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Lalit Joshi vs Smt.Girja on 2 September, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR

D.B. Civil Misc. Appeal No. 1900/2004

Lalit Joshi

—-Appellant
Versus
Smt.Girja

—-Respondent

For Appellant(s) : Mr.Tarun Joshi
Mr.Siddharth Joshi

For Respondent(s) : Dr.Nupur Bhati

HON’BLE THE CHIEF JUSTICE S. RAVINDRA BHAT
HON’BLE MR. JUSTICE DINESH MEHTA

Judgment

Reserved on 02/07/2019
Pronounced on 02/09/2019

Per Hon’ble Chief Justice

1. The appellant is aggrieved by a judgment and order of the Family

Court, Udaipur rejecting the appellant’s application under Section 13(1) (ia)

and (ib) of the SectionHindu Marriage Act, 1955 (hereafter “the Act”). The court held

that the appellant (hereafter “the husband”) was not entitled to divorce as he

failed to prove that the respondent (hereafter “the wife”) treated him with

cruelty or that she had deserted him.

2. The undisputed facts are that the appellant and the respondent were

married on 09.02.1989 at Badgaon according to Hindu customs and rites. A

girl was born on 11.01.1993 out of wedlock; she was named Ms. Mitu (who is

presently about 26 years of age). The marriage of the appellant and the

respondent/wife was not successful and hence, the appellant filed for divorce

on two counts, i.e. cruelty and that the wife had deserted him.

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3. The husband alleged that since the beginning of the marriage, the

respondent/wife used to pressurize him to separate from his joint family. The

appellant alleged that time and again, the respondent/wife used to quarrel with

him and his family members as he did not yield to her demand of leaving his

parents’ house. He alleged furthermore, that most of the time, the

respondent/wife used to live with her parents and that she and her family

members did not even inform him and his family about the birth of his

daughter, Mitu. The appellant and his family, on hearing the news, went to see

the new-born and convinced the respondent/wife to return to her matrimonial

home. The respondent/wife then lived with the appellant and his family from

11.04.1993 till 07.07.1993. It is alleged that even during this time, the wife

used to pressurize the appellant to move out of his parents’ house and live

separately. However, he again opposed this as he felt that better care could be

given to their daughter if they lived with the whole family. The appellant

alleges that the respondent/wife left for her parents’ house on 07.07.1993

without any reasonable cause and she continued to live there till May 1995.

4. The appellant also alleged that the respondent/wife did not return when

his father met with an accident on 18.04.1995 and she only came back on the

death of the appellant’s father on 04.05.1995. During this time, the appellant

alleges that the respondent/wife did not do any household chores and on top

of all of that, she used to beat up their young daughter. Again, after living at

her matrimonial home for one and a half months, the respondent/wife left for

her parents’ house and she continued to live there till April 1998, for almost

three years. The respondent/wife however came back on the appellant’s

insistence when his sister was getting married on 29.04.1998. However, due

to ongoing fights regarding various matters, the respondent/wife finally left

for her parents’ house on 17.05.1998 and did not come back. The main ground

on behalf of the appellant in his application for a decree of divorce was that

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the respondent/wife did not want to live with the family of the appellant and

wanted to live separately which came under the definition of cruelty.

5. The respondent/wife even filed a complaint against the appellant and

his family members under Sections 406, Section498(A), Section313, Section325 of the Indian Penal

Code, 1860. She had alleged in that complaint that she was beaten up and

booted out of the house on 17.05.1998. She had alleged that the appellant and

his family members had demanded dowry, had constantly beaten her up and

mentally and physically tortured her, which made her leave the house of the

appellant and his parents. She had alleged to being subjected to torture and

harassment, and that the torture had started when a daughter (Mitu) was born

to her and in fact, the appellant and his family had even forced her to secure

an abortion earlier. Even though the complaint was filed against the appellant

and his family members, however, six members of his family were dropped as

accused due to lack of any evidence against them.

6. The concerned criminal court had recorded evidence and conducted the

trial based on the complaint of the wife. After considering the materials and

the submissions, the court was of the opinion that the prosecution had not

presented enough evidence against the appellant and had failed to prove the

allegations beyond reasonable doubt. The court had further observed that

there were irregularities in the narrative of the wife and her parents. The court

was also wary of the fact that the wife refused to get her medical examination

despite levelling allegations, in her complaint that she was brutally beaten up

on 17.05.1998. It was further observed that PW1 and PW2 too did not support

the respondent/wife. Therefore, the court acquitted the appellant of all charges

and held that the prosecution had failed to prove the case of dowry

harassment, cruelty and abetment of suicide beyond reasonable doubt.

7. The respondent/wife resisted the divorce proceeding. In her reply to the

application for divorce, she stated that the appellant and his family members

used to constantly beat her up and torture her and that she had no other choice

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than to leave the house of the appellant. She alleged that the appellant and his

family had harassed her for giving birth to a girl and even did not come to see

the new-born for six months. She further alleged that the moment she gave

birth to a girl, the appellant and his family were unhappy as they wanted a

boy. She denied the husband’s allegation that she had ever demanded that he

should leave his parents and live separately with her and their daughter. She

further submitted in her reply, that since the beginning of her marriage to the

appellant, she suffered at the hands of her husband and his family members

for not bringing dowry and that on the fated day of 17.05.1998, the appellant

had mercilessly beaten her up and even tried to electrocute her. The

respondent averred that she had been sent to her parents’ house and that it was

never her choice to leave the house and desert the appellant. However, the

wife still maintained that she wants to be married to the appellant for her and

her daughter’s future.

8. After the pleadings were complete, the following issues were framed by

the Family Court:

“a. Had the behaviour of respondent towards the appellant been cruel
as described in the application?

b. Had respondent-wife Mrs. Girija, deserted appellant-Husband Mr.
Lalit Joshi for two year period continuously without any reasonable
cause, immediately before filing application?
c. Relief?”

9. The Family court rejected the appellant’s plea on both the grounds. The
appellant in support of his application for divorce had examined two
witnesses and the respondent/wife had examined five witnesses. Further, four
documents were exhibited by him and seven documents were exhibited by the
wife. After both the parties led evidence, the Family court was of the opinion
that the appellant had failed to prove his case and hence, he was not entitled
to a decree of divorce. On the ground of cruelty, the court was of the opinion
that merely asking the husband to live separately from his family did not
amount to cruelty. The court held that moreover, the appellant had also failed
to prove the charge of the respondent/wife creating pressure on him to do
something that he did not want to do. It was also observed that the

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respondent/wife had filed a case of dowry harassment against the appellant,
however, he was only acquitted because he was “given the benefit of the
doubt”.

10. On the second count of desertion (if the respondent/wife continuously
without any reasonable cause deserted the husband for a period of two years,
before the filing of the application for divorce), the family court was of the
opinion that the appellant failed to prove the same. He had only presented two
witnesses in his favour; one was the appellant himself (AW1) and the other
one was his brother, Omprakash (AW2). The family court held that the
appellant failed to prove the fact that the respondent/wife had been living at
her parents’ house continuously for two years through any strong or cogent
evidence. It was pointed out by the court that the respondent/wife had
contradicted the husband and had deposed that it was in fact the husband who
had left her in her parents’ house because she did not fulfil the demands for
more dowry and because she gave birth to a girl. Further, court held that
according to the Hindu customs and beliefs, the first delivery of most women
happens at their parents’ house and the appellant and his family members
never once went to bring her back after the daughter was born. In fact, it was
admitted by the appellant in his cross-examination that he never went to bring
back the respondent/wife from her parents’ house during the years 1995-1998
and never even tried to bring her back from 1998 till the present day. Hence,
the court concluded that it was the appellant who deserted her and not the
other way around.

11. The appellant’s main contention is that the family court failed to
appreciate the fact that the wife submitted several complaints against the
appellant. It is submitted that she wrote letters to the Chief Minister of
Rajasthan, cabinet ministers and also to the head of the department where he
worked. She even wrote to the District Administration and persuaded them to
not issue an appreciation certificate to the appellant on Independence Day.
The appellant further submits that in these complaints, the respondent-wife
levelled wild allegations against him and even a plain reading of the letters
would show that they were written by her to tarnish his image and to bring
him to social ridicule. Another argument by the appellant is that the wife
initiated criminal proceedings against him and his family members, due to
which he suffered mental agony for nearly two years. Besides the criminal

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complaint, she addressed several complaints to various authorities, urging his
department to take action against him.

12. It is submitted by the appellant that because of the constant fear and
apprehension of false complaints being filed against him, he suffered mentally
for years and this amounts to mental cruelty. He was constantly under fear of
disciplinary action being taken against him by his department. On 04.01.2001,
cognizance of one such complaint made by the wife was taken by the Chief
Minister of Rajasthan who referred the said matter to the District Collector
(Vigilance), City Udaipur. The collector referred the matter further to the
Additional District Magistrate, City Udaipur. The ADM, City Udaipur after
due enquiry, sent a letter dated 03.03.2001 and submitted a report to the
District Collector. The report of the ADM observed that there was no
substance in the complaint of the respondent-wife.

13. The second issue that the Family court did not decide in favour of the
appellant is that the respondent/wife in fact deserted the appellant and their
matrimonial home on 17.05.1998. The Family court held that it was the
appellant/husband who deserted his wife and daughter. The appellant argues
that the family court failed to appreciate the fact that the respondent/wife was
constantly making complaints against the appellant; criminal complaints and
complaints to various authorities. She tried to ruin his career and reputation,
so the question of the respondent residing with him did not arise. Further, the
Family court failed to appreciate that in the circumstance that she wanted to
reside with the appellant, she would not have resorted to such tactics to ruin
the reputation of the appellant and his family. The respondent was guilty of
deserting the appellant without any reasonable cause.

14. It was argued that it is not a secret that the appellant and the respondent
have been living separately since almost 22 years now. They have not been a
part of each other’s lives. During the hearing of this appeal, efforts were made
by this Court for reconciliation between the appellant and the respondent,
however, even the best efforts of the court failed. The matter was even
referred to mediation so that the parties could reach an amicable settlement,
that too was unsuccessful. That the daughter of the parties got married during
the pendency of this appeal is also an admitted fact.

15. It is argued on behalf of the wife, that a repetition of allegations of
cruelty or desertion does not ipso facto result in their proof. Underlining that
it was the unacceptable behaviour of the husband which compelled the wife to

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move out of the matrimonial home, it was submitted that the wife was
constrained to even initiate criminal proceedings. No doubt, the criminal
proceedings did not lead to the appellant’s conviction. That only meant that
the court was not satisfied that there existed proof beyond reasonable doubt
about allegations of cruel behaviour of the kind contemplated by Section
498A of the Indian Penal Code.

16. It was argued on behalf of the wife, that letters were written by her,
expressing willingness to return to the matrimonial home; nevertheless, the
appellant did not show any interest or initiative to take her back. It was argued
that the appellant never once showed any interest in the progress or welfare of
his daughter. It was submitted that contrary to the appellant’s pleading, he was
invited for the daughter’s wedding and even in the invitation card, his name
was printed as the bride’s father. In these circumstances, the findings recorded
by the trial court that the husband was disentitled to divorce on the ground of
cruelty or desertion, should be affirmed.

17. The relevant provisions of the SectionHindu Marriage Act, 1956 are extracted
below:

“Section 13 in SectionThe Hindu Marriage Act, 1955
13 Divorce.

(1) Any marriage solemnised, 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 solemnisation of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse; or
(ia) has, after the solemnisation of the marriage, treated the
petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less
than two years immediately preceding the presentation of the
petition; or
************ ********* ***********

18. The Supreme Court, in a series of judgments has explained what is
meant by cruelty as envisaged under the Act. SectionIn A. Jayachandra v. Aneel
Kaur, (2005) 2 SCC 22 it was observed as follows:

“12. To constitute cruelty, the conduct complained of should be
“grave and weighty” so as to come to the conclusion that the
petitioner spouse cannot be reasonably expected to live with the
other spouse. It must be something more serious than “ordinary
wear and tear of married life”. The conduct, taking into
consideration the circumstances and background has to be

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examined to reach the conclusion whether the conduct
complained of amounts to cruelty in the matrimonial law.
Conduct has to be considered, as noted above, in the background
of several factors such as social status of parties, their
education, physical and mental conditions, customs and
traditions. It is difficult to lay down a precise definition or to
give exhaustive description of the circumstances, which would
constitute cruelty. It must be of the type as to satisfy the
conscience of the court that the relationship between the
parties had deteriorated to such an extent due to the conduct of
the other spouse that it would be impossible for them to live
together without mental agony, torture or distress, to entitle the
complaining spouse to secure divorce. Physical violence is not
absolutely essential to constitute cruelty and a consistent course
of conduct inflicting immeasurable mental agony and torture
may well constitute cruelty within the meaning of Section 10 of
the Act. Mental cruelty may consist of verbal abuses and insults
by using filthy and abusive language leading to constant
disturbance of mental peace of the other party.”

(emphasis supplied)

19. SectionIn Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 the court held that
“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 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.

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(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.

(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.”

(emphasis supplied)

20. In the present case, the appellant and the respondent have lived
separately since almost 22 years. There has absolutely been no cohabitation.

The record shows that the respondent/wife repeatedly addressed complaints
against the husband to various authorities alleging ill-treatment and abuse at
his hands. Furthermore, the Chief Minister of Rajasthan even directed the
ADM, City Udaipur to conduct an enquiry into the matter at hand, further
humiliating the appellant. The respondent/wife further wrote a letter to the
government asking them to not confer an appreciation certificate to him for
excellence at his work place.

21. The letter dated 03.03.2006 (which was brought on record) of the
ADM, Udaipur to the District Collector even observed that-

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“Respondent had also mentioned in her letter that the award
given to the appellant on 15 August 1999 should be abrogated.
In this context observation of the letters reflects that Appellant is
posted as Jr. Engineer in the Water Department and due to his
appreciable work he was recommended by Head of the water
department, on which he was selected by the district level
committee and then Appellant Mr. Lalit Joshi was honoured on
15 August 1999. This was right. Following complaint is
presented on the estrangement between Respondent and
Appellant which is baseless. So the report is presented for
information.”

22. Clearly therefore, the allegations levelled by the respondent/wife were
found to be absolutely baseless and false. In one of these letters dated
04.10.2002 written to Dr. Girija Vyas (Member of Parliament), the
respondent/wife had also asked her to help in the marriage by intervening.
This letter, in the opinion of this court, appears like an afterthought. The
respondent/wife alleged harassment and torture by the appellant and his
family, which culminated into a criminal complaint. The judgment dated
25.08.2000 acquitted him. It is not for this Court to comment or deconstruct
the judgment given by the trial court in the complaint lodged by the
respondent/wife. It is clear to the court that the appellant was acquitted due to
lack of credible evidence.

23. In the context of matrimonial cases, the Supreme Court in A.
Jayachandra (supra) held that “the concept, proof beyond the shadow of
doubt, is to be applied to criminal trials and not to civil matters and certainly
not to matters of such delicate personal relationship as those of husband and
wife. Therefore, one has to see what are the probabilities in a case and legal
cruelty has to be found out, not merely as a matter of fact, but as the effect on
the mind of the complainant spouse because of the acts or omissions of the
other. Cruelty may be physical or corporeal or may be mental. In physical
cruelty, there can be tangible and direct evidence, but in the case of mental
cruelty there may not at the same time be direct evidence. In cases where
there is no direct evidence, courts are required to probe into the mental
process and mental effect of incidents that are brought out in evidence. It is in
this view that one has to consider the evidence in matrimonial disputes.”

24. What is to be seen and examined by this court, therefore is whether the
conduct of the respondent/wife amounted to ‘mental cruelty’. We find the
answer to this question in the affirmative. The main intention of the
respondent/wife behind writing letters to the Chief Minister and the

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government appears to be to malign the appellant-husband’s name and
humiliate him.

25. Marriage, like every other human relationship- and perhaps more so,
than others- is based on mutual trust, confidence and mutual respect. While
differences may exist: oftentimes serious ones, as long as respect for each
other remains, the marital bond will survive. However, if one spouse indulges
in conduct which tends to undermine their confidence in the other, or
undermine respect for the other- in the eyes of the world, the marriage bond
would weaken. The appellant deposed that he has been in agony and under
constant apprehension that he would be proceeded against departmentally,
ultimately losing his government job due to the wife’s complaints. That the
appellant was excelling in his employment is clear from the certificate
conferred on him by the State Government. The wife time and again attacked
the character of the appellant, disrupting his life and job, while continuing to
live separately.

26. This court notices that the independent witness, who deposed at the
behest of the wife (i.e. Tara NAW 2) stated that she was a tenant of the
respondent- wife’s father, who knew her for over 15 years. In her examination
in chief, she deposed that the wife had narrated about her physical torture and
her return to the natal home. However, she admitted that the husband had
never quarrelled or demanded dowry from the wife or her family members, in
her presence. Apart from her deposition, the spouses deposed to their partisan
version of the matter.

27. Significantly, however, the wife made some important admissions in
her deposition. She stated, about the complaints made to authorities that:

“I had written XGA.2 and 3 letters to M.P. Girija Vyas. I had also
written letter XGA.3 to the chairman of our Audichiya society. I had
written letters against the petitioner, to other people also and
demanded justice. I had never complained about Lalit. I had written to
the collector about this matter. There was an investigation on my
complaint against Lalit. Lalit is a government servant. Lalit was
commended for his work on 15 August, against which I had
complained. In response the to the complaint, an order XGA 4 was
issued, based on the report of inquiry by the Additional District
Magistrate.”

28. In Chetan Dass v Kamla Devi (2001) 4 SCC 250, the Supreme Court
held as follows:

“Matrimonial matters are matters of delicate human and emotional
relationship. It demands mutual trust, regard, respect, love and
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affection with sufficient play for reasonable adjustments with the
spouse. The relationship has to conform to the social norms as well..”

29. This court notices that the wife, in her deposition stated her willingness
to return to the matrimonial home. However, the statement ipso facto is in
conflict with her conduct. She did not depose why, after the exoneration of the
husband, in the criminal case, she did not return to him; nor did she state what
impelled her to level false complaints which tended to humiliate him. This
conduct also establishes that she deliberately kept herself away from the
husband’s company: it amounts to desertion.

30. Mental cruelty was explained in Praveen Mehta v Inderjit Mehta
(2002) 5 SCC 706 in the following terms:

“Cruelty for the purpose of Section 13 (1) (ia) is to be taken as a
behaviour by one spouse towards the other, which causes reasonable
apprehension in the mind of the latter that it is not safe for him or her
to continue the matrimonial relationship with the other. Mental cruelty
is a state of mind and feeling with one of the spouses due to the
behaviour or behavioural pattern by the other. Unlike the case of
physical cruelty, mental cruelty is difficult to establish by direct
evidence. It is necessarily a matter of inference to be drawn from the
facts and circumstances of the case. A feeling of anguish,
disappointment and frustration in one spouse caused by the conduct of
the other can only be appreciated on assessing the attending facts and
circumstances in which the two partners of matrimonial life have been
living. The inference has to be drawn from the attending facts and
circumstances taken cumulatively. In case of mental cruelty it will not
be a correct approach to take an instance of misbehaviour in isolation
and then pose the question whether such behaviour is sufficient by
itself to cause mental cruelty. The approach should be to take the
cumulative effect of the facts and circumstances emerging from the
evidence on record and then draw a fair inference whether the
petitioner in the divorce petition has been subjected to mental cruelty
due to conduct of the other.”

31. In Savitri Pandey v Prem Chandra Pandey (2002) 2 SCC 73 again, it was
iterated that:

“Mental cruelty is the conduct of other spouse which causes mental
suffering or fear to the matrimonial life of the other. “Cruelty”,
therefore, postulates a treatment of the petitioner with such cruelty as
to cause a reasonable apprehension in his or her mind that it would be
harmful or injurious for the petitioner to live with the other party.

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Cruelty, however, has to be distinguished from the ordinary wear and
tear of family life. It cannot be decided on the basis of the sensitivity of
the petitioner and has to be adjudged on the basis of the course of
conduct which would, in general, be dangerous for a spouse to live
with the other.”

32. In Gananath Pattnaik v State of Orissa (2002) 2 SCC 619 it was
observed as follows:

“The concept of cruelty and its effect varies from individual to
individual, also depending upon the social and economic status to
which such person belongs. “Cruelty” for the purposes of constituting
the offence under the aforesaid section need not be physical. Even
mental torture or abnormal behaviour may amount to cruelty and
harassment in a given case.”

33. In the present case, it is also a fact that many years- i.e. more than two
decades have elapsed since the spouses parted company. A. Jayachandra
(supra) had observed that for conduct to be called cruelty, it may be trifling,
but what is crucial is the seriousness or gravity and its capacity to cause
mental agony to the other spouse: “insignificant or trifling, such conduct
may cause pain in the mind of another. But before the conduct can be called
cruelty, it must touch a certain pitch of severity. It is for the Court to weigh
the gravity. It has to be seen whether the conduct was such that no
reasonable person would tolerate it.”

34. In Vinita Saxena v Pankaj Pandit (2006) 3 SCC 778 the Supreme Court
held that:

“As to what constitutes the required mental cruelty for the purposes of
the said provision, will not depend upon the numerical count of such
incidents or only on the continuous course of such conduct but really
go by the intensity, gravity and stigmatic impact of it when meted out
even once and the deleterious effect of it on the mental attitude,
necessary for maintaining a conducive matrimonial home.

If the taunts, complaints and reproaches are of ordinary nature only,
the court perhaps need consider the further question as to whether
their continuance or persistence over a period of time render, what
normally would, otherwise, not be so serious an act to be so injurious

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and painful as to make the spouse charged with them genuinely and
reasonably conclude that the maintenance of matrimonial home is not
possible any longer.”

35. In the opinion of this court, the wife’s repeated attempts to malign and
injure the reputation and lower the respect of the appellant, in the eyes of his
co-workers, and her persistent attempts to injure his career, through
complaints to members of Parliament, and his superior officers, led even to an
inquiry. In that proceeding, the appellant was exonerated. She even tried to
obstruct the awarding of commendation which the government issued to him
for his good work. These no doubt had a deleterious effect in the appellant’s
mind; he, not unreasonably complains having remained apprehensive: in the
shadow of fear of losing his employment. Such complaints and public
inquiries would not only result in humiliation but tend to lower the respect
that the appellant had with others in the community. These acts cannot but be
characterised as cruelty.

36. Forcing the appellant to live with the respondent would, in these
circumstances, amount to cruelty. The appeal was filed in the year 2004, and
since then, the road has been a long and winding one. There seems to be
absolutely no chance that the marriage can be saved. The appellant and
respondent have been living separately for the past 22 years, and the marriage
is a mere fiction: a hollow shell. In the meanwhile, the respondent/wife has
levelled complaints against the appellant, which has led to the appellant
fearing for his reputation and job and in some instances, he was severely
humiliated by her as well.

37. A.P. Herbert in The Holy Deadlock mused about bad marriages and
how the law did not facilitate an exit to the same and wrote that- ‘A bad
bargain that must be stuck to as long as life lasted. Was there any other
lifelong bargain in which a mistake was irrevocable, from which the law
provided no honourable escape at all?’ There is no point in flogging a dead
horse. The sanctity of a marriage can be protected when the marriage exists,
however, this marriage has been over since a long time, primarily on account
of the cruel behaviour of the respondent /wife.

38. For the above reasons, this court holds that the decree of divorce should
be granted to the appellant, both on the count of cruelty and desertion,
because of the respondent’s wilful behaviour. The respondent is entitled to
move for alimony, separately in proceedings under the SectionHindu Marriage Act;

(Downloaded on 02/09/2019 at 08:52:36 PM)

(15 of 15) [CMA-1900/2004]

in the event an application is filed the same shall be disposed of by the
competent court within six months of presentation. The appeal is
consequently allowed in these terms; the marriage between the parties hereby
stands dissolved.

(DINESH MEHTA),J (S. RAVINDRA BHAT),CJ

Parmar/-

(Downloaded on 02/09/2019 at 08:52:36 PM)

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