unwell which, a respondent might redeem a volume by executing decree.
- In a result, a judgments and decrees of a courts subsequent are set aside. The seductiveness is authorised to a border indicated above. No costs.
Dr. A.K. Rath,J.
Orissa High Court, Cuttack
The 11th August, 2017/Basanta