{"id":846,"date":"2009-12-29T17:29:40","date_gmt":"2009-12-29T11:59:40","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=846"},"modified":"2009-12-29T17:30:21","modified_gmt":"2009-12-29T12:00:21","slug":"no-cruelty","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/no-cruelty\/","title":{"rendered":"498A,Desertion still not Cruelty on men"},"content":{"rendered":"

Mumbai High Court<\/strong><\/p>\n

Equivalent citations: 2007 (3) BomCR 841, I (2007) DMC 446
\nBench: A Joshi<\/p>\n

Nitin Bhaurao Tidke vs Sujata on 29\/8\/2006<\/p>\n

JUDGMENT<\/p>\n

A.H. Joshi, J.<\/p>\n

1. Parties were married at Murtizapur on 26th February, 1993.<\/p>\n

2. According to the appellant, the respondent started raising quarrels with the appellant and with appellant’s mother after 3 to 5 months of normal stay at matrimonial home.<\/p>\n

According to the appellant, the wife refused to attend to the day-to-day activities in the house, such as cooking, serving the food, etc. The appellant claims that due to this behaviour of the respondent, they were allotted a separate room in the house. The respondent, however, used to remain out of house for the whole day without informing her whereabouts, and used to quarrel on inquiry.<\/p>\n

3. After birth of a child, the respondent turned more arrogant and abused the
\nhusband-appellant in a filthy language and left the house with her daughter.
\nWhen the appellant went to fetch her back, he was insulted. Ultimately, she was
\nbrought back by relatives.<\/p>\n

Even on return, her behaviour remained unchanged. According to appellant, she
\nthreatened of criminal action and that the husband and his relatives were put
\nbehind the bars. She also got her second pregnancy aborted. She ultimately left
\nthe matrimonial house by leaving the child on 31st March, 1996, informing that
\nshe had no desire to co-habit and announcing that she was thereby breaking
\nmatrimonial ties.<\/p>\n

4. All efforts of conciliation failed. She also lodged a complaint with
\nPolice for offence under Section 498A, read with Section 34, Indian Penal Code,
\non 7th December, 1996.<\/p>\n

The said complaint has resulted in acquittal.<\/p>\n

5. Pre3ent appellant has filed a Hindu Marriage Petition for divorce on the
\nground of cruelty on 5th July, 1997 under Section 13(1)(ia).<\/p>\n

6. After the trial, the learned Civil Judge (Senior Division), Akola, allowed
\nthe Hindu Marriage Petition No. 106 of 1997.<\/p>\n

7. Respondent-wife, who was aggrieved by the judgment of Trial Court,
\npreferred an appeal which was registered, tried and decided as Regular Civil
\nAppeal No. 71 of 2000.<\/p>\n

8. The learned Third Additional District Judge, who heard and decided the
\nappeal, allowed the same and set aside the judgment and decree passed by Civil
\nJudge (Senior Division), Akola, dissolving the marriage, and dismissed the
\npetition.<\/p>\n

This order of allowing the appeal filed by the respondent-wife before First
\nAppellate Court, and dismissal of Hindu Marriage Petition of the appellant is
\nsubject-matter of this petition.<\/p>\n

9. The Second Appeal has been admitted by this Court, and following
\nsubstantial question of law has been framed:<\/p>\n

Whether it is permissible for an Appellate Court exercising appellate
\njurisdiction over a decree passed under Section 13 of the Hindu Marriage Act to
\nset aside that decree merely because the Appellate Court, on re-appreciation of
\nevidence, takes a different view of the evidence.<\/p>\n

10. It is seen from record that the efforts for conciliation were made,
\nhowever, parties have reported failure, and, now, the appeal is taken up for
\nfinal hearing.<\/p>\n

11. Heard learned Advocates for the parties.<\/p>\n

12. This Court will have to find out as to how and in what premises the
\nsubstantial Question of law framed in this appeal arises between the parties,
\nand what shall be the result if the question is answered in either way.<\/p>\n

13. This Court has to find out from the pleadings what was the exact
\nsubstratum, which has led the husband to describe a particular conduct of the
\nwife to be cruelty, find out what evidence was led and what weighed with the
\nFirst Appellate Court due to which the First Appellate Court found on its
\nindependent appreciation of evidence that the averments and evidence did not
\nconstitute cruelty, and the finding of the Trial Court appeared to the First
\nAppellate Court to be so grossly improper that the First Appellate Court found
\nit proper to reverse the decree, and thereupon, if demonstrated by the
\nappellant, to find out whether the Appellate Court has taken recourse to second
\nopinion of evidence as “just it was available” in terms of the substantial
\nquestion of law framed by this Court at the time of admission of appeal.<\/p>\n

14. It, therefore, becomes necessary to go to the pleadings.<\/p>\n

15. The complaint relating to conduct and behaviour of the wife-respondent in
\nthe Hindu Marriage Petition is seen into various paras which are extracted for
\nconvenience as follows:<\/p>\n

3. …Firstly for 3-4 months the behaviour of the respondent was normal,
\nand thereafter, she has started raising quarrels not only with the petitioner
\nbut also with his mother….<\/p>\n

3. …After 3-4 months of the marriage, the respondent has started giving
\ninsulting treatment to the mother of the petitioner so also to the other members
\nof the family. She had also started refusing to serve the food to the members of
\nthe family and the petitioner. She has also refused to cook the meal for the
\nfamily members and behaviour of the respondent was absolutely cruel over the
\npetitioner and other family members.<\/p>\n

quoted from page 98 of the Appeal Paper-Book.<\/p>\n

4. …She is leaving the house in the absence of the petitioner without
\nseeking any permission and returning in the evening time without giving her
\nwhereabouts. As and when the petitioner has tried to give understanding to the
\nrespondent, not to leave the house in such manner, it was her practice to give
\nvery insulting replies to the petitioner. She had developed the habit to raise
\nquarrel and leave the place of the petitioner in his absence with luggage and
\nshe is used to go to Murtizapur and stay there for weeks together….<\/p>\n

4. …One of the sisters of the respondent is residing at Amravati and
\ncontrolling all the affairs of the family and she was acting as a director. At
\nher instance, the respondent started giving abnormal behaviour towards the
\npetitioner and his family members, so much so that, it became very difficult for
\nthem to lead the peaceful life…<\/p>\n

4. …All the while the respondent used to create a scene by raising the
\nquarrel either with the petitioner or with the mother of petitioner so also with
\nother family members.<\/p>\n

quoted from pages 99 and 100 of the Appeal Paper-Book.<\/p>\n

5. …Even the sister of the respondent and her mother-in-law tried to give
\nunderstanding to the respondent but, the respondent was giving the replies in a
\nvery insulting manner. Due to the elder sister of the respondent, the respondent
\nhas made the life of the petitioner and other family members miserable. All the
\nwhile they have to carry tension relating to the attitude of the respondent.<\/p>\n

quoted from page 100 of the Appeal Paper-Book.<\/p>\n

6. …After two months of birth of the daughter she has raised the quarrel
\nwith the petitioner and gave him abuses in a very filthy words and in his
\nabsence when he was on duty, she left the house without obtaining the permission
\nwith luggage and daughter….<\/p>\n

6. …Thereafter with the mediation of the relatives the respondent came to
\nthe place of the petitioner for cohabitation. However, her rude behaviour was
\ncontinued. Her practice to leave the house, to raise the quarrel was continued,
\nand on making inquiry she used to raise the quarrel and was making the
\natmosphere of terror in the house….<\/p>\n

quoted from pages 100 and 101 of the Appeal Paper-Book.<\/p>\n

9. That, on or about 31.3.1996, the respondent again raised the quarrel
\nwith the petitioner and given threats to whole family and left the house in the
\nabsence of the petitioner by throwing the minor child in the house itself….<\/p>\n

quoted from page 101 of the Appeal Paper-Book.<\/p>\n

16. Above quoted allegations have been replied by the wife-respondent herein
\nin her written statement where she has denied the allegations. On the other
\nhand, she complained that she was mercilessly beaten, and husband even tried to
\npour kerosene on her person. She escaped with great effort. She is rendered
\ndestitute without any maintenance. According to her, all allegations are false.
\nShe claimed that she was ill-treated. She was not provided proper food,
\nclothing, and was often insulted. She always behaved nicely with the in-laws.
\nAccording to her, entire story pleaded by husband is cooked up.<\/p>\n

17. It is pertinent to note that in the oral evidence in the examination-in-
\nchief, two circumstances have emphatically been narrated, namely:<\/p>\n

(a) when the respondent-wife had gone to Murtizapur, appellant-petitioner
\nwent to fetch her back. At that time, appellant was insulted, and threatened
\nthat she would see that law, which favours the women would be put into motion
\nand he would be dealt with, further that she got her second pregnancy aborted
\nagainst his wishes.<\/p>\n

(b) On 26th and 28th November, 1996, his grand-mother was in coma. On those
\ndays, the wife came and squatted in Verandah from 8.00 to 10.00 a.m. On 28th
\nNovember, 1996, his grand-mother died. On 29th November, 1996, respondent
\nsquatted in the Verandah for full day. In the evening, some persons from her
\nparents’ side came and attempted to break the house. Neighbour, namely Madhvani,
\ntried to intervene when he was told not to interfere, as it was none of his
\nbusiness.<\/p>\n

The behaviour of the wife on 13th day, i.e. on 17th December, 1996 of
\ncoming to the place with police was not proper and that he was insulted.<\/p>\n

Further all that the appellant has stated in his evidence is that after 3-4
\nmonths of marriage, his wife used to quarrel with him. Even the respondent-wife
\ndisclosed him that she is not happy with marriage. She always mentally tortured
\npetitioner by threatening that law is in favour of woman and she will send him
\nto jail.<\/p>\n

18. The husband has then examined his father Bhaurao as PW 2, and Prakash
\nTulshiram Kale as PW 3. PW 4 Dr. Ashok Fokmare is also examined.<\/p>\n

From the evidence of remaining three witnesses, it can be seen that none of
\nthe witnesses have stated exactly which circumstances or facts resulted in
\ncausing agony to the husband.<\/p>\n

All the witnesses in their examination state that she (Sujata) used to
\nquarrel with husband and left home, but no one can clearly state reason of her
\nbehaviour.<\/p>\n

19. It is seen that none of these witnesses have stated exactly which
\ncircumstances or facts, i.e. the conduct of respondent-wife has resulted in
\ncausing so gross and serious trouble and mental agony to the husband,
\nconsequently disturbing normalcy of his life, so as to denote the respondent’s
\nconduct as mental cruelty.<\/p>\n

20. It is quite likely, rather may be true, that the wife is extremely
\nintrovert, or a woman of hyper-sensitive nature. She may be short tempered, or
\nuntrained to live in a big family, having background of good stature and
\netiquettes with which the family of husband is enriched.<\/p>\n

21. It is seen from averments contained in initial four paragraphs of Hindu
\nMarriage Petition where the husband has tried to narrate the background of his
\nfamily which refers to highly educational status and well-placed position of
\nmembers of his family and those related to him. It is quite likely that the
\ncultural discord between the family and upbringing of respondent-wife did not
\nmatch with the status and standard, social, cultural, etc. of the husband.
\nMismatch of personalities and friction that may occur on account thereof between
\nthe husband and wife is not essentially a cruelty.<\/p>\n

22. As far as factum of mental cruelty by wife to husband in the present case
\nis concerned, the appellant got himself delimited as to these matters within the
\nbounds of his pleadings in the petition. This Court has in detail referred to
\nthe averments. Crucial averments have been quoted in extenso in this judgment.
\nThe appellant had opportunity to amplify within legal bounds about all that he
\ncould embroider.<\/p>\n

What emerges from evidence led by the husband and his witnesses is that he
\neven did not try to prove as to how whatever is pleaded by him operates to him
\nas mental cruelty. Nothing has come on record which could be read as a proof of
\nthe fact that he suffered mental agony and trouble to such extent that it could
\nno more be endured and tolerated to enable continued co-habitation
\nnotwithstanding said acts of mental cruelty.<\/p>\n

23. It is well settled that cruelty is not a term which could be fitted into
\nspecified yardsticks. Some acts which are just routine or casual could be a
\ngrave act of cruelty to others. It would depend upon facts of a given case
\nwhether these acts were ‘cruel’ to the subject person, and such person has to
\nprove as to how he suffered due to said acts which were to him or her acts of
\nmental cruelty.<\/p>\n

24. Evidence received in the present case falls too scant to cloth the acts
\ncomplained against wife with the garment of cruelty.<\/p>\n

25. This Court finds that in view of the question formulated at the time of
\nadmission, it has become necessary to test as to whether just because it was
\navailable that the Appellate Court has taken a different view of the matter.<\/p>\n

26. It will be discourteous to say that the Appellate Court has taken a different view of the matter just because it was available. The Appellate Court has applied mind fully, and given reasons as to why he does not agree. The reasoning recorded by the Appellate Court as to why the conduct in question,does not amount to, or fit into idea or concept of cruelty is plausible, and cannot be faulted. The same, therefore, does not warrant interference.<\/p>\n

27. In the result, this Court finds that the Appeal has no merit.<\/p>\n

28. The Substantial Question of Law framed at the time of admission is answered against the appellant. Appeal is dismissed with costs.<\/p>\n","protected":false},"excerpt":{"rendered":"

Mumbai High Court Equivalent citations: 2007 (3) BomCR 841, I (2007) DMC 446 Bench: A Joshi Nitin Bhaurao Tidke vs Sujata on 29\/8\/2006 JUDGMENT A.H.…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[47,3258,89,90,301,3256,3257],"class_list":["post-846","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-498a","tag-a-joshi","tag-cruelty","tag-desertion","tag-hma","tag-nitin-bhaurao-tidke","tag-sujata"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/846","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=846"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/846\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=846"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=846"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=846"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}