HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 16.10.2019
Delivered on 27.01.2020
Court No. – 34
Case :- FIRST APPEAL No. – 170 of 2017
Appellant :- Rashmeet Kaur
Respondent :- Sardar Pushpendra Singh
Counsel for Appellant :- Vikrant Pandey,Sharad Sharma
Counsel for Respondent :- Awadhesh Kumar Malviya,Deba Siddiqui
With
Case :- FIRST APPEAL No. – 378 of 2017
Appellant :- Rashmeet Kaur
Respondent :- Sardar Pushpendra Singh
Counsel for Appellant :- Vikrant Pandey,Sharad Sharma,Vikrant Pandey
Counsel for Respondent :- Awadhesh Kumar Malviya,Awadhesh Kumar Malviya,Deba Siddiqui
Hon’ble Sudhir Agarwal,J.
Hon’ble Rajeev Misra,J.
(Delivered by Hon’ble Rajeev Misra, J.)
1. These appeals under Section 19 of Family Courts Act, 1984 (hereinafter referred to as Act, 1984) are directed against common judgement dated 18.10.2016 and decree dated 02.11.2016 passed by Principal Judge, Family Court, Saharanpur in Matrimonial Petition No. 445 of 2011 (Sardar Pushpendra Singh Vs. Smt. Rashmeet Kaur) under Section 13 (1) (ia) of Hindu Marriage Act, 1955 (hereinafter referred to as Act, 1955) filed by Plaintiff-Respondent i.e. husband for divorce, which has been decreed and counter claim raised by Defendant-respondent under Section 9 read with Section 23A of Act, 1955 in above mentioned Matrimonial Petition has been dismissed. Consequently, defendant-respondent has filed two First Appeals detailed above.
2. We have heard Mr. Sharad Sharma, learned counsel for Appellant and Mr. R. K. Jain, learned Senior Counsel assisted by Miss. Deba Siddiqui, learned counsel representing respondent.
3. From record it transpires that Plaintiff-Respondent, Sardar Pushpendra Singh (hereinafter referred to as Plaintiff) instituted Matrimonial Case No. 445 of 2011 under Section 13(1) (i-a) of Act, 1955 vide plaint dated 18.04.2011. According to plaint allegations, marriage of parties was solemnized on 17.12.2007 in accordance with Sikh Rites and Customs at Anoop Shahar, District-Saharanpur; Plaintiff is the only child of his parent, as such Plaintiff and Appellant were both extremely loved by family members of appellant; Appellant was not permitted to do any household job; Plaintiff is a Computer Engineer and employed in a Firm at Bombay; after marriage Plaintiff took Appellant alongwith him to Bombay; he used to leave his house early morning and return home late in the evening; Appellant remained alone at home from morning till evening; Appellant has very irritating character and used to indulge in scuffle on trivial issues and further refused to cook food for herself and Plaintiff; in spite of repeated attempts made by Plaintiff to normalize Appellant, she refused to accede to the request of Plaintiff and continued with her old conduct; he persuaded Appellant to mend her ways as in a costly City like Bombay, he cannot bear the expenses of eating outside everyday; he tried to convince Appellant that things have to be managed intelligently; On this, Appellant used to quarrel with Plaintiff on account of which Plaintiff started living in tension; aforesaid occurrence was alleged to have taken place in February, 2008; While Appellant stayed at Saharanpur, her conduct towards Plaintiff and his parents was unbecoming of an ideal daughter-in-law-wife; Plaintiff withstood behaviour of Appellant, though it was irritating and caused inconvenience; in spite of solace given by parents of Plaintiff that slowly and gradually things will normalize, there was no change in the conduct and behaviour of Appellant; when Plaintiff complained about behaviour of Appellant to his in-laws, no heed was paid by them and same was procrastinated; when Plaintiff lost all his patience on account of irritating conduct of Appellant, he decided to return to Saharanpur on 24.02.2008; On this, Appellant informed her parents on account of which Jatan (brother-in-law of Plaintiff) came at Nizammuddin Raiway Station and accompanied Plaintiff to Saharanpur. Parents of Appellant also came to Saharanpur on 24.02.2008; Plaintiff duly complained about irritating conduct of Respondent on which parents of Appellant apologized on behalf of Appellant and further assured that they will persuade respondent to reform herself; on 25.02.2008, Appellant and her parents left house of Plaintiff and also took away clothes and jewellary belong to Appellant on the assurance that Appellant shall return to Saharanpur after sometime and thereafter on account of changed temperament she be sent to Bombay; subsequently, parents of Plaintiff received a phone call from Appellant that she does not wish to live with Plaintiff and therefore, it is not desirable for Appellant to reside with Plaintiff; she does not want to go to Bombay and reside with Plaintiff as she is happy without Plaintiff; Family members of Plaintiff repeatedly explained to Appellant to improve her ways and further requested their relatives to persuade upon Appellant to discharge her spousal obligations and co-habit with Plaintiff; however, aforesaid attempt went in vain as a result whereof Plaintiff started suffering from mental agony on account of aforesaid behaviour of Appellant; On 14.11.2010, a false F.I.R. was lodged against Plaintiff and his family members at Police Station-Kotwali, District Pilibhit on account of which father of Plaintiff was arrested resulting in humiliation and insult in society; Father of Plaintiff had to apply for bail even though no dowry was demanded at the time of marriage; aforesaid F.I.R. was lodged to create undue pressure upon Plaintiff and his family members; subsequently, sisters of father of Plaintiff filed separate affidavits before Police at Police Station, Pilibhit that no dowry was demanded in marriage, and same was solemnized between parties who knew each other; on account of false F.I.R. lodged by father of Appellant, Plaintiff faced physical, mental cruelty and pain and as such, it was impossible to co-habit with Appellant as husband and wife; In criminal case lodged by father of Appellant, three sisters of father of Appellant filed their affidavits before Investigating Officer that marriage between Appellant and Plaintiff was solemnized without any dowry; on account of criminal proceedings initiated by father of Appellant against Plaintiff and his family members, they have suffered physical and mental cruelty; feeling aggrieved by criminal proceedings initiated by father of Appellant, Plaintiff and his family members approached this Court, wherein vide order dated 22.02.2011 matter was referred to mediation but same failed as father of Appellant refused to negotiate; and in spite of repeated requests made by Plaintiff requesting Appellant to reside with him, no heed was paid by Appellant. On aforesaid factual premise, it was contended that decree of divorce be granted.
4. Suit filed by Plaintiff was contested by Appellant. Accordingly she filed a written statement whereby she substantially denied plaint allegations and also raised additional pleas. Appellant admitted the factum of marriage between parties held on 17.12.2007 but denied that expenses of marriage reception were borne by family members of Plaintiff. According to Appellant, marriage reception was hosted by family members of Appellant and consequently, expenses were borne by them; Parents of Appellant gave stridhan to her beyond their capacity and further incurred huge expenses in her marriage; after marriage Appellant started residing with Plaintiff as his wife; however, Plaintiff never liked Appellant and tortured her on account of insufficient dowry; Appellant also denied the conduct of Plaintiff and his family members as alleged in plaint; she was forced to undertake all necessary household work immediately after her arrival at her marital home; Plaintiff left Appellant at Saharanpur and went to Bombay alone; after fairly long time, Plaintiff took Appellant to Bombay; Plaintiff is not a man of good character as he used to leave the house early-morning and returned late at night; Plaintiff used to remain outside for days together and upon enquiry, he never replied to Appellant explaining his absence; Allegations made in plaint regarding conduct of Appellant were incorrect; facts alleged in the plaint that Appellant refused to cook food while she was residing with Plaintiff at Bombay is factually incorrect; Plaintiff demanded additional dowry by way of Car and land and on account of non-fulfilment of aforesaid demand of additional dowry, present proceedings have been initiated against Appellant.
5. The written statement was subsequently amended and it was pleaded that decree of divorce prayed for by Plaintiff is not liable to be granted as Appellant has already initiated criminal proceedings and also proceedings under the Protection of Woman from Domestic Violence Act, 2005. Further more pleas of Section 23 of Act, 1955 was also raised. On the aforesaid defence, Appellant pleaded for dismissal of divorce suit filed by plaintiff.
6. Appellant, apart from filing her written statement, also filed an application under Section 23A, whereby she raised a counter claim under Section 9 of Act, 1955 regarding restitution of conjugal rights.
7. Upon pleadings raised by parties, Court below framed following issues for determination:
A. Whether Defendant has committed ‘cruelty’ by her conduct upon Plaintiff as alleged in plaint.
B. Whether Defendant has ‘deserted’ Plaintiff without any sufficient cause.
C. Whether Plaintiff is entitled to the decree of annulment of marriage as provided under Section 13 (1) (ia) of Hindu Marriage Act, 1955.
D. Whether Plaintiff is entitled to costs or any other relief.
E. Whether Defendant is ready to reside with Plaintiff. If yes, its effect: or
Whether the suit is barred by Section 23 of Hindu Marriage Act.
F. Whether Defendant/Plaintiff has maintained distance from Plaintiff/Defendant without any legal basis. If yes, its effect.
G. Whether counter claim filed by Defendant is not legally maintainable.
H. Whether Defendant is entitled to any relief on the basis of her counter claim.
8. After aforesaid issues were framed, parties went to trial. Plaintiff in order to prove his case adduced himself as P.W.-1, his father Rajendra Singh as P.W.-2, Ram Kisun Mehrotra as P.W.-3 and Smt. Indrajeet Kaur as P.W.-4. Plaintiff further filed documentary evidence in support of his claim which is detailed at page 78 of paper book.
9. Appellant in order to establish her defence, adduced herself as D.W.-1 and Jatan Deep Singh as D.W.-2. Appellant also filed documentary evidence. Same is detailed at page 79 of paper book.
10. Court below proceeded to decide the issues so framed in the light of pleadings raised by parties as well as oral and documentary evidence adduced by them. Issues 1, 2 and 3 were decided together. Court below crystallized aforesaid issues by observing that primarily Plaintiff has pleaded for decree of divorce on the grounds of ‘cruelty’ and ‘desertion’. Upon evaluation of evidence, Court below concluded that Plaintiff has been successful to establish commission of ‘cruelty’ by Appellant upon him and further Appellant has ‘deserted’ Plaintiff without any valid reason.
11. Issues 5 and 6 were decided together by Court below and it was held that it is not established from record that Appellant (wife) is ready to accompany Plaintiff (husband) and reside with him. As such, suit filed by Plaintiff is not barred by Section 23 (2) of Act, 1955 nor Plaintiff has kept away Appellant.
12. Issue 7 was decided by Court below by holding that counter claim filed by Appellant is maintainable.
13. Issues 4 and 8 were decided together and it was held that in view of findings recorded in respect of issues 1, 3, 5 and 7, Plaintiff is entitled to decree of annulment of marriage as prayed by him.
14. On the aforesaid findings, Court below decreed suit of Plaintiff for divorce and rejected counter claim of defendant-respondent vide judgement dated 18.10.2016 and decree dated 02.11.2016. Feeling aggrieved by above mentioned judgement and decree, Appellant (wife) has now come to this Court by means of present first appeal.
15. Mr. Sharad Sharma, learned counsel appearing for Appellant has assailed the findings recorded by Court below on the issues of cruelty and desertion. According to learned counsel for Appellant, findings recorded by Court below on aforesaid issues are not only illegal, perverse but also erroneous. Consequently, it is urged that judgement and decree passed by Court below are liable to be set aside.
16. Mr. Ravi Kiran Jain, learned Senior Counsel appearing for respondent has supported impugned judgement and decree on the strength of findings recorded by Court below as well as observations made therein. It is further submitted by learned Senior Counsel that findings recorded by Court below on the issues of cruelty and desertion are findings of fact which are not liable to be set aside unless the same are shown to be illegal, perverse or erroneous. Nothing has been brought on record to point out the illegality or perversity in the findings recorded by Court below on twin issues of cruelty and desertion. Similarly it could not be established by learned counsel for appellant that findings recorded by Court below on the aforesaid issues are erroneous as there is co-relation between the pleadings, evidence and conclusion. He also submits that in the present case, it is an undisputed fact that criminal proceedings were initiated by father of Appellant (wife) against respondent and his family members on account of which parents of respondent were taken into custody. Charge alleged against respondent and his family members could not be brought home till date. On aforesaid premise, it is sought to be urged that respondent and his family members have been dragged into false criminal prosecution which by itself is sufficient to conclude commission of cruelty and therefore Court below rightly dismissed the suit for divorce filed by Plaintiff. On the cumulative strength of aforesaid submissions, it is vehemently urged by learned Senior Counsel that present appeal being concluded by findings of fact is liable to be dismissed.
17. On the submissions made by counsel for parties, two issues arise for consideration in this appeal i.e. :-
I. Whether findings recorded by Court below on issues of commission of ‘cruelty’ by Appellant and also ‘desertion’ on her part are sustainable.
II. Whether plea of Section 23(a) of Act, 1955 raised by Appellant and also her claim for restitution of conjugal rights was rightly denied by Court below.
18. Before proceeding to consider the points of determination involved in present appeal, it is appropriate to reproduce Section 13 of Act, 1955 which provides for grounds on which a decree of divorce can be prayed for:
” 13 Divorce. –(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party–
[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.–In this clause,–
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]
(iv) has, [***] been suffering from a virulent and incurable form of leprosy; or
(v) has, [***] been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; [***]
[ Explanation. In this sub-section, the expression desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
(viii) [***]
(ix) [***]
[(1-A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground–
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—
(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or [bestiality; or]
[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or
[(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]
Explanation. –This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]
STATE AMENDMENT
Uttar Pradesh.– In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13–
(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following
“(1-a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or”, and
(ii) for clause (viii) (since repealed) substituted and deem always to have been so substituted for following.
” (viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and–
(a) a period of two years has elapsed since the passing of such decree, or
(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or.”
19. Section 13 (i-a) of the Act of 1955 provides that a decree of divorce can be granted in case after the solemnization of marriage, the petitioner has been treated with ‘cruelty’.
20. The term ‘cruelty’ has not been defined in the Act of 1956 and therefore, same has been subject matter of debate for long. Different Courts in India have tried to explain meaning of term ‘cruelty’ and also crystalized the actions which can constitute ‘cruelty’. In doing so varied aspects of human nature in the changing vicissitudes of time have been taken into consideration. A Division Bench of this Court in Smt. Sarita Devi Vs. Sri Ashok Kumar Singh reported in 2018 (3) AWC 2328 has considered in detail concept of ‘cruelty’ by referring to various dictionaries and texts in paragraphs 16, 17, 18, 19 and 29 which read as under :-
“16. In Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 Court considered the concept of cruelty and referring to Oxford Dictionary defines ‘cruelty’ as ‘the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’.
17. In Black’s Law Dictionary, 8th Edition, 2004, term “mental cruelty” has been defined as, “a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”
18. The concept of cruelty has been summarized in Halsbury’s Laws of England, Vol.13, 4th Edition Para 1269, as under:
“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.”
19. In 24 American Jurisprudence 2d, the term “mental cruelty” has been defined as under:
“Mental Cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse. ”
29. In Samar Ghosh vs. Jaya Ghosh (supra) Court said that though no uniform standard can be laid down but there are some instances which may constitute mental cruelty and the same are illustrated as under:
“(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”
21. In Vishwanath Sitram Agarwal Vs. San. Sarle Vishwanath Agarwal, 2012 (7) SCC 288, Court considered various earlier decisions with regard to meaning of term ‘cruelty’. Their Lordships observed as follows in paragraphs 22 to 32:-
“22.The expression “cruelty” has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status.
23. In Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa
Yasinkhan [(1981) 4 SCC 250 : 1981 SCC (Cri) 829] , a two-Judge Bench approved the concept of legal cruelty as expounded inPancho v. Ram Prasad [AIR 1956 All 41] wherein it was stated thus: (Pancho case [AIR 1956 All 41] , AIR p. 43, para 3)
“3. … Conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition that a second marriage is a sufficient ground for separate residence and separate maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used.
Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife.”
It is apt to note here that the said observations were made while dealing with the Hindu Married Women’s Right to Separate Residence and Maintenance Act (19 of 1946). This Court, after reproducing the passage, has observed that the learned Judge has put his finger on the correct aspect and object of mental cruelty.
24. In Shobha Rani v. Madhukar Reddi [(1988) 1 SCC 105 : 1988 SCC (Cri) 60] , while dealing with “cruelty” under Section 13(1)(i-a) of the Act, this Court observed that the said provision does not define “cruelty” and the same could not be defined. “Cruelty” may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem to determine it. It is a question of fact and degree. If it is mental, the problem presents difficulty. Thereafter, the Bench proceeded to state as follows: (SCC p. 108, para 4)
“4. … First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.”
25. After so stating, this Court observed in Shobha Rani case[(1988) 1 SCC 105 : 1988 SCC (Cri) 60] about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that: (SCC p. 108, para 5)
“5. … when a spouse makes a complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance.”
26. Their Lordships in Shobha Rani case [(1988) 1 SCC 105 : 1988 SCC (Cri) 60] referred to the observations made in Sheldon v.Sheldon [1966 P 62 : (1966) 2 WLR 993 : (1966) 2 All ER 257 (CA)] wherein Lord Denning stated, “the categories of cruelty are not closed”. Thereafter, the Bench proceeded to state thus: (Shobha Rani case [(1988) 1 SCC 105 : 1988 SCC (Cri) 60] , SCC p. 109, paras 5-6)
“5. … Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.
6. These preliminary observations are intended to emphasise that the court in matrimonial cases is not concerned with ideals in family life. The court has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Reid observed in Gollinsv. Gollins [1964 AC 644 : (1963) 3 WLR 176 : (1963) 2 All ER 966 (HL)] : (All ER p. 972 G-H)
7. ”… In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman.'(
8. emphasis in original)
27. In V. Bhagat v. D. Bhagat [(1994) 1 SCC 337] , a two-Judge Bench referred to the amendment that had taken place in Sections 10 and 13(1)(i-a) after the (Hindu) Marriage Laws (Amendment) Act, 1976 and proceeded to hold that the earlier requirement that such cruelty has caused a reasonable apprehension in the mind of a spouse that it would be harmful or injurious for him/her to live with the other one is no longer the requirement. Thereafter, this Court proceeded to deal with what constitutes mental cruelty as contemplated in Section 13(1)(i-a) and observed that mental cruelty in the said provision 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. To put it differently, 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 was further observed, while arriving at such conclusion, that 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. What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each case keeping in view the facts and circumstances of that case. That apart, the accusations and allegations have to be scrutinised in the context in which they are made. Be it noted, in the said case, this Court quoted extensively from the allegations made in the written statement and the evidence brought on record and came to hold that the said allegations and counter-allegations were not in the realm of ordinary plea of defence and did amount to mental cruelty.
28. In Parveen Mehta v. Inderjit Mehta [(2002) 5 SCC 706 : AIR 2002 SC 2582] , it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. “A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living.” (Parveen Mehta case[(2002) 5 SCC 706 : AIR 2002 SC 2582] , SCC p. 716, para 21) The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other.
29. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate [(2003) 6 SCC 334 : AIR 2003 SC 2462] , it has been opined that a conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot be so lightly ignored or brushed aside.
30. In A. Jayachandra v. Aneel Kaur [(2005) 2 SCC 22] , it has been ruled that the question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live. If from the conduct of the spouse, it is established and/or an inference can legitimately be drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse about his or her mental welfare, then the same would amount to cruelty. While dealing with the concept of mental cruelty, enquiry must begin as to the nature of cruel treatment and the impact of such treatment on the mind of the spouse. It has to be seen whether the conduct is such that no reasonable person would tolerate it.
31. In Vinita Saxena v. Pankaj Pandit [(2006) 3 SCC 778] , it has been ruled that as to what constitutes mental cruelty for the purposes of Section 13(1)(i-a) will not depend upon the numerical count of such incident or only on the continuous course of such conduct but one has to 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.
32. In Samar Ghosh v. Jaya Ghosh [(2007) 4 SCC 511] , this Court, after surveying the previous decisions and referring to the concept of cruelty, which includes mental cruelty, in English, American, Canadian and Australian cases, has observed that: (SCC pp. 545-46, paras 99-100)
“99. … The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances….”
22. In Ravi Kumar Vs. Julmi Devi 2010 (4) SCC 476, following was observed in paragraphs 19 to 22:-
“19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety–it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v.Sheldon [(1966) 2 WLR 993 : (1966) 2 All ER 257 (CA)] held that categories of cruelty in matrimonial cases are never closed.
21.This Court is reminded of what was said by Lord Reid inGollins v. Gollins[1964 AC 644 : (1963) 3 WLR 176 : (1963) 2 All ER 966 (HL)] about judging cruelty in matrimonial cases. The pertinent observations are: (AC p. 660)
“… In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people.”
The aforesaid passage was quoted with approval by this Court inN.G. Dastane (Dr.) v. S. Dastane [(1975) 2 SCC 326] .
22. About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi[(1988) 1 SCC 105 : 1988 SCC (Cri) 60 : AIR 1988 SC 121] at AIR p. 123, para 5 of the report: (SCC p. 108, para 5)
“5. It will be necessary to bear in mind that there has been [a] marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties.”
23. Reference in this regard may be made to the judgement in K. Srinivas Rao Vs. D. A. Deepa, 2013 (5) SCC 226 wherein following has been observed in paragraphs 10 and16:
“10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnisation of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term “cruelty”. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.
16.Thus, to the instances illustrative of mental cruelty noted inSamar Ghosh[(2007) 4 SCC 511] , we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.”
24. With regard to mental cruelty reference be made to the judgement in A. Jaya Chandra Vs. Aneel Kaur, 2005 (2) SCC 22. The aforesaid judgement has also been considered by a Division Bench of this Court in Smt. Sarita Devi (supra) and following has been observed in paragraph-26 of the judgement.
“26. In A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22, Court observed that conduct of spouse, if established, an inference can legitimately be drawn that treatment of spouse is such that it causes an apprehension in the mind of other spouse, about his or her mental welfare then this conduct amounts to cruelty. Court observed that when a petition for divorce on the ground of cruelty is considered, Court must bear in mind that the problems before it are those of human beings and psychological changes in a spouse’s conduct have to be borne in mind before disposing of petition for divorce. Before a conduct can be called cruelty, it must touch a certain pitch of severity. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty.”
25. In K. Srinivas Rao Vs. D.A. Deepa (2013) 5 SCC 226, while dealing with the instances of ‘mental’ cruelty, Court has opined that to the illustrations given in the case of Samar Ghosh (supra) certain other illustrations could be added. We think it seemly to reproduce the observations:
“Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.”
26. With aid of meaning of the term “physical cruelty” and “mental cruelty” this Court has now to examine, whether Appellant was able to establish same before Court below and findings recorded by Court below on aforesaid are substantiable or not.
27. It is an undisputed fact that families of parties to marriage were closely acquainted to each other. Therefore, when criminal proceedings were initiated for demand of dowry, sisters of father of appellant themselves filed affidavit before police denying the factum of any dowry being demanded.
28. Be that as it may, it is established from record that criminal proceedings were initiated by father of appellant against respondent and his family members. On account of aforesaid criminal proceedings, some of the family members of respondent were taken into custody. Initiation of false criminal proceeding has now been held to be a valid ground for divorce. Reference in this regard be made to judgement in Samar Ghosh (Supra) as well as K. Srinivas Rao (Supra). Therefore, respondent was able to establish commission of cruelty by appellant upon himself and his family members. Consequently, Court below did not commit any illegality or perversity in arriving at the conclusion that appellant has caused physical and mental cruelty to respondent and his family members.
29. With regard to ‘desertion’ we may point out that the term ‘desertion’ has not been defined in Act. What is provided in Section 13 (1b) is the condition necessary for pleading plea of divorce on ground of ‘desertion’. The pre-condition provided for in Act is that other spouse has deserted petitioner for a continuous period of not less than two years immediately preceding presentation of petition.
30. It is an admitted fact that appellant herself left house of respondent on 25.02.2008 and since then she is residing at her parental home. Appellant did not take any initative for restitution of conjugal rights. To the contrary when plaintiff filed suit for divorce, respondent raised a counter claim for a decree of restitution of conjugal rights. Evidence on record shows that no such act was committed by plaintiff or his family members on account of which appellant was forced to live separately. Therefore, separate living of appellant deserting her husband is on account of her own conduct and attributable to her alone. On this factual premise, we see no infirmity or illegality in conclusion drawn by court below that appellant has deserted respondent.
31. Section 23(a) of Act, 1955 relied upon by appellant does not come to her aid in view of established fact that respondent and his parents were subjected to false implication in criminal cases leading to their detention. Since aforesaid facts were duly pleaded and established which could not be denied by appellant, we find that no benefit of Section 23(a) could be claimed by appellant and Court below rightly refused to grant same to appellant.
32. We therefore answer both the questions formulated above against appellant.
33. Learned counsel for appellant thus could not demolish findings of fact recorded by Court below. Since findings recorded by Court below could not be dislodged, conclusion drawn by Court below to decree suit of plaintiff on the established grounds of ‘cruelty’ and ‘desertion’ cannot be faulted with. Consequently, present appeal No. 170 of 2017 lacks merit and is liable to be dismissed. It is accordingly dismissed. Since we have upheld the findings recorded by Court below in divorce suit filed by respondent, we consequently do not find any good ground to entertain the appeal arising out of judgement and decree passed by Court below dismissing counter claim raised by appellant in divorce suit filed by respondent. Consequently, we dismiss appeal No. 378 of 2017 filed by appellant.
34. However, in facts and circumstances of the case, we make the cost easy.
Order Date :- 27.01.2020.
YK
