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Susheel Kumar Shukla vs Smt. Manju Shukla on 28 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved on 21.01.2020.

Delivered on 28.01.2020.

A.FR.

Court No. – 3

Case :- FIRST APPEAL No. – 26 of 2015

Appellant :- Susheel Kumar Shukla

Respondent :- Smt. Manju Shukla

Counsel for Appellant :- Amar Nath Dubey,Mohd. Rais

Counsel for Respondent :- R K Kanaujia,R N Kanaujia

Hon’ble Ved Prakash Vaish, J.

Hon’ble Virendra Kumar-II, J.

(Delivered by Hon’ble Virendra Kumar-II, J.)

1. Heard Shri Amar Nath Dubey, learned counsel for appellant and Shri Veerpal, Advocate, holding brief of Shri R. K. Kanaujia, learned counsel for respondent.

2. The present first appeal has been preferred under Section 19(1) read with Section 28 of Hindu Marriage Act, 1955, assailing the impugned judgment and decree dated 16.02.2015 passed by the Court of learned Additional Principal Judge, Family Court, Lucknow in Regular Suit No. 1010 of 2004, Susheel Kumar Shukla Vs. Smt. Manju Shukla, under Section 13 of Hindu Marriage Act, 1955. The learned trial court has dismissed the petition under Section 13 of Hindu Marriage Act, 1955 and rejected the application under Section 25 of Hindu Marriage Act in Misc. Case No. 271-C of 2014, Smt. Manju Shukla Vs. Sushee Kumar Shukla. The learned trial court has partly allowed the application under Section 27 of Hindu Marriage Act, 1955 in Misc. Case No. 272-C of 2014, Smt. Manju Shukla Vs. Susheel Kumar Shukla.

3. It is mentioned in the grounds of appeal that marriage of appellant-Susheel Kumar Shukla was solemnized with the respondent-Smt. Manju Shukla on 10.07.1999 and Gauna ceremony was held on 01.12.2001. It is further mentioned in the grounds of appeal that on the first night the respondent refused to perform her duties being wife and apprised him that her parents have forcibly solemnized her marriage with him. The appellant has further mentioned in the grounds of appeal that appellant requested the respondent to change her behaviour because his social status was going to be ruined. The respondent misbehaved with the appellant as well as his family members and started cruelty. She threatened to implicate him and his family members in false criminal cases.

4. It is mentioned that the respondent refused to live with the appellant and threatened to get divorce on 15.12.2002. In the meantime, a female child was born. The appellant was having great love and affection with the newly born child as well as his wife, but she was not prepared to change her cruel attitude. It is also contended that when on 23.06.2003 the appellant was not present in his residence, then the respondent took away all valuable clothes, cash and all ornaments and gone with her father and since then, she never turned up. The appellant requested so many times to the respondent to live with the appellant, but she denied and since the year, 2003, she is living separately at her parental home without any rhyme or reason and on her own free will.

5. It is further mentioned in the grounds of appeal that the respondent has implicated the appellant and his family members in false case and lodged the F.I.R. in Case Crime No. 74 of 2006, under Sections 498-A, 323, 506 I.P.C. and Section 3/4 of Dowry Prohibition Act at Police Station Mahila Thana, District Lucknow on 07.09.2006. The Investigating Officer had filed charge sheet and trial of the case is still pending, which amounts to cruelty. The court of learned Additional Principal Judge, Family Court, Lucknow has not considered the contentions of appellant that the respondent is having illicit relations with someone else from the very beginning, she refused to live with the appellant and also started cruelty and for that reason she has lodged the aforesaid false criminal case. The respondent’s application under Section 27 of the Hindu Marriage Act has been partly allowed and the appellant has been directed to pay amount of Rs.25,000/- as an approximate costs of goods given in the marriage, although the application under Section 25 of Hindu Marriage Act has been rejected by the trial court.

6. On the basis of above facts, it is submitted that the impugned judgment and order is absolutely illegal, improper and the same has been passed without application of judicial mind, therefore, the impugned judgment and order is liable to be set aside.

7. We have heard the learned counsel for appellant and the learned counsel for respondent and also perused the record of trial court, Original Suit No. 1010 of 2004, Susheel Kumar Shukla Vs. Smt. Manju Shukla, under Section 13 of Hindu Marriage Act, Misc. Case No. 271-C of 2014, Smt. Manju Shukla Vs. Susheel Kumar Shukla and the Misc. Case No. 272-C of 2014, Smt. Manju Shukla Vs. Susheel Kumar Shukla, under Section 27 of Hindu Marriage Act.

8. The appellant instituted a suit for obtaining decree of divorce, inter alia, on the grounds contended in the grounds of appeal. It is also mentioned in the petition of divorce that the respondent came at her matrimonial home after solemnization of marriage, but she refused for cohabitation by stating that she did not like the appellant. She made taunts on him that he is not handsome. After advice given by the appellant, she prepared for cohabitation. It is further mentioned in the contentions of petition that she was having love affairs with someone else before her marriage and she married with him under compulsion.

9. It is also mentioned in the grounds of petition that the respondent also said to him that if he would not leave her, then she will behave in the manner that he would be compelled to commit suicide, then she would get service in his place and she will marry the person whom she loves. The appellant/ petitioner and the respondent lastly resided together at Lucknow until 23.06.2003. The appellant, his mother and sister went on 01.07.2003 to bring the respondent with them, but she refused and told that she was not prepared to reside with the appellant and asked for divorce. She also insulted them. It is also contended that the respondent has not allowed the appellant to meet his minor daughter. She deserted him since 23.06.2003.

10. The respondent filed her written statement (paper No. A-18) before the trial court. She has accepted that her marriage was solemnized on 10.07.1999 with the appellant. She has pleaded that she performed her duties as wife and never denied to reside with her husband. She worshiped him as God. She has specifically denied that she apprised the appellant that she loves someone else. She has not misbehaved the appellant or his family members. On the other hand, the appellant himself insulted her being illiterate and rustic villager. The appellant always harassed and tortured her. She never threatened him to lodge false criminal cases, nor misbehaved his mother and sister. She is ready to reside with him keeping in her mind future of her and her minor daughter.

11. It is further mentioned in the written statement that her father came at her matrimonial home to know her well being, then he came to know about harassment, assault and torture meted out by her. The appellant and his mother compelled her to leave her matrimonial home. The aforesaid divorce petition has been instituted by the petitioner on false and concocted grounds. She is compelled to reside separately under compulsion under the facts and circumstances, because the appellant himself subjected her to cruelty. The appellant does not want to keep her and her minor daughter with him.

12. In additional contentions, the respondent has mentioned that her marriage was solemnized by her parents with the appellant. They gave cash amount, jewellaries and clothes in her marriage. The appellant was getting education at the point of time of her marriage. Afterwards father of appellant expired and he got service on the post of A.S.I. in police department in dying-in-harness. He deserted the respondent for the purpose to solemnize second marriage with another educated lady. The appellant harassed and tortured her to the extent that she was compelled to leave her matrimonial home. She requested her husband that kindly permit her and her minor daughter to reside in her matrimonial home. An attempt was also made before the court and mediation centre for reconciliation, but appellant has refused to maintain her and her minor daughter.

13. The appellant has also filed replication (paper No. 20-C), reiterating his earlier contentions.

14. On the basis of pleadings of both the parties, the learned trial court has framed following issues, which are as follows:

(1) क्या विपक्षी ने वादी के साथ हिन्दू विवाह अधिनियम के तहत अपेक्षित क्रूरता का व्यवहार किया ?

(2) क्या वादी किसी अन्य अनुतोष को पाने का अधिकारी है ?

(1) Whether respondent/ opposite party subjected the petitioner to cruelty as defined in Hindu Marriage Act?

(2) Whether petitioner is entitled to get any other relief?

(English translation by Court)

15. The appellant/ petitioner has adduced his evidence, examination-in-chief on affidavit (paper No.25-A), reiterating the facts mentioned in grounds of petition. He was cross-examined by the learned counsel for respondent. The learned trial court has also recorded statement of Smt. Manju Shukla as D.W.1. She was cross-examined by the learned counsel for appellant.

16. After appreciation and evaluation of evidence adduced on behalf of both the parties, the learned trial court has delivered the impugned judgment and order.

17. The petitioner has filed photocopy of documents relating to Crime No. 74 of 2006, under Sections 498-A, 323, 506 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Mahila Thana, District Lucknow(paper No. 25-A/5 to 25-A/46) along with his replication (paper No. 25-A).

18. The learned counsel for appellant has argued on the basis of contentions of grounds of appeal that the respondent subjected the petitioner/ appellant to cruelty by ignoring him and insulting him and by refusing to cohabitation with him, because she was having love affairs with someone else. She left her matrimonial home at her own will and deserted him from 10 to 12 years ago and she is residing in her parental house since then. Even she has not permitted him to meet his minor daughter. A decree for divorce should have been granted by the trial court. Therefore, the impugned judgment and order is liable to be set aside.

19. He has further submitted that the trial court has not framed any issue on the basis of contention of adultery and unchastity. Therefore, the appellant could not adduce evidence on this point.

20. In support of his contentions, the learned counsel for appellant has relied upon the exposition of law propounded by the Hon’ble Supreme Court in para-21 of the decision given in the case of Durga Prasanna Tripathy Vs. Arundhati Tripathy, 2005 (7) SCC 353 : 2005 Law Suit (SC) 1126, decided on 23.08.2005, which is as follows:

21. In our view that 14 years have elapsed since the appellant and the respondent have been separated and there is no possibility of the appellant and the respondent resuming the normal marital life even though the respondent is willing to join her husband. There has been an irretrievable breakdown of marriage between the appellant and the respondent. The respondent has also preferred to keep silent about her absence during the death of her father-in-law and during the marriage ceremony of her brother-in-law. The complaint before the Mahila Commission does not implicate the appellant for dowry harassment though the respondent in her evidence before the Family Court has alleged dowry harassment by the appellant. It is pertinent to mention here that a complaint before the Mahila Commission was lodged after 7 years of the marriage alleging torture for dowry by the mother-in-law and brother-in-law during the initial years of marriage. The said complaint was filed in 1998 that is only after notice was issued by the Family Court on 27-3-1997 on the application filed by the appellant under Section 13 of the Hindu Marriage Act. The Family Court, on examination of the evidence on record, and having observed the demeanour of the witnesses concluded that the appellant had proved that the respondent is not only cruel but also deserted him for more than 7 years. The desertion as on date is more than 14 years and, therefore, in our view there has been an irretrievable breakdown of marriage between the appellant and the respondent. Even the Conciliation Officer before the Family Court gave its report that the respondent was willing to live with the appellant on the condition that they lived separately from his family. The respondent in her evidence had not disputed the fact that attempts have been made by the appellant and his family to bring her back to the matrimonial home for leading a conjugal life with the appellant. Apart from that, relationship between the appellant and the respondent have become strained over years due to the desertion of the appellant by the respondent for several years. Under the circumstances, the appellant had proved before the Family Court both the factum of separation as well as animus deserendi which are the essential elements of desertion. The evidence adduced by the respondent before the Family Court belies her stand taken by her before the Family Court. Enough instances of cruelty meted out by the respondent to the appellant were cited before the Family Court and the Family Court being convinced granted the decree of divorce. The harassment by the in-laws of the respondent was an afterthought since the same was alleged after a gap of 7 years of marriage and desertion by the respondent. The appellant having failed in his efforts to get back the respondent to her matrimonial home and having faced the trauma of performing the last rites of his deceased father without the respondent and having faced the ill-treatment meted out by the respondent to him and his family had, in our opinion, no other efficacious remedy but to approach the Family Court for decree of divorce.”

21. It is pertinent to mention here that on the ground of cruelty, divorce may be granted to the petitioner legally, according to provisions of Section 13(1)(ia) of Hindu Marriage Act, but petitioner has to aver in plaint specific allegations and instances of cruelty and he is obliged to prove ground of cruelty and adultery by reliable and cogent evidence. The following expositions of law of various Division Bench of various High Courts, this Court and Hon’ble Apex Court are necessary to mention here, which are as follows:

A Division Bench of Kerala High Court in the case of Karthikeyan Vs. Sarojini, 1997 SCC OnLine Ker 168 : AIR 1998 Ker 136 in paras 2 3 has observed as under:

2. The case of the appellant was that after the solemnization of marriage the respondent had treated the appellant with cruelty and had illicit voluntary sexual intercourse with another person. The respondent denied these allegations in the counter-statement. The Court below examined the appellant as P.W. 1 and two other witnesses were also examined on his side. The respondent was examined as RW-1. Ultimately after the enquiry the above petition was dismissed on the ground that the appellant could not establish the allegations set out in the petition. It is against the said order of the court below the present appeal has been filed.

3. We have heard counsel on both sides and evaluated the evidence available in the case. The adultery and cruelty are not grounds which can easily be inferred from certain averments. For establishing them there shall be cogent materials constituting legal proof. The appreciation of evidence by the Court below in so far as the grounds for divorce cannot be said to be perverse or misdirected. On an anxious consideration, this Court finds it arduous to disagree with the findings of the Court below. The appeal is, therefore, liable to be dismissed.

A Division Bench of Madras High Court in the case of Sangeetha Vs. Jitendra Bhandari, 2016 SCC OnLine Mad 16858, has observed in the following paras as under:

27. Learned Senior Counsel appearing for the respondent/husband has mainly put forth his arguments on ”cruelty’ and ”irretrievable breakdown of marriage’ and has relied on decisions of the Hon’ble Apex Court and High Courts, to that effect. The allegation of the respondent/husband is that the appellant/wife has caused mental cruelty to him. Mental cruelty is the conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for the 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 wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. The only judgment which may appear to support the case of the respondent/husband is the one rendered by the Apex Court in the case of Pankaj Mahajan v. Dimple @ Kajal, (2011) 12 SCC 1, wherein, the wife had caused mental cruelty to the husband by often threatening him that she will commit suicide. That is a case, where mental cruelty alleged against the wife had been proved. But, in the case on hand, though it is strongly alleged that the appellant/wife had caused mental cruelty to the respondent/husband by often threatening him that she will commit suicide if he does not accede to her requests. Such an allegation has not been proved by the respondent/husband.

28. At this juncture, it is worth referring to the observation made by the Hon’ble Apex Court in the case of Padma Sundara Rao v. State of T.N., (2002) 3 SCC 533, which is reiterated hereunder:

“9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.”

29. Thus, in view of the above observation made by the Apex Court in Padma Sundara Rao’s case, the decision relied on by the learned Senior Counsel for the respondent/husband in Pankaj Mahajan’s case will not be applicable to the case on hand. The inference drawn by this Court that the injuries sustained by the appellant/wife is certainly an “accidental fall”, would go to show that there is no room for cruelty in this case. If the appellant/wife’s attempt to commit suicide on 06.11.2005 is not first of its kind, the respondent/husband ought to have let in evidence to corroborate such incident of attempt to suicide. Failure on his part to do so shows that there is no ”mental cruelty’ by the appellant/wife as alleged by the respondent/husband. Hence, the ground of ”cruelty’ on which the Court below has answered in favour of the respondent/husband is erroneous and based on no evidence.

32. In view of the foregoing discussion, this Court is of the view that there is no element of cruelty established against the appellant/wife and the marriage cannot be said to be irretrievable broken, as the appellant/wife is very much willing to live with the respondent/husband. Therefore, this Court allows these appeals. The decree for dissolution of marriage and dismissal of the plea for restitution of conjugal rights passed by the Principal Judge, Family Court, Chennai vide judgment dated 25.11.2011 made in F.C.O.P. Nos. 1942 of 2008 and 218 of 2011 are set aside. No costs. Consequently, connected Miscellaneous Petitions are closed.

A Single Judge of the Delhi High Court in the case of Jai Dayal Vs. Shakuntala Devi , 2003 SCC OnLine Del 846, in the following paras has observed as under:

1. …… It was alleged that the appellant issued a legal notice dated 6.12.1996, levelling serious allegations of immorality on the petitioner and her having illicit relations with one Mr. Kishore Kumar and then filed a complaint dated 9.5.1997, with the Commissioner of Police levelling similar allegations……

xxxxxx

8. ……. It is thus clear that the appellant has levelled disgusting allegations of unchastity and indecent familiarity of the respondent with different persons outside wedlock and her having extra martial relations with other persons. These themselves, in my opinion, will amount to cruelty.

xxxxx

10. In view of the foregoing these allegations without anything else by themselves, in my opinion, amount to the appellant treating the respondent with cruelty causing reasonable apprehension in her mind that it is dangerous to live with the appellant. In my opinion, therefore, the Trial Court was fully justified in dissolving the marriage of the parties by a decree of divorce and no case had been made out to interfere with the same. ……..

A Division Bench of this Court in the case of Seema Vs. Ravindra Singh, 2020 SCC OnLine All 33, in paras-15 to 28 of its judgment has observed as follows:

15. 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.

16. A Division Bench of this Court in Smt. Sarita Devi v. 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 v. 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.”

20. In Vishwanath Sitram Agarwal v. 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 in Pancho 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 Gollins v. 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.'” (emphasis in original)

27. In V. Bhagat v. D. Bhagat, [(1994) 1 SCC 337], a two-Judge Bench referred to the amendment that had taken place in Sections 10 and 13(1)(i-a) after the (Hindu) Marriage Laws (Amendment) Act, 1976 and proceeded to hold that the earlier requirement that such cruelty has caused a reasonable apprehension in the mind of a spouse that it would be harmful or injurious for him/her to live with the other one is no longer the requirement. Thereafter, this Court proceeded to deal with what constitutes mental cruelty as contemplated in Section 13(1)(i-a) and observed that mental cruelty in the said provision can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. To put it differently, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was further observed, while arriving at such conclusion, that regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances. What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each case keeping in view the facts and circumstances of that case. That apart, the accusations and allegations have to be scrutinised in the context in which they are made. Be it noted, in the said case, this Court quoted extensively from the allegations made in the written statement and the evidence brought on record and came to hold that the said allegations and counter-allegations were not in the realm of ordinary plea of defence and did amount to mental cruelty.

28. In Parveen Mehta v. Inderjit Mehta, [(2002) 5 SCC 706 : (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 : (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 : (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….”

21. In Ravi Kumar v. 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.

22. 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.

23. This Court is reminded of what was said by Lord Reid in Gollins 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.”

24. The aforesaid passage was quoted with approval by this Court in N.G. Dastane (Dr.) v. S. Dastane, [(1975) 2 SCC 326].

25. 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 : (1988) 1 SCC 105 : 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.”

26. Reference in this regard may be made to the judgement in K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226 wherein following has been observed in paragraphs 10 and 16:

“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 in Samar 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.”

27. 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 v. 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.”

28.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.

A Division Bench of Hon’ble Apex Court in the case of Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, (2003) 6 SCC 334, at page 339, has observed as under:

7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.

A Full Bench of Hon’ble Apex Court in the case of Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511 at page 545 in its paras-99 100 has observed as under:

99. 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 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 while taking aforementioned factors in consideration.

22. On the basis of aforesaid expositions of law, we are considering the pleadings and evidence adduced by both the parties for just decision of this first appeal.

23. The following point of determination is hereby formulated for decision of present first appeal:

(i) Whether the respondent ever resided in adultery with anyone else.

(ii) Whether the respondent subjected the petitioner to cruelty to the extent and within the purview of definition of cruelty for compelling him to institute petition for divorce.

Point of determination No. (i)

24. The petitioner/ appellant has pleaded in petition for divorce that his marriage was solemnized on 10.07.1999 with the respondent and Gauna ceremony was performed on 01.12.2001. On the first night the appellant apprised the petitioner that she was having love affairs with anyone else before her marriage and her marriage was solemnized by her parents forcibly. She was compelled to do so. She also refused for cohabitation, afterwards she agreed to have sexual intercourse with him and a daughter was born out of their wedlock.

25. It is pertinent to mention here that the respondent has denied this fact in her written statement (paper No. 18-A) and stated specifically that she never stated as such on the first night. On the other hand, she worshiped him as God and performed her duties as a wife. She and her minor daughter were deserted by the petitioner, because she is an illiterate and rustic woman and she belongs to rural area, therefore, the petitioner does not want to keep her and her daughter with him. The appellant himself harassed and tortured her by making taunts because she is an illiterate lady and turned her out from her matrimonial home when her father visited her matrimonial home to know her well beings.

26. It is also specifically pleaded that the petitioner was getting education at the point of time of her marriage. Afterwards, father of petitioner expired and the petitioner got service on the post of A.S.I. in dying-in-harness in police department. Now he wants to marry with another educated lady and deserted her.

27. There is no contention in the plaint of the petitioner that the respondent ever resides in adultery with anyone else, after 10.07.1999/ 01.12.2001. The petitioner/ appellant in his examination-in-chief (paper No. 25-A) has stated as narrated in the grounds of petition that the respondent apprised him about her love affairs. The petitioner has not stated specifically the name of person with whom the respondent was having love affairs or she was living in adultery. The petitioner has not adduced any other witness regarding his contention of adultery as argued by the learned counsel for appellant. The appellant is unable to prove this fact that after marriage with him, the respondent/his wife, was living in adultery with any other person after his marriage. It is relevant to mention here that there was not any specific pleading about adultery in plaint, therefore, there was no occasion for the trial court to frame issue in this regard. The point of determination No.(i) is hereby decided against the appellant.

Point of determination No. (ii)

28. The petitioner has pleaded in the petition that the respondent insulted him by making taunts that she does not like him. She misbehaved with his mother and sister. Her behaviour was callous and irresponsible towards his mother and sister. She refused to have sexual intercourse with him. But he has mentioned in his pleadings also that on his advice the respondent cohabited with him and a daughter was born out of their wedlock. It is also pleaded that the respondent told him that she will implicate him and his family members in false criminal cases, would compel him to commit suicide and after his death she would get service and marry the person to whom she loves.

29. The learned trial court has recorded finding that in cross-examination dated 12.03.2012 the appellant has accepted this fact that, “after Gauna, his wife/ respondent resided with him for 15 days for the first time, and their relations were cordial. They were having cohabitation also. The brother of respondent brought her after 15 days. The father-in-law of his sister brought the respondent at his house. The respondent again resided with him for four to five months and during this period their relations were cordial. The petitioner has also accepted that at the point of time of Gauna, he was getting education and was preparing for job. He has further accepted that his wife is educated up to Class-VIIIth”. He has also stated in his cross-examination dated 12.03.2012 that during four to five months the respondent awoke late and had not cooked foods, nor performed any work. Thus, a new fact was developed by the petitioner. In his cross-examination dated 09.10.2012 another new fact was developed beyond his pleadings that the respondent compelled him to leave his family and reside with her at her parental home.

30. Therefore, the appellant has made contradictory statement that his relations with the respondent were not cordial after Gauna and during three months when the respondent had resided with him. He has accepted that when for the first time, the respondent came at her matrimonial home, he was not employed and after one year of Gauna, his daughter was born.

31. The learned trial court has recorded findings that in the early period of marriage couple usually awake late, and on the basis of contradictory statements of the petitioner it was found that misbehaviour, negligence and cruelty alleged by the petitioner, was not proved and it was doubtful that the respondent neglected him as pleaded by him. The contentions of the petitioner are based on conjectures and surmises.

32. It is pertinent to mention here that there is no pleading in the plaint that the respondent ever compelled the petitioner to reside with her at her parental home. The learned trial court has also appreciated the evidence of respondent (D.W.1) and found that she has stated that at the point of time of Gauna, behaviour of petitioner was good, when he brought her at Lucknow, then he started harassing her and quarelled with her. She is ready to reside with her husband. She accepted that they are residing separately from 10 to 12 years ago. She do not want to get punish her husband.

33. The petitioner/ appellant has accepted in his cross-examination dated 12.03.2012 that he got job in the year, 2002. He has also stated that Km. Mahima is his daughter. He has not instituted any suit for restitution of conjugal rights. Although, he has refuted this suggestion that he demanded dowry and due to this reason he harassed the respondent and when his demand of dowry was not fulfilled he instituted the present suit for divorce.

34. He has also accepted this fact that his daughter was born at the parental house of his wife. The petitioner is unable to prove this fact that respondent left her matrimonial home after quarell with him on 23.06.2003.

35. It is pertinent to mention here that the petitioner, in his examination-in-chief in para-9 of affidavit (paper No. 25-A) has corroborated the statement of respondent that her father came at her matrimonial home, on the other hand, the respondent (D.W.1) has proved this fact that her father came to know her well being, but he came to know that respondent was being harassed, tortured and assaulted by the petitioner and his family members for demand of dowry of four wheeler.

36. At this point of time the respondent was turned out of her matrimonial home. This fact also corroborates the statement of respondent that petitioner when got job in the year 2002, he started harassing her on the basis of demand of dowry of four wheeler and deserted her himself. She was compelled to go with her father at her parental house and she is residing with her parents due to this reason.

37. We have perused the statement of P.W.1(petitioner) and D.W.1 (respondent) also. The respondent (D.W.1) has stated in her examination-in-chief that her marriage was solemnized with the petitioner on 10.07.1999 and Gauna was performed. She has further stated that amount of one lakh rupees was given in cash along with the jewellaries of ten tola gold and two kilogram silver and other household goods were given in her marriage. The petitioner and his family members were demanding car. She has specifically stated that she wants to go and reside with the petitioner, but the petitioner is not ready to keep her. The petitioner and his family members harassed her. The petitioner followed the directions of his mother.

38. D.W.1-respondent has also stated that petitioner himself does not like her and never maintained her. Now the petitioner is employed in police department at Bahraich. The respondent in her cross-examination has further stated that she was brought at Lucknow by the petitioner and he quarelled with her on the basis of demand of four wheeler. He has not paid amount of maintenance also.

39. D.W.1 has also stated that petitioner does not like her, because she could not perform work as per his desire, therefore, he is interested to get divorce from her. During cross-examination she has disclosed that she lodged a criminal case of dowry in the year 2006 against the petitioner and his family members. She wants to reside with the petitioner and she is not interested to get her husband punished. She has further stated in her cross-examination that the petitioner had not permitted her to reside in her matrimonial home, therefore, she had lodged criminal case.

40. D.W.1 has also mentioned that their relations were cordial as and when they reside together. Her mother-in-law insulted her. She could not fulfill demand of petitioner due to financial constraints. She has again stated in her cross-examination that she is ready to go and reside at her matrimonial home. She has refuted this suggestion that with intention to harass the petitioner, she had lodged criminal case of dowry.

41. The petitioner has himself filed photocopy of F.I.R. of Crime No. 74 of 2006, under Sections 498-A, 323, 506 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Mahila Thana, District Lucknow (paper No. 25A/5) and charge sheet submitted by the Investigating Officer. The Investigating Officer has recorded statements under Section 161 Cr.P.C. of the complainant-Shobhnath Mishra, father of the respondent and of the victim/ respondent. They have corroborated the facts narrated in the F.I.R. After full fledge investigation the Investigating Officer has submitted charge sheet against the petitioner in the competent court. The trial of aforesaid criminal case is still pending.

42. Prima facie on perusal of F.I.R. it is narrated by the complainant that petitioner and his family members demanded four wheeler after getting employment in dying-in-harness. The respondent/ victim and his daughter was harassed, tortured and assaulted by the petitioner and his family members. The petitioner, Susheel Kumar Shukla, was not ready to keep his wife and daughter with him and deserted them. The petitioner wants four wheeler, Maruti vehicle according to his status and post of A.S.I.(M) in the police department.

43. The statement of D.W.1(respondent) corroborates the facts narrated in the F.I.R. by her father. The competent criminal court would appreciate the evidence of both the parties regarding facts and circumstances in which Crime No. 74 of 2006 was lodged by the petitioner. The petitioner, during course of trial of divorce petition, could not contradict the version of F.I.R. lodged by the father of respondent that the petitioner himself deserted the respondent and her minor daughter in the facts and circumstances narrated in the F.I.R. Therefore, the grounds of cruelty pleaded by the petitioner are based on conjectures and surmises and the trial court has recorded findings in correct perspectives.

44. On perusal of statements of the petitioner (P.W.1) and the respondent (D.W.1) it revealed that petitioner/ appellant could not be succeeded to prove pleadings regarding cruelty or adultery levelled by him against the respondent by adducing cogent and sufficient evidence and by producing material particulars in support of allegations made in plaint. The specific allegations of cruelty, particular instances have not been pleaded in the plaint and proved by adducing evidence. He is unable to prove allegations of cruelty and adultery.

45. The Criminal Court would take decision regarding Crime No. 74 of 2006. Until decision is taken by the Criminal Court it cannot be said that by lodging of the F.I.R. of Crime No. 74 of 2006, under Sections 498-A, 323, 506 I.P.C., Police Station Mahila Thana, District Lucknow, the petitioner and his family members were subjected to cruelty by the respondent. On the other hand, it is pertinent to mention here that respondent (D.W.1) has proved facts and circumstances, in which, she was deserted by the petitioner for the demand of four wheeler and the petitioner has not contradicted the evidence adduced by the respondent.

46. The exposition of law of Hon’ble Apex Court relied upon by the learned counsel for appellant does not extend any benefit to the appellant in the facts and circumstances of the present case and in the light of aforesaid expositions of law quoted by us.

47. On the basis of above discussions, appreciation and evaluation of evidence, the impugned judgment and order dated 16.02.02015 cannot be termed as perverse. It is liable to be upheld. The petition of petitioner has rightly been dismissed by the learned trial court. The impugned judgment and order dated 16.02.2015 is hereby upheld.

48. The learned trial court by the impugned judgment and order has decided Misc. Case No. 271-C of 2014, under Section 25 of Hindu Marriage Act, 1955, and recorded the finding that petitioner got employment on the post of A.S.I.(M) Clerk in the dying-in-harness and he is having liability of unmarried sister and maintenance of other family members. It is also observed that Criminal Case No. 17 of 2006, under Section 125 Cr.P.C. has been decided and sufficient maintenance allowance has been awarded to the respondent and her daughter. After considering the liabilities of petitioner, the application under Section 25 of Hindu Marriage Act has been rejected. The learned trial court has passed the order in this regard in correct perspectives, which is liable to be upheld and it is accordingly upheld.

49. By the impugned judgment and order, the learned trial court has also decided Misc. Case No. 272-C of 2014, under Section 27 of Hindu Marriage Act and observed that parents of respondent gave Stridhan and other articles at the point of time of marriage of respondent, which was kept by the petitioner and his family members.

50. We have perused the statement of respondent (D.W.1) in this regard. She has specifically stated that at the point of time of her marriage an amount of one lakh rupees, jewellaries of gold of weight 10 tola and jewellaries of silver of weight 2 kilogram, household utensils, almirah, bed, sofa, juicer, refrigerator, colour television were given to the petitioner and his family members. Now they were demanding four wheeler car and there demand could not be fulfilled due to financial constraints. The petitioner himself deserted her from her matrimonial home. She is not residing separately on her own will, but she is residing separately at her parental home under compulsion from 10 to 12 years ago as petitioner and his family members deserted her. The respondent has not deserted the petitioner as pleaded by him.

51. In these circumstances, the amount of Rs.25,000/- awarded by the learned trial court in Misc. Case No. 272-C of 20014, cannot be said to be without any reason or basis. The learned trial court has recorded finding in correct perspectives after evaluation of evidence adduced by the petitioner (P.W.1) and the respondent (D.W.1). Thus, the impugned order in this regard cannot be termed as perverse and against the evidence available on record. Therefore, the impugned order in this regard is liable to be upheld and is accordingly upheld.

52. The present first appeal devoid of merit and is liable to be dismissed. Accordingly dismissed. Cost easy.

53. Copy of judgment be sent to the trial court for further compliance. Record of trial court be sent back for information and necessary further action.

(Virendra Kumar-II, J.) (Ved Prakash Vaish, J.)

Order Date :- 28.01.2020

Mustaqeem

 

 

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