Himachal Pradesh High Court
Subhash Kumar vs Ranju Bala on 11 August, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO(HMA) No. 77/2007
Reserved on: 10.8.2015
Decided on. 11.8.2015
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Subhash Kumar ..Appellant
Versus
Ranju Bala ..........Respondent
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Coram:
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Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1Yes.
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For the Appellant : Mr. Ajay Sharma, Advocate.
For the Respondent : Mr. Vivek Singh Thakur, Advocate.
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Rajiv Sharma, Judge:
This appeal has been instituted against Judgment dated 8.3.2007 rendered by learned Additional District Judge, Fast Track Court, Una, District Una, Himachal Pradesh in HMA Petition No. 26/04 RBT No. 19/05/04.
2. "Key facts" necessary for the adjudication of the present appeal are that respondent has instituted a petition against the appellant under Section 13(1)(ia) of the Hindu Marriage Act for a decree of divorce. Marriage between the parties was solemnized at village Malahat, Tehsil and District 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes..
::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 2Una, Himachal Pradesh as per Hindu rites and ceremonies.
Family members of the appellant started harassing the respondent for bringing insufficient dowry. Parents of the .
respondent have gifted washing machine, sofa set etc. and jewelry worth `1.50 Lakh. He also has taken `1,10,000/- in cash from the parents of the respondent before marriage under the pretext of establishing independent business at Ghaziabad. It of was claimed at the time of marriage that he was a Chartered Accountant and earning `25,000 per month. However, she subsequently came to know that he was working in a private rt company. Appellant used to raise demand of dowry. The acts of the appellant have caused grave hardship, mental pain and agony to the respondent. Appellant had developed illicit relations with landlady namely Shoba Rani. Whenever respondent used to object, appellant used to beat her mercilessly. Appellant has been paid a sum of ` 60,000/- i.e. ` 40,000/- by demand draft and `20,000/- in cash. Respondent was thrown out of matrimonial house at Jankaur. Petition was contested by the appellant. He denied that he and his family members ever demanded dowry or cash from the respondent or her parents. He denied that a sum of `60,000/- was ever demanded by him. Respondent was pressurizing him to leave his job at Ghaziabad and to find some job at Moradabad. She left for her house at Moradabad on the Rakhi festival and she never ::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 3 returned to stay with him. Demand of dowry was never raised by him or his family members.
3. Learned Additional District Judge framed issues and .
allowed the petition on 8.3.2007. Hence, this appeal.
4. Mr. Ajay Sharma, Advocate has argued that his client has never subjected the respondent to physical or mental cruelty.
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5. Mr. Vivek Singh Thakur, Advocate has supported the judgment dated 8.3.2007.
6. I have heard the learned counsel for the parties and rt also gone through the record carefully.
7. PW-1 Shri Raman Singh has led his evidence by filing affidavit. According to him, marriage was solemnized between the parties on 29.1.2001 as per Hindu rites and customs. After a few days of marriage, in laws of his niece used to say that she has brought insufficient dowry. Appellant used to harass her physically. He developed illicit relations with the landlady. In his cross-examination, he deposed that he was apprised by his niece that she was being harassed by her in-laws.
8. PW-2 Nischal Kumari deposed that she was Pradhan of Gram Panchayat Malahat. Marriage between the parties was solemnized on 29.1.2001. In-laws of the respondent started harassing the respondent for bringing insufficient dowry.
Behaviour of the family members of the appellant was cruel ::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 4 towards the respondent. They have tried to resolve the matter but to no avail. She was cross-examined. In her cross-
examination, she deposed that she was told about harassment .
being meted out to the respondent by PW-1.
9. PW-3 Surindera Devi has also led her evidence by filing affidavit Ext. PW-3/A. she also supported the version of PW-
1 and PW-2, respectively.
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10. Respondent has led her evidence by filing affidavit Ext. PW-4/A. She specifically averred in the affidavit that marriage was solemnized on 29.1.2001. Appellant and family rt members of appellant started harassing her. They used to demand scooter and `3.00 Lakh though sufficient dowry was given to the appellant. He has taken a sum of `1,10,000/- from her family to start business. She was thrown out of matrimonial house by the appellant and his parents. She came to know that appellant was not a Chartered Accountant and he developed illicit relations with the land lady Shoba Rani. A sum of `40,000/-
was paid by way of draft and `20,000/- in cash. She was thrown out of matrimonial house. In her cross-examination, she also deposed that a sum of `1.00 Lakh was paid before marriage.
She has admitted that she has passed her M.A. final examination after her marriage. She narrated about the harassment being caused to her to maternal uncle and Pradhan of Gram ::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 5 Panchayat. She also filed a complaint before Women Cell (SP Office).
11. PW-5 Neelam Devi has also led her evidence by way .
of filing affidavit Ext. PW-5/A. She is mother of the respondent.
She has supported the version of PW-4 Ranju Bala.
12. PW-6 Brajesh Surup has deposed that Draft dated 12.6.2001 amounting to `30,000/- and another Demand Draft of dated 14.7.2001 amount to `10,000/- was prepared. These were in the name of the appellant.
13. Appellant has led his evidence by filing affidavit. He rt has reiterated in the affidavit the pleas taken in the reply to the main petition. According to him, respondent stayed with him at Ghaziabad for 2-3 days. Thereafter, she left the matrimonial house for her parents house at Moradabad and thereafter never came back. He requested respondent to join his company.
Respondent filed an application against him in the Women Cell at Una, in the month of August. He has never asked for a sum of `60,000 from the parents of the respondent. In his cross-
examination, he has admitted that he was M.Com. He denied that he was paid a sum of `1.00 Lakh as Shagun. He also denied that the family of the respondent has paid items like T.V., Sofa Set, gold ornaments etc. etc. He has denied the allegations that he developed illicit relations with Shoba Rani. He has never given any beatings to respondent. He also admitted that a case ::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 6 was registered against him and his family members under Section 498-A IPC. He has admitted that an amount of `20,000/-
was paid on 29.5.2001.
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14. Jagdev has led his evidence by filing affidavit. It is averred in the affidavit that in the year 2002, at the time of marriage of his sister, police had come to the spot. Respondent has filed an application before the Women Cell, Una. Matter was of compromised.
15. What emerges from the evidence led by the parties is that marriage between the parties was solemnized on rt 29.1.2001. A sum of `1.00 Lakh was paid by the family of the respondent to the appellant. A sum of `60,000/- was also paid to the appellant by the family of the respondent. Costly gift items were also given by way of dowry to the appellant by the family of the respondent. Appellant has proclaimed at the time of marriage that he was a Chartered Accountant (C.A.). Later on respondent discovered that he was only working as an Accountant. Appellant and his family members used to harass the respondent for bringing insufficient dowry. They have demanded a sum of `3.00 Lakh and scooter. Respondent was thrown out of matrimonial house. Statement of PW-4 Ranju Bala is duly corroborated by PW-1, Raman Singh, PW-2 Nischal Kumari, PW-3 Surindera Devi and PW-5 Neelam Devi. Efforts were made to resolve the matter amicably but to no avail. PW-6 ::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 7 has categorically deposed that money was paid to the appellant by the family of respondent by way of draft. Appellant has not denied specifically that he had illicit relations with landlady .
Shoba Rani.
16. Mr. Ajay Sharma, Advocate has vehemently argued that the respondent has filed a complaint against his client and his family members under Section 498-A IPC. Respondent was of forced to file complaint against appellant and his family members due to circumstances created by the appellant and his family members.
rt Appellant can not be allowed to take
advantage of his own wrongs. Appellant was also not paying
any maintenance to the respondent. She was forced to take recourse to legal remedy by filing petition under Section 125 CrPC seeking maintenance. Persistent demand raised by appellant to bring dowry has definitely caused mental and physical cruelty to the respondent. It has also come on record that as and when respondent used to object to developing illicit relations of the appellant, he used to beat her mercilessly. The appellant has created circumstances which forced the respondent to leave the matrimonial house.
17. Mr. Ajay Sharma, Advocate has argued that his client was always ready and willing to bring back the respondent but there is no evidence regarding as and when he tried to bring back the respondent to join his company. Now, so far as ::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 8 statement of RW-2 is concerned, it does not inspire confidence.
Appellant has admitted that he has never visited the house of his in-laws to bring respondent back to his house.
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18. Their Lordships of the Hon'ble Supreme Court in case Shobha Rani v. Madhukar Reddi reported in AIR 1988 SC 121 have explained the term "cruelty" as under:
"4. Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word cruelty" has not been defined.
of 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 rt affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment 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. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
5. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the ::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 9 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 of less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon, [1966] 2 All E.R. 257 (259) "the categories of cruelty are not closed." Each case may be different. We deal with the conduct of human beings who are rt not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful/realm of cruelty."
19. Their Lordships of the Hon'ble Supreme Court in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511, have enumerated some instances of human behaviour, which may be important in dealing with the cases of mental cruelty, as under:
"98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 10
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.
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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 rt not remain a mental versa. There can cruelty after a passage of time or vice never be any strait-jacket 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 ::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 11 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 of one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and
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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 ::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 12 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.
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(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and rt 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.
::: Downloaded on - 15/04/2017 18:44:22 :::HCHP 1320. In view of the discussion and analysis made herein above, there is no merit in the appeal and the same is .
dismissed. Pending application(s), if any, also stand disposed of.
No costs.
(Rajiv Sharma) Judge August 11, 2015 (vikrant) of rt ::: Downloaded on - 15/04/2017 18:44:22 :::HCHP