HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 2845/2018
Neha Tyagi wife of Lieutenant Colonel Deepak Tyagi, Daughter of
Shri Vinod Kumar Tyagi, Resident of House No. 4, Kalyan Nagar-
II, Sita Bari, Tonk Road, Jaipur (Rajasthan)
—-Appellant-Non Petitioner-Wife
Versus
Lieutenant Colonel Deepak Tyagi Son of Shri Virendra Singh
Tyagi, Resident of House No. 157-D, Green Heights, A to Z
Colony, Modi Puram, Meerut (U.P.), at present posted at 66,
Engineer Regiment Care of 56 A.P.O.
—-Respondent-Petitioner- Husband
For Appellant(s) : Shri Rajendra Prasad, Senior Counsel
assisted by Shri A.S. Shekhawat
Mst. Neha Tyagi, appellant in person.
For Respondent(s) : Shri Manoj Kumar Bhardwaj
Shri Vivek Sharma
Lt. Col. Deepak Tyagi, resp. in person.
HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Order
REPORTABLE
Order reserved on 28/08/2019
Order pronounced on 18/09/2019
BY THE COURT : (PER HON’BLE DHADDHA,J.)
1. Respondent Lt. Col. Deepak Tyagi had presented an
application for divorce on 25.11.2014 against his wife Neha Tyagi
before the learned District Sessions Judge, Jalandhar from
where, the matter was transferred to the learned Family Court
No.1, Jaipur by the direction of the Supreme Court for disposal
according to law.
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2. This appeal has been preferred by the appellant wife
against the order of the learned Family Court No.2, Jaipur passed
on 19.5.2018 whereby the learned Family Court allowed the
matrimonial Civil Case No.1496/2016 NCV No.482/2016 filed u/s
13 of the SectionHindu Marriage Act, 1955 (for short “the Act”) dissolving
the marriage solemnized between them on 16.11.2005 with effect
from the date of order i.e. 19.5.2018.
3. Brief facts giving rise to this appeal are that the
marriage of the appellant was solemnized with respondent on
16.11.2005 as per Hindu rites and customs without any demand
of cash or dowry. The spouses lived one week at Kolkata where
they consumed the married life. The spouses were blessed with
male child Parnav Tyagi on 23.2.2008. The behaviour of the
appellant was very cruel towards respondent and his family
members. The appellant used to insult them. She refused to care
them and frequently used to go her native place. The appellant
had left the company of respondent in the month of May, 2011
along with her minor son with understanding to join the company
of respondent within ten days, but she did not return back. The
respondent himself visited Jaipur and requested on several
occasions i.e. in September, 2011, December, 2011 and January,
2012 but the appellant did not join him. The appellant had
attacked the employment of the respondent by filing frivolous
complaints to his superiors.
4. In reply, the appellant denied the allegations levelled by
the respondent in the petition and stated that the grounds for
cruelty and desertion were baseless and frivolous. At the time of
ring ceremony, the respondent and his parents pressurized her
father for cash. On their sudden demand, a demand draft of
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Rs.4,00,000/- was given. The appellant never misbehaved the
respondent and his family members. In the moths of July and
August, 2007 while she was pregnant living with her husband at
Shilong, respondent did not care her and also not consult the
doctor. He wanted represent himself as unmarried man. In June
2009, she joined the matrimonial home at Jalandhar with the hope
to save her married life but behaviour of the respondent
remained the same. He used to torture her. In the year 2011, the
appellant remembered that on the occasion of first birth day of
their child, respondent had taken leave and visited Mumbai, Pune
and Goa with another woman. He had illicit relation with that
woman. He had taken Insurance Policy through agent Evangeline.
In February, 2009 the respondent visited Mumbai and Pune along
with Evangeline on tour package. The respondent also transferred
money from his account to the account of Evangeline. On
25.5.2011, the respondent had thrown out the appellant from his
house with the warning that if she wanted to enter into his house,
her father’s property should have to transfer in his name.
5. From the pleadings, the learned Family Court framed
issues :
“(1) Whether respondent – wife after solemnization
of marriage on 16.11.2005 treated petitioner –
husband with cruelty ?
(2) Whether the respondent – wife has without any
reasonable cause, deserted the petitioner husband
continuously for more than two years ?
(3) Relief ?”
6. Respondent Lt. Col. Deepak Tyagi examined himself as
AW-1 and his father Shri Virendra Singh Tyagi as AW-2. He
exhibited 15 documents.
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7. The appellant Neha Tyagi examined as NAW-1 and her
father Shri Vinod Kumar Tyagi as NAW-2. She exhibited A-1 to Ex.
A-15.
8. After hearing the learned counsel for the parties, the
learned Family Court decided all the Issues in favour of the
respondent and against the appellant.
9. Shri Rajendra Prasad, learned Senior Counsel for the
appellant submitted that the impugned judgment and decree
dated 19.5.2018 is ex-facie illegal, arbitrary and against the
provisions of law. He submitted that the facts narrated in the
divorce petition regarding cruelty and desertion are baseless and
frivolous. Learned counsel for the appellant submitted that the
respondent in his petition stated that appellant used to torture his
parents, misbehaved him and insulted his parents. But the learned
Family Court in its finding had categorically stated that the
respondent had failed to prove the entire allegations of cruelty
levelled in Paras-5 to 9 of the divorce petition. Learned counsel for
the appellant submitted that the appellant never misbehaved her
in-laws. But she was insulted, humiliated and tortured by them
severally. Learned counsel for the appellant submitted that in the
month of July-August, 2007 when she was pregnant and living
with her husband at Shilong, during this period the respondent
had not cared her. He did not take her to the doctor for necessary
medical examinations because he wanted to present himself as
unmarried man. He had relationship with other girls. The appellant
had broken mentally when she came to know that her husband
had illicit relation with other woman. Respondent represented
himself as unmarried man which was evident from insurance
policy taken by him as Ex. A-1 in which he had declared himself as
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single. Learned Family Court completely ignored this fact. In the
insurance policy, instead of nominating appellant as nominee, he
had nominated his father as nominee which indicate that he
intentionally wanted to show his status as unmarried.
10. Learned Senior Counsel for the appellant submitted
that the respondent had illegal relation with Miss Evangeline
Wahlang from whom he had purchased insurance policy.
Appellant had seen her e-mail on laptop of respondent in which
she was demanding huge money from the respondent.
Respondent had transferred Rs.50,000/- two times. For this, the
appellant had exhibited respondent’s bank account as Ex. A-2 and
Miss Evangeline’s bank account as Ex. A-3. Respondent had not
given any explanation regarding transfer of this amount in the
account of Miss Evangeline. If he had purchased insurance policy
from her, he should have transferred the amount to the insurance
company not personal account of Miss Evangeline Wahlang.
11. Learned Senior Counsel for the appellant submitted
that the factor of infidelity was considered against the appellant
because in her cross examination she admitted that she had not
furnished any documentary evidence regarding infidelity. Learned
counsel for the appellant submitted that no one in this world
accept infidelity in writing. Inference of infidelity could be proved
only by circumstantial evidence. In the present case for adulterous
relationship of husband, the appellant had produced ample
evidence in the learned Family Court but the learned Family Court
had not appreciated this fact in right perspective. The learned
counsel for the appellant submitted that in February, 2009
respondent visited Mumbai and Pune along with Miss Evangeline
on tour package. He had transferred money from his ICICI Bank
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account to the account of Evangeline. During this trip, they stayed
in Pune CME and later went to Goa. Tour expenses were paid from
salary account of respondent. He also withdrew money from ATM
in Goa. He had not explained as to why he booked ticket with Miss
Evangeline. He also stayed in Army Guest House. For this, he used
the room of married person. Learned counsel for the appellant
also submitted that during counseling, respondent had clearly
stated that he did not have such relation. From a bare reading of
Ex. A-10, it became clear that he had relation with another woman
prior to counseling.
12. Shri Rajendra Prasad, learned Senior Counsel for the
appellant submitted that the fact of plural marriage was discarded
on the premise that the lady was not found. As per report of
Shilong Police Station and Meerut Police Station, the inquiry was
closed because address of that lady was not found. If the inquiry
was closed due to lack of evidence then inference could not be
drawn that allegation of plural marriage was false. Learned
counsel for the appellant submitted that at the time of ring
ceremony, respondent had pressurized her father for cash. On
their demand, Rs.4,00,000/- was given by demand draft. The
respondent and his parents pressurized her to do job so that she
could fulfill their demand. The respondent did not bear the
expenses incurred in delivery. He had not come to celebrate first
birthday of their child. In June, 2009 the appellant joined her
matrimonial house at Jalandhar, but his behaviour remained same.
On 25.5.2011, the respondent threw her out from the house with
warning that if she wanted to live with him, she had to transfer
her father’s property in his name. For cruelty regarding dowry,
the appellant had lodged an FIR No.160/2016 against the
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respondent and his family members u/s 498A and 406 SectionIPC. After
investigation, chargesheet was filed against them and trial was
going on. The learned Family Court discarded the factum of
chargesheet on the premise that from evidence cruelty was not
proved.
13. The maintenance had been granted to the appellant by
Aastha Cell considering the cruelty on the part of the respondent.
As per army rules, the maintenance could have been granted
when it was found by the authorities that the army person had
done cruelty with wife.
14. Learned Senior Counsel further submitted that the
learned Family Court while assessing the factum of mental cruelty,
wrongly placed reliance on Ex.-13 and 14, the complaints made by
the appellant. Mere filing, complaint could not constitute mental
cruelty specially when such complaint was under adjudication. The
appellant had not been given any opportunity of hearing by the
army authorities before passing order exonerating the respondent
from allegations levelled by her.
15. The appellant wanted to live with the respondent. She
had gone along with her father and uncle to the respondent’s
house but they did not allow her. The learned counsel for the
appellant also submitted that apart from the above submissions,
future of Master Pranav Tyagi is to be considered who has no fault.
16. Learned counsel for the appellant in support of his
arguments placed reliance on the following judgments –
(A) Anuradha Ghosh Moulick Vs. Subir Krishna
Ghosh Moulick, (2008) ILR 1 Cal 411,(B) Mandeep Kaur Vs. Sukh Dev Singh, AIR 2006
Himachal Pradesh 97,(Downloaded on 23/09/2019 at 09:14:26 PM)
(8 of 23) [CMA-2845/2018](C) Raj Talreja v/s Kavita Talreja, (2017) 14 SCC
194,(D) Mithilesh Shrivastava v/s Smt. Kiran
Shrivastava, AIR 2012 Chhattisgarh 21,(E) Mrs. Deeplakshmi Sachin Zingade v/s Sachin
Rameshrao Zingade, AIR 2010 Bombay 16.
17. Shri Manoj Kumar Bhardwaj, learned counsel for the
respondent submitted that behaviour of the appellant had always
been quarrelsome and cruel. She left the matrimonial home at her
own will. She had gone to her father’s house with permission to
return within ten days, but she did not return. She lodged false
complaints to the army authorities and later on in the office of
Prime Minister and Defence Minister against the respondent.
18. Learned counsel for the respondent submitted that the
appellant had made false complaints against the respondent as
Ex.5, Ex.6, Ex.8, Ex.10, Ex.13 and Ex.14 in which she stated that
the respondent had illicit relations with several girls and also done
plural marriage. In complaint Ex.5 dated 3.7.2012, she stated that
the character of the respondent was immoral and irresponsible. In
complaint Ex.6 dated 22.4.2012, she stated that the respondent
was dangerous for Defence and Nation. His integrity was doubtful.
In complaint Ex.8 dated 1.5.2012, she repeated the allegations
levelled in Ex.6 and also stated that the respondent was having
extra marital affairs and he was a threat to Defence. He was
holding sensitive position in GE and his integrity might be doubtful
for the Nation. In complaint Ex.10 dated 29.9.2014, the appellant
stated that the respondent was suffering from infidelity. For this,
she gave phone numbers of several girls to whom the respondent
had illicit relations. She also stated that the respondent had
earned so much that nobody could do anything against him and
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he would leave army as soon as possible. In para -14, she also
stated that he was involved in a bigger racket of a possible honey
trap.
19. Learned counsel for the respondent submitted that on
these complaints, the respondents was subjected to Army Enquiry
and in this bid, the Army Authorities had written letters to the
S.S.P – Meerut Police, DSWO – Shilong, S.S.P – Shilong, and also
S.P.-Jaipur whereby inquiry was conducted with regard to
character of respondent as well as the plural marriage. In inquiry
report nothing proved against respondent and the Army
Authorities closed down the complaints vide orders Ex.11 and 12.
Thereafter, the appellant again sent reminders – Ex.13 and 14 with
the same allegations. The appellant lodged a false report u/s 498A
and 406 SectionIPC against the respondent and his family members.
20. Learned counsel for the respondent submitted that in
May, 2011 the appellant wanted to go Jaipur so he had made
ticket for her and she left the respondent’s house on 25.5.2011
with promise to return within ten days. After that, she had not
come. Respondent had gone to Jaipur in September; 2011,
December; 2011 and January; 2012 and requested her to come
with him, but all efforts were failed. The appellant in her cross
examination admitted that the respondent had come on these
days. Counsel for the respondent submitted that in counseling
before Aastha Cell, the appellant had declined to live with him and
she was desired to take maintenance and wanted to live in Jaipur.
21. Learned counsel for the respondent submitted that the
respondent had not shown him as unmarried person. After
marriage, he had declared him as a married person. For these, he
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had produced documents Ex.1 and 2 issued by the Army
Authorities in which his marriage was registered.
22. Learned counsel for the respondent in support of his
arguments placed reliance on the following judgments –
(A) Union of India Vs. Ibrahim Uddin and Another,
(2012) 8 SCC 148,
(B) Raj Talreja Vs. Kavita Talreja, (2017) 14 scc
194,
(C) Smt. Aruna Jalan Vs. Capt. (now Major) Ramesh
Chand Jala, AIR 1988 Allahabad 239,
(D) K. Srinivas Rao Vs. D. A. Deepa, AIR 2013 SC
2176,
(E) Smt. Savita Vs. Pankaj Meel, 2018(2) WLC (Raj.)
UC 692,
(F) Vishwanath Agarwal s/o Sitaram Agarwal Vs.
Sarla Vishwanath Agarwal, (2012) 7 SCC 288.
23. We have given our thoughtful consideration to the
arguments advanced by both the parties, perused the impugned
order and the material available on record.
24. The appellant and respondent were married on
16.11.2005. The appellant had left the matrimonial home on
25.11.2011. Respondent Deepak Tyagi (AW1) in his statement
clearly stated that he had got his marriage registered in Army
record as Ex. 1 to Ex. 3. In March, 2007, the appellant lived with
him at Manipur for two months. In June, 2007, the respondent
was transferred to Shilong where the appellant lived with him in
Government accommodation. During that period, the appellant
became pregnant and the respondent had called his mother to
look after her, but the appellant desired to go to Jaipur. So he
booked her ticket for Jaipur. She did not come after a month and
pressurized him to have the delivery of the child at Jaipur. In
February, 2008 the respondent had come at Jaipur for 30 days’
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leave and remained present till birth of the child. After birth, his
son got pneumonia and therefore he had extended his leave for
15 days more. In June, 2009 he was transferred to Jalandhar. The
appellant abused the parents of the respondent and she had not
fulfilled matrimonial obligations. In May, 2011, the appellant
desired to go at Jaipur so he had made ticket for Jaipur. On
25.5.2011, she had gone to Jaipur. After that, she had not joined
till date. The respondent had gone to Jaipur and requested her to
accompany him in September, 2011, December, 2011 and
January, 2012 but he could not succeed. In August, 2011, the
appellant gave an application for maintenance (Ex.4). In June,
2012 a counseling was made by Aastha Cell at Lucknow but she
refused to live with him and desired to get maintenance. The
appellant in her statement wrongly stated that she was thrown out
from the house so she had been residing with her parents. The
respondent in his statement clearly stated that he had booked
ticket of 25.5.2011 for appellant on her desire. The appellant had
not refuted this fact. The appellant in her statement admitted that
the respondent had come to Jaipur to fetch her back on above
mentioned dates, but she did not go. In complaint Ex.10, the
appellant falsely alleged the respondent for plural marriage and
stated that she would initiate proceedings for getting divorce. In
this way, the learned Family Court rightly observed that the
appellant had deserted the respondent without any reasonable
cause.
25. Learned Family Court in its order clearly stated the
appellant had levelled false and frivolous allegations against the
respondent before the Army Authorities. The appellant, in
complaints Ex.5, Ex.6, Ex.8, Ex. 13 and Ex.14, clearly stated that
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the respondent had illicit relations with several girls and also of
plural marriage. Respondent Deepak Tyagi (AW 1) in his statement
clearly stated that the appellant had tarnished his image and
spoiled his career. Inquiry was held against him. In complaint, she
had falsely stated about infidelity and plural marriage. The
appellant also stated in the complaint that he had earned so much
that nobody could do anything. He would leave army as soon as
possible. It was also written in the complaint that it would be a
bigger racket of possible honey trap. The appellant not only wrote
to the higher authorities but also to Prime Minister and Defence
Minister that the respondent is a threat to the Nation and Defence.
The appellant in her statement admitted that she had made these
complaints for adjudication of infidelity and plural marriage.
Allegations of infidelity and plural marriage were found baseless
because the appellant failed to produce the address of the girls.
26. In our opinion, the appellant had levelled false and
frivolous allegations before the Army Authorities, the Prime
Minister and the Defence Minister against the respondent in Ex.5,
Ex.6, Ex.8, Ex.10, Ex.13 and Ex.14 with regard to having illicit
relation with several girls, plural marriage, acquired money much
more to his income involving honey tap etc. In inquiry, none of
the allegations was found proved and the respondent was given
clean chit by Annex. 1 and Annex. 12. After that, the appellant
again filed complaint for re-investigation to the Prime Minister and
the Defence Minister. The appellant had levelled false allegations
against the respondent regarding fidelity and adulterous relation.
She, in he reply and evidence before the learned Family Court,
had stated that the respondent visited Mumbai and Pune with Ms
Evangaline on tour package. He stayed in Pune CME guest house
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and later on, went to Goa. In Pune, he used the room of married
person. The appellant in her statement stated that these facts
came to her knowledge from certain army personnel but she had
not produced evidence of any of them to prove these facts. All
these allegations were made to tarnish the image of the
respondent. These complaints or enquiry were found to be false
and frivolous. The respondent had to face inquiries but these false
allegations levelled by the appellant amounted to cruelty. Findings
of the learned Family Court cannot be said to be unfounded. The
learned Family Court, in our view, has rightly decided the issue of
cruelty against the appellant.
27. In Vipin Chand v. Prabhawati, (AIR 1957 SC 176)
the Hon’ble Supreme Court has observed as under :
“For the offence of desertion, so far as the
deserting spouse is concerned, two essential
conditions must be there, namely (1) the factum of
separation; and (2) the intention to bring
cohabitation permanently to an end (animus
deserendi). Similarly two elements are essential so
far as the deserted spouse is concerned (1) the
absence of consent, and (2) absence of conduct
giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention
aforesaid. Desertion is a matter of inference to be
drawn from the facts and circumstances of each
case. The inference may be drawn from certain
facts which may not in another case be capable of
leading to the same inference, that is to say, the
facts have to be viewed as to the purpose which is
revealed by those acts or by conduct and
expression of intention, both anterior and
subsequent to the actual acts of separation. If in
fact, there has been a separation the essential
question always is whether that act could be
attributable to an animus deserendi. The offence of
desertion commences when the fact of separation
and the animus deserendi co-exist. But it is not
necessary that they should commence at the same
time. The de facto separation may have
commenced without the necessary animus or it
may be that the separation and the animus
deserendi coincide in point of time; for example,(Downloaded on 23/09/2019 at 09:14:26 PM)
(14 of 23) [CMA-2845/2018]when the separating spouse abandons the marital
home with the intention, express or implied, of
bringing cohabitation permanently to a close.”
28. The Apex Court has also taken into consideration the
legal position as summarised in Halsbury’s Laws of England with
regard to desertion as under:
“In its essence desertion means the
intentional permanent for saking and
abandonment of one spouse by the other
without that other’s consent and without
reasonable cause. It is a total repudiation of
the obligations of marriage. In view of the
large variety of circumstances and of modes
of life involved, the Court has discouraged
attempts of defining desertion, there being no
general principle applicable to all cases.
Desertion is not the withdrawal from a place
but from a stage of things for what the law
seeks to enforce is the recognition and
discharge of the common obligations of the
married state; the state of things may usually
be termed for siprt ‘the home’. There can be
desertion without previous cohabitation by the
parties, or without the marriage having been
consummated.
The person who actually withdrawn from
cohabitation is not necessarily the deserting
party. The fact that a husband makes an
allowance to a wife whom he has abandoned
is no answer to a charge of desertion.
The offence of desertion is a course of
conduct which exist independently of its
duration, but as a ground for divorce it must
exist for a period of atleast three years
immediately preceding the presentation of the
petition or where the offence appears as a
cross charge, of the answer. Desertion as a
grounds of divorce differs from the statutory
grounds of adultery and cruelty in that the
offence founding the cause of section of
desertion is not complete, but is inchoate,
until the suit is constituted. Desertion is a
continuing offence.
29. In Ren Prakash Versus Mst. Sneh Lata 2001(4) WLC
(Raj.) 628, this Court has observed as under :
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20. It may be stated that the word ‘cruelty’ cannot be
put in strait-jacket formulla, of judicial definition. Since
it is neither desirable nor possible to make any attempt
to do so, for the same may prove abortive, since cases
coming before the Courts have their peculiar individual
facet calling for individualistic approach to tackle them.
It is principally and essentially question of fact to be
decided on the basis of pleading and the evidence
brought on the record by the respective parties and
then the Court has to assess whether the behaviour of
the spouse is of such a degree and can no longer be
considered to be the routine wear and tear of the
married life.
21. A large number of case law had grown around the
significance of what is sometimes termed ‘legal cruelty’.
Some broad general principles, which emerge from the
decided cases including the cases of the Hon’ble
Supreme Court, may be narrated here for guidance :-
1. Cruelty may be inferred from the whole
facts and matrimonial relations of the parties and
interaction in their daily life disclosed by the
evidence. The question whether the respondent
treated the petitioner with cruelty is a single
question only to be answered after all the facts
have been taken into account. Without quoting the
specific opinions on which this principle was stated
at least two of the Lords who decided the case of
Jamieson v. Jamieson (1952 (1) All ER 875) in the
House Lords this principle may now be said to be
well established. It may be taken as equally well
established that it is a wrong approach to put the
various acts or conduct alleged into a series of
separate compartments and say of each of them
that by themselves they cannot pass the test of
cruelty and therefore, that the totality cannot pass
that test.
2. It is undesirable, if not impossible to
create categories of acts or conduct as having or
lacking the nature or quality which render them
capable or incapable in all circumstances
amounting to mental cruelty. Nor is it necessary to
compare acts as being gross and not gross. There
may be cases where the acts complained of are in
themselves so trivial that the Court would be
justified in not attaching any importance to them.
On the other hand, acts not serious in themselves
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may be symptomatic of the pass to which the
marriage had come and of the state of mind of the
parties. Since cruelty is to be inferred from the
whole relations between the husband and wife it
would not be a proper approach ‘to take up each
alleged incident one by one and hold that it is
trivial or that it is not hurtful or cruel and then to
say that cumulatively they do not amount to
anything grave, weighty or serious. The
relationship of marriage in the present context is
not to be taken as just the sum of a number of
incidents’.
3. In general, cruelty is in its character a
cumulative charge. It is not necessary that the
acts complained of must be of a certain character.
The conduct may consist of a number of acts each
of which is serious in itself, but it may well be even
more effective if it consists of a long continued
series of minor acts no one of which could be
regarded as serious if taken in isolation. Every
such act must be judged in relation to its
attendant circumstances, and the physical or
mental condition or susceptibilities of the innocent
spouse and the offender’s knowledge of the actual
or probable effect of his conduct on the other
hand. The age, environments, standard of culture
and status in life of the parties are also matters
which may be decisive in determining on which
side of the line a particular act or course of
conduct lies. The acts and incidents complained of
as also the conduct of the parties must be taken
together to form a composite picture from which
alone it can be ascertained whether the acts of
one spouse on another should, judged in relation
to all the surrounding circumstances, be found to
amount to cruelty.
4. The existence of cruelty depends not merely on
the magnitude, but at times also on the
consequence of the offence, actual or
apprehended.
5. Mental ill-treatment may be coupled with
physical ill-treatment together to found a charge
of cruel treatment. Since mental and physical ill-
treatment can though they are not ejusdem
generis, be taken together, it must follow that
different forms of ill-treatment may be taken
together to found a charge of treatment which
amounts to cruelty.
6. The primary question in these cases is not a
question of whether the conduct complained of
would be cruel to a reasonable person, The Court
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has to deal not with an ideal husband or ideal wife
but with ‘this man and this woman.’ Nor is the
Court concerned with the reasonable person. The
Court will not start with any a priori assumptions
that the parties are reasonable people.
22. In this respect, it may further be stated here that
actual intention on the part of one spouse to injure the
other is not an essential factor and that intentional acts
may amount to cruelty even though there was no
intention of being cruel. Motive, malignity or malevolent
intention, it is well recognized, are not essential
ingredients but where they exist they would be factors of
considerable importance.
23. Thus, it can be said that no hard and fast rule can be
laid down as to what acts or conduct will amount to
cruelty. What may amount to cruelty in one case may not
amount to cruelty in another case. In deciding whether or
not a particular state of affairs amounts to legal cruelty,
the Court has to consider the social status, the
environment, the education, the mental and physical
conditions and the susceptibilities of the innocent spouse
as also the custom and manners of the parties. Whether
acts and conducts complained of constitute cruelty have
to be construed in reference to the whole matrimonial
relationship. It may be that various acts or conduct
complained of by itself and in isolation to each other, do
not amount to cruelty, but in their overall effect they may
amount to cruelty.
30. The word “cruelty” has not been defined. It is to be
seen in the facts and circumstances of each case. A set of facts
stigmatised as cruelty in one case may not be so in another
case.
31. In the celebrated English decision SectionKing v. King, 1952
(2) All England Reports 584, Lord Normand observed as under:
“The general rule in all questions of cruelty is that
the whole matrimonial relationship must be
considered, and that rule is of special value when
the cruelty consists not of violent acts but of
injurious reproaches, complains accusations or
taunts. willful accusations may be made which are
not true and for which there are no probable
grounds and yet they may not amount to cruelty. To(Downloaded on 23/09/2019 at 09:14:26 PM)
(18 of 23) [CMA-2845/2018]take an obvious example, they may have been
provoked by the cruel conduct of the other spouse.
There is in many cases no easy rule, no clear line of
demarcation which divides cruelty from something
which does not amount to cruelty.”
32. In the case of Harton v. Harton, (1940) 3 All E.R. 380 it
was observed that:
“Mere conduct which causes injury to health is not
enough. If he marries a wife whose character
develops in such a way as to make it impossible
for him to live happily with her, I do not think that
he establishes cruelty merely because he finds
that life with her is impossible. He must prove that
she has committed willful and unjustifiable acts
inflicting pain and misery upon her and causing
injury to his health.”
33. In the case of McEwan v. McEwan, 1964 108 Sol. Jo
198 CA, Lord Denning held that:
“Cruelty being a question of fact the
circumstances of each case must be taken into
consideration, including the physical and mental
condition and the position in life of the parties.
However, the conduct complained of must be
serious and higher than the ordinary wear and
tear of married life.”
34. The House of Lords in the case of Gollins v. Gollins,
(1964) A.C. 644 held as under:
“A distinction can be drawn between cases
involving “unequivocal” conduct, which is
conduct which clearly constitutes cruelty, and
those involving “equivocal” conduct, conduct
which may in certain circumstances amount to
cruelty and in other circumstances not do so.
The cruelty alleged here is plainly in the
second category. There is no fundamental
distinction between cruelty which gives rise to
grounds for judicial separation and that which
gives rise to grounds for divorce. The
principles so far evolved from the authorities
serve well enough in deciding cases in the first
category, but there is no other guidance where
the conduct complained of may be described(Downloaded on 23/09/2019 at 09:14:26 PM)
(19 of 23) [CMA-2845/2018]as negative, or indirect, or not aimed at the
other spouse or as unaggressive.”
35. This Court in the matter of SectionSmt. Maya v. Brij Nath, AIR
1982 Delhi 240, while dealing with concept of cruelty in the SectionHindu
Marriage Act as under:
“Cruelty has not been defined in the Act. But it
is now well settled that the conduct should be
grave and weighty so as to make cohabitation
virtually unendurable. It must be more serious
than the ordinary wear and tear of marriage.
The cumulative conduct taking into
consideration the circumstances and the
background of the parties has to be examined
to reach a conclusion whether the act amounts
to cruelty. The petitioner in a divorce petition
has to prove that he was treated with cruelty.
The burden of proving the cruelty lies on him.”
36. SectionIn Dastane v. Dastane, I, the Supreme Court held as
under:
“that where an allegation of cruelty is made, the inquiry
has to be ‘whether the conduct charged 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’.
“It is not necessary, as under the English Law, that
the cruelty must be of such a character as to cause
“danger” to life, limb or health or as to give rise to
a reasonable apprehension of such a danger.
Clearly, danger to life, limb or health or a
reasonable apprehension of it is a higher
requirement than a reasonable apprehension that it
is harmful or injurious for one spouse to live with
the other….But under Section 10(1)(b), harm or
injury to health, reputation, the working career or
the life, would be an important consideration in
determining whether the conduct of the respondent
amounts to cruelty.
Plainly, what we must determine is not whether the
petitioner has proved the charge of cruelty having
regard to the Principles of English Law, but whether
the petitioner proves that the respondent has
treated him with such cruelty as to cause a(Downloaded on 23/09/2019 at 09:14:26 PM)
(20 of 23) [CMA-2845/2018]reasonable apprehension in his mind that it will be
harmful or injurious for him to live with the
respondent’.”
37. The Supreme Court in the case of SectionShobha Rani v.
Madhukar Reddi, I, observed as under:
“Section 13(1)(i-a) uses the words “treated the
petitioner with cruelty”. The word “cruelty” has
not been defined. Indeed it could not have been
denied. It has been used in relation to human
conduct or human behavior. It is the conduct in
relation to or in respect of matrimonial duties and
obligations. It is a course of conduct of one which
is adversely affecting the other. The cruelty may
be mental or physical, intentional or
unintentional. If it is physical the Court will have
no problem to determine it. It is a question of
fact and degree. If it is mental, the problem
presents difficulty. First the inquiry must begin as
to the nature of the cruel treatment. Second, 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, it is a
matter of inference to be drawn by taking into
account the nature of the conduct and its effect
on the complaining spouse. There may, however,
be cases whether the conduct complained of
itself is bad enough and per se unlawful or illegal.
Then the impact or the injurious effect on the
other spouse need not be enquired into or
considered. In such cases, the cruelty will be
established if the conduct itself is proved or
admitted.
It will be necessary to bear in mind that
there has been marked change in the life around
us. In matrimonial duties and responsibilities in
particular, we find a sea- change. They are of
varying degrees from house to house or person
to person. Therefore, when a spouse makes
complaint about the treatment of cruelty by the
partner in life or relations, the Court should not
search for standard in life. A set of facts
stigmatised as cruelty in one case may not be so
in another case. The cruelty alleged may largely(Downloaded on 23/09/2019 at 09:14:26 PM)
(21 of 23) [CMA-2845/2018]depend upon the type of life the parties are
accustomed to or their economic and social
conditions. It may also depend upon their culture
and human values to which they attach
importance. We, the Judges and lawyers,
therefore, should not import our own notions of
life. We may not go in parallel with us and the
parties. It would be better if we keep aside our
customs and manners. It would also better if we
less depend upon precedents.”
38. The Supreme Court in the case of SectionV. Bhagat v. Mrs. D.
Bhagat, has defined mental cruelty in the following manner:
“Mental cruelty in Section 13(1)(ia) 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 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 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.”
39. Lord Denning in Sheldon v. Sheldon, (1966) 2 All E.R.
257, 259 observed as under:
“The categories of cruelty are not closed. Each
case may be different. We deal with the conduct
of human beings who are not generally similar.
Among the human beings there is no limit to the
kind of conduct which may constitute cruelty.
(Downloaded on 23/09/2019 at 09:14:26 PM)
(22 of 23) [CMA-2845/2018]
New type of cruelty may crop up in any case
depending upon the human behavior, capacity or
incapacity to tolerate the conduct complained of.
Such is the wonderful realm of cruelty.”
“The conduct of the habitual drunkard, the
gambler, the criminal or the profligate may
cause his wife to break down in health but it
is not cruelty unless combined with some
conduct which is aimed at her, as, for
example, when her justifiable remonstrances
provoke unjust resentment on his part
directed at her.”
The judgments relied upon by the learned Senior
Counsel for the appellant do not help the appellant because the
facts of the present case are different from the judgments relied
upon by him.
In Anuradha Ghosh Moulick’s case (supra), the
Calcutta High Court observed that the husband was not entitled
to get a decree for divorce on the ground that wife made baseless
allegations against her husband in the written statement. In
evidence, she regretted the misunderstanding and wished to go
back to her matrimonial house, on account of false statement
given on record by the wife, the Lower Court wrongly decreed the
suit on the ground of cruelty.
In Mandeep Kaur’s case (supra), the Himachal
Pradesh High Court observed that registering false case against
the husband and his relatives is amount to cruelty and husband is
entitled to get decree of divorce.
In Raj Talreja’s case (supra), the Apex Court held
that mere filing of complaint is not cruelty if there are justifiable
reasons to file complaints and in criminal case may not be
ground to treat such accusations of wife as cruelty within the
(Downloaded on 23/09/2019 at 09:14:26 PM)
(23 of 23) [CMA-2845/2018]
meaning of SectionHindu Marriage Act, 1955. The Apex Court also held
that if it is found that allegations are patently false then there
can be no manner of doubt that such conduct of spouse levelling
false accusations against other spouse would be act of cruelty.
In Mithilesh Shrivastava’s case (supra) and in Mrs.
Deeplakshmi Sachin Zingade’s case (supra), the High Court
observed that if complaints were filed bonafidely without
malafide intention, then this will be no ground of cruelty.
40. Analysis of the facts in the light of law fore-discussed,
we find no illegality and infirmity in the order dated 19.5.2018
passed by the learned Family Court. The appeal is devoid of merit
and liable to dismiss.
41 We are of the considered opinion that the learned
Family Court has not committed any error in allowing the divorce
petition filed by the respondent. Therefore, we are persuaded to
reject the appeal and accordingly, it is dismissed.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),J
RAJ KUMAR CHAUHAN /17
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