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Smt. Mamta Dixit vs Shri Shailesh Dixit on 22 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved On 26.9.2019

Delivered on 22.01.2020

Court No. – 34

Case :- FIRST APPEAL No. – 75 of 2017

Appellant :- Smt. Mamta Dixit

Respondent :- Shri Shailesh Dixit

Counsel for Appellant :- Chandra Keshwar Singh

Counsel for Respondent :- Abhishek Tripathi

Hon’ble Sudhir Agarwal,J.

Hon’ble Rajeev Misra,J.

(Delivered by Hon’ble Rajeev Misra, J.)

1. This is plaintiffs First Appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as ‘Act 1984’) arising out of Judgment dated 23.12.2016 and decree dated 9.1.2017 passed by Additional Principal Judge, Family Court, Kanpur Nagar in Suit No. 935 of 2011 (Smt. Mamta Dixit Vs. Sri Shailesh Dixit) dismissing suit of appellant for divorce filed on the ground of ‘cruelty’.

2. We have heard Mr. Chandra Keshwar Singh, learned counsel for plaintiff (hereinafter referred to as ‘appellant’). In spite of revision of cause list, no one has appeared on behalf of defendant-respondent (hereinafter referred to as ‘defendant’) even though name of Mr. Abhishek Tripathi is printed in the cause list as counsel for respondent.

3. Appellant instituted Suit No. 935 of 2011 (Smt. Mamta Dixit Vs. Sri Shailesh Dixit) for dissolution of marriage of parties solemnized on 21.2.1985. According to plaint allegations, marriage of parties was solemnized on 21.2.1985 in accordance with Hindu Rites and Customs at G.N.K. Inter College, Civil Lines, Kanpur Nagar; after marriage, appellant came to her matrimonial home situate at 104A/185 Rambagh, Kanpur Nagar and started discharging marital and spousal obligations; appellant belongs to a reputed brahmin family and her father was a renowned Advocate; sufficient dowry was given and marriage was solemnized with fan and fare; at the time of marriage, respondent was having degrees of M.Sc. and M.B.A.; he was employed as a Marketing Advisor at Bombay; Respondent used to come to Kanpur after month or two months and used to discharge his marital obligations; Appellant resided at her matrimonial home at Rambagh Kanpur Nagar upto the year 1989; in the aforesaid year, respondent was transferred to Delhi; on account of repeated request made by appellant, respondent took her to Delhi along with him; Upon continuous co-habitation with defedant at New Delhi, appellant came to know about the bad habits of respondent; She discovered that defendant is a drunkard, cruel and a man of loose character; defendant started committing cruelty upon appellant; Parties resided at Janta Flat, Dilshad Garden, Delhi; while parties were residing at above mentioned place, respondent for fulfilment of his lust for dowry uttered pinching and substandard words; in the garb of purchasing a nice flat at a good place, respondent pressurized appellant to get money from her parents; Appellant disclosed aforesaid fact to her parents’ but, on account of poor financial condition, parents of appellant could not satisfy exorbitant demand of respondent; as a result, respondent became angry and started committing atrocities upon appellant in different ways; to save appellant from atrocities committed by respondent, parents of appellant gave a sum of Rs.1,50,000/- to respondent for purchasing house with the condition that same shall be purchased in the name of appellant; however, by playing fraud and forgery, respondent purchased House No. 176D, Pocket J K, Dilshad Garden, Delhi in his own name; in spite of aforesaid, there was no change in the conduct of respondent; his attitude and conduct towards appellant became more aggressive and pinching; appellant could not withstand atrocities committed by respondent and also could not withstand rude and agonising behaviour of respondent have she returned to her parental home; Some of the goods and dowry given to appellant at the time of her marriage were retained by parents of respondent and remaining goods and jewellery were retained by defendant; to resolve the stalemate, appellant sent a notice dated 16.10.2009 to respondent and his parents; upon receipt of aforesaid notice, compromise was entered into, between parties including parents of respondent and respondent agreed to give up his addiction; On this undertaking, appellant again went to Delhi and started residing with respondent; unfortunately, conduct of respondent remained the same and on account of resentment shown by appellant, respondent ousted appellant from his home in July 2010; With some difficulty, appellant came to her parental home; Appellant again sent a notice to respondent complaining about conduct of respondent; thereafter, appellant used good offices of her well-wishers to exert pressure upon respondent for return of her goods, dowry, stridhan and also amount given for purchase of flat; Appellant also demanded promise of good conduct from respondent; however, in response, respondent refused to return the goods demanded and further alleged to destroy appellant and her family members; respondent has not maintained any contact or co-habitation with appellant for the last one year nor has paid any amount towards her maintenance even though monthly income of appellant is Rs.50,000/-; Appellant has no independent source of income. Her father has already died; her widowed mother has no sufficient source of income, therefore, appellant is dependent upon her mother and mama (maternal uncle); Cause of action was alleged to have accrued first in July, 2005 on account of bad behaviour committed by respondent; thereafter, again in 2009, again in July 2010 when defendant ousted appellant from his home and ultimately in June 2011, when appellant refused to show good conduct and co-habit with appellant at Kanpur. On the aforesaid factual premise, appellant prayed for a decree of divorce on the ground of cruelty.

4. Suit filed by appellant was contested by respondent. Accordingly, respondent filed written statement (paper no. 19 Ka). Respondent not only denied plaint allegations substantially but also raised additional pleas. Respondent admitted factum of marriage between parties; however, denied giving of dowry at time of marriage and also engagement of respondent as ‘Marketing Advisor’; also denied factum regarding transfer of his services from Bombay to Delhi; is a simple man of sound character; he is well educated having faith in God; by no stretch of imagination, it can be said that respondent ever committed cruelty upon appellant. In additional pleas, it was stated that father of respondent was a Principal in Degree College, Kanpur. From the money given by his father, respondent purchased house in his name and kept appellant with love and affection. He also fulfilled all the necessities of appellant. It was also pleaded that appellant has no love and affection for respondent, but only for her maternal uncle (mama) on account of which she again came to the house of her maternal uncle (mama) instead of residing with her parents. Maternal uncle (mama) of appellant was stated to be the cause behind dispute between parties coupled with the fact that out of wedlock, no child was born. Respondent further stated that he is in a private job but is ready to maintain appellant and keep her with him irrespective of his meagre source of income. Appellant has sufficient source of income. She is an Income Tax Assessee and her PAN number is AFCPD0927N. She has a Savings Bank Account in ICICI Bank. Her account number is 000701072843. Appellant also submits Form No.16A with Income Tax Department which contains details of her income. Evidence in this regard shall be submitted at the stage of evidence. Appellant is working on a monthly salary of Rs.50,000/- and also has additional income of Rs.30,000/- by doing tuition. Respondent is ready to reside with appellant and discharge his marital and marriage obligations from his limited source of income. Onthe aforesaid defence, respondent prayed for dismissal of suit for divorce filed by appellant.

5. On the pleadings of parties, Court below framed following issues:-

I. Whether defendant has committed cruelty upon appellant as alleged in the plaint? If yes, its effect.

II. Whether defendant has abandoned appellant without any sufficient cause as alleged in plaint? If yes, its effect.

III. To what relief is appellant entitled to?

6. After issues were framed, parties went to trial. Appellant in support of her case adduced herself as P.W. 1. No other witness was adduced by appellant. Appellant filed two documents in documentary evidence, i.e. photographs and marriage card. Respondent in order to establish his defence adduced himself as D.W. 1. In documentary evidence, respondent filed prescriptions issued by Rajiv Gandhi Super Speciality Hospital, photo copy of Eco-cardiogram, O.P.D. Card issued by Lakshmipat Singhania Heart Institute Medical College, Kanpur, photo copy of Registration Card of G.B. Pant Hospital, New Delhi, photo copy of Newspaper, photo copy of letter of Speaker Delhi Legislative Assembly, photo copy of Times of India newspaper.

7. Court below, upon consideration of pleadings of parties, and evaluation of oral and documentary evidence adduced by parties proceeded to decide the issues so framed. In respect of Issue 1 which related to cruelty, Court below concluded that it is an admitted fact between parties that marriage was solemnized on 21.2.1985 and parties have resided together upto the year 2009, i.e. for the last 23 years. No independent witness has been adduced by appellant to prove alleged ‘cruelty’ committed by respondent. Though it is alleged that ‘cruelty’ was firstly committed in the year 2005 but record shows that appellant continued to reside with respondent upto 2009 and thereafter, again agreed to reside with respondent. Considering the concept of ‘cruelty’ including ‘mental cruelty’, court below referred to Judgment rendered in K.R. Srinivasan Vs. Dharmavaram Sridevi, 111 (12) DMC 427 (AP) relied upon by appellant. In the aforesaid Judgment, it was concluded that if one party alleges cruelty and other party denies the same, it cannot be said that allegation of cruelty has not been proved. However, considering the facts of present case, in the light of aforesaid ratio, Court below observed that appellant herself has not been able to prove cruelty alleged by her. On the issue of mental cruelty, Court below referred to Judgment of Apex Court in Savitri Pandey Vs. Prem Chandra Pandey, 2002 (2) SCC 73 wherein Court has held that mental cruelty denotes such conduct that it creates mental difficulty or fear in continuing marital life. Further conduct of one party is such that there is constant fear in the mind of other party and continuation of co-habitation is impossible as it may lead to loss and injury. Cruelty is different from every day ups and downs in life. As such, Court below observed that even on the allegations made by appellant, it cannot be said that co-habitation with respondent is impossible. Consequently, Court below concluded that appellant has failed to prove commission of cruelty by respondent upon her.

8. In respect of Issue 2, Court below concluded that appellant herself left the home of respondent and upon assurance given by respondent, came back to her marital home. On the second occasion, when appellant abandoned house of respondent suit under Section 9 of Act 1985 for restitution of conjugal rights was filed by respondent, whereas no proceedings in law were initiated by appellant herself. Thus, appellant has failed to show that respondent has abandoned appellant. It was, thus, held that defendant has not abandoned appellant on any ground whatsoever.

9. In view of findings recorded in respect of Issues 1 and 2, Court below dismissed suit of appellant, vide Judgment dated 23.12.2016 and decree dated 9.1.2017. Feeling aggrieved by aforesaid Judgment and decree, passed by court below appellant has now approached this Court by means of present first appeal.

10. Mr. Chandra Keshwar Singh, learned counsel for appellant has challenged impugned Judgment and decree by submitting that findings recorded by Court below on issues 1 and 2 are not only illegal, perverse but also erroneous. According to learned counsel, allegations made in plaint, when considered cumulatively, clearly go to show that it is impossible for appellant to co-habit with respondent as conduct of respondent created such a situation where there was fear of life or other untoward incident.

11. The only point for determination needs to be adjudicated in this appeal:-

I. Whether Court below has rightly held that plaintiff failed to prove ‘cruelty; committed upon her by defendant.

12. Before proceeding to consider correctness of submission urged by learned counsel for appellant, it would be useful to reproduce Section 13 of Act 1955, which provides for grounds of 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).

STATE AMENDMENT

Uttar Pradesh.– In its application to Hindus domiciled in Uttar Pradesh and also when either party to the marriage was not at the time of marriage a Hindu domiciled in Uttar Pradesh, in section 13–

(i) in sub-section (1), after clause (i) insert (and shall be deemed always to have been inserted) the following

“(1-a) has persistently or repeatedly treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or”, and

(ii) for clause (viii) (since repealed) substituted and deem always to have been so substituted for following.

” (viii) has not resumed cohabitation after the passing of a decree for judicial separation against that party and–

(a) a period of two years has elapsed since the passing of such decree, or

(b) the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of other party; or”.”

13. Section 13 (ia) of Act of 1955 clearly provides that a decree of divorce can be granted in case after solemnization of marriage, petitioner has been treated with cruelty.

14. The term ‘cruelty’ has not been defined in the Act of 1956 and therefore, same has been subject matter of debate for long. Different Courts in India have tried to explain meaning of term ‘cruelty’ and also crystalized the actions which can constitute cruelty. In doing so varied aspects of human nature in changing vicissitudes of time have been taken into consideration.

15. 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 by referring to the meaning assigned to the term in different dictionaries and text. Following has been observed in paragraphs 16, 17, 18 and 19:-

“16. In Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 Court considered the concept of cruelty and referring to Oxford Dictionary defines ‘cruelty’ as ‘the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’.

17. In Black’s Law Dictionary, 8th Edition, 2004, term “mental cruelty” has been defined as, “a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”

18. The concept of cruelty has been summarized in Halsbury’s Laws of England, Vol.13, 4th Edition Para 1269, as under:

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.”

19. In 24 American Jurisprudence 2d, the term “mental cruelty” has been defined as under:

“Mental Cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. appellant must show a course of conduct on the part of Defendant which so endangers the physical or mental health of appellant as to render continued cohabitation unsafe or improper, although appellant need not establish actual instances of physical abuse. ”

16. 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’, and 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)

9. 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….”

17. 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.”

18. Reference in this regard may also be made to the judgement in K. Srinivas Rao Vs. D. A. Deepa, 2013 (5) SCC 226 wherein following has been observed in paragraphs 10 and16:

“10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnisation of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term “cruelty”. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.

16.Thus, to the instances illustrative of mental cruelty noted inSamar Ghosh[(2007) 4 SCC 511] , we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.”

19. With the aid of meaning of the term “physical cruelty” and “mental cruelty” this Court has to examine, whether appellant was able to establish commission of cruelty by Defendant before Court below and findings recorded by Court below are illegal, perverse and erroneous or not.

20. From perusal of impugned judgement, we find that Court below has disbelieved the case set up by appellant by assigning cogent reasons. Court below concluded that conduct of appellant towards respondent is itself unnatural and she left matrimonial home deliberately. The case set up in divorce petition that respondent has deserted appellant has been disbelieved by Court below as the same was found to be false. In arriving at aforesaid finding, Court below observed that no independent witness has been examined by appellant to prove her case. Further neither the instances of cruelty alleged in plaint nor allegations of cruelty made in plaint when examined singularly or cumulatively constitute commission of cruelty upon appellant by respondent. Further respondent himself has instituted suit for restitution of conjugal rights which was decreed ex-parte. In spite of aforesaid, appellant did not reside with respondent to discharge her marital and spousal obligations. No explanation has come forward from appellant explaining the above.

21. On the issue regarding commission of physical and mental cruelty, Court below concluded that appellant has not given any specific instance of such act on the part of Defendant, which may constitute physical or mental cruelty. Appellant has only stated that physical and mental cruelty was exerted upon her by Defendant. Upon consideration of allegations of cruelty, Court below concluded that they by themselves do not amount to commission of cruelty by Defendant. As such appellant failed to establish that cruelty was committed upon her by Defendant.

22. Learned counsel for appellant took us through the impugned Judgment exhaustively and highlighted the observations made therein in favour of appellant. However, he could not create a dent in the impugned Judgment by pointing out specifically any illegality or perversity in impugned Judgment.

23. In view of discussion made herein above, inescapable conclusion is that appellant has failed to prove commission of cruelty by alleging and proving specific instances of cruelty nor the allegations of cruelty made by appellant in plaint when considered as a whole constitute threat to life of appellant and, therefore, making cohabitation impossible. In view of aforesaid, no illegality was committed by Court below in dismissing suit of appellant. We, therefore, answer the question formulated above, against appellant.

24. For aforesaid reasons, present appeal fails. It is, accordingly, dismissed. Cost made easy.

Order Date :-22.01.2020

Ram Murti

 

 

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