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Smt. Deepa Raikwar vs Gaurav Raikwar 3 Wpc/2293/2018 … on 14 August, 2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

First Appeal (M) No.21 of 2015

Judgment Reserved on : 16.5.2018

Judgment Delivered on : 14.8.2018

Smt. Deepa Raikwar, W/o Gaurav Raikwar, aged about 26 years, R/o Pendra
Road, Tahsil Pendra Road, District Bilaspur, Chhattisgarh
—- Appellant
versus

Gaurav Raikwar, S/o Madan Lal Raikwar, aged about 29 years, R/o Patel
Ward, Near Chhoti Bakhar, Shyam Talkies Road, Kandeli, Narsinghpur (M.P.)

— Respondent
——————————————————————————————————

For Appellant : Smt. Indira Tripathi, Advocate
For Respondent : Shri Sunil Pillai, Advocate

——————————————————————————————————

Hon’ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. This is wife’s first appeal under Section 28 of the Hindu Marriage

Act, 1955 (henceforth ‘the Act of 1955’) assailing the legality and

validity of the judgment dated 4.12.2014 rendered by the Additional

District Judge, Pendra Road, District Bilaspur in Civil Suit No.2A of

2013 dismissing her application under Section 13 of the Act of

1955 for grant of divorce on the ground of cruelty.

2. The wife moved the subject application with the averment that she

was married with the Respondent at Narsinghpur (Madhya

Pradesh) by performing all the rituals on 22.6.2011. After the

marriage, she started residing with the Respondent/husband at

Narsinghpur. There, the mother and the sister of the

Respondent/husband started demanding dowry of cash of Rupees

Two Lakhs and a motorcycle from her. For fulfillment of their
2

demand, they used to pressurise her that she has to bring the

above dowry from her parents. On non-fulfillment of the above

demand of dowry, they used to ill-treat her and also commit

marpeet with her. They were not giving her food and the husband

used to say very specifically that she has to call her father and the

demand of dowry must be fulfilled. The husband also used to

pressurised her for doing a private job and hand over salary to him

and for her appearing for examination of a Government job of

Shiksha Karmi and hand over him salary of the job. It was further

pleaded that before the marriage, it was told that the Respondent

was working in a networking software company and his salary was

Rs.18,000/- per month and he had also no bad habits in his

personal life. But, after the marriage, she came to know about the

real facts that the husband used to drink daily and is also in the

bad habit of smoking and he is jobless too. She was tortured and

subjected to physical and mental cruelty and ultimately on

4.1.2012, she was kicked out by the husband from his house

saying that when she will bring cash of Rupees Two Lakhs and a

motorcycle then she will be allowed to return to his house.

3. The husband contested the application moved by the wife and

denied all the facts stated against him and pleaded that he or his

family members never demanded any cash or motorcycle. At the

time of marriage also, father of the wife had told them that they

were very poor, they were unable to arrange ceremony of the

marriage at Pendra Road (Chhattisgarh), they will arrange the

marriage ceremony at Narsinghpur (Madhya Pradesh) and that too

the expenditure of the marriage ceremony will have to be borne by

the husband and his family members. Since the wife was liked by
3

the husband and his family members, the husband and his family

members carried out the whole expenditure of the marriage

ceremony. It was further pleaded by the husband that the wife is of

free will and thoughts. She bears no responsibility towards the

family. On her being asked, he started residing along with her

separately from his mother. Even thereafter, she left him and went

away along with her jewellery, clothes and other personal articles.

He has always been willing to keep her with him. He has also

moved an application under Section 9 of the Act of 1955 at

Narsinghpur for restitution of conjugal rights. Thereafter, the wife

moved the application for divorce.

4. Both the parties have got their witnesses examined. The

Appellant/wife examined herself. She also got examined her father

Premlal Sondhia, her brother Rakesh Sondhia, her brother-in-law

(Jija) Raju Berman and one Narayan Mishra, who had performed

pooja in their marriage ceremony at Narsinghpur. The

Respondent/husband examined himself only.

5. The Trial Court has found that the wife has failed to prove the

ground of cruelty and has, therefore, dismissed her application for

grant of divorce.

6. The Supreme Court in (1994) 1 SCC 337 [V. Bhagat v. D. Bhagat

(Mrs.)] held that mental cruelty in Section 13(1)(i-a) of the Act of

1955 can broadly be defined as that conduct which inflicts upon the

other party such mental pain and suffering as would make it not

possible for that party to live with the other. In other words, mental

cruelty must be of such a nature that the parties cannot reasonably

be expected to live together. The situation must be such that the
4

wronged party cannot reasonably be asked to put up with such

conduct and continue to live with the other party. It is not necessary

to prove that the mental cruelty is such as to cause injury to the

health of the petitioner. While arriving at such conclusion, regard

must be had to the social status, educational level of the parties,

the society they move in, the possibility or otherwise of the parties

ever living together in case they are already living apart and all

other relevant facts and circumstances which it is neither possible

nor desirable to set out exhaustively. What is cruelty in one case

may not amount to cruelty in another case. It is a matter to be

determined in each case having regard to the facts and

circumstances of that case. If it is a case of accusations and

allegations, regard must also be had to the context in which they

were made.

7. Yet again, the Supreme Court in (2002) 5 SCC 706 (Parveen

Mehta v. Inderjit Mehta), has held thus:

“21. Cruelty for the purpose of Section 13(1) (i-a) is to
be taken as a behaviour by one spouse towards the other,
which causes reasonable apprehension in the mind of the
latter that it is not safe for him or her to continue the
matrimonial relationship with the other. Mental cruelty is a
state of mind and feeling with one of the spouses due to
the behaviour or behavioural pattern by the other. Unlike
the case of physical cruelty, mental cruelty is difficult to
establish by direct evidence. 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. The inference has to be
5

drawn from the attending facts and circumstances taken
cumulatively. In case of mental cruelty it will not be a
correct approach to take an instance of misbehaviour in
isolation and then pose the question whether such
behaviour is sufficient by itself to cause mental cruelty.
The approach should be to take the cumulative effect of
the facts and circumstances emerging from the evidence
on record and then draw a fair inference whether the
petitioner in the divorce petition has been subjected to
mental cruelty due to conduct of the other.”

8. In (2006) 4 SCC 558 (Naveen Kohli v. Neelu Kohli), the Supreme

Court held that the word “cruelty” has to be understood in the

ordinary sense of the term in matrimonial affairs. If the intention to

harm, harass or hurt could be inferred by the nature of the conduct

or brutal act complained of, cruelty could be easily established. But

the absence of intention should not make any difference in the

case. There may be instances of cruelty by unintentional but

inexcusable conduct of any party. The cruel treatment may also

result from the cultural conflict between the parties. Mental cruelty

can be caused by a party when the other spouse levels an

allegation that the petitioner is a mental patient, or that he requires

expert psychological treatment to restore his mental health, that he

is suffering from paranoid disorder and mental hallucinations, and

to crown it all, to allege that he and all the members of his family

are a bunch of lunatics. The allegation that members of the

petitioner’s family are lunatics and that a streak of insanity runs

through his entire family is also an act of mental cruelty.

9. Thus, it is settled that whether in the facts and circumstances of a

given case, the plaintiff has been able to make out a case of grant

of divorce on the ground of cruelty would depend upon the nature
6

of pleadings and evidence in that case and there can be no

straitjacket formula nor an exhaustive list of instances can be

prepared, where cruelty is said to have been committed by one or

other party to the marriage. Cruelty can also not be inferred by

applying any formula because the said question is to be

determined keeping in view the social status of the parties, their

financial and other conditions, the atmosphere and the kind of

employment or vocation which they carry out would all be

important to interfere whether on the given set of allegations it has

become difficult for the plaintiff to live with the other side and the

behavior of such degree which amounts to cruelty.

10. In the case in hand, the Appellant/wife, in her affidavit under Order

18 Rule 4 of the Code of Civil Procedure, has stated that after the

marriage, her husband/Respondent and nanad (sister-in-law) were

torturing her for demand of dowry and the mother-in-law was

committing marpeet with her. She has admitted the fact that she

has not lodged any report in this regard at any time. Her father

and other witnesses have also admitted this fact that no report was

made regarding demand of dowry or any harassment. It was also

admitted that the marriage was performed at Narsinghpur and from

the evidence adduced by the parties, it is also apparent that the

expenditure of the marriage ceremony was borne by both the

parties in equal ratio. Father of the Appellant/wife Premlal, in

paragraph 4 of his cross-examination, has also admitted the fact

that the Respondent/husband and his family members were in their

relation and acquaintance from before. 2 years prior to the

marriage of the parties, their family members got acquainted with

each other. He has not stated anything that at the time of marriage
7

there was any demand for dowry made by the husband or his

family members. This witness has further admitted in paragraph 7

of his cross-examination that for the problems of his daughter (the

Appellant/wife), he never called any social meeting.

11. Another allegation made by the Appellant/wife against the

Respondent/husband and his family members is that they used to

force her to do a job in a private company, apply for the post of

Shiksha Karmi and they also used to ask her for handing over

them salary earned by her. In paragraph 12 of her cross-

examination, the Appellant/wife herself has stated that she did not

want to do any job. Even if it is considered for the sake of

argument that she was being asked to do a job and she was not

interested to do any job, there is nothing on record to show that

she was being tortured for doing any job and if she had been

asked to do a job, this does not amount to a cruelty. Moreover,

when she was not in any job, question of handing over her salary

to the Respondent/husband or his family members does not arise.

12. From the above discussion, it is clear that the Appellant/wife has

not been able to establish that the Respondent/husband or his

family members had been subjecting her to any cruelty or

harassment. Contrary to this, the husband had filed an application

under Section 9 of the Act of 1955 for restitution of conjugal rights.

Though the said application was dismissed, the finding recorded in

the judgment of dismissal dated 20.12.2013 reveals that the

reason for dismissal was refusal of the wife to live with the

husband. Thus, it is established that the wife has been clearly

unable to prove the ground of cruelty taken for divorce and,
8

therefore, the finding arrived at by the Trial Court regarding failure

of the wife to prove the ground of cruelty is flawless.

13. Consequently, I find no merit in the instant appeal preferred by the

Appellant/wife. It is, therefore, dismissed.

14. A decree be drawn-up accordingly.

15. Record of the Court below be sent back along with copies of the

instant judgment and decree forthwith for information and

necessary compliance.

Sd/-

(Arvind Singh Chandel)
JUDGE
Gopal

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