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Anil Kumar Jain vs Smt. Kalpana Jain on 1 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 34

Case :- FIRST APPEAL No. – 167 of 2012

Appellant :- Anil Kumar Jain

Respondent :- Smt. Kalpana Jain

Counsel for Appellant :- Swapnil Kumar

Counsel for Respondent :- S.K. Purwar

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

1. This appeal under Section 19 of the Family Courts Act, 1984 ( hereinafter referred to as Act of 1984) has been filed by the plaintiff (husband) assailing the judgment and decree dated 29.02.2012 passed by Principal Judge, Family Court, Agra in Divorce Petition No. 457 of 2004 whereby the suit of the plaintiff-appellant for divorce filed under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as Act of 1955) has been dismissed.

2. We have heard Sri Swapnil Kumar, Advocate for plaintiff-appellant and Sri S. K. Purwar, learned counsel for the defendant-respondent.

3. From record it transpires that initially marriage of the appellant Anil Kumar Jain was solemnized with Smt. Nishi Jain on 12.04.1991. From aforesaid wedlock, two daughters namely Gazal Jain and Geetika Jain were born. Unfortunately, Smt. Nishi Jain, wife of the appellant, died on 12.04.1991. Accordingly, plaintiff-appellant performed his second marriage with the defendant Smt. Kalpana Jain on 14.11.1994. The aforesaid marriage was solemnized in accordance with Hindu Rites and Customs. It is the case of the appellant that after almost more than nine years of marriage, the defendant-wife deserted the appellant on 25.05.2004 and went to her paternal home, without disclosing the grounds for leaving the matrimonial home. The appellant thereafter filed Marriage Petition No.457 of 2004 (Sri Anil Kumar Jain Vs. Smt. Kalpana Jain) before the Family Court, Agra, for a decree of divorce on the ground of cruelty.

4. At this stage, the defendant-wife filed Misc. Case No. 155 of 2005 under Section 9 of the Hindu Marriage Act i.e regarding Restitution of Conjugal Rights. At this very juncture, the defendant-wife also initiated proceedings before the Rajasthan State Commission for Women in which the plaintiff-husband appeared. On 28.12.2005 the plaintiff-husband specifically stated before the Rajasthan State Commission for Women that he shall not keep the defendant-wife with him.

5. While the aforesaid Marriage Petition was pending, the defendant-wife filed Case No. 146 of 2007 (Smt. Kalpana Jain Vs. Anil Kumar Jain) under Sections 12, Section18, Section19, Section20, Section22 and Section23 of the Protection of Women from SectionDomestic Violence Act, 2005. However, the aforesaid case came to be dismissed vide order dated 08.03.2010.

6. Ultimately, Misc. Case No. 155 of 2005 (Kalyani Jain Vs. Anil Kumar Jain) for Restitution of Conjugal Rights was decreed by the Family Court, Kota Rajasthan vide judgement and decree dated 16.03.2011. Against the aforesaid judgement and decree, the plaintiff-husband has preferred Civil Misc. Appeal No. 2088 of 2006 (Anil Kumar Jain Vs. Kalpana Jain) before the Rajasthan High Court and the same is said to be pending.

7. The Court Below by means of the judgement and decree dated 29.02.2014 has dismissed the divorce Suit filed by the plaintiff-husband. Thus, feeling aggrieved by the aforesaid judgement and decree the plaintiff-husband has now approached this Court by means of the present Family Court Appeal.

8. The plaintiff-appellant filed Marriage Petition No. 457 of 2004 (Anil Kumar Jain Vs. Smt. Kalpana Jain) on the ground of cruelty. As per the allegations made in the divorce petition, it was alleged by the plaintiff-husband that though the plaintiff had performed all the marriage obligations towards his wife but the wife has failed to reciprocate the same. It was further alleged that after marriage the defendant-wife resided substantially at her parental home and spend very short time with the plaintiff at his home in Agra. The defendant-wife used to frequently leave her matrimonial home and went to her parental home at Kota, Rajasthan. It was also alleged that while the defendant resided with the plaintiff at Agra, her conduct towards the plaintiff was always full of harassment and cruelty, which amounted to commission of physical and mental cruelty upon the plaintiff-husband by the defendant-wife. It was also alleged that the defendant has refused to perform the daily house hold job on account of which the plaintiff and his two daughters have been deprived of the benefit of home cooked food and therefore of necessity they have to eat outside which in turn has a bad effect upon the health of the plaintiff and his two daughters. The defendant-wife does not behave cordially with the two daughters of the plaintiff born from the wedlock with the first wife. The defendant indulges into scuffle and exchange of hot words with the two daughters resulting in immense mental pain to the plaintiff. It was also alleged that repeatedly the plaintiff requested the defendant to modify her behavior but no heed was paid by the defendant to the same. To the contrary out of sheer revenge the conduct of the defendant became more outrageous and non-cooperative. She not only exchanged hot words with the plaintiff but also indulged in fight with the plaintiff, which shows her wrath towards the plaintiff and also her outrageous character. It was also alleged that the defendant-wife has deprived the plaintiff of conjugal relationship and inspite of repeated request the defendant-wife has failed to discharge her marriage obligations. Lastly, it was alleged that the defendant-wife has left the house of the plaintiff on 26.05.2004 without disclosing any reason to the plaintiff-husband and since then she is residing with her parents at Kota, Rajasthan.

9. The divorce petition filed by the plaintiff-appellant was contested by the defendant-wife. Accordingly, the defendant-wife filed a written statement denying the allegations made in the divorce petition. The defendant-wife clearly admitted that at the time of marriage the plaintiff-husband had categorically disclosed that his first wife has expired. He also disclosed that from the first wife, there are two daughters, who live with their Mama or Bua. It is proper for up bringing of the two minor daughters that the plaintiff is remarrying. The defendant-wife further stated that right from 14.11.1994 upto 24.04.2004 when the plaintiff-appellant kept the defendant-wife, she duly discharged her obligations as wife and mother of the two minor daughters. She took every step for the proper up bringing of the two daughters and performed daily routine work with sincerity. The defendant-wife in discharge of her obligations as the mother of the two minor daughters even gave up her parental home and used to visit her parental home only during the summer vacations but alongwith the two minor daughters. She also travelled to Agra and Bombay alongwith the two daughters. For ten years, it is the defendant- wife, who looked after the two minor daughters and when they have become major, the plaintiff has turned dishonest and he as well as his two daughters have started committing cruelty upon the defendant-wife. It was also alleged that whenever the plaintiff-appellant went out of Agra in connection with his business, it was the defendant-wife who looked after them and discharged the obligations of not only the mother but also of the father. The defendant-wife had never misbehaved with the plaintiff-appellant or his two daughters nor even committed any cruelty upon them. Had it been so then the plaintiff would have certainly not kept the defendant with him for ten long years. The plaintiff would not have placed the responsibility of the two minor daughters upon the defendant in case her conduct was as alleged by the plaintiff. To the contrary, it is the plaintiff who has committed cruelty upon the defendant as she has been used as long as the two daughters were minors and thereafter, she has been sought to be abandoned by ousting her from her matrimonial home. It was further stated that as long as the defendant resided with the plaintiff at Mumbai or Agra, she satisfied every demand of the plaintiff and her conduct towards the plaintiff and his two daughters was both amicable and cordial. The defendant further stated that the plaintiff had concealed the factum of his getting the family planning operation done and therefore, the charge alleged against the defendant that the defendant has filed to discharge marriage obligations is wholly incorrect. Lastly, it was stated that the defendant wants to reside with the plaintiff and for that purpose, she had instituted proceedings under Section 9 of Hindu Marriage Act, which had been decreed vide judement and decree dated 16.03.2011. The defendant is still ready to reside with the plaintiff.

10. The Court below on the basis of the pleadings of the parties framed the following three issues for adjudication:

(I) Whether the conduct of the defendant-wife towards the plaintiff-husband is cruel or the conduct of the plaintiff-husband towards the defendant-wife is cruel? If yes, its effect.

(II) Whether the plaintiff is entitled to the decree of divorce?

(III) Whether the plaintiff is entitled to any other relief? If yes, then what.

11. After the aforesaid issues were framed, the parties went to trial. The plaintiff in order to prove his case adduced himself as P.W.-1, his daughter Gazal as P.W.-2 and one Raju Prakash Jain as P.W.-3. The plaintiff further filed some documentary evidence in support of his case, the detail of which are mentioned in paragraph 7 of the impugned judgement.

12. The defendant-wife in order to establish her defence adduced herself as D.W.-1 and one Anil Kumar Jain as D.W.-2. The defendant-wife also filed documentary evidence to establish the document set up by her, the same is detailed in paragraph 8 of the impugned judgement.

13. The Court below considered issue no.1 in the light of the pleadings raised by the parties and the oral and documentary evidence adduced by them. While considering the aforesaid issue, the Court below framed an ancillary question as to whether the defendant-wife has been ousted from her matrimonial home for sufficient reason or the defendant-wife has herself left the matrimonial home. Upon evaluation of the same the Court below concluded that the plaintiff-husband has failed to establish cruelty on the part of the defendant-wife against the plaintiff and secondly, the defendant-wife has been ousted from her matrimonial home without any sufficient reason. As such the suit for divorce filed by the plaintiff-appellant was dismissed.

14. Mr. Swapnil Kumar, the learned counsel for the plaintiff-appellant has assailed the impugned judgement on the ground that the Court below has committed a manifest error of law in deciding the issue no.1 against the plaintiff. It is the submission of the learned counsel for the plaintiff-appellant that the allegations made in the divorce petition stood proved by the testimony of D.W.-2, Gazal. As such, the plaintiff-appellant is clearly entitled to the decree of divorce on the ground of cruelty as prayed for. He thus submits that the judgement and decree passed by the Court below are liable to be set aside on the suit of the plaintiff-appellant for divorce be decreed throughout.

15. Mr. S. K. Purwar, the learned counsel for the defendant-wife has supported the impugned judgement. He has referred to the facts relating to the proceedings initiated before the Rajasthan State Commission for Women and the decree passed under Section 9 of the Hindu Marriage Act in favour of the defendant-wife. It has further been argued that the marriage of the plaintiff-appellant was solemnized with the defendant-wife on 14.11.1994 whereas the suit for divorce has been filed on 22.07.2004 i.e. after more than 9 years of marriage. It was then urged that at the time of marriage the two daughters of the plaintiff-appellant namely Gazal Jain and Geetika Jain, who were born out of the wedlock from the first wife Smt. Nishi Jain, were minors and looked after by the defendant-wife. This is established from the fact that there is no pleading in the divorce petition as to who looked after the minor daughters in case the defendant-wife was absent from her matrimonial home at Agra and the plaintiff-appellant frequently left Agra in connection with his business.

16. Thus, the only question which has cropped up for consideration before us is whether the plaintiff-appellant was able to prove the case of cruelty and Court below has committed any error in disbelieving the case of appellant or not.

17. Before proceeding to consider the aforesaid question, it shall be appropriate to reproduce Section 13 of the Act of 1955, which provides for the grounds of divorce.

” 13 Divorce. –(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party–

[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation.–In this clause,–

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) has, [***] been suffering from a virulent and incurable form of leprosy; or

(v) has, [***] been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; [***]

[ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

(viii) [***]

(ix) [***]

[(1-A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground–

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or [bestiality; or]

[(iii) that in a suit under Sectionsection 18 of the Hindu Adoptions and SectionMaintenance Act, 1956 (78 of 1956), or in a proceeding under Sectionsection 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding Sectionsection 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

[(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]

Explanation. –This clause applies whether the marriage was solemnised before or after the commencement of the SectionMarriage Laws (Amendment) Act, 1976 (68 of 1976).]

STATE AMENDMENT

Uttar Pradesh.– In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in Sectionsection 13–

(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following

“(1-a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or”, and

(ii) for clause (viii) (since repealed) substituted and deem always to have been so substituted for following.

” (viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and–

(a) a period of two years has elapsed since the passing of such decree, or

(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or”.”

18. Section 13 (i-a) of the Act of 1955 clearly provides that a decree of divorce can be granted in case after the solemnization of marriage, the petitioner has been treated with cruelty.

19. The term cruelty has been the subject matter of debate for long. A Division Bench of this Court in the case of Smt. Sarita Devi Vs. Sri Ashok Kumar Singh reported in 2018 (3) AWC 2328 has considered the question of cruelty in detail in paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 and 29:-

“16. SectionIn Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 Court considered the concept of cruelty and referring to Oxford Dictionary defines ‘cruelty’ as ‘the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’.

17. In Black’s Law Dictionary, 8th Edition, 2004, term “mental cruelty” has been defined as, “a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”

18. The concept of cruelty has been summarized in Halsbury’s Laws of England, Vol.13, 4th Edition Para 1269, as under:

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.”

19. In 24 American Jurisprudence 2d, the term “mental cruelty” has been defined as under:

“Mental Cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse. ”

20. One of the earliest decision considering “mental cruelty” we find is, SectionN.G. Dastane v. S. Dastane (1975) 2 SCC 326, wherein Court has said:

“The enquiry therefore has to be whether the conduct charges 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. ”

21. SectionIn Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan and Anr. (1981) 4 SCC 250 Court said that a concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

22. SectionIn Shobha Rani v. Madhukar Reddi, (1988) 1 SCC 105, Court observed that word ‘cruelty’ has not been defined in Act, 1955 but legislature, making it a ground for divorce under Section 13(1)(i)(a) of Act, 1955, has made it clear that conduct of party in treatment of other if amounts to cruelty actual, physical or mental or legal is a just reason for grant of divorce. Cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact about degree. If it is mental, the enquiry must begin as to the nature of cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of conduct and its effect on the complaining spouse. There may, however, be cases where conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, cruelty will be established if conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty.

23. SectionIn V. Bhagat v. D. Bhagat (Mrs.), (1994) 1 SCC 337 considering the concept of “mental cruelty” in the context of Section 13(1)(i)(a) of Act, 1984, Court said that it can be defined as conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with 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 other party. It is not necessary to prove that mental cruelty is such as to cause injury to the health of other party. While arriving at such conclusion, regard must be had to the social status, educational level of parties, the society they move in, the possibility or otherwise of the parties ever living together in case 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 thus has to be determined in each case having regard to the facts and circumstances of each case.

24. SectionIn Chetan Dass v. Kamla Devi, (2001) 4 SCC 250, Court observed that matrimonial matters relates to delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with spouse. The relationship has to conform to the social norms as well. There is no scope of applying the concept of “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce but it has to be considered in the backdrop of facts and circumstances of the case concerned.

25. SectionIn Savitri Pandey v. Prem Chandra Panadey, (2002) 2 SCC 73, Court held that mental cruelty is the conduct of other spouse which causes mental suffering or fear to matrimonial life of other. Cruelty postulates a treatment of party to marriage with such conduct as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious to live with other party. Cruelty has to be distinguished from ordinary wear and tear of family life.

27. SectionIn Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 Court held that complaints and reproaches, sometimes of ordinary nature, may not be termed as ‘cruelty’ but their continuance or persistence over a period of time may do so which would depends on the facts of each case and have to be considered carefully by the Court concerned.

29. SectionIn Samar Ghosh vs. Jaya Ghosh (supra) Court said that though no uniform standard can be laid down but there are some instances which may constitute mental cruelty and the same are illustrated as under:

“(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.

(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.”

20. With regard to mental cruelty reference be made to the judgement of the Apex Court in the case of A. Jaya Chandra Vs. Aneel Kaur, 2005 (2) SCC 22. The aforesaid judgement has also been considered by the Division Bench (supra) and the following has been observed in paragraph-26 of the judgement. The same is accordingly reproduced herein under.

“26. SectionIn A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, Court observed that conduct of spouse, if established, an inference can legitimately be drawn that treatment of spouse is such that it causes an apprehension in the mind of other spouse, about his or her mental welfare then this conduct amounts to cruelty. Court observed that when a petition for divorce on the ground of cruelty is considered, Court must bear in mind that the problems before it are those of human beings and psychological changes in a spouse’s conduct have to be borne in mind before disposing of petition for divorce. Before a conduct can be called cruelty, it must touch a certain pitch of severity. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty.”

21. In K. Srinivas Rao Vs. D.A. Deepa (2013) 5 SCC 226, while dealing with the instances of mental cruelty, the court opined that to the illustrations given in the case of Samar Ghosh (supra) certain other illustrations could be added. We think it seemly to reproduce the observations:

“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, in the facts of a case, amount to causing mental cruelty to the other spouse.”

22. With the aid of the meaning of the term “physical cruelty” and “mental cruelty” this Court has now to examine as to whether the plaintiff-appellant was able to establish the same before the Court below and the findings recorded by the Court below are illegal, perverse and erroneous or not.

23. From the perusal of the impugned judgement, we find that the Court below has disbelieved the case set up by the plaintiff-appellant by assigning cogent reasons. The Court below concluded that the conduct of the plaintiff-appellant towards the defendant-respondent is inhuman and the defendant-respondent has been ousted from her matrimonial home deliberately by the plaintiff-appellant. Therefore, the case set up in the divorce petition that the defendant-respondent has herself left her matrimonial home was disbelieved by the Court below as the same was found to be false. In arriving at the aforesaid finding the Court below relied upon the statement of the plaintiff-appellant himself given before the Rajasthan State Commission for Women on 28.12.2005 that the plaintiff-appellant shall not keep the defendant-wife with him. Apart from the above, the Court below drew an adverse inference against the plaintiff-appellant that inspite of the fact that a decree of restitution of conjugal rights has been granted in favour of the defendant-respondent on 16.03.2011, yet inspite of the same the plaintiff-appellant has not honoured the same. This again goes to prove that the defendan-wife had not deserted the plaintiff’ (husband) but that defendant-wife was ousted from her matrimonial home without any reason.

24. On the issue regarding the commission of physical and mental cruelty, the Court below concluded that the plaintiff-appellant has not given any specific instance of such act on the part of the defendant-respondent, which may constitute physical or mental cruelty. The plaintiff-appellant has only stated that physical and mental cruelty was exerted upon the plaintiff-appellant by the defendant-respondent by stating that the defendant-respondent refused to do house hold work and misbehaved with the two daughters of the plaintiff-appellant born from the first wife. The Court below concluded that this by itself does not amount to commission of cruelty by the defendant-respondent. As such the plaintiff-husband failed to established cruelty on the part of the defendant-wife.

25. With regard to the issue relating to the failure on the part of the defendant-respondent in not performing her marriage obligations, the Court below concluded that the plaintiff-appellant has not approached the Court with clean hands. The various evidences filed by the plaintiff-appellant himself clearly belies his case on the aforesaid issue and therefore, the said issue was decided against the plaintiff-appellant.

26. The Trial Court also considered the issue relating to the conduct of the defendant-respondent towards the two daughters of the plaintiff-appellant who were born from the first wife. After considering the entire pleadings and the evidence on record, the Court below concluded that the conduct of the defendant-respondent cannot be interpreted in such a manner that it has lead to the commission of physical and mental cruelty upon the plaintiff-appellant and his two daughters. To the contrary the conduct of deponent-respondent right from the date of her marriage up to the date of her ouster i.e. 25.05.2004 has been that of a pious and benevolent mother and for the welfare of the two daughters she has taken every step, which a woman of even ordinary prudence could take.

27. Mr. Swapnil Kumar, the learned counsel for the plaintiff-appellant has confined his submission that the issue of commission of cruelty by the defendant-respondent was fully established and therefore the judgement and decree passed by the Court below is liable to be set aside. According to the learned counsel for the plaintiff-appellant, the oral testimony of P.W.-2 Gazal Jain clearly proves the plaintiff’s case.

28. We have accordingly gone through the testimony of P.W.-2, Gazal Jain and find that the same is not worthy of reliance. P.W.-2 is neither a credible nor a reliable witness. Firstly, her statement is tutored as is reflected from the statement in chief itself. She herself states that the oral testimony is being given by her as per the advice of the advocate. Secondly, the deliberate omissions in her statement regarding the date of various occurrences referred to in her statement and also the absence of material facts which could substantiate her statement make her statement wholly doubtful. For the aforesaid reasons, the Court below disbelieved the testimony of P.W.-2 Gazal Jain. We do not find any illegality in the view taken by the Trial Court to discard the testimony of P.W.-2.

29. Mr. Swapnil Kumar, the learned counsel for the plaintiff-appellant could not place before us any such other material on the basis of which the view taken by the Court below in not accepting the oral testimony of P.W.-2 could be faulted with.

30. Accordingly, we hold that the Court below did not commit any illegality in disbelieving the testimony of P.W.-2 and rightly dismiss the suit of the plaintiff-appellant for divorce. No other point was pressed before us.

31. In view of the discussion made herein above, the appeal fails and is therefore liable to be dismissed. It is accordingly dismissed with costs.

Order Date :- 1.7.2019

YK

(Rajeev Misra, J.) (Sudhir Agarwal, J.)

 

 

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