Tag Archives: cruelty

#Wife #convicted of murdering 3 children files #false #dowry case. Husband wins #divorce on #cruelty. SCC

Classic case where #matrimonial #cruelty is discussed; Smt. #Mayadevi vs #Jagdish #Prasad on 21 February, 2007; #Supreme #Court of India

A married woman, mother of four kids acts cruelly to her children, keeps them tied with ropes, does NOT even feed the husband, borrows monies and refused to repay the same and finally #kills #three of her children #throwing them into a #well !! She is arrested and #convicted u/s #302IPC. She filed an application for bail. While on bail, she filed a false case alleging dowry demand against the respondent-husband and his family members. Final report was given by police and it was observed that a false case had been lodged. However husband wins divorce on grounds of crulety. Supreme court affirms the same !!

This case establishes that proof beyond reasonable doubt is NOT required in matrimonial disputes: The concept of proof beyond the shadow of doubt is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence. Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial matters.

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Supreme Court of India

Smt. Mayadevi vs Jagdish Prasad on 21 February, 2007

Author: . A Pasayat

Bench: Dr. Arijit Pasayat, Dalveer Bhandari

CASE NO.: Appeal (civil) 877 of 2007

PETITIONER: Smt. Mayadevi

RESPONDENT: Jagdish Prasad

DATE OF JUDGMENT: 21/02/2007

BENCH: Dr. ARIJIT PASAYAT & DALVEER BHANDARI

JUDGMENT:

J U D G M E N T (Arising out of SLP (C) NO. 3686 OF 2006) Dr. ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Rajasthan High Court at Jodhpur dismissing the appeal filed by the appellant under Section 28 of the Hindu Marriage Act, 1955 (in short the ‘Act’).

Background facts in a nutshell are as follows:

Respondent filed an application for divorce on the ground of cruelty alleging that because of the acts of cruelty on several occasions perpetuated by the appellant, the respondent- husband was under apprehension that it would not be desirable and safe to stay with the appellant and to continue their marital relationships.

It was, inter-alia, stated in the divorce petition as follows:

Parties got married according to the Hindu rites on 17.4.1993. The appellant’s father was an employee in the Railway department and the appellant used to make demands for money frequently and used to quarrel when money was not paid. She did not even provide food to her husband or the children and used to threaten the husband to falsely implicate him in a case of dowry demand and to kill the children and to put the blame on the respondent-husband and his family members. On 23.10.1999 she took Rs.1,05,000/- from the respondent and acknowledged the receipt of the money in the diary of the respondent-husband. She used to borrow money from time to time at the behest of her parents. From the wedlock four children were borne namely, Neha, Anu, Khemraj and Vishnu Sagar. The appellant used to keep the children tied by ropes and she attempted to throw them down from the rooftop and used to physically torture them. She was temperamentally very cruel and used to behave cruelly with the children also. She always used to threaten that she will destroy the whole family of the respondent and that there would be no successor left in the family. On 5.4.2002 at about 12.00 noon she left her parental home alongwith three children namely, Neha, Anu and Khemraj on the pretext that she was going to her parental house which was located in the same village. Since she did not return till evening as was told to the respondent-husband, he started searching for her. During course of search the garments and slippers of the children and the appellant were found lying near the well of Ramialji. Police was informed and on search dead bodies of the three children were recovered from the well and appellant was also taken out of the well. A criminal case was instituted and she was convicted for an offence under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). She was pregnant at that time and subsequently delivered a child. She filed an application for bail. While on bail, she filed a false case alleging dowry demand against the respondent-husband and his family members. Final report was given by police and it was observed that a false case had been lodged. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The appellant filed her response to the petition for divorce and contended that no amount was borrowed by her father or any of her family members. The respondent-husband used to threaten her for dowry and she had never perpetuated any cruelty so far as the children and the husband are concerned. She did not know as to how the children fell into the well. She was herself unconscious and recovered after about four days. The husband, in fact, turned her out of matrimonial home on 5.4.2002 alongwith their three children. Unfortunately, she and the three children fell into the well. The appeal is pending against her conviction. The trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to her behaviour on the date of judgment in the criminal case. After the judgment of conviction was pronounced, she threatened to kill the husband and prosecute him. It was also noted by the trial Court that the allegation made by her alleging for dowry demand was dis-believed and the police gave final report stating that the case was falsely lodged. The trial Court granted the decree of divorce which was, as noted above, confirmed by the High Court in appeal by dismissing appellant appeal.

Learned counsel for the appellant submitted that the foundation of decree for divorce is the alleged conviction for which the appeal is pending and, therefore, the High Court should not have disposed of the matter. In any event, it is submitted that it was the husband and his family members who were torturing her and being threatened by the husband she had not made any grievance with the police. Unfortunately, when she made the allegation, the police did not properly investigate the matter and gave a final report exonerating the husband.

Learned counsel for the respondent on the other hand submitted that the instances highlighted by the trial Court and analysed in great detail by the High Court clearly made out a case for dowry and no interference is called for in this appeal.

The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

The expression ‘cruelty’ 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. Cruelty is a course or 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 in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or 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 (See Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121 and A. Jayachandra v. Aneel Kaur 2005 (2) SCC 22 ).

To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.

The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. The Courts do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. (See Dastane v. Dastane, AIR 1975 SC 1534). http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The instances of cruelty highlighted by the trial Court and also by the High Court clearly prove that the husband was subjected to mental and physical cruelty. It is not a fact as submitted by learned counsel for the appellant that the conviction in the criminal case was the foundation for the decree. On the contrary, the trial Court clearly mentioned that the aspect was not taken note of as the appeal was pending.

In view of what has been stated above, the inevitable result is dismissal of the appeal which we direct. There will be no order as to costs.

Filing false 498a, fake rape on BIL is cruelty !! Husband granted divorce by Bombay HC 

WIFS files fake 498 year, domestic violence, section 125 cocktail on husband… Claims that husband’s brother was about to rape her… The husband’s family is terrified… Husband’s father testifies about the terror… Husband tries to get her back, she refuses and files 498a t… However at the divorce hearing,  she claims that she is ready to live back with a husband to frustrate him …. The family court refuses to grant divorce  to the husband…finally, the honourable  High Court, sees through the wife’s game, and declares that she has treated the husband and his family with cruelty. Husband is granted divorce.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

FAMILY COURT APPEAL NO. 47 OF 2016

APPELLANT :- Vinay S/o Vasantrao Bagde, aged about 37years, Occ. Private Job, resident of Panchadeep Nagar, Wardha Road, Nagpur.
…VERSUS…

RESPONDENT :- ig Sou.Durga W/o Vinay Bagde, aged about 41 years, Occ. Service, resident of C/o Tanajirao Ukey, 187-B, Vina Nagar, Indore, (Madhya Pradesh)


Mr.Masood Shareef & Mr.A.J.Mirza, counsel for the appellant.

Mr.Anil Bambal, counsel for the respondent.


CORAM : SMT. VASANTI A NAIK & V.M.DESHPANDE, JJ.
DATED : 08-09.02.2017
O R A L J U D G M E N T
(Per Smt.Vasanti A Naik, J.)
The family court appeal is ADMITTED and heard finally at the stage of admission with the consent of the learned counsel for the parties.

  1. By this family court appeal, the appellant-husband (hereinafter referred to as ‘the Husband’ for the sake of convenience) 08-902FCA47.16-Judgment 2/17 challenges the judgment of the Family Court, Nagpur, dated 03.02.2016 dismissing a petition filed by him against the respondent-Wife (hereinafter referred to as ‘the Wife’) for a decree of divorce under Section 13(1)(i-a) of the Hindu Marriage Act.
  2. The husband had filed a petition under Section 13(1)(i-a) of the Hindu Marriage Act for a decree of divorce on the ground of cruelty. The marriage was solemnized between the parties on 08.03.2002 at Indore (M.P.), according to Buddhist rights and custom. It is pleaded in the petition by the husband that the wife started residing in the joint family of the husband at Nagpur along with father aged 71 years, his mother aged 60 years and his elder brother who was suffering from mental disorder. It is pleaded that the husband learnt that the wife was elder to him by four years and the said fact was concealed by her at the time of the marriage. It is pleaded that the wife was suffering from epilepsy and the said fact was also not disclosed. It is pleaded that though the husband and his family members treated the wife well and with affection, the wife did not behave properly. It is pleaded that the wife was admitted by the husband in a college to further educate her a per her wish. It is pleaded that in January-2010, the father of the wife came to Nagpur and demanded a sum of Rs.2,00,000/- from the father of the husband and since the husband had showed his inability to pay Rs.2,00,000/- for the construction of the house of the father of the wife, 08-902FCA47.16-Judgment 3/17 the wife became angry and collected her clothes, documents and ornaments and left for Indore along with her father. It is pleaded that the wife is residing along with her parents and her son Bhavesh from 02.02.2010 in her parental home. It is pleaded that though the husband asked the wife to join his company, the wife did not join the same. It is pleaded that the wife filed a false complaint against the husband and his family members under Section 498-A of the Indian Penal Code and the members of the family of the husband had to secure bail. It is pleaded that the wife had harassed the husband and his family members, mentally and financially by filing a false report against them. It is pleaded that the wife also filed the proceedings under Section 125 of the Code of Criminal Procedure and the proceedings under the Protection of Women from Domestic Violence Act, at Indore. It is pleaded that though the wife was not desirous to cohabit with the husband and indeed wanted a divorce, she had filed the proceedings only with a view to harass the husband and his family members. Some other vague allegations are also levelled against the wife to point out that the wife had treated the husband with cruelty.

  3. The wife filed the written statement and denied the claim of the husband. The wife denied all the adverse allegations levelled against her by the husband in her written statement. The wife pleaded that the behaviour of the husband and his family members changed drastically after some days of the marriage. The wife pleaded that the husband was a heavy drunkard and was merciless by nature. It is pleaded that the husband had treated the wife like an animal and she was mercilessly beaten up by the husband under the influence of liquor.

The wife pleaded that she was not permitted to come out of the house and to speak with anyone. It is pleaded by the wife that the father of the husband used to instigate the husband to give illtreatement to the wife till their illegal demand was fulfilled. It is pleaded that the husband and his parents always insulted the father and mother of the wife and stated that her father and mother were Bhikari. It is pleaded that on 28.01.2010, the husband was admitted in the hospital and, hence, the father and the mother of the wife had come from Indore to meet him.

It is pleaded that on 02.02.2010 the husband abused them in filthy language and after insulting them, threw the sarees and suitcases of the wife and her parents out of the house. It is pleaded that the wife was required to lodge a complaint in Sonegaon Police Station on 02.02.2010, after she left the house. It is pleaded that she was residing in the house along with her parents at Indore, after she left the matrimonial home on 02.02.2010. The wife sought for the dismissal of the Hindu Marriage Petition.

  1. The Family Court framed the issues and the parties tendered oral evidence. The husband examined himself and also examined his father and a maidservant who had worked in his house for some time during the stay of the wife. The wife examined herself and closed the evidence on her side. On an appreciation of the material on record, the Family Court dismissed the petition filed by the husband after recording a finding that the husband was unsuccessful in proving that the wife had treated him with cruelty.
  • Shri Shareef, the learned counsel for the husband, submitted that the Family Court was not justified in dismissing the petition filed by the husband. The learned counsel relied on the judgment in the proceedings launched against the husband and his family members for an offence punishable under Section 498-A of the Indian Penal Code.

  • By taking this Court through the said judgment, it is pointed out that the wife had levelled false and baseless allegations against the husband and his family members in the first information report as well as in the written statement in this petition. It is stated that after the complaint was filed by the wife in the police station at Indore, the husband and his family members were harassed both, mentally and financially and were required to secure bail. It is submitted that it could be proved on the basis of the judgment passed in the proceedings under Section 498-A of the Penal Code as also from the evidence tendered by the parties in this case that the wife had levelled false and baseless allegations against the husband and his family members. It is stated that though the husband had admittedly fractured his leg on 29.01.2010 and he was resting in the bed on 02.02.2010, the wife has levelled a false allegation that the husband threw her sarees and her suitcases as also her parents out of the matrimonial home on 02.02.2010. It is stated that it is apparent from the admissions by the wife in her cross-examination that the husband had an injury to his leg on 02.02.2010 and, hence, the case of the wife that she and her parents were thrown out of the matrimonial home on 02.02.2010 along with her sarees and her suitcases is false and baseless. It is submitted that the wife had never lodged a complaint against the husband during her stay in the matrimonial home till 02.02.2010 and on 02.02.2010, though it is stated that she had filed a complaint in the police station at Nagpur, the copy of the complaint is not placed on record. It is submitted that though the wife had left the matrimonial home on 02.02.2010, the complaint for an offence punishable under Section 498-A of the Penal Code is filed by her in the police station at Indore in the second week of July. It is submitted that if the wife was really ill-treated by the husband, she would have immediately lodged a report after she left the matrimonial home on 02.02.2010. It is submitted that this aspect of the matter is not considered by the Family Court in the right perspective to hold that the wife had treated the husband with cruelty. It is submitted that the wife has not only filed a false complaint against the husband but, has also filed a false complaint against his old parents and his elder brother, who was suffering from mental ailment. The learned counsel relied on the judgment reported in 2015(1) Mh.L.J. 900 (Manoj Pate v. Vijaya Pate) to substantiate his submission.

    1. Shri Bambal, the learned counsel for the wife, has supported the judgment of the Family Court. It is submitted that the Family Court has rightly dismissed the petition filed by the husband after observing that the husband has failed to prove that the wife had treated him with cruelty. It is stated that in his cross-examination, the husband had admitted that in the mediation proceedings, the husband had agreed to take back the wife to the matrimonial home. It is stated that the said admission of the husband in the cross-examination would disentitle the husband to a decree of divorce on the ground of cruelty. It is submitted that the husband has not properly pleaded about the mental agony caused to him and his family members due to the filing of a false complaint by the wife for an offence punishable under Section 498-A of the Penal Code. Though the learned counsel admitted that the wife had improved her case in regard to the harassment by the husband and his family members in her evidence tendered in the criminal proceedings, it is stated that the husband has not stated in his examination-in-chief that the evidence of the wife in the criminal proceedings has caused mental agony to him. It is stated that merely because the husband and his family members are acquitted in the criminal proceedings, it cannot be said that the report filed by the wife was false and baseless.
  • On hearing the learned counsel for the parties and on a perusal of the judgment of the Family Court and the Record & Proceedings, it appears that the following points arise for determination in this family court appeal. I) Whether the husband is successful in proving that the wife had treated him with cruelty? II) Whether the husband is entitled to a decree of divorce on the ground of cruelty? III) What order?

  • To answer the aforesaid points for determination, it would be necessary to consider the pleadings of the parties. The pleadings of the husband in respect of the ground of cruelty are very brief. The husband had pleaded that the wife had not disclosed to him before the marraige that she was older than him by four years. It is stated that the wife suffered from epilepsy but, this fact was also not disclosed to him and his family members. It is stated that the wife did not perform her duties in the matrimonial home properly and did not treat his parents well.

  • Apart from the aforesaid allegations, the husband has pleaded that after leaving the matrimonial home on 02.02.2010, the wife had lodged three proceedings against the husband at Indore, where she resided with her parents. According to the husband, the wife had filed the proceedings 08-902FCA47.16-Judgment 9/17 against him for maintenance under Section 125 of the Code of Criminal Procedure, she had filed proceedings against him under the provisions of the Protection of Women from Domestic Violence Act, seeking a direction that she should be provided with a violence-free atmosphere in the matrimonial home and had also filed a false complaint against the husband, his parents and his elder brother in the police station at Indore for an offence punishable under Section 498-A of the Penal Code. According to the husband, he and his family members had to secure bail in view of the lodging of the false police complaint against them, at Indore. The husband has pleaded that the husband and his family members were harassed mentally and financially due to the filing of the false complaint against them. The husband pleaded that the filing of the false, frivolous and vexatious proceedings against the husband and his family members has caused great harassment to them.

    1. The wife denied the claim of the husband and had pleaded that she had left the matrimonial home on 02.02.2010 as the husband threw her sarees, suitcases and also threw her and her parents out of the matrimonial home on the said date. The wife had pleaded that the husband was a heavy drunkard and he used to beat her and treat her like an animal after he was in an inebriated state. The wife denied that that she had filed a false complaint in the police station at Indore.
  • In our view, the Family Court has rightly held that the husband was unsuccessful in proving that the wife was four years older than him and that she had not disclosed this fact prior to the solemnization of the marriage as there is no cogent evidence in this regard. The Family Court has also rightly disbelieved the case of the husband that the wife suffered from epilepsy as there are no medical reports in this regard. The Family Court rightly held that to prove that the wife was suffering from epilepsy, some cogent evidence, in the nature of medical reports should have been placed on record by the husband to show that the wife suffered from epilepsy. The allegations levelled by the husband against the wife in regard to her ill-behaviour in the matrimonial home and that she did not perform her duties, are extremely vague and general. No specific instances are provided by the husband in the petition to show that in what manner, the wife was treating the husband and his family members with cruelty.

  • It would now be necessary to consider whether the husband is successful in proving that the wife had treated him and his family members with cruelty by lodging a false complaint in respect of an offence punishable under Section 498-A of the Penal Code. We have perused the first information report lodged by the wife in the police station at Indore, that is Exhibit 44. In the first information report filed by the wife in the police station at Indore, she had stated that the 08-902FCA47.16-Judgment 11/17 husband used to be under the influence of liquor and used to treat the wife like an animal. The wife had pleaded that the husband and his family members had demanded a sum of Rs.50,000/- from her parents.

  • The wife had stated in the complaint that her father-in-law used to abuse her and her mother-in-law asked her not to return to the matrimonial home till she fulfilled the demand. The wife had stated that the elder brother of the husband also was not behaving properly with her. The wife had stated in the complaint that her belongings were thrown out of the house by the husband on 02.02.2010 and that she and her parents were driven out of the matrimonial home. Similar pleadings find place in the written statement of the wife in this case also. We have perused the judgment in the criminal proceedings. On a perusal of the same, it appears that the wife has improved her case while tendering the evidence in those proceedings and has levelled extremely serious allegations against the husband and his family members. It appears from the jdugment in the criminal proceedings that the wife had stated in her evidence in the criminal proceedings that the elder brother of the husband always threatened that he would rape her. The wife has stated that the elder brother of the husband had caught hold of her hand on several occasions in her bedroom. The wife has further stated in those proceedings, as we can find from the judgment in the criminal proceedings that the husband used to dump her in the refridgerator and also used to throw her down the staircase. No doubt, this is not the case of the wife in the present proceedings. This was also not the case of the wife in the first information report lodged by her in the police station at Indore. The wife had left the matrimonial home on 02.02.2010 and lodged the police complaint at Indore several months later, in the second week of July-2010. Had the husband and his family members really treated the wife with such cruelty as is contemplated by the provisions of Section 498-A of the Penal Code, the wife would have filed a complaint against her husband and her in-laws immediately after leaving the matrimonial home. At least, there should have been some material for proving that she had made any complaint in regard to such inhumane behaviour by the husband and his family members during her stay in the matrimonial home for nearly eight years. In the instant case, the husband has examined the maidservant, who was working in the house for some time during the stay of the wife in the matrimonial home. The said witness has supported the case of the husband that the wife was never treated badly in the matrimonial home. In the cross-examination, though a tricky question was put to the maidservant as to why she did not ask the husband to refrain from drinking, the maidservant had stated that she had never seen the husband in an inebriated condition and, hence, there was no reason to tell him so. Except the bare words of the wife in her examination-in-chief that she was beaten by the husband when he was in an inebriated state and she was treated like an animal, there is nothing on record to support her case. The complaint allegedly filed by her in the police station at Nagpur on the date on which she had left the matrimonial home is not placed on record by her. In fact, the wife admitted in her cross-examination that she had infomred in the police station at Nagpur on 02.02.2010 that no action should be taken against her husband as there was an injury to his leg.

    It is unbelievable that a husband who had fractured his leg on 29.01.2010 and was confined to the bed on 02.02.2010 would throw all the belongings of the wife along with her suitcases out of the house and also throw her and her parents out of the house. This is surely an exaggeration and the statement is unbelievable. It may be true that there must be some fight between the husband on one hand and the wife and her parents on the other on 02.02.2010, as a result of which the wife has left the matrimonial home but, the case of the wife that the husband who had fractured his leg and was on the bed, had thrown her belongings out of the house and also threw her and her parents out of the matrimonial home, appears to be false and baseless. It is apparent from a reading of the evidence of the parties that the wife has failed to prove that on 02.02.2010, the husband threw the belongings of the wife along with her suitcases out of the house and had also driven the wife and her parents out of the matrimonial home. Admittedly, when the husband had fractured his leg and was unable to move about, as is admitted by the wife in the cross-examination, the husband could not have thrown the wife, her parents and the wife’s belongings out of the matrimonial house on 02.02.2010, as pleaded by the wife. On the said day i.e., 02.02.2010, the husband’s parents were not in the matrimonial home as they had gone to Madhya Pradesh. On an appreciation of the evidence on record, we find that the evidence of the husband is more weighty than the evidence of the wife. The case of the wife about the manner in which she had left the matrimonial home on 02.02.2010 is unbelievable. It appears that the wife has not pointed out the true and correct facts to the court. There was no complaint by the wife against the husband for nearly eight years. It is not her case that she had informed her parents or relatives about the behaviour of the husband either by communications or orally during her stay in the matrimonial home for 8 years. If the husband was really treating her like an animal, there would have been some material on record to show that the husband was really beating the wife after getting drunk. There is no complaint by the wife about the husband even to her parents or her relatives till she left the matrimonial house on 02.02.2010. After staying in the company of the husband for more than eight years, the wife has for the first time, lodged a complaint against the husband in July, 2010 after leaving the house on 02.02.2010. We find that the filing of the complaint against the husband and his parents appears to be an afterthought. The husband and his family members are acquitted in the criminal trial. We find that the wife had levelled false allegation against her husband and her in-laws in the complaint filed by her in the police station at Indore in July, 2010 and it appears that the said complaint was filed with a view to intimidate the husband and his family members. The father of the wife was a police officer in Indore. If the wife really wanted to stay in the company of the husband, as she has stated in the written statement, the wife should not have filed a false complaint against the husband and his family members. It has come in the evidence of the parties that the mother of the husband was staying away from the matrimonial home, as she was working in a school in Madhya Pradesh. Though the mother of the husband was not residing in the matrimonial home, the complaint was lodged by the wife against her mother-in-law also. The complaint was lodged by the wife against the old father-in-law, who was more than 70 years of age. The wife has also made serious allegations against the brother-in-law in the criminal proceedings though in the present proceedings the wife had not levelled any allegation against him. We find that extremely serious allegations were levelled by the wife against the husband and his family members in the evidence tendered by her before the criminal court as could be seen from the judgment of the trial court in the criminal proceedings. If the husband was treating the wife like an animal, how could the wife express her desire in the written statement and her evidence to return to the matrimonial home, without putting the husband to terms. We find that the wife had filed a false complaint against her husband and her in-laws. The husband has clearly pleaded and proved that the filing of the false complaint by the wife against him in respect of the offence punishable under section 498-A of the Penal Code has caused mental and financial harassment to the husband and his family members. It appears that the husband and his family members were required to secure orders for bail after the wife lodged the false report against the husband and his family members. It is held by this Court time and again that filing of false complaints by the wife against the husband for the offence punishable under section 498-A of the Penal Code, would tantamount to cruelty. Though the husband has stated in his cross-

    examination that in the mediation proceedings he was ready to take back the wife to the matrimonial home, he has stated in his examination-in-chief as also in his cross-examination that he was not ready to cohabit with the wife. The father of the husband has stated in his cross-examination that since the wife has caused great mental trauma to them in view of the filing of the false proceedings under section 498-A of the Penal Code, the wife should not return to the matrimonial home. The father of the husband has expressed a fear that if the wife is permitted to return to the matrimonial home, they would constantly be under fear that she would again lodge a false complaint against the husband the family members thereby putting them in serious difficulty. The Family Court did not consider the aspect in respect of filing of the false complaint by the wife in the right 08-902FCA47.16-Judgment 17/17 perspective while dismissing the petition filed by the husband. The husband is successful in proving that the wife had treated him with cruelty.

    1. Hence, for the reasons aforesaid, the family court appeal is allowed. The judgment of the Family Court is set aside. The petition filed by the husband for a decree of divorce under section 13(1)(i-a) of the Hindu Marriage Act is allowed. The marriage solemnized between the parties on 08/03/2002 is dissolved by decree of divorce. No costs.
      JUDGE
      JUDGE

    APTE/KHUNTE

    Wife left 12 years ago. All accused in DOWRY case DISCHARGED !! Still NO divorce for man!

    husband-wife-quarrel

    When I tell ppl that A MAN filing for divorce is taking a gamble and that could be costly and FUTILE, ppl just laugh at me !! Now guys tell me what this is ???

    “…In his plea, the husband argued that since he and his wife had been living separately for the past 12 years, he should be allowed to end his marriage. ……”

    “…On her part, the wife claimed she was harassed for dowry but HC found that everyone was discharged for lack of evidence by the trial court…”

    No proof wife’s cruel, divorce plea junked

     

    TNN | Sep 10, 2016, 01.02 AM IST

    New Delhi: A man living separately from his wife for over a decade failed to get a divorce from the Delhi high court after he couldn’t prove that his wife was cruel.

    A bench of Justices Pradeep Nandrajog and Pratibha Rani dismissed the appeal filed by the husband, pointing out that divorce can’t be granted merely on the grounds that a marriage is dead and there has been a breakdown.

    “We know that the parties have been living separately for the past 10 years. Efforts made at different levels by the family court could not resolve the issue. Parties may claim that the marriage has broken down irretrievably as they could not reconcile themselves but the question is whether this is reason enough to be granted divorce. The answer is no according to the decision of the apex court,” the bench noted, refusing relief.

    In his plea, the husband argued that since he and his wife had been living separately for the past 12 years, he should be allowed to end his marriage. The man had filed a petition seeking dissolution of marriage on account of cruelty.

    But the trial court, on the basis of evidence, concluded that the accusations of cruelty against the wife could not be proved.

    “We have no hesitation to conclude that the instances given by him are nothing but normal wear and tear in a matrimonial life, which cannot constitute mental cruelty and aren’t weighty enough to dissolve the marriage,” the court said.

    On her part, the wife claimed she was harassed for dowry but HC found that everyone was discharged for lack of evidence by the trial court.

    “What actually led the wife to separate from her husband along with her daughter is something only the couple knows,” HC noted.

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    Un proven criminal cases, wild allegations, is cruelty ! Divorce even before 498a decreed !!

    Husband files restitution case on wife requesting her to return to matrimony. Once the notice is served on wife, she unleashes a 498a, 406, CrPC 125 etc cocktail on husband (circa year 2002). She is unable to prove any of the allegations. The Hon Allahabad HC notices that “….Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband…” categorically states that such false allegations and criminal case tantamount to cruelty on the husband and grants divorce !!


    HIGH COURT OF JUDICATURE AT ALLAHABAD

    AFR

    Court No. – 19

    Case :- SECOND APPEAL No. – 844 of 2006

    Appellant :- Narayan Prasad Saraswat

    Respondent :- Smt. Shaifali @ Muniya

    Counsel for Appellant :- M.K. Gupta, Pankaj Agarwal

    Counsel for Respondent :- D.K. Dwivaedi

    Hon’ble Pramod Kumar Srivastava, J.

    1. At the time of hearing only counsel for the appellant was present. None was present on behalf of respondent even in cause list was revised. This appeal had already been admitted, but at that time substantial question of law was not framed. Heard arguments of learned counsel for the appellant.
    2. Original suit Matrimonial Petition no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was initially filed for the relief of restitution of conjugal rights. After it some criminal case was instituted by opposite-party (wife Smt. Shaifali @ Muniya). Then plaint was amended for the relief of divorce on ground of desertion, adultery and cruelty.
    3. In written-statement filed in trial court, O.P.- Smt. Shaifali @ Muniya had admitted her marriage with petitioner and pleaded that petitioner and his family members had been treating her with physical and mental cruelty. She had not committed any cruelty. The petitioner had tortured her by beating her and by demanding dowry. So she is not ready to live with her husband-petitioner. The petitioner had evicted her from his house and had filed suit on incorrect facts; therefore petition is liable to be dismissed.
    4. After framing issues and accepting evidences of the parties, the Civil Judge, S.D. (/J.S.C.C.), Aligarh had dismissed the divorce petition. The trial court had given finding that although it is admitted that criminal case was initiated by O.P. against the petitioner and his family members, who had been released on bail, but said criminal cases did not amount to desertion or cruelty. Trial court had found that in written-statement the O.P. had pleaded that she is not willing to reside with husband-petitioner, and although several attempts of mediation and reconciliation between parties had failed, but learned Civil Judge has also given finding that petitioner had failed to prove the grounds of desertion, adultery or cruelty, therefore divorce petition is dismissed.
    5. Aggrieved by the judgment of trial court, Civil Appeal no. 41/2006 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) was preferred which was heard and dismissed by the judgment dated 14.08.2006 of Additional District Judge, Court No.-2, Aligarh. Lower appellate court had held in this judgment that during evidence O.P.-wife had file affidavit to the effect that she is willing to continue her matrimonial relationship with her husband, and the petitioner-appellant had failed to prove that irretrievably broken. With these findings, first appellate court had confirmed the finding of trial court and dismissed the first appeal.
    6. Aggrieved by the judgment of trial court, as well as of the first appellate court, present second appeal has been preferred by petitioner of the original case.
    7. Present appeal has been admitted but at that time substantial question of law was not framed, which is framed as under: “Whether the marriage of the parties had irretrievably broken due to desertion, adultery and cruelty; and otherwise finding of the lower courts are erroneous and perverse ? If so its effect ?”
    8. Learned counsel for the petitioner-appellant contended that in her written-statement she is not ready to live with her husband-petitioner, and several proceedings of mediation and reconciliation between parties, and attempts of courts in this regard had failed. Respondent had committed cruelty by lodging several false criminal cases against the appellant and his family members and by leveling false allegations in her pleading, parties are living separately for last about 15 years and there is no chance of their compromise or living together; therefore appeal should be allowed for the decree of divorce.
    9. In present matter petitioner-appellant had filed suit for the relief of restitution of conjugal rights with O.P.-respondent on 01-05-2002, but when summons of this case was served then O.P.-wife had filed several criminal cases for cruelty due to dowry demand and manhandling for offences u/s 498-A, 323 IPC & section ¾ Dowry Prohibition Act, case of maintenance u/s 125 CrPC, criminal complaint case u/s 406, 109 IPC. The burden of proving the fact of expelling wife-O.P. by petitioner without any sufficient reason is on wife- O.P. (complainant) because negative facts cannot be proved. It is the respondent-wife who has been alleging such facts, therefore the burden of proving these facts were on her, and in absence of any such evidence, the plea of desertion and living separately by her without sufficient reasons should have been accepted by lower courts.
    10. The petition of divorce was filed on three grounds. The first was desertion and second was cruelty. So far as the first point of desertion is concerned, it is admitted fact that petitioner-appellant had filed original suit no. 397/2002 against his wife-respondent u/s 9 of the Hindu Marriages Act for restitution of conjugal rights. During pendency of said proceedings, he amended the original suit for divorce under Section 13 of the Hindu Marriage Act. There has been no finding of any of the lower court that during pendency of original suit, the parties were willing to live together together. On the contrary it was found that initially petitioner-appellant was willing to live with respondent-wife, but when she started filing several criminal cases then he amended the suit for the relief of divorce. It is pertinent to mention that in her written-statement O.P.-respondent had specifically declined to live with husband-appellant. The differences between the parties from the beginning and their living separately for more than 14 years is admitted fact, but there is no evidence that respondent was expelled from house of appellant or that she is residing separately for any sufficient reason. This proves the ground of desertion as required u/s 13 of Hindu Marriage Act.
    11. Apart from it, in matrimonial disputes propriety of the things should also be specially considered. In present matter, according to the petitioner the parties are living separately from 19-08-2001, and according to respondent-wife they are living separately since 2002. Thus, admittedly parties are living separately for many years. Admittedly during this period, respondent had not only levelled wild allegations of cruelty etc. but had also initiated criminal proceedings due to which petitioner and his family members had to be released on bail in criminal cases. Admittedly, said criminal proceedings are still continuing and being prosecuted by respondent. In written-statrment the respondent had declined to live with husband, , and several mediation and reconciliation proceedings between parties has also failed. These facts make it explicitly clear that there appears no chance of reconciliation between the parties who have developed feelings of ill will, hatred, antagonism and animosity; and the respondent is prosecuting the criminal case for conviction and incarceration of appellant and his family members.
    12. So far as another plea of cruelty in present matter is concerned, it has been not proved till now that petitioner had treated the respondent-wife with cruelty or had committed unnatural sexual activities with her as pleaded in written-statement. The burden of proving such facts lies on the person who has asserted these facts, that is, respondent-wife, but these facts could not be proved till now. Leveling wild allegation and prosecuting proceedings for conviction of husband as well in-laws for sending them in jail amounts to cruelty.
    13. The word ”cruelty’ has not been defined anywhere in the Act. The word appears to have been used in the Section 13 of Hindu Marriage Act in context of human behaviour in relation to or in respect of matrimonial obligations or duties. Cruelty can be termed as behaviour or conduct of one spouse which adversely affects the other. Thus broadly speaking ‘‘cruelty’ as a ground for the purpose of divorce under Section 13(1)(i-a) can be taken as a behaviour of one spouse towards the other which causes reasonable apprehension in his or her mind that it is not safe to continue the matrimonial relationship. Cruelty can be physical or mental or even intentional or unintentional. The mental cruelty is difficult to establish by direct evidence. It is a matter of inference to be drawn from facts and circumstances of the case. A feeling of anguish and frustration in one spouse caused by the conduct of other can be appreciated on the assessment of facts and circumstances in which the two of them have been living. The inference has to be drawn from overall facts and circumstances considered cumulatively. The allegation of criminal mis-appropriation of stridhan, dowry demand and physical torture made by the respondent-wife against the appellant husband in her written statement, is nothing but mental cruelty of such a nature that appellant husband cannot be reasonably asked to live with the wife. The allegation of serious nature, and as stated above, constitutes grave assault on the character, honour and reputation of husband. Such allegations amount to cruelty entitling the petitioner to a decree of divorce. It cannot be doubted that the appellant-husband must have suffered traumatic experience because of the criminal proceedings against his father, mother and himself. The arrest and getting bailed out for criminal offences must have resulted in the loss of reputation and prestige of the husband and his family in the society. The mental agony of being arrested and detention in a criminal case resulting into loss of reputation and prestige in the society would also amount to cruelty.
    14. In V. Bhagat v. D. Bhagat, (1994) 1 SCC 337 the Apex Court had held: “Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”
    15. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334 the Apex Court had held as under:
      • “7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. – – –
      • 8. The allegations made in this case do not appear to have been the result of any sudden outburst. On the other hand, such injurious reproaches, accusations and taunts as were found to have been made in this case lend credence to the fact that the husband was persisting in them for sufficiently a long time humiliating and wounding the feelings of the wife to such an extent as to make it insufferable for the wife to live in matrimonial home any longer with the husband. – – – –
      • 11. That apart, in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and continued to remain on record. – – – – A conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement.”
    16. Mental cruelty and its effect cannot be stated with arithmetical accuracy. It varies from individual to individual, from society to society and also depends on the status of the persons. What would be mental cruelty in the life of two individuals belonging to a particular stratum of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.
    17. In present matter living separately of the parties for long time, prosecution and incarceration in criminal case of appellant, the agony and humiliation suffered, charging him with serious allegations and others family members and still facing prosecution for conviction and apprehension of incarceration amounts to cruelty to appellant.
    18. The third ground for divorce taken by petitioner-appellant was that of adultery. Section 497 IPC reads- “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”. In this regard trial court had given finding that when Smt. Kamlesh saw her husband during physical relationship with respondent (Smt. Shaifali @ Muniya) then she (respondent) was not married. So at the relevant time respondent was un-married, therefore this allegation of involvement in adultery after marriage of respondent was rightly held not proved by lower courts.
    19. On the basis of above discussion and considering the facts and circumstances of this matter, it appears that relationship of parties had been deteriorated to the extent that there is no possibility of any reconciliation. Their relationship have reached to the point from where there appears no possibility of any harmonious conjugal relations or their being living together as husband and wife and discharging matrimonial duties.
    20. It would mean that apart from other problems that had come in their way, the main problem is the failure of matrimonial life. It would be seen that the appellant had not immediately rushed to sever his marital relations with the respondent. He had sufficiently waited for long time to see whether there would be any improvement in the relations with respondent and for the same reason he had filed petition u/s 9 of Hindu Marriage for restitution of conjugal rights. Having found no hope, he chose to file suit for divorce. In her pleading respondent refused to live with appellant. Even the mediation proceedings between the parties have failed. Therefore, it could safely be concluded that the appellant having tried all means to sustain the marital relations but having found that it was impossible for the respondent to gain such relationship, he had chosen to live apart from the respondent by moving petition for divorce. Therefore, there was sufficient ground for the husband-appellant to get relief of divorce.
    21. In addition to legal errors as discussed above, the two lower courts have not considered these important material points at the time of deciding the matrimonial disputes, which amounts to infirmity and perversity in their judgments. Considering past experiences I am convinced that any further attempt at reconciliation will be futile and it would be in the interest of both the parties to sever the matrimonial ties since the marriage has broken down irretrievably. In light guidelines laid down by Apex court in Satish Sitole v. Ganga, (2008) 7 SCC 734 I am of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty. This contention of appellant’s side is not unacceptable that the appellant’s marriage with the respondent had completely broken down with no hope of revival and compelling them to live together would be very harsh, insensitive and unjust. Therefore said impugned judgments being erroneous and perverse are liable to be set aside.
    22. Considering these facts, circumstances, the factum of living separately for many years and no possibility of any reconciliation, harmonious conjugal relations or future congenial matrimonial relations, it appears appropriate that when it is not possible for the parties to live together and to discharge their marital obligations towards each other, then there is no reason to continue their agony. Therefore on the basis of the forgoing discussion, the decree for dissolution of marriage should be granted on the ground of desertion and mental cruelty. The above substantial question of law is decided accordingly.
    23. Accordingly the appeal is allowed. The impugned judgments dated 24.04.2006 and 24.08.2006 of the lower courts are set aside and matrimonial original suit no. 397/2002 (Narayan Prasad Saraswat v. Smt. Shaifali @ Muniya) for the divorce is decreed. The decree of divorce is granted, and it is directed that the marriage between the parties shall stand dissolved.

     

    Order Date :- 18.04.2016 SR

    Divorce 42 years after marriage. Wife seeks 1.5crore from 75 yr old hubby while she has crores. Bangalore HC

    Divorce granted 42 years after marriage. Wife seeks 1.5crore from 75 yr old hubby while she has crores in shares and property. Classic Bangalore HC divorce case which husband WINS on grounds of cruelty and desertion by wife !!

    In this sad case, a 75 year old man in his advanced age is fighting against his wife’s appeal (at HC) seeking 1.5 crores as permanent alimony. There are claims and counter claims, but it is on record that (a) wife has filed (MC) cases alleging that husband had illicit relations with his own employee and (b) she has made a suicide attempt and had to be hospitalised after consuming huge dose of sleeping tablets. Husband also alleges that she was the cause of his business failure. Wife cross-alleges husband sold his ancestral house and took away part of the proceeds, but the wife is not convincing in her cross examination replies as well, leading the Hon HC to doubt her claims of living under one roof with this husband (i.e.) thus accepting husband’s claim of desertion. Finally the Hon Bangalore HC confirms the divorce and directs her to approach lower court for maintenance

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 17TH DAY OF FEBRUARY 2016

    PRESENT

          THE HON’BLE MR.JUSTICE N K PATIL
    AND
          THE HON’BLE MRS.JUSTICE S SUJATHA

    MFA No.10709/2011 (FC)

    BETWEEN

    Rupa Mahajan
    W/o Satish Mahajan
    Aged 57 years
    Presenty Residing at
    No.011, ‘B’ Block
    Sterling park Apartments
    Kodigehalli Main Road
    Sanjeevinagar
    Bangalore-560 092.                     ….Appellant
    (By Sri.S.S.Ramdas, Senior Advocate for M/s. Sundara swamy & Ramdas Associates)

    AND

    Satish Mahajan
    S/o Late D.R.Mahajan
    Aged 67 years
    Residing at
    No.603 B St Johns Woods Apartments
    80St John Cross Road
    Bangalore-560 029.                …Respondent
    (By Sri.J.Kanikaraj, Advocate)

    This Appeal is filed under Section 19(1) of Family Courts Act, against the Judgment and Decree dated 30.06.2011 passed in M.C.No.1933/2008 on the file of 4th Additional Principal Judge Family Court, Bangalore, allowing the petition filed under Section 13(1) (ia) (ib) of Hindu Marriage Act for divorce and rejecting the prayer filed under Section 3.

    This Appeal having been heard and reserved for Judgment on 05th February 2016, coming on for pronouncement of Judgment this day, S.Sujatha J., delivered the following

    JUDGMENT

    1. This appeal is directed against the judgment and decree dated 30.06.2011 passed by the 4th Addl. Principal Judge, Family Court, Bangalore in M.C.No.1933/2008, allowing the petition filed by the respondent for dissolution of marriage.
    2. The facts in brief are:- that the marriage between the appellant and respondent was solemnized as per Hindu Rites on 18.01.1974 at Chennai. It transpires that after their marriage, the respondent and appellant lived at No.58, Cunningham Road, Bangalore happily for a period of 16 years upto 1990. Their marriage was consummated and the couple were blessed with twins (sons) named Gaurav and Vaibhav in the year 1980. It is stated that both the appellant and respondent jointly purchased a land situated at No.328, 5th Main, 1st Block, Koramangala in the year 1990 and after constructing a house on the said land, they shifted their residence to the newly built house in 1990 and were residing therein. When the relationship between the parties was amicable, respondent along with his brother for the purpose of running a business, floated a company in the name of M/s Garments International Pvt. Ltd. Respondent along with his brother were the directors of the said company. However, subsequently, appellant, Gaurav and Vaibhav (sons) were inducted as Directors in the years 1990, 1998 and 2000 respectively. Due to the differences that developed between the appellant and respondent, the respondent filed M.C.No.1933/2008 before the 4th Addl. Principal Judge, Family Court seeking a decree of divorce under Section 13(1) (1a) and 13(1b) and (iii) of the Hindu Marriage Act, 1955 (the ‘Act’ for short). Appellant contested the matter. After considering the evidence placed by the parties, the Family Court allowed the petition under Section 13(1)(ia) and (ib) of the Act and rejected the petition under Section 13(1)(iii) of the Act. Being aggrieved by the said judgment and decree passed by the Family Court, the appellant is before this Court.
    3. Heard Learned Senior Counsel Sri. Ramdas for appellant as well as Sri.Kanikraj for respondent. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
    4. The learned counsel for appearing for the appellant would contend that the Family Court failed to consider the evidence on record in a right perspective. Appellant herein had placed Exhibits R.1 to R.17 but the Family Court, ignoring the said documentary evidence has wrongly held that no appropriate evidence was placed by the appellant herein to discard the evidence of the respondent. The Family Court has not appreciated the true nature of cruelty and desertion alleged by the respondent to claim the decree of divorce under Section 13(1)(ia) and (ib) of the Act. Though the ground of mental disorder is held to be not proved, granting the decree of divorce to a marriage which subsisted for more than 33 years is totally unjustifiable and contrary to the well established principles of law enunciated by the Apex Court.
    5. It is submitted that the petition filed by the appellant seeking decree of divorce against the respondent in M.C.No.1325/1999, was only with an intention to draw the attention of the respondent towards her, in view of the assurances made by the respondent to take good care of her, the petition was unconditionally withdrawn in the year 2000 and pursuant to which both the parties lived together as husband and wife. The subsequent events which transpired pursuant to withdrawal of the petition MC.No.1325/1999 having been completely overlooked by the Family Court, proceeded to hold that the act of the appellant in filing M.C.No.1325/1999 against the respondent seeking decree of divorce, amounted to cruelty.
    6. It is further submitted that though initially, the company M/s Garments International Pvt. Ltd. was floated by the respondent for the purpose of running a business in exporting garments, the appellant and children were inducted as directors in the company who held their proportionate share in the company. The respondent without any reason borrowed huge amounts from banks, financial institutions and also from private parties which resulted in financial instability affecting the entire family. In order to have a hold in the financial transactions of the company, the appellant along with her children was constrained to interfere with the company’s financial affairs. Such action of the appellants was indeed in the interest of the family and to safeguard and protect the company’s interest which cannot be termed as mental cruelty against the respondent. The trial Court overlooking the rationale behind such acts, wrongly held such acts of the appellant has caused mental agony to the respondent.
    7. It is further submitted that the submission of the respondent that the parties lived separately since November 1999 is totally against the documents placed on record by the appellant. The appellant having led a happy marital life with the respondent for more than 33 years, had no intention to desert the respondent. Exhibits R1 to R17 placed on record proves that the appellant resided with the respondent. The respondent has not taken any interest in the family. The appellant alone out of her savings performed the marriage of their sons and the respondent had no courtesy even to participate in the marriage ceremonial functions. It is in fact, the respondent who has deserted the appellant and the family and not the appellant. The matrimonial house at Koramangala, Bangalore which was owned jointly by the parties was sold in the year 2007 for a consideration of Rs.3,52,00,000/- out of which only a meager sum of Rs.50,00,000/- was paid to the appellant and Rs.11,00,000/- to each of their children. No cogent evidence is placed on record by the respondent to establish the factum of desertion as claimed. The allegations made against the appellant that she is suffering from mental disorder is an act of the respondent to bring the institution of marriage to an end and to ruin the entire life of the appellant. Such a false allegation of mental disorder made by the respondent ipso facto proves the cruelty made by the husband towards the wife. No appeal is filed by the respondent on the dismissal of the petition under this ground. No desertion as required under the Act is proved by the respondent. In such circumstances, the Family Court allowing the petition filed by the respondent and granting a decree of divorce is totally unsustainable and seeks to set- aside the said judgment and decree of the Family Court.
    8. Learned counsel appearing for the appellant/wife has filed an application I.A.I/2015 seeking for maintenance in a sum of Rs.60,000/- per month from January 2007 till date and for future periods during the appellant’s life time or in the alternative to direct the respondent to pay the appellant permanent alimony in a sum of Rs.1.50 crores in the interest of justice. Placing arguments on this application filed under Section 25 of the Act, learned counsel would submit that during 2005 the mother-in-law of the appellant Smt.Leela Mahajan gifted her late husband’s house bearing No,58, Cunningham Road to the respondent. Immediately after receiving the gift the respondent negotiated to sell the said house and sold for about 2.25 crores. Thereafter, respondent had formed a private trust by name Satish Mahajan Family Welfare Trust, purchased an apartment in Prestige St.John’s wood Koramangala. A sum of Rs.60,00,000/- was paid for the purchase of the said apartment from out of the said sale proceeds of Cunningham Cross Road house. The balance of nearly Rs.1.65 crores is unaccounted and untraceable. The respondent though floated Satish Mahajan Family Welfare Trust for the benefit of the sons of the parties, till date no benefit has been extended despite the trust having money and securities in multiple crores, in ING Vysya Bank now known as Kotak Mahendra Bank, Koramangala, Bangalore. The respondent being a prudent businessman hailing from a business family, being in business for nearly 45 years and being a promoter/partner in Mahajan Borewell Company – a renowned borewell drilling Company in Karnataka, cannot now plead that he has married the second wife who is a doctor at St.John’s Hospital at Koramangala and is living on her money. The respondent has failed to discharge the responsibilities of a husband and as a father to his children. He has also not participated in any manner in the marriages of their sons Vaibhav’s in 2007 and Gaurav’s in 2013. The respondent has the benefit of nearly Rs.4.45crores being the balance from the sale of two houses, right form 2005 to 2007, till date. The respondent has earned interest and income from the said money for all these years.
    9. It is further submitted that the appellant is completely dependent on her dividend income accruing from the shares and securities amounting to Rs.12.00 lakhs as evident from the income tax returns and she has no other source of income. It is also submitted that with all the hope of getting re- united with the respondent, no maintenance application was filed during the petition proceedings. It is only after realizing that the respondent has contracted second marriage the application is filed in appeal proceedings. Accordingly, seeks to allow the application and to direct the respondent to make the payment towards the maintenance as claimed.
    10. In support of his contentions, learned counsel has placed reliance on the following Judgments: (1) Naveen Kohli vs. Neelu Kohli ((2006) 4 SCC 558) (2) A.Jayachandra vs Aneel Kaur ((2005) 2 SCC (3) Savitri Pandey vs.Prem Chandra Pandey (AIR 2002 SC 591) (4) Samar Ghosh vs. Jaya Ghosh ((2007) 4 SCC 511)
    11. Learned counsel appearing for the respondent justifies the judgment and decree passed by the Family Court and contends that the appellant filing M.C.No.1325/1999, seeking for divorce against the respondent making false allegations that the respondent had an affair with Smt.Geetha Srinivasan, an employee of M/s Garments International Company, had lowered the status of the respondent in the society besides causing mental trauma and agony. Such wild allegations made against the respondent were baseless.
    12. Further, the appellant interfering with the financial matters of the company, fabricating a resolution and freezing the bank accounts has caused financial instability to the business as well as to the family. The respondent was mainly engaged in the export business, due to the inconvenience caused by the appellant in sabotaging the business, in order to honour the agreements/contracts entered into between the foreign buyers within the time frame, the consignments were air-lifted. Such an action has caused huge loss in his business. The entire family properties came to be sold to make the payment of loan raised towards the business commitments. The indifferent attitude of the appellant, in ruining the respondent mentally and financially amounts to cruelty which has been rightly considered by the Family Court. The appellant has left the matrimonial home in November 1999. She returned back in the year 2000 and stayed with the respondent only for 2-3 days. At that time, she consumed 235 sleeping tablets and attempted to commit suicide in the matrimonial home. Noticing the same, the respondent rushed her to St.John’s Medical Hospital, Bangalore and provided her the medical treatment. Immediately after discharge from the hospital, she left the matrimonial home and started residing at Jalandhar at her parental house. The appellant had obtained a separate phone number 9888854456 at Jalandhar which proves that she had deserted the respondent from November 1999. The desertion is further proved by the action of the appellant purchasing the flat in the year 2002 at Bangalore whereby she had the intention to stay away from the respondent separately. The dividend warrants showing the address of the appellant with the Koramangala address would not establish the factum of residence of the appellant with the respondent. It is known fact that unless the change of address is made with the companies holding the shares, the dividend vouchers would be sent to the address available on the company’s register. In fact, the appellant was collecting the dividend warrants from one of their son’s or through servants. Since November 1999, the respondent and petitioner have not lived together under one roof as husband and wife. It is submitted that after the grant of decree of divorce by the Family Court on 30.6.2011, the respondent contracted the second marriage on 10.11.2011 and that the said marriage is registered on 13.02.2012, he has been living with his wife ever since then. On this ground alone, the judgment and decree of the Family Court is not liable to be disturbed.
    13. The respondent himself being advanced in age, presently aged about 75 years, has no avocation nor any source of income and is fully dependent on his wife who is a qualified medical practitioner, having source of income from her practice. During the subsistence of the marriage between the appellant and the respondent, the site at Koramangala was purchased in the joint name of the appellant and respondent out of his own funds, there being no financial participation by the respondent in the purchase of construction. Due to the action of the appellant of forging and fabricating a board resolution, removing the respondent as Managing Director of the Company and withdrawing all banking powers of the Company, the Company which was financially sound and flourishing in the Garment export trade, suddenly suffered losses as export shipment could not be made within the stipulated time resulting in huge forfeiture for non performance by the export council and loss of credibility in the market with the suppliers, bankers and workers, over all image of the company was totally ruined. In order to set-right the things, the respondent was constrained to move the City Civil Court and succeeded in bringing restraining orders and got the Board resolution stayed and tried to salvage the Company’s business, despite which the Company could not survive. Out of the sale proceeds of the house at Koramangala, Rs.50.00 lakh was paid to the appellant and Rs.11.00 lakh each to the children and from the balance amount, bank liability was cleared, no amount was left in the hands of the respondent. After discharging the liabilities, the respondent was himself reduced to penury with no amount left with him nor having independent source of income. Even regarding the gift made by the respondent’s mother with respect to a house on Cunningham Road, Bangalore, the said property being attached for auction and proclamation notices were issued on various bank loans availed by Mr.Ashok Mahajan with their mother as a co-obligant, in order to prevent the creditors from auctioning the same, the said property was sold to discharge the loans who had funded payment to the debtor banks of Mahajan Borewell Company. From the remaining amount, respondent purchased a Two BHK Flat and is residing there with his mother.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
    14. The appellant owns the flat valued about Rs.70.00 lakhs apart from holding shares valued about Rs.1.18 crores and liquid cash in the form of deposits. As such, there is no dearth of money for the appellant and she is living in luxury. No such plea being made by the appellant before the trial Court for maintenance, the application filed in the appeal proceedings is not maintainable. Accordingly, it is contended that the judgment and decree passed by the Family Court is after considering the material evidence available on record. The respondent has proved the ingredients of Section 13(1)(i-a) and 13(1)(i-b) of the Act. Appreciating the same, the Family Court has granted a decree of divorce which does not call for any interference at this stage. Accordingly, respondent seeks to dismiss the appeal and the application filed by the wife for maintenance/permanent alimony filed under Section 25 of the Act.
    15. We have carefully considered the rival submissions made by the parties and perused the material on record. The respondent has filed the petition before the Family Court under Section 13(1)(i-a), 13(1)(i-b) and 13(1)(iii) of the Act seeking a decree of divorce, dissolving the marriage solemnized between the parties on 18.01.1974. Family Court though dismissed the petition on the ground of mental disorder i.e., under Section 13(1)(iii) of the Act, allowed the petition under Sections 13(1)(i-a) and 13(1)(i-b) of the Act. The Family Court after considering the pleadings of the parties has framed five issues. The respondent himself was examined as PW1 and marked documents Exs.P.1 to P.8. Appellant is examined as RW1 and marked exhibits R.1 to R.17. The main grounds urged by the respondent to prove the cruelty are: (1) Filing of M.C.No.1331/1999 by the appellant seeking decree of divorce against the respondent and making false allegations against the respondent of having an affair with Smt.Geetha Srinivasan – an employee of the Company. (2) Fabricating the resolution of the Company and freezing the bank accounts by which the respondent was constrained to obtain an interim injunction against the appellant before the city Civil Court which affected the business of the respondent in its entirety, causing financial loss and damage to the reputation of the company as well as to the respondent. In the result, the respondent was finally forced to shut down the business.
    16. We have examined the evidence available on record. It is seen from the records, that on the allegation that the respondent had some relationship with an employee of the Company i.e., Smt. Geetha Srinivasan, M.C. petition was filed by the respondent seeking for decree of divorce. No-doubt the same was withdrawn by the petitioner on 27.03.2000, such an act of the respondent, filing of the petition for divorce indicates the intention of the appellant to dissolve the marriage. Indeed it is contended by the appellant that subsequent to the withdrawal of the petition, both the parties lived together as husband and wife under one roof which is categorically denied by the respondent. Exs.R.1 to R.16 are relating to the year 2000 to 2004. Ex.R.17 is the copy of the sale deed dated 18.01.2007. The address of the parties shown in the said sale deed is 720,2nd “B” Main, 2nd B” Cross, 8th Block, Koramangala, Bangalore. In the cross examination of R.W.1 – the witness has deposed that she does not remember, the number of rooms and floors of the said property and it is admitted that the said house described in Ex.R.17 is the rented house and she does not remember when that house was taken for rent and how many years she stayed with her husband in the said house. The said evidence available on record indicates that the respondent is not having the correct picture of the house in which she claims to have resided with her husband – appellant in the year 2007. It is further deposed by RW.1 that she cannot remember the address given in the passport as well as Driving Licence , whether it relates to the Flat at Kodigehalli. It is also deposed that she does not remember the address shown in the passbook relating to her Account in State Bank of Mysore, Sahakarnagar. Hence, no credence would be given to this document – Ex.R.17 to accept the contention of the respondent that the parties lived together till 2007. As already discussed Exs.R.1 to R.7 are the dividend warrants of different Companies. These documents do not prove that the parties were residing together as husband and wife after November 1999. Hence, desertion of statutory period of 2 years before filing of the petition as contemplated under Section 13(1)(i-b) of the Act is proved by the appellant. It is strongly contended by the learned counsel appearing for the appellant that this material evidence which discloses that the appellant was residing with her husband at the matrimonial house was totally ignored by the Family Court. Generally, dividends are sent to the address of the share holders, as maintained in the Register of the company, unless the change of address is incorporated in the Register. It is the case of the respondent that Exhibits P-4 to 8, unopened covers of dividends remained with him which indicates that the appellant was not residing with him after November 1999. It may be true that after the withdrawal of the M.C. petition filed by the appellant, there was a long gap in filing the petition by the husband alleging cruelty, desertion and mental disorder. However, it cannot be ruled out that the respondent was subjected to cruelty in view of the alleged allegations of having relationship with an employee of the company and the M.C. petition filed on that ground. Interference of the appellant in the financial affairs of the Company by passing a fabricated resolution and freezing the bank accounts may be even to safeguard the interest of the family and the Company as narrated by the appellant but however, the said interference has caused damage to the business and the reputation of the Company resulting in financial loss to the Company and causing mental agony to the respondent which cannot be brushed aside and no cogent evidence is led by the appellant to discard the evidence of the respondent in this regard. The impact of these two incidents are suffice to establish the cruelty.
    17. The submission of the appellant that the husband has not participated even in the marriage functions of their children, in any manner would indicate the grave and serious nature of strained relationship between the appellant and the respondent. This would be indicative of the fact that now the parties have no emotions, sentiments or feelings for each other. This is not an ordinary case of wear and tear of married life but a clear case of irretrievable break down of marriage. The word ‘cruelty’ though not defined under the Act is well interpreted by the Courts from time to time. It is often cautioned by the Apex Court that no Court should even attempt to give a comprehensive definition of ‘mental cruelty’ in which all kinds of cases of ‘mental cruelty’ can be covered.
    18. The Apex Court in the case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 has held Thus:
      • ” To constitute cruelty, the conduct complained of should be “gave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. Conduct has to be considered in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce.”
    19. The Apex Court in A. Jayachandra (supra) has held thus:
      • “10. The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
      • 11. The expression ‘cruelty’ 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. Cruelty is a course or 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 in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other.
      • 12. 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. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or 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 (See Sobh Rani v. Madhukar Reddi, AIR 1988 SC 121).
      • 13. The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
    20. In the case of Naveen Kohli vs. Neelu Kholi (supra) the Apex Court observed as under: 
      • “74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
      • 75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.  76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.
      • 77.   Some     jurists  have     also expressed     their   apprehension     for  introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.
      • 78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising  therefrom.
      • 79. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.”
    21. Applying the principles of law enunciated by the Apex Court as discussed above, we have analyzed the case on hand in the backdrop of the facts of cruelty alleged by the respondent and denied by the appellant. It is well settled that the concept of ‘cruelty’ differs from person to person depending on various factors like geographical and cultural background, education, customs, religion, traditions, values etc.
    22. It is true that ‘cruelty’ said to have been experienced by a person cannot be viewed in the same perspective at all times. It has also come on record that the appellant attempted to commit suicide by consuming 235 sleeping tablets in the matrimonial home in the year 2000 and was provided with medical treatment at St. John’s Hospital, Bengaluru, by the respondent. These are all admitted facts which creates apprehension of leading a cordial martial life together. In our opinion, it is not significant to save the marriage when the relationship between the parties is strained, rupturing matrimonial bond beyond repair as the respondent has contracted second marriage. Even on the ground of desertion, it is well established principle that mere desertion would not be a ground for divorce unless two important ingredients, namely, [a] factum of desertion, [b] animus deserendi – intention to desert the spouse; to bring an end to cohabitation or marital life are proved.
    23. The Apex Court in the case of Savitri Pandey [supra] has held thus:
      • “7A. “Desertion”, for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case.”
    24. It is the specific contention of the appellant that till the year 2007, the parties resided together and as such statutory period of desertion is not proved. As discussed earlier, it is not so. Even assuming for a moment, if we accept the arguments of the learned Counsel for the appellant that no desertion is proved, no purpose would be served in keeping this marriage alive which has already become a dead wood, in view of the subsequent development, the respondent having contracted the second marriage on 10.11.2011 and the same being registered on 13.02.2012 before the jurisdictional Sub-Registrar.
    25. As regards the application filed by the appellant seeking maintenance/permanent alimony, both the parties have made allegations and counter allegations against each other. Our best efforts made to see that the matter gets amicably settled between the parties, has not yielded any positive results. Contracting a second marriage, after waiting period, would not absolve the husband from paying the permanent alimony and maintenance to the wife in terms of Section 25 of the Act.
    26. Section 25[1] of the Act contemplates that any court exercising jurisdiction under the Act may at the time of passing of any decree or at any time subsequent to the application made to it for the purpose by either the wife or the husband order for maintenance or support of either of the spouse depending on the income and other property of the applicant and the respondent and other circumstances of the case.
    27. Admittedly, the appellant herein has filed application under Section 25 of the Act in this appeal proceedings before this Court. The appellant is alleging that the respondent has not taken any interest in the family and not discharged his responsibilities as dutiful husband. It is averred that the respondent owns the properties and huge amount of liquid cash besides the fixed deposits in various banks whereas the respondent has filed affidavit denying the same and he contends that he has no source of income and that at this advanced age, he is depending on the income of his second wife. This complex issue of facts requires to be decided on the established evidence, regarding status and income of the parties. In the appeal proceedings, the entitlement and quantum of maintenance cannot be decided unless any cogent evidence is available on record. Hence, we are not inclined to adjudicate on the application IA No.1/2015 filed by the appellant seeking for maintenance/permanent alimony.
    28. For the foregoing reasons, the appeal and IA No.1/2015 stands dismissed. Judgment and decree passed by the Family Court in M.C.No.1933/2008 dated 30.06.2011 is confirmed.
    29. It is made clear that dismissing of this appeal or application for maintenance/permanent alimony shall not come in the way of the appellant to move the appropriate application before the jurisdictional Court, if advised.

    Sd/-

    JUDGE Sd/-

    JUDGE Brn, AN/-

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