HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 25.9.2019
Deliverd on: 17.1.2020
Court No. – 34
Case :- FIRST APPEAL No. – 69 of 2017
Appellant :- Smt. Seema Alias Aarju
Respondent :- Ravindra Singh
Counsel for Appellant :- Pragya Pandey,Imran Syed
Counsel for Respondent :- Gulab Chandra,Hari Manish Bahadur Sinha
Hon’ble Sudhir Agarwal,J.
Hon’ble Rajeev Misra,J.
(Delivered by Hon’ble Rajeev Misra,J.)
1. Challenge in this appeal under section 19 of Family Courts Act, 1984 (hereinafter referred to as ‘Act, 1984’) preferred by defendant respondent is to the judgement dated 30.11.2016 and decree dated 3.12.2016, passed by Kamlesh Dubey, Principal Judge, Family Court, Hapur, whereby Suit No. 468 of 2018 (Ravindra Singh Vs. Seema @ Aarju) filed by plaintiff-respondent for divorce has been decreed.
2. We have heard Ms. Pragya Pandey, learned counsel for defendant-appellant (hereinafter referred to as ‘appellant’) and Mr. Hari Manish Bahadur Sinha for plaintiff-respondent (hereinafter referred to as respondent.
3. Respondent filed Original Suit No. 468 of 2013 (Ravindra Singh Vs. Seema @ Aarju) in the Court of Civil Judge (Senior Division) Hapur for a decree of divorce vide plaint dated 1.8.2013. According to plaint allegations, case of plaintiff in brief was that marriage of appellant and respondent was solemnized on 29.6.2012 in accordance with Hindu Rites and Customs without any dowry. Respondent in discharge of his obligation as husband provided every comfort to appellant; however, inspite of aforesaid, appellant was neither satisfied nor happy; Appellant is of an agitated mind and demanding in nature; Appellant is physically assaulted respondent and his mother; On account of her charged character, appellant extended threat to respondent of getting him killed; Appellant is having relationship with another person as she holds talk with him for long hours on telephone; Family of respondent complained to family members of appellant regarding her aforesaid character but in vain; appellant and his family members have committed ‘mental cruelty’ upon respondent; there is a serious threat to his life in company of appellant, as he can be murdered on any day; and on 4.7.2013, appellant left house of respondent along with Gold and Silver Jewellery, expensive clothes and Rs.10,000/- cash, without taking permission of respondent. On the aforesaid basis, respondent is alleged to have requested appellant to seek divorce which ultimately, she refused on 26.7.2013. The suit for divorce was filed by respondent on the ground of ‘cruelty’ which is a ground recognized for divorce, under section 13 (1) (ia) of Act 1955.
4. Suit filed by plaintiff was contested by appellant by filing a written statement. Appellant in her written statement, not only denied plaint allegations but also raised additional pleas. Appellant denied allegations of ‘cruelty’ levelled against her in plaint. Appellant pleaded that respondent is working in Excise Department, Hapur and drawing salary of Rs. 35,000/- per month; Respondent was having illicit relationship with his Bhabi namely, Monika @ Guddu and was caught by appellant in compromising position, for which respondent felt sorry; To save marriage, appellant excused plaintiff for the aforesaid act of adultery but again on 13.3.2013, plaintiff was seen in compromising position with his Bhabi, upon which hue and cry was raised and Police was informed on Phone No. 100; on 27.4.2013 criminality was committed upon her by her Jeth Indrajeet, which is punishable under section 376 IPC; as no F.I.R. was lodged as Indrajeet is working in Police Department, an application under section 156 (3) was filed before the concerned Magistrate which is pending; Appellant agreed to return to her matrimonial home on conditions that plaintiff will not talk to his Bhabi and Indrajeet will never visit her house; On 10.8.2013 appellant returned to her matrimonial home along with her bhabi as she was in advanced family way; however, on 21.8.2013, family members of plaintiff as well as plaintiff assaulted appellant and her Bhabi for which complaint was made at Police Station- Babughad and appellant and her Bhabi were medically examined. It was thus prayed that divorce suit has been filed with an oblique motive and on non existent grounds. As such, divorce suit is liable to be dismissed.
5. On the pleadings of parties, Trial Court framed following issue for determination:
(I) Whether in view of grounds raised in plaint, marriage of parties solemnized on 29.6.2012, is liable to be disolved.
6. After issue was framed, parties went to trial. Respondent (plaintiff) in order to prove his case, filed documentary evidence which included complaint pertaining to Complaint Case No. 65 of 2014 (Rakesh Vs. Ravindra) under sections 498 A, 452, 323, 504 IPC and section ¾ Dowry Prohibition Act, summoning order dated 21.3.2014 passed in above mentioned complaint case and also copy of charge-sheet submitted in Case Crime No. 48 of 2014, under Sections 323, 325, 504 IPC. Respondent (plaintiff), besides himself, further adduced P.W. 2 Mahendri and , P.W. 3 Monika to prove his case. s
7. Appellant in order to establish her defence, Court below, also filed documentary evidence. She filed copy of letter dated 24.9.2013, addressed to Superintendent of Police, Hapur, Certified copy of application filed by appellant before Chief Judicial Magistrate, Ghaziabad, under section 156 (3) Cr.P.C, Certified copy of summoning order dated 24.9.2016 passed in Complaint Case No. 3474 of 2015 (Seema Vs. Indrajeet) under sections 452 and 376 IPC. Defendant adduced herself as D.W.1 and Rajendri Devi as D.W.2 to prove her case.
8. Upon appreciation of pleadings of parties and evaluation of oral and documentary evidence on record, Court below concluded that commission of ‘cruelty’ upon plaintiff by appellant is established and therefore, decreed suit for divorce filed by plaintiff on the ground of ‘cruelty’ vide judgement dated 30.11.2016 and decree dated 3.12.2016.
9. Perusal of judgement passed by Court below goes to show that Court below concluded that various allegations of cruelty levelled by plaintiff in the plaint against appellant, when considered cumulatively, constitute commission of ‘cruelty’. To arrive at aforesaid conclusion, Court below has referred to Srikant Ram Sajiwan Vs. Saroj, 2001 (2) DMC 295; Kusum Lata Vs. Kamta Prasad, AIR 1965 All 280; Narayan Ganesh Dastane Vs. Smt. Sucheta Narayan Dastane, AIR 1970 Bombay 812; Abha Agarwal Vs. Sunil Agarwal, AIR 2000 All (77); Hanumantha Rao Vs. Shamani, AIR 1990 SC 1318; Mukesh Vs. Chanchal, 2006 Legal (LE) Delhi 957.
10. Feeling aggrieved by aforesaid judgement and decree passed by Court below, appellant has now come to this Court by means of present first appeal under section 19 of Act 1984.
11. Ms. Pragya Pandey, learned counsel for appellant, in support of her challenge to impugned judgement and decree submits that plaintiff has not pleaded any specific instance of ‘cruelty’, but has only made general allegations of ‘cruelty’ in the plaint; law on the subject is now crystallized and suit for divorce on ground of ‘cruelty’ can succeed only when specific instances of ‘cruelty’ are pleaded and proved by plaintiff; single instance of cruelty by itself is insufficient to constitute ‘cruelty’ vide Neelam Kumar Vs. Daya Rani, 2010 (13) SCC 298 and Vishwanath Vs. Prakash Chand, AIR 1992 ALL 261.
12. Elaborating her arguments, she invited attention of Court to plaint of Original Suit No. 468 of 2013 (Ravindra Singh Vs. Seema @ Aarju) which is part of paper book, to contend that plaint presented by plaintiff is vague and ambiguous. Allegations giving specific instances of cruelty are conspicuous by their absence.
13. We find force in the argument raised by learned counsel for appellant. Accordingly, we confronted Mr. H.M.B. Sinha, lerned counsel for plaintiff to explain aforesaid anomaly. He tried to support impugned judgement on the strength of findings recorded therein as well as observations made by Court below in the impugned judgement. It was strenuously urged by learned counsel Sri Sinha that allegations of cruelty, made in the plaint where considered cumulatively, they have the effect of constituting cruelty upon plaintiff. Therefore, no illegality was committed by Court below in decreeing suit for divorce filed by plaintiff. To lend support to his submissions, reliance is placed upon Samar Ghosh Vs. Jaya Ghosh 2007 (4) SCC 511; Navin Kohli Vs. Nilu Kohli, 2006 (4) SCC 558 and a Division Bench judgement of this Court in Anil Kumar Jain Vs. Smt. Kalpana Jain 2019 (8) ADJ 1. We shall refer to them in later part of this judgement.
14. Having heard learned counsel for parties and upon consideration of material on record, in our considered opinion, sole point of determination, arise in this appeal, is as under:
“Whether plaintiff has duly pleaded and proved commission of cruelty upon him by defendant and finding recorded by Court below on the issue of cruelty is unsustainable in law.”
15. Before proceeding to examine the issue involved in the present appeal, it would be appropriate 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;
(vii) [ 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”.” ”
16. The term ‘cruelty’ has not been defined in Act of 1956 and therefore, same has been subject matter of debate for long. Different Courts in India have tried to explain meaning of the term ‘cruelty’ and also crystallize actions which can constitute ‘cruelty’. In doing so varied aspects of human nature in the changing vicissitudes of time have been taken into consideration.
17. 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. Plaintiff must show a course of conduct on the part of Defendant which so endangers the physical or mental health of Plaintiff as to render continued cohabitation unsafe or improper, although Plaintiff need not establish actual instances of physical abuse. ”
18. 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)
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….”
19. 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.”
20. Reference in this regard may be made to the judgement in K. Srinivas Rao Vs. D. A. Deepa, 2013 (5) SCC 226 wherein following has been observed in paragraphs 10 and16:
“10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnisation of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term “cruelty”. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.
16.Thus, to the instances illustrative of mental cruelty noted inSamar Ghosh[(2007) 4 SCC 511] , we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.”
21. When case in hand is examined in the light of law relating to pleadings in a suit for divorce filed on the ground of ‘cruelty’, as contemplated under section 13 (1) (ia) of Act 1955 and also as per law laid down by Apex Court and meaning assigned to the term ‘cruelty’, the inevitable conclusion is that plaintiff failed to plead and prove specific instances of ‘cruelty’ for decree of divorce prayed by him. When plaint of divorce suit filed by plaintiff is examined in light of law as noted above, this Court finds that plaintiff has miserably failed to plead and prove specific instances of ‘cruelty’. Vague and general allegations devoid of material facts regarding commission of cruelty by appellant have been levelled in the plaint. Absence of material facts regarding allegations of ‘cruelty’ is an half hearted attempt to seek divorce. Absence of material particulars in support of allegations made in the plaint renders the case of plaintiff doubtful. Further once material facts in support of allegations of cruelty alleged in the plaint are absent, no amount of evidence could be looked into to support facts not pleaded. A Division Bench of this Court in Anil Kumar (Supra) has held that vague and general allegations, by themselves are insufficient to constitute ‘cruelty’. Even otherwise, when allegations made in plaint are considered cumulatively also, it cannot be said that there has been continuous ill treatment, cessation of marital intercourse, studied neglect or indifference which may lead to inference of ‘cruelty’. Reference in this regard be made to Manish Tyagi Vs. Deepak Kumar, 2010 (4) SCC 339, wherein Court has observed in paragraph 27 as under:
“27.The classic example of the definition of cruelty in the pre-1976 era is given in the well-known decision of this Court in N.G. Dastane (Dr.) v. S. Dastane [(1975) 2 SCC 326] , wherein it is observed as follows: (SCC p. 337, para 30)
“30. … The enquiry therefore has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.”
This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However, in this case even with aforesaid standard both the trial court and the appellate court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce.”
22. Consequently, view taken by Court below that when various allegations of ‘cruelty’ made by plaintiff are taken up together, they cumulatively have the effect of constituting cruelty upon paintiff, is patently erroneous.
23. In view of discussion made herein above, Impugned judgement and decree passed by Court below cannot be sustained. Appeal succeeds and is accordingly allowed. Judgement dated 30.11.2016 and decree dated 3.12.2016, passed by Kamlesh Dubey, Principal Judge, Family Court, Hapur, whereby Suit No. 468 of 2018 (Ravindra Singh Vs. Seema @ Aarju), are hereby set aside. Suit No. 468 of 2018 (Ravindra Sigh Vs. Seema @ Arju) filed by plaintiff for divorce shall stand dismissed. In the facts and circumstances of case, we are of considered view that appellant is also entitled to cost which we quantify at Rs. 1,00,000/-. The same shall be paid by plaintiff to appellant within a period of one month, by furnishing a bank draft in her name before Court below.
Order Date :- 17.1.2020