HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
D.B. Civil Misc. Appeal No. 344 / 2015
Panna Lal s/o Shri Balu Ramji Sharma, aged 29 years, r/o Dhosar,
Tehsil Sahada, District Bhilwara.
Smt. Pushpa w/o Panna Lal d/o Shri Mangi Lal Upadhyay, at
present r/o Ashaholi, Tehsil Raipur, District Bhilwara.
For Appellant(s) : Mr.Deelip Kawadia
HON’BLE THE CHIEF JUSTICE
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Reserved on 03/04/2017
Pronounced on 10/04/2017
Per Dr.Pushpendra Singh Bhati,J :
1. This civil misc.appeal under Section 19 of the Family
Courts Act has been preferred against the order dated 16.12.2014
passed by the learned Judge, Family Court, Bhilwara in Civil
Misc.Case No.299/2012, whereby the application under Section 13
of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the
Act’) filed by the appellant was rejected.
2. Learned counsel for the appellant submits that the
appellant has filed an application under Section 13 of the Act
seeking divorce against his spouse on the ground of cruelty and
(2 of 8)
3. Learned counsel for the appellant stated that the
marriage between both the parties was solemnized on 05.02.1993
and the respondent-wife continuously put pressure upon the
appellant for separation from his parents. It was alleged by the
wife that the husband was having illicit relationship. The counter
allegation was also there, as the appellant had alleged illegitimate
relationship of the respondent.
4. Learned counsel for the appellant also pointed out that
a case was also lodged against him under Sections 498A and 323
IPC. Learned counsel for the appellant further pointed out that
the learned court below failed to appreciate the material and
evidence available on record, and thus, the finding arrived at by
the learned court below is perverse in the eye of law.
5. The allegation of the respondent-wife regarding the
appellant having illicit relationship with his brother’s wife was a
cruelty in itself and the same was followed by false allegation
under Section 498A and 323 IPC. The said acts of the respondent,
as per learned counsel for the appellant, clearly attribute cruelty
upon her towards the matrimony. The misbehaviour of the
respondent with the parents of the appellant was also harped
upon and relationship of the respondent with a stranger was also
made a strong ground by learned counsel for the appellant, while
making his arguments.
6. The learned court below framed four issues. Firstly,
whether the conduct of the respondent was cruelty towards the
appellant and his family members. Issue No.2 was whether the
respondent was into an illicit relationship with Gotu @ Anwar .
(3 of 8)
Issue No.3 was whether the respondent had deserted the
appellant without any reasonable cause. Issue No.4 was whether
the suit was maintainable at the instance of the appellant.
7. The learned court below while deciding issues No.1 to 4
has stated that the allegation of illicit relationship against the
appellant is a cruelty with the wife i.e.the respondent and not on
the husband, and therefore, the same cannot give the benefit of
provision of cruelty to the appellant.
8. The desertion is harped upon by learned counsel for the
petitioner by seeking attention of the court to the facts mentioned
in the judgment passed by the learned court below, that the
respondent was residing in the house of Badrilal Kabra and the
same has been clarified by the statement of one Shri Sohanlal,
whereby it has been established that there was conciliation
between the parties, as a result of which, the respondent was
shifted to the residence of Badrilal Kabra in a separate rented
accommodation in his house.
9. The appellant may have made efforts for taking the
respondent back to his house, but once the conciliation
proceedings had taken place and accordingly as a matter of
compromise, the respondent was shifted to a rented
accommodation, clearly points out that this was an arrangement,
which was arrived at between the husband and wife with the
intervention of the other villagers and relatives. Therefore, it
cannot be said to be a factual matrix reflecting cruelty by the
respondent. The statement as recorded by the learned court below
and its version reproduced in the judgment clearly establishes that
(4 of 8)
the incident with the respondent in a room alongwith one Gotu
Khan was not established, as the door was got opened, but any
such fact of illicit relationship has not been established by the
10. On the contrary, the respondent has alleged that she
had in fact caught the appellant in a compromising position with
his brother’s wife, and on protest, she was given beating on
15.06.2010. The learned court below thereafter has rightly taken
a view that such an act in the given circumstances would not
amount to cruelty. Leaving of the matrimonial home by the
respondent also did not amount to cruelty, as it was a conjoint
decision taken by the family members and the other villagers with
the help of conciliation conducted by the family members,
whereby the decision of the respondent living in a rented premises
was arrived at. Thus, all the issues were decided in favour of the
respondent. The learned court below therefore, after a detailed
consideration, arrived at a logical conclusion that the appellant
had failed to establish any cruelty or desertion on the part of the
respondent, and therefore, could not establish the grounds
necessary for invoking Section 13 of the Act.
11. Moreover, “cruelty” has no definition in the legislation
itself, and therefore, decision has to be arrived at after
appreciation of the basic facts of each case, and broadly, “cruelty”
would mean that the personal relationship has arrived at such a
juncture that it would be not be possible for one of the spouse to
live day-to-day with the other. Thus, the mental and physical
element both are ingredients of such definition of “cruelty” and the
(5 of 8)
same cannot be extracted only out of mere allegations against
each other, as the law would require something more definite for
bringing the present facts into the ambit of cruelty or desertion.
12. In (1975) 2 SCC 326 (N.G.Dastane (Dr.) v.
S.Dastane) it was observed as follows:-
“34……In many marriages each party can, if it so
wills, discover many a cause for complaint but such
grievances arise mostly from temperamental
disharmony. Such disharmony or incompatibility is
not cruelty and will not furnish a cause for the
dissolution of marriage. We will therefore have
regard only to grave and weighty incidents and
consider these to find what place they occupy on
the marriage canvas……”
13. In (2007) 4 SCC 511 : Samar Ghosh Vs. Jaya Ghosh
dealing with the term mental cruelty it was observed as follows:-
“98. On proper analysis and scrutiny of the judgments
of this Court and other Courts, we have come to the
definite conclusion that there cannot be any
comprehensive definition of the concept of ‘mental
cruelty’ within which all kinds of cases of mental cruelty
can be covered. No court in our considered view should
even attempt to give a comprehensive definition of
99. Human mind is extremely complex and human
behaviour is equally complicated. Similarly human
ingenuity has no bound, therefore, to assimilate the
entire human behaviour in one definition is almost
impossible. What is cruelty in one case may not
amount to cruelty in other case. The concept of cruelty
differs from person to person depending upon his
upbringing, level of sensitivity, educational, family and
cultural background, financial position, social status,
customs, traditions, religious beliefs, human values and
their value system.
100. Apart from this, the concept of mental cruelty
cannot remain static; it is bound to change with the
passage of time, impact of modern culture through
(6 of 8)
print and electronic media and value system etc. etc.
What may be mental cruelty now may not remain a
mental cruelty after a passage of time or vice versa.
There can never be any strait-jacket formula or fixed
parameters for determining mental cruelty in
matrimonial matters. The prudent and appropriate way
to adjudicate the case would be to evaluate it on its
peculiar facts and circumstances while taking
aforementioned factors in consideration.
101. No uniform standard can ever be laid down for
guidance, yet we deem it appropriate to enumerate
some instances of human behaviour which may be
relevant in dealing with the cases of ‘mental cruelty’.
The instances indicated in the succeeding paragraphs
are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the
parties, acute mental pain, agony and suffering as
would not make possible for the parties to live with
each other could come within the broad parameters of
(ii) On comprehensive appraisal of the entire
matrimonial life of the parties, it becomes abundantly
clear that situation is such that the wronged party
cannot reasonably be asked to put up with such
conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount
to cruelty, frequent rudeness of language, petulance of
manner, indifference and neglect may reach such a
degree that it makes the married life for the other
spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of
deep anguish, disappointment, frustration in one
spouse caused by the conduct of other for a long time
may lead to mental cruelty.
(v) A sustained course of abusive and humiliating
treatment calculated to torture, discommode or render
miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of
one spouse actually affecting physical and mental
health of the other spouse. The treatment complained
of and the resultant danger or apprehension must be
very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect,
indifference or total departure from the normal
standard of conjugal kindness causing injury to mental
(7 of 8)
health or deriving sadistic pleasure can also amount to
(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
(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
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
(xii) Unilateral decision of refusal to have intercourse
for considerable period without there being any
physical incapacity or valid reason may amount to
(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
(8 of 8)
14. The application under Section 13 of the Act was filed by
the appellant alleging cruelty in the behaviour of the respondent,
and therefore, the burden of proof was upon him.
15. The appellant in this case has miserably failed to
establish the fact of cruelty and desertion at the instance of the
respondent. The appellant himself was partly responsible for the
cruelty and desertion, and therefore, the same cannot be totally
attributed to the respondent and the appellant cannot be allowed
to take the benefit of the circumstances created by his own
behaviour. Thus, the appellant, on having failed to establish the
cruelty and desertion under Section 13 of the Act, there is no
reason to arrive at any different conclusion than the one arrived at
by the learned court below looking into the entirety of the facts
and circumstances of the case.
16. Consequently, the present appeal fails and the same is
(DR.PUSHPENDRA SINGH BHATI)J. (PRADEEP NANDRAJOG)CJ.