HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 10.02.2020
Delivered on: 22.04.2020
Case :- FIRST APPEAL No. – 477 of 2015
Appellant :- Sanket Mishra
Respondent :- Smt. Urvashi
Counsel for Appellant :- Pranav Kumar Srivastava,D.K.Tripathi,Gajendra Pratap,Jitendra Kumar Srivastava
Counsel for Respondent :- Kaushal Kishore Mani
Hon’ble Sudhir Agarwal,J.
Hon’ble Rajeev Misra,J.
(Delivered by Hon’ble Rajeev Misra, J.)
1. Present First Appeal under Section 19 of Family Courts Act 1984 (hereinafter referred to as Act of 1984) has been filed challenging judgement dated 13.08.2015 and decree dated 22.08.2015 passed by Principal Judge (Family Court), Gautam Buddh Nagar in Original Suit No. 69 of 2011 (Sanket Misra Vs. Smt. Urvashi) whereby court-below has dismissed aforesaid suit for divorce filed by Plaintiff Sanket Misra on the grounds of cruelty and desertion.
2. We have heard Mr. D. K. Tripathi, learned counsel for plaintiff-Appellant (hereinafter referred to as Appellant) and Mr. Kaushal Kishore Mani, learned counsel for defendant-respondent (herein after referred to as Respondent)
3. It transpires from record that marriage of Appellant Sanket Misra was solemnised with Respondent-Smt. Urvashi on 22.11.2004. However, the couple did not have a smooth family life but ended up in marital discord on account of strained relations.
4. As a natural corollary of above, after six years of marriage, Appellant Sanket Misra filed O.S. no. 69 of 2011 (Sanket Misra Vs. Smt. Urvashi) under Section 13 of Hindu Marriage Act, 1984 (hereinafter referred to as Act 1984 ) for a decree of divorce on grounds of cruelty and desertion.
5. According to plaint allegations, it was alleged by Appellant-Sanket Misra that marriage of Appellant was solemnized with Urvashi on 22.11.2004 in accordance with Hindu Rites and Customs. Marriage of parties was performed without any demand of dowry, but considering social status, jewelry and expensive clothes were given to bride-groom i.e respondent at the time of marriage and they are in possession of respondent. It was also alleged that at the time of marriage parties were Hindus and continue to repose their faith in Hindu Religion. No children are alleged to be born, from wedlock of parties. After marriage, couple went for their Hony-moon to Goa. According to Appellant conduct of respondent at Goa was not very genial and out of anguish, she is alleged to have thrown her Mangal Sutra into the sea as she did not like the same. Diamond ring, which was given to respondent by Appellant at the time of marriage was also thrown away by her alleging that same is not acceptable and in place thereof a solitaire ring be given. After marriage, Appellant brought respondent to his home. Appellant duly performed his obligations as husband and gave all benefits and luxury to respondent. However, irrespective of aforesaid, respondent failed to discharge her spousal obligations. Appellant further alleged that respondent is a literate and fashionable lady whereas Appellant is a simple person. Though Appellant has provided every comfort to respondent but her conduct towards Appellant has always been derogatory. She enters into verbal altercation on trivial issues. She has further expressed her unwillingness to reside with parents of Appellant. In spite of various efforts on behalf of Appellant requesting respondent to give up her such conduct, she has remained adamant. Appellant has continued to bear all such conduct of respondent only to save marital relation so that no discord may arise.
6. Conduct of respondent has been wholly derogatory and unbecoming of a daughter-in-law. Whenever Appellant went out, respondent would also leave her marital home and return late in the evening. On enquiry regarding her whereabouts respondent behaved with indecency and further indulged in verbal altercation. She is alleged to have even threatened Appellant of implicating him in false cases. However, Appellant continued to withstand such irresponsive conduct of respondent. It was also alleged by Appellant that respondent has failed to do household work. She does not treat any relative of Appellant with courtesy and respect. Conduct of respondent is humiliating. Appellant further alleged that respondent herself has stated that she does not want to stay at her marital home and therefore, she does not wish to remain in company of Appellant. Appellant continued to persuade respondent to mend her ways but there was no change in her conduct. Astonishingly her conduct deteriorated day by day and became more cruel. Appellant is alleged to have complained about aforesaid conduct of respondent with her parents. However, instead of advising their daughter, parents of respondent rebuked that if respondent does not wish to live with Appellant, he may extend divorce to her failing which there shall be serious repercussions.
7. Appellant in order to provide all the comforts and pleasure of life took respondent to his place of posting i.e. ‘Bagdogra’ (West Bengal). Then Appellant in order to make respondent happy took her to Darjeeling. However, respondent failed to discharge her spousal obligations and leaving the Appellant alone at ‘Bagdogra’ returned to her parental home. Thus respondent deserted the Appellant on 05.01.2007 and since then, she is residing separately. In spite of repeated attempts made by Appellant to bring back respondent to her marital home, respondent has failed to return. It was thus alleged by Appellant that since respondent is not residing with Appellant nor she wants to reside with Appellant, she is exerting pressure upon Appellant to extend divorce failing which Appellant and his family members shall be made to suffer. Since the Appellant is the only son of his parents and considering his own future agreed to grant divorce to respondent. On aforesaid premise, it was thus pleaded that respondent agreed to divorce by mutual consent. Accordingly, a divorce petition in terms of Section 13B of Hindu Marriage Act was filed. Subsequently, respondent demanded Rs. 10 Lakhs and as Appellant failed to pay aforesaid amount, respondent resiled from her consent regarding divorce by mutual consent and submitted an application opposing the divorce petition. Accordingly, Marriage Petition No. 11 of 2005 (Sanket Mishra Vs. Urvarshi Tripathi) under Section 13B of Hindu Marriage Act was dismissed. In spite of aforesaid, Appellant made repeated attempts to bring back respondent to her marital home but respondent failed to adhere to the request of Appellant. It was thus averred that respondent is continuously harassing Appellant and repeatedly, insults Appellant and his family members. She is further alleged to have demanded Rs. 10 Lakhs. According to Appellant, in case any attempt is made by him to bring back respondent, same shall be disastrous. As such there is continuous threat and mental torture. Accordingly, cohabitation of Appellant with respondent is impossible. It was lastly alleged that respondent is alleged to have threatened plaintiff on 15.01.2011 that in case Appellant comes to take respondent to her marital home and further fails to pay Rs. 10 Lakhs then he shall be implicated in false criminal case. Respondent is alleged to have finally refused on 15.01.2011 to reside with Appellant as his wife. On aforesaid allegations, Appellant thus pleaded for a decree of divorce on grounds of cruelty and desertion.
8. Suit filed by Appellant was contested by respondent. She accordingly filed her written statement whereby not only some of the plaint allegations were denied but also additional pleas were raised. Respondent however clearly admitted that her marriage was solemnized with Appellant on 22.11.2004 in accordance with Hindu Rites and Customs. She further admitted that parties were Hindu at the time of marriage and continued to repose their faith in Hindu religion even after marriage. It was also admitted that out of the wedlick of parties, no child was born. Respondent further admitted that Appellant is working as Squadron Leader in Indian Air Force and took respondent to Bagdogra and Darjeeling. However, allegations with regard to cruelty and desertion made by Appellant in plaint were categorically denied. It was pleaded by respondent that Appellant failed to discharge his obligation as husband of respondent and deliberately sent respondent from ‘Bagdogra’ to the house of his parents. Respondent was always ready and willing to reside with Appellant. On 05.01.2007 i.e. the date on which respondent is alleged to have refused to reside with Appellant, she was residing at Greator Noida with parents of Appellant. Therefore, the date on which cause of action is alleged to have accrued in favour of Appellant regarding alleged desertion by respondent is factually incorrect. The factum with regard to the filing of Divorce Petition by consent was out-rightly denied as according to respondent, signatures of respondents were obtained by fraud. Consequently, when respondent regained her health, she filed an application, on the basis of which Divorce Petition was dismissed. According to respondent, there is no point of difference between the parties. Appellant wants to marry an english speaking fluent girl and therefore, wants to seek divorce. Allegations made in plaint do not satisfy requirement of law regarding grant of divorce on the grounds of cruelty and desertion. On aforesaid defence, it was thus pleaded that suit for divorce filed by Appellant is liable to be dismissed.
9. After exchange of pleadings, parties went to trial and court-below framed following issues.
1. Whether on the grounds mentioned in plaint, marriage of plaintiff solemnized with respondent on 22.11.2004 is liable to be dissolved.
2. Whether no cause of action has originated.
3. To, what relief is plaintiff entitled for.
10. Appellant in order to prove his case adduced himself as P.W.-1, Rashmi Misra, his mother as P.W.-2, Ajay Bhalla as P.W.-3 and Vijay as P.W.-4.
11. Respondent for establishing her defence adduced herself as D.W.-1, Ajay Chaturvedi as D.W.-2, Rajendra Nath as D.W.-3 and Ajay Shankar Misra as D.W.-4.
12. Appellant further filed documentary evidence consent letters dated 22.10.2005, 27.03.2007, E-mail Sent by Group Captain D. K. Mishra , list of jewelry, received by respondent Urvashi Misra in front of Vijay and Photo copy of Bank Pass-Book.
13. It is worth noticing that P.W.-3 Ajay Bhalla and P.W.-4 Vijay Lakshmi are not witnesses of cruelty alleged to have been committed by respondent upon Appellant. Simlilarly D.W.-2, Ajay Kumar Chaturvedi (Mausa of respondent) D.W.-3 and D.W.-4 Ajay Shaker Misra (mama of respondent) are not witnesses of cruelty alleged by Appellant. Their testimony is based on hearsay evidence.
14. In respect of issue no.1, court-below synchronized the grounds on which Appellant alleged commission of cruelty by respondent namely:
(a) Conduct of respondent towards Appellant has always been derogatory.
(b) Respondent has failed to discharge her spousal obligations.
(c) Respondent indulges in dispute on trivial issues and further alleges that she cannot stay with parents of Appellant.
(d) When Appellant goes out of his home, respondent also goes out of the house and returns late in the evening. Upon enquiry regarding her whereabouts during the entire period, she gets agitated and remarks that that she does not wish to stay at her marital home.
(e) Respondent further extends threat by stating that in case any obstruction is caused in her movement then she will implicate Appellant in false cases.
(f) Respondent has refused to do households work and she does not care about relatives, who come to the home of Appellant.
(g) When after marriage parties went to Goa for their honymoon, respondent threw her mangalsutra into the sea on a ground that she does not like the same. Similarly the diamond ring was thrown by respondent by alleging that she wants solitaire him.
15. Each of the aforesaid grounds were meticulously examined by court-below in the light of evidence on record. However court-below found that Appellant has failed to prove any of the aforesaid grounds urged to establish commission of cruelty by respondent. Appellant could not point out the day, date and name of relative upon whose arrival respondent did not behave like a good daughter-in-law nor could the Appellant established the allegations of cruelty alleged to have been committed by her conduct. Similarly Appellant could not prove the allegations regarding misconduct on the part of respondent in not staying at her marital home when Appellant went out. Similarly, Court-below accepted the defence put forward by respondent regarding loss of Mangalsutra and Diamond Ring. Court-below further found that Appellant has failed to plead and prove specific instances of cruelty. Only allegations of cruelty have been made but they by themselves are not sufficient to conclude that cohabitation of parties is not possible. To the contrary, court-below found that it is the Appellant who has committed cruelty upon respondent. Now Appellant by filing the present suit wants to take benefit on his own wrong.
16. In order to decide the issue of desertion, court-below concluded that two issues namely i. Separate living (factum deserdendi) and ii. Intention of committing desertion (Animus deserdendi) have to be established. Apart from above, court-below further observed that it is also to be established that the other party has committed desertion without any reasonable cause, such desertion is without the consent of other party or against the wish of other party and lastly, such desertion should have continued for a period of two years prior to the institution of suit. Court-below referred to Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi (2002) 1 SCC 308: AIR 2002 SC 88: (2002) IDMC 94 (SC) Savitri Panday Vs. Prem Chand Panday (2002) 2 SCC 73 and on the basis thereof concluded that for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must satisfied (a) the factum of separation, (b) the intention to bring the cohabitation permanently to an end i.e. animus deserted spouse is concerned (a) absence of consent, (b) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to from the necessary intention.
17. In respect of point no.1 relating to separate living court-below held that while discussing issue of cruelty it has been held that it is the appellant who is living separately from respondent and there is no consent of respondent regarding separate living of appellant. Further more Appellant has failed to establish such conduct of respondent on the basis of which his separate stay could be justified. Consequently, point no.1 relating to the issue of separate living desertion was decided against Appellant.
18. Regarding point no.2 relating to intention of desertion, court-below concluded that no such evidence has been adduced by Appellant on the basis of which it can be held that respondent has any intention of deserting Appellant. Court-below examined pleadings of parties as well as evidence adduced and held that there is no intention on part of respondent to desert Appellant. Consequently, court-below held that Appellant has miserably failed to establish commission of cruelty by respondent upon him and also desertion as alleged in plaint.
19. With regard to issue no. 2, framed in the suit, court-below has concluded that Appellant has filed suit for divorce on grounds of cruelty and desertion. However, Appellant has failed to prove both cruelty and desertion. As such no cause of action accrued to Appellant to file suit for divorce.
20. Issue no. 3 was decided against Appellant by court-below. It was held that since Appellant has failed to prove cruelty and desertion he is not entitled to any relief.
21. On aforesaid findings court-below dismissed the suit for divorce filed by Appellant vide judgement dated 13.08.2015 and decree dated 22.08.2005. Thus, feeling aggrieved by judgment and decree passed by court-below, Appellant Sanket Misra has now approached this Court by means of present First Appeal under Section 19 of Act 1984.
22. Mr. D. K. Tripathi, learned counsel for Appellant submits that court-below committed an illegality in dismissing suit for divorce filed by Appellant. Specific allegations of commission of cruelty upon Appellant by respondent and also instances of cruelty committed by respondent were duly pleaded in the plaint. Evidence of Appellant and that of his witnesses namely P.W.-2 mother of plaintiff clearly proved the same. As such Court below has illegally dismissed the suit. He therefore, submits that impugned judgment and decree passed by court-below are liable to be set aside and suit of Appellant is liable to be decreed.
23. On the other hand Mr. Kaushal Kishore Mani learned counsel for respondent has supported impugned judgement and decree by referring to the findings recorded therein as well as the observations made. According to learned counsel for respondent, suit for divorce filed by Appellant was rightly dismissed by court-below. Appellant could not prove the grounds of divorce pleaded by him namely cruelty and desertion. He further submits that Appellant did not plead specific instances of cruetly allege d to have been committed by respondent. More over allegations of cruelty alleged by Appellant were not sufficient to conclude that on account of such allegations cohabitation of parties is impossible. Appellant failed to placed and proved mandatory requirement of Section 13 (1-b) of Act, 1955 i.e. two years continuous desertion on the part of respondent before institution of suit. court-below has recorded cogent findings of fact, which are not liable to be interfered with. Once findings cannot be disturbed, conclusion cannot be interfered with. can be said to be As such, present appeal is liable to be dismissed.
24. Before proceeding to consider rival submissions urged by learned counsel for parties in present appeal, it is appropriate to reproduce Section 13 of Act, 1955 which provides grounds for divorce:
” 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.]
[(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).]
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.”
25. Section 13 (1) (i-a) of Act 1955 clearly provides that a decree of divorce can be granted in case after the solemnization of marriage, the petitioner has been treated with ‘cruelty’.
26. The term ‘cruelty’ has not been defined in Act, 1955 or Act 1984 as such, same has been subject matter of debate for long. Various decisions of Apex Court as well as our Court give an idea regarding the meaning of term ‘cruelty’ and what are its constituents. A Division Bench of this Court in Smt. Sarita Devi Vs. Sri Ashok Kumar Singh reported in 2018 (3) AWC 2328 has considered the concept of cruelty in detail in paragraphs 16, 17, 18 and 19, which are 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 under:
“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. ”
27. 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….”
28. 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.”
29. Reference in this regard may be had 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.”
30. Similarly, the term ‘desertion’ has not been defined in Act, 1955. Section 13 (1) (1b) of Act, 1955 only provides the pre-condition necessary for seeking divorce on ground of desertion. The grounds of divorce namely cruelty and desertion are distinct grounds. They are not dependent upon each other but have to be proved separately and independently. In this regard, reference be made to Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi, 2002 (1) SCC 308, wherein Court has dealt with concept of ‘desertion’ and observed as follows in paragraphs 7, 8, 9, 10, 11 and 12:
“7. “Desertion” in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:
1. the factum of separation;
2. the intention to bring cohabitation permanently to an end — animus deserendi;
3. the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;
The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include “wilful neglect” of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petition for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.
8. This Court in the case of Bipin Chander Jaisinghbhai Shah v.Prabhawati [1956 SCR 838 : AIR 1957 SC 176] observed: (AIR pp. 183-84 190-91, paras 10 21)
“Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example, anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case.Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years’ period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.
But it is not necessary that at the time the wife left her husband’s home she should have at the same time the animus deserendi. Let us therefore examine the question whether the defendant in this case, even if she had no such intention at the time she left Bombay, subsequently decided to put an end to the matrimonial tie. This is in consonance with the latest pronouncement of the Judicial Committee of the Privy Council in the case of Lang v. Lang [1955 AC 402 : (1954) 3 All ER 571 : (1954) 3 WLR 762 (PC)] AC at p. 417(F) in an appeal from the decision of the High Court of Australia, to the following effect:
”Both in England and in Australia, to establish desertion two things must be proved: first, certain outward and visible conduct — the ”factum’ of desertion; secondly, the ”animus deserendi’ — the intention underlying this conduct to bring the matrimonial union to an end.
In ordinary desertion the factum is simple; it is the act of the absconding party in leaving the matrimonial home. The contest in such a case will be almost entirely as to the ”animus’. Was the intention of the party leaving the home to break it up for good, or something short of, or different from that?’ ”
9. In the case of Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40 : (1964) 4 SCR 331] a Constitution Bench of this Court, considering the case of judicial separation on the ground of desertion without just cause, held on facts that the respondent (wife) left the Appellant’s matrimonial home on 26-2-1954 with the intention of permanently breaking it up, and that such desertion continued during the requisite period of two years and that the Appellant’s letter of 1-4-1955, did not constitute an interruption of the respondent’s desertion by its being a just cause for her to remain away from the matrimonial home; and that, in consequence, the Appellant was entitled to a decree for judicial separation under Section 10(1)(a) of the Hindu Marriage Act, 1955. It was observed that: (AIR p. 52, para 28)
“An offer to return to the matrimonial home after some time, though desertion had started, if genuine and sincere and represented his or her true feelings and intention, would bring to an end the desertion because thereafter the animus deserendiwould be lacking, though the factum of separation might continue; but on the other hand, if the offer was not sincere and there was in reality no intention to return, the mere fact that letters were written expressing such an intention would not interrupt the desertion from continuing.”
In this connection, reference was also made to the decision in the case of Bipin Chander Jaisinghbhai Shah v. Prabhawati [1956 SCR 838 : AIR 1957 SC 176] .
10. This Court in the case of Rohini Kumari v. Narendra Singh[(1972) 1 SCC 1 : 1972 SCC (Cri) 1] while considering the case of judicial separation on the ground of desertion under Section 10(1)(a) of the Act read with the Explanation, held: (SCC pp. 3-4, paras 4-5)
“The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of ”constructive desertion’ is discussed at p. 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him.
In Lachman Utamchand Kirpalani v. Meena [AIR 1964 SC 40 : (1964) 4 SCR 331] this Court had occasion to consider the true meaning and ambit of Section 10(1)(a) of the Act read with the Explanation. Reference was made in the majority judgment to the earlier decision in Bipin Chander Jaisinghbhai Shah v.Prabhawati [1956 SCR 838 : AIR 1957 SC 176] in which all the English decisions as also the statement contained in authoritative textbooks were considered. After referring to the two essential conditions, namely, the factum of physical separation and the animus deserendi which meant the intention to bring the cohabitation permanently to an end as also the two elements so far as the deserted spouse was concerned i.e. (1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid, it was observed while examining how desertion might come to an end:
”In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to have regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where, however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse.’ ”
11. This Court in the case of Sanat Kumar Agarwal v. Nandini Agarwal [(1990) 1 SCC 475] considering a case under Section 13(1)(ib) of the Act, held that it is well settled that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case and those facts have to be viewed as to the purpose which is revealed by those facts or by conduct and expression of intention, both anterior and subsequent to the actual act of separation.
This extract is taken from Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308 at page 317
12. In a recent case in Chetan Dass v. Kamla Devi [(2001) 4 SCC 250] this Court considered the question whether the offer made by the husband in this Court to keep his wife, was held to be not sincere and did not deserve to be seriously considered. In that connection, this Court held: (SCC p. 258, para 12)
“12. During the course of the arguments, learned counsel for the Appellant, so as to show the allegations made against the Appellant about having illegitimate relationship with Sosamma Thomas (sic), submitted that the Appellant is still prepared to keep the respondent Kamla Devi with him. According to him, the Appellant never refused to live with her. In reply, learned counsel for the respondent submitted that the respondent was also prepared to live with the Appellant provided that he discontinued his relationship with Sosamma Thomas. The hollowness of the submission that the Appellant was still prepared to keep the respondent with him is quite apparent. It is on record that it was on the same undertaking that the respondent was taken to Ganganagar by the Appellant to live with him but there she was subjected to humiliating treatment meted out to her by the Appellant himself having his food only in the room of Sosamma Thomas and staying there during the night leaving his wife and sister alone on the ground floor. With this kind of attitude, the offer as made on behalf of the Appellant is too shallow to deserve any serious thought. At the same time, the condition on which the respondent is prepared to live with him seems to be quite justified, that is to say, she is still prepared to live with him provided he behaves and snaps his relationship with the other woman. It is apparent that it is the own conduct of the Appellant which led the respondent to live separate from the Appellant. None else, but the Appellant alone, is to be blamed for such an unhappy and unfortunate situation. The findings of facts, as recorded by the two courts below, do not deserve to be disturbed in any manner nor have they been seriously assailed before us.”
31. This Court now has to examine the claim of Appellant as per mandate of section 13 (i)(i-a) and 13 (i) (i-b) of Act 1955 and meaning assigned to the terms ‘cruelty’ and ‘desertion’ as noted above. Section 13 (I) (i-a) clearly provides for grant of decree of divorce on the ground of cruelty which can be physical or mental. Plaintiff in order to succeed in a suit for divorce on the ground of cruelty must plead and prove specific instances of cruelty or allege and prove such allegations, which if considered singularly or cumulatively make cohabitation impossible. Section 13 (i) (i-b) of Act 1955, on the other hand provides for grant of decree of divorce on the ground of ‘desertion’. However, in order to seek decree of divorce on the ground of ‘desertion’, plaintiff must prove that he/she has been deserted for a continuous period of not less than two years immediately, preceding the presentation of the petition. Therefore, what implies from plain reading of Section 13 (i) (i-b) of Act 1955 is that defendant must have deserted petitioner for a continuous period of two years prior to the date of institution of suit. The aforesaid requirement can be termed as a necessary pre- condition for seeking a decree of divorce on ground of desertion. Therefore, it is imperative on the part of plaintiff to plead and prove that defendant has deserted plaintiff and has continued doing so uninterruptedly for a period of two years, prior to the institution of suit. Apart from aforesaid, the issue relating to separate living, (factum deserdendi) and intention of committing desertion (Animus deserdendi) have to be established.
32. In order to examine correctness of submissions urged by learned counsel for Appellant, we have quoted the entire allegations made in plaint and also the specific grounds undertaken by Appellant to show that cruelty was committed by respondent upon him. We have also gone through the entire testimony of P.W.-1 and P.W.-2 as well as D.W.-1 and D.W.-2. After evaluating the submissions urged by counsel for parties, the issue which arises for consideration is:- Whether allegations made in plaint point out specific instances of cruelty alleged to have been committed by respondent or they are such allegations that if construed singularly or cumulatively lead to the conclusion that cohabitation is not possible.
33. Court-Below has recorded categorical findings of fact that Appellant could not prove the day, date and the name of relative upon whose arrival conduct of respondent was unbecoming of a responsible daughter-in-law. Appellant further could not established the allegations of cruelty attributable to the conduct of respondent. Similarly with regard to the allegations that when Appellant went out of home, respondent also left her matrimonial home and returned late in the evening could not be established by Appellant. Allegation regarding throwing of Mangalsutra and Diamond Ring by respondent could not be established by Appellant by leading cogent and credible evidence. Thus none of the grounds raised and pressed by Appellant to establish commission of cruelty by respondent could not be proved or established by him.
34. With aforesaid categorical findings recorded by court-below, we raised a pointed query to learned counsel for Appellant as to how findings recorded by court-below could be classified as illegal, perverse or erroneous. Learned counsel for Appellant miserably failed to demolish the findings recorded by court-below but repeatedly urged that evidence on record i.e. oral testimony of P.W.-1 i.e. Appellant and P.W.-2 his mother clearly prove the allegations in the plaint. Oral testimony of P.W.-1 and P.W.-2 is almost identical and except for reiterating the averments made in plaint nothing new has been added. The allegations made in plaint are devoid of material facts and secondly, the evidence adduced by Appellant particularly P.W.2 was not held to be credible. Therefore, the allegations made in plaint are vague and general and do not give specific instances of cruelty. Further allegation of cruelty alleged in plaint if considered either singularly or cumulatively do not lead to the conclusion that co-habitation is not possible. Therefore, we do not find any infirmity in the findings recorded by court-below rejecting the grounds urged by Appellant for grant of decree of divorce on the ground of cruelty.
35. Similarly, Appellant failed to plead and prove that there was continuous desertion of two years on the part of respondent prior to the institution of suit. Appellant has alleged that respondent deserted him on 05.01.2007 whereas on aforesaid date, she was residing with the parents of Appellant in their house at Greater Noida. Therefore, the pre-condition required to plead desertion was not satisfied in the present case. Learned counsel for Appellant could not dislodge the aforesaid but repeatedly urged that since parties have not been living together since 2009 therefore, it should be construed as desertion on the part of respondent. Submission urged by learned counsel for Appellant has been made only to be rejected. Subsequent conduct cannot be taken as a ground of desertion but of breakdown of marriage.
36. In view of discussion made above, the inescapable conclusion is that learned counsel for Appellant has failed to demolish the findings recorded by court-below on twin issues of cruelty and desertion pleaded by Appellant as grounds for divorce. Learned counsel for Appellant further could not establish that findings recorded by court-below on the issues which arose for adjudication are either illegal, perverse or erroneous. On the other hand, court-below has recorded categorical findings that the Appellant has miserably failed to prove commission of cruelty and desertion by respondent. Surprisingly, court-below has recorded a finding that inf act, cruelty was committed by Appellant himself upon respondent. Respondent in spite of above, has categorically pleaded that she was always ready and willing to reside with Appellant. Having gone through the pleadings and evidence on record, we do not have nay hesitation to conclude that Appellant only made allegations of cruelty but did not plead specific instances of cruelty by respondent upon him. Allegations of cruelty so made, even if considered cumulatively do not lead to the conclusion that cohabitation is impossible. As a result of above, the appeal fails and is liable to be dismissed. It is accordingly dismissed.
Order Date :- 22.4.2020