FAO-M-107-2004 -1-
IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH
FAO-M-107-2004
Date of Decision: 9.5.2017
Dilbag
….Appellant.
Versus
Smt. Sushila
…Respondent.
CORAM:- HON’BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU.
PRESENT: Mr. Amit Aggarwal, Advocate for
Mr. Sudershan Goel, Advocate for the appellant.
None for the respondent.
AJAY KUMAR MITTAL, J.
1. Having remained unsuccessful in a petition filed under Section
13 of the Hindu Marriage Act, 1955 (in short “the Act”) for dissolution of
marriage by a decree of divorce before the Additional District Judge,
Bhiwani, the appellant-husband has approached this Court by way of instant
appeal challenging the judgment and decree dated 31.1.2004.
2. A few facts necessary for adjudication of the present appeal as
narrated therein may be noticed. The marriage between the parties was
solemnized in the year 1981 at village Mandola, Tehsil Dadri, District
Bhiwani, according to Hindu rites and ceremonies. They lived together as
husband and wife at village Imlota and cohabited as such. From the said
wedlock, a male child was born on 2.2.1988. After 1½ years, the respondent
started behaving in an abnormal manner as she stopped doing the routine
household work. She used to go to her parental home when asked to behave
properly. After making efforts for reconciliation, she was brought back to
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the matrimonial home. The younger sister of the respondent was also
married to the younger brother of the appellant and they were residing as
husband and wife in ordinary manner in the same house jointly. In April,
1990, the respondent left her matrimonial home on the pretext that she was
going to field to meet the appellant but had gone to her parents house.
When the parents of the appellant again made efforts in the year 1992 to
reconcile the matter and had gone to her parents along with some
respectables of the village, some ladies misbehaved with the mother of the
appellant and gave her slap. In April, 1990, the respondent had deserted the
appellant. Accordingly, the appellant filed a petition under Section 13 of
the Act for dissolution of marriage between the parties by a decree of
divorce. The said petition was contested by the respondent-wife by filing a
written statement. Besides raising various preliminary objections, it was
pleaded that the behaviour of the appellant was not good and he always used
to quarrel with her without any reason. Further, the appellant and his mother
did not allow the respondent to live in the matrimonial home. She is ready
to live with the appellant. The other averments made in the petition were
denied and a prayer for dismissal of the same was made. The appellant filed
replication controverting the averments made in the petition and reiterated
the averments made in the petition. From the pleadings of the parties, the
court below framed the following issues:-
1. Whether the petitioner is entitled to dissolution of
marriage on the grounds of desertion and cruelty as
mentioned in the petition? OPP
2. Whether the petition is not maintainable in the
present form? OPR
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3. Relief.
3. In support of their case, the parties have led their respective
evidence.
4. The trial court on appreciation of evidence led by the parties,
decided issue No.1 against the appellant holding that no evidence was
produced to show that the respondent had caused cruelty and desertion by
her act and conduct. Further, it was held that the appellant had failed to
establish that the respondent had left the matrimonial home without his
consent and not returned thereafter. Issue No.2 was decided against the
respondent being not pressed. Accordingly, the trial court vide judgment
and decree dated 31.1.2004 dismissed the divorce petition filed under
Section 13 of the Act. Hence, the present appeal.
5. After hearing learned counsel for the appellant, we do not find
any merit in the appeal.
6. Section 13(1)(ia) of the Act empowers the Court to dissolve the
matrimonial ties between the parties by a decree of divorce on a petition by
either spouse where the said spouse has been treated with cruelty after the
solemnization of the marriage. Cruelty has not been defined in the Act but
various pronouncements of the Apex Court and other High Courts have
outlined the scope of the term ‘cruelty’. Cruelty is evident where one spouse
treats the other and manifests such feelings towards him or her as to cause
reasonable apprehension that it will be harmful or injurious to live with the
other spouse. Cruelty may be physical or mental. Whether a spouse is
inflicted with physical cruelty or not, it can be judged on the basis of direct
evidence whereas mental cruelty is to be inferred on analyzing the factual
matrix of each case and drawing conclusion thereon.
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7. The Apex Court in Parveen Mehta v. Inderjit Mehta 2002(3)
RCR (Civil) 529 had very elaborately analyzed the expression ‘cruelty’ as a
ground of divorce under the Act. The relevant portion thereof reads thus:-
“Under the statutory provision cruelty includes both
physical and mental cruelty. The legal conception of
cruelty and the kind of degree of cruelty necessary to
amount to a matrimonial offence has not been defined
under the Act. Probably, the Legislature has advisedly
refrained from making any attempt at giving a
comprehensive definition of the expression that may
cover all cases, realising the danger in making such
attempt. The accepted legal meaning in England as also
in India of this expression, which is rather difficult to
define, had been ‘conduct of such character as to have
caused danger to life, limb or health (bodily or mental),
or as to give rise to a reasonable apprehension of such
danger.
XX XX XX
XX XX XX
21. 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
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FAO-M-107-2004 -5-the case of physical cruelty the 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.”
8. Further, setting out illustrative cases of mental cruelty, the
Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 had
held as under:-
“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
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FAO-M-107-2004 -6-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
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FAO-M-107-2004 -7-of the other spouse. The treatment complained of and the
resultant danger or apprehension must be very grave,
substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal standard
of conjugal kindness causing injury to mental health or
deriving sadistic pleasure can also amount to mental
cruelty.
(viii) The conduct must be much more than jealousy,
selfishness, possessiveness, which causes unhappiness
and dissatisfaction and emotional upset may not be a
ground for grant of divorce on the ground of mental
cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and
tear of the married life which happens in day to day life
would not be adequate for grant of divorce on the ground
of mental cruelty.
(x) The married life should be reviewed as a whole
and a few isolated instances over a period of years will
not amount to cruelty. The ill-conduct must be persistent
for a fairly lengthy period, where the relationship has
deteriorated to an extent that because of the acts and
behaviour of a spouse, the wronged party finds it
extremely difficult to live with the other party any longer,
may amount to mental cruelty.
(xi) If a husband submits himself for an operation of
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FAO-M-107-2004 -8-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.”
9. In the present case, the instances of the appellant were merely
the result of wear and tear of the married life and could not be treated as
cruelty of such a degree that the parties could not live together or their
marriage needs to be dissolved. Further, the averments made in the petition
and the evidence led in support thereof only show the sensitivity of the
appellant with respect to the conduct of the respondent which could not be
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termed more than ordinary wear and tear of the family life. The
circumstances or the allegations levelled by the appellant are not of such
serious nature as no specific date, month or year of the alleged incidents had
been given either in the pleadings or in the statements. Further, the
appellant had not brought on record any substantive, trustworthy and
independent evidence to prove the allegations that the respondent was of
quarrelsome nature. There are no concrete instances and evidence to show
the conduct of the respondent-wife to be cruel. In such circumstances, the
appellant had failed to prove that he was treated with cruelty by the
respondent. Further, the trial court had held that the witnesses examined by
the appellant were interested witnesses and even the appellant had failed to
produce any evidence to show that the respondent had caused cruelty and
desertion by her act and conduct. The respondent was ready to live with the
appellant but he had thrown her out from the matrimonial home. It was also
held that the appellant had failed to establish that the respondent had left the
matrimonial home without the consent of her husband.
10. The trial Court after appreciating the testimonies of various
witnesses had rightly concluded that no cruelty or desertion on the part of
the respondent stood established. The relevant findings recorded by the trial
court read thus:-
“8. I have perused the statements of the parties and
witnesses examined by them. All the witnesses
examined by the petitioner are his relatives. PW2 Bharat
Singh is the grand-father of the petitioner. PW3 Baljit
Singh is the brother of the petitioner. PW4 Subhash
Chander is also the relative of the petitioner. They are
interested witnesses. There is no evidence on the file to
show that the respondent has caused cruelty and9 of 10
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FAO-M-107-2004 -10-desertion by her act and conduct. The respondent has
deposed that she is ready to live with the petitioner, but it
is the petitioner who has thrown her out from the
matrimonial home. The petitioner has kept his son Sonu
with him of his own. PW3 Baljit Singh has deposed that
she used to throw stones upon them in market but in
cross-examination he could not tell the date and month
when she pelted stones upon them. The statement of this
witness is not reliable. No person who has joined the
Bhai Biradari Panchayat was examined by the petitioner.
The younger sister of the respondent has been living in
the matrimonial home with her husband, therefore, it
cannot be believed that the respondent has deserted the
petitioner. It is not established on the record that the
respondent has left the matrimonial home without
husband’s consent and not returning thereafter.
Therefore, in my opinion, the cruelty and desertion have
not been proved on the record.”
11. No illegality or perversity could be pointed out by the learned
counsel for the appellant in the aforesaid findings recorded by the trial court
which may warrant interference by this Court. Accordingly, the present
appeal being devoid of any merit, is hereby dismissed.
(AJAY KUMAR MITTAL)
JUDGE
May 9, 2017 (HARINDER SINGH SIDHU)
gbs JUDGE
Whether Speaking/Reasoned Yes
Whether Reportable Yes
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