IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :- Hon’ble Mr. Justice I. P. Mukerji
Hon’ble Justice Subhasis Dasgupta
FA 60 of 2018
Pranay Kumar Kundu
Vs.
Smt. Rupanjana Kundu
For the Appellant :- Mr. Asit Barun Raut,
Mr. Tuhin Subhro Raut,
Ms. Ishita Raut, Adv.
For the Respondent :- Mr. Swagata Datta,
Mr. Rajib Lochan Chakraborty,
Mrs. Vaswati Chakraborty,
Ms. Sneha Chatterjee,
Mr. Subhadip Chakraborty, Adv.
Judgment On :- 15.02.2019
I.P. MUKERJI, J.:-
I have had the privilege of reading the draft judgment prepared by my brother,
Mr. Justice Subhasis Dasgupta. I am in full agreement with the conclusions
his lordship has reached. However, I would like to add a few words of my own.
This marriage between the parties which seemingly started on a happy note
ended for all practical purposes within three months of marriage. The
marriage took place on 3rd February, 2013 by registration under the Special
Marriage Act, 1954. The marriage according to religious and social rites was
arranged on 4th March, 2013. Why I say that this marriage started on a
seemingly very happy note is because this couple had two honeymoons
shortly after the marriage. On and from 19th to 25th March, 2013 the parties
were holidaying in Puri. Not even a month passed. On 19th April, they were off
to Shimla on a tour of Himachal Pradesh. It appears that trouble started
between them during this holiday. Not a week passed after the return of the
couple from their second honeymoon. On 3rd May, 2013 the respondent/wife
lodged a First Information Report with the Officer-in-Charge of Uttarpara
Police Station which was registered and a case under Section 498A of the
Indian Penal code started against the appellant/husband. What was stated by
the respondent in the First Information Report was that immediately after the
ceremonial marriage on 4th March, 2013 her husband, father-in-law and
mother-in-law started torturing her demanding Rs.2 lakhs as dowry which
allegedly was demanded from her parents at the time of her marriage.
It seems that immediately after their return from Himachal Pradesh the
parties started residing in a flat in Uttarpara. The respondent stated in the
First Information Report that the night before the First Information Report
was prepared, the appellant had asked her to call her parents by telephone to
deliver Rs.1 lakh immediately. As the respondent refused to telephone, she
was physically assaulted and threatened with death. The gold jewellery and
other items of furniture that were made over by her parents to the appellant’s
parents were itemized below the First Information Report.
Later it transpired that the holiday in Puri was incident free. Discord between
the couple started in Shimla. According to the evidence of the respondent, she
was kept confined by her husband in a hotel in Shimla called Pitter Hoff for 2
to 3 days and was not provided proper food. The husband kept on demanding
Rs.2 lakhs as the unpaid dowry amount. The matrimonial home was the
Uttarpara flat. There, she was repeatedly physically assaulted which she bore
in silence. There is some discrepancy in the testimony of the wife. The
evidence given by the husband reveals that the couple only stayed for one
night in Pitter Hoff Hotel in Shimla. The phone call details of the wife’s mobile
phone reveal that she made several calls to her parents.
It also appears from the evidence of the husband (Paragraph 39) that the wife
ceased to live with him after 3rd May, 2013.
Now, the only question which falls for consideration is whether in this brief
marriage between the parties, the respondent/wife was subjected to mental
torture so as to entitle her to obtain divorce under Section 27(1)(d) of the
Special Marriage Act, 1954. There is no dispute whatsoever that cruelty
includes within its ambit mental cruelty. The allegation of the wife is that she
was subjected to great mental cruelty in these three months of marriage.
The Concise Oxford English Dictionary defines cruelty as cruel behaviour or
attitudes. It also signifies behaviour which causes physical or mental harm to
another whether intentional or not. Cruel according to that dictionary is
described as disregarding or taking the pleasure in the pain or suffering of
others or causing pain or suffering. In my opinion, any action, conduct or
behaviour of a person causing pain or suffering to his spouse in his or her
mind or affecting a person psychologically or psychiatrically is mental cruelty.
An intention to cause it must be involved. In V. Bhagat Vs. D. Bhagat
reported in AIR 1994 SC 710 (Paragraph 17), while defining mental cruelty
the Supreme Court has remarked “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.” (As per Justice
B.P. Jeevan Reddy). In my view, whether a person has subjected his spouse to
mental torture is an assessment to be made by the Court in a subjective
manner. The incidents of mental torture do not form a closed category. It
would depend from case to case on the subjective satisfaction of the learned
Judge trying the case. When the Court finds that a spouse has been subjected
to mental torture it will relieve him or her from the cause of it, i.e. marriage. It
grants dissolution of the marriage by pronouncing divorce.
In this case the marriage lasted just 3 months from 3rd February to 3rd May,
2013. There is ample evidence that even during their honeymoon in Shimla
the wife was very unhappy. That she was detained for 3 days in a hotel room
may not have been proved but it is quite certain that the husband made
dowry demands on her to bring Rs.2 lakhs from her parents, during the
honeymoon. Otherwise, why would the wife, immediately on her return lodge a
First Information Report with the police accusing the husband of demanding
dowry. By treating marriage as a transaction or sale of a commodity, a person
can reach the greatest mental pain to his spouse. This is manifested in our
society by demand for dowry, as if the wife’s family has to pay for the stay of
their daughter in the husband’s house and compensate him for accepting that
liability. A sense of insecurity, pain and suffering is even more likely if this
kind of conduct is shown by the husband during the honeymoon. The wife
also deposed that immediately on their return from Shimla the husband
started renewing that demand for Rs.2 lakhs and physically beat her up.
In my view, the learned Judge of the Court below has very rightly appreciated
the facts and held that the respondent/wife was subjected to mental cruelty
and granted a decree of dissolution of marriage on this ground.
For the reasons given above, I would affirm the judgment of the Court below
and dismiss the appeal.
The respondent is given liberty to make an application for permanent alimony
under Section 37 of the Special Marriage Act, 1954.
(I. P. MUKERJI, J.)
Subhasis Dasgupta, J. :-
This appeal is against the judgment and decree dated 29th August, 2017
passed by the learned Additional District Judge, Fast Track Court-1, Sealdha
in Matrimonial Suit No. 20 of 2015 granting dissolution of marriage by decree
of divorce.
The Trial Court perceived that acts of appellant/husband as a complete
reflection of attitude towards commissioning mental cruelty upon
wife/respondent, spread over couple of months after the marriage, the
justifiability of which, is a subject matter of assail in this case.
This is a very unfortunate case, where admittedly marital life lasted for short
spell i.e for a couple of months. The appellant/husband working as System
Analyst tied his knot with respondent/wife by getting their marriage registered
on 3.2.2013 under the provisions of Special Marriage Act 1954. It was
subsequently celebrated socially on 4.3.2013. Though marriage was
registered under Special Marriage Act, guardian of both parties in course of
negotiation visited each other’s house for a good number of times prior to its
social celebration. In the petition for divorce filed before the Trial Judge, it
was averred that respondent/wife was taken to appellant/husband’s house on
5.3.2013 for leading a peaceful marital life. During continuance of conjugal
life both parties admittedly visited together Puri from 19.03.2013 to
25.03.2013 and further departed to Shimla from 19.04.2013 to 28.04.2013.
Marital discord and total non-compatibility cropped up in course of their visit
to Shimla. It was pleaded that when they left for Shimla basically for
honeymoon, the appellant/husband subjected wife/respondent to cruelty by
keeping the wife confined in the hotel under lock and key, and by not
providing any food to her and also by attempting to push her down from one
of the hills top. The cause of cruelty, as set forth, was ascribed to be post
marital demand by husband to the tune of Rs. 2,00,000/-, and non-
satisfaction thereof. The respondent/wife had to receive and sustain physical
assault, abuses in the hands of her in-law’s members including
appellant/husband over such issues for days together in her matrimonial
home. All efforts of wife to get in touch with her parents from matrimonial
home went in vain, as she was not allowed to make contact with her parents
from her matrimonial home. The wife/respondent on 3.5.2013 found an
opportunity of contacting her parents for a mistake of the appellant/husband
and in law’s members, as they forgot to lock the door of her room. She made
contact with her parents after leaving the matrimonial home under a
compelling circumstances making full utilisation of opportunity. Her parents
then rescued the respondent/wife from her matrimonial home, and saved her
from the wrath of her in law’s members including appellant/husband.
Subsequently, a criminal case under Section 498A/323/406 IPC was lodged
against the appellant/husband and in law’s members, which is still pending.
The appellant/husband, as pleaded in his written statement, denied the
allegations of having committed any cruelty over a demand of money. The
specific defence raised was that a few days after marriage the wife/respondent
turned to be very much rude, cruel, annoying and reluctant to show any kind
of affection, and when enquired about reason, the behaviour exposed to
appellant/husband by the wife caused very much annoyance to
appellant/husband. The wife/respondent persuaded husband/appellant to
become domesticated son-in-law, and insisted on staying together in the
paternal home, which the appellant/husband refused to concede. The
appellant/husband, however, started living with his wife in a separate flat at
Uttarpara with his wife. Since he was willing to continue his conjugal
relationship with wife/husband, he filed a separate proceeding for restitution
of his conjugal right, which was subsequently withdrawn. He wanted to get
back his wife to continue their conjugal relationship upon cancellation of
decree of divorce, already granted by Trial Court.
Learned advocate for the appellant/husband argued that the factum of cruelty
having not been proved beyond reasonable doubt to the satisfaction of the
Court, the onus cast upon wife/respondent could not be said to be have been
discharged. Adverting to receipt of hotel of Himachal Pradesh Tourism
Development Corporation and in particular Peterhof (Exhibit-B), argument
was raised that since the parties together stayed in the hotel Peterhof, Shimla
for 18 hours only (approx), the unfounded allegation of subjecting the
wife/respondent to mental cruelty by keeping her confined and without
providing her foods in hotel Piterhof and attempting to push her down from
one of the hills top for the non-satisfaction of the post marital demand of
Rs.2,00,000/- were all afterthought, concocted and devoid of any substance.
It was contended in course of argument that the oral testimony of
respondent/wife, examined as PW1, was not at all believable, trustworthy, as
she spoke in her evidence that she had been denied of making any contact
with her parents from her matrimonial home, but the call list of mobile phone
of wife/respondent (exhibit-C) would reveal that on 3.5.2013 she made call to
appellant/husband at about 8:19:06 hours with a duration of 6.50 minutes,
which alone was sufficient to reveal that wife herself had a separate mobile
phone of her own, which she strategically kept concealed in the interest of the
case, and the Trial Court thus made a mistake in not discarding her testimony
and in coming to an interference of causing cruelty upon wife, perceptible
from the acts and conducts of the appellant. It was further focused with
emphasis during argument that acts and incidents, complained of were not at
all grave and weighty, something more serious than ordinary wear and tear of
marriage life, and as such the decree of divorce on the ground of perceptible
cruelty could not be allowed to sustain.
Learned advocate for the respondent/wife supporting the decree of divorce of
Trial Court submitted that mental cruelty could cause even more serious
injury than the physical harm, and create in the mind of injured such
apprehension, as is contemplated in the Section. Thus according to
respondent/wife that wilful treatment meted out to wife by husband caused
suffering in her mind by way of such apprehension in such a manner as to
render the continued living together of complaining spouse/ harmful or
injurious having regard to the circumstances involved in the case.
For appreciation of rivalised submissions raised at the Bar, I carefully
considered the petition, written statement, evidence adduced by the parties,
both oral and documentary, and the judgment of Trial Court. In this case the
respondent/wife examined herself as PW1, and her father as PW 2 in her
corroboration. The appellant, however, chose to examine one witness only by
examining himself as DW1. The Court below formulated following points for
the purpose of decision in this case.
1. Whether the suit is maintainable in its present form and prayer?
2. Whether the plaintiff has any cause of action for filing of this case?
3. Whether the plaintiff was subjected to physical and mental torture,
cruelty by the respondent without any sufficient cause?
4. Whether the plaintiff has any cause of action for filing of this case is
entitled to have any relief, as prayed for?
5. Whether the relief or reliefs, if any the plaintiff is entitled to get as
prayed for?
The seminal question required to be addressed by us, is whether the decree of
divorce granted by the Trial Court should be interfered with or not. At the
very threshold of this case it is to be put on record that the chance of
reconciliation and mediation thereafter for more than once turned to be futile
exercise. Even before this Court in the midst of hearing, I persuaded both the
parties through their learned advocates to forget their matrimonial differences,
irrespective of whatsoever had happened with a noble approach to reconcile
their differences, when it was revealed that the parties were not even prepared
to go for a settlement aiming at rejoining their conjugal life. In this view of the
matter, the complaining spouse (wife) cannot be expected to be compelled to
live together in violation of her personal liberty.
As regards, the first point raised by appellant pertaining to not proving the
factum of cruelty in discharge of the onus, it appears that learned Trial Court
proceeded to hold that the contention set forth in the petition for divorce could
not be supposed to be proved with mathematical precision, or to the extent of
proof of reasonable doubt to the satisfaction of the Court. The question,
therefore, left to be decided is whether principle of law adhered to by the Trial
Court, while determining the case for divorce in a matrimonial proceeding is
with the sanction of law or not? The wife, examined as PW1, testified her
averments contained in the petition for divorce by adducing evidence, which
was ratified by the version of PW2, the father of wife. The oral testimony of
witnesses was attempted to be ratified by document, marked as Exhibit-2,
FIR. Upon consideration of the oral testimony of witnesses, examined by the
respondent/wife together with the exhibited documents, the Trial Court
proceeded to draw inference pertaining to commission of mental cruelty upon
the respondent/wife by the appellant/husband adhering to the principle of
preponderance of probability under Section 3 of the Evidence Act. The
argument of appellant was replied by respondent submitting that the concept
of proof of beyond reasonable doubt to the satisfaction of the case would be
applicable in a case of conducting criminal trial, where the standard of decree
of proof would be much more higher than the standard of proof required in
the instant case.
It would be profitable here to refer the relevant paragraphs of a decision Dr. N.
G Dastane v. Mrs. S. Dastane reported in AIR 1575 SC 1534, wherein it
was decided that the matrimonial proceedings are essentially of civil nature,
in which satisfaction of the Court has to be reached upon determination of a
fact on preponderance of probabilities, and not under the principle of beyond
reasonable doubt to the satisfaction of the Court, what is strictly applicable in
criminal cases.
The relevant paragraphs are as follows:-
“24.The normal rule which governs civil proceedings is that a
fact can be said to be established if it is proved by a preponderance of
probabilities. This is for the reason that under the Evidence Act, Sec.
3, a fact is said to be proved when the court either believes it to exist
or considers its existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the supposition
that it exists. The belief regarding the existence of a fact may thus be
founded on a balance of probabilities. A prudent man faced with
conflicting probabilities concerning a fact situation will act on the
supposition that the fact exists, if on weighing the various probabilities
he finds that the preponderance is in favour of the existence of the
particular fact. As a prudent man, so the court applies this test for
finding whether a fact in issue can be said to be proved. The first step
in this of process is to fix the probabilities, the second to weigh them,
though the two may often intermingle. The impossible is weeded out
at the first stage, the improbable at the second. Within the wide range
of probabilities the court has often a difficult choice to make but it is
this choice which ultimately determines where the preponderance of
probabilities lies. Important issues like those which affect the status of
parties demand a closer scrutiny than those like the loan on a
promissory note: “the nature and gravity of an issue necessarily
determines the manner of attaining reasonable satisfaction of the truth
of the issue” Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191 at p.
210; or as said by Lord Denning, “the degree of probability depends
on the subject-matter. In proportion as the offence is grave, so ought
the proof to be clear. Blyth v Blyth, 1966-1 ALL ER 524 at p.536.” But
whether the issue is one of cruelty or of a loan on a pro-note, the test
to apply is whether on a preponderance of probabilities the relevant
fact is proved. In civil cases this, normally, is the standard of proof to
apply for finding whether the burden of proof is discharged.
25. Proof beyond reasonable doubt is proof by a higher
standard which generally governs criminal trials or trials involving
inquiry into issues of a quasi-criminal nature. A criminal trial involves
the liberty of the subject which may not be taken away on a mere
preponderance of probabilities. If the probabilities are so nicely
balanced that a reasonable, not a vacillating, mind cannot find where
the preponderance lies, a doubt arises regarding the existence of the
fact to be proved and the benefit of such reasonable doubt goes to the
accused. It is wrong to import such considerations in trials of a purely
civil nature.”
The findings thus reached by the Trial Court, while making appreciation of the
evidence, as regards proof of cruelty in any form so as to discharge the due
onus of wife/respondent, under the principle of preponderance of
probabilities, would thus go unaltered.
Several questions surfaced at the instance of appellant pertaining to the
allegation of subjecting the wife/respondent to mental cruelty in course of her
visit to Shimla by keeping her confined hotel without supplying her any food,
making attempt to push her down form one of the hills top and putting wife
to suffer and sustain cruelty in any form in closed door room of matrimonial
home over the issue of demand of money and its non-satisfaction thereof, on
the basis of a unfounded and concocted allegation which are supposed to be
addressed and answered by us accordingly, it appears that learned advocate
for appellant persuaded us to believe relying on hotel receipt, marked as
Exhibit-B, issued by the hotel Piterhof, Shimla, Himachal Pradesh that when
stay in hotel was for brief period i.e. for 18 hours (approx), there left no
sufficient occasions to cause any cruelty in any manner whatsoever, and it
was, thus, manufactured subsequently to serve out the purpose of the
wife/respondent. Exhibit-B, the receipt issued by the hotel Piterhof, under
the Himachal Pradesh Tourism Development Corporation, according to the
appellant is a sheet anchor, which itself is sufficient to controvert the
allegation of causing cruelty upon respondent/wife in any manner whatsoever
in course of visit to Shimla, Himachal Pradesh. Upon perusal of such hotel
receipt, it appears that parties together boarded hotel on 21.04.2013 at about
13:53 hours and had their departure from Piterhof hotel on the following date
i.e. on 22.4.2013 at about 09.04.02 hours.
The evidence of wife PW1 left materials to show that she had been confined
without providing her any food at Piterhof hotel, Shimla only and not in any
other hotels of Himachal Pradesh. The evidence was there that the wife did not
complain of such abnormal behaviour of her husband, indicative of
commissioning mental cruelty, to any hotel boys, or any people of the hotel.
The abnormal treatment, the wife received, was admittedly not brought to the
attention of any police personnel of Shimla or Air-Port police personnel
immediately. Though the appellant/husband endeavoured sincerely to
controvert the allegation of causing cruelty in any manner whatsoever upon
the respondent/wife by producing hotel receipt, collected during the course of
visit to Himachal Prodesh, but there was nothing to show about providing or
supplying food, on purchase from anywhere, to wife/respondent during her
stay in hotel Piterhof, though for brief period.
The cause of putting the wife to cruelty in any form, as testified in evidence of
respondent/wife, was the post marital demand of Rs.2,00,000/- by husband
and non-satisfaction thereof. Admittedly the wife/husband came to her
matrimonial home on 5th March, 2013 for leading a peaceful conjugal life.
Besides the date of ‘Asthamangala’, popularly observed after marriage when
married couple would visit together in the paternal house of wife, parties to
this case visited together outside on two occasions, one for visit to Puri for the
period from 19.03.2013 to 25.03.2013 i.e. for 7 days, and another for visit to
Shimla for honeymoon purpose for the period from 19.4.2013 to 28.4.2013 i.e.
for 10 days. The FIR lodged by the wife/respondent on 4th May, 2013 after
she was compelled to live matrimonial home receiving mental cruelty for days
together, left materials to show that wife was put to face cruelty in any form at
least in her matrimonial home by her in law’s members including the
appellant/husband over the issue of non-satisfaction of post marital demand
to the tune of Rs.2,00,000/-. Evidence was transpired specifically in the
cross-examination of PW1/wife, that she was severely tortured by her
husband, and in consequence thereof, she became a mental patient for her
mental equanimity having lost. The cause of cruelty, as testified by PW1,
received substantial support from the FIR lodged by wife, marked as Exhibit-
2. There was categorical evidence in the cross-examination of PW1/wife, that
she would usually sought, when she was put to face torture and cruelty in the
hands of her husband in a closed door of her room, and as there was no
neighbours around her matrimonial home, so none could hear her shouting. It
was categorical evidence of PW1/wife that she was not willing to go with her
husband in her matrimonial home, as there was some life risk to her. The
testimony of wife/respondent may be discredited upon proof of circumstances,
contrary to those already transpired, at the instance of husband/appellant
upon pleading specific averment in written statement followed by proof of the
same. The evidence of the husband, DW-1 however, failed to fetch sufficient
materials to reveal that the room in which the petitioner was put to face
cruelty was surrounded by several houses, occupied by close neighbours
having had their opportunity to know about the incident complained of. In
the absence of such stand having established in the testimony of evidence
pursuant to the specific averment having taken to that effect, it would be very
difficult to disbelieve the testimony of PW1/wife, that the cruelty, if any,
inflicted upon the wife/respondent, was supposed to be experienced by many
adjoining neighbours of the matrimonial home for having had their
opportunity to know to that effect. It was not the case of appellant also.
Though, the appellant/husband stated in his version that he was willing to
take back his wife for rejoining again to his matrimonial life with
respondent/wife, but surprisingly the prayer for restitution of conjugal life,
filed by the appellant/husband, subsequent to the institution case under
Section 498A/406/323 I.P.C., was withdrawn by the appellant/husband for
the reasons best known to the appellant. The withdrawal of the proceeding for
restitution of conjugal right by appellant/respondent voluntarily was highly
suggestive to reveal the true intention, contrary to that already pleaded and
endeavoured to establish during the trial of this case. It was not the case of
appellant that subsequently a proceeding for restitution of conjugal right was
again instituted at least to give effect to his intention, matching with the
defence of the case attempted to be established.
A notice dated 29.5.13 through advocate was, however, seen to have been
served upon the respondent/wife, after the wife had left the matrimonial home
on 3.5.13 under compelling circumstances. It was not a single occasion,
when the appellant/husband made phone call to wife/respondent assuring
her to give all security of life to her, that she, according to her own
assessment, felt short of. Mere oral assertion claiming that husband was
willing to take back his wife giving all security to her, which she needed for
her survival on this earth, without translating his true intention into physical
and positive action would not be sufficient enough for the purpose,
contemplated by husband, and such assertion appears to be far from
satisfactory.
The stand developed in the written statement as well as evidence adduced by
the appellant/husband was that since appellant/husband refused to concede
to the proposal of respondent/wife to become a domesticated son-in-law, the
behavioural pattern of wife suddenly got changed, as she preferred to stay in
her parental house leaving matrimonial home in exercise of her own choice
without discharging the marital obligation to appellant/husband.
My attention was drawn to the FIR marked as Exhibit-2, where according to
appellant, there was material suppression of facts pertaining to the visit of
Himachal Pradesh and the treatment, alleged to have been meted out to her
by her husband, causing her to suffer cruelty in any form remained omitted,
and it was omitted presumably on the ground that nothing serious happened
there besides wear and tear of marital life in course of visit to Shimla. True it
is that such episode pertaining to the visit of Himachal Pradesh remained
omitted in the FIR. It is not the settled principle of law that each and every
details including all episode of marital life have to be necessarily put in the
FIR, initiated basically to start a prosecution under Section 498A/323/406
I.P.C. In that view of the matter the reasoning offered by the appellant
regarding suppression of material facts in the FIR deserves no acceptance.
The appellant/husband further challenged the version of respondent/wife,
basically founded upon the allegation of causing cruelty, banking upon the
certified copy of chargesheet, marked as Exhibit-A, wherein the investigating
officer observed that no external injury could be found on the person of the
respondent/wife in course of submission of his chargesheet. Thus, according
to appellant in the absence of any proven injury on the person of the
respondent/wife, the allegation of causing cruelty over a demand of money for
a continuous period of time was without any substance.
From the findings reached by the Trial Court, it appears that the case having
its substratum rested upon the allegation of causing physical cruelty could
not be successfully proved, and however, upon evaluation of the entire marital
life in the context of the abnormal treatment, that she/wife, received and had
to sustain for days together and its consequent impact left on the mind of the
wife, learned Court below proceeded to draw an inference that such nature of
conduct and its effect on the complaining spouse caused reasonable
apprehension on her mind that would be harmful and injurious to live with
the other (the husband).
Had it been a pure case of causing physical cruelty, question of fact and the
degree of causing physical cruelty would have been a matter of consideration,
but in case of mental cruelty such standard of assessment cannot be made
with arithmetical precision and exactitude, and its is matter of inference that
has to be drawn upon viewing the entire episode of marital life of the parties.
In his sincerest effort of appellant to challenge the decree of divorce granted
on ground of mental cruelty, my attention was further drawn to a piece of
entry made in the diary, maintained by the wife/respondent, dated 29.4.2013,
(Exhibit-E), wherefrom it would appear that the respondent/wife was thought
of requisitioning some household items for the use of matrimonial home, and
adverting to such unilateral entry of diary, dated 29.4.2013 of wife, learned
advocate for the appellant persuaded us to believe that there had been no
matrimonial discord between them at least till 29.4.2013, the day after the
visit of Shimla, Himachal Pradesh.
The argument raised by the appellant was thus spearheaded to suggest that
the incompatibility of the parties, the wear and tear of the matrimonial life, for
any reason whatsoever was not at all weighty and grave with a dimension of
very serious in nature, such wear and tear of the conjugal life, if any, was
condoned by respondent/wife herself, otherwise she would not have
contemplated to make any requisition for household items for the use of
matrimonial home. It is, therefore, for us to decide whether the
respondent/wife virtually condoned the acts and conducts of her husband,
now complained of, when she at least on 29.04.2013 contemplated to make
requisition for household items by doing an entry in her diary. Admittedly the
respondent/wife being accompanied by husband returned from Shimla,
Himachal Pradesh trip on 28.4.2013 i.e. day before making such requisition
for household items. Condonation connotes forgiveness of the matrimonial
offence and the restoration of offending spouse to the same position, as he or
she occupied before the commencement of matrimonial discord. Condonation
is always subject to an implied condition that the offending spouse will not
make recurrence of such acts and conducts, not akin to peaceful enjoyment of
conjugal life, either of the same variety, as the one condoned, or any other
variety. The evidence of wife PW1 indicated that on the day before she had left
her matrimonial home under compelling circumstances, she was subjected to
physical assault, abuses in a closed door room by her appellant/husband, the
impact of which was even noticed by the father of the wife/PW-2 on the
person of the injured wife, when the father rushed to matrimonial home of his
daughter following receipt of intimation form his daughter seeking rescue.
Even on assumption, as per argument advanced by the appellant, that
respondent wife had already condoned the preparation of cruelty on her in
any form, the appellant/husband by his subsequent conduct, manifested
through the acts and conducts, complained of again on 2.5.2013 forfeited the
condition of forgiveness thereby reviving the original cause of action for
dissolution of marriage on the ground of cruelty.
It was arduously argued by appellant with all emphasis that testimony of
PW1, which was relied upon by the Trial Court, would not inspire any
confidence on the sole premise that the wife/respondent purposefully made
suppression of fact with regard to possession of her own mobile phone in this
case with cooked up materials alleging that the wife/respondent was not
allowed to communicate with anybody else from her matrimonial home.
To facilitate the stand appellant made reference to call register of mobile
phone, issued by Airtel mobile services, Exhibit-C, and certified copy of
deposition of wife/PW1 (Exhibit-D), said to be adduced in connection with a
proceeding under Section 498A I. P.C. initiated at the instance of wife.
Banking upon those two exhibited documents, argument was forwarded
contending that the wife respondent was not true to her version and Trial
Court below committed a serious mistake in attaching confidence on her
testimony. The call register revealed that on 3.5.13 the wife at about 8.19
hours called to her husband/appellant for a duration of 6.50 minutes, and
suggested accordingly that it was itself sufficient to reveal that
respondent/wife had a mobile phone in her possession, prior to she left her
matrimonial home, and what she exactly stated in her evidence, adduced in
connection with a 498A I.P.C. proceeding. The evidence of wife, adduced in
connection with a 498A I.P.C. proceeding, is not complete one, as wife is yet to
face further cross-examination. The entry of call register of mobile phone
together with, the testimony of wife adduced in a 498A I.P.C. proceeding
would not attract one and only conclusion that at the material point of time,
when she continued to stay in her matrimonial home, she had a mobile phone
in her possession and that too in working or operative condition, when there
are several other probabilities with regard to the availability of mobile phone,
conducive atmosphere in the matrimonial home suggestive to make calls, and
the soundness of the mobile phone having sufficient connectivity/coverage,
charging condition of the battery and further the financial capacity of the
person, said to be possessing mobile phone in full working and operative
condition. In the absence of any such evidence having transpired in
elimination such other probabilities, the argument advanced pertaining to the
conclusion that the wife/respondent had a mobile phone in her possession in
the matrimonial home and that too in operative condition deserves no
acceptance, particularly when it was the evidence of wife/appellant that she
was not allowed to communicate with her parents from her matrimonial
home.
Reference was made by appellant in his move against the decree of divorce, to
decision of Apex Court rendered in the case of Dr. N. G Dastane v. Mrs. S.
Dastane (supra) that the acts and conducts complained of on the part of the
appellant/husband were simple trivialities, synonymous with reasonable wear
and tear of marital life, plain and simple incompatibility in their mental
understanding, and same could not be described to have constituted mental
cruelty, and further such acts were not something more serious than ordinary
wear and tear of marital life, not at all grave and weighty. Reliance was thus
placed on para 34 of the said judgment of Apex Court which may be quoted as
follows:
“34. We do not propose to spend time on the trifles of their
married life. Numerous incidents have been cited by the appellant as
constituting cruelty but the simple trivialities which can truly be
described as the reasonable wear and tear of married life have to be
ignored. It is in the context of such trivialities that one says that
spouses take each other for better or worse. 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.”
Reliance was further placed by appellant on the decisions of the Apex Court
rendered in the case of A. Jayachandra V. Aneel Kaur reported in AIR 2005
SC 534, Naveen Kohli V. Neelu Kohli reported in AIR 2006 SC 1675, Smt.
Mayadevi V. Jagdish Prasad reported in AIR 2007 SC 1426 to make the
stand more strengthened that acts complained of without being grave and
weighty could not be said to constitute mental cruelty. Those decisions
referred above dealt with by the Apex Court described the mode, manner and
extent, when the mental cruelty could be effectively construed in a given
circumstances of the case, which necessarily has to be grave and weighty and
something more serious than ordinary wear and tear of marital life.
The learned advocate for the appellant having taken refute to such decision of
Apex Court sincerely made his efforts to establish that the decree of divorce
granted by the Trial Court was contrary to the law, as the conduct complained
of on the part of the appellant/husband was nothing more than wear and
tear, incompatibility in their understanding, not something more serious than
ordinary wear and tear of marital life and it was not at all grave and weighty.
To throw challenge against the decisions, referred above the appellant shelter
was taken by respondent /wife on a decision rendered by Apex Court in the
case V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337 in
support of the stand that the mental cruelty caused to be suffered by
wife/respondent was of such mature and dimension that the parties cannot
be reasonably expected to live together, even to endure such extent of
undesirable and abnormal treatment of husband. It would be relevant her to
refer the relevant excerpt of para 16 of the said judgment which may be
quoted as hereunder:-
“16. Mental cruelty in Section 13(1)(i-a) 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 expected to live together. The
situation must be such that the wronged party 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.
Argument was advanced at the instance of respondent/wife that personal life
and liberty of a person cannot be subjected to deprivation, except according to
the procedure established by law under Article 21 of the Constitution. Thus
referring to Article 21 of the Constitution of India, it was submitted that when
the complaining spouse (wife) felt insecured and apprehended reasonably that
her life might be at stake in the event she was compelled to join her
matrimonial home, because the essence of life, what is called heart/sole
having considerably deteriorated and degenerated to such an extent following
receipt of abnormal behaviour/treatment of husband, indicative of
commissioning mental cruelty, for days together on the ground of non-
satisfaction of post marital demand, the complaining spouse (wife) cannot be
reasonably expected to live together with her husband at the cost of her live.
The extent of mental cruelty, as argued by respondent/wife cannot be
assessed with all exactitude, and it is act and conduct and abnormal
treatment extended to wife by husband, complained of and the consequent
effect on the mind of the complaining spouse, would be of highest significance.
The Apex Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane (supra)
as referred by appellant, observed as follows:
“The Enquiry therefore has to be made whether the conduct of
charges as cruelty is of such character as to cause in the mind of the
petitioner a reasonable apprehension that it will be harmful or
injurious for her to live with husband”.
The apex Court further observed in the case of A. Jayachandra V. Aneel
Kaur reported in (2005) 2 SCC 22, the relevant text of which may be
mentioned hereunder:-
“In cases where there is no direct evidence, Courts are required
to probe into the mental process and mental effect of incidents that are
brought out in evidence. It is in this view that one has to consider the
evidence in matrimonial disputes”.
The question whether act complained of was a perpetration of cruelty ,is to be
determined from the facts asserted by both the parties, and the matrimonial
relation held between the parties. While determining such cruelty particularly
the mental cruelty, the culture, upbringing, educational status in life level of
sensitivity of complaining spouse and many other matters are of great
concern.
The apex Court has given certain illustrative examples in the case of Samar
Ghosh v. Jaya Ghosh in connection with appeal (civil) 151 of 2004 decided
on 26.3.2007 reported in (2007) 4 SCC 511 wherefrom inference of mental
cruelty can be drawn. The Apex Court itself observed that those examples are
illustrative and not at all exhaustive. The Apex Court further considered
several decisions, already rendered and operative in the field of mental
cruelty, while exemplifying some illustrations. The case of Dr. N.G. Dastane
v. Mrs. S. Dastane (supra) , as referred by appellant, was also noticed by the
Apex Court including the case of V. Bhagat v. D. Bhagat (Mrs.) (supra), as
referred by the respondent with many other cases.
Before identifying such illustrative examples, the Apex Court in the case of
Samar Ghosh v. Jaya Ghosh (supra) made some observations which may be
delineated as follows:
“To constitute cruelty, the conduct complained of should be
“grave and weighty” so as to come to the conclusion that the petitioner
spouse cannot be reasonably expected to live with the other spouse. It
must be something more serious than “ordinary wear and tear of
married life”. The conduct taking into consideration the circumstances
and background has to be examined to reach the conclusion whether
the conduct complained of amounts to cruelty in the matrimonial law.
Conduct has to be considered, as noticed above, in the background of
several factors such as social status of parties, their education,
physical and mental conditions, customs and traditions. It is difficult
to lay down a precise definition or to give exhaustive description of the
circumstances, which would constitute cruelty. It must be of the type
as to satisfy the conscience of the Court that the relationship between
the parties had deteriorated to such extent due to the conduct of the
other spouse that it would be impossible for them to live together
without mental agony, torture or distress, to entitle the complaining
spouse of secure divorce. Physical violence is not absolutely essential
to constitute cruelty and a consistent course of conduct inflicting
immeasurable mental agony and torture may well constitute cruelty
within the meaning of Section 10 of the Act. Mental cruelty may
consist of verbal abuses and insults by using filthy and abusive
language leading to constant disturbance of mental peace of the other
party.”
In my considered view, I thought it appropriate to reproduce some of the
illustrations set out in the case of Samar Ghosh v. Jaya Ghosh (supra) for
the purpose of decision of this appeal.
“(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.
(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.
(xiv) Whether there has been a long period of continuous separation, it may
fairly be concluded that the matrimonial bound is beyond repair. The
marriage becomes a fiction though supported by a legal tie. By
refusing to server 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.”
The trial Court in the case in hand evaluated the entire episode of marital life
of instant fighting couple in context with the acts and conducts complained of
and its consequent effect/impact likely to occur in the mind of complaining
spouse/wife. Regard being had to the upbringing of the parties, level of
sensitivity, educational, family and cultural background, financial position,
social status, customs, traditions, religious beliefs, human values and their
value system, finally an inference was drawn that the treatment meted out to
wife/respondent by her husband/appellant was not only abnormal, but it was
quite just and sufficient to cause reasonable apprehension in the mind of
complaining spouse (wife) about her mental welfare, and what she exactly
categorically revealed in her cross-examination that she felt insecured as there
was reasonable apprehension of her life to be endangered in the event she was
made to reunite with her erring husband. It was in this background Trial
Court held upon viewing the entire marital episode that it would be harmful
and injurious to live by the complaining spouse (wife) with other. The enquiry
contemplated in the decision of the Apex Court, as referred hereinabove,
presumably was prerequisite on the part of the Trial Court, to be had from the
consideration of entire marital life of the fighting couple, without which
inference that was reached here by the trial Court would not have been made
possible.
Indubitably the marital life of the instant fighting couple lasted for small spell
i.e. for a couple of months. The complaining spouse (wife) with a high hope
for having a peaceful conjugal life visited her matrimonial home on 5.3.13.
The wife undenyingly left her matrimonial home on 3.5.13. Submission was
candidly made at the instance of appellant that since the marital life of the
complaining spouse was for very brief period, the wife could have reasonably
tolerated it, as it was not so much grave and weighty. It was thus suggested
that as the wife had predilection towards staying in her parental house leaving
the matrimonial home, so deliberately she left the matrimonial home without
caring for a very short spell of her marital life.
The wife, in the instant case, was taken to Shimla on 19.4.13 for honeymoon
purpose when, she was put to suffer cruelty, already discussed. Such type of
treatment, extended to wife, was not only abnormal, but contrary to ordinary
course human conduct, being reprehensible and censored, because during
honeymoon period, may be for brief period, a married couple will be expected
to carry all vibrancy of life with full blossom and enthusiasm. The subsequent
conduct of appellant/husband meted out to wife after she was brought to her
Uttarpara residence was not only abnormal but unbecoming also.
The Apex Court while setting out certain illustrative examples of mental
cruelty in the case of Samar Ghosh v. Jaya Ghosh (supra) noticed also the
case Vinita Sexena v. Pankaj Pandit reported in (2006)3 SCC 778. In the
case of Vinita Sexena v. Pankaj Pandit(supra), it was observed by the
Supreme Court, which may be referred as hereunder:
“As to what constitutes the required mental cruelty for the
purposes of the said provision, will not depend upon the numerical
count of such incidents or only on the continuous course of such
conduct but really go by the intensity, gravity and stigmatic impact of
it when meted out even once and the deleterious effect of it on the
mental attitude, necessary for maintaining a conducive matrimonial
home”.
The act complained of by the spouse (wife) herein this case demonstrating
abnormal treatment of husband with high gravity, intensity, and its consequent
stigmatic effect left on the mind of the injured wife, meted out to her, would be of
highest significance, irrespective of the numerical count of such incidents or only
on the continuous course of such conduct. The spell of marital life may be one of
the attending circumstances, but it is not always crucial and alone determinative
in a case, like the instant one, where deleterious effect on the mental welfare of
injured wife assumes a critical dimension of reasonable apprehension of her life
by reason of abnormal treatment meted out to her, that it would be harmful and
injurious for wife to live with the other (husband). It is of such a magnitude that
it paves the way to infer inevitably that deleterious effect caused on the mind of
wife is an outcome of subjecting the wife to suffer mental cruelty, meted out to
her by husband from his acts and conducts.
In the background of the case, abandonment of individual responsibility by
not discharging the marital obligation of wife to her husband for the sake of
protection of her personal life and liberty, guaranteed under Article 21 of
Constitution of India, cannot be construed to have offended the age old
notion, conceived and conceptualised regarding a marriage, as a social
institution, is an affirmance of civilised social order, where two individuals
have pledged themselves to the institutional norms and values and promised
mutually to each other for creating a very strong bound to sustain and
maintain marital obligation. The argument advanced by respondent/wife
adverting to Article 21 of Constitution of India on this score has a strong force
to sustain. Feeling of anger, disappointment and frustration, reasonably
developed in the mind of wife/respondent, caused by the undesirable conduct
of appellant/husband will not necessarily call upon wife/respondent to
endure such conduct as a part of normal human life.
In the given circumstances of the case, the evidence adduced by the
appellant/husband did not inspire any confidence to Trial Court presumably
on the premise that a married wife would not leave apart from her husband
forgoing the protection and shelter of her husband, had there not been a just
reason compelling her to stay away from her husband.
It is discernible from the facts and circumstances involved in this case that
the appellant/husband never spent one (1) minute together, far to speak of
bringing her back physically after the wife/respondent had left her
matrimonial home. The subsequent conduct of the appellant/husband paved
the way for widening the rift between them. By this time the vibrancy of life of
this fighting couple can be irresistibly concluded to have been disappeared.
The complaining spouse has been residing in her parental house, since
3.5.13, for bitterness of their matrimonial relation which was not only grave
and weighty, but something serious than original wear and tear of marital life
and beyond repair.
In my studied and critical appreciation of the evidence adduced by this parties
to this case, I am of the considered view, that marital bond had already been
ruptured beyond repair, because of mental cruelty caused by the
appellant/husband. The irresistible conclusion is that the inference reached
by the Court below while granting decree of divorce on mental cruelty would
remain uninterfered with. I would not have painstakingly reappreciated the
evidence including the exhibited documents, as court of first appeal, had there
been required and sufficient discussion of the Trial Court with reference to
exhibited documents, relied upon by the appellant.
In the result the appeal fails, and accordingly dismissed.
Urgent certified photo copy of this judgment and order, if applied for, be
furnished to the appearing parties on priority basis upon compliance of
necessary formalities.
(Subhasis Dasgupta, J.)
