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Judgments of Supreme Court of India and High Courts

Pranay Kumar Kundu vs Smt. Rupanjana Kundu on 15 February, 2019

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.)

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