Daily Archives: August 13, 2015

MA LLB wife files 498a & aleges husbnd has ilicit relaton wid OWN sister. Cruelty decreed . MP HC

MA LLB Qualified wife files 498a etc case and also alleges that her husband had illicit relationship with his own sister. Husband says that the case is false and is fabricated to outst the mother in law & sister in law and to usurp property. Husband examines (cross examines) himself and sister and disproves allegations. Lower court decrees divorce in favour of husband. Wife appeals to HC, fights cases party in person. HC appreciates the matter on record, discusses what is mental cruelty at length and confirms the lower court decree on grounds of cruelty

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Excerpts :

“….33. It may be observed here that in matrimonial life, the possibility of such situation that the sister living in parents’ house after her marriage is not an unusual situation. It quite often happen if her relationship with her husband is not very good and she did not feel comfortable then only option for her to live with her parents. Even if such living by the married daughter is for a long period, this cannot be a reason for the sister-in-law to create a situation where relationship between the parties comes to such a situation that they are unable to live together which appears to be a situation created by the appellant and has given reason for filing of this divorce petition. She went to the extent of making allegation against the sister of the husband calling her a person of shady character…..”

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F.A.159/2013

HIGH COURT OF JUDICATURE AT JABALPUR BENCH GWALIOR.
(DB : JUSTICE M.C. GARG & JUSTICE SHEEL NAGU, JJ.)

Mamta Bhardwaj
  vs.
Madhusudan Bhardwaj

Appellant is present in person.
Shri Sarvesh Sharma, Advocate for the respondent.
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JUDGMENT

(Delivered on 16 th of January, 2015)

PER M.C.GARG, J.

1. This order shall dispose of this first appeal preferred  by the appellant-Mamta Bhardwaj (wife) against her husband-Madhusudan Bhardwaj   assailing   the   order   passed   by   the   Family   Court   under Section 19(1) of the Family Court Act whereby, the Principal Judge of   the   Family   Court,   Gwalior   in   Case   No.117A/07   under   Hindu Marriage   Act   filed   by   the   respondent- Madhusudan  Bhardwaj (hereinafter referred to as the “husband”), seeking dissolution of his marriage   with   the   appellant   decreed   the   same   in   favour   of   the respondent-husband  and  passed   a   decree   dated   28 th June  2013 dissolving the marriage between the parties  by means of a decree of divorce.

2. According to the appellant, the judgment of the lower Court is not sustainable for the reasons that the appellant has failed to prove allegations on merit. His witnesses  have not supported his case. There  are   number  of   contradictions   in  their  statement.   The  main allegation  made against his sister having illicit relationship with the respondent has also not been proved. It is further submitted, that it has been brought on record by the appellant in her evidence that it was the respondent and his family members who were treating the appellant with cruelty and in fact the case under Section 498-A of IPC was also registered against him because there was substance in   the   allegations   made   against   the   respondent   and   his   family members. It is further submitted that even the order of maintenance passed under Section 125 of Cr.P.C. has not been complied with.

3. According   to   her   the   main   controversy   arose   between   the parties   only   because   she   could   not   give   birth   to   a   child.   It   is however the matter on record that the first petition for divorce was filed by the respondent against the appellant just after six months of the   marriage,   of   course   it   was   dismissed   as   pre-mature.   The allegations of the respondent have been taken note of by the lower Court in the impugned judgment in para 2 as follows:-

2. विवाह के बाद अनावेदिका आवेदक के निवास स्थान 3-सरस्वती नगर में
दाम्पत्य संबंधों का निर्वहन करने हेतु आई थी तथा आवेदक एवं अनावेदिका के दाम्पत्य
संबंधों से कोई संतान उत्पन्न नहीं हुई है। आवेदक के परिवार में आवेदक के अतिरिक्त
उसकी बहिन एवं उसके दो बच्चे तथा मां निवास करती हैं। अनावेदिका द्वारा शादी के
पश्चात से ही आवेदक पर यह दबाब डाला जा रहा है कि आवेदक अपनी मां एवं बहिन
को उक्त भवन से हटाकर किराये के मकान में भेज दे तथा उक्त मकान अनावेदिका के
हित में संपादित करा दे। आवेदक द्वारा अनावेदिका को समझाये जाने पर अनावेदिका द्वारा
आवेदक एवं उसकी मां बहिन के साथ क्रूरता पूर्ण व्यवहार कर मारपीट, गाली गलौज, कर
मानसिक क्लेश की स्थिति निर्मित कर देती थी। आवेदक द्वारा अनावेदिका को समझाईश
देने का कोई असर नहीं हुआ और उसके द्वारा प्रारंभ से ही भाई-बहिन के रिश्ते को
शंकास्पद नजरों से देखा जाता है। अनावेदिका द्वारा आवेदक को कुत्ता कमीना, नीच
खानदान का कहकर अपमानित किया जाता रहा। तथा मां बहिन को भी कुतिया
हरामजादी जैसी गंदी गंदी गालियां दी जाती है। दिनांक 19.12.2006 को को शाम को 7
बजे अनावेदिका एवं उसके परिवार के सदस्य आवेदक के घर आए और आवेदक की
मां एवं बहिन से कोरे कागजों पर हस्ताक्षर करने हेतु कहा और कहा कि वे मकान
अनावेदिका के नाम कर दें। मना करने पर उन लोगों ने गाली गलौच किया तथा
अनावेदिका ने आवेदक से उसकी बहिन के साथ अवैध संबंध होने वाली बात घर के बाहर
निकलकर चिल्ला-चिल्लाकर कही जिसके कारण आवेदक के आसपास के पड़ौसी आवेदक
एवं उसकी बहिन को शंकास्पद नजरों से देखते हैं। अनावेदिका ने आवेदक के चेहरे पर
नाखूनों से वार किया जिससे आवेदक के चेहरे पर चोटे आई। उक्त दिनांक को ही
अनावेदिका एवं उसके परिवार वाले अनावेदिका का सामान मय जेवरात जो आवेदक की
ओर से शादी के समय चढ़ाया गया था अपने साथ लेकर चली गई। तत्पश्चात दिनांक
27.12.2006 को भी सुबह 10 बजे अनावेदिका एवं उसके परिवार के लोग आवेदक के घर
आये और धमकी दी कि यदि सात दिन में मकान अनावेदिका के नाम नहीं किया तो पूरे
परिवार को पुलिस कार्यवाही में जेल में सड़वा देंगें और मकान पर कब्जा कर लेंगें। इसकी
शिकायत आवेदक द्वारा पुलिस थाना विश्वविद्यालय एवं पुलिस अधीक्षक ग्वालियर को
लिखित में की। इसके बाद आवेदक द्वारा अपने अधिवक्ता के माध्यम से एक रजिस्टर्ड
सूचना पत्र अनावेदिका को भेजा। अनावेदिका द्वारा उक्त नोटिस का जबाब दिनांक
15.02.2007 को प्रेषित कर आवेदक एवं उसकी बहिन पर चारित्रिक आरोप लगाये गये हैं
जिससे आवेदक को काफी मानसिक पीड़ा पहुंची ह

4. There is no dispute that the parties were married to each other in accordance with the provision of the Hindu Marriage Act.

5. In the written statement cum counter claim the appellant also claimed the decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act. It was her case that just after one month of her marriage the respondent and his family had started raising demand of dowry. He treated the appellant with cruelty on account of demand of Rs.5 Lacs and a Car. In fact on 10.10.2006 the day of Karvachauth, the respondent and his mother and sister beat the appellant. They were not even giving food to her and keep the food articles under lock and similar treatment was given to her by his mother and sister because of which her backbone was fractured. In this regard she got herself treated on 28.12.2006. It is submitted that her relatives have been trying to persuade the respondent to take the appellant back but he always wanted his demands of dowry to be met as a precondition for the respondent in joining his company. It is submitted that the appellant even made a complaint in this regard at Mahila Thana in March 2007 and on account of that a case under Section 498-A of IPC and under Section 3 and 4 of the Dowry Prohibition Act was also registered. She also filed a case under Section 125 of Cr.P.C. wherein, the respondent refused to grant maintenance to her.  http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. The lower Court has also noticed the facts of the case of the appellant in para 4 of the judgment as follows:-

04. अनावेदिका द्वारा जवाब दावा प्रस्तुत कर स्वीकृत तथ्यों के अलावा आवेदक के अन्य समस्त
अभिवचनों को अस्वीकार किया गया है एवं प्रतिदावा धारा 9 हिन्दू विवाह अधिनियम के अन्तर्गत
प्रस्तुत कर यह अभिवचन किया गया है कि अनावेदिका के विवाह में तीन लाख रूपये नगद
और घर गृहस्थी का संपूर्ण सामान दिया गया था। किन्तु विवाह के एक माह बाद से ही
आवेदक ने अनावेदिका के परिवार से दहेज की मांग प्रारंभ कर दी और उसके द्वारा पांच
लाख रूपये नगर और कार की मांग पूरी नहीं किये जाने के कारण दिनांक 10.10.2006 को
करवाचैथ के दिन अनावेदिका की आवेदक, उसकी मां एवं बहिन मीनाक्षी चैबे ने निमर्म पिटाई
की थी। आवेदक एवं उसके परिवार वाले अनावेदिका को खाने को नहीं देते थे। खाने पीने का
सामान ताले में बंद रखते थे। दिनांक 19.12.2006 को आवेदक उसकी मां तथा बहिन ने
अनावेदिका की उसके पिता एवं भाई के समक्ष लात-घूसों से मारपीट की और धक्के देकर घर
से बाहर निकाल दिया जिससे अनावेदिका की रीड़ की हड्डी में चोट आई थी जिसका परीक्षण
दिनांक 20.12.2006 को कराया गया। अनावेदिका के रिश्तेदारों ने आवेदक को काफी समझाने
का प्रयास किया लेकिन आवेदक अपनी जिद पर अड़ा रहा कि पांच लाख रूपये और एल्टो दो
तो ममता को ले जायेगा नहीं तो तलाक दे देगा। इसके बाद अनावेदिका द्वारा फोन से संपर्क
करने पर आवेदक ने अनावेदिका को अपने साथ रखने से मना कर दिया। विवश होकर
अनावेदिका ने माच 2007 में महिला थाने पर आवेदन पत्र प्रस्तुत किया जहां पर आवेदक ने
अनावेदिका को अपने साथ ले जाने से स्पष्ट रूप से मना कर दिया तथा आवेदक के विरूद्ध
धारा 498 ए भा.द.वि. तथा धारा 3 व 4 दहेज प्रतिशेध अधिनियम के तहत मामला पंजीबद्ध
किया गया।
अनावेदिका ने आवेदक के विरूद्ध धारा 125 दण्ड प्रक्रिया संहिता के अंतर्गत
भरण पोषण हेतु आवेदन पत्र प्रस्तुत किया गया जिसमें दिनांक 30.09.2008 को यह
अभिनिर्धारित गया कि आवेदक ने अनावेदिका के भरण पोषण में उपेक्षा व इंकार किया
है। धारा 498 ए भा.द.वि. के प्रकरण में जमानत पर छूटने पर आवेदक एवं उसकी माता
तथा बहिन मीनाक्षी ने दिनांक 26.04.2007 को अनावेदिका को गाली गलौच कर धक्के
मारकर घर से बाहर निकाल दिया, इसकी 000 शिकायत पुलिस थाना विश्वविद्यालय में
की गई। तत्पश्चात अनावेदिका द्वारा अपनी ससुराल जाने का प्रयास किया किन्तु
आवेदक ने अपने घर में घुसने नहीं दिया। आवेदक अनावेदिका का दहेज के लालच
में परित्याग कर दूसरा विवाह करना चाहता है जबकि अनावेदिका उसके साथ रहकर
दाम्पत्य संबंधों का निर्वाह करना चाहती है। अतः आवेदक की ओर से विवाह विच्छेद
हेतु प्रस्तुत याचिका निरस्त करते हुए अनावेदिका के पक्ष में दाम्पत्य अधिकारों के
पुर्नस्थापन की आज्ञप्ति पारित की जावे।’’

7. On the pleadings of the parties, the trial Court framed the following issues:-

वाद-प्रश्न                                                                            निष्कर्ष

1. क्या अनावेदिका ने आवेदक के साथ क्रूरता पूर्ण व्यवहार कर उसे दाम्पत्य सुख से वंचित किया है?   : हां

2. क्या स्वयं आवेदक द्वारा अनावेदिका के साथ क्रूरतापूर्ण व्यवहार कर उसका परित्याग किया है?    : सिद्ध नहीं

3. क्या आवेदक अनावेदिका के विरूद्ध विवाहविच्छेद का जय पत्र प्राप्त करने का अधिकारी है?        : हां

4. क्या अनावेदिका आवेदक के विरूद्ध दाम्पत्य संबंधों की पुर्नस्थापना की आज्ञप्ति प्राप्त करने  की अधिकारिणी है?   : सिद्ध नहीं

8. To prove his case the respondent examined himself, his sister Menakshi Choubey (PW/2) and his friend Shailendra who appeared as PW/3. He also brought on record Ex-P/1 to Ex-P/33 and relied upon the contents of those documents in support of his case. On the other hand the appellant examined only herself besides relying upon the document Ex-D/1 to Ex-D/49.

9. Some undisputed facts which have been taken into notice by the lower Court reproduced in para 10 reads as under:-

’’10. प्रकरण में यह तथ्य तो निर्विवादित रूप से प्रकट हुआ है कि आवेदक का
विवाह अनावेदिका के साथ दिनांक 02.06.2006 को संपन्न हुआ था और उन्हें कोई
संतान उत्पन्न नहीं हुई है और विवाह के समय आवेदक मकान नंबर-3 सरस्वती नगर
ठाटीपुर मुरार में जो कि उसके पिता ने स्वअर्जित संपत्ति से निर्माण कराया था, में
निवास कर रहा है और आवेदक के अनुसार उसके पिता की मृत्यु के बाद उसकी मां
के नाम नामान्तरण हुआ। आवेदक के परिवार में आवेदक के अतिरिक्त उसकी मां,
बहिन औ उसके दो बच्चे निवास करते हैं चूंकि प्रार्थी की बहिन की आर्थिक स्थिति
अच्छी न होने एवं पारिवारिक मतभेद होने के कारण, प्रार्थी की बहिन उस मकान
के एक भाग मे सिलाई-कढ़ाई का कार्य करके अपना एवं अपने बच्चों का भरण-पोषण
कर रही है।’’

10. It may be observed here that the appellant has not engaged any counsel and has argued herself. She has also filed written arguments. She is M.A. LL.B. and offer of this Court to engage a counsel through legal Aid was declined. Efforts for mediation between the parties were also not successful. It shows that the appellant is an educated lady and is fully aware of her obligations in law.

11. Basic allegations of the respondent was that the appellant and her family members had been pressurizing the respondent to send the mother and sister-Menakshi from the matrimonial house to some other property by taking it on rent and transfer the property in which the parties had been residing in the name of the appellant. To pressurize the respondent to meet her aforesaid demand she had been treating the respondent his mother and his sister with cruelty. She had even abusing the respondent by using word “dqRrk] dehuk] uhp [kkunku dk“. Specific allegations have also been made by the respondent in support of his case by narrating incident of 19.12.06 by alleging that on that day at about 7.00 PM, the appellant, her brother and sister came to his house and treated the respondent and his family members with cruelty in presence of his friend Shailendra who appeared as PW/3. About that incident, it was alleged that on that day the family members of the appellant and appellant herself wanted the respondent to execute papers for transfer of matrimonial house in her name and on his refusal she abused the respondent and his sister. She even made allegations that the respondent was having illicit relationship with his sister. Incident of 27.12.2006 is also referred to on which day threats were given to the respondent that if the house was not mutated within seven days in the name of the appellant, a false complaint will be lodged against the respondent and his family members. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. On the other hand, according to the appellant in Ex-P/3 report lodged by the respondent dated 27.12.06 there was no mention about the allegations of illicit relationship between the respondent and his sister and this fact has been admitted by him in para 19 of cross-examination. Similarly in Ex-P/5 notice sent by the respondent through his advocate, again there is no mention about any allegation having made by the appellant about illicit relationship between the respondent and his sister.

13. Allegations have been scrutinized by the lower Court in the light of the statement made by the parties as also in their cross-examination and the contents of documents Ex.P/3 and Ex.P-5 in paragraph 13 and 14 of the judgment as under:-

’’13. अनावेदिका की ओर से किये गये उक्त तर्क के परिप्रेक्ष्य में हम प्रदर्श पी-3 का
अवलोकन करें तो उक्त रिपोर्ट पुलिस थाना विश्वविद्यालय में दिनांक 27.12.2006 को की गई है।
उक्त प्रदर्श पी-3 में आवेदक ने यह स्पष्ट रूप से उल्लेख किया है कि दिनांक 19.12.06 को
अनावेदिका एवं उसके परिवार वाले उसके घर आये थे उस समय मेरी बहिन और मित्र शैलेंद्र भी
घर पर थे ये सभी लोग कोरे कागजों पर मुझसे मेरी मां तथा बहिन से हस्ताक्षर करने की कहने
लगे तथा कहा कि मकान ममता के नाम करना पड़ेगा, हम लोगों ने हस्ताक्षर नहीं किये तो इन
सबने लात-घूसों से मारपीट की, ममता ने उसके चेहरे पर नाखूनों से वार किया जिससे खून
निकल आया। मैने अपनी इलाज सहारा अस्पताल में कराया। उक्त रिपोर्ट में यह भी उल्लेख
किया गया है कि परिवार की इज्जत के खातिर रिपोर्ट भी नहीं की थी। फिर दिनांक 27.12.06
को सुबह 10.00 बजे ये सभी लोग मेरे घर आये इन लोगों ने कहा कि ममता के नाम मकान
करने के बारे में क्या सोचा यदि सात दिन में ममता के नाम मकान नहीं किया तो पूरे परिवार को
झूठी पुलिस कार्यवाही कर जेल में सड़वा देंगें। तब दिनांक 27.12.2006 को यह रिपोर्ट की गई
है।

14. आवेदक ने अपने अधिवक्ता के माध्यम से दिनांक 29.12.2006 को प्रदर्श पी-5 का
रजिस्टर्ड सूचना पत्र अनावेदिका को भेजा, नोटिस की रसीद प्रदर्श पी-6, यू पी सी की रसीद
प्रदर्श पी-7 तथा अभिस्वीकृति पत्र प्रदर्श पी-8 आवेदक की ओर से प्रस्तुत की गई है। प्रदर्श
पी-8 के अवलोकन से यह स्पष्ट है कि उक्त नोटिस अनावेदिका को दिनांक 30.12.2006 को
प्राप्त हो गया था और अनावेदिका की ओर से उक्त नोटिस का जवाब नोटिस प्राप्ति के एक माह
पश्चात दिनांक 29.01.2007 दिया गया है।’’

14. Reply given to Ex-P/5 by the appellant vide Ex-P/11 reflects upon her intention and give tacit support to her allegations about illicit relationship of respondent with his sister. The contents of the reply have been taken note by the lower Court in para 15 of the judgment which is reproduced here as under:-

15. यहां पर हम इस तथ्य को दृष्टिगत रखेंगें कि अनावेदिका द्वारा आवेदक के द्वारा
दिये गये सूचना पत्र का जो जवाब प्रदर्श प्रदर्श पी-11 दिया गया है, जिसके पद क्रमांक-2 में
अनावेदिका द्वारा यह प्रश्न चिन्ह लगाया गया है कि मीनाक्षी चैबे अपने नवयुवक पुत्र एवं
अविवाहित पुत्री सहित इस भवन में कब तक, निवास करेगी ? यह अज्ञात है। वास्तव में
मीनाक्षी चैबे को विवाह के पश्चात दोनों बच्चों सहित पतिग्रह ग्राम परसोरिया जिला सागर
स्थित अपनी ससुराल में निवास करना चाहिए। इसी पैरा में आगे यहां तक अनावेदिका ने
लिखा है कि नोटिसी को विदित हुआ है कि आपने पक्षकार की बहिन श्रीमती मीनाक्षी चैबे
पति अनिल चैबे निवासी ग्राम परसोरिया सागर में अपने पति अनिल चैबे का अकारण ही
त्यजन कर रखा है। आपके पक्षकार की बहिन श्रीमती मीनाक्षी चैबे को दूसरों के सुखी
वैवाहिक जीवन से डाह, कुढ़न, चिड़चिड़ाहट एवं वैमनस्यता होती है और इसी कारण वे
नोटिस के साथ बढ़-चढ़कर मारपीट करती है एवं भाई एवं मां के माध्यम से अवैध दहेज की
मांग को उकसाती है। वे संदिग्ध चरित्र की मर्यादाहीन महिला रही हैं। बहिन के नाम पर
कलंक श्रीमती मीनाक्षी चैबे पता नहीं किया लालच एवं मजबूरी वश भाई के साथ ही अवैध एवं
कलंकित जीवनयापन को भी तैयार है।’’

15. From the aforesaid the lower Court has taken a view that the appellant was making false allegations against the sister of the respondent and was alleging that she was a person of shady character and in fact wanted to oust her from matrimonial home. In this regard the trial Court has even noted cross-examination of the respondent in para 30 of the judgment which is reproduced in para 18:-*

’’18. इस संबंध में आवेदक का कथन के प्रति परीक्षण का पद क्रमांक-30
अवलोकनीय है, जिसमें उसने यह कहा है कि मीनाक्षी चैबे, सरस्वती नगर में वर्ष 2000
से रह रही है। यह भी स्वीकार किया है कि मीनाक्षी चैबे मेरे पिता की मृत्यु के पश्चात
से 3 सरस्वती नगर में रह रही है, मेरी बहिन की शादी हो चुकी है। मेरी बहिन मीनाक्षी
चोब्े की शादी सागर में हुई है। यह भी स्वीकार किया है कि मेरी बहिन सिलाई-कढ़ाई
का काम करती है, बुटिक का काम नहीं करती। यह भी स्वीकार किया कि मेरी बहिन
मीनाक्षी का उसके पति से कोई तलाक नहीं हुआ है, मैं मीनाक्षी चैबे को सागर से स्वयं
लिवाकर लाया है, उस समय वह अस्वथ्य थी। उसके कुछ चोटें थीं गंभीर प्रोब्लम थी
मेरी बहिन के पति सागर में ही रहते हैं। यह भी स्वीकार किया है कि मैने इस संबंध में
थाने में अपने बहनोई के विरूद्ध कोइ रिपोर्ट नहीं की थी। यह भी स्वीकार किया है कि
पुलिस थाने या न्यायालय में कार्यवाही करने से बहिन बेटी एवं परिवार की बदनामी होती
है व इज्जत खराब होती है। इसी कारण से मैने किसी पुलिस थाने या न्यायालय में
कार्यवाही नहीं की। मेरी बहिन व मेरे पिता के बीच अच्छे संबंध थे, कोई मनमुटाव नहीं
था। प्रदर्श डी-2 का पत्र वही है जो मेरे पिता ने खुदकुशी करने के पूर्व परिवार वालों
को लिखा था। मेरे पिता ने उस पत्र में लिखा था कि मेरी बहिन सागर में ही रहे
ग्वालियर आकर रहने का मन न बनाये। स्वतः कहा कि मीनाक्षी के साथ उसके बाद
उसकी ससुराल सागर में मारपीट हुई थी।

16. The aforesaid explanation given by the respondent about not mentioning the allegations of the appellant against his sister are justifiable and would not contradict his allegations against his sister which were made by the appellant.

17. Para 22 of the judgment is also relevant which deals about the allegations of illicit relationship between the respondent and her sister. Para 22 reads as under:-

22. इस प्रकार अनावेदिका ने अपने पति और उसकी बहिन के अवैध संबंध होने का और
कलंकित जीवनयापन करने का जो आक्षेप अपने जवाबदावे में लगाया है, यह आक्षेप एक ऐसा
आक्षेप है, जो किसी भी भाई के लिये अत्ययधिक मानसिक पीड़ा पहुंचाने वाला है और
अनावेदिका का उक्त कृत्य आवेदक के प्रति मानसिक क्रूरता की श्रेणी में आता है। मानसिक
क्रूरता को अधिनियम में कहीं पर भी परिभाषित नहीं किया गया है लेकिन एक भाई एवं बहिन
के मध्य इतना पवित्र रिश्ता होता है। यदि बहिन किसी परेशानीवश अपने मायके में निवासकर
रही हो और उसकी भाभी ही उसका सहयोग करने बजाय, उस पर इस प्रकार के लांछन
लगाये तो कोई भी भाई यह कतई बर्दाश्त नहीं कर सकता, जबकि आवेदक की बहिन स्वयं
सिलाई-कढ़ाई का काम करके अपने एवं अपने बच्चों का भरण-पोषण कर रही हो। इन
परिस्थितियों में अनावेदिका का अपने पति से यह कहना कि वह अपनी मां और बहिन को घर
से बाहर निकाल दे, यह बहुत ही मानसिक पीड़ादायक स्थिति है।

18. In the light of the aforesaid conclusion drawn by the lower Court, it was held that the conduct of the appellant was such, which caused mental cruelty upon the respondent of such kind which made it impossible for respondent to stay with appellant as her husband. The lower Court was satisfied in coming to the conclusion that besides the allegation made by the respondent against the appellant about specific acts of cruelty, her allegations against the sister of the respondent and suggestive averments in her reply to the notice given by the respondent to the appellant were the acts of mental cruelty. Paragraph 15 and 16 of the judgment in this regard is clear which are reproduced hereunder:-

’’15. यहां पर हम इस तथ्य को दृष्टिगत रखेंगें कि अनावेदिका द्वारा आवेदक के द्वारा
दिये गये सूचना पत्र का जो जवाब प्रदर्श प्रदर्श पी-11 दिया गया है, जिसके पद क्रमांक-2 में
अनावेदिका द्वारा यह प्रश्न चिन्ह लगाया गया है कि मीनाक्षी चैबे अपने नवयुवक पुत्र एवं
अविवाहित पुत्री सहित इस भवन में कब तक, निवास करेगी ? यह अज्ञात है। वास्तव में
मीनाक्षी चैबे को विवाह के पश्चात दोनों बच्चों सहित पतिग्रह ग्राम परसोरिया जिला सागर
स्थित अपनी ससुराल में निवास करना चाहिए। इसी पैरा में आगे यहां तक अनावेदिका ने
लिखा है कि नोटिसी को विदित हुआ है कि आपने पक्षकार की बहिन श्रीमती मीनाक्षी चैबे
पति अनिल चैबे निवासी ग्राम परसोरिया सागर में अपने पति अनिल चैबे का अकारण ही
त्यजन कर रखा है। आपके पक्षकार की बहिन श्रीमती मीनाक्षी चैबे को दूसरों के सुखी
वैवाहिक जीवन से डाह, कुढ़न, चिड़चिड़ाहट एवं वैमनस्यता होती है और इसी कारण वे
नोटिस के साथ बढ़-चढ़कर मारपीट करती है एवं भाई एवं मां के माध्यम से अवैध दहेज की
मांग को उकसाती है। वे संदिग्ध चरित्र की मर्यादाहीन महिला रही हैं। बहिन के नाम पर
कलंक श्रीमती मीनाक्षी चैबे पता नहीं किया लालच एवं मजबूरी वश भाई के साथ ही अवैध एवं
कलंकित जीवनयापन को भी तैयार है।’’

16. अनावेदिका के उक्त जवाब से ही यह स्पष्ट है कि जो महिला
अपने पति की बहिन के संब ंध में ऐसे शब्दों का उच्चारण मात्र इस आधार पर
कर रही है कि वह अपने मायके में निवास कर रही है तो इससे उसकी
मानसिकता दर्शित होती है कि वह अपने पति की बहिन के संब ंध में कहां तक
अपशब्दों का प्रयोग कर सकती है। इससे यह दृष्टिगोचर होता है कि जो महिला
अपने जवाब में अपने पति की बहिन के संब ंध में यह कह रही हो कि वह किस
लालच में और किस मजब ूरीवश अपने भाई के साथ ही अवैध एव ं कलंकित
जीवनयापन को भी तैयार है, इससे आवेदक द्वारा अपने दावे में किये गय े
अभिवचन कि अनावेदिका उसकी बहिन के उसके अवैध संब ंध होने का आक्षेप
लगाती है, वह पूर्ण रूप से अनावेदिका के ही आचरण से दर्शित होता है।’’

19. I have gone through the judgment of the lower Court and also gone into the written statement filed on behalf of the appellant. Section 13 of the Hindu Marriage Act reads as under:-

13. Divorce. (1) Any marriage solemnised, 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) x x x

[(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

[(ib) to (vii) x x x

Explanation .- x x x

20. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. To constitute cruelty the conduct complained should be ‘grave and weighty’ so as to make cohabitation virtually unendurable. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

21. In the celebrated book of D. Tolstoy “The Law and Practice of Divorce and Matrimonial Causes” (Sixth Edition, p. 61) defined cruelty in these words:

“Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such a character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.”

22. The Shorter Oxford Dictionary defines “cruelty” as “the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness”.

23. The term “mental cruelty” has been defined in Black’s Law Dictionary [8th Edition, 2004] as under:

Mental Cruelty – As a ground for divorce, one spouse’s
course of conduct (not involving actual violence) that creates
such anguish that it endangers the life, physical health, or
mental health of the other spouse.”

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

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

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

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

26. In Dr. N.G. Dastane v. S. Dastane, (supra), the Apex Court has observed as under;

“…whether the conduct charged as cruelty is of such a
character as to cause in the mind of the petitioner a
reasonable apprehension that it will be harmful or injurious
for him to live with the Respondent”.

27. In the case of Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, the Apex Court has observed as under;

“Section 13(1)(ia) uses the word “treated the
petitioner with cruelty”. The word “cruelty” has not
been defined. Indeed it could not have been
defined. It has been used in relation to human
conduct or human behavior. It is the conduct in
relation to or in respect of matrimonial duties and
obligations. It is a course of conduct of one which is
adversely affecting the other. The cruelty may be
mental or physical, intentional or unintentional. If it is
physical the Court will have no problem to determine
it. It is a question of fact and degree. If it is mental
the problem presents difficulty. First, the enquiry
must begin as to the nature of the cruel treatment.
Second, the impact of such treatment in the mind of
the spouse. Whether it caused reasonable
apprehension that it would be harmful or injurious to
live with the other. Ultimately, it is a matter of
inference to be drawn by taking into account the
nature of the conduct and its effect on the
complaining spouse. There may, however, be cases
where the conduct complained of itself is bad
enough and per se unlawful or illegal. Then the
impact or the injurious effect on the other spouse
need not be enquired into or considered. In such
cases, the cruelty will be established if the conduct
itself is proved or admitted.”

The Court further observed;

“The context and the set up in which the word
“cruelty” has been used in the Section seems to us,
that intention is not a necessary element in cruelty.
That the word has to be understood in the ordinary
sense of the term in matrimonial affairs. If the
intention to harm, harass or hurt could be inferred
by the nature of the conduct or brutal act
complained of, cruelty could be easily established.
But the absence of intention should not make any
difference in the case, if by ordinary sense in
human affairs, that act complained of could
otherwise be regarded as cruelty. The relief to the
party cannot be denied on the ground that there
has been no deliberate or wilful ill-treatment.”

28. In the case of V. Bhagat v. D. Bhagat, (Supra), the Apex Court has observed as under:

“Mental cruelty in Section 13 (1)(ia) can broadly be
defined as that conduct which inflicts upon the other
party such mental pain and suffering as would make it
not possible for that party to live with the other. In other
words, mental cruelty must be of such a nature that the
parties cannot reasonably be expected to live together.
The situation must be such that the wronged party
cannot reasonably be asked to put up with such conduct
and continue to live with the other party. It is not
necessary to prove that the mental cruelty is such as to
cause injury to the health of the petitioner. While arriving
at such conclusion, regard must be had to the social
status, educational level of the parties, the society they
move in, the possibility or otherwise of the parties ever
living together in case they are already living apart and
all other relevant facts and circumstances which it is
neither possible nor desirable to set out exhaustively.
What is cruelty in one case may not amount to cruelty in
another case. It is a matter to be determined in each
case having regard to the facts and circumstances of
that case. If it is a case of accusations and allegations,
regard must also be had to the context in which they
were made.”

29. Again in Savitri Pandey v. Prem Chandra Pandey, AIR 2002 SC 591, the Apex Court has observed as under;

“Mental cruelty is the conduct of other spouse which
causes mental suffering or fear to the matrimonial life of
the other. “Cruelty”, therefore, postulates a treatment of
the petitioner with such cruelty as to cause a reasonable
apprehension in his or her mind that it would be harmful or
injurious for the petitioner to live with the other party.
Cruelty, however, has to be distinguished from the
ordinary wear and tear of family life. It cannot be decided
on the basis of the sensitivity of the petitioner and has to
be adjudged on the basis of the course of conduct which
would, in general, be dangerous for a spouse to live with
the other.”

30. In Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582, the Apex Court has laid down as to what constitute cruelty;

“Cruelty for the purpose of Section13(1)(ia) is to be taken
as a behavior by one spouse towards the other, which
causes reasonable apprehension in the mind of the latter
that it is not safe for him or her to continue the
matrimonial relationship with the other. Mental cruelty is a
state of mind and feeling with one of the spouses due to
the behavior or behavioral pattern by the other. Unlike the
case of physical cruelty the mental cruelty is difficult to
establish by direct evidence. It is necessarily a matter of
inference to be drawn from the facts and circumstances
of the case. A feeling of anguish, disappointment and
frustration in one spouse caused by the conduct of the
other can only be appreciated on assessing the attending
facts and circumstances in which the two partners of
matrimonial life have been living. The inference has to be
drawn from the attending facts and circumstances taken
cumulatively. In case of mental cruelty it will not be a
correct approach to take an instance of misbehavior in
isolation and then pose the question whether such
behavior is sufficient by itself to cause mental cruelty. The
approach should be to take the cumulative effect of the
facts and circumstances emerging from the evidence on
record and then draw a fair inference whether the
petitioner in the divorce petition has been subjected to
mental cruelty due to conduct of the other.”

31. The Apex Court in Vinita Saxena v. Pankaj Pandit, AIR 2006 SC 1662, has observed as under;

“As to what constitute the required mental cruelty for
purposes of the said provision, will not depend upon the
numerical count of such incidents or only on the
continuous course of such conduct but really go by the
intensity, gravity and stigmatic impact of it when meted
out even once and the deleterious effect of it on the
mental attitude, necessary for maintaining a conducive
matrimonial home.

If the taunts, complaints and reproaches are of ordinary
nature only, the court perhaps need consider the further
question as to whether their continuance or persistence
over a period of time render, what normally would,
otherwise, not be so serious an act to be so injurious and
painful as to make the spouse charged with them
genuinely and reasonably conclude that the maintenance
of matrimonial home is not possible any longer.”

32. Human mind is extremely complex and human behavior is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behavior in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any 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 in consideration. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

33. It may be observed here that in matrimonial life, the possibility of such situation that the sister living in parents’ house after her marriage is not an unusual situation. It quite often happen if her relationship with her husband is not very good and she did not feel comfortable then only option for her to live with her parents. Even if such living by the married daughter is for a long period, this cannot be a reason for the sister-in-law to create a situation where relationship between the parties comes to such a situation that they are unable to live together which appears to be a situation created by the appellant and has given reason for filing of this divorce petition. She went to the extent of making allegation against the sister of the husband calling her a person of shady character.

34. Reference can also be made to the judgment delivered in the case of Nemai Kumar Ghosh vs. Smt. Mita Ghosh reported in AIR 1986 Calcutta 150. Para 8 of the aforesaid judgment is relevant which is reproduced here as under:-

“On a conspectus of all these decisions cited
hereinbefore, it is now well settled that if any imputations
against the character of any spouse is alleged either by
the wife or by the husband without any foundation and
the same is based on mere suspicion, even in such
cases such baseless allegations of illicit relationship
amount to mental cruelty and it will be a valid ground for
passing a decree of divorce under the provisions of
S.13(ia) of the Hindu Marriage Act. We have already held
hereinbefore on a consideration of the evidence on
record that the respondent wife, since after her marriage
with the appellant, became suspicious about his
character and used to doubt that the appellant was in
illicit connection with his own sister-in-law (elder brother’s
wife). This has caused serious mental pain and agony to
the appellant inasmuch as it has been stated by the
appellant and also pleaded in his petition that he held his
sister-in-law in high esteem like his mother and it was
under her care and affection that he was brought up and
it was she and his elder brother who arranged his
marriage with the respondent. In such circumstances, we
are constrained to hold, considering the social status of
the appellant who is now working as an officer, i.e.
Branch Manager of the United Commercial Bank, that
this behaviour on the part of the respondent amounted to
mental cruelty and it gives sufficient reasons for the
appellant to think that it would not be safe for him to live
with the respondent. Furthermore, it appears that the
respondent after their separation since Sept. 1977, not
only has no mind to patch up the differences and to
return to the matrimonial home for the simple reason that
she has not come up before this Court to contest the
appeal even though this Court directed the appellant to
serve notice of the appeal by registered post and file
affidavit-of-service. Affidavit-of-service has been filed by
the appellant stating that the Court’s order has been
complied with. But in spite of such service of notice, the
respondent did not think it fit to contest the appeal. This
bespeaks the mind of the respondent that she is not
willing to go back to the matrimonial home even if this
action becomes unsuccessful. In these circumstances,
we are constrained to hold that this is a fit case where for
ends of justice the application for divorce should be
allowed. We are fortified by our above findings with the
most pertinent observations of the Supreme Court made
in the case of Sm. Saroj Rani v. Sudarshan Kumar
Chadha, (1984) 4 SCC 90 at p. 98 : (AIR 1984 SC 1562
at p. 1566), paragraph 9 where their Lordships have
held,

“Furthermore we reach this conclusion without any
mental compunction because it is evident that for
whatever be the reasons this marriage has broken down
and the parties can no longer live together as husband
and wife; if such is the situation it is better to close the
chapter.”

35. In recent judgment delivered by the Apex Court in the case of K. Srinivas Rao vs. D.A. Deepa reported in (2013) 5 SCC 226 in the following words:-

“27.We need to now see the effect of the above events. In
our opinion, the first instance of mental cruelty is seen in the
scurrilous, vulgar and defamatory statement made by the
respondent-wife in her complaint dated 4/10/1999
addressed to the Superintendent of Police, Women
Protection Cell. The statement that the mother of the
appellant-husband asked her to sleep with his father is
bound to anger him. It is his case that this humiliation of his
parents caused great anguish to him. He and his family
were traumatized by the false and indecent statement made
in the complaint. His grievance appears to us to be justified.
This complaint is a part of the record. It is a part of the
pleadings. That this statement is false is evident from the
evidence of the mother of the respondent-wife, which we
have already quoted. This statement cannot be explained
away by stating that it was made because the respondentwife
was anxious to go back to the appellant-husband. This
is not the way to win the husband back. It is well settled that
such statements cause mental cruelty. By sending this
complaint the respondent-wife has caused mental cruelty to
the appellant- husband.

respondent-wife in her complaint dated 4/10/1999
addressed to the Superintendent of Police, Women
Protection Cell. The statement that the mother of the
appellant-husband asked her to sleep with his father is
bound to anger him. It is his case that this humiliation of his
parents caused great anguish to him. He and his family
were traumatized by the false and indecent statement made
in the complaint. His grievance appears to us to be justified.
This complaint is a part of the record. It is a part of the
pleadings. That this statement is false is evident from the
evidence of the mother of the respondent-wife, which we
have already quoted. This statement cannot be explained
away by stating that it was made because the respondentwife
was anxious to go back to the appellant-husband. This
is not the way to win the husband back. It is well settled that
such statements cause mental cruelty. By sending this
complaint the respondent-wife has caused mental cruelty to
the appellant- husband.

36. Besides the specific act of mental cruelty making false allegations against the sister of the respondent, it is also matter on record that the appellant filed various such complaint under Section 498-A of IPC under Domestic Violence Act. In those proceedings, the appellant even opposed the bail application went to the extent of filing revisions against the grant of bail to the respondent and his family members. Such conduct on the part of the appellant further constitute mental cruelty.

37. Just to appreciate as to what may constitute mental cruelty one may take note of the judgment of the Apex Court delivered in the case of Malathi Ravi, M.D. vs. B.V. Ravi, M.D. Reported in (2014) 7 SCC 640, wherein the Apex Court approvingly brought earlier judgment delivered on the subject in the case of Samar Ghosh vs. Jaya Ghosh reported in 2007 4 SCC 511 wherein some illustrative cases of mental cruelty were mentioned. The aforesaid discussion appears in para 30 of this judgment in the following words:-

“30. In Samar Ghosh vs. Jaya Ghosh this Court has
given certain illustrative examples wherefrom inference of
mental cruelty can be drawn. The Court itself has
observed that they are illustrative and not exhaustive. We
think it appropriate to reproduce some of the illustrations:
(SCC pp. 546-47, para 101)

“(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.

* * *

(iv) Mental cruelty is a state of mind. The feeling of deep
anguish disappointment, frustration in one spouse
caused by the conduct of other for a long time may lead
to mental cruelty.

* * *

(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.

* * *

(x) The married life should be reviewed as a whole and a
few isolated instances over a period of years will not
amount to cruelty. The ill conduct must be persistent for a
fairly lengthy period, where the relationship has
deteriorated to an extent that because of the acts and
behaviour of a spouse, the wronged party finds it
extremely difficult to live with the other party any longer,
may amount to mental cruelty.

* * *

(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.”

38. Para 32 and 33 of the same judgment are also relevant which are reproduced here as under:-

32. In Vishwanath Agrawal v. Sarla Vishwanath Agrawal, while dealing with mental cruelty, it has been opined thus:

“22. The expression ‘cruelty’ has an inseparable
nexus with human conduct or human behaviour. It is
always dependent upon the social strata or the milieu to
which the parties belong, their ways of life, relationship,
temperaments and emotions that have been conditioned
by their social status.”

33. In the said case, analysing the subsequent events and the conduct of the wife, who was responsible for publication in a newspaper certain humiliating aspects about the husband, the Court held as follows:

“54…In our considered opinion, a normal
reasonable man is bound to feel the sting and the
pungency. The conduct and circumstances make it
graphically clear that the respondent wife had really
humiliated him and caused mental cruelty. Her conduct
clearly exposits that it has resulted in causing agony and
anguish in the mind of the husband. She had publicised
in the newspapers that he was a womaniser and a
drunkard. She has made wild allegations about his
character. She had made an effort to prosecute him in
criminal litigations which she had failed to prove. The
feeling of deep anguish, disappointment, agony and
frustration of the husband is obvious.”

39. In view of the aforesaid, I do not find any infirmity in the conclusion drawn by the lower Court holding that the appellant was guilty of inflicting the cruelty upon the husband including mental cruelty of the worst kind. In such situation, the lower Court was justified in dissolving the marriage between the parties by decree of divorce under Section 13 (1) (ia) of the Hindu Marriage Act.

40. In such circumstances asking the respondent-husband to live with the appellant-wife in the matrimonial house as husband and wife by passing a decree of restitution of conjugal rights under Section 9 of the Hindu Marriage Act as prayed for by the appellant in the counter claim also, was rightly refused.

41. In view of the aforesaid, we find that the judgment delivered by the lower Court does not suffer from any infirmity. Accordingly, the appeal filed by the appellant is hereby dismissed.

(M.C. Garg)                 (Sheel Nagu)
Judge                         Judge
…/01/2015                 …/01/2015


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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Wild, reckless baseless allegations of impotency, lack of manliness in WS are cruelty. Husband wins. BOM HC

In this case the wife lives with the husband only for a short while and the couple part. The husband alleges that the wife was of unsound mind and also treated him with cruelty, was cold and refused to cohabit normally etc, while the wife alleges that the husband is impotent and unmanly. The lower court grants divorce in favour of the husband. Wife goes on appeal to Bom HC.

HC analyses the facts and concludes that the husband has (a) NOT proven cruelty during the short matrimonial life, (b) has NOT proven that the wife is of unsound minf but (c) he is entitled to divorce on the basis of wild, reckless baseless allegations of impotency, lack of manliness made by the wife in her written statements. This case should help husbands who are hit with preposterous allegations in the WS that are left unrpoven.

The Honourable court summarises :

“…….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. ………”

**************************************

Bombay High Court

Smt. Nirmala Manohar Jagesha vs Manohar Shivram Jagesha

13 December, 1990

Equivalent citations: AIR 1991 Bom 259, (1991) 93 BOMLR 373, I (1992) DMC 180, 1991 (1) MhLj 267

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. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

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 retarded? ..Yes.
    
    2) Does the petitioner prove that she was suffering from disability
    of mind and psychopathic disorder and subnormalities 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 “reasonable 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. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

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, 1 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. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

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.

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Throwing hubby out of house is desertion. Divorce, grantd in favr of husband. Delhi HC.

Throwing hubby out of house is desertion. Divorce, granted in favor of husband by Delhi HC. 80yr woman who sent husband out and forced him to live in a small rented building, tries to appeal divorce, but looses! Classic case explaining what is desertion and how the wife was the deserting spouse in this case. Court is left wondering why this woman is messing the poor chap’s life !!

 *****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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     IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: 24.9.2010

                         Judgment delivered on: 13.01.2011

                   FAO No. 46/1995

 

Smt. Vimal Kanta                         ……Appellant

                   Through: Mr. Rajat Navet, Advocate.

                             Vs.

Shri J.M. Kohli                       ……Respondent.

             Through: Ms. Geeta Luthra, Sr. Advocate

                       with Mr. Abhishek Aggarwal, Adv.

 

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

  1. Whether the Reporters of local papers may be allowed to see the judgment?           Yes
  2. To be referred to Reporter or not?           Yes
  3. Whether the judgment should be reported in the Digest?           Yes

KAILASH GAMBHIR, J.

*

  1. The appellant at this old age of 80 years is before this court in appeal to challenge the judgment and decree of divorce passed by the learned trial court vide order dated 30.9.94 on the ground of desertion envisaged under Section 13 (1)(ib) of the Hindu Marriage Act, 1955, thereby dissolving the marriage between the parties.
  2. A conspectus of facts of the present appeal is that the marriage between the parties was solemnized on 20.6.1953 as per Hindu rites and ceremonies and a female child was born out of this wedlock on 14.7.1954, who has been living throughout with her mother i.e. the appellant herein. The respondent husband had filed a divorce petition on the grounds of cruelty and desertion as long back as 12.10.1982. The appellant had contested the said petition with all the zeal at her command and both the parties entered the trial with accusations and cross accusations. The respondent examined himself and 10 other witnesses so as to prove the allegations of cruelty as well as desertion while the appellant on the other hand examined herself and three other witnesses to prove her defence. Based on the pleadings and documentary evidence adduced by the parties, the learned trial court dismissed the petition of the respondent so far the ground of cruelty was concerned but decreed the divorce petition on the ground of desertion under Section 13 (1) (ib) of Hindu Marriage Act. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. Feeling aggrieved with the same, the appellant preferred the present appeal on 13.2.95, which was taken up by this court on 23.2.1995. Since there was some delay on the part of the appellant in preferring the present appeal, and possibly taking advantage of the same, the respondent got remarried on 30.12.94 and a female child was also born out of the said remarriage on 31.7.2000. Before finally hearing this matter, a lot of persuasive efforts were made not only by this Court but also by the predecessor judges of this court to bring about an amicable settlement between them but all such efforts turned futile as both the parties remained totally reluctant and rigid to budge from the hostile positions taken by them. In most of the hearings, the appellant remained present with her elderly daughter of 56 years while the respondent, an old man of 83 years, remained present with his comparatively young wife of 47 years, contesting the present appeal with great fervour.
  4. So far the allegations of cruelty leveled by the respondent against the appellant are concerned, this court need not go into the same as already the learned trial court has held that the ground could not be satisfactorily established by the respondent husband as envisaged under Section 13(1) (ia) of the HMA. So far the challenge to the decree granted by the learned trial court on the ground of desertion is concerned, the main argument advanced by the counsel for the appellant was that the basic ingredients of desertion were not proved by the respondent husband. The contention raised by the counsel for the appellant was that once the respondent husband has failed to prove the acts of cruelty on the part of the appellant wife, then the respondent leaving the matrimonial home due to the cruel acts of the appellant wife could not have arisen. Counsel thus alleged that the respondent husband failed to prove and establish on record that there was any intention on the part of the appellant wife to bring cohabitation permanently to an end. Counsel also submitted that the respondent husband in his own statement admitted the fact of his continuous visits to the house at Munirka till September, 1982, besides the fact that he had opened a bank account in the name of the appellant on 25.1.1980 and of attending a Kriya ceremony with the appellant after 24.12.1979. To the same effect was the deposition of RW-2 Mr. R.S. Dohare who also deposed in his evidence that the respondent used to visit Munirka even after 24.12.1979. Counsel also submitted that even the testimony of the appellant testifying that the respondent husband even used to stay overnight after 24.12.1979 remained unrebutted. Counsel also submitted that the learned trial court failed to properly appreciate the dictum of law laid down by the Apex Court in Bipin Chander Vs. Prabhawati AIR 1957 SC 176.
  5. Based on these submissions, counsel for the appellant submitted that the respondent failed to prove the ground of desertion or even the constructive desertion on the part of the appellant wife. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Division Bench of this court in Kiran Sharma Vs. Shradha Nand 44 (1991) DLT 90.
  6. Refuting the said submissions of the counsel for the appellant, Ms. Geeta Luthra, learned Senior Advocate appearing for the respondent fully supported the judgment of the learned trial court. Counsel submitted that the judgment of the learned trial court is a well reasoned judgment and the appellant has failed to point out any illegality or infirmity in the same. Counsel for the respondent also submitted that the respondent was thrown out of the Munirka house on 24.12.1979 and this fact was duly proved on record by the respondent through an affidavit of the appellant dated 24.12.1979 wherein she clearly stated that she along with her daughter asked the respondent to live separately from them temporarily. Besides the said affidavit, the respondent has also proved on record an endorsement on the carbon copy of the said affidavit as Ex.R-1 which endorsement would further strengthen the plea of the respondent that he had left the Munirka house as per the desire of the appellant and her daughter. Counsel thus submitted that on the said very date i.e. 24.12.1979, not only there was a separation between the parties but also there was a clear intention on the part of the appellant wife to bring the cohabitation permanently to an end. Counsel thus submitted that the appellant has no case to assail the findings of the learned trial court and the same be accordingly upheld.
  7. I have heard learned counsel for the parties at considerable length and gone through the records.
  8. It is an unfortunate case of a geezer whose marriage turned ruinous right at the very beginning. As per the respondent, after solemnization of the marriage of the parties on 20.6.1953, the appellant did not stay with him even for a day as the locality where the respondent was residing was not to her liking (Kashmiri Gate). The respondent along with his parents arranged a house in Patel Nagar and shifted there in August 1953. Again presence of the parents of the respondent was objected to by the appellant, who then shifted to their old house in December 1953. Both the parties again shifted in a quarter at Lodhi Road in February 1954 which was allotted in the name of the brother of the appellant who was then unmarried , and the said quarter was near to the parental house of the appellant. A female child was born out of the said wedlock on 14.9.1954 and in March 1955 the parties again shifted back to their old house at Kashmiri Gate. In July 1955, the appellant was taken away by her parents on the pretext of her participation in the engagement ceremony of her younger brother when some jewellery items were also alleged to have been borrowed by the parents of the appellant from the parents of the respondent. Since thereafter a crisscross legal battle started between the parties. The respondent had filed a declaratory suit on 20/21.3.1957 to claim that the contents of the locker being maintained in the name of the mother of the appellant belonged to the respondent. The respondent had also filed a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act in March 1957. The appellant on the other hand had filed a suit for maintenance u/s 488 Cr.P.C, 1898 (the old Act) in March 1957. The respondent had also filed another suit to seek judicial separation under Section 10 of the Hindu Marriage Act in 1960. The respondent had also preferred an appeal after his case seeking restitution of conjugal rights was dismissed on 28.2.62. It is in this appeal, with the intervention of the presiding judges, both the parties were persuaded to stay together and thereafter the appellant had agreed to join the matrimonial home on the condition that the respondent should continue to pay the maintenance amount of Rs.300 per month till she starts getting a salary. Even despite the said compromise, the appellant did not join back the matrimonial home and it was only in the year 1966 that the appellant had agreed to join back the company of the respondent while he was residing at a newly built house at Punjabi Bagh. After the year 1966 both the parties lived together till 24.12.1979 and in this manner both the parties could stay together only for a period of thirteen years since their marriage of 29 years till the filing of the petition for divorce on 1982. The narration of aforesaid background as set out by the respondent in his divorce petition is necessary to highlight the fact that both the parties were never at peace and their relations became strained right from the very inception of their marriage and the only silver lining in their relationship was birth of a female child on 14.9.1954. How much trauma and misery the child must have suffered right from the day of coming in her senses watching her parents fight such fierce legal battle cannot even be imagined. However, now 16 years have passed since the filing of the present appeal and the court is confronted to adjudicate upon a mordant situation where the marriage is dead but the parties are fighting the battle, so deadly, for the last 28 years.
  9. The appellant has filed the present appeal on the ground that the findings of the learned trial court with regard to desertion are perverse. The question as to what precisely constitutes “desertion” has been elaborately discussed in a catena of judgments of the Hon’ble Supreme Court as well as various High Courts and also in several English cases. “Desertion” in a sense means the intentional permanent abandonment of a spouse by the other, without consent and without reasonable cause. It is a settled legal position that desertion is not a physical withdrawal from a place, but from a state of things, from which one can easily draw a conclusion that it is not a physical separation alone but there is a complete withdrawal on the part of the deserting spouse to bring cohabitation permanently to an end between them. The learned trial court referred to the judgment of the Apex Court in Bipin Chander’s case (Supra) where the concept of desertion has been defined in the following words:

“For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.”

  1. The above legal position was reiterated by the Apex Court in the Constitution Bench decision in Lachman UtamChand Kirpalani vs. Meena Alias Mota (1964) 4 SCR 331 and other subsequent judgments. Hence to establish desertion the two essential elements to be proved by the petitioner are the factum of separation and animus deserendi. In the facts of the case at hand, it is the case of the respondent husband that he was forced to leave the company of the respondent on 24.12.79. It is not in dispute between the parties that the parties lived separately thereafter. The factum of separation is thus not disputed. Coming to the second ingredient of animus deserendi, it is to be seen whether the intention of the deserting spouse was to bring the cohabitation permanently to end. The affidavit PW 2/3 proved on record is an affidavit dated 24.12.1979 where the appellant has admitted that she asked the respondent to live separately temporarily. It is important to reproduce the same here:

“1. That I am living with my husband, Shri J.M.Kohli, A.S.W. C.P.W.D., New Delhi and my daughter, Renu Kohli at C-1/F, D.D.A Flats, Munirka.

  1. That I and my daughter have asked Shri J.M.Kohli to live separately from us temporarily since inspite of the best efforts by us we could not live peacefully together. Therefore, Shri Kohli would shift and would live separately from us temporarily. I have no complaint against him.”

The signatures on the above affidavit have been admitted by the appellant and the veracity of the above document cannot be questioned in the face of the above admission. It is also important to mention that in the document Ex R 1 proved on record, there is a handwritten endorsement by the respondent that he is vacating the said premises as per the desire of the appellant. It would be pertinent to reproduce the same here:

“I am vacating C-1/F DDA Flats today the 24.12.79 as desired by Mrs. Vimla Kohli and Miss Renu for the betterment of all. I shall be paying maintenance/pay monthly personally each month and shall help them as and when required on intimation to me on my office telephone No.611475. The unpaid monthly instalment of C-1/F, Munirka till today to be paid to D.D.A. shall be paid by me.”

sd/ J.M.Kohli.

24.12.79″

  1. It is evident from the above said affidavit that the cohabitation between the parties ended on 24.12.1979. It is the contention of the appellant that it was a temporary separation and cannot be taken to mean that the intention of the appellant was to bring the cohabitation to end permanently. It is a settled legal position that the factum of separation and animus deserendi are not to always co exist and that the animus can be inferred from the subsequent conduct of the deserting spouse. Here it would be pertinent to refer to the judgment of the Apex Court in the case of Bipin Chander (supra) where it was held that:

“Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus deserendi coincide in point of time..”

Therefore, though the parties separated on 24.12.1979 temporarily but the animus for bringing the cohabitation to end was later developed and can be inferred from the subsequent events in the present case as the appellant made no efforts for reconciliation or did any act to restore the wrecked relationship. Also in the case of Savitri Pandey vs. Prem Chandra Pandey (2002) 2 SCC 73 after referring to judgments in Bipin Chander and Lachman Utamchand , the Apex Court held that :

“8. “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, ie.., not permitting of allowing and facilitating the cohabitation between the parties. The proof desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.

  1. Clearly in the present case, the appellant is the deserting spouse and her intention can be inferred from her conduct. The very fact that the appellant did not make any efforts to restore the matrimonial relations would show that she did not want to live with the respondent husband after she separated from him temporarily and hence that lent an element of permanence to the temporary separation. This fact is also strengthened by her cross examination where she admitted that since the day she was living separately from the respondent, she never made any effort for reconciliation because there was no such opportunity. Also, PW 6, Sh.Atma Ram Birdhi in his examination stated that when the respondent had met with an accident, and even otherwise when he stayed in the rented premises of PW 6, the appellant never visited him. It is thus clearly borne out from the above that there was animus deserendi on the part of the appellant and she had deserted the respondent without reasonable cause. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  2. Coming to the other argument of the counsel for the appellant that the respondent visited the house at Munirka even after 24.12.1979 and that there was no desertion before filing of the petition, it is an admitted fact that the respondent husband used to visit the Munirka house to meet his daughter. Much stress was laid by counsel for the appellant on the evidence of RW 2 Shri R.S Dohare, where he stated that the respondent used to live with the appellant whenever he visited her in the flat. Also, the fact that the appellant admitted that he gave an application for opening of a bank account in the name of the appellant on 25.1.1980 and that he attended the Kirya ceremony of a relative of the appellant on 7.2.1981 would go on to prove that there was no desertion even after 24.12.1979, the counsel contended. It is not the case of the appellant that there was any resumption of cohabitation between the parties after 24.12.1979. The visits, as admitted by the respondent were to meet his daughter. Even otherwise, the visits of the respondent cannot be taken to mean that they both lived as husband and wife. Such casual visits, unless otherwise proved, cannot be taken as if the parties had restored their marital relations. Paradoxically, however both the events, that is opening of the bank account and attending the Kriya ceremony go on to show that the respondent was fulfilling his duties as a husband and was still willing to live with the appellant and their daughter but it is the appellant who did not respond to his efforts. Here it would be useful to refer to the judgment of the Apex Court in the case of Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi (2002) 1 SCC 308 where it was held that :

“The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately proceeding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include ‘willful neglect’ of the petitioning spouse by the respondent. It status that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage.

Hence, it would be clear from the law settled by the Apex Court that the explanation to Section 13 talks about willful neglect of the petitioner by the respondent in case of desertion. In the present case as well the appellant never bothered about the whereabouts of the respondent husband and hence such conduct of the appellant further strengthens the case of the respondent to claim divorce on the ground of desertion.

  1. The court in the case of Adhyatma Bhattar (supra) further observed:
  2. This Court in the case of Smt. Rohini Kumari v. Narendra Singh,: [1972]2SCR657 , while considering the case of judicial separation on the ground of desertion under Section 10(1)(a) of the Act read with the Explanation, held:

“…The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of “constructive desertion” is discussed at page 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him.

In Lachman Utamchand Kirpalani v. Meena alias Mota, this Court had occasion to consider the true meaning the ambit of Section 10(1)(a) of the Act read with the Explanation. Reference was made in the majority judgment to the earlier decision in Bipin Chander Jaisinghbhai Shah v. Prabhawati, in which all the English decisions as also the statement contained in authoritative text books were considered. After referring to the two essential conditions, namely, the factum of physical separation and the animus deserendi which meant the intention to bring the cohabitation permanently to an end as also the two elements so far as the deserted spouse was concerned i.e.(1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid, it was observed while examining how desertion might come to an end:

“In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to be regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that is, that the conduct of the deserted spouse should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse.”

(Emphasis supplied)

Hence in the face of the above settled law, it is evident that the conduct of the respondent in visiting the appellant at Munirka would not dislodge the fact of desertion.

  1. The counsel for the appellant also placed reliance on the judgment of the division bench of this court in the case of Kiran Sharma (supra) to support his argument that as cruelty could not be established by the respondent hence the circumstances which compelled him to leave the house could not be established which would infer that the respondent left the house on his own will. The contention of the counsel is devoid of any merit as the law is clear that there has to be an absence of consent of the deserted spouse. In the endorsement to the affidavit reproduced above, it is distinctly stated that the respondent is vacating the Munirka house as per the desire of the appellant. This is enough to show the absence of consent on the part of the respondent husband. In this regard the learned trial court has relied upon the testimony of PW 6, and rightly so, where he stated that the respondent husband was his tenant from April, 1980 to Feb 1982 at Safdarjung Enclave and that when he occupied the tenanted premises, he had only one box, bedding, some utensils and one coat. Before April 1980 the respondent resided in village Katmarna Sarai. The respondent had also proved the rent receipts on record. Had the respondent left the house on his own will he would have at least made arrangements to live decently beforehand as he had his own house in Punjabi Bagh which was on rent. The circumstances clearly show that the respondent was turned out of the house as otherwise he would not have only meager things when he came to occupy the tenanted premises. The other essential with regard to the deserted spouse as held by a plethora of judgments reproduced above is the absence of conduct which would reasonably cause the deserting spouse to form his/her intention to bring cohabitation to an end. In the facts of the present case, in the affidavit PW2/3 reproduced above, the appellant has clearly deposed that she has no complaint from the respondent husband. Had the respondent husband been cruel to the appellant, it was for her to show that the husband had left the house on his own accord and is taking advantage of his wrongs as envisaged under section 23 which would thus create a bar for the respondent to seek a decree of divorce on the ground of desertion. However no such plea has been raised by the appellant in this regard in the pleadings or in the evidence. The judgment in the case of Kiran Sharma thus would not be applicable to the facts of the case at hand as there the husband left the matrimonial home as he had illicit relations with another woman which the wife could successfully establish that the husband was trying to take advantage of his wrong in claming the decree of divorce on the ground of desertion.
  2. Before parting with the judgment, this court is constrained to observe that this is an unfortunate case where the parties have spent more than half of their lives in the alleys of the courts. Marriage is a union where the husband and wife spend their entire life building a bond of trust, love and friendship which would be their support during the last years of their lives. Having the other spouse by the side at the fag end, to cherish the moments of their times spent together, is an asset which clearly the parties were devoid of in the present case. The parties were involved in mud slinging at each other for so many years that they did not realize that they would not have the time to start their lives afresh. At this juncture of 80 years, the appellant wanted the decree of divorce to be set aside which made me inquisitive to know the reason behind it. Was it because that the appellant wanted to be a legally wedded wife till her last breath with the pride of the red vermillion adorning her or was it because she had her eyes on the enrichments that would ensue if she still has the status of the wife of the respondent or was it because there was nothing but pure vengeance to settle the score with the respondent that propelled the appellant to fight this arduous legal battle when practically her marital life turned catastrophic long back. However, the answer to this is still shrouded in mystery. In any case, the irresistible conclusion is that it is a dead and ominous marriage, and adjudicating it has led this court to have a grave concern over the time taken to decide matrimonial cases. This court would not shy away from observing that the years which should have been spent by the parties to start on a clean slate have been spent with the lawyers and in the court rooms. When parties approach the portals of law for dissolving their matrimony, it should be the endeavour of the courts to expeditiously decide these matters so that parties can get on with carving out their future plans. But more often the situation arises, like in the present case, that the grueling litigative voyage leaves the parties helpless and hapless. The vicious circle of litigation has contributed to the demise of their hopes, promises and dreams. This case has indeed left me with a bitter aftertaste.
  3. In the light of the foregoing, this court is of the view that the respondent has successfully proved the ground of desertion. Hence, in the totality of the facts and circumstances this court does not find any illegality or perversity in the findings arrived at by the learned court below and the same are accordingly upheld. The appeal is hereby dismissed.

January 13, 2011                     KAILASH GAMBHIR, J

Wife deniying sex, acting like deadwood, NON participation @ rituals, deserting husband R cruelty. Husband wins Divorce

Wife refuses sex, refuses to participate in customary ceremonies, leaves husband often and files false complaints. Tries to deprive him of divorce by appealing to HC. HC sees thru the wife’s game and confirms the divorce in favour of the husband.

Also, the importance of proving your case at the lower court comes out in this case. HC relies on lower court case / testimonies to decide on this case

Excerpts and emphasis 

“….There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. …….

…..Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy……

11. …..In the present case, the testimony of the respondent (husband) that the appellant (wife) was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted. It is not thus that the respondent (husband) had sex with her wife only about 10-15 times from the date of his marriage within a period of five months, but the cruel act of the appellant of denying sex to the respondent especially on the very first night and then not to actively participate in the sex even for the said limited period for which no contrary suggestion was given by the appellant to the respondent in his cross- examination…..”

“…..The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. The question whether there was a refusal on the part of the respondent not to perform the ritual of dud-mundari and chudha ceremony is difficult to be answered as on one hand, the appellant has alleged that she had duly participated in the ceremonies while on the other hand the respondent has taken a stand that there was refusal on the part of the appellant to participate in the ceremonies. No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, ………….

“……Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. The appellant has also failed to prove any demand of dowry made by the respondent or his family members as no evidence to this effect was led by the appellant. The appellant herein also filed CRIMINAL COMPLAINTS against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent……..

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on:    21.03.2012

FAO No.185/2001

Smt. Shashi Bala                                       ……appellant.
Through: Mr. Atul Bandhu, Adv.

Vs.

Shri Rajiv Arora                             ……Respondents
Through: Mr. R.G. Srivastava, Adv.

CORAM:

HON’BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

1. By this appeal filed under section 28 of the Hindu Marriage Act, 1955, the appellant seeks to challenge the impugned order and decree dated 12.2.2001 passed by the learned Trial Court whereby a decree of divorce in favour of the respondent husband under Section 13(i)(a) of the Hindu Marriage Act was granted and the counter claim filed by the appellant seeking a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act was dismissed.

2. Brief facts of the case relevant for deciding the present appeal is that the marriage between the parties was solemnized on 17.2.1991 according to Hindu rites and ceremonies. It was stated by the husband in his divorce petition that after the solemnization of the marriage, right from the inception, the attitude of the appellant was indifferent and she complained that the marriage had not been solemnized with a man of her taste. As per the respondent husband, the appellant had refused to participate in the traditional ceremony of dud-mundri by saying that she did not like all this but without disclosing any reasons. As per the respondent, the appellant also did not take any interest in the dinner which was served on the wedding night i.e. 18.2.1991. It is also the case of the respondent that when both of them went to their bedroom around 11.30 p.m. the appellant was not responsive and she did not allow the respondent to have sexual intercourse with her. The respondent has alleged that it is only on 25.2.1991, that he was allowed to have sexual intercourse with the appellant for the first time, but again the appellant remained unresponsive and such conduct of the appellant caused mental cruelty to the respondent. It is also the case of the respondent husband that on 13.4.1991, the appellant refused to perform “chuda ceremony” which not only hurt the sentiments of the respondent but his parents as well. It was also stated that the appellant in fact removed the chuda and threw it under the bed by saying that she did not believe in all these things. It is also the case of the respondent that the appellant used to visit her parents on her own without even informing the respondent and finally left the matrimonial home on 16.4.1992 and since then she did not come back. It is also the case of the respondent that he had sexual intercourse with the appellant only for about 10-15 times during her stay with him for a period of about 5 months. It is also the case of the respondent that the appellant used to quarrel with his old parents and she also used to insist to shift to her parents’ house at Palam colony. The respondent also alleged that on 11th March, 1991 the appellant tried to illegally remove the jewellery from the almirah which belonged to his mother and which was kept for his unmarried sister and while doing so she was caught red handed. It is also the case of the respondent that the appellant made a false complaint with the Crime Against Women Cell and Family Counsel Office, which complaints were ultimately withdrawn by her. Based on these allegations the respondent husband claimed the decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act.

3. In the written statement filed by the appellant wife, she denied all the abovesaid allegations leveled by the respondent husband. She denied that she had refused to participate in the “Dud Mundari Ceremony”. The appellant had also stated that after taking lunch on the wedding day, one lady relative of her in-laws and parents of the respondent remarked that she did not bring bed and sofa sets in her dowry and in response she informed them that her father had given a bank draft of Rs. 30,000/- besides presenting costly clothes, ornaments, TV, clothes for relatives, utensils and other articles in the marriage. It is also the defence of the appellant that on the wedding night the respondent entered the bedroom showering filthy abuses on the appellant and told her that she had not brought the dowry according to their expectations. It is also her case that she was also told by the respondent that the bank drafts should have been prepared either in the name of the respondent or in the name of his father. It was denied by the appellant that her attitude was indifferent at the time of dinner. She also denied the allegation of non- consummation of the marriage on the wedding night. The appellant took a stand that right from the wedding night i.e. 18.2.1991 the parties had normal physical relationship with each other. She also denied that she did not perform “chuda ceremony” or threw the chuda under the bed. She also denied that she left the matrimonial home on 16.4.1992. The appellant also took a stand that on 23.4.1992 the respondent, his parents and two sisters asked her to bring Rs. 50,000/- or otherwise leave the matrimonial home and on her refusal to meet the said demand, she was thrown out of the matrimonial home. The appellant denied that she had sexual relationship with the respondent only 10-15 times or she had refused to have sex with the respondent. She also denied that she never insisted the respondent to live in the house of her parents. She also denied that on 11th March, 1991 she made any attempt to steal the jewellery or she was caught red handed. She also stated that in the last week of April, 1991 she was told by the respondent to withdraw Rs. 30,000/- from her bank account as the old sofa lying in the house required replacement but no new sofa set was purchased when she brought the said money and gave the same to the mother of the respondent. The appellant also took a stand that she was prepared to live with the respondent as she had withdrawn from her society without any reasonable cause and without any fault on her part.

4. Based on the pleadings of the parties, the learned Trial Court framed the following issues:-

(i) Whether the respondent has treated the petitioner with
cruelty?

(ii) Relief.

(iii) Whether the petitioner has withdrawn from the company of
the respondent without any reasonable cause or excuse? If so, its
effect.

The respondent in evidence examined himself as PW2 besides examining Shri Dalveer Singh, Head Constable as PW1 and Shri Vishwamitra, father of the respondent as PW 3, his colleague Shri Vijay Kumar Taygi PW4. The appellant on the other hand examined herself as RW1 with no other evidence in support.

5. After taking into consideration the pleadings of the parties, the learned Trial Court found that the refusal of the appellant wife to participate in the “Dud Mundari ceremony” and thereafter “Chudha ceremony”, which were customary rituals in the family of the respondent husband caused embarrassment and humiliation to the respondent and such acts on the part of the appellant amounted to cruelty. The learned Trial Court also found that in the span of one year and two months of the married life, the parties had sex only for about 10-15 times and also denial of the appellant for sexual relationship on the very first night of the marriage is a grave act of cruelty as healthy sexual relationship is one of the basic ingredients of a happy marriage. The learned Trial Court also found that filing of the complaints by the appellant with the Crime Against Women Cell and Family Counsel Office also collectively caused mental cruelty to the respondent husband. Accordingly, the learned trial court granted a decree of divorce in favour of the respondent and against the appellant and consequently also dismissed her counter claim for restitution of conjugal rights.

6. Mr. Atul Bandhu, learned counsel appearing for the appellant before this court vehemently argued that the learned Trial Court did not refer to the evidence of the appellant wife wherein she has denied all the allegations leveled by the respondent husband in his petition for divorce. Counsel also contended that the marriage was consummated on the very first night and the appellant wife never denied sexual relationship to the respondent husband. Counsel also submitted that nowhere the respondent husband has stated that as to when he was refused any such sexual relationship by the appellant. Counsel thus argued that the learned Trial Court has granted the decree of divorce merely on the ground that the appellant wife did not participate in the dud-mundari ceremony and chudha ceremony and also she did not allow the husband to have sexual intercourse more than 10-15 times in a period of 5 months and as per the counsel, these grounds cannot be treated sufficient enough to constitute cruelty as envisaged under Section 13(ia) of the Hindu Marriage Act. In support of his arguments, counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in Savitri Pandey vs Prem Chandra Pandey AIR2002SC591 and V. Bhagat vs D. Bhagat (Mrs) (1994) 1 SCC 337.

7. Mr. R.G. Srivastava, learned counsel appearing for the respondent on the other hand fully supported the reasons given by the learned Trial Court which entitled him to claim a decree of divorce under Section 13(ia) of the Hindu Marriage Act. Counsel for the respondent also submitted that the appellant did not respect the sentiments of the respondent and his family members by refusing to perform customary rituals like dud-mundari ceremony and chudha ceremony. Counsel also argued that the appellant did not discharge her matrimonial obligations either towards her husband or even towards his old parents. Counsel also submitted that the appellant made false complaints to the Crime Against Women Cell and to the Family Counsel Office, which she later withdrew and such act of the appellant also caused mental cruelty to the respondent. Counsel also submitted that by denying normal sexual relationship to the respondent, the appellant had shaken and destroyed the very foundation of a sound marriage. Counsel also submitted that the respondent had duly discharged his burden to prove the case set up by him where as the appellant failed to discharge her burden and even could not prove her defence. In support of his arguments, counsel for the respondent placed reliance on the following judgments:-

1. Vinita Saxena vs Pankaj Pandit 2006(3) SCALE (SC) 367.

2. Naveen Kohli vs Neelu Kohli 2006(4) SCC 558.

3. Samar Ghosh vs Jaya Ghosh 2007 (4) SCC 511.

4. Praveen Mehta vs Inderjit Mehta AIR 2002 SC 2582

5. Rajinder Bhardwaj vs Anita Sharma AIR 1993 Delhi 135.

8. I have heard learned counsel for the parties and given my thoughtful consideration to the arguments advanced by them.

9. Cruelty as a ground for divorce is nowhere defined in the Hindu Marriage Act as it is not capable of precise definition. There cannot be any straitjacket formula for determining whether there is cruelty or not and each case depends on its own facts and circumstances. What may be cruelty in one case may not be cruelty in other and the parameter to judge cruelty as developed through judicial pronouncements is that when the conduct complained of is such that it is impossible for the parties to stay with each other without mental agony, torture and stress. It has to be something much more than the ordinary wear and tear of married life. The conduct complained of should be grave and weighty and touch a pitch of severity to satisfy the conscience of the court that the parties cannot live together with each other anymore without mental agony, distress and torture. The main grievance of the respondent herein is the denial of the appellant to have normal sexual relationship with the respondent. As per the case of the respondent, during the short period of 5 months he had sexual intercourse with the appellant only 10-15 time while the plea taken by the appellant is that she had never denied sex to the respondent. The courts have through various judicial pronouncements taken a view that sex is the foundation of marriage and marriage without sex is an anathema. The Division Bench of this Court in the celebrated pronouncement of Mrs. Rita Nijhawan vs. Mr.Bal Kishan Nijhawan AIR1973Delhi200 held as under:

“In these days it would be unthinkable proposition to suggest
that the wife is not an active participant in the sexual life and
therefore, the sexual weakness of the husband which denied normal
sexual pleasure to the wife is of no consequence and therefore cannot
amount to cruelty. Marriage without sex is an anathema. Sex is the
foundation of marriage and without a vigorous and harmonious sexual
activity it would be impossible for any marriage to continue for
long. It cannot be denied that the sexual activity in marriage has an
extremely favorable influence on a woman’s mind and body, the result
being that if she does not get proper sexual satisfaction it will
lead to depression and frustration. It has been said that the sexual
relations when happy and harmonious vivifies woman’s brain, develops
her character and trebles her vitality. It must be recognised that
nothing is more fatal to marriage than disappointments in sexual
intercourse.”

The learned Trial Court referred to the judgment of this court in the case of Shankuntla Kumari vs. Om Prakash Ghai AIR1983Delhi53 wherein it was held that:

“(25) A normal and healthy sexual relationship is one of the
basic ingredients of a happy and harmonious marriage. If this is not
possible due to ill health on the part of one of the spouses, it may
or may not amount to cruelty depending on the circumstances of the
case. But willful denial of sexual relationship by a spouse when the
other spouse is anxious for it, would amount to mental cruelty,
especially when the parties are young and newly married.”

Hence, it is evident from the aforesaid that willful denial of sexual intercourse without reasonable cause would amount to cruelty. In the authoritative pronouncement of the Hon’ble Supreme Court in Samar Ghosh vs Jaya Ghosh (2007)4SCC511, the Hon’ble Supreme Court took into account the parameters of cruelty as a ground for divorce in various countries and then laid down illustrations, though not exhaustive, which would amount to cruelty. It would be relevant to refer to the following para 101 (xii) wherein it was held as under:-

“(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.”

Although it is difficult to exactly lay down as to how many times any healthy couple should have sexual intercourse in a particular period of time as it is not a mechanical but a mutual act, however, there cannot be any two ways about the fact that marriage without sex will be an insipid relation. Frequency of sex cannot be the only parameter to assess the success or failure of a marriage as it differs from couple to couple as to how much importance they attach to sexual relation vis a vis emotional relation. There may be cases where one partner to the marriage may be over sexual and the other partner may not have desire to the same level, but otherwise is fully potent. Marriage is an institution through which a man and a woman enter into a sacred bond and to state that sexual relationship is the mainstay or the motive to be achieved through marriage would be making a mockery of this pious institution. By getting married, a couple agrees to share their lives together with all its moments of joy, happiness and sorrow and the sexual relationship between them brings them close and intimate by which their marital bond is reinforced and fortified. There may not be sexual compatibility of a couple right from inception of the relationship and depending upon physical, emotional, psychological and social factors, the compatibility between some couples may be there from the beginning and amongst some may come later. Undoubtedly, a normal and healthy couple should indulge into regular sexual relationship but there may be exceptions to this and what may be normal for some may not be normal for others as it would depend upon various factors such nature of job, stress levels, social and educational background, mood patterns, physical well being etc. Indisputably, there has to be a healthy sexual relationship between a normal couple, but what is normal cannot be put down in black and white.

10. Adverting back to the facts of the present case, the marriage between the parties was solemnized on 17.2.1991 and according to the appellant she was forced to leave the matrimonial house on 16.4.1992, whereas as per the respondent husband, the appellant wife practically stayed at the matrimonial home only for a period of five months as for rest of the period she stayed at her parental house. The case of the respondent is that he had sex with the appellant only for about 10-15 times in a span of five months of married life and that he was denied sexual relationship on the very first night of their marriage and denial of sex at the wedding night caused great mental cruelty to him. The respondent husband also stated that he was allowed to have sexual intercourse by the appellant for the first time only on 25.2.1991.The appellant wife has denied the said allegations of the respondent husband and in defence stated that she was having normal sexual relationship with her husband and even had sexual intercourse on the wedding night. The learned Trial Court after analyzing the evidence adduced by both the parties found the version of the appellant untrustworthy and unreliable while that of the respondent, much more credible and trustworthy. The appellant on one hand took a stand that on 18.2.1991 the atmosphere on that night was very tense so much so that, both the parties could not sleep and speak to each other and she did not even take proper food and the whole night there was tension between the parties and the atmosphere was fully charged, but at the same time in the cross- examination of PW2 the suggestion was made by counsel that the appellant touched the feet of the respondent when he entered the room on the said wedding night and she also admitted that her husband had never taken liquor in her presence and he had never come to her in drunken state. It would be appropriate to reproduce para 55 of the Trial Court judgment to bring to surface the said contradiction on the part of the appellant.

“55.From the evidence on record, it is gathered that on the
wedding night i.e. on 18.2.91 a “Dud Mundari” ceremony was to be
performed but the respondent wife refused to participate in the same.
This version of PW 2 has been fully corroborated by his father PW 3.
The husband i.e. Rajiv Arora, had entered by both PW 2 and RW1. RW 1
in her cross-examination has stated that their marriage had been
consummated on that very night and her husband had come to her and
she did not have to persuade the petitioner. On the other hand the
petitioner has stated that their marriage could not be consummated on
their wedding night and he had sex with his wife for the first time
only on 25.2.91. RW1 in her cross-examination has stated that the
atmosphere that night was very tense and both the parties could not
sleep and they did not speak to each other and her husband had
grievance about the insufficient dowry which had been given in the
marriage . RW 1 has also admitted that on 18.2.91, she did not take
proper food as she was not feeling well. This version of RW1 that she
did not take food that night is corroborated by the version of PW1
who has stated that on the wedding night at the time when the dinner
was served the attitude of the respondent was indifferent and she did
not take any dinner but she took only a little sweet.”

11. In matrimonial cases, more often than not it is a challenging task to ascertain as to which party is telling truth as usually it is the oral evidence of one party against the oral evidence of the other. What happens in the four walls of the matrimonial home and what goes on inside the bed room of the couple is either known to the couple themselves or at the most to the members of the family, who are either residing there or in whose presence any incident takes place. Whether the couple has had sex and how many times or have had not had sex and what are the reasons; whether it is due to the denial or refusal on the part of the wife or of the husband can only be established through the creditworthiness of the testimonies of the parties themselves. Consequently, the absence of proper rebuttal or failure of not putting one’s case forward would certainly lead to acceptance of testimony of that witness whose deposition remains unchallenged. In the present case, the testimony of the respondent that the appellant was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted. It is not thus that the respondent had sex with her wife only about 10-15 times from the date of his marriage within a period of five months, but the cruel act of the appellant of denying sex to the respondent especially on the very first night and then not to actively participate in the sex even for the said limited period for which no contrary suggestion was given by the appellant to the respondent in his cross- examination. The respondent has also successfully proved on record that the appellant did not participate in the customary rituals of dud mundri and that of chudha ceremony, which caused grave mental cruelty to the respondent. It is a matter of common knowledge that after the marriage, certain customary rituals are performed and the purpose of these rituals is to cement the bond of marriage. The question whether there was a refusal on the part of the respondent not to perform the ritual of dud-mundari and chudha ceremony is difficult to be answered as on one hand, the appellant has alleged that she had duly participated in the ceremonies while on the other hand the respondent has taken a stand that there was refusal on the part of the appellant to participate in the ceremonies. No doubt the testimony of the respondent has been supported by the evidence of his father and there is no corroborative evidence from the side of the appellant, although her brother had accompanied her in doli and in such backdrop, adverse inference thus has to be drawn against the appellant for not producing her brother in evidence who could be the best witness to prove the defence of the appellant alleging her participation in the dud-mundari ceremony. Undeniably, these customary ceremonies are part of the marriage ceremony and refusal of the same that too in the presence of the family members of the husband would be an act of cruelty on the part of the wife. The appellant has also failed to prove any demand of dowry made by the respondent or his family members as no evidence to this effect was led by the appellant. The appellant herein also filed criminal complaints against the respondent and his family members and later withdrew the same. Undoubtedly, it is the right of the victim to approach the police and CAW cell to complain the conduct of the offending spouse, however, frivolous and vexatious complaints like in the present case led to cause mental torture and harassment to the respondent and his family members. Thus, taking into account the conduct of the appellant in totality, this court is of the view that the same amounts to causing mental cruelty to the respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. Before parting with the judgment, this court would like to observe that the sex starved marriages are becoming an undeniable epidemic as the urban living conditions today mount an unprecedented pressure on couples. The sanctity of sexual relationship and its role in reinvigorating the bond of marriage is getting diluted and as a consequence more and more couples are seeking divorce due to sexual incompatibility and absence of sexual satisfaction. As already stated above, to quantify as to how many times a healthy couple should have sexual intercourse is not for this court to say as some couples can feel wholly inadequate and others just fine without enough sex. “That the twain shall become one flesh, so that they are no more twain but one” is the real purpose of marriage and sexual intercourse is a means, and an integral one of achieving this oneness in marriage.

13. This Court therefore, does not find any kind of illegality or perversity in the findings given by the learned Trial Court in the impugned judgment dated 12.2.2001 and the same is accordingly upheld. The present appeal filed by the appellant is devoid of any merits and the same is hereby dismissed.

KAILASH GAMBHIR, J

21.03. 2012

 

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