AIR 2009 Bombay 160 (Aurangabad Bench) Shobha Mhatardev Lomte V/s Mhatardev Tukaram Lomte . Hindu Marriage Act . S 13 ,– Divorce — Cruelty — can be physical and mental –mental cruelty can be more damaging than physical cruelty– wife making serious allegation against husband in her reply to notice and in her written statement — wife admitting in her cross examination that before making allegation of illicit relations of husband with other ladies she did not make any inquiry and nobody gave her information about the same–making serious allegation against opponent in writing itself amounts to mental cruelty –Husband entitled to divorce (para 8 ;9; 10)
////// 10. It is clear that making serious allegations against opponent in writing itself amount to a mental cruelty. Even Apex Court in another matter of G.V.N. Kameswara Rao v. G. Jabilli reported in : (2002) 2 SCC 296 : AIR 2002 SC 576, held that false police complaint and consequent loss of reputation and standing in society at the instance of one’s spouse, held, would amount to cruelty. Not only that, with the help of police in criminal complaint, she arrested the respondent for recovery of her maintenance. Whereas, it is the case of respondent that he used to pay her maintenance within time and in spite of that, the appellant with mala fide intention filed criminal complaint and harassed the respondent. //////
In the High Court of judicature at Mumbai
S.A. No. 135 of 2009
Judge K.K. Tated, J.
Shobha Mhatardev Lomte
Mhatardev Tukaram Lomte
Y.S. Choudhari, Adv. For appellant
L.B. Palod, Adv. For respondent
K.K. Tated, J.
1. Heard learned Counsel for the parties.
2. Present Second Appeal is preferred by the original plaintiff against the judgment and decree dated 24-08-2006 passed by the 4th Ad hoc Additional District Judge, Ahmednagar R.C.A. No. 217/2001 arising out of the judgment and decree dated 28-03-2001 passed by 3rd Joint Civil Judge, S.D. Ahmednagar in H.M.P. No. 140/1997.
3. The appellant, the original plaintiff and the respondent, original, defend ant married on 20-11-1987 at Rahuri as per Hindu religious rites and custom. After the marriage, the appellant had been to the respondent for cohabitation and for a few days, she was treated well by the respondent. Thereafter, as the respondent is Professor, he insisted the appellant to Have further education and insisted the appellant in the year 1988 to go to Aurangabad for completing her M.A. It is the case of the appellant that as Aurangabad was inconvenient place for the appellant for completion of her M.A., she requested the respondent to allow her.-to complete M.A. at Ahmednagar, as it was convenient for her. Because of her said suggestion, the respondent got annoyed. All along the respondent insisted that the appellant should go to Aurangabad only for further studies. She started residing with the respondent but the respondent started harassing her and used to beat and ill treat her on flimsy grounds. The respondent suspected her character. It is the case of the appellant that on flimsy grounds, the respondent refused to cohabit with the appellant. In the month of July 1994, brother of the appellant along-with other relatives went to the house of the respondent to remove the differences between the appellant and the respondent, as that they might lead happy married life but the respondent flatly refused to cohabit with the appellant. Thereafter, the appellant waited for some time in the hope that the respondent might allow her to cohabit with him. But, on 6-8-1994 the respondent issued a false and frivolous notice to the appellant and same was replied by the appellant on 16-08-1994. In the said reply, the appellant had specifically informed the respondent that she was ready and willing to cohabit with him, but the respondent did not turn to Rahuri factory to take her to the matrimonial home. Thereafter, the appellant sincerely made efforts through her brother and relatives but all efforts of the appellant, her brother and relatives failed.
4. It is the case of the appellant that with mala fide intention and just to harass the appellant, the respondent filed H.M.P. No. 86/1994 in the Court of the Civil Judge, Senior Division, Malegaon under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. In the said petition, the appellant filed her say wherein the appellant specifically submitted that she was ready and willing to cohabit with him and also filed application under Section 24 of the said Act for interim alimony wherein the Court was pleased to grant Rs. 1200/- per month to the petitioner including her son Vishwambhar. Thereafter, the respondent filed a pursis on 14-11-1995 in Malegaon Court and withdrew the petition filed by him for restitution of conjugal Fights. Therefore, the appellant was constrained to file present H.M.P. No. 140/1997 under Section 9 of the Hindu Marriage Act in the Court of the Civil Judge, Senior Division, Ahmednagar on 14-07-1997 for restitution of conjugal rights. In the said petition, the respondent filed his written statement cum counter claim dated 17-03-1998. The respondent preferred counter claim for decree of dissolution of marriage. To the said counter claim the appellant filed her written statement dated 01-03-2000 and denied all allegations. It is the case of the appellant that the respondent filed counter claim for divorce on the ground of desertion and cruelty. After hearing both the sides, the trial Court by judgment and decree dated 28-03-2001 dismissed the appellant’s application under Section 9 of the Hindu Marriage Act and allowed the respondent’s counter claim for divorce. Being aggrieved by the said judgment and decree dated 28-03-2001 passed by 3rd Joint Civil Judge, S.D. Ahmednagar, the appellant preferred RCA. No. 217/2001 in the Court of the District Judge, Ahmednagar on the ground that the lower Court has failed to consider the fact that the appellant had completed her education as per say of the respondent and when she was ready to complete her education, the place was not material. The appellant further challenged the said judgment and decree passed by the trial Court on the ground that the lower Court ought to have considered that if at all respondent was ready and willing to cohabit with the appellant, he would not have withdrawn H.M.P. which he had filed at Malegaon but this material aspect has been totally overlooked by the lower Court. Considering these objections and other grounds and hearing the respondent, the Appellate Court, by judgment and decree dated 24-08-2006 dismissed the appeal with costs. Being aggrieved by the judgment and decree dated 24-08-2006 passed by the 4th Additional District Judge, Ahmednagar in R.C.A. No. 217/2001, the appellant preferred present Second Appeal on the ground that both the Courts ought to have held that it cannot be said that the respondent had not established that the appellant had treated him with such cruelty as to entitle him to the decree for dissolution of marriage and moreover the Courts failed to consider that the said aspect had not been established by adducing independent convincing evidence. The appellant further submitted that the Courts below are not justified in allowing counter claim of the respondent especially when the respondent failed to adduce independent evidence to substantiate the claim for the decree of divorce. He only relied upon his own deposition. On the basis of these submissions, the learned Counsel appearing on behalf of the appellant contended that the appellant made out substantial question of law in the present Second Appeal and Second Appeal deserved to be allowed.
5. Record and proceedings of the trial Court was called by this Court as per order dated 19-3-2009. The learned Counsel appearing on behalf of the respondent submitted that both the Courts below categorically held that the appellant herself deserted the respondent without any reason and also treated respondent with cruelty. He further submitted that there was no substantial question of law involved in the present Second Appeal. Both the Courts concurrently held that the respondent was entitled to a decree for divorce on the ground of desertion and cruelty. He further submitted that for formulation of substantial question of law, question of law must be of such a character that it would pertain to gray area in which law is not settled and that the Apex Court in several decisions decided what was meant by cruelty. In view of these facts, learned Counsel appearing on behalf of the respondent submitted that Second Appeal deserved to be dismissed summarily with costs.
6. The learned Counsel for the appellant submitted that both the Courts below erred in coming to the conclusion that the respondent was entitled to the decree for divorce on the ground of desertion and cruelty. He further submitted that the respondent failed to bring cogent evidence on record to show that the appellant on her own deserted the respondent. Learned Counsel appearing on behalf of the appellant further submitted that both the Courts erred in coming to the conclusion that the respondent was entitled to the decree for divorce on the ground of cruelty-He further submitted that as on today also in the interest of male child, she was ready and willing to reside with the respondent.
7. On the other hand, learned Counsel appearing on behalf of the respondent submitted that both the Courts categorically held that the appellant in her written statement filed in H.M.P. No. 86/1994 made several wild allegations against the respondent. Those allegations themselves amounted to cruelty. He further relied on Exhibits 45,46 and 49 for supporting both the judgments passed by the Courts below that the respondent was entitled for decree of divorce on the ground of cruelty.
8. Along with the Counsel for the parties, I have gone through the deposition of the appellant. In cross examination, the appellant admitted that before making allegations about illicit relations of the respondent with other ladies, she did not make any inquiry and nobody gave her information about the same. The appellant in her reply to the notice made serious allegations against the respondent. According to him, it amounted to cruelty on the basis of which divorce sought by the respondent could be granted. Learned Counsel appearing on behalf of the respondent submitted that both the parties were residing separately since 1994. He further pointed out that the letter Exhibit-45, the appellant while addressing the respondent used the word ‘Lomtya’ when the surname of the respondent is ‘Lomte’. He submitted that this improper word used by the appellant goes to show that she had no respect at all for the respondent. From the evidence adduced by the appellant, there is reason to believe that fault lay with the appellant. It is clear from the record that the appellant’s brother sent letter to Chief Minister and Guardian Minister on 30-12-1996 and made wild and baseless allegations against the respondent in the said letter. This itself amounts to a cruelty. Cruelty can be of both kinds, physical and mental. It is physical when the body is injured and it is mental when feelings and sentiments are wounded. It causes mental pain, agony, emotional stress, frustration, suffering or fear of such a magnitude that it severs the bond of love and affection between the wife and the husband as a result of which it becomes impossible, for the party, which has suffered, to live with the other party. In other words, the party who has committed the wrong, is considered by the other party as not worthy of living with. Mental cruelty may be far more damaging than the physical cruelty.
9. In the present case, it is crystal clear from the evidence on record that the appellant treated the. respondent with cruelty. Learned Counsel appearing on behalf of the respondent relied on the judgment in the matter of Naveen Kohli v. Neelu Kohli reported in : 2006 (4) Mh. LJ 242 : AIR 2006 SC 1675. The Apex Court in this authority held that the cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions and their culture and human values to which they attach importance. Learned Counsel appearing on behalf of the respondent mainly relied on para 35 of the said judgment, which reads as under.
35. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to the 1976 amendment in the Hindu Marriage Act 1955 cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under section 10 of the Act. By 1976 amendment, the cruelty was made ground for divorce and the words which have been incorporated are ‘as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other parry’. Therefore, it is not necessary for a party claiming divorce to prove that the cruelty treatment is of such a nature as to cause an apprehension – a reasonable apprehension – that it will be harmful or injurious for him or her to live with the other party.
10. It is clear that making serious allegations against opponent in writing itself amount to a mental cruelty. Even Apex Court in another matter of G.V.N. Kameswara Rao v. G. Jabilli reported in : (2002) 2 SCC 296 : AIR 2002 SC 576, held that false police complaint and consequent loss of reputation and standing in society at the instance of one’s spouse, held, would amount to cruelty. Not only that, with the help of police in criminal complaint, she arrested the respondent for recovery of her maintenance. Whereas, it is the case of respondent that he used to pay her maintenance within time and in spite of that, the appellant with mala fide intention filed criminal complaint and harassed the respondent. Learned Counsel appearing on behalf of the respondent submitted that after decree of divorce, the respondent married with another lady and he is residing with another lady for last several years and therefore, nothing will come out from the present litigation.
11. On the basis of the above mentioned submissions and findings, both the Courts below concurrently held in favour of the respondent and I see no reason to differ. Hence the Second Appeal is dismissed with no order as to costs and the Civil Application stands rejected.