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Om Prakash Bhagat vs Smt. Gauri Devi on 16 August, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.481 of 2015

Om Prakash Bhagat, son of Dharmnath Bhagat, Resident of Town Narpatganj,
P.S.- Narpatganj, District- Araria.

… … Appellant/s
Versus
Smt. Gauri Devi, daughter of Birendra Bhagat, resident of Village and P.O.-
Jeewachhpur, P.S.- Bhimpur, District- Supaul, presently residing at Murliganj,
P.S. Murliganj, District- Madhepura.

… … Respondent/s

Appearance :

For the Appellant/s : Mr. Uma Shankar Prasad, Sr. Advocate
Ms. Meera Kumari, Advocate
Mr.Sunil Kumar, Advocate
For the Respondent/s : Ms. Anju Mishra, Advocate

CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
and
HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)

Date : 16-08-2019

The appellant-husband has questioned the legality of the

judgment and order dated 27.08.2015, passed by the learned

Principal Judge, Family court, Araria in Matrimonial Suit No. 11

of 2002 whereby an application of the appellant seeking

dissolution of his marriage with the respondent filed under

Section 13 of the Hindu Marriage Act (hereinafter referred to as

‘the Act’) has been dismissed. The appellant had sought the decree

of divorce on the grounds of cruelty and desertion.

2. The marriage between them was admittedly

solemnised on 13.07.1994 at the parental home of the respondent
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at Murliganj in the district of Madhepura. The appellant is a

resident of Narpatganj in the district of Araria. The appellant’s

family has another residential establishment at village

Jeebachhpur in the district of Supaul.

3. It has been the case of the appellant that nearly a

fortnight, after the marriage, the respondent had gone back to her

parental home with her brother and it was only on initiative and

persuasion of the appellant that the respondent returned to the

matrimonial home on 22.02.1995, after a ritual called ‘Ruksadi’ or

‘Bidai’ or ‘second marriage’. Again, after short stay with the

appellant, the respondent went back to her parental home with her

brother on 15.03.1995, just before Holi festival, as per the

customs. From March 1995 to April 1996, the respondent stayed

at her parental home despite persuasion and request made by the

appellant but the appellant always showed reluctance in joining

the appellant’s company. She, however, came to village

Jeebachhpur in 1996 where the appellant and the respondent

stayed together for some time and went thereafter to Narpatganj.

The respondent became pregnant, whereafter she again went back

to her parental home with her mother, according to the appellant,

without his consent and to his annoyance. A female child was born

to them when the respondent was at her parental home, whereafter
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she came back to village Jeebachhpur. The appellant and the

respondent lived together at Jeebachhpur and Narpatganj for

nearly 9-10 months. The respondent again conceived. The mother

of the respondent was insisting for the respondent being taken to

the parental home for better care during pregnancy period despite

all facilities made available to the respondent in the matrimonial

home. The mother of the respondent, allegedly took her from

Narpatganj to the parental home at Murliganj deceitfully, without

the appellant’s consent and to his grave annoyance and

inconvenience. A second female child was born some time in

1998-99. It has been alleged in the application seeking divorce

that during this period, when the respondent stayed with the

appellant, the respondent’s behaviour was abnormal and

whimsical with the appellant. It is said that the respondent and her

mother behaved with the appellant inappropriately and many a

times the appellant was assaulted by the respondent, when the

appellant approached her and demanded cohabitation. She

declined to cook food ‘at time'(sic) and she did not serve meal to

the appellant and his parents and ‘thus she misbehaved which

caused serious difficulties in the family’. The appellant further

alleged that the respondent’s behaviour and habits were extremely

unbearable and she used to go to Murliganj and come back to
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matrimonial home with her henchman. Since the respondent had

created an unhealthy atmosphere because of her conduct, a

Panchayati was held on 19.05.1995 and a Panchnama was

prepared. The respondent, however, continued with her behaviour,

ignoring the terms of Panchnama and withdrew herself from the

appellant’s society. She was claiming separation by transfer of the

property in the house situate in village Jeebachhpur and she, thus,

caused mental torture to the appellant, the only son of his parents.

4. He further alleged that the respondent poured

kerosene oil on a bundle of jute kept in a separate house and set it

ablaze. She attempted to burn herself and committed suicide.

5. Alleging desertion, he pleaded in the application that

the respondent started living separately, refusing to live in the

association of the appellant and did not allow him any opportunity

to cohabitate. The application seeking dissolution of marriage was

filed in 2002, as according to the appellant, respondent had left

the company of the appellant since 1998.

6. It is noteworthy that in the application seeking

divorce, the appellant did not take any plea of adultery against the

respondent, as a ground for dissolution of marriage.

7. Controverting the assertions made in the application

seeking dissolution of marriage a written statement was filed. The
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allegations of cruelty and intentionally leaving the company of the

appellant were denied. She asserted that she had always been

willing to be in company with the appellant and discharge her

marital obligations. She asserted that, as a matter of act, she

always attempted to be with the appellant but she was compelled

to live at Jeebachhpur, because of ill-treatment meted out to her by

her in-laws. She also asserted that she was very respectful to her

in-laws and ready to remain in company with the appellant. She

never left her matrimonial home at any point of time without the

appellant’s consent. She denied completely the allegation of her

misbehaviour with her in-laws and demand of any separation in

the joint family property. Since the respondent had given birth to

two female children, her in-laws and the appellant were planning

marriage of the appellant with another girl in Nepal, which was

objected to by the respondent, leading to filing of the divorce

case, with baseless allegations. Because the respondent was being

ill-treated by her in-laws and the husband, she filed criminal case

under Section 498-A of the IPC. She expressed her willingness to

live with the appellant and discharge marital obligations, in her

written statement.

8. Based on rival pleadings, the learned Principal Judge,

Family Court, Araria famed the following issues for determination
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:

“(i) Whether the case, as framed, is
maintainable?

(ii) Whether the petitioner has got any cause
of action sue this respondent?

(iii) Whether the abnormal behaviour of
respondent cause mental and physical torture
to the petitioner?

(iv) Whether the respondent voluntarily
deserted the petitioner as such refused to
spending life as husband and wife without any
just reason?

(v) Whether the petitioner is entitled to a
decree of divorce?

(vi) What other relief or reliefs, the petitioner
is entitled to?”

9. In the background of the issues so framed, the parties

adduced evidence, oral and documentary. Eight (8) witnesses

deposed for the appellant before the court below whereas three (3)

witnesses deposed in favour of the respondent.

10. Dealing with Issue No. 3, as noted above, the

learned Principal Judge recorded his findings that the pleadings of

the appellant was vague and sketchy, inadequate to make out a

case for grant of decree of divorce on the ground of cruelty.

Learned Principal Judge also recorded his finding that the

allegation of cruelty could not be substantiated, even on

consideration of the depositions of the PWs.

11. Dealing with Issue No. 4 i.e. whether respondent
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had voluntarily deserted the appellant, the leaned Principal Judge

opined that the onus was on the appellant to prove that respondent

had deserted him without any reasonable cause and that despite

genuine efforts made by the appellant to bring the respondent

back, the respondent refused to live with the appellant, which he

failed to discharge. Learned Principal Judge accordingly recorded

that the allegation of desertion could not be proved. On the point

of adultery, learned Principal Judge has recorded in paragraph 11

of the impugned judgment that the faint allegation of adultery has

been levelled against the respondent in the pleadings and

testimony of witnesses but in absence of the adulterer as party to

the proceeding, the plea of adultery could not be dealt with.

12. After having decided the main issues No. 3 and 4,

other issues, which were formal in nature, have been decided and

considering the pleadings and oral and documentary evidence

adduced, learned Principal Judge finally concluded in his

impugned judgment that the appellant had failed to establish a

case for issuance of decree of divorce on the ground of cruelty and

desertion.

13. We have heard Mr. Uma Shankar Prasad, learned

Senior Counsel assisted by Ms. Meera Kumari and Mr. Sunil

Kumar for the appellant and Ms. Anju Mishra, learned Advocate
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appearing on behalf of respondent.

14. Before we proceed to discuss the matter on merits,

we must indicate that we made several serious efforts for amicable

resolution of dispute between the contesting parties keeping in

mind the welfare of the family and the two children born out of

the marriage, who have now crossed 20 years of age and are yet to

be married. Despite the fact that earlier, judgment was reserved in

this case on 13.07.2018, noticing some hope of amicable

resolution of the matrimonial dispute between the parties, when

the matter was listed on 20.07.2018, the Court had desired the

parties to meet in the Chambers of Dr. Uma Shankar Prasad,

learned Senior Advocate. This matter was thereafter taken up on

several dates. Following order, which was passed on 20.07.2018,

needs to be noticed at this stage:

“The parties have been requested
to explore the possibility of resolution
amicably.

Let a meeting take place of the
parties in the Chambers of Dr. Uma Shankar
Prasad in between 28th to 30th of July, 2018
as regarding future course to be taken in the
case of children.

Let the matter come up on 3rd of
August, 2018 under the same heading
allowing the parties to inform as to the
outcome of the meeting.”

15. The lower court records have been received. We
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have perused the records and we have given our anxious

consideration to the pleadings of the parties, evidence adduced by

them as well as the submissions made on their behalf.

16. Dr. Uma Shankar Prasad, learned Senior Counsel for

the appellant has submitted that the court below has committed

serious error of law by holding the allegations of cruelty made in

the plaint to be a vague and on the basis of the depositions of the

witnesses, a case for grant of decree of dissolution of marriage

could not be made out on the ground of cruelty and desertion. He

has submitted that the evidence adduced at the trial has not been

appreciated by the learned Principal Judge in correct perspective

and the findings recorded by him are totally erroneous. He has

submitted that even if there was no specific pleading in the plaint

to make out a case for dissolution of marriage on the ground of

cruelty and desertion, if both the parties had led evidence on the

issue, then the strict rule of specific pleading could not defeat the

cause of the appellant. In support of his submission he has relied

on Supreme Court’s decision in case of SectionBhagwati Prasad vs.

Chandramaul (AIR 1966 SC 735). He has submitted that it is

evident from the pleadings and evidence on record that respondent

had refused cohabitation with the appellant without any

justification and, therefore, a case of mental cruelty has been
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made out. According to him, the pleadings and evidence show

that the appellant had to suffer acute pain and agony which made

it impossible for the appellant to live with the respondent as

husband and wife. He has relied on Supreme Court decision in

case of SectionSamar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC

511 and has contented that since there has been a long period of

continuous separation between the parties, it can be easily

concluded that the matrimonial bond between the two is beyond

repair. He has submitted that the long separation between the

appellant and the respondent ever since 1999 leads to a clear

inference that there has been irretrievable breakdown of marriage.

Relying on the said decision he has submitted that refusal by the

respondent to cook food may also amount to mental cruelty and

according to him, the court below erred in holding that no case of

cruelty could be established on the basis of pleadings and

evidence adduced on behalf of the appellant before the learned

Principal Judge in the suit for divorce.

17. Reliance has also been placed on Supreme Court

decision in case of SectionRaj Talreja vs. Kavita Talreja (AIR 2017 SC

2138) to submit that the conduct of respondent should be held to

be causing mental cruelty to the appellant.

18. On the basis of rival submissions made on behalf of
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the parties and materials available on record, following are the

points which have emerged for determination in the present appeal

:-

(i) Whether the appellant was able to establish
a case of cruelty against the respondent,
sufficient for grant of a decree for dissolution
of marriage?

(ii) Whether on the basis of evidence adduced
before the court below in the matrimonial suit
the appellant could establish his case of
desertion as ground for dissolution of the
marriage?

(iii) Whether on the ground of irretrievable
breakdown of marriage, a decree of divorce
should be granted, in the facts and
circumstances of the present case?

(iv) Whether the learned Principal Judge,
Family Court erred in refusing to grant decree
of divorce on the ground of cruelty and
desertion.

19. What amounts to mental cruelty has been

extensively discussed by the Supreme Court in case of Samar

Ghosh (supra), which has been followed and explained in

subsequent judgment in case of SectionRaj Talveja vs. Kavita Talveja

(supra). In case of Raj Talreja (supra) the Supreme Court has

opined and held that cruelty in matrimonial behaviour defies any

definition and its categories can never been closed. Whether the

husband is cruel to his wife or the wife is cruel to her husband has

to be ascertained and judged by taking into account the entire facts
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and circumstances of the given case and not by any pre-

determined rigid formula. Cruelty in matrimonial cases can be of

infinite variety – it may be subtle or even brutal and may be by

gesture and words, the Supreme Court observed.

20. The crucial aspect of the matter, which we need to

consider in this matter, is as to whether the evidence adduced by

the appellant before the court below was sufficient to establish a

case of cruelty. For the said proposition we need to address the

pleadings and evidence on record. We have carefully seen the

application filed by the appellant under Section 13 of the Act. The

application contains several allegations against the respondent

blaming that the respondent did not behave ‘appropriately’ with

the family members including the appellant and sometimes she

withdrew her association and conjugal company from the

husband. There is nothing, however, in the pleading as to in what

manner and at what point of time and at what place the respondent

did not behave with the appellant ‘appropriately’. Similarly, there

is allegation against the respondent of pestering the appellant and

his family members for partition in the family/ transfer of family

property in her name.

21. We now need to refer to the evidence of witnesses

who deposed before the court below.

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22. The appellant, PW-8, filed his affidavited deposition

before the court below stating that the behaviour of the respondent

was not good with the appellant and his parents, because of which

a Panchayati was held. He deposed that the respondent had not

only set ablaze the jute bundles, she had attempted to burn herself.

According to him, the respondent refused to live with the

appellant since 1998. Because of her conduct, a criminal case was

lodged for the offence punishable under Section 436 and Section504 of

the Indian Penal Code against the respondent and in retaliation the

respondent filed a criminal case for the offence punishable under

Section 498-A of the IPC. It is evident from the evidence of the

appellant (PW-8) that it does not refer to any specific instance of

alleged misbehaviour or cruelty on the part of the respondent.

There is vague assertion that her behaviour was not proper with

him and his family members. He has given emphasis on the

incident when the respondent had put on fire the substantial

quantity of jute and had attempted to burn herself which had led to

lodging of case under Sections 435 and Section504 of the IPC. PW-1

Ram Narayan Malakar has also not deposed anything specific on

the point of cruelty. He has deposed that the respondent had

disturbed family peace because of which her mother-in-law had

died. There is nothing significant and specific in the deposition of
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PW-1 with reference to any incident which can be said to be

constituting act of cruelty committed by the respondent. In cross-

examination, he had admitted that his father was a Bataidar of the

appellant. Similarly, PW-2 has also vaguely stated that the

behaviour of the respondent was not good with her in-laws and

she had gone back to her parental home 5-7 days after the

marriage. In his cross-examination, however, though he admitted

that he had never gone to the house of the appellant, he deposed

that because of the behaviour of the respondent, her mother-in-law

(appellant’s mother) died. In cross-examination, he admitted that

she died in Nepal and was not knowing about her ailment leading

to her death. Evidence of PW-3 is equally vague on the point of

behaviour of the respondent. PW-4 is cousin of the appellant. His

deposition is equally vague. According to him, behaviour of the

respondent was not suitable with her in-laws and there used to be

quarrel in the family, most of the time because of her. He further

deposed that mother of the appellant died of heart attack because

of improper behaviour of the respondent. PW-5 is another cousin

of the appellant. According to him, since the respondent was

quarrelsome and did not discharge her marital obligations, her

mother-in-law had left for Viratnagar where she died of heart

attack. He has vaguely commented upon ‘conduct’ of the
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respondent and at same time has expressed his ignorance about

the persons with whom the respondent was having illicit

relationship. PW-6 is said to have been a party to the Panchayati

and he has also vaguely deposed that respondent’s behaviour was

improper because of which the appellant’s mother died. In cross-

examination, however, he has said that he had no concern with the

affairs of the family of the appellant. PW-7 is the father of the

appellant. He has deposed that behaviour of the respondent with

him and her husband was very poor. He further deposed that

mother of the respondent used to guide her for getting the land

belonging to the appellant’s family transferred in her name. He is

also not specific about any particular instance(s) for making out a

case of cruelty.

23. Examination-in-chief of the respondent as DW-1

was filed on affidavit. She deposed that she had been dispossessed

from her matrimonial home by the appellant without any reason.

In her cross-examination, she denied the allegation of her

improper behaviour. In response to a query in cross-examination

with reference to acquittal of the persons named in the criminal

case lodged by her for offence punishable under Section 498-A of

the IPC, she deposed that she could not take any step against the

judgment of acquittal because of her poor financial condition. It
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was also pointed out to her that despite her knowledge about the

illness of her husband, she did not even enquire about his well-

being, the respondent expressed ignorance about any such

ailment. She specifically deposed that she did not have any

information about her husband’s ailment, if any.

24. The daughters of the appellant and respondent also

filed their examination-in-chief on affidavits supporting the case

of the respondent. From their deposition in examination-in-chief

and cross-examination, it appears that DW-2, the first daughter

had attempted to contact the appellant on phone so as to persuade

him to pacify the relationship between the appellant and

respondent but the appellant did not respond properly. The

evidence of 2nd daughter as DW-3 also supports the case of the

respondent. According to her, they were forcibly ousted from the

house of the appellant.

25. On close scrutiny and appreciation of the evidence

of witnesses, it is easily evincible that the allegation of bad,

improper, inappropriate behaviour of the respondent with the

appellant and his family members is totally vague. It has been

vaguely stated that she refused to cook food and misbehaved with

her in-laws. It further transpires from the evidence that the in-laws

of the respondent were not happy with the respondent’s interest in
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music which she was fond of and took interest, despite the

objection of her in-laws. In this regard too, there is nothing

specific either in the pleadings or in the evidence adduced on

behalf of the appellant. There is a crucial aspect of the matter on

which much emphasis has been given on the respondent’s conduct

of setting on fire the jute, by the respondent leading to lodging of

complaint Case No. 137C of 2002 in the court of Sub-Divisional

Officer, Birpur. The case was pending till disposal of the

matrimonial case on 27.08.2015. The respondent was charged of

commission of offence under Sections 435 and Section504 of the IPC in

which the respondent was finally convicted by judgment and

order dated 18.06.2016, passed by the learned Judicial Magistrate,

1st Class-II, Supaul in Trial No. 173 of 2016, copy of which has

been brought on record by way of an affidavit filed on behalf of

the appellant.

26. Much emphasis has been given, in course of

argument on behalf of the appellant, that this Court should

consider the said proved conduct of the respondent amounting to

mental cruelty for the purpose of Section 13(1)(i-a) of the Act.

27. The fact that the appellant and his family members

have been acquitted of the charge of offence punishable under

Section 498-A of the IPC by a judgment of Sub-Divisional
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Magistrate, Madhepura dated 29.06.2011, passed in Trial No. 304

of 2011 has also been emphasised on behalf of the appellant to

contend that the court below has failed to appreciate in proper

perspective, the evidence adduced on behalf of the appellant to

establish a case of mental cruelty.

28. So far as the plea and evidence of desertion as

ground for dissolution of marriage is concerned, whereas it has

been the stand of the appellant that the respondent had deserted

the appellant by severing her company with the appellant without

any reasonable cause, it has been the case of the respondent that

though she was ready and willing to live with the appellant and

lead a happy and purposeful conjugal life by discharging her all

marital obligations. It is true that the parties have admittedly not

lived together and led conjugal life for now nearly two decades.

The question which emerges is as to who deserted whom, answer

of which will have to be searched in the evidence at the trial.

Great emphasis has, however, been laid by Mr. Uma Shankar

Prasad that, in any event, since the parties are living separately for

nearly two decades, they cannot be reasonably asked to continue

to live together. The matrimonial bond, according to him, between

the contesting parties is irreparable and in support of his

contention he has placed heavy reliance on the Supreme Court’s
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decision in case of Samar Ghosh (supra).

29. In our considered view, apart from the conduct of

the respondent of having set on fire, the jute kept in the court-yard

of the house of the appellant by the respondent, there is no

specific misconduct or wrong behaviour of the respondent

amounting to cruelty, as is alleged. There is no denial that she has

been held guilty of commission of offence under Section 435 of

the IPC. The question is, whether the said conduct of the

respondent, which finally resulted into a finding of her guilt in a

judicial proceeding, can be said to be amounting to mental cruelty

as valid ground for seeking dissolution of marriage? To answer

this aspect, we need to take note of his own statement of the

appellant in paragraph 10 of his application under Section 13(1) of

the Act which reads thus :

“10-That the respondent is a selfish,
whimsical and unscrupulous lady and does
not want to live under the guardianship and
command of the petitioner or his parents.

Once, it so happened that the respondent was
insisting her husband and inlaws to transfer
the property of village Jeewachhpur in her
name and the petitioner and his parents were
making unheard of it, the respondent poured
kerosene oil on the bundles of Jute kept in a
separate house weighing about more than 50
quintals and also on her person and put fire
by match stick on the jute, bundles and also
tried to burn herself anyhow the people
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assembled and put off the fire and saved
her.”

30. If the said averment is to be taken into account,

respondent cannot be said to have set the jute bundle on fire for

damaging the said property of the appellant/ appellant’s family.

From his own showing of the appellant, respondent had attempted

to injure herself and was subsequently saved by the people,

somehow or the other, in the incident which had taken place in

1998. This is indicative of the fact that the respondent herself was

in trauma and mental agony which had compelled her to take

extreme step of making an attempt to commit suicide in course of

which she sustained burn injuries. In any case, filing of Complaint

Case No. 137/2002 is a development subsequent to filing of

matrimonial suit, for it is apparent that the complaint case was

filed by the appellant’s father after filing of the matrimonial suit.

In our view, the developments subsequent to filing of the

matrimonial suit cannot be the basis to seek relief for dissolution

of marriage in absence of necessary amendment in the application,

inasmuch as, the respondent did not have opportunity to meet an

allegation made in the complaint case, while opposing the plea for

divorce on the grounds mentioned in the application seeking

divorce. The acquittal of the appellant and his family members of

the offence punishable under Section 498-A IPC in a trial arising
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out of complaint case filed by the respondent, since the offence

could not be established against them beyond all reasonable

doubt, in itself can not be a determinative factor to reach a

conclusion that the lodging of the complaint case itself was an act

which would amount to mental cruelty. It can maximum be said

on that basis that the respondent had failed to establish her case in

the criminal trial.

31. In all fairness to learned Senior Counsel Mr. Uma

Shankar Prasad we must refer to the Constitution Bench decision

of the Supreme Court in case of Bhagwati Prasad (supra) which

has been relied upon by him to canvass his point that where

substantial matters relating to title of both the parties to a suit are

touched, though indirectly or even obscurely, in the issues, and

evidence has been led about them, then the argument that a

particular matter is not expressly taken in the pleadings would be

purely formal and technical which should not be allowed to

succeed in the present case. The answer to the said submission lies

in paragraph 10 of the decision in case of Bhagwati Prasad (supra)

itself, portion of which read thus :

“10.——What the Court has to consider
in dealing with such an objection is: did
the parties know that the matter in
question was involved in the trial, and
did they lead evidence about it? If it
appears that the parties did not know
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that the matter was in issue at the trial
and one of them has had no opportunity
to lead evidence in respect of it, that
undoubtedly would be a different matter.
To allow one party to rely upon a matter
in respect of which the other party did
not lead evidence and has had no
opportunity to lead evidence, would
introduce considerations of prejudice,
and in doing justice to one party, the
Court cannot do injustice to another.”

32. There can not be two opinions over the legal

proposition lucidly enunciated in case of Bhagwati Prasad (supra)

that the Court is required to consider as to whether the parties

knew that the matter in question was involved in the trial and did

further lead evidence about it. If it was not within the knowledge

of the party that the matter was in issue at the trial and one of

them had no opportunity to lead evidence in respect of that, it

would certainly introduce consideration of prejudice and as the

Supreme Court has held, ‘in doing justice to one party, the Court

cannot do injustice to another’.

33. The alleged act of the respondent of causing fire in

2002, which was subject-matter of the complaint case filed by the

appellant’s father subsequent to filing of the matrimonial case,

was not a matter before the learned Principal Judge, Family Court.

There was no pleading and the respondent was, thus, completely

unaware that the said incident could be a ground for establishing
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case of mental cruelty. The appellant had referred to an incident of

1998 in which, as has been noticed above, respondent had

attempted to commit suicide and injured herself.

34. Coming now to the decision in case of Samar Ghosh

(supra), in a quest for a correct definition of a mental cruelty, the

Supreme Court has referred to not only the dictionary meaning of

the said expression but has referred to a catena of decisions of the

Supreme Court and of foreign Courts and has enumerated certain

instances of human behaviour which may be relevant in dealing

with cases of mental cruelty. However, enumerating the instances

the Supreme Court observed that mental cruelty is a problem of

human behaviour which exists all over the world. Human mind is

extremely complex and human behaviour is extremely

complicated and, therefore, to assimilate the entire human

behaviour in one definition is almost impossible, the Supreme

Court said and added that what is cruelty in one case may not

amount to cruelty in another, as concept of cruelty differs from

person to person, depending upon his upbringing level of

sensitivity, educational, family and cultural background, social

status, customs, traditions, religious beliefs, human values and

their value system. The prudent and appropriate way to adjudicate

the case would be to evaluate it on its peculiar facts and
Patna High Court MA No.481 of 2015 dt. 16-08-2019
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circumstances while taking so many factors in consideration, the

Supreme Court has held in Samar Ghosh (supra). The instances of

human behaviour relevant for dealing with cases of mental

cruelty, as enumerated in paragraph 101 in case of Samar Ghosh

(supra) are as follows :

“101. (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
Patna High Court MA No.481 of 2015 dt. 16-08-2019
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physical and mental health of the other
spouse. The treatment complained of and
the resultant danger or apprehension must
be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct,
studied neglect, indifference or total
departure from the normal standard of
conjugal kindness causing injury to mental
health or deriving sadistic pleasure can also
amount to mental cruelty.

(viii) The conduct must be much more than
jealousy, selfishness, possessiveness, which
causes unhappiness and dissatisfaction and
emotional upset may not be a ground for
grant of divorce on the ground of mental
cruelty.

(ix) Mere trivial irritations, quarrels,
normal wear and tear of the married life
which happens in day-to-day life would not
be adequate for grant of divorce on the
ground of mental cruelty.

(x) The married life should be reviewed as a
whole and a few isolated instances over a
period of years will not amount to cruelty.

The ill conduct must be persistent for a
fairly lengthy period, where the relationship
has deteriorated to an extent that because of
the acts and behaviour of a spouse, the
wronged party finds it extremely difficult to
live with the other party any longer, may
amount to mental cruelty.

(xi) If a husband submits himself for an
operation of sterilisation without medical
reasons and without the consent or
knowledge of his wife and similarly, if the
wife undergoes vasectomy or abortion
without medical reason or without the
consent or knowledge of her husband, such
an act of the spouse may lead to mental
Patna High Court MA No.481 of 2015 dt. 16-08-2019
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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.”

35. In case of Raj Talreja(supra) the Supreme Court

again reiterated that cruelty can never be defined with exactitude

and what is cruelty will depend upon the facts of each case. Mere

filing of complaint is not cruelty. Merely because no action is

taken on the complaint or after trial the accused is acquitted may

not be a ground to such accusation of the wife as cruelty within

the meaning of the Act, the Supreme Court held in case of Raj

Talreja(supra). The Supreme Court, however, made the following

observation in paragraph 10 in case of Raj Talreja (supra) :

“10…….However, if it is found that the
allegations are patently false, then there
can be no manner of doubt that the said
Patna High Court MA No.481 of 2015 dt. 16-08-2019
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conduct of a spouse levelling false
accusations against the other spouse
would be an act of cruelty. In the present
case, all the allegations were found to be
false. Later, she filed another complaint
alleging that her husband along with
some other persons had trespassed into
her house and assaulted her. The police
found, on investigation, that not only was
the complaint false but also the injuries
were self inflicted by the wife. Thereafter,
proceedings were launched against the
wife under Section 182 of IPC.”

36. It may be noted here that in case of SectionK. Srinivas Rao

vs. D.A. Deepa reported in (2013) 5 SCC 226 the Supreme Court

held that making unfounded indecent defamatory allegations

against the spouse or his or her relatives in the pleadings, filing of

complaints or issuing notices which may have adverse impact on

the business prospect or the job of the spouse and filing repeated

false complaints and cases in the court against the spouse would,

in the facts of a case, amount to mental cruelty.

37. Facts of a case would determine whether a particular

act amounts to cruelty or mental cruelty as ground for dissolution

of marriage under Section 13(1)(i-a) of the Act. The categories of

cruelty in matrimonial cases are never closed, observed Lord

Denning in Sheldon vs. Sheldon (1966) 2 WLR 993 which has

been referred to with approval in case of Raj Talreja (supra) while
Patna High Court MA No.481 of 2015 dt. 16-08-2019
28/33

observing that cruelty in matrimonial behaviour defies any

definition. Whether the husband is cruel to his wife or the wife is

cruel to her husband will have to be ascertained and adjudged by

looking into the entire facts and circumstances of the given case

and not by any pre-determined rigid formula.

38. In the background of enunciation of law by the

Supreme Court in case of Samar Ghosh (supra) and Raj Talreja

(supra) and Ravi Kumar vs. Julmidevi [(2010) 4 SCC 476] we

need to examine the correctness of finding recorded by the learned

Principal Judge, Family court in the impugned judgment and order

who had the opportunity to watch the demeanour of the parties

while deposing their evidence.

39. We have extensively noted the pleadings of the

parties before the court below in the matrimonial case and the

evidence adduced in the proceedings before the learned Principal

Judge, Family Court. In our opinion, the appellant miserably

failed to establish a case of mental cruelty which can be said to be

sufficient for grant of a decree for dissolution of marriage. This

finding is in the background of vagueness of allegations made in

the application seeking dissolution of marriage and the evidence

adduced by the parties. We are also of the view that the finding

recorded by the trial court that the appellant failed to make out his
Patna High Court MA No.481 of 2015 dt. 16-08-2019
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case of desertion by the respondent as a ground for dissolution of

marriage, in our opinion, does not suffer from any legal or factual

infirmity. We answer points no. 1 and 2, set out for determination

in the present appeal accordingly, and we, thus, concur with the

findings recorded by the court below.

40. The next question, thus, takes us to the 3rd point

framed for determination i.e. as to whether on the ground of

irretrievable breakdown of marriage a decree of divorce should be

granted, in the facts and circumstances of the present case or not.

For the said purpose, we may refer the observation made by the

Supreme Court in case of Samar Ghosh (supra), paragraph 102 of

which reads thus :

“102. When we take into consideration
aforementioned factors along with an
important circumstance that the parties
are admittedly living separately for more
than sixteen-and-a-half years (since 27-

8-1990) the irresistible conclusion would
be that matrimonial bond has been
ruptured beyond repair because of the
mental cruelty caused by the
respondent.”(emphasis added)

41. In case of Samar Ghosh (supra) the Supreme Court

had reached an irresistible conclusion that matrimonial bond had

ruptured beyond repair ‘because of mental cruelty caused by the

respondent’ in that case.

Patna High Court MA No.481 of 2015 dt. 16-08-2019
30/33

42. Since, in our view, the appellant alleged but failed to

prove mental cruelty against the respondent, he cannot take

advantage of long separation between them, to make out a case

that matrimonial bond has been ruptured beyond repair, because

of mental cruelty caused by the respondent.

43. It has been aptly observed by the Supreme Court in

case of Samar Ghosh (supra) in paragraph-99 that the concept of

cruelty would differ from person to person depending upon his/her

upbringing, level of sensitivity, educational, family and cultural

background, financial position, social status, customs, traditions,

religious beliefs, human values and their value system.

44. In course of interactions, which we had with the

appellant and the respondent, we noticed that the respondent was

opposed to dissolution of marriage not only on the ground that the

appellant had failed to establish his case of mental cruelty and

desertion but more because it would cast serious stigma on her,

considering the social status and cultural background of the

parties, which would seriously jeopardise her living in the society

with dignity and marriage of the daughters. We take note of the

fact that the appellant did offer some piece of land to the

respondent in course of the present proceeding, in the matrimonial

village, for sustenance of the respondent and the two daughters.
Patna High Court MA No.481 of 2015 dt. 16-08-2019
31/33

The respondent appeared to be justified in her stand that she could

not stay in her matrimonial home in a village as a divorcee of the

appellant. In our opinion, considering the social status of the

parties and their cultural background, decree for dissolution of

marriage cannot be granted to the appellant in the special facts and

circumstances of the case particularly when the appellant has

failed to make out a case of mental cruelty. We answer 3rd and 4th

points of determination accordingly.

45. This appeal is, thus, dismissed.

46. While dismissing the appeal, we cannot lose sight of

the fact that the respondent is residing with her two daughters at

her parental home presently. Maintenance has been allowed in

favour of the respondent @ Rs. 10,00000 per month by the court

below, in payment of which the appellant has been irregular.

When this appeal was taken up on 03.08.2019, we had noticed

that arrears of maintenance to the tune of nearly Rs. 3 lakhs was

due for payment. Taking note of this fact, we had directed the

appellant to clear the arrears by making payment in installments

of Rs. 20,00000 per month in addition to the monthly

maintenance amount @ Rs. 10,00000 per month.

47. During our attempt to explore possibility of

resolution of the dispute, we had asked the appellant to come out
Patna High Court MA No.481 of 2015 dt. 16-08-2019
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with the details of his movable and immovable properties. The

appellant by way of supplementary affidavit filed on 31.10.2018

has given the details of the properties held by him. According to

the appellant, after partition in the family with his sisters he got

3.67 and ½ acres of land and residential houses at Narpatganj and

Jeebachpur. It has also been stated that certain part of land was

acquired for construction of NH-57, consequent upon which an

amount of Rs. 27,28,59100 has been paid to him by way of

compensation. The said amount has also been partitioned among

the appellant and his three sisters. Initially, an amount of Rs.

27,28,59100 was found payable and he had received total sum of

Rs. 24,20,26000 after adjusting TDS. There is yet another

portion of land, which is under acquisition. During the last

interaction, which we had with the parties on 03.07.2019, the

appellant had offered to pay a sum of Rs. 15 lakhs for marriage of

the two daughters and 3 bighas of land to the respondent for her

sustenance. He also offered that he would transfer 1 katha of land

to the respondent as well as daughters with absolute right, title,

interest and possession out of his share over the homestead land,

for residential purpose.

48. It has also transpired that the appellant is likely to

receive shortly, another amount of compensation against
Patna High Court MA No.481 of 2015 dt. 16-08-2019
33/33

acquisition of his land.

49. In the background of the above, and in order to

protect the interest of the respondent and her daughters, after

having dismissed the appeal, we pass following order :-

(i) The appellant shall deposit a sum of Rs. 15
lakhs in the account of the respondent within three
months from today which amount shall be utilised
for the purpose of marriage and education of the
two daughters.

(ii) The appellant shall not deal with any of his
immovable properties without leave of this Court
nor shall appropriate any amount, which he
receives in future on acquisition of land, by way of
compensation.

(iii) The appellant shall keep on paying the
amount of maintenance with arrears in installment
as already directed.

(iv) The respondent shall be at liberty to apply for
enhancement of the amount of maintenance by
making application before the family court, which,
if filed, shall be decided by the family court within
two months from the date of filing of such
application.

( Chakradhari Sharan Singh, J)

Jyoti Saran, J : I agree.

Rajesh/- (Jyoti Saran, J)
AFR/NAFR AFR
CAV DATE 03.07.2019
Uploading Date 20.08.2019
Transmission Date NA

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