Tag Archives: Rajastan HC

Filing false cases, physical attacks all constitute cruelty. 30 years of pure misery ends with Divorce ! Raj HC

Marriage in 1979 (Yes 37 years ago !!). Wife leaves husband in 1983. there is very little cohabitation since then, almost nil cohabitation since 1986 ! There are numerous instances of wife beating or quarreling with the husband, wife’s relatives misbehaving with husband’s parents, wife’s people trying to destroy husband’s father’s wheat crop, and a false 498a where husband and co are completely acquitted. However since the first divorce attempt by the husband goes un successfull, husband goes to SC, who sends case back to Raj HC. At Raj HC Abala Nari wife claims that she is ready to come back !! Still Raj HC appreciates the facts and grants the husband divorce on grounds of cruelty !

The Hon court concludes that “…In the instant case in our view there are several complaints against the respondent who took law into her hands, tried to beat the appellant and his family members not only once but on other occasions as well and created commotion even outside the factory gate with the appellant, coupled with filing of cases u/sec. 498-A and other facts clearly lead to irresistible conclusion that cruelty was certainly caused by the respondent against the appellant husband both mental as well as physical. ….”


IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Civil Misc. Appeal No.244/1993

Nathulal  v.  Nathi Bai

Judgment reserved on                        5.4.2016
Judgment pronounced on                        31.5.2016

Hon’ble Mr. Justice Ajay Rastogi
Hon’ble Mr. Justice J.K. Ranka

Mr. Ravi Kasliwal, counsel for appellant
Mr. Suresh Pareek, Sr. Counsel, assisted by Mr. N.C. Sharma, counsel for respondent

By the Court (per Ranka, J.)

  1. This appeal is directed against the judgment & decree dated 24.2.1993 passed by the Family Court, Kota, by which application filed by the appellant u/sec. 13 of the Hindu Marriage Act, 1955 (for short the Act 1955), has been rejected with cost of Rs.1000/-.
  2. This case has a chequered history of litigation.
  3. The husband, Nathulal filed a divorce petition u/sec. 13 of the Act 1955, which was registered as Civil Misc. Case No.183/1991, and the same came to be dismissed by the Family Court. Appeal against the said judgment and order on an earlier occasion came to be decided by Division Bench of this Court vide order dated 1.3.1997, by which Coordinate Bench of this Court allowed the appeal and set aside the judgment and decree of the Family Court and granted a decree for divorce in favour of the appellant-husband. The respondent wife, Nathi Bai carried the matter to the Apex Court in Civil Appeal No.3422/1997 that came to be allowed vide order dated 8.10.2002 and order of the Division Bench in the present appeal, No.244/1993 dated 1.3.1997 was set aside and the matter was remitted to the Division Bench of this Court for fresh hearing and disposal in accordance with law.
  4. The appellant moved an application u/O.41 R.27 CPC for taking subsequent events on record. Taking note of the various contentions and in the light of directions of the Apex Court vide order dated 8.10.2002, the Coordinate Bench of this Court vide judgment dated 9.10.2006, dismissed the appeal filed by the appellant. The appellant filed a review petition which too came to be dismissed by the Coordinate Bench of this Court on 20.12.2006 and the application filed u/O. 41 R.27 CPC remained unattended. The appellant filed Civil Appeal No.(S) 366-367/2009 before the Apex Court against the judgment of this Court dated 9.10.2006 and dismissal of the review application dated 20.12.2006. The Apex Court allowed the appeal of appellant and again remitted the matter back to this Court with a direction to take into consideration application u/O.41 R.27 CPC and decide afresh. The operative portion of the order of Apex Court is quoted thus :-
    • Keeping all the circumstances in view, since avowedly the High Court has not decided the appellant’s application under Order XLI Rule 27 CPC, the course which commends itself to us is to remand the matter in its entirety to the High Court with a direction to first decide the Appellant’s application under Order XLI Rule 27 CPC. The Impugned Order is accordingly set aside.
    • The matters are remanded back to the High Court for consideration afresh.
    • Appeals stand disposed of. No order as to costs.
  5. After the matter was remitted back to this Court, application u/O.41 R.27 was allowed and the judgments annexed thereto were taken on record vide order dated 9.7.2015. Having noticed the above facts, the salient features for disposal of present appeal are noticed hereunder.
  6. Admittedly the appellant-husband got married with the respondent-wife on 27.4.1979 as per the Hindu rites and custom. It has been alleged that in the month of February 1983 respondent wife left the house of appellant husband without any reason and did not turn back. The appellant filed a divorce petition u/sec. 13 in the year 1986 which the appellant withdrew as both the parties entered into a compromise. It is further alleged that in the month of August 1986, respondent came back to the house of the appellant and for some time the behaviour of the respondent was normal, but she started giving threatening and started quarreling with the appellant. It is further alleged that torture of the respondent had gone to such an extent that the respondent lodged a false case against him u/sec. 498-A and 406 IPC in the police station Vigyan Nagar, Kota, on 28.8.1986 against her in-laws in which allegations were levelled regarding demand of dowry against the father and brothers of the appellant and the police after investigation submitted final report, the Investigating Officer having found the entire allegations to be false and that was accepted by the Competent Court of jurisdiction. It is also alleged that the respondent pushed the cycle of the appellant-husband and caught hold of his collar and after abusing him shouted that she would not allow him to go to duty and shut him up in the room and thus there was continuous quarrel in between the parties.
  7. The appellant has also lodged a report on 30.8.1988 against the respondent. It has further been stated that the appellant is serving in Instrumentation Ltd., Kota, and the respondent on one occasion reached the factory premises and misbehaved with the appellant outside the factory gate. It is also alleged that on 2-3 occasions respondent wife brought two persons who attacked the appellant at the time when he was returning from his office. It has further been alleged that the respondent was bent upon to commit his murder and looking to the conduct and behaviour of the respondent and fact of cruelty inflicted upon the appellant, the appellant was unable to live with her and thus an application was moved u/sec. 13 of the Act 1955 in the year 1989, which came to be dismissed as aforesaid.
  8. Mr. Kasliwal, the learned counsel for the appellant has contended that taking into consideration the facts brought in the application for divorce coupled with the material on record, clearly proves that the respondent caused continuous mental and physical cruelty on the appellant husband. The learned Family Court has not considered the material on record insofar as the cruelty of the respondent wife is concerned. There are oral as well as documentary evidence available on record which proves the same. He further contends that the behaviour and conduct of the respondent wife since beginning was not proper and on a small pretext, she left the matrimonial home initially and admittedly did not come for a period of about 3 years and the appellant had to file an application u/sec. 13 of the Hindu Marriage Act before the Family Court, which however was withdrawn because of the intervention of the family members and her relatives, the respondent wife came back to the matrimonial home and after staying, her behaviour for sometime was normal but a false complaint was made against the father and brothers of the appellant on 28.9.1986 with the allegations of beating and demanding dowry, however, after investigation the police filed final report and the same was accepted by the competent court.
    • He drew attention on the complaints/cases :-
    • (i) 28.8.1986 :  FIR No.62/1986 u/sec. 498A IPC by Nathi Bai against appellant’s father and brothers : After investigation police found allegations false.
    • (ii) 5.10.1989 : Complaint by Vikas Adhikari, Panchayat Samiti Sultanpur (where father of the appellant Nathu Lal was employed) to the effect that respondent Nathi Bai came at the office and tried to create nuisance by which office work was disrupted.
    • (iii) 14.12.1989 : Complaint by Dwarka Lal, father of the appellant against Nathi Bai and her brothers to the effect that they came at their house and misbehaved with him and mother of the appellant, even the clothes of appellant’s mother were dis-robed.  On an FIR having been filed by the appellant, challan was filed against the respondent before the competent court and the respondent had been bound down by the Court of Law to behave well with the appellant.
    • (iv) 23.3.1990 : FIR No.37/1990 u/sec. 498A IPC by Nathi Bai against father, mother and brothers of appellant. Vide order dated 18.1.2003 passed by Addl. CJM, Fast Track, Digod (Kota), accused were found not guilty in Case No.428/2002.
    • (v) 7.4.1990 : FIR No.42/1990 u/sec. 498A and 324 IPC by Nathi  Bai against father and mother of appellant. Vide order dated 31.1.2003 passed by Addl. CJM, Fast Track  Digod (Kota), accused were found not guilty in Case No.117/2002.
    • (vi) 21.5.1990 : Complaint No.867 registered at Police Station Vigyan Nagar, Kota, on information received over telephone that at the factory gate of Instrumentation Limited Nathu Lal and Nathi Bai were quarreling and fighting.  Both were taken to the police station by police. However, subsequently they were released on bail by order of ADM (City) Kota.
    • (vii) 5.12.1990 : Dwarka Lal, father of appellant filed a complaint before Dy.SP (Rural), Kota, to the effect that Nathi Bai tried to destroy crop of Wheat in his fields by discharging canal water.
    • (viii) 14.3.1991 : FIR No.21/1991 u/sec.341, 323/34 IPC by Mangi  Bai (mother of appellant) against Nathi Bai and her brothers. Vide order dated 25.7.2002 passed by Judl. Magistrate (First  Class), Digod, accused were found guilty in Case No.366/1997.
  9. He also drew attention of this Court on application under O.41 R.27 CPC by which he placed reliance on three aforementioned orders dated 25.7.2002 (Case No.366/1997), 18.1.2003 (Case No.428/2002), and 31.1.2003 (Case No.117/2002) passed by Digod Courts. Thus, he contended that there has been plethora of cases and even one criminal case is sufficient to prove cruelty whereas in the instant case there are several criminal cases which certainly proves to the hilt about the physical and mental cruelty against the appellant. He also relied upon the statements of several witnesses recorded, which clearly brings on record the behaviour of the respondent.
  10. He further contended that admittedly from August 1989, now almost about 27 years, both husband and wife are living separately, and there being no issue out of the wedlock, no bonding between them, the appellant is now aged about 55 years, certainly needs now a peaceful life, at-least at this stage of his career/life, which has been totally ruined/spoilt by the respondent. He contended that both the appellant and respondent merely can be said to be husband and wife on record but in reality their marriage does not subsist and it is a case of irretrievable breakdown of marriage and under such circumstances, the decree of divorce deserves to be granted in favour of the appellant and the appeal may be allowed. He relied upon the following judgments :-
    • Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558;
    • Mayadevi (Smt.) v. Jagdish Prasad (2007) 3 SCC 136;
    • Vishwanath Agrawal v. Sarla Vishwanath Agrawal (2012) 7 SCC 288;
    • Smt. Savitri Balchandani v. Mulchand Balchandani AIR 1987 Delhi 52;
    • Jayakrishna Panigrahi v. Smt. Surekha Panigrahi AIR 1996 Andhra Pradesh 19;
    • Smt. Sadhana Srivastava v. Arvind Kumar Srivastava AIR 2006 Allahabad 7;
  11. Per contra Mr. Suresh Pareek, learned Sr. Counsel for the respondent, assisted by Mr. N.C. Sharma, Advocate, contended that the respondent was always ready, willing and prepared to live as wife of the appellant, peacefully but the appellant was never interested in keeping the respondent and created hindrances by filing complaints for no rhyme or reason. He further contended that the respondent who is present in Court, has categorically, expressly and openly said that she is ready and willing to live with the appellant in the manner appellant wishes, and words before this Court should be taken in the right spirit and at-least the sacred function of the Court in matrimonial matters, should be taken sympathetically, as it is a matter of life and death of a poor and illiterate lady from a village background who do not know the niceties of law, may have taken some abrupt action which does not come within the definition of cruelty.
  12. He further contended that the appellant and his family members demanded dowry and only under such compelling circumstances, complaint was lodged u/sec. 498A IPC by the respondent which by itself cannot be said to be a cruelty. She lived with the appellant, admittedly, from August 1986 to the year 1989 but then, the appellant himself was not interested and created complex situations.
  13. He further contended that the appellant also filed an application for judicial separation which too was dismissed vide order dated 5.12.1995, and contended that the judgment of Trial Court relied upon by the learned counsel for the appellant and brought on record with the application under O.41 R.27 CPC were not before the Family Court and the same cannot be taken into consideration and if at all required, the matter may be remitted to the Family Court for reconsideration of subsequent developments/judgments.
  14. He further contended that the Family Court has taken into consideration each and every factor, particularly the statements of witnesses and came to a correct conclusion which is not required to be interfered with, and vehemently supported the order passed by the Family Court and contended finally that the husband being habitual of filing divorce petition or judicial separation application, wants to get rid of her by seeking divorce by some method. He further contended that age is no consideration in matrimonial matters, rather contended that at this age of about 55 years or so, both husband and wife needs companionship and endeavour of the Court should be to see that they are reunited not only on papers but in reality.
    • He relied upon the following judgments :-
    • Archna Sharma v. Suresh Kumar Sharma I (1995) DMC 133 [Punjab & Haryana High Court];
    • Sujit Banerjee v. Anita Banerjee II (1997) DMC 48 (DB) [Calcutta High Court];
    • Vegi Jagadesh Kumar v. V. Radhika II (2000) DMC 470 (DB) [Andhra Pradesh High Court];
    • Smt. Santosh Sharma v. Ashok Kumar AIR 2001 Delhi 422;
    • Jagat Singh v. Sarojini Devi I (2002) DMC 645 [Punjab & Haryana High Court];
    • Bishwanath Pandey v. Anjana Devi II (2002) DMC 397 (DB) [Jharkhand High Court];
    • Yudhishter Singh v. Smt. Sarita I (2003) DMC 538 (DB) [Rajasthan High Court];
    • Hari Ram v. Lichmaniya and Others AIR 2003 Rajasthan 319;
    • P.Malleswaramma v. P.Prathap Reddy AIR 2006 Andhra Pradesh 4;
    • Jitendra Singh v. Yashwanti II (2008) DMC 482 [Delhi High Court];
    • Pramodkumar C Shah v. Rajulaben Pramodkumar Shah II (2013) DMC 240 (DB) (Guj.);
    • Kajal Das v. Juli Mahajan (Das) III (2013) DMC 295 (DB) (Gau.);
    • Chetan Dass v. Kamla Devi RLW 2001 (2) SC 201;
  15. We have heard the learned counsel for the parties and have gone through the impugned order and judgments passed by this Court earlier minutely and the observations of the Apex Court.
  16. At the outset, we may quote sec. 13(1) of the Act 1955 and also quote sec. 498A, 323 and 406 IPC for disposal of the present appeal, which reads ad infra :-
    • 13. Divorce-
    • (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
    • (i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
    • (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
    • (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
    • (ii) has ceased to be a Hindu by conversion to another religion ; or
    • (iii) has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
      • Explanation- In this clause- (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and include schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party and whether or not it requires or is susceptible to medical treatment; or
    • (iv) has been suffering from a virulent and incurable form of leprosy; or
    • (v) has been suffering from veneral disease in a communicable form; or
    • (vi) has renounced the world by entering any religious order; or
    • (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;…
    • 498A. Husband or relative of husband of a woman subjecting her to cruelty.
    • Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
      • Explanation.For the purpose of this section, cruelty means
      • (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
      • (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
    • 323. Punishment for voluntarily causing hurt.
    • Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
    • 406. Punishment for criminal breach of trust.Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
  17. Admittedly the ground for divorce taken by the appellant against the respondent is that the respondent has treated the appellant with cruelty.
  18. It would also be apt to quote the statements of material witnesses from both the sides to make home what has transpired in between the parties :-
    • AW-1 Nathulal son of Dwarka Lal stated, inter alia, that on 12.5.1989 at about 8:AM, Nathi Bai misbehaved with him and tried to prevent him from going to his office. He was rescued by neighbourers. One day she fought with him and told that neither she will allow him to go to his duties, nor let him live in Kota, and threatened to even kill him. He also stated that she along with her brothers after abusing him went to his parents’ house where they misbehaved with them and even declothed his mother.
    • AW-3 Dwarka Lal son of Magan Lal, inter alia, stated that Nathi Bai used to misbehave with him and his wife and even they have suffered beating from her and her brothers. On being cross examined, he stated that he has no knowledge how burn marks at her leg were received by her but she used those marks to gain sympathy from others.
    • AW-4 and AW-5 Dinesh Gautam son of Moti Shankar and Banwari Lal son of Madan Lal, have stated that they have witnessed the incident of Nathu Lal being abused by Nathi Bai in front of the factory gate of Instrumentation Ltd.
    • AW-6 Shyam Manohar son of Chaturbhuj, inter alia, has stated in his statement that on 12.3.1991 at about 2:30 in the afternoon when he was going home from village bust stand, he saw 20-25 persons together near the Primary School, and Nathi Bai was also there along with her three brothers and they were abusing and ill-behaving with father and mother of the petitioner Nathu Lal.
  19. On perusal of the witnesses at the instance of the appellant, in our view, clearly proves that the respondent is in the habit of misbehaving not only with aged parents of the appellant and his brothers, but the appellant himself. Leaving apart the statement of AW-1, as he is petitioner appellant-Nathu Lal. Dinesh Gautam (AW-4), Banwari Lal (AW-5), Shyam Manohar (AW-6) and other witnesses have described about the incident of fight which ensued in between the parties outside the factory gate, where the respondent was found beating the appellant and abusing him in front of the staff and officials of the Instrumentation Ltd. NAW-1 Nathi Bai wife of Nathu Lal in her statement, inter alia, stated that she did not fight with her husband on 12.5.1989 nor abused him. She also denied that she had ever threatened her husband. She then stated that after September 1989 she neither went to her in-laws’ house nor abused them. She denied the allegation that she ever wished that her husband should die so that she gets employment in his place. She alleged that for want of dowry, Nathu Lal had left her and differences have widened between them. NAW-2, NAW-3 and NAW-4 Ghanshyamdas son of Madhodas, Ram Ratan Swami, and Birdhilal both sons of Ram Narain, inter alia, stated that dispute between the parties is for demand of dowry by Nathu Lal’s parents. NAW-5, NAW-6 Saroj Singh daughter of Ravindra Pratap Singh, and Kamla Bai wife of Ramkumar, have stated, inter alia, that one day Nathi Bai was weaping and standing outside the house, they enquired from her about the reason of her weaping and standing outside the house, to which Nathi Bai answered that she is wife of Nathu Lal but he has sent a notice/letter of divorce to her. She further stated that when the dispute between the parties grew up, one day in 1986 members of the colony including them, went to Vigyan Nagar Police Station and lodged a report to the effect that Nathi Bai is wife of Nathu Lal but he uses force against her and misbehaves with her. Both the witnesses further stated that younger brothers were residing with the petitioner who used to forcibly push Nathi Bai to go out of the house and torture her. They also claimed that with the help other neighbourers they made Nathi Bai to enter in the house.
  20. We have gone through the statements recorded at the instance of the respondent. While Ghanshyamdas (NAW-2), stated that there was a demand of gold chain in dowry which was conveyed to him by the father of respondent-Nathi Bai, however, in cross-examination he denies having any talk with the appellant in this regard. Ram Ratan Swami (NAW-3), though supports the version of Ghanshyamdas (NAW-2), but speaks of the incident about 10-12 years old and that too by mentioning that respondent’s father had told him about demand of dowry, however, he admitted in cross-examination that the appellant-Nathu Lal never raised any demand for any chain in his presence. Birdhilal (NAW-4), though he is stated to be a Head Constable in the Police Department, but he does not remember his place of posting when appellant’s father and appellant had said about demand of one tola gold chain. In cross-examination, however, he stated that the said incident did not happen in his presence. Ms. Saroj Singh (NAW-5), and Kamla Bai (NAW-6), Mrs. Santosh wife of Suresh Chandra (NAW-7), Mrs. Kesar wife of Radhe Shyam (NAW-8), Mrs. Shanti Verma wife of K.L. Verma (NAW-9), all spoke about the incident of 1986, which in our view is not required to be stressed upon particularly in view of the fact that thereafter admittedly both were living jointly at the instance of the family members of the respondent, and it is only after 1989 that further disputes took place in between the parties.
  21. It would be appropriate to deal the judgments of the Apex Court which have laid down the principles which help discharge the Family Court and other Courts the onerous task in a more realistic and effective manner to decide petitions like this.
  22. In the case of Naveen Kohli v. Neelu Kohli (supra), the Apex Court has laid down the principles which will help discharging the Family Courts and other Courts the onerous task in a more realistic and effective manner to decide the petitions, and the same is quoted thus :-
    • 66. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act 1955. Because of the change of circumstances and for covering a large number of cases where the marriages are virtually dead and unless this concept is pressed into service, the divorce cannot be granted. Ultimately, it is for the Legislature whether to include irretrievable breakdown of marriage as a ground of divorce or not but in our considered opinion the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act 1955.
    • 67. The 71st Report of the Law Commission of India briefly dealt with the concept of Irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. We deem it appropriate to recapitulate the recommendation extensively. In this Report, it is mentioned that during last 20 years or so, and now it would be around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, namely, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory.
    • 68. In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920 included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case in New Zealand reported in 1921. Salmond, J. in a passage which has now become classic, enunciated the breakdown principle in these word: “The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.”
  23. The Apex Court in the case of Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511 has held that cruelty is a state of mind, reiterating certain illustrative cases where inference of mental cruelty can be drawn. It would be appropriate to quote the relevant para 101 of the judgment :-
    • 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty.
    • The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
      • (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
      • (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
      • (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
      • (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
      • (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
      • (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
      • (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
      • (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
      • (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
      • (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
      • (xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
      • (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
      • (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
      • (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
  24. The Apex Court has found that there can be no uniform standard but deemed it appropriate to enumerate some instances of human behaviour in dealing with the case of mental cruelty. In our view, sub paras (i), (ii), (x) and (xiv) are relevant in the instant case.
  25. In the case of K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226, not only the Apex Court adjudged the above points of mental cruelty as expressed in the case of Samar Ghosh (supra) but also added few more points namely, making unfounded defamatory allegations against spouse or his relatives even in pleadings, filing repeated false complaints or issuing notices or news items which may have adverse impact on the business prospects or the job of spouse and filing repeated complaints and cases against spouse in the facts of the case, amount to causing mental cruelty.
  26. It is true that the foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each others fault to a certain bearable extent has to be inherent in every marriage. It is true that 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. Mental cruelty may consist of verbal abuses and insults, by using filthy and ugly language leading to constant disturbance of mental peace of the other party.
  27. In the case of Mayadevi (smt) v. Jagdish Prasad (supra) the Trial Court found that the allegation of cruelty was established. Several instances were noted. One of them related to wife’s behaviour on the date of judgment in the criminal case. After the judgment of conviction was pronounced, she threatened the husband to kill him and prosecute him. It was also noted by the Trial Court that allegation made by her alleging dowry demand was disbelieved and the police gave final report stating that the case was falsely lodged and on these facts the Trial Court granted the decree of divorce, which was confirmed by the High Court. The Apex Court taking into consideration the facts and circumstances in that case held that the husband was subjected to mental and physical cruelty and thus dismissed the appeal.
  28. In the present case as well, the case instituted u/sec. 498-A IPC was dismissed and the same has not been assailed before higher forum.
  29. In the instant case, the contention of learned counsel for the respondent that proceedings u/sec. 498-A IPC and other cases were filed subsequently cannot be considered, but in the light of the judgment of Vishwanath Agrawal (supra) the contention of learned counsel for the respondent is repelled.
  30. We find that the judgments in Vishwanath Agrawal v. Sarla Vishwanath Agrawal (supra), Smt. Savitri Balchandani v. Mulchand Balchandani (supra), Jayakrishna Panigrahi v. Smt. Surekha Panigrahi (supra), Smt. Sadhana Srivastava v. Arvind Kumar Srivastava (supra), A. Jayachandra v. Aneel Kaur (2005) 2 SCC 22, and Suman Kapur v. Sudhir Kapur (2009) 1 SCC 422 were relied upon wherein it is held that false, scandalous, malicious, baseless and unproved allegations even in the written-statement is cruelty to the other party.
  31. It would also be appropriate to mention about the judgments relied upon by the learned counsel for respondent.
  32. In the case of Sujit Banerjee v. Anita Banerjee (supra) the High Court found that a unilateral act of one spouse, reducing the relationship to a situation where the marriage would be deemed to have broken down and such act unless made an issue by the wronged spouse cannot be deemed to be a valid ground to take away the legal right which was caused by the solemnization of marriage. In the abovesaid case, wife did not opt to dissolve the marriage in spite of suffering at the hands of the husband and there was bona fide on her part. On these facts the High Court dismissed the appeal. In our view, the facts are different and entirely distinguishable to what are available in the instant case.
  33. In the case of Archna Sharma v. Suresh Kumar Sharma (supra), the Court found that allegations of cruelty were not pleaded in the divorce petition by seeking amendment thereto and, therefore, not put to trial, and the Court observed that the allegations of cruelty could not be taken note of while granting divorce unless these were made a part of the divorce petition. The High Court in that case was not inclined to grant decree of divorce. However, in the light of the judgment in Vishwanath Agrawal (supra) of the Apex Court, where it has been held that subsequent events can be taken note of and considered, the said judgment is contrary to the law laid down by the Apex Court and is distinguishable. To the same effect is the judgment relied upon by the learned counsel for respondent in the case of Smt. Santosh Sharma v. Ashok Kumar (supra).
  34. Similarly in the case of Vegi Jagadesh Kumar v. V. Radhika (supra), there were mere accusations, taunts by one against other and the High Court found that they were not willful in nature and does not constitute cruelty. The High Court also observed that the other party committed willful and unjustifiable acts inflicting pain and misery on the complainant and causing injury to his/her health. The conduct of complainant must be serious and higher than the wear and tear of married life. It is not cruelty, if acts complained of are not violent in nature. Mere complaints, accusations, or taunts by one against the other if the same are not willful in nature, do not constitute cruelty. The other judgments relied upon by the learned counsel for respondent in the cases of Pramodkumar C Shah (supra), Jagat Singh (supra), Jitendra Singh (supra), Chetan Dass (supra), Kajal Das (supra), Yudhishter Singh (supra), Hari Ram (supra) and P.Malleswaramma (supra), are judgments where the Courts found that cruelty on the spouse was not proved, or one cannot take advantage of his own wrong and on mere fact that erring spouse is moody, whimsical, irritable or inconsiderate, are no grounds for divorce. However, we have taken into consideration the judgments of the Apex Court and the conduct of the respondent in repeatedly causing cruelty on the appellant. Therefore the judgments are distinguishable on facts.
  35. In the instant case in our view there are several complaints against the respondent who took law into her hands, tried to beat the appellant and his family members not only once but on other occasions as well and created commotion even outside the factory gate with the appellant, coupled with filing of cases u/sec. 498-A and other facts clearly lead to irresistible conclusion that cruelty was certainly caused by the respondent against the appellant husband both mental as well as physical.
  36. Taking into consideration the facts as noticed hereinbefore, and the complaints lodged by both the sides, and in particular at the instance of the respondent-Nathi Bai, it is clear that the criminal cases filed at her instance stood dismissed. However, the criminal cases lodged at the instance of the family members of the appellant stood allowed against the respondent, who was found guilty, and in our view taking into consideration the judgments cited supra, clearly make out a case of physical and mental cruelty against the appellant, and a clear case is made out for grant of decree of divorce.
  37. We have also noticed that the respondent filed several complaints against the appellant, she was also convicted in one of the cases involving father, mother and brothers of the appellant, and was sent to jail, whatever time she lived with her husband, she never lived peacefully with him. She left her matrimonial home and came back after more than 3 years. Thereafter also there was no improvement in the conduct of the respondent, as is evident from criminal complaints and the reports of the independent persons against her behaviour so as to gain sympathy of any person. The relevant consideration is to see whether the conduct is such as to cause a reasonable apprehension in the mind of the one that it will be harmful or injurious for him/her to live with the other side. We have given hereinbefore the cases instituted by both the parties against each other. While the cases instituted at the instance of respondent Nathi Bai were found false or/and the accusations made by Nathi Bai were found not guilty, however, in the complaints made at the instance of the petitioner or/and family members, challan was filed against accused Nathi Bai and her brothers and they were found guilty. Thus, this even otherwise proves that the respondent was in habit of filing repeated cases and in our view even one case is sufficient to prove mental cruelty, at-least in matrimonial matters like this.
  38. Though the Court on several occasions tried to persuade both the parties to come to amicable solution through mediation as Courts go slow at-least in matrimonial matters to try to make rapprochement so that bonding of marriage which is considered to be sacred and sacrosanct in the Hindu Law, is maintained/retained.
  39. In matters like this, something more is required to be considered rather than ordinary wear and tear of married life and the Courts have to be very practical and pragmatic in approach while dealing with the divorce petitions filed on the ground of cruelty or otherwise. Foundation of a sound marriage is tolerance, adjustment and respecting one another. The Court has to bear in mind that the problems before it are those of human beings and a delicate bond of husband and wife should be maintained.
  40. Taking into consideration that the respondent has been threatening that she will either put an end to her life or kill the appellant, abusing the husband time and again and threatening that she will make him loose his job, insulting the husband in front of others and his parents also, complaints of independent persons regarding her quarrelsome and uncalled for behaviour, tarnishing not only the image of her husband but also his parents, are almost so grave an order as to imperil the appellant’s sense of personal safety, mental happiness, job satisfaction and reputation, in our humble view a case of cruelty is clearly made out. Taking into consideration that admittedly both have lived separately since 1989 i.e. almost 27 years now and have been fighting tooth and nail against each other, in our view it also can be said to be irretrievable breakdown of marriage or rather it is a failed marriage and the delicate bond of marriage of sacrifice no more is apparent in addition to cruelty and we feel appropriate to let both husband and wife now be made free from the marriage bonding which was solemnized as per Hindu rites and customs in April 1979 i.e. 37 years ago by now, may be dissolved.
  41. In our view, taking into consideration the statements of the witnesses of both sides, the mental cruelty stands proved against the appellant at the instance of the respondent, and the appellant husband deserves indulgence in seeking their marriage dissolved.
  42. A feeble attempt was made by the learned counsel for respondent that the second petition filed by the appellant on the same subject is barred by the principle of res judicata. In our view, taking into consideration the subsequent development and fresh material/evidence, which has come on record for filing of the divorce petition subsequent to earlier petition having been withdrawn, is in order as it can always be filed in view of the subsequent developments. Equally important is that no ground was raised before the Family Court insofar as the second petition is concerned. Accordingly, the argument of learned counsel for the respondent, is rejected.
  43. For the reasons aforesaid, the appeal deserves to be allowed and we quash and set aside the judgment and decree dated 24.2.1993 and their marriage solemnized on 27.4.1979 stands dissolved. A decree for divorce is hereby granted to the appellant. No costs.
    (J.K. Ranka) J.                            (Ajay Rastogi) J.

    db

No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! Rajastan HC

No maintenance to deserting wife. Right to maintenance stems performance of marital duty ! When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. Rajastan HC

A deserting wife claims maintenance alleging beatings, dowry torture etc. The learner Magistrate disallows her claims based on evidence and facts. On appeal the learned sessoions court allows maintenance to the wife. Hon Raj HC appreciate the facts and decrees “… The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to say with him but she refused to accept the notice….” and refuses to grant her any maintenance. Only children get maintenance

The HC also confirms that “…In revisional jurisdiction, Court cannot be justified in reappraising evidence and come to its own conclusion when it is not shown that Magistrate omitted to consider some vital evidence or had misread evidence. Learned Addl. Sessions Judge obviously exceeded jurisdiction in reversing finding of fact recorded by Magistrate, without cogent reasons. ….”


Rajasthan High Court

Bheekha Ram vs Goma Devi And Ors. on 22 January, 1999

Equivalent citations: I (2000) DMC 76, 1999 WLC Raj UC 260

Author: G Gupta

Bench: G Gupta

ORDER

G.L. Gupta, J.

  1. This revision by the husband has been preferred against the revisional order dated 17.3.1997 passed by the learned Special Judge-cum-Addl. Sessions Judge, Bikaner where he set aside the order dated 22.4.1995 passed by the Judicial Magistrate No. 2, Bikaner refusing maintenance to the respondent Nos. 1 to 2.
  2. The short facts of the case are that Goma Devi for her and on behalf of her two minor sons filed an application under Section 125, Cr. P.C. against her husband-Bheekha Ram (petitioner in this revision) for maintenance. It was alleged that Goma Devi was married to Bheekha Ram 12-13 years ago but for some time her husband and his parents were torturing her for dowry and that she was beaten and turned out of the house and with great difficulty she was again kept by them. It was further alleged that she purchased a piece of land by selling her ornaments and with the help of her parents she constructed a house and started living there but three months before filing the application Bheekha Ram tried to kill her by burning and thereafter he is neglecting her. It was stated the Bheekha Ram earned Rs. 60/- per day by doing mason work. It was prayed that she be allowed maintenance @ 400/- per month for herself and Rs. 250/- each for her children. In the reply, the husband denied the charge of cruelty for dowry. He also denied that he ever gave beating to Goma Devi or that he tried to kill her. He came out with the case that Goma Devi used to misbehave with his parents and, therefore, he purchased a piece of land and constructed a house for living separately but his wife continued to cause mental torture to him by abusing his parents and ignoring him. It was stated that the petitioner left his house without just cause and was not discharging her marital obligations.
  3. Goma Devi entered into the witness box and examined A.W.1. Tulchiram. In rebuttal, Bheekha Ram entered into the witness box and examined. N.A.W. 2 Kaluram, N.A.W. 3 Modaram and N.A.W. 4 Sampatram. After hearing the Counsel for the parties, the learned Magistrate held that the allegations of neglect by the husband were not proved. He further held that the allegation of cruelty for the dowry were also not proved. Holding that the wife left the matrimonial home without just cause, and she was not entitled to maintenance, the learned Magistrate rejected the application of Goma Devi. Goma Devi filed a revision against the order. By the impugned order the learned Addl. Sessions Judge allowed her revision and held that Goma Devi was entitled to maintenance @ Rs. 250/- per month for herself and Rs. 125/- each for her two children.
  4. Mr. S.D. Vyas vehemently contended that the Addl. Sessions Judge has not properly appreciated the evidence and has committed grave error in reversing the finding of fact recorded by the Magistrate. He cited the cases of Shahzad Bona v. Sher Mohammed, 1990 RCC 57; Bhanwari Bat v. Mohd. Ishaq, 1984 MLR 234; Budharam Kosta v. Pitarbai, 1984 MLR 62; and Raghbir Singh v. Krishna, 1982 MLR 307.
  5. On the other hand, Mr. G.K. Vyas urged that this Court should not interfere in the revisional order as the Magistrate had not properly considered the evidence and had come to erroneous conclusion.
  6. I have considered the above arguments. A reading of the order of the Magistrate shows that he had dealt with the evidence of each and every witness. It could not be pointed out by learned Counsel for Smt. Goma Devi that the Magistrate had ignored some important piece of evidence appearing in favour of the wife or that there was misreading of the evidence in favour of the husband. It has to be accepted that the learned Addl. Sessions Judge has overstepped when he on reapreciation of evidence has come to a different conclusion. It is trite legal position that the jurisdiction of a Revisional Court is not as that of Appellate Court which is free to reach its own conclusion on evidence untrammelled by any finding entered by the Trial Court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior Court. While exercising revision power, the Court has to confine to the legality and propriety of the findings and also whether the subordinate Court has kept itself within the bound of its jurisdiction including the question whether the Court had failed to exercise the jurisdiction vested in it: vide Associated Cement v. Keshvanand, AIR 1998 SC 596=II (1998) SLT 26 (SC).
  7. In the instant case, the learned Magistrate has rightly held that the respondent-wife had not been able to establish the allegations of cruelty or demand of dowry and that on her own admission she was living in the house constructed by her husband. On the admission of Goma Devi that for about 14 years the husband used to give his entire income to her and he was maintaining the family and that her husband was always ready and willing to keep her and her children and there was not love lost between them, the learned Magistrate was perfectly justified in holding that there was no negligence by the husband and the wife was herself responsible for the trouble in the marital relations. The learned Addl. Sessions Judge, it is obvious was influenced by the fact that the husband has filed a divorce petition in the Court of Distt. Judge, Bikaner. By this, he presumed that the husband Bheekha Ram was not willing to continue with the marital relations. In my opinion, this could not be the valid ground for interfering in the order of the learned Magistrate. The matter was to be decided on the basis of the material available on the record of the case under Section 125, Cr. P.C.
  8. The Addl. Sessions Judge has obviously erred in allowing the revision on the basis of the subsequent development of the case ignoring the admissions of the wife.
  9. The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to say with him but she refused to accept the notice.
    10. As already pointed out, in the revisional jurisdiction, the Court cannot be justified in reappraising the evidence and come to its own conclusion when it is not shown that the Magistrate had omitted to consider some vital evidence or had misread the evidence. The learned Addl. Sessions Judge has, obviously exceeded his jurisdiction in reversing the finding of fact recorded by the Magistrate, without cogent reasons. Goma Devi has not been able to establish that she had been neglected by her husband. As a matter of fact she is living with her parents of her own accord. She is, therefore, not entitled for maintenance allowance for herself. However, she is entitled to maintenance allowance for her two kids who are living with her Bheekha Ram, has not come out with the case that he was giving maintenance allowance to Goma Devi for the children. It is fault of the children when they are living with their mother. The father is bound to provide maintenance to them.
  10. Consequently, this revision is partly allowed. The order of the Addl. Sessions Judge granting maintenance to Goma Devi is set aside. The order granting maintenance to the children is upheld.

Parties can be represented thru lawyer at family court ! Raj HC

Family courts are expected to attempt at reconciliation, shorten the length of trial etc, and so take a radically different “party in person approach” . However in specific cases, considering the situation of the parties, their difficulties to travel and reach the courts, the need for a counsel (with legal knowledge) etc., parties may be permitted to be represented thru a lawyer. Reasonable opportunity to defend considered as an essential part of principles of natural justice.
In this classic case, the Hon court summarises that “….(iv) in case the conciliation fails and both or either of the parties submits an application of leave to be represented through a Lawyer, it should normally be granted more particularly in a case where the parties are to travel from outside the place of sitting of Court….”

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

Rajasthan High Court

Laxmi Kanwar vs Laxman Singh on 19 May, 2004

Equivalent citations: I (2005) DMC 745

Author: N Mathur

Bench: N Mathur, K Acharya

JUDGMENT N.N. Mathur, J.

  1. This miscellaneous appeal filed under Section 19 of the Family Courts Act, is directed against the order of the Judge, Family Court, Jodhpur dated 1.4.2003 dismissing the appellant’s application filed under Section 13 of the Family Courts Act, 1984, hereinafter referred to as “the Act of 1984” read with Rule 22 of the Rajasthan High Court Family Court Rules, 1990, hereinafter referred to as “the Rules of 1990” seeking leave to be represented through a Counsel.
  2. This respondent-husband filed a petition in the Court of Judge, Family Court, Jodhpur against the appellant-wife under Section 13 of the Hindu Marriage Act, 1955, hereinafter referred to as “the Act of 1955” for divorce. The notice of the petition was served on the appellant-wife at her Kapadganj address in the State of Gujarat, where she is residing with her parents. She used to travel from Kapadganj to Jodhpur for attending the Family Court on dates of hearing, escorted by her parents. On account of illness, she could not appear on 17.5.2001, which led to ex parte proceedings against her. However, the ex parte proceedings were recalled by order dated 19.7.2001. It was a great harassment to her parents and herself to travel from Kapadganj to Jodhpur on every date of hearing. In these circumstances, leave was sought to be represented through Counsel. The application was opposed by the respondent-husband on the ground that the appellant-wife being an educated lady holding the qualification of M.A., B.Ed. and also a student of LL.B. final, could travel alone and defend her case. The respondent-husband placed reliance on a decision of the learned Single Judge of this Court in Smt. Kailash Bhansali v. Surendra Kumar, reported in 2000 (3) WLC (Raj.) 543. In the said case, the Judge, Family Court, Udaipur granted leave to the party to be represented through a Counsel. On appeal, the learned Single Judge of this Court set aside the said order with a cost of Rs. 10,000/-. The said judgment has been set aside by the Division Bench in special appeal being D.B. Special Appeal No. 550/2000 decided on 15.12.2000. However, the Judge, Family Court preferred to rely on the judgment of the learned Single Judge in utter disregard to the Division Bench judgment. In the opinion of the learned Family Judge, the difficulty of visiting Jodhpur for attending the Family Court on dates of hearing, could be redressed by directing respondent-husband to pay the actual expenses incurred. It was further observed that she is not only M.A., B.Ed. but also student of LL.B. The learned Judge, Family Court made a personal remark against the appellant-wife that she can defend her own case much more effectively than a Lawyer. Thus, the learned Judge, Family Court made a personal remark against the appellant-wife that she can defend her own case much more effectively than a Lawyer. Thus, the learned Judge by the impugned order dated 1.4.2003 rejected the application filed by the appellant under Section 13 of the Family Courts Act.
  3. The core question which arises for consideration in the instant appeal is that in the facts of the case as to whether the appellant-wife is entitled to appear through Counsel? In this connection, it would be apt to read Section 13 of the Act of 1984 as follows;
    • “Section 13. Right to legal representation-
    • -Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner: Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  4. It would be further relevant to refer to Rule 22 of the Rules of 1994, which is extracted as follows:
    • “Permission for representation by a Lawyer-
    • -The Presiding Officer of a Family Court, in his discretion, may permit a lawyer/Advocate to appear in the Court wherever he feels that it is necessary in the interest of justice.”
  5. The object of the Family Courts Act appears to be to establish such Counts with a view to promote conciliations and to secure speedy settlement of disputes relating to marriage and other family affairs and all other matters indicated therein. Thus, the Family Courts are supposed to adopt a radically different approach than what is adopted in ordinary civil proceedings. Section 9 of the Act of 1984 imposes a duty on a Family Court to assist and persuade the party to arrive at a settlement in respect of the subject matter of the suit or proceedings. Section 10 provides that subject to the other provisions of this Act and the Rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being to force shall apply to the proceedings before the Family Court and the Family Court shall be deemed to be a Civil Court for the purpose of the Code and shall have all powers of such Court. However, Section 13 prohibits appearance of a lawyer in the proceedings as of right. It is significant to notice that while in all other civil proceedings as provided under Sub-rule (2) of Rule 1 of Order 5, C.P.C., the defendant may appear in person or by a pleader duly instructed and able to answer all material questions relating to suit but such a liberty is not available to a defendant in proceedings civil in nature in Family Court. It is further significant to notice that Order 5 Rule 4, C.P.C. provides that no party shall be ordered to appear in person unless he resides within the local limits of the Court’s ordinary jurisdiction or at a place less than fifty miles distance from the Court-house where there is an established public conveyance for one-sixths of the distance between the place where he resides and the place where the Court is situated or less than two hundred miles distance from the Court-house. Order 3 Rule 1 provides that any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any laws for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing applying or acting, as the case may be, on his behalf : provided that any such appearance shall, if the Court so directs, be made by the party in person. Thus, a reasonable opportunity to defend has always been considered as an essential part of principles of natural justice. Unfortunately, there is a class of people, without having first hand experience of the working of Mufassil Courts, blames Lawyers for the delay in Court proceedings. In our opinion, far from delaying the proceedings, the presence of Lawyer makes it more smooth to expedite because of his knowledge of law and procedure and his training. The experience shows that in the matter of reconciliation in the matrimonial matters, the Lawyers have played a significant role. It is difficult to conceive a Court without a Lawyer. A Lawyer is gifted with natural quality, ability and experience not only to persuade the Judges on a point of fact or law, but also the parties to settle their dispute.
  6. Lord Denning in a leading case Pett v. Grayhound Racing Association Ltd., reported in (1968) 2 All England Reporter 545, observed thus: “I should have thought, therefore, that when a man’s reputation or livelihood is at stake, he not only has a right to speak by his own mouth, he has also a right to speak by Counsel or solicitors.”
  7. The Apex Court in Board of Trustees, Port of Bombay v. Dilip Kumar, reported in AIR 1983 SC 109, after referring to its earlier decisions in Kalindi v. Tata Locomotive, reported in AIR 1960 SC 914; Brooke Bond (India) Ltd. v. Subba Raman, reported in 1961 (2) LLJ 417; Dunlop Rubber Company v. Workman, reported in AIR 1965 SC 1392; and C.L. Subramaniam v. Collector of Customs, reported in AIR 1972 SC 2178, took a forward march to fair play in action and held that refusing to grant request defended by a Lawyer would amount to denial of reasonable opportunity to defend himself and the principle of natural justice would be violated.
  8. A learned Single Judge of the Gujarat High Court (Mathur, J.) in Mitesh Manubhai Sheth v. Secretary, Govt. of India, reported in AIR 1998 Gujarat 60, while considering the validity of the proviso to Regulation 28(5) of the Securities and Exchange Board of India Act, 1992, which provided complete embargo on inquiry officer even to consider request of stock broker to permit him to be defended through Lawyer, struck down the provision having found it to be violative of Articles 19 and 21 of the Constitution of India. It was held that the statutory provisions are required to be in consonance with the principles of natural justice inasmuch as the rights of a person having serious civil and pecuniary consequences, are not deprived except by a fair procedure. A bare reading of Section 13 of the Act of 1984 shows that a Lawyer has no absolute right to appear on behalf of the party before the Family Court but it is in the discretion of the Family Court to permit the Lawyer to appear. The use of words “as of right” in Section 13 is of significance. If the intention of the Parliament was to debar the Advocates absolutely from appearing in the proceedings of the Family Courts, the words “as of right” would not have been there. It has been left to the discretion of the Family Court.
  9. The Bombay High Court in Leela Mahadeo v. De Mahadeo Sitaram Joshi, reported in II (1991) DMC 125 (SC)=AIR 1991 SC 105, has taken the view that the Family Court should permit representation by Lawyers where complicated questions of law and facts are involved. However, the Allahabad High Court in Prabhat Narain Tickoo v. Mamta Tickoo, reported in II (1998) DMC 333, observed that such an approach will lead to unnecessary wrangles in almost every case on the question whether complicated question of law and fact are involved or not, and this will take a lot of time, and parties will very often go upto the Higher Court on this preliminary issue, causing great delay. In the opinion of the Allahabad High Court, whether complicated questions are involved or not will differ from Judge to Judge and hence a simpler, clearer, and more objective guideline is required to be adopted. It will be relevant to extract para 7 from the said judgment:
    • “7. In our opinion, the correct approach should be that the Family Court should not permit lawyers to appear before it when it is trying to seek reconciliation between the parties under Section 9 of the Family Courts Act. It may be mentioned that it is the first duty of the Court hearing matrimonial cases to try to reconcile the parties as envisaged by Section 9 of the Act. At this stage, Lawyers are not at all necessary, and it is for the Court to try to persuade the husband and wife to get reconciled. Lawyers may also not be allowed to appear on cases under Section 13B of the Hindu Marriage Act (divorce by mutual consent). However, if the reconciliation attempt fails, and the matter has to be adjudicated, in our opinion, the Court should ordinarily allow Lawyers to appear in behalf of the parties. This is necessary because Divorce Law and other Family Law has now become a complicated branch of law, and an ordinary layman cannot be expected to know this law. It may be mentioned that there is a catena of decisions both in England and India on this branch of law, and without a knowledge of the same, a party cannot represent himself/herself in the case, and only a trained Lawyer can do so. For example, Section 13(1)(ib) of the Hindu Marriage Act provides that separation for two years is a ground for divorce. A layman would probably think that proof of two years of physical separation alone is required for divorce on this ground, but the case law on this point is that mere physical separation for 2 years is not sufficient and the petitioner has also to prove animus diserendi i.e., intention to bring cohabitation permanently to an end. Similarly, cruelty is a ground for divorce, and the layman would ordinarily regard cruelty to mean physical cruelty, but by judicial decisions it has been interpreted to mean mental cruelty also. There is a catena of case law on this subject, and no layman can be expected to know this case law as it takes years to study and understand it. Moreover, a layman would be ignorant of procedural rules also. Hence it is obvious that a layman cannot ordinarily represent himself properly in such cases. Representation by Lawyers will not only be of great assistance to the parties, it will also be of great assistance to the Court to do justice expeditiously. Some people say that Lawyers will cause delay in the proceedings. In our opinion, far from delaying the proceedings, a Lawyer will greatly expedite it because by his knowledge of law and procedure and this training he can quickly come to the relevant points. Moreover, lawyers know the art of the cross-examination, and the rules of procedure, which a layman does not. Hence we are of the opinion that the discretion in granting/refusing representation by Lawyers must be exercised in the manner aforementioned, namely that at the stage when the Court is trying to reconcile the parties or when divorce is sought by mutual consent no Lawyer should ordinarily be permitted but otherwise when the matter is being adjudicated Lawyers should ordinarily be allowed to represent the parties.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  10. The Karnataka High Court in the case of Komal S. Padukone v. Principal Judge, Family Court reported in AIR 1999 Karnataka 427, observed that the Family Courts should adopt a practical and humane approach and arrange its work suitably having regard to the workload, in such a manner that the parties before it are not put to unnecessary inconvenience. The Court provided guidelines for the Family Court as follows:
    • “13. A combined reading of the Act and the rules with relevant provisions of C.P.C. make the following evident:
    • (i) A petition to the Family Court may be presented by a petitioner either in person or through an authorised agent. The petition may be presented even by an Advocate as an authorised agent. But, if the petitioner wants ‘representation’ by a legal practitioner, he/she should seek and obtain the permission of the Family Court.
    • (ii) A respondent, who is served with notice of the proceedings, may either appear in person or enter appearance through an authorised agent (including a legal practitioner). But, if the respondent wants to be represented by a legal Practitioner in the proceedings, he/she should seek and obtain the permission of the Family Court.
    • (iii) In regard to proceedings before the Family Court, ‘entering appearance’ in response to a notice/summons through an authorised agent (including a Legal Practitioner), is different from being represented in the proceedings by a legal practitioner.
    • (iv) While representation through Legal Practitioner without permission is barred, entering appearance in a case, in response to a notice/summons, through a Legal Practitioner is not barred, if a Legal Practitioner, having entered appearance, wants to represent party in the proceedings, permission of the Family Court should be obtained for such representation.
    • (v) When one party has been permitted to be represented by a Legal Practitioner, such permission cannot under any circumstances, be denied to the other party.
    • (vi) The authorised agent (or the Legal Practitioner permitted to represent a party) can prosecute or defend the proceedings and represent the party unless and until the Family Court makes a specific order to the parties to appear in person, either on a specified date or on further hearing dates, depending on the facts of the case and stage of the case. Once an order for personal appearance has been specifically made, a party will have to seek exemption from appearance, if he/ she is not able to appear in the matter.
    • (vii) Where a Family Court has a large backlog of cases, and there is no possibility of taking up all cases, listed on a day, it may restrict the requirement of personal appearance of parties to specified stages like conciliation and evidence.
    • (viii) Where it is possible to do so, consistent with the nature and circumstances of the case, the Family Court, either directly or through Counsellors, in the first instance, assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the proceedings.”
  11. The experience of Family Courts in the State of Rajasthan in absence of the Lawyers has been painful. It has become torturous for the parties, their parents and Presiding Judges as well. A Division Bench of this Court in Smt. Nandana v. Pradeep Bhandari, reported in I (1996) DMC 285=(1996) 2 WLC (Raj.) 234, has observed to the extent that the remedy has proved more harmful than the disease itself. It was desired that the Legislature should take a second look at the provisions of Section 13 contained in the Family Courts Act. We can do no better than extract the feelings of the Hon’ble Judges as contained in para 18 of the said judgment:
    • “18. Before parting with the case we feel it necessary to record that the way in which this litigation is being conducted by the parties leaves us sad. The purpose of keeping the Lawyers away from such litigation seems to be completely defeated in this case. Parties have to take upon themselves the task of pleading their respective cases as Lawyers have not been allowed. The decorum and dignity with which cases are normally conducted before the Civil Court with the aid of professionals steeped in the age-old traditions of the Bar are totally lost and unrestricted and relentless acrimony has taken their place. It cannot be believed that parties to such litigation prosecute it without the aid of Lawyers. If that is so, no useful purpose can be served by keeping the Lawyers out of the Court. When the Lawyers appeal before the Court as proxy to their clients, they are expected to have a subtle, studied sense of detachment from the cause of their respective clients and they are expected not to personally involve themselves in the cause. They have a responsibility towards the Court also. When the roles are reversed and the Lawyer is only expected to act behind the scenes, the litigant willy-nilly may become a proxy and the battle may be fought between the two Lawyers using the litigants as puppets or cat’s paw. The result is fierce no-holds-barred battle between two hapless persons estranged from each of the party. The purpose of keeping the Lawyers out of the Court is defeated and a litigant who finds himself unequipped and unable to plead his own case and who has in any case to depend on Lawyer for advice is deprived of the services in Court of a competent and responsible professional. It appears to be a case where the remedy has proved more harmful than the disease itself. It is high time, the Legislature takes a second look at the provision contained in Section 13 of the Family Courts Act, 1984.”
  12. We fully associate with the feeling expressed by the learned Judges in Smt. Nandana’s case (supra).
  13. Thus, on a combined reading of the provisions of the Act of 1984 and the Rules of 1990 with relevant provisions of the Code of Civil Procedure, it emerges that–
    • (i) a petition may be presented before the Family Court by a petitioner either in person or through an authorized agent;
    • (ii) a respondent, who is served with notice of the proceedings, may either appear in person or enter appearance through an authorized agent;
    • (iii) on appearance of the defendant, the Judge of the Family Court should proceed to hear the plaintiff and the defendant without looking into their pleadings with a view to understand their problem and persuade the parties to arrive at a settlement in respect of the subject matter of the suit or proceedings;
    • (iv) in case the conciliation fails and both or either of the parties submits an application of leave to be represented through a Lawyer, it should normally be granted more particularly in a case where the parties are to travel from outside the place of sitting of Court. In such an event, it is desirable that both the parties are allowed to be represented through Lawyers. If one of the parties is not inclined to engage a Lawyer, that should not be a ground to refuse the other party to be represented through a Lawyer;
    • (v) depending upon the facts and stage of the case, a specific order should be passed on which the parties in person are required to remain present. There should not be unnecessary insistence for the presence of the parties on each date of hearing; and
    • (vi) during trial, further attempt should be made for conciliation between the parties either directly or through the Counsellor or the Lawyers.
  14. In the instant case, the appellant wife is staying in Gujarat. It is torturous for her and her parents to travel to Jodhpur on each date of hearing. The convenience cannot be compensated in terms of money. Thus, there is no reason to deny her to services of a Lawyer. She may not have a claim to be represented through a Lawyer as of right but if the convenience so required, it is obligatory on the Court to extend such facility. The proviso to Section 13 casts a duty on the Court to consider if in the interest of justice, the assistance of a legal expert as amicus curiae is necessary. The learned Judge of the Family Court in the facts of the case has committed an error in refusing the appellant to be represented through a legal practitioner.
  15. Consequently, the miscellaneous appeal is allowed. The order of the Judge, Family Court dated 1.4.2003 is set aside. The application filed by the appellant Smt. Laxmi Kanwar under Section 13 of the Act of 1984 is granted. She is allowed to be represented through a legal practitioner. Learned Judge, Family Court will pass an appropriate order with respect to her presence in the Court on the date of hearing.

 

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


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Beating MIL, taking MIL’s house, wife’s brother beating husband, false dowry stmt ALL cruelty ! Raj HC

In this classic case the poor woman, the beacon of love, beats her mother in law and drives her away from the matrimonial home to usurp her hard earned house, when husband is on a training !! The husband is also beaten and thrown out with the help of ablaa’s brother. Not contended with these she also raises false dowry allegations and resists divorce. The HC sees thru her game and decrees all such acts as cruelty !!

* Parties get married in 1985
* Mother in law is working as a staff nurse and has a house built on loan and her hard earned income
* Right from the start wife tries to take away Mother in law’s house.
* Wife beats Mother in law
* When husband goes out of city on training, wife and father in law, beat and drive away mother in law & father in law (husband’s mother & father)
* When husband goes to his (own mother’s house) , wife asks her brother to beat the husband & wife’s brother beats up husband and
* Then ablaa nari wife files Sec 125 maintenance case
* Looks like 498A was NOT famous those days, so she just stops with Sec 125 case and taking over the house !!
* husband files for divorce and wins in lower court
* wife appeals to HC and HC decrees that wife beating mother in law, wife’s brother beating husband, wife usurping MIL’s property and making false dowry claims etc are cruelty. The Hon Hc ALSO denies the woman any maintenance !!

Excerpts and Emphasis / explanations
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“……..The reason being that the relation between the husband and wife, is primarily a human relationship which has been granted legal recognition and is sought to be regulated by the provisions of the Hindu Marriage Act, 1955. There is a basic distinction between a human relationship and legal relationship. A legal relationship is brought Into existence by law but a human relationship, can be brought into existence only by the deliberate will of both the parties to create such a relationship and subsequent conduct on their part in conformity with the requirement of the relationship which they intend to create. The conduct, which is necessary for the creation of human relationship, involves, voluntary obedience of several taboos and voluntary performance of several duties in relation to one another even when such taboos and such duties have not been codified by law. ……”

“…...23. After carefully considering the facts and circumstances of the case. 1 am of the opinion that it cannot be said that the respondent’s mother Smt. Kamala had voluntarily left her house with a view to live in the quarter situated in hospital campus. It is against human nature to abandon the property which a person has constructed by utilising the money, which has been collected by making several sacrifices or by taking loan. The story set up by the appellant-non-petitioner in her reply as well as her evidence, is completely unreliable. I am, therefore, of the view that statement of Smt. Kamala (A. W. 2) inspires confidence and it shows that she was asked to transfer the house to the appellant-non-petitioner and when she refused to do, she was harassed and maltreated by the petitioner-appellant and her brother and, that she was forced to shift her residence to the quarter which was allotted to her in the hospital…..”

“…….25. It is also alleged by the respondent that when he went to the house where the appellant-non-petitioner was residing, the appellant’s brother gave him a beating in presence of the appellant and in place of objecting to such act of her brother, the appellant asked her brother to beat the respondent. On a careful consideration of the evidence on record, I am of the opinion that this statement of respondent Vijay Kumar (A. W. 1) appears to be correct. …………

“….26. There is another act of cruelty which is manifested by her reply as well as her statement and the statement of her father. She has alleged that she was asked to bring dowry and that on two occasions, she brought the amount of Rs. 10,000/- on each occasion and that on the third occasion, she was asked to bring a sum of Rs. 50,000/- and when she refused to fulfil this demand, she was harassed and given a beating. These allegations have not been proved by reliable evidence. The allegations of this nature are easy to be made but unless they are proved, as required by Section 3 of the Evidence Act. the allegations must be treated as not proved. Making false allegations is no doubt an act of cruelty if the object behind the making of false allegations is to lower the dignity or self-esteem or destroy the reputation or to bring some harm to the person against whom the allegations are made. Therefore, any one who makes allegations which are detrimental to the dignity, self-esteem, reputation or well being of the persons against whom they are made, must be careful in making such allegations. in other words, such allegations may not be made unless there is sufficient evidence to prove them. Anyone who makes allegations of serious nature against any one without sufficient evidence to prove them, must bear responsibility for making such allegations. If the allegations are made falsely or without sufficient evidence to prove them, the act of making allegations against either party may amount to cruelty….”

“…29. For the reasons mentioned above, this appeal has no force. It deserves to be dismissed and is hereby dismissed…..”

^ meaning husband’s hard won divorce IS confirmed and the above Ratio / reasoning will help other 498a hit, beaten husbands !!

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Rajasthan High Court

Smt. Pramila Bhatia vs Vijay Kumar Bhatia

19 May, 2000

Equivalent citations: AIR 2000 Raj 363

Author: A Singh

Bench: A Singh

JUDGMENT A.K. Singh, J.

1. Heard the learned counsel for the parties.

2. On a petition filed by the respondent under Section 13 of the Hindu Marriage Act. 1955 the District and Sessions Judge, Sri Ganganagar, granted the decree for divorce. Feeling aggrieved, the appellant-non-petitioner, has filed this appeal.

3. According to the averment made in the petition, the marriage between the parties was celebrated on 15-12-1985 according to Hindu rites at Sri Ganganagar. After marriage, the appellant gave birth to a daughter Shobhna who was about 7 years of age on the date of the filing of the petition. The respondent in his petition, prayed for the decree for divorce under Section 13 of the Hindu Marriage Act on the ground of cruelty. It was alleged in the petition that the respondent’s mother was the owner of house No. 5A/38 situated at Jawahar Nagar and the appellant asked the respondent’s mother to transfer the house to her and threatened that if the house was not transferred to her, a report would be lodged at the Police Station, Sri Ganganagar alleging cruelty and dowry. The house was constructed by the respondent’s mother by spending her hard earned money. On 18-7-1986, the respondent went to Jaipur in order to obtain training. He returned from Jaipur on 7-1-1987. On his return, he came to know that in his absence the appellant-non-petitioner, with the help of her father Bhoor Singh and some others, forcibly entered into house No. 5A/38 situated at Jawaharnagar in which the respondent’s parents were residing and after giving beating to the respondent’s parents and terrifying them turned them out of the house and unlawfully occupied the house. This incident occurred sometime in January 1987 before the respondent returned from Jaipur. As a consequence of the above Incident, the respondent’s parents suffered physical and mental pain and they started residing in a quarter constructed in the hospital where respondent’s mother was serving. After returning from Jaipur, respondent contacted the appellant-non-petitioner. She made a false statement before him to the effect that his parents had gone away to the quarter situated in hospital campus after giving the beating to her parents. On the same day, the respondent with some well-wishers went to the house of his mother and found that the appellant-non-petitioner’s father BhoorSingh and his helpers were there They misbehaved with the respondent, assaulted him and turned him out of the house. The appellant non-petitioner was present at that time but she did not make any protest against the conduct of his father. It was also alleged in the petition filed by the respondent that on 6-2-1987, the appellant-non-petitioner filed a petition under Section 125 of the Criminal Procedure Code in the Court of Chief Judicial Magistrate. Sri Ganganagar. That petition was dismissed by the Chief Judicial Magistrate. Sri Ganganagar by order dated 23-12-1989, A revision petition was filed in the Court of Additional District Judge No. 2 and the revision petition was dismissed by the Additional District Judge No. 2 by order dated 10-10-1991. It was alleged by the respondent that in her application the appellant-non-petitioner, with a view to bring bad name to the appellant and his parents made a false allegation to the effect that the petitioner and his parents used to harass with the object of forcing her to bring money from her parents and it was also falsely alleged by her that she had brought a sum of Rs. 20,000/- from her father and that a further sum of Rs. 50,000/- was demanded from her. These allegations, according to the averments made in the petition filed by the respondent were false. It was also alleged in the petition that the appellant-non-petitioner filed a Civil Suit No. 77/87 in the Court of the Munsif, Sri Ganganagar. The suit was decreed on 6-2-1991 and an appeal was filed in the Court of Additional District Judge No. 1, Sri Ganganagar against the decree passed by the Munsif, Sri Ganganagar. In appeal, the Additional District Judge No. 1, Sri Ganganagar, set aside the decree passed by the Munsif and allowed the appeal by judgment and decree dated 20-5-1994. When the respondent’s mother Kamla Devi filed a suit for recovering the possession of the house No. 5A/38 belonging to her, an objection as to the deficiency of the Court-fee was raised by the appellant-non-petitioner and, therefore, a Court-fee of Rs. 3945/- was paid. The suit was ultimately decreed on 5-8-1993 and an appeal against that decree is pending before the High Court. The case set up by the respondent in his petition under Section 13 of the Hindu Marriage Act was that the appellant-non-petitloner is guilty of committing cruelty and that he is entitled to a decree for divorce on the ground of cruelty.

4. In reply, it was admitted by the appellant-non-petitioner that her marriage had taken place on 15-12-1985 according to Hindu rites. She denied the allegation that she asked the respondent’s mother to transfer the house No. 5A/38 situated in Jawaharnagar to her and gave any threat to her for the purpose of the obtaining the house in her reply, the appellant-non-petitioner alleged that in her marriage, her parents gave dowry beyond their means and that after that she was harassed. With a view to bring money from her parents and when she refused to comply with the demand, she was beaten. It was also alleged that on two occasions, her father gave Rs. 10,000/- on each occasion and these amounts were forcibly taken away by her mother-in-law and further demand of Rs. 50,000/- was made and when she could not comply with this demand, she was subjected to harassment in her reply, the appellant-non-petitioner further pleaded that her mother-in-law voluntarily left the house and went to live in the quarter situated in the hospital campus and this was done with a view to make false allegations against her in short, the allegation of cruelty as alleged in the petition by the respondent was denied.

5. A rejoinder was filed in which all the allegations made by the appellant-non-petitioner were denied by the respondent.

6. The learned District and Sessions Judge framed three issues. The first issue was whether the non-petitioner was guilty of cruelly as alleged in para Nos. 3 to 10 of the petition and the petitioner was entitled to obtain a decree for divorce on the ground of cruelty. The second issue was regarding the question whether the marriage between the parties has irretrievably broken, if so, to what effect. The third issue was regarding relief.

7. The respondent Vijay Kumar Bhatia (A.W. 1) was examined himself and produced her mother Smt. Kamala (A.W. 2) in support of the allegations made by him. The appellant-non-petitioner Smt. Pramila (N.A.W. 1) examined herself and produced her father Bhoor Singh (N. A. W. 2) in support of the case set up by her in the written statement. The certified copies of the statement recorded in earlier proceedings and the certified copies of some other documents were also produced by the parties.

8. The learned District and Sessions Judge, after considering the evidence of both the parties, decided issues Nos. 1 and 2 in favour of the respondent-petitioner and granted decree for divorce under Section 13 of the Hindu Marriage Act, 1955 on the ground of cruelty.

9. The learned counsel for the appellant has submitted that the learned District and Sessions Judge has not appreciated the evidence of the parties in the proper perspective and has committed grave error by deciding issues Nos. 1 and 2 together because they deal with different questions. Regarding the allegation of cruelty made by the respondent in his petition as well as in his statement, the learned counsel for the appellant has submitted that the allegations of cruelty are completely false and there is absolutely no ground for grant of divorce under Section 13 of the Hindu Marriage Act. He has prayed that the appeal be allowed and the judgment and decree of divorce granted by the District and Sessions Judge be set aside. On the other hand, the learned counsel for the respondent has submitted that the allegations of cruelty have been proved by oral as well as documentary evidence produced by the respondent-petitioner and the learned District Judge has committed no error in coming to the conclusion that the Issues Nos. 1 and 2 should be decided in favour of the respondent. He has, therefore, prayed for dismissal of this appeal.

10. The expression ‘cruelty’ has not been defined in the Hindu Marriage Act. in Smt. Meera v. Vijay Shankar Talchidia AIR 1994 Rajasthan 33. Hon’ble the Chief Justice ob- served (Para 13, 14, 15, 16, 17) :

“Cruelty is a ground for divorce under Section 13(1)(ia) of the Hindu Marriage Act . Whether particular conduct amounted to cruelty would be determined in each case. It has not been defined in the Act as it was not possible to do so. Section 13(1)(ia) has undergone a change by 1976 amendment made by the Parliament.

Before the amendment of 1976, the Act contained a different formulation of cruelty. At that time, the petitioner was required to show that the respondent had treated him or her with such cruelly as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the respondent. The change in the formulation of cruelty under the Hindu Marriage Act brings it at par with the Special Marriage Act. It has also simplified it. Cruelty in such cases has to be of the type which should satisfy the conscience of the Court to believe that the relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible for them to live together without mental agony, torture or distress.

Cruelty as a ground of divorce under Section 13(1)(ia) is a conduct of such type that the petitioner could not reasonably be expected to live with the respondent. Now, the act or omission or conduct which constitutes cruelty need not cause any sort of apprehension in the mind of the petitioner.

No rigid meaning can be assigned to cruelty in order to come under Section 13(1)(ia). What may amount to cruelty in one case may not amount to cruelty in another case. in order to consider whether a particular act complained against amounted to cruelty or not, the Court has to take into account the social status, the environment, the eduction, the mental and physical conditions and the susceptibilities of the innocent spouse as also the customs and manners of the parties.

The Court dealing with a petition for divorce under Section 13(1) is expected to bear in mind that the problem before it is that of human beings and that all psychological changes in a man’s conduct has to be borne in mind before granting or rejecting the petition. It is not that every insignificant or trifling conduct would constitute cruelty of one on the other.

11. In V. Bhagat v. Mrs. D. Bhagat AIR 1994 SC 710, in para 13. the Hon’ble Supreme Court observed (Para 13):

“Cruelly contemplated by the Sub-Clause is both physical and mental. We are concerned herein with the latter. It is not possible to define ‘mental cruelty’ exhaustively. As observed by Lord Reid in Gollins v. Gollins, 1964 AC 644 :

“No one has ever attempted to give a comprehensive definition of cruelty and I do not intend/try to do so. Much must depend on the knowledge and intention of the respondent, on the nature of his (or her) conduct, and on the character and physical or mental weaknesses of the spouses, and probably no general statement is equally applicable in all cases except the requirements that the party seeking relief must show actual or probable injury to life, limb or health. It is easy to see that the origin of this requirement is the decision in the well known case of Russel v. Russel (1987 AC 395)”

To the same effect are the observations of Lord Pearce (at 695) :

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

I agree with Lord Merriman whose practice in cases of mental cruelty was always to make up his mind first whether there was injury or apprehended injury to health. in the light of that vital fact the Court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently weighty to say that from a reasonable person’s point of view, after a consideration of any excuse which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called on to endure it ………….

The particular circumstances of the home, the temperament and emotions of both the parties and their status and their way of life, their past relationship and almost every circumstance that attends the act or conduct complained of may all be relevant.”

12. The Hon’ble Supreme Court further considered the amendment brought in 1976 and observed (Paras 15, 16, 17 of AIR 1994 SC 710) :

“The change of law brought about by the Hindu Marriage Laws (Amendment Act), 1976 deserves notice. Prior to the said Amendment Act, cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was a ground only for claiming judicial separation under Section 10. By the said Amendment Act, cruelty was made a ground for divorce as well as evidently in recognition of the changing mores of the society. While doing so, it is significant, the words “as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party” qualifying the expression “cruelty” in Section 10(1) (b), were omitted by the Parliament. It is therefore, not necessary for the party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension — a reasonable apprehension — in his/her mind that it will be harmful or injurious for him/her to live with the other party. Now what does this change mean? Surely, the deletion of the said words could not have been without a purpose. The cruelty of the nature described in Section 10(1) (b) has been explained in this Court’s decision in N.G. Dastane v. S. Dastane, AIR 1975 SC 1534. Chandrachud. J. speaking for the Bench, held that where an allegation of cruelty is made, the Inquiry has to be “whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.” The learned Judge held further : “it is not necessary, as under the English Law, that the cruelty must be of such a character as to cause “danger” to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly, danger to life, limb or health or a reasonable apprehension of it is a higher requirement than a reasonable apprehension that it is harmful or Injurious for one spouse to live with the other ….. But under Section 10 (1) (b) harm or injury to health, reputation, the working career or the like, would be an important consideration in determining whether the conduct of the respondent amounts to cruelty. Plainly, what we must determine is not whether the petitioner has proved the charge of cruelty having regard to the principles of English Law, but whether the petitioner proves that the respondent had treated him with such cruelty as to cause a reasonable apprehension in his mind that it will be harmful or injurious for him to live with the respondent.” This requirement is no longer present in Section 13(1)(ia).

If so, the question arises what kind of cruel treatment does Clause (ia) contemplate ? in particular, what is the kind of mental cruelty that is required to be established? While answering these questions, it must be kept in mind that the cruelty mentioned in Clause (ia) is a ground now for divorce as well as for judicial separation u/Section 10. Another circumstance to be kept in mind is that even where the marriage has irretrievably broken down, the Act, even after 1976 (Amendment) Act, does not permit dissolution of marriage on that ground. This circumstance may have to be kept in mind while ascertaining the type of cruelty contemplated by Section 13(ia).

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

13. Their Lordships of the Supreme Court referred to the judgment given by the Supreme Court in Shobha Rani v. Madhukar Reddy, AIR 1988 SC 121. In that judgment the Hon’ble Supreme Court had observed (Paras 4 & 5) :–

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

It will be necessary to bear in mind that there has been marked change in the life around us in matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaints about the treatment of cruelty by the partner in life or relation, the Court should not search for standard in life, A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon (1966) 2 All ER 257, 259 “the categories of cruelty are not closed”. Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.”

14. Hon’ble the Supreme Court also referred to the observations made by Hon’ble Mr. Justice Shetty, at page 127, wherein it was observed (para 17 of AIR 1988 SC 121):–

“Section 13(l)(ia) of the Hindu Marriage Act provides that the party has after solemnization of the marriage treated the petitioner with cruelty. What do these words mean? What should be the nature of cruelty? Should it be only intentional, wilful or deliberate? is it necessary to prove the intention in matrimonial offence? We think not. We have earlier said that cruelty may be of any kind and any variety. It may be different in different cases. It is in relation to the conduct of parties to a marriage. That conduct which is complained of as cruelty by one spouse may not be so for the other spouse. There may be instances of cruelty by the unintentional but inexcusable conduct of any party. The cruel treatment may also result by the cultural conflict of the spouse. in such cases, even if the act of cruelty is established, the intention to commit suicide cruelty cannot be established. The aggrieved party may not get relief. We do not think that that was the intention with which the Parliament enacted Section 13(l)(ia) of the Hindu Marriage Act. The context and the set up in which the word ‘cruelty’ has been used in the section seems to us, that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty, could be easily established. But the absence of intention should not make any difference in the case, If by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.”

15. In Smt. Chanderkala Trivediv. Dr. S.P. Trivedi (1993) 3 Scale 541, the wife filed a written statement. In reply thereto, the husband put-forward another allegation against the wife that she was having undesirable association with the young boys. Considering the mutual allegations, R.M. Sahai, J. speaking for Division Bench observed :

“Whether the allegation of the husband that she was in the habit of associating with young boys and the findings recorded by the three Courts are correct or not but what is certain is that once such allegations are made by the husband and wife as have been made in this case then it is obvious that the marriage of the two cannot in any circumstance be continued any further. The marriage appears to be practically dead as from cruelty alleged by the husband it has turned out to be at least intimacy of the husband with a lady doctor and unbecoming conduct of a Hindu wife.”

It was argued on behalf of the husband that the wife has failed to establish the charge of adultery levelled against him and that the charge of adultery must be proved beyond reasonable doubt. Dealing with the argument, the learned Judge observed :

“But we do not propose to examine it as we are satisfied that the marriage is dead and the findings of fact cannot be set aside by this Court except that the appeal can be sent back to Division Bench to decide it again, which would mean another exercise in futility leading to tortuous litigation and continued agony of the parties”

16. It is not necessary to cite other authorities to find out the meaning of word ‘cruelty’ which is a ground for divorce under Section 13(l)(ia) of the Hindu Marriage Act. 1955.

17. After carefully going through the observations made by the Hon’ble Supreme Court and the High Courts, it appears necessary to consider the question of cruelty in the context of all the circumstances of the case. The reason being that the relation between the husband and wife, is primarily a human relationship which has been granted legal recognition and is sought to be regulated by the provisions of the Hindu Marriage Act, 1955. There is a basic distinction between a human relationship and legal relationship. A legal relationship is brought Into existence by law but a human relationship, can be brought into existence only by the deliberate will of both the parties to create such a relationship and subsequent conduct on their part in conformity with the requirement of the relationship which they intend to create. The conduct, which is necessary for the creation of human relationship, involves, voluntary obedience of several taboos and voluntary performance of several duties in relation to one another even when such taboos and such duties have not been codified by law. in the preamble to the Constitution of India, fraternity has been regarded as one of the four basic objectives of the Indian Constitution and the expression “fraternity”, deserves to be interpreted in such a manner as to include within it all kinds of human relationships among the human beings. How these relationships can be brought into existence; how they can be preserved and perpetuated, is a matter on which very little work appears to have been done because it is primarily the function of the people as well as those who specialise in the study of human relationships to find out the ways in which human relationships may be created and perpetuated. The Courts, are primarily concerned with law as enacted by the Legislature and, therefore, the entire attention of the Court is ordinarily drawn to the ascertainment of law and to apply the law to the facts proved before the Courts. Issues concerning human relationships, are seldom directly agitated before the Courts except in those cases where the consideration of a human relationship, becomes essential for the purpose of dispensing justice as is the case when a prayer for divorce is made on the ground of cruelty.

18. The bond of human relationship between husband and wife, owes its origin to their determination to create and perpetuate and their deliberate efforts to do that which is necessary and to abstain from doing that which is harmful for such relationship. If they do not have the determination to create or perpetuate the relationship or they have no desire to do that which is necessary for creating or perpetuating it, or they do not desire to abstain from doing that which is harmful for the relationship, it is obvious that the human relationship can neither be brought into existence nor it can be perpetuated notwithstanding the legal relationship which is brought into existence by performance of certain ceremonies of marriage as required by Section 6 of the Hindu Marriage Act, 1955.

19. The object of the provisions of the Hindu Marriage Act, 1955 is to grant recognition to the human relationship between husband and wife and to regulate the conduct of the parties to the relationship in such a manner as may benefit them as well as the society. But the Legislature has its limitations. The laws do not have any power to create a human relationship though law can create legal relationship, the reason being that a legal relationship is a creature of law but a human relationship can be created only by determination of the parties and obedience of taboos as well as the performance of duties necessary for creation and perpetuation of the human relationship. As soon as the parties, give up the desire to maintain the relationship or they, avoid observance of taboos and performance of duties necessary for the human relationship, the human relationship between them is imperilled and cannot be saved by anything. in these cases, it is said that the marriage between the parties has irretrievably been broken even if the ground for divorce under Section 13 of the Hindu Marriage Act are not established. The performance of the duties and observance of certain taboos necessary for creating and perpetuating the relationship of husband and wife is so important for the relationship that even an unintentional violation of the taboo or unintentional neglect in commission of the duty, creates danger to the relationship.

20. In Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, the Hon’ble Supreme Court pointed out that the relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment,

21. If the ground for divorce made under Section 13 of the Hindu Marriage Act are considered in light of the fact that the relationship between husband and wife is primarily a human relationship which can be created and perpetuated only if they have the intention to create and perpetuate it and they deliberately observe the taboos and perform their duties which are necessary for creating and perpetuating this relationship, then it will not be difficult to say that if the parties are wanting in determination to continue the marriage or they have by their conduct, violated the taboos or omitted to perform the duties expected of them, the human relationship of husband and wife cannot perpetuate. The act of giving up of the determination to continue the marriage as well as violation of taboos necessary for the relationship and omission to perform the duties necessary for relationship may, in appropriate cases, be held to be amounting to act of cruelty which is the ground for divorce under Section 13 of the Hindu Marriage Act.

22. In the instant case, both the parties belong to middle class families. The respondent’s mother is a Nurse in the maternity department of the hospital run by the local authorities. The petitioner earns his livelihood by cutting and polishing semi-pieces stones. The appellant (non-petitioner) is neither in service nor she is carrying any trade or business of her own, It is an admitted fact that the house in dispute which is presently in possession of the appellant (non-petitioner) was constructed by respondent’s mother Smt. Kamala (A. W. 2). Unless it is proved that any other person who wants to deprive her of the whole or any part of the house, is entitled to do so, Smt. Kamala cannot be deprived of her title and right to possession over the house in dispute. The allegation made by the respondent and her mother is that respondent’s mother Smt. Kamala was forcibly turned out of the house by the appellant-non-petitioner and her father and therefore, she started living in the quarter situated in the hospital campus. The story set up by the appellant non-petitioner is that Smt. Kamala herself left the house because the hospital itself requires her to be available in the hospital campus for attending emergency cases. Smt. Kamala (A. W. 2) admitted that the employees of the hospital are required to live in the quarters situated in the hospital campus but she has stated in the examination-in-chief that right from the date of marriage, Smt. Pramila (the appellant) was asking her to transfer the house to her and she did not do so and, therefore, Smt. Pramila used to quarrel with her and gave her beating with the help of her brother and, therefore, she left (he house in the year 1986. Smt. Pramila (N. A. W. 1) has denied this fact and Bhur Singh (N. A. W. 2) has said that Smt. Pramila’s mother-in-law left the house and went to the quarter situated in maternity ward with her luggage in order to live there.

23. After carefully considering the facts and circumstances of the case. 1 am of the opinion that it cannot be said that the respondent’s mother Smt. Kamala had voluntarily left her house with a view to live in the quarter situated in hospital campus. It is against human nature to abandon the property which a person has constructed by utilising the money, which has been collected by making several sacrifices or by taking loan. The story set up by the appellant-non-petitioner in her reply as well as her evidence, is completely unreliable. I am, therefore, of the view that statement of Smt. Kamala (A. W. 2) inspires confidence and it shows that she was asked to transfer the house to the appellant-non-petitioner and when she refused to do, she was harassed and maltreated by the petitioner-appellant and her brother and, that she was forced to shift her residence to the quarter which was allotted to her in the hospital.

24. The crucial question is whether the act of demanding from Smt, Kamala to transfer the house to the appellant-non-petitioner and on her refusal to do so, causing of harassment to her, in any manner amounts to cruelty mentioned in Section 13(l)(ia) of the Hindu Marriage Act.

25. It is also alleged by the respondent that when he went to the house where the appellant-non-petitioner was residing, the appellant’s brother gave him a beating in presence of the appellant and in place of objecting to such act of her brother, the appellant asked her brother to beat the respondent. On a careful consideration of the evidence on record, I am of the opinion that this statement of respondent Vijay Kumar (A. W. 1) appears to be correct. The question is whether the act of the appellant-non-petitioner, as alleged by the respondent amounts to cruelty which is the ground of divorce. It is true that cruelty has not been defined every where but in view of the fact that the relation between the husband and wife is primarily a human relationship which needs the determination on the part of the parties to create and perpetuate the relationship and to avoid doing any such thing as is harmful to the relationship and to deliberately perform the duties which are necessary for relationship, it may be said without any hesitation that any conduct of either party to the marriage, which manifests, a contrary intention may amount to cruelty if it is proved and is of such a nature, as to lead to the inference that living together of the parties as husband and wife, would be harmful to them, having regard to all the facts and circumstances of the case. The appellant’s act of asking the respondent’s mother to transfer her house to the appellant and on her refusal to do so causing of harassment to the respondent’s mother in such a manner, as to force her to leave the house and start living in the quarter allotted in the hospital campus, in the facts and circumstances of the case, does amount to cruelty. Besides, the conduct of the appellant asking her brothers to give a beating to the respondent and not to stop them from beating the respondent must be regarded as an act of cruelty. The human relationships are required to be peaceful and free from any hostility. When any party to the marriage, instigates another person to cause any kind of harm, particularly the physical harm to the cither party to the marriage, it must be said that such instigation for causing of harm, manifests hostility as well as an attempt to cause harm and it amounts to cruelty. I therefore, have no doubt in it, that the appellant has been proved to have committed the abovementioned acts of cruelty.

26. There is another act of cruelty which is manifested by her reply as well as her statement and the statement of her father. She has alleged that she was asked to bring dowry and that on two occasions, she brought the amount of Rs. 10,000/- on each occasion and that on the third occasion, she was asked to bring a sum of Rs. 50,000/- and when she refused to fulfil this demand, she was harassed and given a beating. These allegations have not been proved by reliable evidence. The allegations of this nature are easy to be made but unless they are proved, as required by Section 3 of the Evidence Act. the allegations must be treated as not proved. Making false allegations is no doubt an act of cruelty if the object behind the making of false allegations is to lower the dignity or self-esteem or destroy the reputation or to bring some harm to the person against whom the allegations are made. Therefore, any one who makes allegations which are detrimental to the dignity, self-esteem, reputation or well being of the persons against whom they are made, must be careful in making such allegations. in other words, such allegations may not be made unless there is sufficient evidence to prove them. Anyone who makes allegations of serious nature against any one without sufficient evidence to prove them, must bear responsibility for making such allegations. If the allegations are made falsely or without sufficient evidence to prove them, the act of making allegations against either party may amount to cruelty.

27. In Omprakash v. Shakuntala. 1980 Raj LW 388. a learned single Judge of this Court considering the question whether accusation made in the reply filed by the non-petitioner against the petitioner and his father amounts to cruelty. The learned single Judge has observed :–

“The matter is now required to be viewed as to whether the accusations and aspirations made by the non-petitioner No. 1 against the petitioner and his father amount to mental cruelty to the petitioner?……….. Such accusations cannot be lightly ignored by simply stating that when accusations were made against the non-petitioner No. 1, so in turn the non-petitioner No. 1 as well, retorted in the same manner. in my opinion, such accusations and aspersions do amount to mental cruelty and they can certainly be taken into consideration.

in Parihar (Priti) v. Parihar (Kailash Singh) there were two letters sent by the wife to the Air Force Authorities of her husband and certain allegations were made in cross-examination of the husband regarding his sister’s doubtful character. Such conduct on the part of the wife was considered to amount to causing mental cruelty to the husband and in respect of the two letters It was observed that the letters were the act of cruelty not slight enough to effect revival only but per se constitute cruelty in the first instance and it was observed that the complaint which the wife made against the husband to his officers could have even cost him his Job and is certainly an act which would bring about mental cruelty, These acts on the part of the wife took place after the presentation of the petition and a question arose as to whether they could be taken into account and It was also considered whether in the circumstances these acts were provoked by the husband himself and, therefore, do not amount to mental cruelty. After consideration of the case law and the evidence it was found that these acts on the part of the wife amounted to mental cruelty. It was observed in that case that It is not correct to say that the subsequent cruelty is on account of wrong committed by the husband.

28. The accusation made by the appellant-non-petitloner in her reply as well as in her statement, that dowry was demanded from her and on two occasions, she brought Rs. 10,000/- on each occasion and a sum of Rs. 50,000/- was further demanded from her and that she was harassed when she failed to fulfil the demand, must be held to be untrue. These allegations, in view of the decisions referred to above amount to cruelty. I, therefore, have no hesitation in coming to the conclusion that finding on Issue No. 1 given by the learned District and Sessions Judge is correct and does not call for any Interference. As regards finding on issue No. 2, the facts and circumstances of this case clearly show that since January, 1987 the parties are living separately and their is no chance of reconciliation between them. Therefore, the finding on issue No. 2, as given by the learned District and Sessions Judge, does not appear to be incorrect.

29. For the reasons mentioned above, this appeal has no force. It deserves to be dismissed and is hereby dismissed.

30. During the pendency of the appeal, an application was filed by the appellant under Section 24 of the Hindu Marriage Act praying that maintenance allowance at the rate of Rs. 2,000/- per month be granted to her and her daughter Shobhna. The reply has been filed by the respondent. The respondent has filed his affidavit in support of the reply and the affidavit shows that previously he was employed as a Trainee Professional Sales Officer on a salary of Rs. 1200/- per month with M/s. Penzy Pharmaceuticals Pvt. Ltd., Delhi but his services have been terminated and he is presently out of his job and is dependent on his mother for his day to day needs and that the appellant is earning a sum of Rs. 2000/- by letting the house belonging to his mother on rent. There is no counter affidavit to controvert the fact that the respondent is unemployed and is not earning any money and is dependent on his mother in view of these circumstances, the appellant cannot be granted any maintenance allowance under Section 24 of the Hindu Marriage Act.

31. The application under Section 24 of the Hindu Marriage Act is, therefore, dismissed.

32. The parties are directed to bear their own costs.

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