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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FAM No. 97 of 2014
(Arising out of judgment dated 5.9.2014 in Case No. 30A/2011 of the learned 1st
Additional Principal Judge, Family Court, Raipur)
Judgment Reserved On : 11/10/2017
Judgment Delivered On : 29/01/2018
Prabir Kumar Das, son of late Shri Vinod Bihari Das, aged about
44 years, resident of Kailash Nagar, Plat No.26, Industrial Area,
Bhilai, District Durg (CG)
—- Appellant
Versus
Smt. Papiya Das, wife of Shri Prabir Kumar Das, resident of Shri
Madhavchandra Das, Laxmi Nagar, Near Gas Godown, Raipur
(CG), Present Address presently working as Assistant Grade I,
Government Girls Higher Secondary School, Rajim, District
Raipur (CG)
—- Respondent
For Appellant : Shri Sunil Otwani, Advocate.
For Respondent : Shri Shivendu Pandya, Advocate.
Hon’ble Shri Justice Prashant Kumar Mishra
Hon’ble Shri Justice Arvind Singh Chandel
C A V JUDGMENT
The following judgment of the Court was passed by Prashant Kumar
Mishra, J.
1. The appellant-husband would call in question the legality and
validity of the impugned judgment passed by the Family Court
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dismissing his application for grant of decree of divorce on the
ground of cruelty under Section 13 (1)(i-a) of the Hindu Marriage
Act, 1955 (for short ‘the Act’).
2. Facts of the case, briefly stated, are that the parties were married on
21.1.2002. Prayer for divorce is made on the pleadings that the
parties resided together for a period till 5 months prior to the date
of presentation of divorce petition. They have 2 daughters out of
their wedlock. The respondent was misbehaving with the appellant
and his family members soon after the marriage and is not willing
to reside with him. Instead, she wishes to reside in her parental
house as she is working as Shiksha Karmi. Because of her
insistence they resided at Rajim for about 4 years but yet her cruel
behaviour continued. During his absence in the house, the
respondent tried to assault/slap his mother by using obscene
language. When she was confronted with this incident, she started
misbehaving, quarrelling and abusing the appellant. Due to this
behaviour, the appellant came back to his ancestral house with his
mother. The respondent threatened to implicate the appellant in a
false case. She categorically and stoutly stated that she cannot live
with the appellant and wants to be separate.
3. The respondent defended the suit on pleading that the appellant
was indifferent towards her and both the daughters. He did not
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bear the expenses at the time of delivery of the daughters. The
appellant and his mother used to treat her well at the time of drawal
of monthly salary by her. She was made to commute from Raipur
to Rajim for about 3 years after the marriage. The appellant
refused to join her company on the pretext that he has to take care
of his mother and sisters. In para-10 of the written statement, she
has stated that she is ready to reside with the appellant at the place
of her posting. Since the appellant works at Raipur, it is not
possible for him to commute from Bhilai to Rajim. In additional
pleading, she has stated that her mother-in-law is a greedy woman,
because of which the marital dispute has occurred between the
parties. Her mother-in-law is also responsible for ruining the life
of her 2 daughters (appellant’s sisters) by separating them from
their parents in law. When the respondent refused to maintain the
children of the appellant’s sister, the entire dispute began. She also
alleges that her mother-in-law threw slippers on her. It is also
stated that her elder daughter is the student of KPS School, Raipur.
4. The trial Court has refused to grant decree on the ground that the
appellant has failed to prove commission of marital cruelty by the
respondent. Therefore, the only question for determination in this
appeal is whether in the state of evidence on record, the respondent
has committed marital cruelty on the appellant.
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5. Before proceeding to consider and appreciate the evidence to
record finding on the issue of cruelty, one way or the other, it
would be apt to refer to the principles laid down by the Supreme
Court and the illustrative instances where inference of mental
cruelty can be drawn.
6. In Samar Ghosh Vs. Jaya Ghosh1, the Supreme Court has
indicated illustrative cases where inference of mental cruelty can
be drawn. They are reproduced as under:-
“101. 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) 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
1 (2007) 4 SCC 511
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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) 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.
(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) If a husband submits himself for an operation of
sterilisation 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.
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(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.”
7. The Supreme Court in V. Bhagat v. D. Bhagat (Mrs.)2 held that
mental cruelty in Section 13(1)(i-a) can broadly be defined as that
conduct which inflicts upon the other party such mental pain and
suffering as would make it not possible for that party to live with
the other. In other words, mental cruelty must be of such a nature
that the parties cannot reasonably be expected to live together. The
situation must be such that the wronged party cannot reasonably be
asked to put up with such conduct and continue to live with the
other party. It is not necessary to prove that the mental cruelty is
such as to cause injury to the health of the petitioner. While
arriving at such conclusion, regard must be had to the social status,
educational level of the parties, the society they move in, the
possibility or otherwise of the parties ever living together in case
2 (1994) 1 SCC 337
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they are already living apart and all other relevant facts and
circumstances which it is neither possible nor desirable to set out
exhaustively. What is cruelty in one case may not amount to
cruelty in another case. It is a matter to be determined in each case
having regard to the facts and circumstances of that case. If it is a
case of accusations and allegations, regard must also be had to the
context in which they were made.
8. In Naveen Kohli v. Neelu Kohli3, the Supreme Court held that the
word “cruelty” has to be understood in the ordinary sense of the
term in matrimonial affairs. If the intention to harm, harass or hurt
could be inferred by the nature of the conduct or brutal act
complained of, cruelty could be easily established. But the absence
of intention should not make any difference in the case. There may
be instances of cruelty by unintentional but inexcusable conduct of
any party. The cruel treatment may also result from the cultural
conflict between the parties. Mental cruelty can be caused by a
party when the other spouse levels an allegation that the petitioner
is a mental patient, or that he requires expert psychological
treatment to restore his mental health, that he is suffering from
paranoid disorder and mental hallucinations, and to crown it all, to
allege that he and all the members of his family are a bunch of
lunatics. The allegation that members of the petitioner’s family are
3 (2006) 4 SCC 558
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lunatics and that a streak of insanity runs through his entire family
is also an act of mental cruelty.
9. In Narendra Vs. K. Meena4 the Supreme Court has held that if the
wife forces and exerts pressure on the husband to live separate
from his old aged parents or from the joint family without any
reasonable excuse/ground, the same would amount to cruelty. The
Supreme Court would observe thus in paragraphs 12, 13 14 :-
12. The respondent wife wanted the appellant to get
separated from his family. The evidence shows that
the family was virtually maintained from the
income of the appellant husband. It is not a
common practice or desirable culture for a Hindu
son in India to get separated from the parents upon
getting married at the instance of the wife,
especially when the son is the only earning member
in the family. A son, brought up and given
education by his parents, has a moral and legal
obligation to take care and maintain the parents,
when they become old and when they have either
no income or have a meagre income. In India,
generally people do not subscribe to the western
thought, where, upon getting married or attaining
majority, the son gets separated from the family. In
normal circumstances, a wife is expected to be with
the family of the husband after the marriage. She
becomes integral to and forms part of the family of
the husband and normally without any justifiable
strong reason, she would never insist that her
husband should get separated from the family and
live only with her.
13. In the instant case, upon appreciation of the
evidence, the trial court came to the conclusion that
merely for monetary considerations, the respondent
wife wanted to get her husband separated from his
4 (2016) 9 SCC 455
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family. The averment of the respondent was to the
effect that the income of the appellant was also
spent for maintaining his family. The said
grievance of the respondent is absolutely
unjustified. A son maintaining his parents is
absolutely normal in Indian culture and ethos.
There is no other reason for which the respondent
wanted the appellant to be separated from the
family–the sole reason was to enjoy the income of
the appellant. Unfortunately, the High Court
considered this to be a justifiable reason.
14. In the opinion of the High Court, the wife had a
legitimate expectation to see that the income of her
husband is used for her and not for the family
members of the respondent husband. We do not see
any reason to justify the said view of the High
Court. As stated hereinabove, in a Hindu society, it
is a pious obligation of the son to maintain the
parents. If a wife makes an attempt to deviate from
the normal practice and normal custom of the
society, she must have some justifiable reason for
that and in this case, we do not find any justifiable
reason, except monetary consideration of the
respondent wife. In our opinion, normally, no
husband would tolerate this and no son would like
to be separated from his old parents and other
family members, who are also dependent upon his
income. The persistent effort of the respondent wife
to constrain the appellant to be separated from the
family would be tortuous for the husband and in
our opinion, the trial court was right when it came
to the conclusion that this constitutes an act of
“cruelty”.”
10. We shall now discuss the evidence to cull out whether the
respondent has committed cruelty on the appellant.
11. While the appellant has examined himself as PW-1 and his mother
Shefali Das as PW-2, the respondent has examined herself as DW-
1. The appellant has reiterated the plaint allegations and has
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denied that his mother was torturing the respondent and has also
made categorical statement that he cannot live separate from his
mother nor is it possible to send her to old aged home (o`)kJe), as
suggested by the respondent at one point of time. He has also
denied that he does not take care of his daughters. The appellant’s
mother Shefali Das was aged about 65 years at the time of
recording of her statement in November, 2013. Therefore, her
present age would be about 68 years. She has denied that she has
ill-treated the respondent at any point of time.
12. As against the evidence of the appellant and his mother, the
respondent has admitted that she is not living with her husband
since after July, 2010. She also admits that the appellant is the
only son of his mother and that because of death of his father at an
early age, his mother has brought him up. She admits that during
the counseling, she has stated that she cannot live with the
appellant’s mother i.e. her mother-in-law. Significantly she admits
that at one point of time she was transferred from Rajim to Bhilai
but she did not join. She would explain that if she would have
stayed at Bhilai, she would been saddled with the responsibility of
maintaining twins of her Nanad, who were residing with her
mother-in-law at Bhilai. In any case, it can be inferred that she
wanted to stay at Rajim and not at Bhilai where the appellant
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resides with his mother. She also admits that she refused to stay at
Bhilai because even if they would have resided in a separate house,
the appellant would bring his mother at subsequent point of time
because the same has happened at Rajim. She admits that she has
never lodged any report against the husband or his mother for
commission of cruelty. In her written argument duly signed by her
and not by the counsel, which is available in the paper book, she
has stated in paras-8 9 that since the appellant cannot live
separate from his mother, it is possible that he may live with his
mother and the respondent lives with the daughters but decree of
divorce may not be granted. Similar averment has been made by
her in the application under Section 9 of the Guardian and Wards
Act, which has been filed by the appellant along with an
application under Order 41 Rule 27 of the CPC. The said
application is considered and allowed because the document is not
in dispute and would assist this Court in adjudicating the present
dispute. A perusal of the reply filed by the respondent in the said
proceedings under the Guardian and Wards Act would clearly
indicate that as per the respondent herself the appellant’s mother is
suffering from cardiac problem and his sisters are also residing,
therefore, he is more attached with mother and sisters rather than
the respondent/wife.
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13. Complete analysis of the statement of the respondent would clearly
discern that the respondent is not willing to reside with the
appellant/husband. She has also suggested that the mother-in-law
should be sent to old aged home or that the parties may reside
separate without obtaining divorce. The respondent appears to be
indifferent and casual towards matrimonial obligations and institute
of marriage itself which is sacrosanct and is required to be
honoured by both the parties. Insisting upon the husband to live
separate from his mother, who is aged about 68 years and is
suffering from cardiac problem is by itself a cruelty, as held by the
Supreme Court in Narendra (Supra), therefore, the Appeal
deserves to be allowed.
14. In the result, the Appeal is allowed and the impugned judgment is
set aside. The marriage solemnized between the parties on
21.1.2002 is dissolved by a decree of divorce.
15. The parties shall bear their own cost.
16. A decree be drawn accordingly.
Sd/- Sd/-
Judge Judge
(Prashant Kumar Mishra) (Arvind Singh Chandel)
Barve
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HEADLINES
Wife forcing the husband to get separated from his family which
includes his old aged ailing parents. Commission of mental cruelty by
the wife upon husband under Section 13 (1)(i-a) of the Hindu Marriage
Act, 1955 proved. Divorce allowed.