Allahabad High Court
Smt. Benu Sharma vs Lt. Col. Sandeep Sharma on 21 October, 2024
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:167497-DB Court No. - 39 Case :- FIRST APPEAL No. - 214 of 2015 Appellant :- Smt. Benu Sharma Respondent :- Lt. Col. Sandeep Sharma Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- Vinayak Mithal With Case :- FIRST APPEAL DEFECTIVE No. - 100 of 2018 Appellant :- Benu Sharma Respondent :- Lt. Col. Sandeep Sharma Counsel for Appellant :- Sumit Daga Hon'ble Saumitra Dayal Singh,J.
Hon'ble Donadi Ramesh,J.
1. Heard Shri Rahul Sahai, learned counsel for the appellant and Shri Vinayak Mithal, learned counsel for the respondent.
2. Present appeal has been filed under Section 19 of the Family Courts Act, 1984, arising from the judgement and order 02.03.2015 passed by learned Additional Principal Judge, Family Court, Meerut, in Case No. 460 of 2013 (Lt. Col. Sandeep Sharma v. Smt. Benu Sharma), whereby the learned Court below has dissolved the marriage between the parties under Section 13(1)(i) of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act').
3. Also, another appeal being First Appeal Defective No. 100 of 2018 has been filed against the judgement and order 02.03.2015 passed by learned Additional Principal Judge, Family Court, Meerut, in Misc. Case No. 08 of 2014 (Smt. Benu Sharma v. Col. Sandeep Sharma), whereby Rs. 15,00,000/- permanent alimony has been awarded in favour of the appellant. Thus, the appellant-Benu Sharma has filed two appeals, one against the decree of divorce granted and the other seeking enhancement of permanent alimony awarded @ Rs. 15,00,000/-. By very nature of the proceedings, the relief claimed in First Appeal Defective No. 100 of 2018 is an alternative relief sought, should the divorce decree be sustained.
4. At the stage of hearing, learned counsel for the appellant has first pressed First Appeal No. 214 of 2015 against the decree of divorce.
5. Briefly, the parties came to know each other in 1992 while both lived at Meerut. At that time, the respondent was completing his studies. Thereafter, he joined the Indian Army. The parties were married on 30.05.1996. A son was born to them on 24.02.1999. After 15 years of marriage, the divorce suit was instituted by the respondent at Dehradun. Later, it was transferred to Meerut, at the instance of the present appellant. As to the grounds, bare perusal of the plaint reveals that divorce was sought under Section 13(1) of the Act. The respondent summarised the facts leading to the divorce petition in paragraph-5 of the plaint. It reads as below :
"5. That since their marriage in 1996, One the parties started to live together the petitioner was shocked to find out about various abnormalities in day to behavior of the respondent few of these are as follows.
(a) Extremely high levels of anxiety and uneasiness.
(b) Fear of sounds including extreme fear of fireworks and crackers (The parties have never celebrated Diwarli festival due to this because the respondent went to hiding during Diwali Festival.
(c) Constant fear of illness or death.
(d) Lessing interest in things very quickly.
(e) Showing total disinterest in all household chores/works.
(f) Having low self esteem, less confident and being unsure of herself.
(g) Having very low levels of concentration.
(h) Being imitable and short tempered.
(i) Picking up fights with people very easily.
(j) Picking up fights with people very easily.
(k) Being absolutely non adjusting and lazy.
(l) Displaying no compassion towards others.
(m) Total disinterest towards sex."
6. As to the specific fact occurrences, the plaint makes no disclosure of the place/s or date/s or the exact occurrence/s involving any words used or gesture made as may be construed to be definite acts of cruelty committed by the respondent or as may lead to the inferences summarised in paragraph 5 of the plaint. At the same time, in paragraph-6 of the plaint, it has been narrated that in the year 2002, the appellant sought consultation with a psychiatrist at Delhi, who has only been described as "Dr. Kothari". Neither his full name has been disclosed nor his place of practice has been disclosed nor any other detail of date of consultation availed or diagnosis made or prescription of advice rendered have been disclosed. Then, in the same paragraph, it has been further disclosed that the appellant remained under treatment at Allahabad during the year 2008-2009. Again, no disclosure of the illness suffered or treatment received or the doctor consulted or the prescription advice have been disclosed.
7. Next, it has been disclosed that the appellant underwent treatment of one Dr. Abhay Jain since 2010, at Indore. Again, no further detail has been given with respect to dates or treatment offered to the appellant. Last, it has again been described that the appellant was under treatment of one "Dr. Agarwal", a psychiatrist at Meerut. As in the case of "Dr. Kothari", no other detail has been given. Next, in paragraph-7 of the plaint, it has been described that the appellant was suffering from obsessive compulsive symptom. According to the respondent, even a slight discomfort suffered was enough to disturb the appellant. She would start searching for the illness and symptoms, from books etc. Then, it has been pleaded that the appellant is a "very difficult person". The basis for such assertion made in the plaint is, according to the respondent, the appellant "would call up a doctor" "till the time doctor would irritated or stop taking her calls".
8. Then, in paragraph-8, it has been asserted, the appellant suffers from OCD symptom to the extent, she used to imagine and suffer from pseudo symptoms of imagined illnesses. Averments have also been made to describe the behaviour of the appellant as anxious. Such characteristics have been further rephrased in paragraph-9 of the plaint. Then, in paragraph-11 of the plaint, it has been asserted that the appellant suspected "black magic" had been practised on her. In paragraph-12 of the plaint, it has been stated that in the 15 years of marriage, the appellant has remained under impression of suffering from one or the other disease. She is also described to have got annoyed and offered violent behaviour on it being suggested to her-nothing was wrong. In paragraph-13 of the plaint, it has been asserted that the appellant would confine herself in a room and not involve herself in normal household chores and activities that were performed by helpers etc. In paragraph-14 of the plaint, it has been further asserted, the appellant never interested herself in household chores to the point that she may never have prepared and offered even a cup of tea to the respondent and that she got annoyed to the point that she did not offer him food. However, the date, place and time of such occurrences, remained unspecified.
9. Then, in paragraph-16 onwards, allegations have been made of the appellant having offered disrespectful behaviour to the petitioner, both in private and public including at official functions, in the presence of his superior and subordinate officers and that the appellant offered such rude behaviour and entered into quarrel with the respondent and spoke unkind words to his superior officers and also of threatened to commit suicide by swallowing Phenyl (a toilet disinfectant) or by causing fire with kitchen gas. However, the date, place and time of such occurrences remained unspecified. Assertions have also been made of quarrelsome behaviour attributed to the appellant and of frivolous complaints filed by her. Reference has also been made in paragraph-19 of the respondent having offered rude, uncivilised and stubborn behaviour in the presence of ladies and officers with whom the respondent was required to interact and socialise at official and other occasions. Then, in paragraph-24 and 25, it has been asserted that there has been no cohabitation between the parties and that the appellant deserted the respondent in the year 2011.
10. We have referred to the pleadings in detail running into 31 paragraphs and many pages, to record that though generally descriptive, the plaint does not disclose a single instance of cruelty attributed to the appellant-with full particulars of place, date and time of such occurrence as may have allowed the appellant an opportunity to rebut the same in her written statement. All allegations made are adjectival, generic and vague. Unless specific occurrences were described in the plaint, the appellant was left guessing as to true allegation that she was required to respond to. Only one specific occurrence disclosed in the plaint is with respect to ailment attributed to the appellant being Obsessive Compulsive Symptom/Obsessive Compulsive Disorder (noted above). In that regard, in paragraph-7 of the written statement, it has been stated as below :
"7. That the contents of para 6 of the Plaint are wrong false and denied. It is vehemently denied that the defendants has any kind of abnormalities as alleged and allegations of harassment does not arise. The defendant possess a sound mind and she do not have any kind of abnormalities, as alleged and all the allegations to the contrary are wrong, false and denied. It is denied that may kind of treatment has been done by the alleged Psychiatrist in the year 2002 at Delhi, as alleged. It is denied that the defendant is under treatment by Dr. Kothari from 2002 to 2008 as alleged. It is denied that the defendant has been treated by the alleged Dr. Abhay Jain for the alleged year, as alleged. It is vehemently denied that the defendant is undergoing treatment from Dr. Agarwal at Meerut as alleged. The rest of contents are also not admitted. The allegations made in this Para are totally false, wrong, concocted and motivated. Total allegations are the growth of ill mind of plaintiff for just to give the color of plaint. It is pertinent to mention here that the defendant never undergone want any psychiatric treatment till date. The true facts are stated in the additional pleas."
11. Though reference was made to medical help required by the appellant for which reason she may have consulted psychiatrists, no ground of unsoundness of mind was set up. In that regard, we may briefly note the requirement of law contained in Section 13(1)(b) of the Act. That provision of law reads as below :
"13. Divorce. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(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;
[Explanation.-In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]"
12. At the stage of evidence, only three witness of fact were presented by the plaintiff/respondent. First, the respondent got himself examined as PW1. Then Col. Sandeep Nayan was examined as PW2. Last, Vikram Singh was examined as PW3. However, PW3 was never offered for cross-examination. Therefore, no reliance was placed on his statement, In that, PW1 admitted that parties became known to each other in the year 1992 through one Ashish Chawla, at Meerut. Both belonged to different castes. The respondent specifically admitted that he had met the appellant on 6 or 7 occasions before his marriage and that they remained in communication thereafter by writing letters. He also admitted that prior to her marriage, the appellant used to work at the library at Meerut Public School. The marriage between the parties was performed with the consent of their parents.
13. As to the quality of relationship enjoyed by the parties, during his cross-examination, the respondent admitted that his first posting was at Leh in the year 1996 and that the appellant lived with him during that posting, till 1997. Thereafter, he was transferred to Amritsar where again the appellant resided with him. From there he was transferred to Dimapur, Nagaland. The appellant continued to reside with him there, till 2002. From there the respondent was transferred to Bangalore where again the appellant resided with him till March, 2004. Thereafter, he was again transferred to Khalsar, Laddakh where again the appellant resided with him till 2005. Then the respondent was sent on a U.N. mission to Israel in the year 2006 where he stayed up to January, 2007. It was also not disputed that in that duration the appellant travelled abroad with the respondent and together they visited the brother of the appellant, at London. After returning from the UN mission, the respondent was transferred to Allahabad in 2007 where again the parties cohabited till 2008. They next went to Mau (on transfer), in Madhya Pradesh and from there to Lekha Pani in Assam, in the year 2011. From there the respondent was transferred to Meerut in the year 2012. Around the time, while the parties were at Assam, they appear to have fallen apart inasmuch as during the course of his cross-examination the respondent specified threats having been held out by the appellant (at that time), to destroy the respondent's carrier. Then, elaborate statement was made how the parties managed their relationship during the trouble faced when they lived separately. In that, according to the respondent he had made provisions amongst others to allow the appellant access to her belongings that were lying stored at a government facility.
14. As to the ground of mental illness set up by the respondent, specific cross examination was conducted. In that, though the respondent maintained that the appellant consulted a psychiatrist at Meerut, he further admitted that there was no prescription available with him to establish that fact. The respondent further admitted that no consultation was ever offered to the appellant at any military/government facility. Thus again, generic allegations were made. During the course of his cross-examination, no specific fact allegation or occurrence was proved by the respondent as to the nature of illness if any suffered by the appellant or any act committed by her as may give rise to a divorce proceeding.
15. The other witness Colonel Sandeep Nayan, (PW3) also could not prove any specific occurrence other than making generic statements except that according to the said witness the appellant and the respondent quarrelled in the presence of their house guests (including that witness), on one occasion. At the same time, he admitted that he left after having dinner with the appellant. As to the duration of quarrel, he specified it at 10-15 minutes and further stated that he did not mediate in that occurrence. Only other occurrence that he described was of rude and allegedly uncultured behaviour attributed to the appellant in the year 2004. However, no details thereof were disclosed/proved.
16. In the context of these pleadings and evidence, we have heard learned counsel for the parties.
17. Shri Rahul Sahai, learned counsel for the appellant would submit, in the present case the pleadings were wholly vague and incomplete. Besides describing the nature of cruelty alleged, the plaintiff-respondent made no effort to give full details or particulars of the exact act of cruelty alleged to have been committed by the appellant. Neither date nor place nor time of occurrences was disclosed in the plaint nor details of any ailment suffered or of treatment offered with reference to date and place was disclosed in the plaint. Besides making generic and sweeping allegations, no specific occurrence was disclosed in the voluminous plaint filed by the plaintiff-respondent. As to desertion, the plaint allegations are found hollower.
18. In view of the above vagueness of the plaint allegations, the defendant-appellant was completely taken by surprise at the stage of evidence. She had no opportunity to effectively rebut the pleadings. In any case, she did offer complete rebuttal in the shape of full denial of the allegations of cruelty including that alleged to have arisen from the mental condition attributed to her.
19. Therefore, at the stage of evidence, it never became open to the plaintiff-respondent to lead any evidence to prove any fact or occurrence for which no basis had been laid in the plaint. In any case, the defendant-appellant had conducted effective cross-examination leading to complete demolition of the plaint case. Neither the act of cruelty attributed to the defendant-appellant nor unsoundness of mind (attributed to the appellant) were proved. Less so, any element of desertion was proved. On the contrary, it was unequivocally proven on the cross-examination statements of the plaintiff-respondent himself that the parties lived together in matrimony over a long period of 15 years over 8 postings in different parts of the country including a foreign posting of the plaintiff-respondent.
20. Thus, it has been submitted that the learned court below has completely erred in granting the decree of divorce. It has misread the evidence in entirety. It has proceeded on presumptions and conjectures drawn on imaginary reasoning.
21. On the other hand, Shri Mittal, learned counsel for the respondent would submit that the plaint contains detailed pleadings of numerous instances when the defendant-appellant offered cruel behaviour. The acts of cruelty were continuous and recurring over the entire period of 15 years of marriage between the parties when they lived together, the plaintiff-respondent was subjected to repeated acts of cruelty. Those have been fully described in the plaint. On the strength of evidence led by the plaintiff-respondent, it has been further asserted that those were fully proven. He has referred to the pleadings in the plaint and the oral testimony recorded at the trial. He has also referred to the documents that are part of the record. However, on query made, he could not establish that the documents including photo copy of doctor prescription and other documents which are described to be containing transcribed SMS, Text Messages, were ever proven.
22. What is cruelty, is not defined under the Act. In Smt. Tripti Singh v. Ajat Shatru, Neutral Citation No.-2024:AHC:151200-DB, we have observed as below:
"8. In N.G. Dastane (DR) Vs. S. Dastane, (1975) 2 SCC 326, the Supreme Court observed:
"31. ?
The inquiry therefore 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. 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.
32. One other matter which needs to be clarified is that though under Section 10 (1) (b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence for judging of matrimonial relations. Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a court inquiring into a charge of cruelty to philosophies on the modalities of married life. Some one may want to keep late hours to finish the day's work and some one may want to get up early for a morning round of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion.
"The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances (American Jurisprudence).
The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Collins v. Gollins, "In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."
50. These defences to the charge of cruelty must accordingly be rejected. However, learned Counsel for the respondent is right in stressing the warning given by Denning L.J., in Kaslejsky v. Kaslefsky that :
"If the door of cruelty were opened too wide, we should soon find ourselves granting divorce for incompatibility of temperament. This is an easy path to tread especially in undefended cases. The temptation must be resisted lest we slip into a state of affairs where the institution of marriage itself is imperilled."
55. Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things : forgiveness and restoration. The Law and Practice of Divorce and Matrimonial Causes by D. Tolstoy Sixth Ed., p. 75. The evidence of condonation in this case is, in our opinion, as strong and satisfactory as the evidence of cruelty. But that evidence does not D consist in the mere fact that the spouses continued to share a common home during or for some time after the spell of cruelty. Cruelty, generally, does not consist of a single, isolated act but consists in most cases of a series of acts spread over a period of time. Law does not require that at the first appearance of accrual act, the other spouse must leave the matrimonial home lest the continued co-habitation be construed as condonation. Such a construction will hinder reconciliation and there- E by frustrate the benign purpose of marriage laws."
9. Then in Shobha Rani VS. Madhukar Reddy, (1988) 1 SCC 105, the Supreme Court observed:
"5. It will be necessary to bear in mind that there has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty 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 "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.
9. A new dimension has been given to the concept of cruelty. Explanation to Section 498-A provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such wilful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. 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 would also constitute cruelty."
10. Again, in Pawan Kumar Vs. State of Haryana, (1998) 3 SCC 309, the Supreme Court observed:
18. In our considered opinion, cruelty or harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of Sections 304-B and 498-A IPC. Explanation (a) to Section 498-A itself refers to both mental and physical cruelty. In view of Explanation (a) the argument is, before it constitutes to be a cruelty there has to be wilful conduct. Again wilful conduct means, conduct wilfully done; this may be inferred by direct or indirect evidence which could be construed to be such. We find, in the present case, on account of not satisfying the demand of the aforesaid goods, right from the next day, she was repeatedly taunted, maltreated and mentally tortured by being called ugly etc. A girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride. There was a quarrel a day before her death. This by itself, in our considered opinion, would constitute to be a wilful act to be a cruelty both within the meaning of Section 498-A and Section 304-B IPC.
11. Next, in Gananath Pattnaik Vs. State of Orissa, (2002) 2 SCC 619, the Supreme Court observed:
"99.Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
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 sterilisation 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."
12. Later, in Parveen Mehta Vs. Inderjit Mehta, (2002) 5 SCC 706, the Supreme Court observed:
"21. Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
13. In Savitri Pandey Vs. Prem Chandra Pandey, (2002) 2 SCC 73, the Supreme Court observed:
"6. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other."
14. As to the fact allegations that may constitute cruelty, in Vijaykumar Ramchandra Bhate Vs. Neela Vijaykumar Bhate, (2003) 6 SCC 334, the Supreme Court further observed:
"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of extra-marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross-examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."
15. Also, in Vinita Saxena Vs. Pankaj Pandey, (2006) 3 SCC 778, the Supreme Court observed:
"37. As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.
38. If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer."
16. Another analysis of the concept of cruelty was made by the Supreme Court in A. Jayachandra Vs. Aneel Kaur, (2005) 2 SCC22. There, the Supreme Court observed:
"10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital/ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty/as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
11. The expression "cruelty" has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
12. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
13. The court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. The courts do not have to deal with ideal husbands and ideal wives. It has to deal with a particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court."
17. Next, in Naveen Kohli Vs. Neelu Kohli, (2006) 4 SCC 558, the Supreme Court observed:
"51. The word "cruelty" 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. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that members of the petitioner's family are lunatics and that a streak of insanity runs through his entire family is also an act of mental cruelty."
Also, the Supreme Court considered the occurrence of irretrievable break down of a Hindu marriage and its impact on the legal relationship between the parties. There, it was observed:
"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.
"74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.
75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.
76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that in fact has ceased to exist.
77. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems than are sought to be solved.
78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom."
18. The concept of cruelty was re-examined in Samar Ghosh Vs. Jaya Ghosh, (2007) 4 SCC 511. The Supreme Court observed:
"39. Shorter Oxford Dictionary defines "cruelty" as "the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness".
40. The term "mental cruelty" has been defined in Black's Law Dictionary as under:
"Mental cruelty. As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life/ physical health, or mental health of the other spouse."
41. The concept of cruelty has been summarised in Halsbury's Laws of England" as under:
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists."
19. Later, in Vishwanath Agrawal Vs. Sarla Vishwanath Agrawal, (2012) 7 SCC 288, the same issue was thus summarized:
"22. The expression "cruelty" has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social/status."
20. In Malathi Ravi, M.D. Vs. B.V. Ravi, M.D., (2014) 7 SCC 640, it was discussed as below :
11. After the said judgment and decree was passed by the learned Family Judge, the respondent did not prefer an appeal immediately. He waited for the wife to join and for the said purpose he wrote letters to her and as there was no response, he sent a notice through his counsel. The wife, eventually, joined on 22-8-2004 at the matrimonial house being accompanied by her relative who was working in the Police Department. As the turn of events would uncurtain, the wife lodged FIR No. 401 of 2004 dated 17-10-2004 at Basaveshwaranagar alleging demand of dowry against the husband, mother and sister as a consequence of which the husband was arrested being an accused for the offences under Sections 498-A and 506 read with Section 34 of the Penal Code, 1860 and also under the provisions of the Dowry Prohibition Act. He remained in custody for a day until he was enlarged on bail. His parents were compelled to hide themselves and moved an application under Section 438 of the Code of Criminal Procedure and, ultimately, availed the benefit of the said provision.
23. First we intend to state the subsequent events. As has been narrated earlier, after the application of the wife was allowed granting restitution of conjugal rights, the husband communicated to her to join him, but she chose not to join him immediately and thereafter went to the matrimonial home along with a relative who is a police officer. After she stayed for a brief period at the matrimonial home, she left her husband and thereafter lodged FIR No. 401 of 2004 on 17-10-2004 for the offences under Sections 498-Aand 506/34 of the Penal Code and the provisions under the Dowry Prohibition Act, 1961 against the husband, his mother and the sister. Because of the FIR the husband was arrested and remained in custody for a day. The ladies availed the benefit of anticipatory bail. The learned trial Magistrate, as we find, recorded a judgment of acquittal. Against the judgment of acquittal, the appellant preferred an appeal before the High Court after obtaining special leave which was ultimately dismissed as withdrawn since in the meantime the State had preferred an appeal before the Court of Session. At this juncture, we make it absolutely clear that we will not advert to the legal tenability of the judgment of acquittal as the appeal, as we have been apprised, is sub judice. However, we take note of certain aspects which have been taken note of by the High Court and also brought on record for a different purpose.
21. Recently, in Jaydeep Majumdar Vs. Bharti Jaiswal Majumdar, (2021) 3 SCC 742, the Supreme Court further observed:
"10. For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party.
13. Proceeding with the above understanding, the question which requires to be answered here is whether the conduct of the respondent would fall within the realm of mental cruelty. Here the allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.
15. Therefore, we are of the considered opinion that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life."
22. More recently, in Roopa Soni Vs. Kamalnarayan Soni, (2023) SCC Online SC 1127, the Supreme Court observed:
"5. The word 'cruelty' under Section 13(1)(ia) of the Act of 1955 has got no fixed meaning, and therefore, gives a very we discretion to the Court to apply it liberally and contextually. What is cruelty in one case may not be the same for another. As stated, it has to be applied from person to person while taking note of the attending circumstances.
7. We would like to emphasize that an element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce. Section 13(1) of the Act of 1955 sets contours and rigours for grant of divorce at the instance of both the parties. Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism."
23. Seen in the context of the law that has been developed largely by the Supreme Court, we are not convinced that any ground of cruelty was either specified/pleaded or proved by the appellant. Then, over 15 years of marriage after living together at 8 different postings, the respondent was not able to specify one specific occurrence that may amount to an act of cruelty as may give rise to a reasonable apprehension in his mind that it would be harmful or injurious to live with the appellant. That being the requirement of Section 13(1)(a) as amended in Uttar Pradesh, the decree of divorce sought, has to be tested on the strength of pleadings and the evidence in that regard. As noted above, the pleadings and evidence are wholly generic. In his pleadings, the respondent never specified a single occurrence with date, place or time specification nor any other details were disclosed as may have given the appellant any opportunity to rebut the same. At the stage of evidence, again those occurrence remained unproved. The fact that the appellant may have required medical attention more than the respondent may have been prepared to provide, may never amount to a cruel act.
24. Though the respondent did plead obsessive compulsive symptom/OCD against the appellant, that fact was also not proven. No medical prescription was proven and no doctor was examined and no expert opinion was proved as may have allowed the learned trial court to reach a conclusion as to that. In any case, in absence of any ground set up in terms of Section 13(1)(iii) of the Act, it never became open for the learned Court below to consider that as a ground to grant divorce. In fact the learned trial court has not granted divorce on that ground. In any case if the respondent were to rely on that fact pleadings and evidence, in the absence of exact pleading and evidence to establish that the appellant was suffering from any mental disorder as defined in terms of Explanation (a) to Section 13(1)(iii) of the Act, the essential facts were neither pleaded nor proven. In such cases, it is not for the Court to imagine such a ground on the material on record. On the contrary, specific pleadings must first arise. Once pleaded such facts must be specifically proven before the learned trial court. Here, the pleading and evidence are completely wanting.
25. As to the principle applicable, the law has remained clear and singular. In Ram Sarup Gupta v. Bishun Narain Inter College, (1987) 2 SCC 555, it was observed as below :
"6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
26. At the same time, what was completely disproved was the ground of desertion. On the own evidence of the respondent, the appellant cohabited with the respondent not at one but rather at all places of his posting-difficult or otherwise, in different parts of the country, some of them in a very adverse conditions and also once abroad. Once that fact was proven without a doubt, the ground of desertion is non-existing. Clearly, the appellant never ever offered any conduct as may be construed to be desertion till as late as 2011. On the own evidence of the respondent, the appellant always accompanied him to various postings, hard or otherwise. No evidence was led to establish that the appellant ever refused to cohabit with the respondent at any of the those places of posting. The only time when the appellant moved away in the year 2011, relations between the parties may have deteriorated for other reasons. For desertion to arise by way of a ground for divorce, largely such act must arise without provocation or justifiable ground. Where parties may have suffered bad relationship, it may not be expected of them to continue to cohabit without any break or face dissolution on the ground of desertion. Even then, no specific pleading was led by the respondent to establish that the appellant voluntarily parted company of the respondent. Then by virtue of Section 13(1)(b) of the Act, the period of desertion suffered must be exceed beyond two years. Here, even that requirement was not fulfilled.
27. Seen in that light, the learned trial court has fallen in manifest error in being moved, perhaps in part by the evidence led by the respondent that there was complete incompatibility between the parties and that their marriage may have broken down irretrievably. While that fact conclusion may or may not be correct, we do not recognise irretrievable break down of marriage as a statutory ground available to the parties to dissolve a Hindu marriage. That ground being available outside the statutory law, it may remain in the domain of another Court to consider that factor in view of its over arching jurisdiction to do complete justice, under Article 142 of the Constitution of India. Insofar as we remain an appellate court under the statute, we have no misconception about our limited jurisdiction.
28. Accordingly. The appeal succeeds and is allowed. The decree of divorce is set aside. No order as to costs.
29. Also, in view of that conclusion reached, First Appeal Defective No. 100 of 2018 has been rendered infructuous. Accordingly, the same is dismissed as infructuous. Any money that may be lying in deposit with the learned court below towards alimony awarded by it, may be returned to the plaintiff-respondent together with accrued interest after ensuring that all amounts of maintenance allowance that may have been payable have been paid.
Order Date :- 21.10.2024
SA
(Donadi Ramesh, J.) (S.D. Singh, J.)