Daily Archives: August 15, 2015

Preserve institution of marriage. Don’t grant divorce easily. Attempt reconciliation. SUPREME COURT !!

In this case the wife claims that she did NOT want a divorce and she was defrauded into a divorce. The Hon HC refuses her petition citing technical / time delay. Even though all lower courts have affirmed the divorce, the Hon SC allows wife’s petition emphasising on the need to preserve marriages and attempt at reconciliation

The stress is on reconciliation. The Hon SC differentiates between other civil suits and matrimonial cases

Excerpts and Emphasis :

“……A petition for divorce is not like any other commercial suit. A divorce not only affects the parties, their children, if any, and their families but the society also feels its reverberations. Stress should always be on preserving the institution of marriage. That is the requirement o law. One may refer to the Objects and Reasons which led to setting up of Family Courts under the Family Courts Act, 1984. For the purpose of settlement of family disputes emphasis is “laid on conciliation and achieving socially desirable results” and eliminating adherence to rigid rules of procedure and evidence. …”

“….It is now obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or settlement between the parties to a Family dispute. It will be useful to note the qualifications and the method of selection of a Family Court Judge. That will be sub-sections (3) and (4) of Section 4 of the Family Courts Act:……”

“……….A duty is also cast on the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Under sub-section (3) of Section 23 of the Act, the court can even refer the matter to any person named by the parties for the purpose of reconciliation and to adjourn the matter for that purpose. These objectives and principles govern all courts trying matrimonial matters. ……”

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Supreme Court of India

Balwinder Kaur vs Hardeep Singh on 18 November, 1997

Author: D Wadhwa

Bench: Sujata V. Manohar, D.P. Wadhwa

PETITIONER: BALWINDER KAUR

Vs.

RESPONDENT: HARDEEP SINGH

DATE OF JUDGMENT:    18/11/1997

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T D.P. Wadhwa, J.

Leave granted.

Appellant-wife is in appeal against the judgment dated September 27, 1996 of the Division Bench of Punjab and Haryana High Court summarily dismissing her appeal filed under Section 28 of the Hindu Marriage Act, 1955 (for short `the Act’). Appellant had filed this appeal against the judgment and decree dated December 4, 1995 passed by the District Judge, Patiala in her own petition under Section 13 of the Act seeking divorce from her husband the respondent herein, on the grounds of cruelty and desertion. Appellant had alleged that fraud was perpetrated upon her by her husband in filing the petition for divorce which she said she never intended to file and never sought divorce from her husband. In the proceeding before the District Judge appellant appeared to have examined herself and also one Dalip Singh who claimed to be her material uncle which the appellant has denied. An ex-parte decree of divorce was granted by the District Judge, Patiala on the petition of the appellant. Appellant says when she became aware of the decree of divorce she moved the High Court in appeal which appeal, as noted above, was dismissed by the following order:

    “Neither any ground for condoning the delay of 263 days is made out
    nor there i any merit in the appeal. It is the applicant- appellant
    who filed a petition for divorce under Section 13    of the Hindu
    Marriage Act. If any fraud has been practised on the applicant, the
    present appeal is not the appropriate remedy. The remedy lies with
    the Civil Court. The application as well as the appeal is dismissed.”

The marriage between the parties was solemnised according to Sikh rites on February 18, 1991 at Sangrur, tehsil and District Patiala in the State of Punjab. After sometime it appears differences arose between the parties. Appellant on May 22, 1995 lodged a complaint with the Senior Superintendent of Police complaining harrassment by the respondent in connivance with his parties. She said her husband was having illicit relations with the wife of his elder brother and that her parents-in-law and brothers-in- law were hatching a conspiracy to kill her in order to get her husband married for a second time. She complained that for the last six months she was living with her parents because of the ill-treatment meted out to her and that all the persons named in the complaint were not permitting her to live in peace. There is an entry in the Police Station City Rajpura, District Patiala dated July 10, 1995 where compromise between the parties has been recorded. Reporting of the compromise was made by the respondent himself who was accompanied with various respectable persons whose names are recorded as under:

    “Sh. Diwan Singh S/o Daudagar Singh R/o H.No. 920 Gurbax Colony,
    Patiala, Shri Mohinder Singh, Sarpanch village Pillap Maghali, Sh.
    Sukhdev Singh Sarpanch Mando P.S. Ghanour, Sharan Singh Member
    Panchayat village, Alipur Raian, Jarnail Singh S/o Sh. Arjan Singh
    R/o Rampur, Bagh Singh Nambardar Village Ghaggar Sarai, Baldev Singh
    Nambardar village: Chamaru.”

The report further records that the compromise has been accorded between the parties with the help of the aforesaid persons after lodging of the complaint by the appellant against her husband when she felt annoyed. It was also reported that from that day onwards both parties will live separately from other members of the family and that respondent would not unduly cause hardship to the appellant. Since the complaint by the appellant had been addressed to the Senior Superintendent of Police her statement was separately recorded on July 21, 1995 withdrawing the complaint when she made the following statement:

    “Statement of Smt. Balwinder Kaur w/o Shri Hardeep Singh D/o Shri
    Tirath Singh R/o Kasturba Road, Rajpura Stated that I am the resident
    of the address given above. I got married to Hardeep Singh on
    18.2.91. I had a family problem with my husband Hardeep Singh and my
    in-laws family and because of this problem I had gone to the house of
    my mother and father at Samour because of which I gave this
    application. Both the parties with the aid and help of respectable
    persons and the Panchayat have arrived at a settlement. I have agreed
    to this settlement without any fear or pressure from any quarter. I
    agree to the settlement got done by the Panchayat. Now I do not want
    any action on the complaints given by me. Now I live separately from
    my in-laws house. sd/-
    
(BALWINDER KAUR) W/o Hardeep Singh d/o Tirath Singh R/o Kasturba
    Road, Rajpura 21.7.95″

On July 4, 1995 respondent had filed a petition against the appellant, his, wife, under Section 9 of the Act for restitution of conjugal rights in the court of the Additional Senior Sub Judge, Rajpura. This petition was withdrawn on February 14, 1996. The following is the record of proceeding on that day:

    “14.2.1996 – Present:- Counsel for the plaintiff.
    
    Counsel for the plaintiff has made statement that he does not want
    to proceed with this case. So in view of the statement of counsel for
    the plaintiff the suit of the plaintiff is dismissed as withdrawn.
    File be consigned to the Record Room.
    
    Announced        Sd/-
    Dt. 14.2.96        Civil Judge Junior
                Division, Rajpura”

Appellant submitted that service on her in this petition filed by her husband under Section 9 of the Act was wrongly got obtained. However, it is not necessary for us to go into all the details at this stage.

The petition for divorce filed by the appellant out of which this proceeding has arisen was instituted on September 4, 1995. We have gone through the petition for divorce. Apart from the date of the marriage between the parties the petition singularly lacks in better particulars though the petition is based on the alleged acts of cruelty and desertion. Respondent did not appear and the proceeding was exparte against him. Statement of the appellant was recorded on November 22, 1995 and that of her solitary witness also on the same day. The judgment of the learned District Judge allowing the petition is dated December 4, 1995. The judgment merely reproduces what the appellant had stated in the petition for divorce in general terms and the fact that she was an illiterate person and it proceeds as under:

    “Respondent Hardeep Singh did not turn up to contest the petition
    inspire of his service and therefore, he was proceeded exparte.
    
    I have recorded exparte proof of the petitioner. Balwinder Kaur
    petitioner appeared as AW1 and she examined Dalip Singh her maternal
    uncle.
    
    Petitioner while appearing as AW 1 supported her allegations made in
    the petition while Dalip singh AW2 her maternal uncle corroborated
    her. Both of them have stated that the respondent used to treat her
    with cruelty during her stay with him and deserted her for a
    continuous period of more than two years.

    In view of the exparte proof of the petitioner, I am satisfied that
    the respondent treated the petitioner with cruelty and deserted her
    for a continuous period of more than two years before the filing of
    the petition. Resultantly, I accept this petition and pass an exparte
    decree divorce in favour of the petitioner and against the respondent
    dissolving their marriage with immediate effect.
    
    No order as to costs.
    
    Pronounced.         Sd/District
                  Judge
    4.12.1995        Patiala.

Appellant has alleged fraud by her husband in getting her signatures on the petition for divorce and then bringing her to court to record her statement. Her case is she was unaware of what was happening and she in fact was duped in signing the petition and then appearing in the court as a witness. She said she never wanted divorce. During the course of hearing in this appeal, we enquired from learned counsel for the respondent if the respondent himself at any time wanted divorce and the reply was in the negative. The question then arises as to why the respondent allowed the proceeding to go ex-parte. There is no mention of the complaint filed by the appellant before the Senior Superintendent of Police and recording of the compromise between the parties and her own statement in the police on July 21, 1995. If the matter had been settled between the parties in July 1995 one may ask a question as to what was the reason for the appellant to file a petition for divorce within six weeks of the compromise. The conduct of the respondent in proceeding with the petition filed by him for restitution of conjugal rights is also not understandable. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

A petition for divorce is not like any other commercial suit. A divorce not only affects the parties, their children, if any, and their families but the society also feels its reverberations. Stress should always be on preserving the institution of marriage. That is the requirement of law.

One may refer to the Objects and Reasons which led to setting up of Family Courts under the Family Courts Act, 1984. For the purpose of settlement of family disputes emphasis is “laid on conciliation and achieving socially desirable results” and eliminating adherence to rigid rules of procedure and evidence. These further note:

“The Law Commission in its 59th report (1974) had also stressed that
in dealing with disputes concerning the family the court ought to
adopt an approach radically different from that adopted in ordinary
civil proceedings and that it should make reasonable efforts at
settlement before the commencement of the trial. The Code of Civil
Procedure was amended in 1976 to provide for a special procedure to
be adopted in suits or proceedings relating to matters concerning the
family. However, not much use has been made by the courts in adopting
this conciliatory procedure and the courts continue to deal with
family disputes in the same manner as other civil matters and the
same advisary approach prevails.”

It is now obligatory on the part of the Family Court to endeavour, in the first instance to effect a reconciliation or settlement between the parties to a Family dispute. It will be useful to note the qualifications and the method of selection of a Family Court Judge. That will be sub-sections (3) and (4) of Section 4 of the Family Courts Act:

“(3) A person shall not be qualified for appointment as a Judge
unless he-

(a) has for at least seven years held a judicial office in India or
the office of a member of a Tribunal or any post under the Union or a
State requiring special knowledge of law; or

(b) has for at least seven years been an advocate of a High Court or
of two or more such courts in succession; or

(c) possesses such other qualifications as the Central Government
may, with the concurrence of the Chief Justice of India, prescribed.

(4) In selecting persons for appointment as Judges,-

(a) every endeavour shall be made to ensure that persons committed
to the need to protect and preserve the institution of marriage and
to promote the welfare of children and qualified by reason of their
experience and expertise to promote the settlement of disputes by
conciliation and counselling are selected; and

(b) preference shall be given to women.”

Even where the Family Courts are not functioning, the objects and principles underlying the constitution of these courts can be kept in view by the civil trying matrimonial causes.

Under Section 21 of Hindu Marriage Act provisions of Code of Civil Procedure 1908, as far as may be, are applicable but that is subject to other provisions contained in the Act and to such rules the High Court may make in this behalf. Under Section 28 of Hindu Marriage Act decree of divorce is appealable. Section 28 of the Act is as under:

“28. Appeals from decrees and orders.-

(1) All decrees made by the court in any proceeding under this sub-
section (3), be appealable as decrees of the court made in the
exercise of its original civil jurisdiction, and every such appeal
shall lie to the court to which appeal ordinarily lie from the
decisions of the court given in the exercise of its original civil
jurisdiction.

(2) Orders made by the court in any proceeding under Act section 25
or section 26 shall, subject to the provisions of sub-section (3), be
appealable if they are not interim orders, and every such appeal
shall lie to the court to which appeals ordinarily lie from the
decisions of the court given in exercise of its original civil
jurisdiction.

(3) There shall be no appeal under this section on the subject of
costs only.

(4) Every appeal under this section shall be preferred within a
period of thirty days from the date of the decree or order.”

This Section 28 may be contrasted with Section 96 of the Code which provides for appeal from original decree, which, in relevant part, is as under:

“96. Appeal from original decree.- (1) Save where otherwise expressly
provided in the body of this Code or by any other law for the time
being in force, an appeal shall lie from every decree passed by any
Court exercising original jurisdiction to the Court authorised to
hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte. (3)
No appeal shall lie from a decree passed by the Court with the
consent of parties.”

Rules of procedures are meant to subserve the cause of justice and not to frustrate it. In the present case when fraud has been alleged by the wife in getting the petition for divorce filed through her when she never wanted a divorce and circumstances showed that what she said was prima facie probable and further from circumstance of the case hereinafter pointed out, the High Court in our opinion was not justified in rejecting the appeal without satisfying itself that the requirements of law had been satisfied.

Section 23 of the Hindu Marriage Act mandates the court before granting decree for divorce, whether defended or not to satisfy itself (1) if the grounds for claiming relief exist and the petitioner is not taking advantage of his or her own wrong or disability for the purpose of such relief and (2) the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty. A duty is also cast on the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. Under sub-section (3) of Section 23 of the Act, the court can even refer the matter to any person named by the parties for the purpose of reconciliation and to adjourn the matter for that purpose. These objectives and principles govern all courts trying matrimonial matters. The judgment of the District Judge is silent of the learned Judge took into consideration all what is mentioned in Section 23 of the Act. A question also arises can a party defeat the provisions of sub-section (2) and sub-section (3) of Section 23 of the Act by remaining ex-parte and the court is helpless in requiring the presence of that party even if in the circumstances of the case so required. We are of the opinion that court can in such a situation require the personal presence of the parties. Though the proceedings were ex-parte in the case like this the court cannot be a silent spectator and it should itself endeavour to find out the truth by putting questions to the witnesses and eliciting answers from them. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

In the circumstances aforesaid, the High Court should not have summarily dismissed the appeal. By doing so it has also failed to exercise its power of superintendence under Article 227 of the Constitution. The High Court should have been if the proceedings before the District Judge were in accordance with the procedure prescribed and as per the law applicable. To direct the appellant to file a separate suit for setting aside the decree of divorce on the ground of fraud otherwise is hardly a solution to the case.

As to the correctness otherwise of the allegations made by the appellant or the stand taken, by the respondent, we do not wish to comment as it might prejudice the case of either of the parties as we are considering of remanding matter back to the District Judge for trial of the case afresh.

Accordingly, the appeal is allowed, the impugned judgment dated September 27, 1996 of the High Court and as well as that of District Judge dated December 4, 1995 are set aside. The matter will go back to the learned District Judge to try and proceed with the petition in accordance with law.

A copy of this judgment shall be sent to the District Judge, Patiala immediately and the parties are directed to appear in that court on December 17, 1977.

The appellant is entitled to costs which we quantify Rs. 2,000/-.

*****************************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 with necessary Emphasis, Re formatting
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Husband’s Divorce NOT decreed aftr 18yrs, but maintenance arrears ordered ! Why ppl still get married ?main

Many times I wonder why ppl get married !! Today, a marriage is NOT between a woman and man… It’s between the Man and courts, the man and the police!

Here is a case where the Husband’s Divorce NOT decreed after 18yrs, YES 18 years. The husband’s counsel says that the case is NOT decreed after repeated orders by the Hon High court. So one wonders as to what powers the high court has, if the family court which is within the same compound does NOT listen to the Honourable HC

However maintenance arrears ordered and husband is asked to pay the same within ONE WEEK from date of receipt of order !! Tell me why Why ppl still get married ?

Excerpts

“…..The petitioner (husband) filed an Original Petition in O.P.No.69 of 1997 for divorce on the ground of cruelty way back in the year 1997. It is brought to the notice of this Court that even after nearly 18 years, the said Original Petition has not yet been disposed of. …..”

“………respondent/wife filed an application u/Section 24 of HMA, claiming interim maintenance. Family Court awarded Rs.3,000/- per month as interim maintenance to the respondent (WIFE) herein…………”

Now the Honourable HC orders : “….6.In those circumstances, the petitioner is directed to pay a sum of Rs.2,19,000/- to the respondent within a period of one week from the date of receipt of a copy of this order ….” and also orders speedy closure of the divorce case !!

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

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.06.2015

CORAM THE HONOURABLE Mr. JUSTICE M.DURAISWAMY

Civil Revision Petition (PD) No.4254 of 2014 and M.P.No.1 of 2014

U.R.Anandakrishnan                        …   Petitioner

v.

A.S.Ramaa                    … Respondent

Civil Revision Petition filed under Article 227 of the Constitution of India against the order and decreetal order dated 30.08.2014 made in EP.2 of 2013 in IA1757 of 2000 in OP 69 of 1997 on the file of the III Additional Family Court at Chennai directing payment of arrears of maintenance of Rs.2,13,000/- on or before 06.10.2014.

For Petitioner           : Mr.V.Raghavachari

For Respondent      : Mr.J.Saravanavel

ORDER

Challenging the order passed in E.P.No.2 of 2013 in I.A.No.1757 of 2000 in O.P.No.69 of 1997 on the file of the learned III Additional Family Court at Chennai, the petitioner who is the husband of the respondent has filed the above said Civil Revision Petition.

2.The petitioner filed an Original Petition in O.P.No.69 of 1997 for divorce on the ground of cruelty way back in the year 1997. It is brought to the notice of this Court that even after nearly 18 years, the said Original Petition has not yet been disposed of. In the Original Petition, the respondent/wife filed an application in I.A.No.1757 of 2000 under Section 24 of the Hindu Marriage Act, claiming interim maintenance. The Family Court awarded a sum of Rs.3,000/- per month as interim maintenance to the respondent herein. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3.Since, the petitioner failed to pay the interim maintenance amount as awarded by the Family Court, the respondent/wife filed an Execution petition in E.P.No.2 of 2013 claiming arrears of maintenance to the tune of Rs.2,28,000/- for the period from September 2006 till December 2012.

4.When the matter is taken up for hearing today, Mr.J.Saravanavel, learned counsel for the respondent submitted that the period of arrears was wrongly mentioned in the order as September 2006 to December 2012 and in fact, the period is from June 2009 to December 2012. If the arrears of maintenance is calculated for the said period i.e., 43 months the arrears comes to Rs.1,29,000/-. Further, the learned counsel submitted that till June 2015, the total arrears comes to Rs.2,19,000/- .

5.Mr.V.Raghavachari, learned counsel for the petitioner submitted that in spite of the repeated orders passed by this Court to dispose of the Original Petition in O.P.No.69 of 1997, the Family Court has not disposed of the same. Further, the learned counsel submitted that the oral evidence on either side was closed by the Family Court and the matter is posted for arguments.

6.In those circumstances, the petitioner is directed to pay a sum of Rs.2,19,000/- to the respondent within a period of one week from the date of receipt of a copy of this order and since, the Original Petition in O.P.No.69 of 1997 is pending for long period in spite of the repeated orders passed by this Court to dispose of the same, I direct the III Additional Family Court, Chennai to dispose of the original petition in O.P.No.69 of 1997 without any further delay, in any event, not later than two months from the date of receipt of a copy of this order and report disposal of the original petition to the Registry of this Court. With these observations, the order passed in E.P.No.2 of 2013 in I.A.No.1757 of 2000 in O.P.No.69 of 1997 is modified and the Civil Revision Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.

04.06.2015

Index          :  No

Internet       : Yes

jbm

To

The III Additional Family Court,
Chennai.

M.DURAISWAMY, J

jbm

CRP (PD) No.4254 of 2014

04.06.2015

*****************************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.
*******************************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

Removing mangasutra, ill-treating husband, neglecting household & child, ALL cruelty. AP HC confirms Divorce

* The marriage on 26th February, 1982 at Eluru according to Hindu rites and customs.
* Out of their wedlock, in the year 1982, a male child was born.
* Wife did not breast feed the male child and did not choose to pay proper care and attention. Ultimately, the boy died due to lack of proper care
* she was brought back by her parents by eventually left the husband
* she also left her matrimonial home and filed for maintenance
* lower court appreciates the evidence and grants divorce to husband, on grounds of cruelty
* wife goes on appeal to AP HC

The Honourable HC appreciates the evidence on record and summarises as follows
*  ……At the outset it must be stated that this petition is filed not on the ground of desertion nor anything else except cruelty by the appellant (wife) to the respondent (husband).
*  ……It is for the respondent (husband) to establish the cruelty by his wife, towards him.
*  ……Even if the appellant is cruel, it does not make any difference.
*  ……In this connection various decisions of the Supreme Court have been referred to.
*  ……The Supreme Court held that the onus is upon the petitioner to establish cruelty.
*  ……He has to fall or succeed on his own evidence and not on the laches of the other spouse.

*  ……A threat by wife to her husband that she would put an end to her life or that she would be set herself to fire is sufficient to imperil the happiness of the husband.
*  ……The act like removing Mangala-sutram etc., beating the child would amount to cruelty, Admittedly, the respondent is not having her Mangalasutram or Pasuputadu on her neck while giving evidence. She removed, it even though the marriage was subsisting and her husband is alive. Such act is not expected from an educated Hindu Brahmin Woman. Here it may be mentioned that this Court requested one of the junior Advocates of Sri C.V.N. Sastry to examine and find out whether the appellant-wife is wearing Mangalasutram or not. On verification, he informed the Court that the appellant is not having mangalasutram or Pasuputadu….”

*  ……Be that as it may, cruelty need not be physical. It can be mental cruelty making the life of husband miserable always with quarrel. Frequent desertion itself is sufficient cruelty to attract the provisions of the Hindu Marriage Act. Mental cruelty itself is sufficient to cause greater injury and creates a resonable apprehension that it will be harmful and unsafe to live with her. The Court below has elaborately dealt with the aspect of the matter in paragraph 18 of its judgment and held that there is no reason for the wife to live away from her husband. The reasoning given by the Court below is cogent and convicing and does not call for interference in appeal…..

*  ……The respondent-husband deposed as P.W. 1 and his evidence is corroborated by the evidence of his father who was examined as P. W. 2. There is no reason to discredit their evidence. From their evidence it is clear that the wife was treating her husband with cruelty and she never showed any affection towards him. She made his life miserable and therefore she is responsible for breaking down his family life. The learned Magistrate, who tried the maintenance case also came to the conclusion that the wife is responsible for breaking down the marriage. Therefore, having regard to all the circumstances of the case, we find that the appellant-wife was responsible for the failure of the marriage, and that the respondent-husband has established that the appellant behaved cruelly towards him.

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ANDHRA HIGH COURT

SMT. PARIMI MEHAR SESHU VS PARIMI NAGESWARA SASTRY

29 APRIL, 1993

EQUIVALENT CITATIONS: AIR 1994 AP 92, 1993 (2) ALT 489, I (1994) DMC 417

AUTHOR: G R RAO

BENCH: G R RAO, G N RAO

ORDER G. RADHAKRISHNA RAO, J.

1. This civil miscellaneous appeal was brought in challenge against the order passed by the learned Subordinate Judge, Gudivada, in O.P. No. 99 of 1989 on his file; whereby the learned Subordinate Judge found that the petitioner, respondent herein, has established that the respondent, appellant herein, behaved cruelly towards him and that, therefore, the petitioner is entitled for divorce.

2. The facts of the case in brief, are as follows: The marriage between the petitioner and the respondent had taken place on 26th February, 1982 at Eluru according to Hindu rites and customs. Later, the marriage was consummated. Thereafter, the respondent joined the petitioner and lived for about three months at Gudivada. In or about 1983, the petitioner shifted his family to Mangalagiri where he was working as Lecturer. Out of their wedlock, in the year 1982, a male child was born. The respondent developed aversion towards the male child and did not choose to pay proper care and attention. Ultimately, the boy died due to lack of proper care. The respondent openly expressed her disliking towards the petitioner. The respondent treated the petitioner with cruelty. In the year 1983, she left her parents house. When requested by the petitioner, the respondent bluntly refused to join the petitioner. Subsequently, the respondent and her mother came to Mangalagiri and stayed nearly for one month. During that period also, the respondent treated the petitioner with cruelty. In the month of February, 1984, the respondent and her mother left the petitioner’s house without informing him. Subsequently, the petitioner came to know that the respondent gave birth to a female child. When the petitioner’s father went to see the child, he was insulted by the relatives of the petitioner. He came back to Mangalagiri and informed the same to the petitioner. Thus the respondent treated the petitioner with cruelty and developed aversion towards him.

3. The respondent-wife filed a counter resisting the averments made in the petition. She admits the marriage and their relationship as man and wife. She also admits that she gave birth to a male child on 27-12-1982. It is admitted by her that subsequently disputes arose between both of them due to the interference by the parents of the petitioner. According to her, the parents of the petitioner have no liking towards her and, therefore, they have been instigating their son, petitioner, to ill-treat her. The petitioner insisted on abortion for which the respondent did not agree. He used to send her to Eluru on some pretext or the other on the ground that she was unwell and required medical attention. She was not taken after the death of the male child. Therefore, she went to Mangalagiri along with her mother. The respondent again became pregnant. The petitioner insisted on abortion as he does not like children at early age. Thereafter, disputes arose between the petitioner and the respondent. Therefore, the respondent was brought to Gudivada and kept her in the house of his grand-mother. Ten days thereafter she was driven out of the house after taking all the jewellery. She was compelled to file M.C. No. 10/ 86 on the file of the First Class Magistrate, Eluru. She also filed O.S. 148/86 on the file of the District Munsif, Gudivada, for partition of joint family properties. She admits that she is ready and willing to join her husband, respondent. She asserts that the parents of the petitioner are responsible for the failure of the marriage and now she is employed in a local College at Eluru. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. The petitioner examiend (himself) as P.W. 1 and got his father examined as P. W. 2. On the other hand, the respondent examined herself as R.W. 1 and got examined her brother and uncle as R.Ws. 2 and 3 respectively. Exs. A1 to A10 were marked on behalf of the petitioner. Hearing the counsel on either side, going through the entire evidence on record and considering the facts and circumstances of the case, the learned Subordinate Judge came to the conclusion that the petitioner has established that the respondent behaved cruelly towards him and that, therefore, he is entitled for divorce. Aggrieved by the aforesaid order, the respondent-wife has preferred this civil miscellaneous appeal.

5. It is vehemently contended by the learned counsel for the appellant-wife that the Court below erred in holding that the respondent has made out a case of cruelty and that he is entitled for divorce. The evidence of P.Ws. 1 and 2 is discrepant and is not corroborated by any independent evidence. There is no clear finding based on any legal evidence to justify the conclusion reached by the court below. It is contended further that the Court below should have seen that the acts and conduct attributed to the appellant, even assuming it to be true, do not amount to cruelty warranting a decree of divorce. It is further contended that the petition for divorce is not bona fide and that it is filed with a view to get rid of the appellant and contract a second marriage. On the other hand, it is the contention of the learned counsel for the respondent that the appellant used to abuse the respondent in vulgar language, that she openly expressed her disliking towards the respondent, that the appellant treated the respondent with cruelty and that the respondent’s father was insulted by the relatives of the appellant. Therefore, it is prayed that the conclusion arrived by the Court below is correct and a decree of divorce may be granted on the peculiar facts and circumstances of the case.

6. To appreciate the rival contentions advanced by both the learned counsel appearing for the parties, it would be necessary to look into the evidence adduced by the parties.

7. The petitioner himself examined as P.W.1, who deposed that the respondent-wife never respected him as her husband. She treated him like a boy friend. She used to say that if her father was alive, she would have married her cousin and she does not like the petitioner. On 27-12-1982 a son was born at Eluru. In the third month she brought the child to Gudivada. They shifted to Mangala-giri in July, 1983. At Mangalagiri daily she was picking up quarrel. She was abusing him, spitting in the meals plate and eventually she poured hot coffee on his testicles. She was not giving breast feeding to the child. Therefore, the health of the boy was spoiled and ultimately the boy died. It was only due to the negligence and carelessness of the attitude of the respondent, the child died. He further deposed that she used to comment him as an ‘animal’. She does not give any respect to him. She was not interested in seeing the welfare of the petitioner and his people. She tied a banian around her neck and tried to commit suicide. He deposed further that the mother and brother of the respondent advised her to behave property and not to ill-treat the petitioner. Exs. A3 and A4 are the letters written by the mother and brother of the respondent. She went to Gudivada, stayed for one week and went away without informing anybody. When she went to the house of one Sri Srinivasacharyulu, Advocate at Eluru, he advised her to live with her husband properly. She was taken to Gudivada where she stopped taking food. Two days after she went to Eluru, the respondent brought her to Mangalagiri. Both of them stayed there for one’ month. Afterwards, the respondent left the house on 31-1-1984. He went to Eluru on 7-3-1984 to bring her back, but she refused to come with him. On 11-9-1984 she gave birth to a female child. On 3-3-1985 the respondent, her mother and child and other elders came to Mangalagiri. At their instance the respondent executed a letter that she would behave properly; certified copy of which is marked as Ex.A-5. She stayed for about ten days and again went away and he never advised her for abortion. He further deposed that the respondent filed M.C. 10 of 1986 on the file of the First Class Magistrate, Eluru, for maintenance and subsequently it was dismissed on the ground that the respondent deserted her husband; certified copy of which is marked as Ex. A-6. It is suggested to him that the mother of the petitioner was interested in another alliance; but against her wish the petitioner married the respondent and that, therefore, she developed ill-will or grudge against the respondent. Even though the witness was cross-examined at length, nothing could be elicited to prove that what all he deposed is not correct. The petitioner further deposed that the respondent did not evince interest with him to have conjugal happiness. He has to act according to her wish. If she has no desire, she never allowed him to sleep with her. It is suggested to him that he was very cruel in the bed room, very rude towards her and he was behaving like a sadist. The respondent expressed her desire to keep her mother with her and when the petitioner did not agree for it, all these troubles started. She was not co-operating with him in all the matters. He never kicked her on the stomach and he was never cruel towards her. P.W. 2 is the father of the petitioner. He deposed that both parties lived together after marriage; but she was quarrelling with her husband always. The evidence of P.W. 2 is corroborated by the evidence of P.W. 1 in all material particulars.

8. The respondent gave evidence as R.W. 1. She denied the allegations made in the petition. She deposed that after marriage she came to Gudivada and lived with her parents-in-law. Her mother-in-law was not affectionate towards her as she intended to perform the marriage of her son with another girl of her choice. At her instance, the petitioner used to ill-treat her by beating and abusing. Up to third month of the child she was giving feeding; but she became sick and was admitted in the hospital. The petitioner and his mother were harsh towards her. He used to bite on her breasts. He used to have breast milk preventing the baby and depriving the baby to have the milk. He used to kick her on the stomach, so that the pregnancy may terminate. She asserted that she never poured hot coffee on the testicles of the petitioner. She deposed that she is ready and willing to live with her husband. She is not responsible for breaking of the marriage. She admits that she is not wearing mangal sutram’ nor ‘pasuputadu’ at present. She admits that there was no dispute on the first pregnancy and she stated in her maintenance petition that her husband is good . She never wrote any letter to her people that she was ill-treated by the petitioner or his parents. She alleged that she was not having any milk to feed the baby as P.W. 1 (Petitioner) used to suck them always. She never went to any doctor for treatment of the injuries she got during sexual intercourse with the petitioner. She never attempted to commit suicide with the banian of the petitioner. The petitioner has nothing to do with the abortion of the second pregnancy. The petitioner filed this petition with a view to have second marriage. R.W. 2 is the brother of the respondent. He deposed that his sister was always willing to live with her husband. Himself and his mother have no capacity to maintain the respondent. The evidence of R.W. 2 is corroborated by the evidence of R.W. 1. R.W. 3 deposed that on one day the respondent, P.W. 1 and P.W. 2 came to his house from Gudivada. They left the respondent at his house saying that they would come back again but they did not come back. Therefore, he issued a telegram to the mother of the respondent who was in Madhya Pra-desh. The petitioner did not allow the respondent into the house. Therefore, they took back the respondent to Gudivada. There also they did not allow her into the house. Again they took her to Mangalagiri and left her there. Thereafter, they went away. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9. At the outset it must be stated that this petition is filed not on the ground of desertion nor anything else except cruelty by the appellant to the respondent. It is for the respondent to establish the cruelty by his wife, towards him. Even if the appellant is cruel, it does not make any difference. In this connection various decisions of the Supreme Court have been referred to. The Supreme Court held that the onus is upon the petitioner to establish cruelty. He has to fall or succeed on his own evidence and not on the laches of the other spouse. The Supreme Court also held that in matrimonial cases strict proof is not necessary. The Court must be satisfied on matters alleged before it. A reasonable satisfaction by the Court is sufficient. The satisfaction should be based on preponderance of the probabilities and not on absolute satisfaction beyond reasonable doubt. The Court should consider that the petitioner is riot taking any undue advantage of the circumstances in his favour. A threat by wife to her husband that she would put an end to her life or that she would be set herself to fire is sufficient to imperil the happiness of the husband. The act like removing Mangala-sutram etc., beating the child would amount to cruelty, Admittedly, the respondent is not having her Mangalasutram or Pasuputadu on her neck while giving evidence. She removed, it even though the marriage was subsisting and her husband is alive. Such act is not expected from an educated Hindu Brahmin Woman. Here it may be mentioned that this Court requested one of the junior Advocates of Sri C.V.N. Sastry to examine and find out whether the appellant-wife is wearing Mangalasutram or not. On verification, he informed the Court that the appellant is not having mangalasutram or Pasuputadu. After hearing arguments, the appeal was posted for judgment next day. Today the appellant filed a petition requesting the Court that the matter may be posted before another Bench. We declined to do so and this practice of filing such petitions should not be encouraged.

10. Be that as it may, cruelty need not be physical. It can be mental cruelty making the life of husband miserable always with quarrel. Frequent desertion itself is sufficient cruelty to attract the provisions of the Hindu Marriage Act. Mental cruelty itself is sufficient to cause greater injury and creates a resonable apprehension that it will be harmful and unsafe to live with her. The Court below has elaborately dealt with the aspect of the matter in paragraph 18 of its judgment and held that there is no reason for the wife to live away from her husband. The reasoning given by the Court below is cogent and convicing and does not call for interference in appeal.

11. The respondent-husband deposed as P.W. 1 and his evidence is corroborated by the evidence of his father who was examined as P. W. 2. There is no reason to discredit their evidence. From their evidence it is clear that the wife was treating her husband with cruelty and she never showed any affection towards him. She made his life miserable and therefore she is responsible for breaking down his family life. The learned Magistrate, who tried the maintenance case also came to the conclusion that the wife is responsible for breaking down the marriage. Therefore, having regard to all the circumstances of the case, we find that the appellant-wife was responsible for the failure of the marriage, and that the respondent-husband has established that the appellant behaved cruelly towards him.

12. We have scanned the entire material and evidence let in by both the parties and we do hot find any law in the order under appeal. The reasoning and the conclusion arrived at by the Court below are sound and does not call for our interference in this appeal. Consequently, the appeal is dismissed. There will be no order as to costs.

13. Appeal dismissed.

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refusing sex, suicide threats, illtreating indifferent attitude to husband’s relatives, All cruelty. Delhi HC

* Husband and wife are doctors
* Wife says she is un interested in the marriage right from the very beginning
* Wife abstains from sex even during honey moon, has to be coaxed, cajoled etc to have sex
* she refuses to live with her husband, refuses to take part in Diwali Puja and continues to live at her parents place
* She threatens of suicide on the day of the husband’s brother’s engagement and creates a big scene of trying to jump from the house balcony ; She refuses to attend to her father in law when father in law is operated upon, and bedridden ;
* In addition to above she tries to force the husband to move away from his parents and live at her place; All above acts are decreed as cruelty by the lower court and confirmed by Delhi HC

The Honorable HC Goes thru a cantena of decisions on Cruelty and decides that the wife’s behavior towards her husband, in laws and marriage constitute cruelty !!

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Delhi High Court
Smt. Alka vs Dr. R.K. Gautam
6 March, 1996
Author: D Bhandari
Bench: M J Rao, D Bhandari
ORDER Dalveer Bhandari, J.

1. This appeal is directed against the judgment of the learned single Judge passed in FAO 169/92. The learned single Judge affirmed the judgment and order passed by the learned Addl. District Judge and dismissed the appeal.

Brief facts necessary to dispose of this appeal are recapitulated hereinunder.

2. The appellant and the respondent belong to the medical profession. They got married on 27th Nov. 1986 when the appellant was preparing for her final year examination of MBBS at Meerul, U. P. The respondent Dr. R.K. Gautam had filed a petition for dissolution of marriage on the ground of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1959, as amended by the Amendment Act, 1976. Section 13(1)(ia) of the 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 decree of divorce on the
      ground that the other party-
      
      (i) …..
      
      (ia) has, after the solemnization of the marriage, treated the
      petitioner with cruelty, or…..”

3. It is alleged in the petition, that even during their short trip of honey-moon to Shimla immediately after marriage, the appellant informed the respondent that she was not happy with the marriage and, in fact she did not want to get married at that stage. It is also alleged that the conduct and behaviour of the appellant had been far from normal from the very beginning. During the entire stay of the honeymoon trip of 5 days at Shimla, with great difficulty and persuation, she submitted for sexual intercourse only on two occasions.

4. It is alleged that the appellant went back to Meerut on or about 10-12-1986 a few days after marriage, and remained there up to the middle of April, 1987. It is submitted in the petition that the appellant during her stay at the house of the respondent maintained a very indifferent attitude towards other family members. She did not speak to them and even showed utter disrespect to the parents, sisters and brother of the respondent. It is alleged in the petition that the appellant plainly told the respondent that it was difficult for her to live with the respondent along with this family members in Delhi and she would like to live at Meerut at her parents house. The cumulative behaviour of the appellant caused great mental tension, worries and agony in the mind of the respondent. Therefore, from its very inception, the appellant was responsible for developing cracks in their matrimonial relationship. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. It is alleged in the petition that the father of the respondent Dr. R.K. Gautam was operated upon, on 8-4-1987 and he remained in the hospital from 7-4-1987 to 11-4-1987. The respondent requested the appellant to accompany him to visit his father at the hospital but she flatly refused. Not only this, when the father returned from the hospital, she also refused to look after him. It is also alleged that the appellant stayed at Delhi and left for Meerut on 12th April, 1987 without the consent of the respondent and his parents. During her stay at Delhi from 8-4-1987 to 12-4-1987, the behaviour of the appellant was rude, arrogant, taunting and disobedient. The appellant did not even like the respondent’s staying in the nursing home to look after his father.

6. On 12-4-1987, when the respondent asked the appellant to go and enquire about health of the father of the respondent, the appellant flatly refused saying that she was not supposed to look after the old man (her father-in-law). When the respondent objected to the rude behaviour of the appellant, the appellant threw a cup of tea saying that she be left at her parents house at Meerut and she did not want to live at the matrimonial house. It is also alleged that even during her stay for a short period for six days, the appellant denied the respondent the normal matrimonial pleasure and enjoyment of sex.

7. The respondent called upon the parents of the appellant and informed them about the attitude, conduct and behaviour of the appellant. The father of the appellant felt extremely sorry and despite his intervention, her pattern of behaviour remained unchanged. It is alleged that the appellant paid a short visit for a day during the month of May, 1987 and thereafter she came to Delhi on the Diwali festival at the instance of the parents of the respondent but again left for Meerut on 24th Oct. 1987 saying that she did not want to stay with other family members of the respondent jointly. She also told the respondent in the presence of his parents that the respondent should leave Delhi and settle at Meerut, failing which the appellant would have no relationship with the respondent and his parents. She did not even participate in the traditional Diwali puja. It is alleged that she not only misbehaved but also hurled abuses at them.

8. The learned Additional District Judge has carefully analysed the entire evidence on record and found substance in the allegations of the respondent. The learned trial Judge also arrived at the conclusion that the appellant without any reasonable or justifiable cause did not permit the respondent to have normal sex with her.

9. The learned Additional District Judge also came to the conclusion that the parties were newly married and even incomplete sex may amount to curelty, what to talk of her totally abstaining from normal marital sex. According to the learned Additional District Judge, the respondent is entitled to dissolve the marriage on this score alone.

10. The learned Additional District Judge on the basis of evidence on record came to the conclusion that the appellant treated all the relations of the respondent with total indifference. She did not show even the minimum courtesy of visiting her ailing father-in-law in the nursing home much less, looking after him or extending any help even during that period when he was admitted in the nursing home.

11. The learned Additional District Judge further arrived at a clear finding on the basis of the record that the act of abusing the parents-in-law and slapping her father was totally unpardonable and amounted to grossest kind of cruelty to the respondent and obviously it caused immense mental anguish and agony to the respondent.

12. The learned Additional District Judge has held that her queer and most out bursting as well as fitful conduct on the eve of engagement ceremony of the younger brother of the respondent crossed all the limits of decency and broke the harmony of matrimonial relations and peace of the household and split into titters. The learned Additional District Judge has held that the appellant had created ugly scene by indulging in tantrums by not even attending the engagement ceremony. Except the father of the appellant who remained behind everybody else including the appellant’s mother left for the ceremony. Immediately thereafter within almost two minutes she had bolted herself inside the room and then went up to the balcony and threatened to kill herself by committing suicide by jumping from the balcony. When her father tried to plead, she even abused him by using filthy language by calling him a ‘dog’ and ‘bastard’ and slapped him by saying that he had ruined her life by marrying her to the respondent.

13. The learned Additional District Judge has come to the conclusion that the respondent has proved that the general conduct and behaviour of the appellant towards his parents, brother and sisters was indifferent, insulting and volcanic. He also held that her persistent resistance to sexual intercourse and depriving the respondent of the normal pleasure of married life by staying away for long duration without reasonable excuse totally proves the case as set up by the respondent. The appellant’s almost schizophrenic and most reprehensible act in creating not only unpleasantness and abhorring situation by not joining the engagement ceremony and giving serious threatening of even committing suicide by jumping from the balcony on that occasion when a large number of relations of the respondent were present fully establishes and corroborates the case of respondent.

14. The learned Additional District Judge on the basis of evidence on record came to the conclusion that the respondent was treated with extreme cruelty by the appellant, and accordingly was entitled to a decree of dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act.

15. The appellant aggrieved by the order of the learned Additional District Judge filed first appeal before this Court. The learned single Judge of this Court had heard the counsel for the parties and also made efforts for reconciliation between the parties to save the marriage, particularly because both of them belonged to the medical profession. The learned single Judge observed that in spite of efforts, nothing fruitful came after such reconciliation. The learned single Judge has held that in view of the peculiar facts and circumstances of this case, it will not be in the interest of justice to reopen and revaluate the evidence by this Court in absence of any perversity in the impugned order. The learned single Judge has held that there was no reasonable or justifiable excuse for the appellant to deny normal matrimonial sex to the respondent. The appellant had not shown even the basic courtesy to her father-in-law, who was lying admitted in the nursing home. According to the learned single Judge her cumulative behaviour clearly amounted to cruelty on the part of the appellant, and in these circumstances the learned single Judge has held that there was no justification for him to interfere with the well reasoned order of the trial Court.

16. In the celebrated English decision, King v. King, 1952 (2) All ER 584, Lord Normand observed while defining cruelty as under:

      “The general rule in all questions of cruelty is that the whole
      matrimonial relationship must be considered, and that rule is of
      special value where the cruelty consists not of violent acts but of
      injurious reproaches, complaints, accusations or taunts. Wilful
      accusations may be made which are not true and for which there are no
      probable grounds and yet they may not amount to cruelty. To take an
      obvious example, they may have been provoked by the cruel conduct of
      the other spouse. There is in many cases no easy rule, no clear line
      of demarcation which divides cruelty from something which does not
      amount to cruelty.”

17. The best guide for this class of case was a passage in the judgment of Bucknill, J. in Horton v. Horton (1940) 3 All ER 380, which is as follows:

      “Mere conduct which causes injury to health is not enough. If he
      marries a wife whose character develops in such a way as to make it
      impossible for him to live happily with her, I do not think that he
      establishes cruelty merely because he finds that life with her is
      impossible. He must prove that she has committed wilful and
      unjustifiable acts inflicting pain and misery upon her and causing
      injury to his health.”

18. In King v. King, 1952 (2) All ER 584 (HL) (supra). It is observed that,

      “The general rule in all questions of cruelty in a matrimonial causes
      is that the whole of the relations between the husband and wife and
      all the relevant circumstances 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.”

19. In another case McEwan v. McEwan, 1964 108 Sol Jo 198 CA (sic), Lord Denning held that:

      “Cruelty being a question of fact the circumstances of each case must
      be taken into consideration, including the physical and mental
      condition and the position in life of the parties. However, the
      conduct complained of must be serious and higher than the ordinary
      wear and tear of married life.”

20. Rayden in his leading treatise on ‘Divorce’ mentioned as under:

      “To obtain a divorce on the ground of cruelty, it must be proved that
      one spouse in the marriage, however, mindless of the consequences,
      has behaved in a way which the other spouse could not in the
      circumstances, be called to endure, and that misconduct has caused
      injury to health or a reasonable apprehension of such injury. There
      are two sides to be considered in a case of crueltv, from the
      petitioner’s side ought this petitioner to be called on to endure the
      conduct, from the respondent’s side, was this conduct excusable.”

21. The question of cruelty in matrimonial relationship has been dealt in great detail in celebrated English case Gollins v. Gollins, (1964) AC 644. The House of Lords has in great depth examined this issue. In this case, the question which arose for consideration of the House of Lords was nature of matrimonial cruelty. The Court made the distinction between unequivocal and equivocal conduct and the Court has laid down as under:–

      “A distinction can be drawn between cases involving “unequivocal”
      conduct, which is conduct which clearly constitutes cruelty, and
      those involving “equivocal” conduct, conduct which may in certain
      circumstances amount to cruelly and in other circumstances not do so.
      The cruelty alleged here is plainly in the second category. There is
      no fundamental distinction between cruelty which gives rise to
      grounds for judicial separation and that which gives rise to grounds
      for divorce. The principles so far evolved from the authorities serve
      well enough in deciding cases in the first category, but there is no
      other guidance where the conduct complained of may be described as
      negative, or indirect, or not aimed at the other spouse or as
      unaggressive.”

22. In another English case, Evans v. Evans, (1950) 2 All ER 398, CA, Sir William Scott (Lord Stoweli), on the approach to be adopted in cases of cruelty observed:

      “….. it is the duty of courts…..to keep ….. [the definition of
      cruelty] extremely strict. The causes must be grave and weighty, and
      such as “show an absolute impossibility that the duties of the
      married life can be discharged.”

23. In Westall v. Westall, (1949) 65 TLR 337, CA Denning, L.J. said:

      “Although malignity as not an essential element of cruelty …..
      nevertheless intention is an element in this sense, that there must
      be conduct which is, in some way, aimed by one person at the other.”

Reliance is placed on this further passage from Denning L.J.’s judgment.

      “The conduct of the habitual drunkard, the gambler, the criminal or
      the profligate may cause his wife to break down in health but it is
      not cruelty unless combined with some conduct which is aimed at her,
      as, for example, when her justifiable remonstrance provoke unjust
      resentment on his part directed at her.”

24. In Gollins v. Gollins, 1964 AC 644 (supra), while concluding the case, the Court observed as under:–

      (a) Whilst the Courts should pay regard to changing social
      conditions, they should be alert not to open the door too wide, so
      that incompatibility of temperament and every defect of behaviour
      comes to be regarded as grounds for relief under the guise of cruelty.
      
      (b) Checks and brakes by way of enunciated principles are needed,
      such as that to constitute cruelty the conduct complained of must be
      grave and weighty and that not all matrimonial misconduct which
      results in injury to health amounts to cruelty.
      
      (c) The criteria and principles to be applied by the Courts should
      have some measure of uniformity so that there is some degree of
      probability in the law known to the public and those who have to
      advise them. One requirement should be that there must be actual or
      apprehended injury to health. In what has been described as the
      equivocal area there ordinarily should be an actual intent to inflict
      pain.

The Court also tried to define cruelly as the Court observed as under:–

      “Spouses owe rights and duties each to the other and in their
      relationships they must act reasonably. In every case where cruelty
      exists it is possible to say that the spouse at fault has been
      unreasonable. The test of cruelty therefore, should be breach of the
      duty to act reasonably, whether in omission or commission, causing
      injury to health. Such a test avoids imputing an intention where in
      fact none may exist. Further all such matters as foresight, desires,
      wishes, intentions, motives, perceptions, obtuseness, persistence and
      indifference would remain relevant but merely as matters of evidence
      bearing upon the requirement to act reasonably or as aggravation of
      the matters charged.

25. In the said case, the Court observed that while deciding such cases, one must have regard to the changes which have taken place in public opinion and in social policy. The Court observed :

      “Spouses owe each other a duty of conjugal kindness. If that duty is
      breached it is open to a tribunal to regard the conduct constituting
      the breach as unjustifiable. As to the objection that such a
      proposition runs counter to the old authorities, which lay stress on
      the fact that the spouses must put up with a good deal from one
      another in the interests of the sanctity of marriage, one must have
      regard to the changes which have taken place in public opinion and in
      social policy.”

26. The public opinion and social policy change from time to time and while adjudicating matters of this nature, the present public opinion and social policy must be taken into consideration. The concept of marriage and divorce have undertaken a serious change both in England and in India. Some historical perspective may be relevant. In 1790, when Sir William Scott decided Evans v. Evans, (1950) 2 All ER 398 CA the only way of contracting a marriage was by means of a religious ceremony, a marriage once contracted was not dissoluble by any judicial process. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

27. Alter the development of law and change in the public opinion, and perception of social policy, the policy of the law has been to relax the formalities and to make it easier to dissolve a marriage. With the passage of time, dissolution of marriage became simpler both in England and in India.

28. In another leading English case, Hall v. Hall (1962) 1 WLR 1246; (1962) All ER 518, CA.;

      “Danckwerts, L.J. adopted for the purposes of a case of constructive
      desertion, the test now proposed for cases of cruelty. He said that
      the question was whether this man’s conduct to this wife had been of
      such a nature that she could not reasonably be expected to endure it
      further. Diplock, L.J. said that for conduct to amount to
      constructive desertion it must be such that a reasonable spouse in
      the circumstances and the environment of the spouses could not be
      expected to continue to endure. Thus, in a cruelty case, if it can be
      shown that the conduct is such that no spouse could reasonably be
      expected to endure it, that conduct amounts to legal cruelty.”

29. The Court observed that it is very difficult to give comprehensive definition of cruelty. Cruelty cases depend on an even wider variety of matters than negligence cases. The particular circumstances of the home, the temperaments and emotions of both the parties, their status and their way of life, their past relationship and almost every circumstance that attends the act of conduct complained of may all be relevant.

30. Lord Tucker, in Jamieson v. Jamieson, (1952) AC 525, 550, observed :

      “It is in my view equally undesirable — if not impossible — by
      judicial pronouncement to create certain categories of acts or
      conduct as having or lacking the nature or quality which render them
      capable or incapable in all circumstances of amounting to cruelty in
      cases where no physical violence is averred,”

31. Therefore, each case has to be adjudicated on its own circumstances. The social status of the parties, their educational, cultural and financial background, their perceptions may all be relevant while determining the question of cruelty in matrimonial life.

32. If we revert to the fact of the present case, it is abundantly clear that general conduct and behaviour of the appellant has been far from being normal. She has not permitted the respondent to have normal sexual relationship,

33. In P. (D) v. P. (J), 1965-2 All ER 456, it has been held that;

      “the fact that the wife could not control her psychological
      inhibition did not in law negative the fact that her conduct
      inconsistently depriving the husband of normal sexual intercourse and
      the opportunity of becoming a father was unendurable and, as it
      seriously affected his health, constituted cruetly.”

34. “In Evans v. Evans, (1965) 2 All ER 789, husband was granted a decree on the ground of cruelty on the finding that the conduct of the wife in refusing to have intercourse was grave and weighty matter and did have an adverse effect on the husband’s health and consequently amounted to cruelty.”

35. A Division Bench of this Court in Rita Nijhawan v. Balkishan Nijhawan, had examined the similar issues and arrived at following conclusions :

      “Thus the law is well settled that if either of the parties to a
      marriage being a healthy physical capacity refuses to have sexual
      intercourse the same would amount to cruelty entitling the other
      party to a decree. In our opinion it would not make any difference in
      law whether denial of sexual intercourse is the result of sexual
      weakness of the respondent disabling him from having a sexual union
      with the appellant, or it is because of any wilful refusal by the
      respondent, this is because in either case the result is the same
      namely frustration and misery to the appellant due to denial of
      normal sexual life and hence 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
      favourable 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 disappointment in sexual
      intercourse.”

36. The observations in this case are relevant to the facts of the present. Therefore, it would be appropriate to reproduce them as under:

      “In the present case we find that at no time has there been normal
      married life between the parties. The appellant has never accepted
      the situation of remaining married but without having normal sexual
      relations. She has throughout put up with this mental torture, hoping
      that things might improve but finding that things remain the same and
      a time had reached when she could not put up with it any longer
      without danger to her health both physical and mental. It appears to
      us that the appellant has tried over a number of years genuinely
      though under very difficult circumstances to make the success of
      marriage but as the sexual weakness of the respondent has persisted
      it has obviously caused great strain and frustration to her. We have
      already found that sexual weakness of the husband has persisted all
      these years. Once that finding is given to insist on both the parties
      living together would be nothing but sheer misery endangering the
      physical and mental health of the appellant.”

37. In another case reported as Smt. Shakuntala Kumari v. Om Prakash Ghai, AIR 1981 Delhi 53, this Court held as under:

      “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 wilful 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.”

38. In another case, reported as Smt. Maya v. Brij Nath, AIR 1982 Delhi 240, while dealing with the concept of cruelty in the Hindu Marriage Act, the Court observed as under :–

      “Cruelty has not been defined in the Act. But it is now well settled
      that the conduct should be grave and weighty so as to make
      cohabitation virtually unendurable. It must be more serious than the
      ordinary wear and tear of marriage. The cumulative conduct taking
      into consideration the circumstances and the background of the
      parties has to be examined to reach a conclusion whether the act
      amounts, to cruelty. The petitioner in a divorce petition has to
      prove that he was treated with cruelty. The burden of proving the
      cruelty lies on him.”

39. In Dastane v. Dastane, , Chandrachud, J. speaking for the Bench held,

      “that where an allegation of cruelty is made, the inquiry has to be
      “whether the conduct charged as cruelty is of such a character as to
      cause in the mind of the petitioner a reasonable apprehension that it
      will be harmful or injurious for him to live with the respondent. “

The learned Judge held further

      “it is not necessary, as under the English law, that the cruelty must
      be of such a character as to cause “danger” to life, limb or health
      or as to give rise to a reasonable apprehension of such a danger.
      Clearly, danger to life, limb or health or a reasonable apprehension
      of it is a higher requirement than a reasonable apprehension that it
      is harmful or injurious for one spouse to live with the other …..
      But under S. 10(1)(b), harm or injury to health, reputation, the
      working career or the like, would be an important consideration in
      determining whether the conduct of the respondent amounts to cruelty.
      Plainly, what we must determine is not whether the petitioner has
      proved the charge of cruelty having regard to the principles of
      English law, but whether the petitioner proves that the respondent
      has treated him with such cruelty as to cause a reasonable
      apprehension in his mind that it will be harmful or injurious for him
      to live with the respondent.”

40. Though comprehensive definition of cruelty is neither available in the decisions of the English Courts and nor in the decisions of Indian Courts. In various judgments, the Courts have tried to define the ‘matrimonial cruelty’. Lord Reid in Gollins v. Gollins, 1969 AC 644 (sic) attempted to define cruelty. The relevant portion is extracted hereinbelow:

      “No one has ever attempted to give a comprehensive definition of
      cruelty and 1 do not intend/try to do so. Much must depend on the
      knowledge and intention of the respondent, on the nature of his (or
      her) conduct, and on the character and physical or mental weaknesses
      of the spouses, and probably no general statement is equally that the
      party seeking relief must show actual or probable injury to life,
      limb or health. It is easy to see that the origin of this requirement
      is the decision in the well known case of Russel v. Russel (1897 AC
      395).”

To the same effect are the observations of Lord Pearce:

      “It is impossible to give a comprehensive definition of cruelty, but
      when reprehensible conduct or departure from normal standards of
      conjugal kindness causes injury to health or an apprehension of it,
      it is, I think, cruelty if a reasonable person, after taking due
      account of the temperament and all the other particular circumstances
      would consider that the conduct complained of is such that this
      spouse should not be called on to endure it.”

41. Justice K. Jagannatha Shetty of the Supreme Court, as he then was, while speaking for the Division Bench, in Shobha Rani v. Madhukar Reddi, observed as under:

      “Section 13(1)(i-a) uses the words “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 behaviour. 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 on the mind of the spouse.
      Whether it caused reasonable apprehension that it would be harmful or
      injurious to live with the other. Ultimately, it is a matter of
      inference to be drawn by taking into account the nature of the
      conduct and its effect on the complaining spouse. There may, however,
      be cases whether 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.
      
      It will be necessary to bear in mind that there has been marked
      change in the life around us. In matrimonial duties and
      responsibilities in particular, we find a sea change. They are of
      varying degrees from house to house or person to person. Therefore,
      when a spouse makes complaint about the treatment of cruelty by the
      partner in life or relations, the Court should not search for
      standard in life. A set of facts stigmatised as cruelty, as cruelty
      in one case may not be so in another case. The cruelty alleged may
      largely depend upon the type of life the parties are accustomed to or
      their economic and social conditions. It may also depend upon their
      culture and human values to which they attach importance. We, the
      Judges and lawyers, therefore, should not import our own notions of
      life. We may not go in parallel with us and the parties. It would be
      better if we keep aside our customs and manners. It would be also
      better if we less depend upon precedents.”

42. The Hon’ble Supreme Court in the case of V..Bhagat v. Mrs. D. Bhagat, has defined mental cruelty in the following manner:

      “Mental cruelty in S. 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 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.”

43. The observations of Lord Denning in Sheldon v. Sheldon (1966) 2 All ER 257, 259, are as under:

      ” “the categories of cruelty are not closed.” Each case may be
      different. We deal with the conduct of human beings who are not
      generally similar. Among the human beings there is no limit to the
      kind of conduct which may constitute cruelty. New type of cruelty may
      crop up in any case depending upon the human behaviour, capacity or
      incapability to tolerate the conduct complained of. Such is the
      wonderful realm of cruelty.”
      
      “The conduct of the habitual drunkard, the gambler, the criminal or
      the profligate may cause his wife to break down in health but it is
      not cruelty unless combined with some conduct which is aimed at her,
      as, for example, when her justifiable remonstrance provoke unjust
      resentment on his part directed at her,”

44. We have heard the learned counsel for the appellant at length. The learned counsel for the appellant failed to assail the findings of the learned Additional District Judge and later affirmed by the learned single Judge regarding appellant’s total indifference and disrespectful conduct and behaviour towards the respondent and his relations and her attitude towards the normal matrimonial sexual relationship.

45. The general indifferent behaviour of the appellant with the respondent and his relations reached its pinnacle when she tried to jump from the balcony on the event of marriage in the family certainly amounted to the gravest act of cruelty. No infirmity or lacuna could be pointed out by the learned counsel in the finding of the trial Court which were affirmed by the learned single Judge of this Court.

46. This is one of those unfortunate cases where every effort to save the marriage or in other words all efforts for reconciliations have miserably failed. When all the facts, circumstances and evidence on record are comprehensively taken into consideration then it is not possible to arrive at any other conclusion than the one taken by the learned Additional District Judge.

47. In the present case, the learned Addl. District Judge has carefully scrutinized the allegations of the respondent and found substance in those allegations. Against that order, appeal was preferred to the learned single Judge who has again looked into the allegations, heard learned counsel for the parties and even unsuccessfully made an attempt for reconciliation of the parties. In this view of the matter, the judgment of the learned Addl. District Judge, affirmed by learned single Judge must be respected and treated as conclusive. We do not find any infirmity with the impugned judgment. The appeal being totally devoid of any merit is accordingly dismissed.

48. Appeal dismissed.

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