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Sheenu Mahendru vs Sangeeta @ Soniya on 23 May, 2019

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

First Appeal No.139 of 2017

Sheenu Mahendru ….. Appellant

Versus

Sangeeta @ Soniya ….Respondent
Mr. Tapan Singh, Advocate for the appellant.
Mr. Syed Kashif Jafri, Advocate for the respondent.

Reserved on: May 10, 2019
Date of Pronouncement: May 23, 2019

Coram: – Hon’ble Sudhanshu Dhulia, J.

Hon’ble R. C. Khulbe, J.

Per: Hon’ble R. C. Khulbe, J.

This appeal has been filed against the impugned
judgment and order dated 03.11.2017 and its decree
passed by the learned Judge, Family Court, Haridwar in
Original Suit No.314 of 2015 “Sheenu Mahendru Vs.
Sangeeta @ Soniya”, whereby the petition filed by the
appellant/ under Section 13 of the Hindu Marriage Act,
1955 has been dismissed.

2. The brief facts of the case are that the marriage
of the parties was solemnized on 10.12.2010 as per Hindu
rites and rituals. After the marriage the respondent stayed
with the appellant’s house in Khankhal at Haridwar. Out of
the wedlock of the parties a son was born on 03.10.2011.
The father of the appellant had died before the marriage of
the appellant. The appellant has six sisters and all of them
were married before the marriage of the appellant. The only
old and infirm mother of the appellant was living with the
appellant. After the marriage, the respondent started
pressuring the appellant to reside separately at Delhi. She
also started pressuring the petitioner to sell out his
parental house. The appellant tried to convince the
respondent that he has a private job and is not able to quit
the job but the respondent became adamant on the
2

demand that the appellant should sell his parental house.
The respondent is comparatively less educated and always
abides by the instructions of her elder sister Nisha Kocher
and brother-in-law Chandra Prakash Kocher, it is alleged.
Thereafter, the respondent again started threatening the
appellant that if the appellant will not accede to her
demand, then she would commit suicide and kill her son as
well. At times, the respondent used to take out a knife and
threatened to kill herself or to drown herself in Ganga, or to
take any other suicidal step. She also started misbehaving,
and even physically torturing the old and infirm mother of
the appellant. The respondent frequently started taunting
the appellant that she was ill-fated to marry an idiot like
the appellant. The appellant tried to convince the
respondent but she refused to fulfill her marital duties, and
on 13.05.2012 in the absence of the appellant, she left her
matrimonial home and took all the ornaments with her.

3. The appellant then filed an application under
Section 9 of the Hindu Marriage Act for restitution of
conjugal rights against the respondent. In that case the
respondent appeared before the Court. During the
proceedings, the appellant came to know that the
respondent has filed an F.I.R. No.147 of 2013 under
Sections 406 and Section498-A IPC read with Section 34 IPC
against the appellant and his family members with false
allegations. During that case filed under Section 9 of the
Hindu Marriage Act, the respondent also appeared before
the Court and made a statement before the Court that he is
ready to reside with her husband. On the request of the
respondent the appellant took a rented house at Haridwar
but the respondent did not come to reside with the
appellant in the rented accommodation. Later on as per the
direction of the Court, the appellant handed over all the
household goods to the respondent in presence of the police
3

personnel at Police Station Motinagar on 12.08.2013.
Subsequently, on the direction of the Court the appellant
took the respondent to his rented house at Haridwar, where
they even celebrated the birthday of their son. The parties
stayed together for some time at Haridwar as per the
compromised reached between the parties but even then,
the respondent refused to consummate marital relations.
However, again the respondent started pressurising the
appellant to settle down at Delhi. The respondent had
become so violent that she would put a knife on the neck of
her child and started threatening that if the appellant does
not accede to her demand then she would kill the child and
herself. When the appellant refused to fulfill her demand
then the respondent told him that now she would not
reside with him and told that she wants divorce and started
demanding Rs.10 lakh. Many times, the respondent used
abusive language for appellant in front of all his relatives.
No physical relations were established between the parties
since 17.09.2014 and she is living separately from the
appellant since then. The appellant Sheenu Mahendra has
filed the divorce petition under Section 13(1) (i-a) (i-b) of the
SectionHindu Marriage Act for dissolution of marriage. As per the
evidence, after marriage respondent Sangeeta started
torturing the appellant as well as his old and infirm
mother. She also compelled him to settle with her at Delhi.
The respondent did not want to reside with her in-laws,
since the mother of the appellant is an old and infirm
woman. When the appellant did not agree to settle in Delhi,
then the respondent refused to consummate the marriage.
Ultimately on 13.05.2012, she left her matrimonial home
and took all the ornaments along with her. With these
averments the divorce petition was filed.

4. The respondent filed her written statement and
factum of marriage was admitted. It is also admitted that
4

out of the wedlock of the parties, a son was born. She also
admitted that she filed a criminal case, F.I.R. No.147 of
2013, under Sections 406 and Section498-A IPC read with Section
34 IPC against the appellant and his family members at
Delhi. It is also stated that on the basis of mutual
agreement, both the parties filed a divorce petition before
the Family Court, Haridwar but the parties could not reach
an agreement, therefore the case was dismissed. The
appellant filed a case against the respondent under Section
9 of the Hindu Marriage Act. The respondent appeared
before the Court and stated that she is still ready and
willing to live with the petitioner in a separate rented
accommodation at Haridwar. She also stated that she never
pressurized the appellant to settle at Delhi. She never
committed marpeet with the appellant. The marital
relations between the parties remained in existence till
2014. The appellant committed marpeet with the
respondent on 15.09.2014 at his residence. It is also stated
that all the expenses pertaining to education and
maintenance of the child are being incurred by the
respondent.

5. On exchange of the pleadings, the learned
Family Court framed the following issues as under:-

1) Whether the respondent has treated the
petitioner with cruelty after the marriage?

2) Whether the respondent has deserted the
petitioner for more than two years without
any reason?

3) Whether the petitioner is entitled for any
relief?

4) Whether the petitioner has deserted his wife
without any reason?

5

5) Whether the respondent is entitled for the
relief of restoration of conjugal rights?

6. In oral evidence, the appellant examined himself
as PW1 while the witnesses produced by him are PW2 Prem
Lata Mahendra (appellant’s mother) and PW3 Ms. Babita.

7. Respondent-Sangeeta appeared as DW1. She
produced DW2 Swati, DW3, Kamal Kumar and DW4,
Chandra Prakash.

8. After considering the evidences on record, the
learned Family Court, Haridwar dismissed the divorce
petition filed by the appellant as well the petition filed by
the respondent under Section 26 of the Hindu Marriage
Act.

9. We have heard learned counsel for the parties
and perused the entire material on record.

10. Appellant Sheenu Mahendra filed an affidavit in
support of his evidence on 18.5.2016 in which he has
admitted that the parties have been living separately since
17.9.2014. While the petition u/s 13 of the SectionHindu
Marriage Act was filed on 3.8.2015, which shows that the
appellant filed this petition seeking divorce within a span of
one year from the date of the alleged desertion. While as
per Section 13(1)(ib) of the Hindu Marriage Act, for seeking
divorce on the ground of desertion, it is necessary to prove
that the respondent has deserted the appellant for a
continuous period of not less than two years immediately
preceding the presentation of petition. Since as per the
affidavit filed by the appellant, the respondent has left the
matrimonial home on 17.9.2014. In such circumstances,
the appellant is not entitled for divorce on the ground of
desertion.

6

11. So far as the cruelty is concerned, although any
party to the marriage can file a petition for dissolution of
marriage on the ground of cruelty.

12. The term ‘cruelty’ is not defined in the Act.
Cruelty may be mental or physical. The expression cruelty
has been used in relation to human conduct or human
behaviour.

13. The Hon’ble Supreme Court of India, in SectionSamar
Ghosh v. Jaya Ghosh (2007) 4 SCC, 511, has laid down
the following instances of human behaviour which may be
relevant in dealing with the cases of “mental cruelty”: –

“(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 behaviour of one spouse
actually affecting physical and mental health of the other spouse.
The treatment complained of and the resultant danger or
apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference
or total departure from the normal standard of conjugal kindness
causing injury to mental 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.

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(x) The married life should be reviewed as a whole and a few
isolated instances over a period of years will not amount to cruelty.
The ill-conduct must be persistent for a fairly lengthy period, where
the relationship has deteriorated to an extent that because of the
acts and behaviour of a spouse, the wronged party finds it
extremely difficult to live with the other party any longer, may
amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization
without medical reasons and without the consent or knowledge of
his wife and similarly if the wife undergoes vasectomy or abortion
without medical reason or without the consent or knowledge of her
husband, such an act of the spouse may lead to mental 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.”

14. The word “cruelty” appears to have been used in
the Section in context of human behaviour in relation to or
in respect of matrimonial obligations or duties. Cruelty can
be termed as behaviour or conduct of one spouse which
adversely affects the other. Thus broadly speaking ‘cruelty’
as a ground for the purpose of divorce under Section 13(1(i-

a) can also be taken as a behaviour of one spouse towards
the other which causes reasonable apprehension in his or
her mind that it is not safe to continue matrimonial
relationship. Cruelty can be physical or mental or even
intentional or unintentional. The mental cruelty is difficult
to establish by direct evidence. It is a matter of inference to
be drawn from acts and circumstances of the case. A
feeling of anguish and frustration in one spouse caused by
the conduct of other can be appreciated on the assessment
of facts and circumstances in which the two of them have
been living. The inference has to be drawn from overall
facts and circumstances considered cumulatively.

8

15. Mental cruelty and its effect cannot be stated
with arithmetical accuracy. It varies from individual to
individual, from society to society and also depends on the
status of the persons. What would be mental cruelty in the
life of two individuals belonging to a particular stratum of
the society may not amount to mental cruelty in respect of
another couple belonging to a different stratum of society.

16. The burden lies upon the respondent to establish
the charge of cruelty. The question is as to what is the
standard of proof to be applied in order to judge whether
the burden has been discharged or not. The rule which
governs matrimonial cases is, that a fact could be
established, if it is proved by a preponderance of
probabilities. Proof beyond a reasonable doubt is a proof of
a higher standard, which generally governs criminal trials
or trials involving inquiry into issues of a quasi criminal
nature. Such proof beyond a reasonable doubt could not be
imported in matters of pure civil nature especially
matrimonial matters.

17. From the evidence it is clear that when the
respondent has left the matrimonial home in the year 2012,
the appellant filed a petition no.408 of 2012 under Section
9 of the Hindu Marriage Act for restitution of conjugal
rights against the respondent, the respondent appeared
before the Court and after that, she filed an F.I.R. No.147 of
2013 under Sections 406 and Section498-A IPC read with Section
34 IPC against the appellant and his family members with
false allegations at Delhi.

18. It is the allegation of the appellant that after
marriage the respondent started pressurizing him to reside
separately from his old aged mother. The respondent also
started to pressurize the appellant to sell out his parental
house. It is the contention of the appellant also that the
respondent has forced him to quit his job so that he may
9

settle at Delhi with the respondent. The respondent never
wanted to live with her mother-in-law. The respondent also
filed an F.I.R. No.147 of 2013 under Sections 406 and Section498-
A IPC read with Section 34 IPC at Delhi. In this regard
Premlata Mahendra, who is the mother of the appellant,
appears as DW-2. In her statement she also proved the
allegations as alleged by the appellant against the
respondent. She also stated that the respondent tortured
her and abused her on many occasions. She also stated
that the respondent filed a false criminal case against the
appellant and his relatives.

19. Respondent Sangeeta admitted in her evidence
that her mother-in-law Premlata is a 76 years old lady. She
also admitted that she filed a case under Section 498A IPC
against the appellant and other family members at Delhi.
She also admitted that she is residing at Delhi with her
sister.

20. The appellant stated in his evidence that on the
request of the respondent, he took a house on rent at
Haridwar where the respondent resided with him and
where they celebrated the birthday of their son. It is also an
admitted fact that respondent lodged an F.I.R. against the
appellant as well as his relatives. The respondent admitted
in her statement that she wants to continue to reside at
Delhi with her child. These facts are also proved by PW2,
Premlata Mahendra, who also proved that the respondent
always tortured her and used abusive language. She also
stated that the respondent lodged a false complaint against
the appellant and other relatives with false allegations at
Delhi.

21. In the present case, it is clear from the evidence
that the respondent had started torturing the appellant as
well as his infirm and old mother after the marriage. It is
10

also clear that on the request of the respondent, the
appellant took a separate house on rent at Haridwar where
the respondent resided with her son but again she started
torturing the appellant and forced him to settle down at
Delhi. From the evidence, it is also proved that the
respondent went to Delhi along with all the ornaments to
settle there. When the appellant filed an application under
Section 9 of Hindu Marriage Act for the restitution of
conjugal rights against the respondent, the respondent
filed a criminal case Section 498A IPC at Delhi not only
against the appellant but also against other relatives of the
appellant-husband with false allegations. The respondent
also admitted in her statement that a compromise took
place between the parties earlier, and on the basis of the
compromise, the divorce suit was filed before the Family
Court at Haridwar in which the appellant was ready to give
Rs.10 lakh as one time settlement, and was also ready to
give custody of his child to the respondent, but due to some
reasons, it could not be materialized.

22. It is proved that the parties are living separately
since 2014 and this Court also tried for settlement which
could not bring any fruit. It is also clear that the
respondent has filed false criminal case not only against
the appellant but also against the relatives of the appellant.
She is not willing to live with the appellant-husband, rather
willing to settle down at Delhi with her son. The respondent
does not want to see the face of the old and infirm mother
of the appellant. Many times after the marriage, she
tortured the old and infirm mother of the appellant. It is
also clear that the respondent-wife wanted the appellant to
get separated from his old and infirm mother. The evidence
shows that the family was virtually maintained from the
income of the appellant-husband. It is not a common
practice, desirable and acceptable norm for a son to leave
11

his old mother when there is no one else to take care of her
in order to settle with his wife, particularly when he is the
only earning member in the family. After being brought up
and educated by his mother, the son has a moral and legal
obligation to take care and maintain her when she becomes
old and has no other source of income to maintain her. In
normal circumstances, the wife is expected to be with the
family of the husband after marriage because she becomes
an integral a part of the family of the husband, and without
any justifiable reason, she may not insist that her husband
stays separately from her old mother, and to live with his
wife in a separate and rented accommodation. If a wife
makes such a demand, then she must have some
justifiable reason for the same. In this case, we do not find
any justifiable reasons. In our opinion, normally, no
husband would tolerate this nor would any son like to be
separated from his old mother, who is dependent upon her
son. The persistent efforts of the respondent-wife to compel
the appellant to get separated from his mother would be
torturous for the husband, and in our opinion this act of
respondent certainly constitutes an act of cruelty. However,
these allegations were not touched by the Family Court. It
is also evident that the respondent has lodged a complaint
against her husband and his relatives. Such type of
behaviour must come with the definition of ‘cruelty’.

23. We have also carefully gone through the
evidences adduced by the parties before the Trial Court.
The constant persuasion by the respondent for getting
separated from the mother of the appellant and
constraining the appellant to live separately only with her,
was also not considered to be of any importance by the
Trial Court. Even no importance was given to the incident
with regard to the statement made by the respondent to
commit suicide and to kill her son. The mere idea with
12

regard to facing illegal consequences would put a husband
under tremendous stress. The thought itself is distressing.
Such a mental cruelty should not have been taken lightly
by the learned Family Court. It is needless to add that such
threats or statements constitute cruelty.

24. In the present case, living separately of the
parties for a long time, public insult, embarrassment to the
appellant, agony and humiliation suffered by the appellant,
charging the appellant with false allegations amounts to
cruelty by the respondent towards her husband. The
respondent wife is living separately for the last five years
and presently staying at Delhi with a son born out of the
wedlock of the parties.

25. From the perusal of the entire material on
records, the following facts are proved which constitute
cruelty:-

a) Disrespectful and disparaging remarks by the
respondent wife against the appellant-husband
would amount to cruelty under Section 13(1) (i-a) of
the Act as laid down in Smt. Santana Banerjee Vs.
Sachindra Nath Banerjee AIR 1990 (Calcutta)

367.

b) The respondent-wife created a pressure on
appellant-husband by alleging that she will commit
suicide and kill her son and entangle the appellant
in a false case would amount to be a cruelty as laid
down in Harbhajan Singh Monga Vs. Amarjeet
Kaur AIR 1986 MP 41.

c) The attitude of respondent-wife abusing the mother
in law and making sarcastic remark against the
husband before the relatives of husband would
amount to be a cruelty as laid down in Rajinder
13

Bhardwaj Vs. Mrs. Anita Sharma AIR 1993 Delhi

135.

d) If the wife physically assaults the mother-in-law and
abuses her will amount to be a cruelty.

e) The respondent has compelled the appellant to
abandon his 75 years old and infirm mother.

f) The respondent has compelled the appellant to live
separately in a rented house.

g) The respondent had compelled the appellant to live
with her at Delhi after selling off his ancestral house.

h) The behaviour of the respondent-wife made the life of
the appellant-husband miserable and it became
impossible for the appellant to stay with the
respondent for the aforesaid reasons. Moreover, the
respondent wanted the appellant to leave his own
mother and get separated from his mother so that
the respondent can live independently, and in that
event it would become more torturous for the
appellant to stay only with the respondent-wife to
tolerate such nature and behaviour of the
respondent.

26. On the basis of above discussion and
considering the facts and circumstances of the case, it
appears that the relationship between the parties has
deteriorated to the extent that there is no possibility of any
reconciliation. Their relationship has reached to the point
from where there appears no possibility of harmonious
conjugal relationships or their being living together as
husband and wife and discharging the matrimonial duties.
This itself amounts to a cruelty, if allowed to continue. In
these circumstances, the appeal is liable to be allowed.

14

27. However, before parting, we are also conscious of
the interest of the minor son born out of the wedlock of the
parties. It, would, therefore, be just to award an amount of
Rs.14 lakh to the respondent-wife for maintenance and
education etc. of her son Master Yash Mahendra under
Section 25 of the Hindu Marriage Act as one time alimony.

28. For the aforesaid reasons, the appeal is allowed.
The marriage solemnized between the parties on
10.12.2010 is hereby dissolved. The appellant is directed to
pay Rs.14 lakh (fourteen lakh only) to the respondent-wife
as one time alimony under Section 25 of the Hindu
Marriage Act. Out of this amount a sum of Rs.10 lakh will
be paid by him within one month from today, out of which
Rs.5.00 lakh would be a fixed deposit for five years in the
name of his son, with his wife as nominee. The remaining
amount will be paid by him within a span of two years in
four equal half yearly installments.

(R.C. Khulbe, J.) (Sudhanshu Dhulia, J.)
23.05.2019
Sukhbant

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