Daily Archives: March 12, 2012

‘Nisha hero of Class VI book , I’m one with no principles’

‘Nisha hero of Class VI book , I’m one with no principles’

 

Dalal is Man in Jail Over Dowry Demand in SCERT book

Sitting in his West Delhi home, Munish Dalal flips through a Class VI English textbook and stops at Chapter 14, titled ‘Man in jail over dowry case’.

It reads “A man was arrested from his Vikaspuri home after the family of his bride-to-be told the police that the groom’s family was demanding a large sum of dowry”.

The chapter in the book, published by the State Council of Education Research and Training (SCERT), talks about Dalal and the woman who “stood up to him”, Nisha Sharma.

“She became a national hero for standing up (against) dowry when she was misusing the law blatantly. Even schoolchildren throughout Delhi read about how I was a man with no principles,” Munish said, waving the book angrily.

After hearing the case for nine long years, a Greater Noida court on Wednesday acquitted Munish, his mother and aunt of the charges that they demanded Rs 12 lakh dowry, following which Nisha called off the marriage on the wedding day.

The court ruled that Nisha levelled false dowry allegations against Munish as she wanted to marry someone else.

Munish sees the chapter in the textbook as a symbol of the public humiliation he suffered. “The court may have ruled in my favour, but my road to redemption is long. The first step is to have this chapter removed. How could they put this in when the court still had not given a verdict, is also a question I want answered,” he said.

Education minister Arvinder Lovely told Newsline that SCERT books have been phased out from curriculum in all schools of Delhi. “We use only NCERT books now,” he said.

Dalal married in 2008, has two children and works with a private company. He said he is happy that the court has come out with the truth, but the incident has left deep scars.

“On May 9, 2003, I had a wonderful life ahead of me. I was to be married, a government job was in the pipeline, and my family was happy. But my baraat was turned away,” Munish said.

That same night, a police complaint of dowry was filed against Munish, after which he was jailed for nearly two months.

“The next nine years, I watched the woman who ruined me and my family become the darling of the country. She appeared on talk shows, won awards, documentaries were made on her. I lost my friends, job prospects and peace of mind. There is much she has to answer for,” Munish said.

Meanwhile, D D Sharma, Nisha Sharma’s father, said: “We are not convinced with the court’s decision. We will consult our legal advisors, and probably appeal against the order.”

 

more at

http://www.indianexpress.com/news/nisha-hero-of-class-vi-book-im-one-with-no-principles/919077/0

Ten-year nightmare of groom falsely accused of demanding dowry finally comes to an end

Ten-year nightmare of groom falsely accused of demanding dowry finally comes to an end

By Akash Vashishtha UPDATED: 01:57 GMT, 2 March 2012

 

Family members of Munish Dalal, who were acquitted by a Noida court after being accused by Nisha Sharma in a dowry case, said they have just been handed their freedom after a ten-year-long ordeal.

Nisha, a resident of Sector-56 in Noida, had hit the headlines in May 2003 after she refused to marry her groom for allegedly demanding `12 lakh as dowry and a car on the day of the marriage.

Following her complaint, Munish, his mother Vidya and his paternal aunt Savitri Sharma were arrested. The Noida court acquitted the Dalals on Wednesday.

 
Left at the altar: Nisha Sharma in 2003

Left at the altar: Nisha Sharma in 2003

Munish’s 68-year-old widowed mother – the only earning member of the family – lost her job as a teacher in a government school after the incident.

‘My mother gave 36 years of her life to the government’s education department. She had also represented India in hockey. But she was put behind bars for no reason. Her career came to an abrupt end and even her retirement benefits were withheld,’ an anguished Munish said.

And if this wasn’t enough ignominy, the government incorporated the incident in NCERT textbooks that is still taught to children in Class VI.

‘The names of my mother and me were put in government textbooks, as if we are the worst criminals in the country. The chapter says how my family was turned back for demanding dowry,’ Munish said.

‘I was to get married on the evening of May 11, 2003. The next morning I was in jail. You can well imagine my state of mind,’ he added.

Recalling the pain, he said:

‘My elderly mother and 75-year-old aunt had to travel 75 km to Noida for the hearings. In the last nine years, we went to the court at least 320 times whereas Nisha’s family was in court on hardly ten days.’

BLAST FROM THE PAST

Minutes before her wedding ceremony was about to be concluded, Nisha Sharma’s father was allegedly asked for more dowry money.

Reports suggested the marriage in 2003 had nearly been solemnised – with guests about to begin dinner – when the groom’s family allegedly demanded `12 lakh in car and cash. The 21-year-old decided to say no, which quickly lead to a scuffle between the families, forcing Sharma to call the cops.

The groom and his mother were later arrested, and Sharma shot to fame as a rare example of a young woman willing to say no to dowry-seekers.

Sharma’s act would also be repeated by a number of other women, who said they had been inspired by her story. Police later charged the groom and his mother with subjecting a woman to cruelty in connection with a dowry demand.

Both parties have moved on since then. While Nisha got married a few months after the incident, Munish got married to a ‘simple girl’ in 2008 at a temple in Delhi. And he didn’t take any dowry, Munish added.

‘It was pre-planned. Nisha’s father D.D. Sharma placed a matrimonial ad in a newspaper February 14, 2003 – the day when she and Navneet Rai allegedly got married at a temple. Sharma knew of Nisha’s alleged affair but still put the ad,’Vidya said, recalling their ordeal.

According to her, the baraat was stopped at the entrance to the wedding venue on May 11, 2003, the fateful day. Nisha’s father apologising profusely said he hadn’t been able to arrange rooms for the groom’s wedding party. And Sharma didn’t take any steps to remedy the situation even when Vidya told him that they had been insulted.

A heated exchange followed and the groom’s wedding party turned back.

While they were on their way home, they got to know that the Sharmas had lodged an FIR for dowry against them, she said.

‘My son was arrested at six the next morning and I was arrested a few hours later. We spent two months behind bars,’ Vidya added.

‘Only their family deposed against us.’

Their counsel Naresh Chand Gupta said they would file for damages against Nisha’s family. R.K. Rai, the father of Navneet with whom Nisha was said to be in a relationship, too, said they would seek damages from the Sharma family.

Nisha is said to have admitted in court that she wished to marry Navneet.

Later, an affidavit surfaced before the media stating that Nisha had married Navneet at a temple on February 14, 2003. Nisha, however, denied in the court that the affidavit was signed by her. Nisha’s father said they would appeal against the court’s order.

‘They (the accused) have only got the benefit of doubt,’ he said.

Husband entitle…

Husband entitled to divorce as a result of wife having made wild, reckless and baseless allegations in written statement

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Bombay High Court
Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha on 13 December, 1990
Equivalent citations: AIR 1991 Bom 259, (1991) 93 BOMLR 373, I (1992) DMC 180

Bench: A Savant

JUDGMENT

1. What is meant by the word “cruelly” in matrimonial law? Is the old English law concept of “danger” applicable in India today?. If wild, reckless and baseless allegations of impotency and lack of manliness are made in the written statement, can this by itself amount to cruelty in matrimonial law?. These are some of the questions which arise for determination in this appeal by the original respondent-wife,

2. At the out-set I must mention that in accordance with the mandate of Section 23(2) of the Hindu Marriage Act, 1955, an attempt was made to bring about a reconciliation between the parties. The wife who is now staying at Delhi had come down to Bombay. However, I am informed by the learned Counsel Mr. K.S.V. Murthy for the appellant-wife and Mr. C. G. Patil for the respondent-husband that despite their efforts to bring about the reconciliation, they have not been successful at all. Unfortunately, the parties are staying separately since September, 1980 i.e. for nearly more than ten years now. There is thus, no alternative left but to decide the matter on merits.

3. This appeal by the wife seeks to challenge the judgment and decree dated 30th April, 1983 passed by the learned Assistant Judge, Nasik in Hindu Marriage Petition No. 186 of 1981. The said petition was filed by the husband on 7th September, 1981 for a decree for divorce on the grounds of (i) cruelty under Section 13(1)(ia), (ii) desertion under Section 13(1)(b) and (iii) that the wife was suffering from mental disorder as contemplated by Sec. 13(1)(iii) of the Hindu Marriage Act, 1955. The admitted facts are as under :

4. The parties are Hindus and belong to the Sindhi community. The husband is a lawyer practising at Nasik and the wife is an Arts graduate from Delhi. On 27th April, 1980, the parlies were married at Nasik in accordance with Hindu rites. The wife stayed with the husband at Nasik till 5th June, 1980 i.e. for a period of 40 days after the marriage. A common friend Dr. Badlani who stays at Nasik had taken part in bringing about the marriage. On 5th June, 1980, the wife left the matrimonial home and went to stay with Dr. Badlani. On 10th June, 1980, she left Nasik for Delhi. On 24th August, 1980 she came back to Nasik in the company of the father of the husband. The father of the husband is a retired Excise Officer who is now practising as a consultant and had been to Delhi in connection with some work. On his return, the wife accompanied the father of the husband and stayed with the husband at Nasik till 5th September, 1980 i.e. to say for a period of 10 days. In between, on 27th August, 1980 the mother of the husband wrote a letter to the brother of the wife, namely Baldev, which letter is at Exh. 40, where the mother of the husband made a general grievance about the wife not being able to perform the household duties. There is no reference to any specific act or instance but the letter is replete with the grievance that the wife is not able to perform the household duties at all. As stated earlier, on 5th September, 1980, after a brief stay for about 10 days with the husband, the wife left. Nasik for Delhi.

5. On 18th November, 1980, the father of the husband wrote to the brother of the wife at Delhi which letter is at Ex. 43. The father referred to the indifferent and defiant mood of the wife and also to the threats given to his wife (mother-in-law of the appellant). However, the father expressed a hope that the members of the wife’s family would realise their social as well as moral obligations and require her to come to Nasik. In this letter also there is no reference to any specific instance of either an act of cruelty or an act indicating mental disorder or any psychopathic disorder.

6. On 9th March, 1981, the father of the husband again wrote to the father of the wife making a grievance of the peculiar behaviour of the wife who had acted as a person of “unbalanced mind”. It is stated in the said letter dated 9th March, 1981 at Exh. 44 that her behaviour in the peculiar manner and as a person of “unbalanced mind” was witnessed by the neighbours and visitors to the house. There is also a reference in this letter to some specific instances such as getting up at the dead of night and brushing the teeth, opening the doors, sitting on the floor in the bedroom. Surprisingly again, there is a reference about all these peculiar acts being witnessed by the neighbours or visitors which indicated that the wife had some mental deficiency. These acts are referred to in para 6 of the letter Exh. 44. The said letter further refers to the incident in the first week of September, 1980 when Baldev, brother of the wife, told the husband that the wife was to be taken to Delhi. At the end of the letter in para 12, the father of the husband points out to the father of the wife that from the facts and circumstances mentioned in the letter, it was concluded that the wife had no inclination or desire to come to Nasik to discharge her social obligations and had withdrawn from the society of the husband. The father of the husband, therefore, called upon the father of the wife to send the wife back to Nasik within 7 days failing which legal proceedings were to be initiated at Nasik.

7. On 6th May, 1981, the husband wrote to the wife, which letter is at Ex. 45. The husband pointed out that for the last 8-9 months she was staying with her parents at Delhi. The husband referred to the wife’s absence from Nasik and requested her to come back to Nasik immediately. The husband referred to the abuses hurled by the wife’s mother at him at Nasik and also to the abuses given by the wife’s mother to his mother as a result of which he was not willing to go to Delhi. However, the husband requested the wife to come to Nasik.

8. On 22nd May, 1981, a telegram was sent by the husband from Nasik to the wife at Delhi informing her that he was seriously ill and that she should reach Nasik immediately. This telegram is at Ex. 41. It appears that in response to this telegram, on 26th May, 1981, the wife returned to Nasik and straightway went to the house of Dr. Badlani. The wife thereafter on the same day, namely, on 26th May, 1981, went and met the husband at his house and enquired about his health, illness and treatment that he was taking. After spending about 10 to 15 minutes at the husband’s house, the wife relumed to the house of Dr. Badlani and on the same day in the evening she left Nasik for Delhi by train.

9. On the above facts, the petition for divorce has been filed on 7th September, 1981. As stated earlier, the three grounds sought to be made in the petition are as under :

(i) Cruelty as contemplated under Section 13(1)(ia);

(ii) Desertion as contemplated under Section 13(1)(ib);

(iii) Wife’s suffering from mental disorder as contemplated under Sec. 13(l)(iii).

A perusal of the petition for divorce would show that in para 1 of the petition, the husband has referred to the alleged erratic behaviour of the wife, which according to the husband, indicated that she was suffering from mental disorder or that she had incomplete development of mind. The conduct and instances that are alleged, without giving any dates are as under :

(i) Getting up at night and brushing the teeth;

(ii) Repeatedly asking as to where the soap and towel were kept, though they were kept at the same place every day;

(iii) Inability to lay bed-sheet properly;

(iv) Inability to cook food;

(v) Fancy for going out to the cinema house.

10. In para 2 of the petition, the husband alleged that the wife was sexually cold and was not responsive. The husband stated that during the first spell of 40 days stay he could have intercourse with her only twice and during the second spell of 10 days, he could have intercourse with her only once. The husband alleged that though the wife was reluctant and cold in the matter of sex, he could not get this confirmed from an expert due to short time during which the wife stayed at Nasik. In para 4 of the petition, the husband alleged that the wife had shown disrespect to his parents. The husband is the only son of his parents. The husband’s grievance is that on three occasions the wife had threatened the mother of the husband that she would go to the house of Dr. Badlani and then to her parents, and at the dead of night she had opened the kitched doors and had threatened to leave the house.

11. In para 5 of the petition, there is a reference to the incidents of September, 1980, when the mother of the wife abused the husband saying that “Ma Ka bhadawa hai”. It is alleged that the wife and her mother insisted that the husband should live separately from his parents. On the basis of these averments relief prayed for was that of dissolution of marriage by a decree for divorce.

12. Admittedly there were proceedings under Section 125 of the Criminal Procedure Code in which the Delhi Court had granted a “maintenance of Rs. 500/- per month to the wife. The application for maintenance was filed on 28th July, 1981 and was decided on 28th May, 1984. The husband had filed a revision application to the Sessions Court at Delhi which was dismissed on 21st September, 1987.

13. In reply to these averments in the petition, the wife had filed a written statement which was verified at Delhi on 12th March, 1982. As stated earlier, the wife is a graduate in Arts from Delhi. In the opening paras of her written statement she denied the allegation of her alleged erratic behaviour and mental deficiency. She contended that she was being harassed on account of the demand of dowry of Rs.5000/-. She specifically denied that she suffered from any mental disorder and any subnormality of intelligence. She denied that she did not know cooking and she also denied the alleged incidents indicating erratic and irresponsible behaviour on her part. This has been stated by her specifically in para 2 of her written statement.

14. In the third part of her written statement, the wife has dealt with the averments in para 2 of the petition, where she was described by the husband as being sexually cold and not responsive. Denying this allegation the wife has stated that it was the husband who was impotent and was unable to consummate the marriage. At the end of the para again the wife alleged want of manliness in the husband, leading to an inference of impotency. Since it has become relevant to consider the effect of these specific pleas taken by the wife in her written statement, it will be necessary to quote the exact words of the wife in para 3 of her written statement.

| “The entire averments set out in para 2 of the
| petition stands denied. It is denied that the
| respondent was sexually cold and not responsive.
| The respondent states that on the contrary, the
| respondent feels and strongly apprehends that the
| petitioner is impotent and is unable to
| consummate the marriage. The averments set out in
| para 2 of the petition is rather otherwise and
| all such allegations are applicable to the
| petitioner not the respondent. The want of
| manliness in the petitioner necessarily infers to
| be the impotency of the petitioner.”

In the remaining part of her written statement, the wife denied the various allegations made against her and the averments in the petition. The wife specifically denied the alleged disputes and/or quarrels and/or abuses referred to in para 5 of the petition. The wife then reiterated her version that there was a persistent demand for money. The wife, however, denied that she had deserted the husband. At the end of the para 15, the wife again referred to the dispute about the husband’s manliness and potency and stated that it was only to “shed the draw back” that the petition was filed. The exact words appearing in para 15 of the written statement are reproduced below.

| “The respondent states that the petition is
| misconceived and false within the knowledge of
| the petitioner. The petitioner’s mother does not
| require the respondent for want of certain amount
| which she claims and that the petitioner’s
| manliness or potency is in dispute and,
| therefore, in order to shed the drawbacks on the
| part of the petitioner, the said petition is
| preferred falsely and therefore it is liable to
| be dismissed with costs.”

15. The only oral evidence on record is the evidence of the husband. In his evidence the husband has tried to depose to his case regarding the alleged cruelty, desertion and mental disorder. He has also deposed to the lack of response from the wife in the matter of sex. He has given some details of the disputes between the two families in the month of September, 1980 resulting in his mother-in-law abusing him in a filthy manner as mentioned above. He has tried to make a grievance of the wife’s alleged psychopathic disorder and unusual behaviour. He has referred to the question put by his wife to his mother about how much water to be put for cooking dal or cooking potatoes indicating thereby that she knew nothing about cooking. He has also referred to her being unable to lay the bed-sheets properly. He admits that though the wife was fond of going to cinema house, it was always at his initiative and in his company. He admits in the course of cross-examination that the word “psychopathic disorder” occurred to him when he had dealt with a case under Hindu Marriage Act. As stated earlier, the husband is a lawyer practising at Nasik. He explains in his cross-examination that he was not addicted to smoking and, therefore, there was no reason for his wife to brush her teeth at the odd hours at night.

16. Unfortunately, the wife has not examined herself. Though the wife has made a serious allegation of lack of manliness and of impotency of the husband, nothing has been suggested to the husband in his cross-examination.

The learned trial Judge on the pleadings and the evidence referred to above, framed the following issues and recorded his findings thereon as below.

|| 1) Does the petitioner prove that the respondent-
|| wife is suffering from mental disorder and is
|| mentally re- Starded? ..Yes.
||
|| 2) Does the petitioner prove that she was
|| suffering from disability of mind and
|| psychopathic disorder and sub- normalities as
|| alleged? ..Yes.
||
|| 3) Whether it is proved that the respon dent
|| thereby has treated the peti tioner with cruelty
|| and rather mental cruelty? ..Yes.
||
|| 4) Whether it is proved that the respondent wife
|| has deserted the petitioner for a continuous
|| period of not less than one year immediately
|| preceding the presentation of the petition ..No.
||
|| 5) Whether the marriage between the parties is
|| liable to be dissolved by a decree of divorce as
|| sought? ..Yes.
||
|| 6) To what relief, if any, is the petitioner
|| entitled? ..As per order
||

17. I have heard both the learned Counsel Mr. R. S. V. Murthy for the appellant-wife and Mr. C. G. Patil for the respondent-husband. I have been taken through the pleadings, the oral evidence consisting of the husband alone and the letters referred to above. As far as the ground of desertion contemplated by Section 13(1)(ib) is concerned, the same can be disposed of briefly. Admittedly, the desertion alleged is of 5th September, 1980. The petition has been filed on 7th September, 1981. Section 13(1)(ib) requires that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. In this view of the matter, there is no merit in the ground of desertion, nor did Mr. Murthy seriously dispute the correctness of this finding. On the arguments advanced before me, however, the following points do arise for my consideration.

(1) Whether the husband has made out a case that after solemnisation of the marriage, the wife has treated him with cruelty?

(2) Is it proved that the wife has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the husband cannot reasonably be expected to live with her?

(3) In view of the allegation of impotency and lack of manliness of the husband made by the wife in the written statement, is the husband entitled to a decree for divorce on the ground of cruelty?

18. On the first point of cruelty under the matrimonial law, both the learned Counsel have invited my attention to a series of judgments not only of different High Courts but also to the Supreme Court judgment in the case of Dr. N. G. Dastane v. Mrs. S. Dastane, .

It is true that Dastane’s case was decided under the unamended provisions of the Hindu Marriage Act, 1955. However, the Full Bench of this Court, had an occasion to consider the effect of the amended provisions in the case of Dr. Keshaorao Krishnaji Londhe v. Mrs. Nisha Londhe .

After referring to the English Doctrine of danger and to the report of the Law Commission, the Full Bench in Dr. Londhe’s case observed that in Dr. Dastane’s case the standard of cruelty was watered down from the doctrine of “danger” to that of “reason- able apprehension that it is harmful or injurious for one spouse to live with the other”.

The Full Bench further observed that even this legislative standard of cruelty on which the Supreme Court led great stress was made to disappear by the amending Act 1976: Cruelty as a matrimonial offence had now (after the amendment of 1976) no specified caveat tagged to it. The argument that the amendment was introduced to nullify the effect of the Supreme Court judgment in Dr. Dastane’s case and to bring back the old English law concept of doctrine of danger was rejected by the Full Bench.

It was observed that the entire trend of the amending Act was a forward step in the liberalisation of divorce.

In para 13 of the Full Bench judgment, this Court observed as under :

| “What is cruelty simpliciter? It is not possible
| to, comprehend the human conduct and behaviour
| for all time to come and to judge it in
| isolation. A priori definition of cruelty is thus
| not possible and that explains the general
| legislative policy — with sole exception of the
| Dissolution of the Muslim Marriage Act — to
| avoid such definition and leave it to the Courts
| to interpret, analyse and define what would
| constitute cruelty in a given case depending upon
| many factors such as social status, background,
| customs, traditions, caste and community,
| upbringing, public opinion prevailing in the
| locality etc. It is in this background that the
| suggestion contained in para 2.12 of the 59th
| Report was turned down and the limiting words,
| namely, “such cruelty that the petitioner cannot
| reasonably be expected to live with the
| respondent” were not incorporated on the view
| that “the Court would even in the absence of such
| words broadly adopt the same approach.” After
| referring to the fact that the divorce on the
| ground of cruelty is “usually justified on the
| ground of principle of protection” the final
| drait as mentioned in para 2.17 was suggested and
| which, as referred to above, was accepted by the
| Parliament in toto. The broad test, therefore,
| will have to be applied in interpreting Section
| 13(1)(ia) has to be whether the cruelty is of
| such type that the petitioner cannot reasonably
| be expected to live with the respondent or living
| together of the spouses had become incompatible.

Finally in para 15 of the judgment the Full Bench has observed as under :

| “To conclude, in our view, the cruelty
| contemplated under S. 13(1)(ia) of the Act
| neither attracts the old English doctrine of
| danger nor the statutory limits embodied in old
| S. 10(1)(b). The cruelty contemplated is a
| conduct of such type that the petitioner cannot
| reasonably be expected to live with the
| respondent, and, therefore, Mandala’s case, 1980
| Mah LJ 391, does not lay down the law on the
| point correctly.”

19. In the case of Smt. Krishna Sarbadhikary v. Alok Ranjan Sarbadhikary , the Division Bench of the Calcutta High Court had an occasion to consider the question of cruelty in matrimonial law as understoof in England and in India. On a review of the entire case law, starting from the case of Russell v. Russeil reported in 1897 AC 395 and ending with Dr. Dastana’s case, (supra), Mr. Justice Chittatosh Mookerjee (as his Lordship then was) observed as under :

| “Merely by showing that the parties are unhappy
| because of unruly temper of a spouse or
| matrimonial wranglings fall considerably short of
| the conduct which can amount to cruel treatment.
| It would not be sufficient to show that the other
| spouse in moody, whimsical, exacting,
| inconsiderate and irascible. Defects of
| temperament must ordinarily be accepted for
| better or for worse. Therefore, there may be
| unhappiness in a marriage and the Court cannot
| have for that cause alone find cruelty (see Mulla
| on Hindu Law, 15th Edn., pages 788-789). “What is
| cruel treatment must to a large extent be a
| question of fact or a mixed question of law and
| fact to be determined within the ambit of Rule
| and the accepted criteria.” It has been held that
| the legal concept of cruelty comprises two
| distinct elements. Firstly, the illtreatment
| complained of and secondly, the resultant danger
| or apprehension thereto. It is not possible to
| specify the grounds of treatment of conduct which
| might constitute cruelty. It may consist of
| display of violent temper, unwarrantable
| indifference to other party’s health and
| happiness deliberate refusal to co-operate. The
| expression “cruelty” comprehends both physical
| and mental cruelty. In deciding whether the act,
| conduct or attitude of behaviour of one spouse
| towards the other amounts to cruel treatment has
| to be measured by the resultant danger or
| apprehension of the victim. Physical temperament,
| standard of living and culture of the spouses,
| sociai ideas, and all other relevant
| circumstances have bearing on the question
| whether the acts and conduct complained of amount
| to the matrimonial offence of cruelty. Conduct
| alleged must be judged up to a point by reference
| to victim’s capacity or incapacity for endurance
| in so far as that is or ought to be known to the
| offending spouse (see cases noted in the foot-
| note(g) of Mulla’s Hindu Law, 15th Edition, page
| 783). Therefore, a particular treatment in case
| of one person may amount to cruelty having regard
| to his temperament, physique and capacity to
| endure such treatment. It has been said that
| actual intention on the part of one spouse to
| injure the other is not an essential factor. “It
| is necessary in determining this point to enquire
| from what motives such treatment proceeds.”
| Intentional acts may amount to cruelty even
| though the one who perpetuated the same had no
| intention of being cruel. But in doubtful cases
| the state of mind of the offending spouse would
| be material and may be crucial. In case the
| reprehensible conduct of departure from normal
| standard of conjugal kindness cause injury or
| apprehension thereof, the Court may consider that
| the victim should not be called on to endure it.
| The contrary views expressed in Kaslefsky v.
| Kaslefsky, (1950) 2 All ER 398 (CA) was not
| approved by the House of Lords in Gollins v.
| Gollins, 1964 AC 644 : (1963) 2 All ER 966, which
| laid down that neither actual or presumed
| intention to hurt the other spouse was necessary
| element in cruelty.”

It appears that the attention of the learned Judges of the Calcutta High Court was not invited to the Full Bench decision of this Court in Dr. Londhe’s case, (supra). The Calcutta High Court decided Sarbadhikary’s case, , on 16th May, 1984 whereas the Bombay Full Bench decided Dr. Londhe’s case on 23rd March, 1984. However, the Division Bench of Delhi High Court had an occasion to consider the view of the Full Bench of this Court in Dr. Londhe’s case.

In the case of Smt. Kamini Gupta v. Mukesh Kumar Gupta reported in AIR 1985 Delhi 221, at the end of para 12 of the judgment, the learned Judges of the Delhi High Court observed as under :

| “This is a liberalised concept of cruelty
| adumbrated in the reformed law of divorce as
| amended in 1976. It is settled now that physical
| violence is not a necessary ingredient of
| cruelty. Unending accusations and imputa tions
| can cause more pain and misery than a physical
| beating. In Keshaorao v. Nisha, (FB), we have a
| recent reformulation of the concept of cruelty.
| We respectfully agree with the restatement of the
| law there.”

20. The Division Bench of Kerala High Court had an occasion to consider the Full Bench decision of this Court in Dr. Londhe’s case .

In the case of Gangadharan v. T. K. Thankam on a review of the entire case law, the Kerala High Court observed thus in para 19 :

| “In the statement of objects and reasons of the
| Amending Act of 1976, the object was stated to be
| to liberalise the provisions relating to divorce
| (vide Gazette of India Extraordinary Part II Jan.-
| April 1976 page 780) and, therefore, it is
| difficult to agree with the view that the
| amendment was intended to restore the law as to
| cruelty as interpreted by English Courts.
| Therefore, the intention in bringing the
| amendment could not have been to reintroduce the
| concept of danger to life or limb. According to
| the amended provision, the Courts have to
| interpret and analyse and define what would
| constitute cruelty depending upon many factors
| such as social status of parties, their
| education, physical and mental conditions,
| customs and traditions and come to its own
| conclusion that acts proved would amount to
| cruelty in a given case. It is difficult to lay
| down a precise definition or to give an
| exhaustive description of the circumstances which
| would constitute cruelty. The amendment was
| brought on the basis of the 59th report of the
| Law Commission which was prior to Dastane’s case
| to the effect that it is sufficient to prove
| cruelty as a ground for divorce and leave it to
| the court on the facts of each case to decide
| whether the conduct amounts to cruelty. In our
| view the cruelty should be of such a nature as to
| satisfy the conscience of the Court that the
| relationship between the parties had deteriorated
| to such an extent that it would be impossible for
| them to live together without mental agony,
| torture or distress to entitle the party to
| secure divorce. Physical violence is not
| absolutely essential to constitute cruelty and a
| consistent course of conduct inflicting
| inmeasurable mental agony and torture may well
| constitute cruelty within the meaning of the Act.
| Mental cruelty may consist of verbal abuses and
| insults by using filthy and abusive language
| leading to constant disturbance of mental peace
| of the other party.”

21. In the petition as also in the evidence, the husband has referred to the behaviour of the wife and certain acts which may either amount to cruelty or may indicate alleged mental disorder. However, even accepting the liberalised meaning of the word “cruelty” as held by the Full Bench in Dr. Londhe’s case (supra), it is difficult to hold that the husband has established that the wife has treated him with cruelty. There is no evidence to come to the conclusion, that the husband cannot reasonably be expected to live with the wife. Cruelty has not been defined in the Hindu Marriage Act, 1955. However, it is now well settled that the conduct complained of should be so grave and weighty as to come to the conclusion that the husband cannot reasonably be expected to live with the wife. It must be more serious than the* ordinary wear and tear of married life. The cumulative conduct, taking into consideration the circumstances and background of the parties has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. While doing so, as held by the Full Bench in Londhe’s case (supra), several factors such as social status, background customs, traditions, caste and community upbringing public opinion prevailing in the locality etc. will have to be taken into account. Further, as held by the Supreme Court in Dastane’s case we are not concerned with the simple trivialities which can truly be described as the reasonable wear and tear of married life. It is in the context of such trivialities that one says that the spouses take each other for better or worse. One can only consider the grave and weighty incidents to find what place they occupy on the marriage canvas. Applying this test, in my opinion, the husband has failed to make out a case that the wife has treated him with cruelty. In my opinion, having regard to the averments made in the petition and in the light of the evidence of the husband, it is not possible to come to the conclusion that the wife has treated the husband with cruelty in the facts of this case. The finding of the learned Judge on this issue will, therefore, have to be set aside.

22. I must, however, hasten to add that the learned Judge has while recording a finding on issue No. 3 also considered the effect of the very irresponsible, wild and baseless allegations made by the wife in her written statement alleging lack of manliness and impotency of the husband. Since I have framed a separate point regarding this aspect, I am presently confining my conclusion on the question of cruelty on the basis of the averments made in the petition filed by the husband and his evidence on record.

23. Coming to the second point of mental disorder, Section 13(1)(iii) reads as under :

|| Section 13(1)(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 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 subnormality of
|| intelligence) which results in a normally
|| aggressive or seriously irresponsible conduct on
|| the part of the other party and whether or not it
|| requires or is susceptible to medical treatment.

Mr. Patil for the husband has fairly stated that it is not his case that the wife has been incurably of unsound mind. The first part of clause (iii) of sub-section (1) of Section 13, has, therefore, no application here. However, Mr, Patil has contended that the wife’s case would fall under the second part of clause (iii) of subjection (1) of S. 13 i.e. “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.” It is, therefore, necessary for the husband to show that, in the first place, the wife has been suffering continuously or intermittently from mental disorder. Secondly, it must also be shown by the husband that the mental disorder is of such a kind and to such an extent that he cannot reasonably be expected to live with the respondent. As stated earlier, the petition for divorce merely alleges some acts of erratic behaviour on the part of the wife. The wife stayed with the husband for two brief spells, namely, one of 40 days between 27th April and 5th of June, 1980 and the other of 10 days between 24th August and 5th September 1980. Though in the letter (Ex.44) dated 9th March 1981 sent by the father of the husband to the father of the wife, it is alleged that there were several neighbours and visitors, who had witnessed the peculiar manner in which the wife was behaving and acting as a person of “unbalanced mind”. Unfortunately no such witness has been examined from amongst the said neighbours and visitors. Admittedly, there is no medical evidence at all in this case. It is true that the wife has not entered the witness box. It is also true that the standard of proof in a matrimonial case is merely that of preponderance of probabilities and not of proof beyond reasonable doubt. As has been held by the Supreme Court in Dastane’s case (supra), proof beyond reasonable doubt is a proof by a higher standard which generally governs the criminal trials or trials involving enquiry into the issues of quasi-criminal nature. But, where the issue is one of cruelty, in matrimonial law, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases, this normally is the standard of proof to apply for finding whether the burden of proof has been discharged.

24. Bearing the above test in mind, it is difficult to accept the husband’s contention that the wife has been suffering continuously or intermittently from mental disorder. Assuming that one can come to the conclusion that a few stray instances indicating a short tempered nature and somewhat erratic behaviour on the part of the wife amounted to her suffering continuously or intermittently from mental disorder, it is not at all possible to hold that this alleged mental disorder is of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the wife.

25. Mr. Murthy has rightly invited my attention to the decision of the Supreme Court in the case of Ram Narain v. Rameshwari . In that case, the husband has alleged that the wife was schizophrenic and was suffering from such a mental disorder as to entitle him to a decree for divorce under Section 13(1)(iii) of the Act. The Supreme Court, however, in para 10 of the judgment has observed thus :–

| “The context in which the ideas of un-soundness
| of mind and mental disorder occur in the section
| as grounds for dissolution of a marriage, require
| the assessment of the degree of mental disorder”.
| Its degree must be such as that the spouse
| seeking relief cannot reasonably be expected to
| live with the other. All mental abnormalities are
| not recognised as grounds for grant of decree. If
| the mere existence of any degree of mental
| abnormality could justify dissolution of a
| marriage few marriages would, indeed survive in
| law.”

I am, therefore, of the opinion that in the present case the husband has not established that the wife has been suffering continuously or intermittently from any mental disorder. There is, therefore, no question of the husband having further established that the mental disorder is of such a kind and to such an extent that the husband cannot reasonably be expected to live with the wife.

26. Coming to the third and last point of cruelty on the part of the wife, viz., the making of irresponsible, wild and baseless allegations of impotency and lack of manliness in the husband, the learned Trial Judge in para 11 of his judgment has quoted the said allegations contained in para 3 and para 15 of the written statement which have already been reproduced above. After having reproduced these averments, the learned trial Judge has referred to the fact that the wife had not entered the witness box, nor had she led any evidence to show the lack of maniless and the impotency of the husband. The learned trial Judge has, therefore, held that these accusations go to eatablish mental cruelty on the part of the wife towards the husband.

27. Mr. Patil for the husband has invited my attention to a number of decisions in support of the proposition that where a spouse makes irresponsible, wild and baseless allegations and fails to justify the same in evidence, this by itself, would amount to cruelty in matrimonial law.

Following cases need mention in this behalf :

(i) Iqbal Kaur v. Pritam Singh .
—————————————————————
A perusal of this case would show that the wife was stated by the husband to be living the life of a prostitute and in the environments of immorality without any proof of these allegations, it was held that she could legitimately ask the Court to give a finding that she has a reasonable apprehension in her mind about the harmful or injurious effect of living in the matrimonial home. It was held that the wife was treated with such cruelty as to cause reasonable apprehension in her mind that it would be harmful or injurious for her to live with the other party. It is true that this was a case under the old Section 10(1)(b) of the Hindu Marriage Act where the wife was entitled to get a decree for judicial separation on the ground of cruelty. However, the proposition of law which emerges from the said decision is that making of an unwarranted allegation of immorality of the wife would justify her getting judicial separation on the ground that the making of such an allegation itself amounts to cruelty.

(ii) Smt. Sumanbai v. Anandrao .
—————————————————————
In this case the husband had filed a petition for restitution of conjugal rights on the ground that the wife had withdrawn from the society without reasonable excuse. The trial Judge had dismissed the husband’s petition under Section 9. But on appeal the appellate Judge had allowed the husband’s petition and decreed restitution of conjugal rights. On a second appeal by the wife, to the High Court, this Court referred to the Punjab decision in Iqbal Kaur’s case (supra) and came to the conclusion that :

“There can be no more insulting injury to the wife than her own husband doubting her chastity. It must be held that if such allegations are lightly made and persisted in filing the petition, the husband is not entitled to any relief under Section 9 of the Hindu Marriage Act.”

It is true that this Court was not dealing with the question of grant of relief on the ground of cruelty to the wife, but was only dealing with the question as to whether this was a reasonable excuse for the wife to withdraw from the society of the husband. Having held that the husband’s making wild and baseless allegations was a reasonable excuse for the wife to withdraw from the society of the husband, the High Court allowed the wife’s second appeal and dismissed the husband’s petition for restitution of conjugal rights.

(iii) Smt. Shanti Devi v. Raghav Prakash .
—————————————————————
This is a case, where the husband had filed a petition for divorce on the ground that the wife had treated him with cruelty and was also guilty of desertion. Here the husband who was an academician had alleged that the wife had burnt his thesis and had made allegations that he was impotent. There was also an allegation that the wife had abused the husband asserting her own potency and the impotency of the husband. Dealing with such facts, Lodha, J. observed in para 21 as under :–

“Similarly, the allegation of Shanti Devi that the husband is impotent in the form of abuse in the house cannot be lightly ignored as in a matrimonial matter it is serious stigma on the manhood and is bound to cause great mental agony and pain resulting in cruelty to the husband.”

It is true that this was a case where the husband had led the evidence to show that the wife was abusing him as a impotent person. In the case before me, the wife has made allegations in para 3 and has repeated the same in para 15 of her written statement without caring to either put her case to the husband in his cross-examination or to examine herself on the point. As stated earlier, there is no evidence whatsoever in support of this allegation of the wife.

(iv) Smt. Savitri Balchandani v. Mulchand Balchandani .
—————————————————————
This was a case where the husband had filed a petition for divorce on the ground of cruelty under Section 13(1)(ia) as also on the ground of desertion under S. 13(1)(ib). The husband had alleged that the wife had illicit relationship with respondent No. 2 Jethanand. In the written statement filed by the wife, she had traversed the assertions of illicit connection between her and Jethanand. However, byway of an amendment application, the husband had amended his petition and had deleted the allegation of illicit connection between his wife Savitri and second respondent Jethanand. In the amended written statement, the wife had denied the allegations of cruelty, but had added that the husband was a man of bad character and was known for his weakness for women. It was alleged that the husband used to be in bad company of women and was known in the locality for this. However, at the trial, after the arguments were over, but before the judgment was delivered, the wife made an application to delete these allegations made against the husband. The application for amendment of the written statement was rejected.

In paras 30 and 31 of the judgment, the Delhi High Court observed thus :–

“The question is — Are false scandalous malicious, baseless and unproved allegations made in the written statement, cruelty to the other party? The trend of judicial authority in this High Court is that false, malicious, baseless, unproved allegations made by one person against his or her spouse, in letters addressed to the employer of the spouse, to any person in authority, or the police are cruelty to that spouse, as in Shakuntala Kumari v. Om Prakash, AIR 1981 Delhi 53, Lajwanti Chandhok v. O. N. Chandhok, (1981) 2 DMC 97 : AIR 1982 NOC 111; Kiran Kapur v. Surinder Kumar, 1982 Rajdhani LR (Note) 32 at page 36; Shardha Nand Sharma v. Kiran Sharma; (1985) 28 Delhi LT (SN) 32.

In Girdhari Lal v. Santosh Kumari, (1982) 1 DMC 180 (S. S. Kang, J.) Punjab & Haryana High Court held that a false police complaint against the spouse is cruelty.

In Jorden Dienadoh v. S. S. Chopra, (1982) 1 DMC 224 : AIR 1982 NOC 313, it was held that letters written to the superior officer were very damaging to the reputation of the petitioner. In that case wild allegations were made that the petitioner, a Class 1 Officer in Ministry of External Affairs, was being exploited for her weakness to their advantage,” by these letters to the respondent has tried to malign her and has also accused her of adultery.” On appeal, a Division Bench of this Court confirmed the finding of the single Judge. The judgment of the Division Bench is reported only as a short note in AIR 1985 NOC 45 (Delhi) (D. K. Kapur and D. P. Wadhwa, JJ.) : “It being well settled by authority that false, defamatory, scandalous, malicious, baseless and unproved attegations made against the spouse in letters, and alleged complaints to superiors, or persons in authority, are cruelty; is there any reason why these judgments should not be applicable to the false, scandalous, malicious, baseless and unproved assertions made in the written statements?”

In para 33 of the judgment, the Delhi High Court referred to the requirement of the subsequent events being taken into account by the Courts relying upon the Supreme Court decision . The Delhi High Court came to the conclusion that for shortening the litigation between the parties and for doing complete justice between the parties, it was necessary to take into account subsequent circumstances and events. Reference was made to Section 21-B of the Act and it was observed in para 38 as under :

“All matrimonial proceedings need to be decided expeditiously. It is desirable that matrimonial litigation be shortened, in fact Section 21-B of the Act requires it and multiplicity of proceedings of matrimonial nature be prevented.”

It is evident from para 43 of the judgment in the Delhi case that the wife having failed to justify the allegations made by her, it was held that on account of false and baseless allegations made by her in the written statement, she was guilty of the charge of cruelty to the husband and the husband was held entitled to a decree for divorce on this ground alone. In the result, the wife’s appeal was dismissed. I am in respectful agreement with the view expressed by the Delhi High Court in Savitri’s case .

(v) Ashok Sharma v. Smt. Santosh Sharma ,
—————————————————————
This case was also decided by the same learned Judge — Mahinder Narain Ja who decided Savitri’s case (supra). It was held in this case that in a case for divorce, false, baseless, scandalous, malicious and unproved allegations made in the written statement may amount to cruelty to the other party and that party would be entitled to get decree of divorce on that ground. False, defamatory, baseless, scandalous and malicious allegations in the written statement can be taken into account for the purpose of granting relief in matrimonial matters and this is based upon the principle on which subsequent events like allegations in the written statement can be taken into account in certain circumstances when (a) litigation between the parties ought to be shortened; and (b) to do complete justice between the parties. In this case, the wife had made allegations in the written statement that the husband was in company of drunkards and the husband and parents-in-law of the wife wanted that the wife should join with the alleged drunkards friends of the husband in drinking and enjoying with them. The allegations were held to amount to cruelty. Not only the assertion is that the husband wanted the wife to join his friends in drinking, but also that the parents, the mother and father of the husband also wanted her to join in the drinking party. Such an allegation made in the written statement would entitle the party against whom such an allegation is made, to a finding of cruelty in his favour. In the result, the learned Judge decreed the husband’s suit for divorce on the ground of cruelty alone.

28. As against all the above cases cited by Mr. Patil, Mr. Murthy for the wife relied upon the decision in the case of

Sadan Singh v. Resham.
—————————————————————
The learned Judge has observed in para 10 of the judgment as under :–

“Now I must observe, at the very outset, that a fact in order to afford a cause of action for any relief, must precede the initiation of the action. Consequently any allegation made by the wife in her written statement, could afford no cause of action for any relief on the husband’s petition.”

In that case, the wife had alleged in her written statement that the husband had illicit relationship with his sister-in-law. That was not proved. This allegation could not be established by the wife. However, on facts, it was held that in the first place, the allegation would not amount to cruelty and at any rate the cruelty must be deemed to have been condoned by the cohabitation between the husband and the wife, which resulted in the birth of a child. On the facts of the case before the Allahabad High Court, it was held that the husband was not entitled to any relief.

29. In despair, Mr. Murthy also advanced an argument that the averments made in paras 3 and 15 of the written statement seem to be unintentional. It is not necessary to discuss the entire case law on the subject as to whether intention is a necessary ingredient in this matter.

I may only refer to a passage in Mulla’s Hindu Law, 15th Edition by S. T. Desai at pages 786 and 787 where, on a review of the entire case law, it has been observed as under :–

“Intention :– Actual intention on the part of one spouse to injure the other is not an essential factor. In a passage which has become locus classicus it was observed :

| It is not necessary in determining this point, to
| inquire from what motive such treatment proceeds.
| It may be from turbulent passion, or sometimes
| from causes which are not inconsistent with
| affection and are indeed often consistent with
| it, as the passion of jealousy. If bitter waters
| are flowing, it is not necessary to inquire from
| what source they spring.” In Jamieson v.
| Jamieson, Lord Merriman reviewed the law on the
| subject and pointed out that actual intention to
| injure was not an essential factor, and that
| intentional acts may amount to cruelty even
| though there was no intention of being cruel.
| Motive, malignity or malevolent intention, it is
| well recognised, are not essential ingredients
| but where they exist they would be factors of
| considerable importance for acts done with
| malevolence are likely to bear fruit in acts of a
| serious and grave nature. In a doubtful case
| actual intention to hurt may even be of decisive
| importance. Where there is proof of a deliberate
| course of conduct on the part of one intended to
| hurt and humiliate the other spouse and so
| persisted in that it seriously affects the mental
| and bodily health of that party cruelty can
| easily be inferred. Studied neglect or a course
| of degradation may well prove more deleterious to
| the health of a spouse than the receipt of a
| blow. As pointed out by Lord Reid in the case
| mentioned above there can hardly be a more grave
| matrimonial offence than to set out on a course
| of conduct with the deliberate intention of
| wounding and humiliating the other spouse and
| making his or her life a burden and then to
| continue in that course of conduct in the
| knowledge that it is seriously affecting his or
| her mental and physical health. Where such course
| of conduct is shown it is no answer that there
| was no actual intention to treat the other spouse
| with cruelty. In Gollins v. Gollins the House of
| Lords overruled some earlier decisions of courts
| in England and laid down that neither actual nor
| presumed intention to hurt the other spouse was a
| necessary element in cruelty.”

30. In this behalf, I may also refer to a decision in Trimbak Narayan Bhagwat v. Smt. Kumudini Trimbak Bhagwat . This was a case where an attempt was made by the husband during his insanity to strangulate wife’s brother on one day and her young child on the next day. The husband’s conduct amounted to mental cruelty and it was held that motive or intention to be cruel was not necessary, if the conduct could otherwise be held to amount to cruelty.

On a review of the English cases, it was held in para 12 of the judgment as under :–

| “As stated above, the evidence in this case does
| not justify the conclusion that the husband was
| not aware of what he was doing assuming however,
| that the husband was not capable of knowing the
| nature of his acts, still, that by itself would
| not afford a defence to an action of judicial
| separation. In view of the decision of the House
| of Lords in (1963) 2 All ER 994 the distinction
| made in some judicial pronouncements between the
| two parts of McNaghten rule no longer remains
| valid. Defence of insanity is not available even
| on the first part viz. that the offending spouse
| is not capable of knowing what he is doing. If
| the conduct is held to be cruelty regardless of
| motive or intention to be cruel. The conduct of
| the husband in this case is such as to amount to
| cruelty, even in the absence of an intention to
| be cruel. Insanity therefore, should not bar the
| relief claimed by the wife. On the facts of this
| case, the schizonphrenia from which the husband
| has a predilection to suffer periodically is no
| good defence to the plea of cruelty put forward
| on behalf of the wife. The question whether the
| husband was capable of forming an intention to be
| cruel or actually intended to be cruel is a
| matter of no consequence in the present case.”

It is, therefore, well settled that detention is not a necessary ingredient.

31. In view of the above, I am of the opinion that though the husband has failed to prove points Nos. 1 and 2 framed above, he would be entitled to a decree for divorce on the third point namely, cruelty, as a result of the wife’s having made wild, reckless and baseless allegations in the written statement. Though, therefore, the husband has failed to prove on the averments made by him in the petition and on his evidence that the wife has treated him with cruelty, still he is entitled to succeed under Section 13(1)(i). Similarly, the husband has failed to prove that his wife was suffering continuously or intermittently from mental disorder of such a kind and to such an extent that he cannot reasonably be expected to live with the wife. The decree of the learned Trial Judge on both these grounds will have to be reversed.

32. However, in the view which I have taken, the husband would be entitled to a decree for divorce on the ground of cruelty under Section 13(1)(ia) of the Act on the basis of the allegations made by the wife in paras 3 and 15 of the written statement noted above.

33. In the light of the above, my answers to the questions framed in the first para of this judgment are as under :–

(i) Cruelty in the matrimonial law means conduct of such type that the petitioner cannot reasonably be expected to live with the respondent.

(ii) It would follow that the old English law concept of danger is no longer applicable in India.

(iii) The making of wild, reckless and baseless allegations of impotency and lack of manliness — itself amount to cruelty in the matrimonial law.

34. In viw of the above, the appeal partly succeeds. The judgment and decree of the learned Trial Judge is partly modified and it is held that the husband-respondent is entitled to a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the grounds stated above. No order as to costs.

35. Appeal partly allowed.

source

indiankanoon.org

Husband cannot be compelled 2 endure company of wife who makes false complaints to police

Husband cannot be compelled to endure the company of the wife who makes false complaints to police over matrimonial differences. Just because husband brought the wife back, it does NOT mean he has condoned all her earlier wrongs. such condonation is conditional.

Sm. Krishna Sarbadhikary vs Alok Ranjan Sarbadhikary on 16 May, 1984

Equivalent citations: AIR 1985 Cal 431, 89 CWN 156

Bench: C Mookerjee, M G Mukherji

JUDGMENT

Chittatosh Mookerjee, J.

1. The principal question in this appeal is whether the learned Additional District Judge, 2nd Court, Alipore was justified in dissolving the marriage of the appellant wife with the respondent husband on the ground that she had treated her husband with cruelty within the meaning of Section 13(1)(ia) of the Hindu Marriage Act, 1955.

2. On 12th December, 1976 the marriage of the parties took place according to Hindu rites at Baguihati, P. S. Rajarhat, District 24 Parganas. At the time of the marriage, the petitioner, husband (respondent herein) was aged about 36 years and the appellant wife was aged about 28 years. After marriage, they had lived at the husband’s joint family residence at 27/1/1B, Jiban Krishna Mitra Road, P. S. Chitpur, District 24 Parganas. The petitioner husband’s widqwed mother, his sister who had been divorced from her husband and his three brothers used to live with him. One brother subsequently died. Soon after her marriage, the appellant wife had conceived and on 9th October, 1967 in a nursing home, at North Calcutta, she had given birth to a daughter. During their married life the appellant, Krishna, on several occasions had left her husband’s house and had stayed her father’s house. According to the respondent husband, she used to depart without the consent or knowledge either of his mother or of himself. The appellant wife, however, denied the same and according to her, except on one occasion, with consent of her husband she used to visit her father’s house. On the evening of 10th July, 1978, the appellant wife with her daughter left her husband’s place and thereafter she did not return. There was some angry correspondence between the parties. On 14th May, 1979, the present respondent filed in the District Judge’s Court, 24 Parganas a petition for dissolving the marriage on the ground of cruelty of his wife. She contested the case. As already stated, the learned Additional District Judge, 2nd Court, Alipore has allowed the said petition and has passed a decree dissolving the marriage between the parties on the ground of cruelty.

3. Mr. Bankim Dutt learned advocate for the appellant, has submitted that there was no evidence that the appellant wife was guilty of legal cruelty and throughout their married life the appellant’s behaviour towards her husband was what was expected of a Hindu wife and occasional differences of opinion between the two were part of normal wear and tear of married life. According to the learned advocate for the appellant, there was no proof that the alleged acts of the appellant had caused reasonable apprehension in the husband’s mind that it would be harmful and injurious for him to live with her and, therefore, the Court below was wrong in holding that the appellant wife had treated her husband with cruelty. Further, submission on behalf of the appellant is that up to 10th July, 1978, the parties had admittedly lived as husband and wife and therefore the husband must be deemed to have condoned the alleged acts of cruelty on the part of his wife committed prior to 10th of July, 1978. Since 10th July, 1978 they have been living separately and they had only exchanged letters and there was neither any pleading nor proof that subsequent to 10th July, 1978 she had treated her husband with cruelty. The learned advocate for the appellant has further urged that even if the decree passed by the Court below is upheld, the appellant wife ought to be awarded permanent alimony. The learned advocate for the appellant has also submitted that appropriate order under Section 27 of the Hindu Marriage Act ought to be made in respect of the appellant’s properties lying in the house of her husband.

4. The petitioner husband who is the respondent in this appeal, in Paragraph 3 of his petition under Section 13 of the Hindu Marriage Act, had pleaded that Smt Krishna, who is the respondent in the Court below, was extremely short-tempered, rude, eccentric, whimsical and discourteous and suffered from mental disorder resulting in abnormally aggressive or seriously irresponsible conduct on her part. The petitioner husband further claimed that from the very night of the Phoolsajjya day on 14th December, 1976, she had become highly displeased with him and had expressed her extreme dissatisfaction about the gifts and presentations made to her from the petitioner’s family. The husband’s another allegation in his petition under Section 13 of the Hindu Marriage Act was that after her marriage without his permission she used to often visit and to stay for long duration at her father’s house and she had to be brought back after good deal of persuasion. Whenever the petitioner raised any protest against such frequent visit or stay, the respondent wife got annoyed, enraged and agitated and picked up quarrels with him and abused the petitioner and his family. The petitioner alleged that her mode of living and conduct had injured his mental feelings (vide Paragraphs 5 and 6 of the petition). The petitioner further pleaded that her wife had lodged a written complaint to the Officer-in Charge, Chitpur Police Station making false and unfounded charges of torture against him and the members of his family. On 19th October, 1977 she had given birth in a Nursing Home to a daughter and then she was taken back to her husband’s house. Even thereafter she had gone back to her father’s house and had to be brought back. On 10th July, 1978 she had finally left her husband’s place with her baby without the consent and knowledge of the petitioner or his family. Thereafter, she had written him letters making false and defamatory allegations of torture and Mal-treatment towards her. She had also demanded return of her ornaments and other presents made to her.

5. The present appellant in her written statement filed in the Court below had denied the aforesaid allegations of her husband. She averred that she was an obedient and submissive wife but she had been ill-treated by the petitioner’s mother and his youngest sister, who were in the habit of picking up quarrels with her and used to oppress her in such a cruel way that it was impossible for her to stay in her husband’s house. She claimed that in order to avoid further physical assaults and mental torture she had to leave her husband’s house and had to take rest in her father’s house (vide paragraph 7 of her written statement). She did not deny that she had lodged complaint with the police against her husband. But she alleged that her husband had thereafter taken her to Alipore Criminal Court and made her sign a blank paper which had been afterwards converted into an affidavit for using the same for the petitioner’s gain. She further averred that because of apprehension of losing her life, she had returned back to her father’s family. But she was ready to meet her marital obligations with the petitioner if he made provisions for separate residence for her and the baby. She also claimed return of ornaments, jewellery, furniture, clothing and other articles given in the list annexed to her written statement.

6. We may proceed to examine whether the learned Additional District Judge, 2nd Court, Alipore was justified in believing the petitioner husband’s case of cruelty against his wife (the present appellant) and in granting the decree for divorce. Both in her pleading and in course of her evidence the appellant wife has admitted that she used to frequently leave her husband’s place and stay at her father’s house. Intermittently she returned to her husband’s house. Since 10th July, 1978, she did not return at all to her husband’s house. In our view, the learned Additional District Judge for very good reasons has accepted the petitioner husband’s case that frequently the present appellant used to leave her husband’s house without consent. This part of the petitioner husband’s case has been proved by himself, his sister, Smt. Smritikana Sarvadhikari, P. W. 6, and his mother Smt. Sankurani Sarvadhikari, P.W. 3. According to these witnesses, Krishna often left their house without telling them anything. The Court below in this connection, has referred to a letter written by Krishna herself to her mother-in-law (Ext. 3(f)) and also to her mother’s letter dated 14th February, 1977 (Ext. 3(e)) to the petitioner’s mother. Both these letters referred to an incident at her husband’s house on 8th February, 1977. Both of them tendered apologies for misbehavior by her uncle, Durga Ghosh, who had taken her away to her father’s house. Krishna in her letter (Ext. 3(f)) confessed that on the said date she had not been able to restrain herself and had misbehaved. Paramesh Ghosh, the father of the appellant, in his letter dated 15th August, 1977, addressed to Smt. Sankurani Sarvadhikari referred to another incident between her and her mother-in-law’s family. He promised to take steps and stated that he was aware that her daughter was living happily in her husband’s house. Paramesh craved apologies for being unable to personally meet Smt. Sankurani. The statement made by Smt. Krishna, the appellant, in course of her evidence given in the Court below that whenever she went to her father’s house she took permission of her husband or mother-in-law is even inconsistent with not only some of the averments made in her written statement but also with other parts of her evidence. We have already mentioned that her case was that because of ill-treatment at her husband’s house she was compelled to frequently come away and to stay in her father’s house. In her evidence she had repeated some of these allegations against her husband and the members of his family. We have also mentioned that in paragraph 12 of her written statement Krishna had inter alia averred that unless proper security for her safety or arrangement for separate accommodation for herself and her child was made, she was unable to live with her husband.

7. The appellant’s allegations against her husband, her mother-in-law and other members of their family have not been corroborated by any other witness or contemporaneous documentary evidence. Such corroboration is not required as an absolute rule of law. In proof of the matrimonial offence the Court insists upon corroborative evidence unless its absence is accounted for to the satisfaction of the Court (vide Bipin Chander v. Prabhabati, 1956 SCR 830). The Supreme Court in their later decision in Dastane v. Dastane, , held the word ‘satisfied’ in Section 23 of the Hindu Marriage Act means preponderance of probabilities and not satisfaction beyond doubt. In a Bengali family a newly married girl who still retains her close affinities with her own family generally confides in her mother as to how she has been received in her husband’s house and about important incidents, if any, occurring in her husband’s house. If she felt hurt in all probabilities she would have also written letters to her parents complaining ill-treatment meted out to her. Krishna, the appellant, during her cross-examination had stated that she had kept contacts with her parents through letters. We are not prepared to believe her statement that she had to write letters in the presence of her husband who used to post these letters. In the first place, such a case was neither pleaded nor any suggestion in this behalf was given to Alok Ranjan (P.W. 1). It is also highly improbable that Smt. Krishna had no opportunities to write any letter to her parents when her husband went to office or elsewhere. In reply to further questions in cross-examination, Krishna practically admitted that except in her one letter she did not complain against her husband in her said letters. But she did not produce in Court the said letter allegedly containing the allegations against her husband, Alok Ranjan.

8. Even if we hold that out of natural shyness Krishna’s mother did not come forward to testify, we find no reasonable explanation why her father, Sri Paramesh Ghosh, or any other member of her fathers family did not depose on her behalf. Krishna had claimed in her deposition given in the Court below that all her relations knew about her experience in husband’s house, but she did not want to name them as they had not been cited as witnesses. It may be also noted that on 10th July, 1978 when she finally came away, her father had taken her back from the house of Sunil Kumar Bhattacharyya, a neighbour of Sarvadhikaries. According to Krishna, her father had drafted a complaint to the police. If the appellant’s father had been examined, he could have testified as to the circumstances under which her daughter frequently came away from her husband’s house. In this state of evidence, the Court cannot rely upon her evidence about her alleged ill-treatment at her husband’s house. Alok Ranjan had denied that in house his wife was subjected to cruel treatment, and that she was compelled to frequently leave her husband’s house. Alok’s mother Smt. Sankurani (P.W. 3), his sister Smt. Smritikana (P.W. 6) and his brother, Asit Ranjan (P.W. 5) have also denied that the appellant was cruelly treated in their house. Smt. Sankurani held a Master Degree in Bengali. Smt. Smritikana was also an M.Sc. Asit Ranjan was a Chartered Accountant. The appellant in her evidence stated that the members of her husband’s family were highly educated and cultured but their behaviour was bad. Even if from the beginning there was not much cordiality between Krishna, on one side, and her mother-in-law and sister-in-law, on the other, it is not believable that immediately after the marriage Smt. Sankurani and Smritikana would begin to torture Krishna and Smritikana who herself was a divorcee would openly threaten to wreck Krishna’s married life. Smritikana was living at her brother’s house and probably was their dependent. Therefore, it does not seem convincing that she would misbehave with her brother’s wife and try to do her any harm. Alok Ranjan and the members of his family had, no doubt, protested against Krishna’s frequent visit to her father’s place but it is not credible that Alok Ranjan, his mother and his sister would constantly cruelly treat her or that they or any of them would even go to the length of taking assistance of a Tantrik for harming her. In Bengali families unhappy relations between the mother-in-law and her daughter-in-law may not be uncommon. But the same is generally veiled and muted. Krishna was herself a grown-up wife. She had been recently married and her open revolt shortly after the marriage was somewhat unusual and indicated her unwillingness to obey her husband and her mother-in-law. We have also observed that her mother-in-law and her sons and daughters were also educated persons. They were not likely to openly threaten her or without any cause cruelly treat her. On the other hand, Krishna herself was unable to reconcile herself to the position which a newly married lady usually occupies in a middle-class Bengali joint family and could not adjust herself in her new surroundings. She was defiant and when her husband protested, she used to misbehave with him.

9. After perusing the letters of Krishna to Alok Ranjan, her suicide note and also her pleading and deposition, it appears to us that Krishna the appellant was a highly impulsive emotional lady who lacked balance and had suspicious nature. She had violently reacted when her husband and her family members had opposed her frequent visits to her father’s house. She had developed serious antipathy against her mother-in-law and sister-in-law and also harboured resentments against her husband. We also believe the evidence given on the petitioner husband’s behalf that Krishna very often flew into rage or abused and threatened him. It transpired from both oral and documentary evidence that in the first week of February 1977 an uncle of Krishna named Durga Ghosh, insulted her husband’s mother and had taken Krishna back to her father’s house. Alok Ranjan brought her back some time later. On 6th June, 1977 she had lodged a complaint against her husband at Chitpur Police Station and the police came to Alok’s house to hold an enquiry. On 9th October, 1977 Krishna gave birth to a daughter in a North Calcutta nursing home. Alok Ranjan had borne the expenses. On 26th November, 1977 she with her child without permission of her husband again left for her father’s house. On or about 12th March, 1978 Alok Ranjan brought her back to see his brother who was in his death bed and subsequently expired on 7th June, 1978. In April/May, 1978 Krishna prepared a suicide note (Ext. 2). On the night of 10th July, 1978 Krishna with her child finally left her husband’s house. On 4th May, 1977 Alok Ranjan filed his present petition for divorce. Alok Ranjan has deposed that in fits of temper his wife grew violent. She used to tear his shirt and destroyed household articles. He claimed that she also assaulted him with a broom and lathi in fits of temper. She used to abuse him in filthy language. Alok’s mother and sister stated that in presence of them Krishna had assaulted Alok. She had torn his shirt. Asit Ranjan (P.W. 5), the younger brother of Alok Ranjan, has also stated that his brother’s wife’s behaviour was indecent, unbearable and offensive. She abused his brother and assaulted him. According to P.W. 5, Krishna had shattered their hope for a peaceful life and they had been lowered in estimation of others. Asit further stated that they used to treat Krishna well and had attempted to persuade Krishna to behave properly but had failed. We have also referred to the evidence of Smritikana (P.W. 6), the sister-in-law of Krishna, who has substantially corroborated Alok, his mother and his brother about Krishna’s behaviour.

10. Dr. Satyen Sinha (P.W. 2), who was a medical practitioner, was a friend of Alok Ranjan, the petitioner. Debapriya Basu (P.W. 4) also was Alok’s colleague and his friend. Debapriya has deposed that in April, 1977 when he had visited Alok’s house, he found his wife, Krishna, abusing Alok in vulgar language, cups and spoons were lying scattered in floor. According to Debapriya, Krishna had assaulted her husband with a lathi. Similarly. P.W. 2, Satyen Sinha, P.W. 2, in May, 1977 had visited Alok’s house when he heard shouts and found Krishna in an agitated mood and was threatening his husband with a broom in her hand, The Court has rightly believed P. Ws. 2 and 3 who were disinterested witnesses. There was no plausible reasons for them to tell lies about Krishna’s aforesaid behaviour.

11. We have already observed that no witness has corroborated Krishna’s allegations against her husband and his family : (1) beating, (2) ill-treatment, (3) abusing and threatening to ruin her married Ufe and (4) confining her in a single room and preventing her from making telephone calls and writing letters in Alok Ranjan’s presence (vide Krishna’s letter Exts. 3 and 3(e)). Krishna herself at a stage of her evidence given in the Court below had stated that she had all along good relationship with her husband. She was taken in her husband’s car on many occasions even to her father’s house. Her husband used to escort her. Her husband or his family members did not object to her writing to her father’s house and that her husband used to go to see her. -Her mother and elder brother used to come to see Krishna’s mother-in-law. Thus, Krishna’s own evidence was not consistent and did not inspire confidence. Sunil Krishna Bhattacharjee (D.W. 2), was a neighbour of Alok Ranjan. Although Sunil claimed that he knew Alok Ranjan since 1961-62, he never heard any shouts from Alok’s house. He never heard Krishna shouting. Sunil’s evidence was that on 10th July, 1978 his tenant had told him that a woman from a neighbouring house was in their house and she was crying. She had a baby in her arms. He also saw Krishna crying who told him that she had been assaulted and turned out of the house. Sunil had telephoned Krishna’s father who came and took Krishna away. But Sunil admitted that he had not witnessed any other incident and he did not testify that Alok and his family members used to torture her. We conclude that Alok has satisfactorily established that her wife used to frequently leave without his or her mother’s permission and knowledge for her father’s house and used to stay there for long spelled. She used to abuse and quarrel with her husband and family and misbehaved with them. On occasions she even physically assaulted Alok Ranjan. In her pleading and also in her evidence Krishna had alleged that her husband had improper relationship with one Uma Bakshi who worked under him at the office. But she failed to prove the said allegation. Merely because the said Uma Bakshi had visited Alok’s house on one or two occasions and mef members of Alok’s family, it cannot be inferred that there was any basis for Krishna being suspicious about her husband’s fidelity.

12. We are unable to accept the submission of Mr. Dutt learned advocate for the appellant, that the aforesaid acts and conduct of the appellant, Krishna, even if proved, were merely part of ordinary wear and tear of married life and did not amount to cruelty within the meaning of Clause (la) of Sub-section (1) of Section 13 of the Hindu Marriage Act. Mulla’s Hindu Law, 15th Edn., pages 781-792 contain a very useful discussion of the concept of ‘cruelty’ and the broad general principles which emerge from the decided cases. The expression “cruelty” has not been defined in the statute presumably because ‘all cases which come before the Court must be determined on their own particular facts’ (vide Simpson v. Simpson (1951) 1 All ER 955). The accepted legal meaning of the expression “cruelty” is conduct of such a character as to have caused danger to life, limb or health (physical or mental) or to give rise to a reasonable apprehension of such danger (vide Russell v. Russell 1897 AC 395). Clause (ia) of Section 13(1) of the Hindu Marriage Act, 1955 requires that after solemnization of the marriage, if a person has treated his spouse with cruelty, the Court dissolved the marriage by passing a decree. Merely by showing that the parties are unhappy because of unruly temper of a spouse or matrimonial wranglings fall considerably short of the conduct which can amount to cruel treatment. It would not be sufficient to show that the other spouse is moody, whimsical, exacting, inconsiderate and irascible. Defects of temperament must ordinarily be accepted for better or for worse. Therefore, there may be unhappiness in a marriage and the Court cannot have for that cause alone find cruelty (see Mulla on Hindu Law, 15th Edn., pages 788-89). “What is cruel treatment must to a large extent be a question of fact or a mixed question of law and fact to be determined within the ambit of Rule and the accepted criteria”. It has been held that the legal concept of cruelty comprises two distinct elements. Firstly, the ill-treatment complained of and secondly, the resultant danger or apprehension thereto. It is not possible to specify the grounds of treatment of conduct which might constitute cruelty. It may consist of display of violent temper, unwarrantable indifference to other party’s health and happiness, deliberate refusal to co-operate. The expression “cruelty” comprehend both physical and mental cruelty. In deciding whether the act, conduct or attitude of behaviour of one spouse towards the other amounts to cruel treatment has to be measured by the resultant danger or apprehension of the victim. Physical temperament, standard of living and culture of the spouses, social ideas and all other relevant circumstances have bearing on the question whether the acts and conduct complained of amount to the matrimonial offence of cruelty. Conduct alleged must ,be judged up to a point by reference to victim’s capacity or incapacity for endurance in so far as that is or ought to be known to the offending spouse (see cases noted in the foot-note (g) of Mulla’s Hindu Law, 15th Edition, page 783). Therefore a particular treatment in case of one person may amount to cruelty having regard to his temperament, physique and capacity to endure such treatment. It has been said that actual intention on the part of one spouse to injure the other is not an essential factor. “It is necessary in determining this point to enquire from what motives such treatment proceeds”. Intentional acts may amount to cruelty even though the one who perpetuated the same had no intention of being cruel. But in doubtful cases the state of mind of the offending spouse would be material and may be crucial. In case the reprehensible conduct of departure from normal standard of conjugal kindness cause injury or apprehension thereof, the Court may consider that the victim should not be called on to endure it. The contrary views expressed in Kaslefsky v. Kaslefsky (1950) 2 All ER 398 (CA) was not approved by the House of Lords in Gollins v. Gollins, 1964 AC 644 : (1963) 2 All ER 966, which laid down that neither actual or presumed intention to hurt the other spouse was a necessary element in cruelty.

13. In the instant case by reason of the petitioner’s wife frequently departing without permission from the matrimonial home the husband felt humiliated socially and was in constant fear and anxiety and he had no mental peace. His claim that his health had suffered and he was attacked with colitis has been corroborated by the deposition of Dr. Satyen Sinha (P.W. 2). Smt. Sankurani, mother of Alok Ranjan, P.W. 3, also deposed that her son sustained mental and physical pain because of the behaviour of his wife. Some times a doctor had to be consulted. We have also referred to the evidence of acts of physical violence by Krishna. We are not unmindful of the fact that in his petition under section 13 of the Hindu Marriage Act Alok did not expressly plead acts of physical cruelty and mostly averred about the acts of mental cruelty on the part of his wife. But in their correspondence prior to the filing of the case, Alok Ranjan on several occasions had alleged that Krishna had beaten him and also had in various ways cruelly treated him. Proper inference has to be made from the whole facts and matrimonial relations. Individual acts in isolation may be trivial and not sufficient to constitute cruel treatment. But cumulative effect of series of related acts may, if taken together, constitute cruel treatment. In the instant case, having regard to the agesof the parties, environments, their standard of culture and status in life, we are bound to hold that the series of acts committed by Krishna amounted to cruelty towards her husband and the same had serious consequences, both actual and apprehended, upon the husband, Alok Ranjan. Her behaviour towards her husband and his family members was indecent, unbearable and offensive. We have also referred to the fact that Krishna went to the length by lodging a complaint with the police against her husband. Actually a police officer visited Alok Ranjan’s house to enquire about her complaint when Krishna had retracted her allegations against her husband. The police actually made an enquiry when Krishna had disowned her said complaint on grounds which at the trial she herself admitted to be not true and according to her, her husband had tutored her to deny the complaint made against him. At the trial she admitted that she had made such complaint to the police. There is no evidence that there was any foundation for her making such a complaint. Therefore, in the facts of the present case, lodging of complaint of commission of criminal offence against her husband, who was a Government official, was very likely to cause an apprehension in the mind of Alok Ranjan that continued cohabitation with his wife would be harmful and injurious. It would appear that on the day Krishna finally came away, i.e. 10th of July, 1978, she and her father had again gone to police station. In such circumstances, the petitioner husband cannot be compelled to endure the company of the wife who makes false complaints to police over matrimonial differences.

14. We have also mentioned that in April/May, 1978 she had prepared a suicide note (Ext. 2). In her said note she had written that her husband would not be responsible and he was always affectionate towards her. But she was unable to withstand the oppression of her mother-in-law and sister-in-law. She had appealed to the police to take firm steps against such oppression. This propensity to commit suicide also might raise a reasonable apprehension in Alok’s mind that it would be harmful and injurious to live with Krishna. It is not necessary that the act oracts complained of must take place within what is sometimes described as the ambit of a marital relationship. It may well be that the acts may occur after the husband and wife had begun living apart (see Mulla’s Hindu Law, 15th Edn., page 783 and Cade v. Cade, (1957) 1 All ER 609). Therefore, in the instant case we need not confine our attention to the acts of the parties from the date of marriage up to 10th July, 1978 when Krishna with her child left the matrimonial home. We may legitimately take into consideration her conduct and behaviour even subsequent to the said date. We have already mentioned that after she left on 10th July, 1968 she with her father had again gone to police station presumabmy to lodge a complaint against her husband and his family. She had continued to write insulting and offensive letters to her husband making various accusations which she has failed to substantiate. She had demanded return of her moveables and on occasions insisted that unless a separate home for her was set up, she did not propose to return. In spite of protests of her husband she had continued to write such letters at Alok’s office address and Alok had in writing claimed that Krishna had done so to h umiliate him in his office. In the above view, in deciding whether Krishna had ill-treated her husband and the resultant danger of apprehension up to the date of the filing of Alok’s petition under Section 13(1)(ia) of the Hindu Marriage Act, we have already held that the same fully establish that Krishna was guilty of having cruelly treated her husband, Alok Ranjan.

15. We next take up the question whether or not Alok Ranjan, the husband, had condoned the acts of cruelty on the part of his wife, Krishna. Mr. Dutt submitted that up to 10th July, 1978 the parties had lived together as husband and wife. Mr. Dutt has submitted that on all previous occasions Krishna had returned either on her own or her husband had brought her back. Thereby, Alok Ranjan must be deemed to have forgiven the alleged acts of his wife and had reinstated her. After 10th July, 1978 the parties did not any further live together and therefore, according to Mr. Dutt, there could be no further occasion for Krishna to cruelly treat her husband. We have already pointed out that in deciding whether the husband or the wife had cruelly treated his or her spouse, the court need not confine its attention to the facts which had occurred up to 10th July, 1978 and may take into consideration the acts and conduct of the parties subsequent thereto. We have found that even after 10th July, 1978 Krishna had continued to write insulting, offensive and threatening letters to her husband. In our view, the said facts also constituted acts of mental cruelty upon Alok Ranjan. Further, the very act of Krishna leaving with the child on the night of 10th July, 1978, taking shelter in a neighbour’s house and lodging complaint to the police were also acts of cruelty towards her husband. “Condonation” means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation, there must be therefore two things : forgiveness and restoration (vide Dastane v. Dastane, ). But such forgiveness is conditional, on the condoned spouse thereafter fulfilling in all respects the obligations of marriage (vide Henderson v. Henderson 1944 AC 49). Their conjugal life had subsistedfor a short period and was repeatedly interrupted by Krishna often departing for her father’s house. During her stay in her husband’s house she used to often insult, threaten and on occasions assaulted Alok Ranjan. Therefore, even if Krishna had been reinstated, she having repeatedly committed such acts of cruelty, her previous acts of cruelty committed before her reinstatement, again revived. Mulla on Hindu Law at page 861 has referred to the decision on the subject of revival of matrimonial offence which would by itself give adequate ground for divorce or judicial separation. Commission by the condoned spouse of a matrimonial offence less than legal cruelty would be sufficient if the conduct complained of is of such persistence that will make married life together impossible (vide Richardson v. Richardson, (1949) 2 All ER 330, Thompson v. Thompson, (1912) ILR 39 Cal 395). In the instant case, on 10th July, 1978 Krishna with her child finally left her husband’s house. She had failed to prove by reliable evidence that her husband and her family had themselves cruelly treated her and they had compelled her to leave and that the marriage broke down because of the conduct of the husband without her fault. We have already held that the evidence on the side of the petitioner husband was more acceptable that Krishna used to cruelly treat her husband. In the above view, the petitioner husband was entitled to rely on all the previous guilty acts of his wife as a ground for relief under Section 13(1)(ia) of the Hindu Marriage Act, 1955. There has been no unnecessary or improper delay in instituting the present proceeding and there was no other legal ground why the petitioner husband should not be granted the relief prayed for by him.

16. In her written statement, the appellant, Krishna, had prayed for making an order in terms of section 27 of the Hindu Marriage Act, 1955 for return of her articles stated to be still lying in the home of the husband. At the time of the hearing with notice, the appellant had urged the said additional ground under Section 27 of the said Act. The Court below, however, did not frame any issue and did not pass any order in terms of Section 27 of the Hindu Marriage Act. We propose to direct the Court below to give opportunities to both parties to adduce further evidence and thereafter make appropriate orders regarding Krishna’s properties, if any, still remaining in the house of her husband.

17. In the circumstances of the case, the court below also ought to make an order for payment of permanent alimony to Krishna until and unless she remarries and also provide the maintenance of the child of the parties. Before the conclusion of the hearing the appeal, the learned advocate for the appellant filed before us statement of the monthly emoluments of Alok and the deduction made therefrom. According to the said statement, Alok’s total pay including allowances was allegedly Rs. 2086.70 per month. A total sum of Rs. 290/- per month was being deducted from his salary towards provident fund, group insurance, professional tax, income tax, surcharge and compulsory deposit. Thus, according to the present respondent, he received a net sum of Rs. 1797/- per month. We remit the question of payment of permanent alimony to the Court below for determining the same upon the evidence which may be adduced by both parties. Pending such decision by the trial Court, we direct the petitioner husband to continue to remit by money order or by account payee cheque a sum of Rs. 550/- per month to the appellant Krishna within the 15th day of each succeeding month. First such remittance or payment shall be made on or before 15th day of June, 1984. The petitioner Alok is further directed to pay or remit within three months all arrear maintenance at the rate previously fixed.

18. In the result, we dismiss the appeal against the decree for dissolution of marriage of the parties under Section 13(1)(ia) of the Hindu Marriage Act, 1955 and affirm the decree passed by the Court below. We remit the case to the Court below for determination of the permanent alimony and maintenance payable to the appellant and her child. The Court below is also directed to make an enquiry in terms of Section 27 of the Hindu Marriage Act and to pass appropriate orders/directions. For deciding the aforesaid two matters, the Court below would be entitled to record further evidence of the parties, if adduced.

19. There will be no order as to costs.

Mukul Gopal Mukherji, J.

20. I agree.

Source

Indiakanoon.org

FALSE Allegations of Illicit Relations with “bhabhi” (sister in law) are cruelty ; Himachal HC

FALSE Allegations of Illicit Relations with “bhabhi” (sister in law), ill treatment at office in front of colleagues etc are cruelty

Himachal Pradesh High Court
Ramesh Kumar Sharma vs Smt. Akash Sharma on 1 January, 2008
Equivalent citations: AIR 2008 HP 78, 2008 (1) ShimLC 399

JUDGMENT

Dev Darshan Sud, J.

1. This is the husband’ s appeal against the judgment and decree of the learned District Judge, dismissing the petition instituted by the husband against the wife on the ground of divorce under Section 13(1)(a) and (b) of the Hindu Marriage Act, 1955, (hereinafter referred to as the ‘Act’).

2. The parties were married on 1st March, 1979 at Pathankot. A male child was born to them on 27.2.1982. The appellant alleges that they lived together for 14 years and the respondent has withdrawn from the company of the appellant without any lawful excuse. She used to quarrel constantly and has not joined his company on the pretext that the appellant is having illicit sexual relations with his sister-in-law (Bhabhi) Smt. Sushma, which allegations have not been substantiated by her. His further allegation is that in 1981 when he was employed and posted at Indora the respondent used to visit his office and the residences of his superior officers using abusive language against him, humiliated him in the presence of his colleagues and superior officers. All these acts caused mental cruelty to the appellant. The respondent had filed two divorce petitions. These were compromised in the fervent hope that the respondent would live normally, but even after that, there was no improvement in her behaviour.

3. The respondent contested the petition by alleging that the appellant had turned her out from the matrimonial home without any lawful excuse and that she was maltreated by him. A categoric allegation was made that the appellant is having illicit sexual relations with his ‘Bhabhi’ and in consideration, he had transferred the entire ancestral land falling to his share in favour of his brother Ramesh Kumar which deprived their son Ronit of his right of inheritance. After considering the evidence which was led by the parties, the petition was dismissed by the learned District Judge only on the ground that prior to the filing of the present petition, another divorce petition had been instituted on similar allegations, which petition was dismissed by this Court. He holds that the petition was filed on the same grounds as pleaded in this petition and that the High Court had rejected his prayer for divorce.

4. I have heard learned Counsel for the parties and have gone through the record of the case. I do not find that the approach of the learned District Judge is judicious. The parameters of cruelty are by now well defined. Allegation of the nature made against the appellant of persistent sexual misadventure with his ‘Bhabhi’ is a serious allegation. Not only was this allegation made in the previous petition, but has been reiterated with emphasis and full conviction in the present petition also. Before discussing the evidence of the parties, the pleadings may be considered.

The allegation of cruelty pleaded is:

4(i) That during the stay of the respondent, she lived in her parents house for more than six months. The Respondent actually lived with the petitioner for about 1-1/2 years and used to leave the house of the petitioner without informing the petitioner. After a great persuasion Respondent used to accompany the petitioner to her matrimonial house. Now since February, 1982 the respondent has left the house of the petitioner with intention not to return, All the efforts made by the petitioner to persuade the respondent has brought no fruits and the respondent has categorically stated that she does not want to live with the petitioner. It is worth mentioning here that Respondent filed two petitions under Section 14 of H.M. Act (75 of 1985, 35 of 1986) for dissolution of marriage. In both the petitions the Respondent gave the statement that she will not quarrel with the petitioner and she is ready to accompany the petitioner to her matrimonial house. Respondent after giving the statements refused to join the company of the petitioner and all the efforts made by the petitioner and his relatives brought no result. The petitioner even sent a notice dated 22.8.1986 to the respondent to live with him after the abovesaid cases were compromised but the respondent failed to give any reply or join the company of the petitioner. On the other hand, the Respdt. started making false allegations against the petitioner that the petitioner is, having illicit relations with his sister-in-law (BHABI), Smt. Sushma Devi. These wild allegations have caused great mental cruelty to the petitioner. The acts mentioned above have caused great mental harassment to the petitioner and she has deserted the petitioner for more than two years without any reasonable cause,

(ii) That from April, 1981 to December, 1981 the petitioner was employed at Indora. The respondent lived with the petitioner at the place of posting for few days and left the place without the knowledge and consent of the petitioner. During that period, the Respondent used to visit the office and houses of officers of the petitioner and behaved very abnormally by using abusive language. The petitioner always felt humiliated in the presence of his superiors. In these circumstances the petitioner was unable to work properly in his office. In May, 1985 when the Respondent was not living with the petitioner for the last about 3 years, she visited the office at Jawali which is Divisional Office of the petitioner and asked Shri R.S. Shanna, the then Executive Engineer to give her the salary of the petitioner, which was refused by Shri R.S. Sharma. When the Respondent started making scenes there, the staff collected some money and asked the Respondent to leave the place and not to create any scene and was also asked not to come again. Even Shri R.S. Sharma and the staff members tried to persuade the Respondent to live peacefully with the petitioner. Contrary to that the Respondent filed divorce petition by making false allegations.

4(iii) That after the compromise in the two divorce petitions mentioned above, the petitioner got his son Rohit admitted in School situated at Samlana and Patta Jattian. At that time the Respondent never resided with the petitioner and lived in the houses of different persons against the wishes of the petitioner. The Respondent after 5-6 days without the knowledge of the petitioner and without any reason have withdrawn the son from both the schools.

4(iv) That the respondent had locked one room in the house of the petitioner in January, 1987 in the absence of the petitioner. All the belongings of the petitioner are lying in that room. The petitioner made complaints to the Pradhan, Gram Panchayat, Jakhara that the condition of the room is not good and it is not ‘possible for him to carry out any repair unless the same is got opened by the Respondent. Pradhan, Gram Panchayat sent notices to the Respondent to appear but the Respondent failed to appear. Even the pradhan, Gram Panchayat also informed S.H.O., Police Station, Jawali, about the danger of collapsing of wall of that room. But every time Respondent failed to abide by the directions. A decree in this regard was also sent through Counsel but the Respondent failed to give any suitable reply.

4(v) That the Respondent without any rhyme and reason has deprived the petitioner the marital bliss and has left the matrimonial house without the knowledge and consent of the petitioner and has laid down false allegations against the petitioner. The irresponsible behaviour of the Respondent has caused great harassment and the health of the petitioner has been grievously impaired. The petitioner has become physically week, mentally tortured and felt humiliated in the public. There are no chances of co-habitation between the parties.

In reply, the respondent has stated:

It is, infact, true that the petitioner is having illicit relation with his sister-in-law and it is in consideration of this relationship that the petitioner has transferred the entire ancestral land falling to his share in favour of his only brother and co-sharer, Ramesh Kumar, illegally to the detriment of the rights of his only son Rohit. The desertion, if any, is by the petitioner and not by the respondent and that, for the reason stated above.

5. The allegations in the pleadings of the respondent have been made with responsibility and full knowledge of the facts and the illicit nature of the relationship of the appellant with his sister-in-law has been emphasized. She repeated these allegations while appearing in the witness box as RW-1 on 23.9.2003, stating in her evidence, “Wadi ne sari jameen ba jaydad jo lag-bhag 230 kanal hai apne sautele bhai ke nam bhabhi ke kahne par kar di hai. Wadi ke bhabhi ke sath sambandh hain jiske karan wadi ne sari jameen ba jaydad bhai ke nam kar di hai”. In her cross-examination, she admits that no relationship of husband and wife exists between the parties since 1982 in the following words:

“…. Theek hai 1982 se hamare bataur pati patni sambandh na hai. She then states, “Theek hai ki maine ilzam lagaya ki uske bhabhi ke sath sambandh hain…”

6. The pleadings and evidence have been reproduced to show that the marriage has broken down irretrievably and the respondent has followed a consistent course of conduct accusing the petitioner of having illicit relations with his ‘Bhabhi’ (sister-in-law). On a suggestion being made to her that the petitioner’s sister-in-law treats him like a son, she states, “mujhe pata na hai ki wadi bhabhi ko ma saman samjhata hai”. The purpose of reproducing this evidence in some detail is to show that the attitude of the respondent is such that she does not wish to stay with the petitioner as his wife.

7. The pleadings and evidence have been noticed in some detail as an argument has been raised by the learned Counsel appearing for the respondent that in view of the previous litigation between the parties as reported in Smt. Akash Sharma v. Shri Ramesh Kumar Sharma (1991) 1 Sim. L.C. 198, wherein similar allegations have been made viz, the acts complained of by the petitioner, more especially, the allegations of having illicit sexual relations with his sister-in-law whom he treats like her mother have been condoned and this allegation cannot give rise to a fresh cause of action. This argument cannot be accepted. It is no doubt true that Section 23 of the Act provides that in case a person has condoned the acts complained of, as specified therein, he shall not be entitled to sue for divorce or judicial separation etc.

8. In Dr. N.G. Dastane v. Mrs. S. Dastane , the Hon’ble Supreme Court held:

| 52. The next question for consideration is
| whether the appellant had at any time condoned
| the respondent’s cruelty. Under Section 23(1)(b)
| of the Act, in any proceeding under the Act
| whether defended or not, the relief prayed for
| can be decreed only and only if “where the ground
| of the petition is cruelty the petitioner has not
| in any manner condoned the cruelty”.
|
| 55. Condonation means forgiveness of the
| matrimonial offence and the restoration of
| offending spouse to the same position as he or
| she occupied before the offence was committed. To
| constitute condonation there must be, therefore,
| two things: forgiveness and restoration: The Law
| and Practice of Divorce and Matrimonial Causes by
| D. Tolstoy, Sixth Ed., p. 75….
|

9. This principle is by now well established. Some other judgments are also being considered as they provide a valuable guideline for determining as to what constitutes condonation of acts of cruelty complained of by the petitioner in proceedings under the Act.

10. In Maganlal Budhaiabhai Patel v. Bai Dahi , the High Court of Gujarat held that the best evidence of condonation (in this case adultery), is the continuance or resumption of sexual relation by the parties after one has discovered the misconduct of the other party. This is a question of fact.

11. The High Court of Jammu and Kashmir in Lalit Mohan v. Tripta Devi (1990) 1 HLR J&K 583, holds that condonation does not mean mere resumption of cohabitation. It has to be proved as a fact that while resuming cohabitation the other -party had completely forgiven the conjugal offence. Condonation, according to the learned Judge, is:

| 9…Condonation mean the complete forgiveness and
| blotting out of a conjugal offence followed by
| cohabitation, the whole being done with the full
| knowledge of all the circumstances of the offence
| forgiven, so as to restore the offending party to
| the same position he or she occupied before the
| offence was committed. Cohabitation being the
| essence of the matrimonial tie between the
| parties to a marriage there can be no condonation
| which is not followed by conjugal cohabitation.
| It is a conditional waiver of right of the
| injured spouse to take matrimonial proceedings
| and is a conditional reinstatement of the
| offending spouse. Condonation is a conclusion of
| fact and not of law. The condonation has to be
| acknowledged and proved as a fact which can be
| ascertained from the evidence produced in the
| case and cannot be inferred as a question of law.
|

12. Following the judgment of the Hon’ble Supreme Court in Dastane’s case (supra), this Court, in Nirmala Devi v. Ved Prakash , has held:

| In a sense condonation is reconciliation, namely,
| the intention to remit the wrong and restore the
| offending spouse to the original status which in
| every case deserves to be gathered from the
| attending circumstances. The forgiveness in order
| to constitute condonation need not be express. It
| may be implied by the husband of the wife’s
| conduct and vice versa. Ordinarily, as a general
| rule, condonation of matrimonial offence deprives
| the condoning spouse of the right of seeking
| relief on the offending conduct, When a petition
| is filed claiming a decree for restitution of
| conjugal rights, it clearly stipulates that the
| person seeking relief has no grouse or cause of
| complaint against’ the other spouse and even if
| there was any cause or complaint, the same has
| either been condoned or forgiven. The intention
| being to resume normal cohabitation.

13. I am not burdening this judgment with other precedents as the principle of law already stands established. So much so, in Florence Amelia Thompson v. George S. Thompson (1912) ILR XXXIX Calcutta, 395, it has been held:

| Condonation is conditional forgiveness, and any
| subsequent misconduct on the part of the husband,
| even an attempt to take liberties with a female
| servant in the house and solicit her chastity,
| will revive condoned adultery: Ridgway v. Ridgway
| (1881) 29 W.R. (Eng.) 612.

14. It is true that in the previous petition which was instituted by the petitioner and in the other petitions which were filed and withdrawn, similar allegations were made, but at the same time, it is now established from the evidence of the respondent herself that there was no cohabitation after 1982. In other words even if the petitioner is taken to have condoned the acts constituting cruelty that was not a permanent license granted to the respondent to repeat them in future without inhibition as is sought to be argued by the learned Counsel for the respondent. Condonation does not grant freedom to the respondent to continue with vituperation and abuse against the petitioner and showing him down on every possible occasion. It need not be reiterated that in a society and more especially Hindu society where the relationship of mother and son is revered irrespective of the fact who discharges of his duties whether it be an elder sister or an sister-in-law, allegation of unsubstantiated sexual involvement is the worst possible mental cruelty which can be inflicted on a person.

15. The respondent was peeved by the fact that no wealth/property has been left for her or her son. Surely, the respondent cannot claim a right inpresenti of a spes successionis to the estate of the petitioner. If the transfer was illegal and against law it could have been set aside by a separate action which could be instituted. It does not furnish a motive or source of instigation to the respondent to have levelled unsubstantiated allegations against the appellant.

16. The other witness produced by the respondent, Shri Shrawan Kumar, RW-2, testifies that he has no knowledge regarding the allegations made by her. PW-6, Smt. Sushma, who is the ‘Bhabhi’ (sister-in-law) of the appellant, has stepped into the witness box and stated that she has brought up the appellant like her son, educated him and settled him in life. At the time of his marriage, she was having two children and at present she has four children. When her statement was recorded on the 30th October, 2003, she stated that three of her sons are employed and the fourth is studying in Engineering College. Even she has not been spared, suggestion has been made to her that the respondent had been turned out of the matrimonial house because the appellant had illicit relations with her. She affirmed on oath in her evidence that the relationship between her and the appellant was that of brother and sister. PW-4 is one Shri Kishan Chand, who was the Ward Panch, who has stated in evidence that the respondent used to use derogatory words against the appellant. He states in his evidence that, “Pratyarthi ulat pulat baten karke Prarthi ki bezatti karti hai”. PW-3, Sohnoo Devi, has stated that the parties have been living apart for the last 20 years and that she has locked out one room in the residence of the appellant. A suggestion was also made to this witness that the appellant was having illicit relations with his ‘Bhabhi’ and for this reason respondent had been turned out. This was denied. PW-2 Ram Swaroop Sharma, who was working as X.EN in the Jawali Division, has stated in his evidence that the respondent came to his office and demanded half the pay of the appellant to which he has stated that this would be done only if there is a valid or subsisting Court order. He testified on oath that the respondent created a scene in the office and all the employees present, tried to pacify her but of no avail.

17. I have considered the submissions of the respondent that the present petition is barred as the allegations made had already been considered by this Court in Smt. Akash Sharma v. Ramesh Kumar Sharma (1991) 1 Sim.L.C. 198. This submission’ is made only to be rejected as I have held that there has been no condonation of the acts which were being committed continuously by the respondent after the decision of the case as aforesaid. It is not the case of the respondent or of the party to this petition that subsequent to the passing of the judgment by this Court on 29th October, 1990 in FAO(HMA) No. 174 of 1988, Smt. Akash Sharma v. Shri Ramesh Kumar Sharma (1991) 1 Sim.L.C. 198, these allegations were not made. Rather the case of the appellant is that this course of conduct in leveling false allegations has been adopted by the respondent with obstinate persistence. This petition was filed on 30.6.2000 and decided on 22.3.2004. The previous conduct if condoned was not a license to the respondent to have used, it as a tool for abusing the appellant and to continue with that behaviour. This Court did not put its seal of approval on the future conduct of the respondent in anticipation that such conduct would be condoned by the appellant.

Section 13 (1) (i-a) provides:

| 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) …
|
| (i-a) has, after the solemnization of the
| marriage, treated the petitioner with cruelty;
| or….

18. The evidence on the record is clear. The respondent has consistently levelled accusation against the petitioner of sexual involvement with his “Bhabhi’ and has withdrawn from the matrimonial home without any just excuse. She justifies these allegations on the basis of deprivation of property which is nothing but spes successionis. The appellant was free to deal with his property in accordance with law and if the transfer was illegal it could have been challenged. It did not give an unfettered right to the respondent to level baseless allegations of sexual misconduct. There is no cohabitation between the parties since 1982 as admitted by the respondent. Although the concept of mental cruelty cannot be cribbed and confined to particular acts, the decision of the Hon’ble Supreme Court in Samar Ghosh v. Jaya Ghosh , lays down the principles applicable. The Court held:

| 98. On a proper analysis and scrutiny of the
| judgments of the Supreme Court and other Courts,
| there cannot be any comprehensive definition of
| the concept of “mental cruelty” within which all
| kinds of cases of mental cruelty can be covered.
| No Court should even attempt to give a
| comprehensive definition of mental cruelty.
|
| 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 another
| 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 the 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
| by any strait jacket 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 into consideration.
|
| 101. No uniform standard can ever be laid down
| for guidance, yet it is deemed appropriate to
| enumerate some instances of human behaviour which
| may be relevant in dealing with the cases of
| “mental cruelty”. The instances indicated in the
| succeeding paragraphs are only illustrative and
| not exhaustive.

19. Further the Court laid down certain acts which would con stitute mental cruelty. All of them need not be reproduced here, but the case of the appellant would be covered by the following:

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) …

(iv) …

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) …

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) …

(ix) …

(x) …

(xi) …

(xii) …

(xiii) …

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

20. When considered in its entirety, the present case is squarely covered by the principles enumerated by the Hon’ble Supreme Court.

21. The evidence on record leaves no doubt in my mind that the appellant has been subjected to constant mental cruelty by the respondent more especially her allegations of sexual misbehaviour and mis-conduct against the appellant accusing him of having illicit sexual relations with his sister-in-law (Bhabhi), for consideration, who is treating him like a younger brother. The evidence, clearly points out to the fact that the respondent has treated the appellant with cruelty within the meaning of the Act. In terms of the pronouncement of the Hon’ble Supreme Court in Samar Ghosh’s case, I am satisfied that not only has the marriage broken down irretrievably because of the acts on the part of the respondent, and it is not possible for the appellant to live in an atmosphere which is vitiated and surcharged by allegations of adultery etc. Indian Society is sensitive to the relationships of brother and sister and mother and son which are not only respected but venerated. There has been no cohabitation between the parties since 1982.

22. Learned Counsel appearing for the respondent, submits that merely because the allegations made by the respondent have not been substantiated by her, would not furnish a cause to the appellant for grant of relief as prayed for. He places reliance on two judgments of the Andhara Pradesh High Court in Naval Kishore Somani v. Poonam Somani AIR 1999 A.P. 1 and Smt. Hema. Reddy v. Rakesh Reddy . In the present case, not only all the allegations are unsubstantiated, but the appellant has proved these allegations to be false to the very knowledge of the respondent. His “Bhabhi’ (PW-6) has appeared in the witness box and has been subjected to searching cross-examination. Her plight can be well imagined. Having brought up the appellant like her brother, she had to face the ordeal of appearing in Court and to protect her character from the onslaught of the respondent. Lastly, the judgment in V. Bhagrat v. Mrs. D. Bhagat , may be considered.

In this case, the Hon’ble Supreme Court held:

| 7. A good part of the life of both the parties
| has been spent in rancour and litigation. De hors
| the allegations of adultery originally made in
| the petition for divorce, the petitioner is
| entitled to divorce on the basis of the
| additional ground put in by way of amendment
| viz., cruelty – mental cruelty by wife. The
| averments made in her counter and the questions
| put by her Counsel in the cross-examination of
| the petitioner do constitute clear acts of
| cruelty. In view of the said averments/questions,
| no further material is necessary to establish the
| said additional ground
|
| 9. It is said that marriages are made in Heaven,
| that may be so, but this one has turned into a
| Hell for sure. The allegations and the counter-
| allegations are indicative of the intense hatred
| and rancour between the parties. Any
| reconciliation is out of question. There can be
| no better way for describing the relationship
| between the parties than by referring to this
| judgment.

23. This appeal is accordingly allowed. The judgment of the learned District Judge is quashed and set aside. The marriage of the parties is dissolved by a decree of divorce. Liberty is reserved to the respondent to move for grant of maintenance in accordance with law.