Gujarat High Court
Hemaben D/O Champaklal Dhabuwala vs Apurvabhai Anilbhai Desai on 11 July, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/FA/994/2015 JUDGMENT DATED: 11/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 994 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HEMABEN D/O CHAMPAKLAL DHABUWALA
Versus
APURVABHAI ANILBHAI DESAI
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Appearance:
MR KV SHELAT(834) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 11/07/2022
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is an appeal under Section 19 of the Family Court against the judgment and order of the Family Court, Surat in Family Suit No.239 of 2011.
2. The brief facts are as follows;
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3. The marriage between the parties, who are Hindus, was solemnized on 3.7.2003, as per the Hindu Customs and Rights at Surat and a daughter was born out of the said wedlock on 15.4.2004. At the time of preferring this appeal, the daughter, who was 11 years old, resided with her mother.
3.1 Aggrieved by the judgment and decree passed by the Principal Judge, Family Court, Surat of denying the decree of divorce, on the ground of cruelty and desertion, this First Appeal has been preferred.
3.2 It is averred by the appellant that she had been residing for more than seven years from the filing of the divorce petition in the year 2011, separately from the respondent - husband. This is all on account of cruelty and desertion. Their period of living together was only around 3 1/2 months after the marriage. Neither the respondent has put up his case in evidence nor has challenged the appellant's version on oath, with regard to the cruelty and desertion both and yet the Court has misinterpreted the evidence that has been adduced. The Page 2 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 continuous desertion of about 11 years is averred to be sufficient ground for the Court to have considered the grant of decree of divorce.
3.3 It is not being disputed that till the daughter turned major in April 2022, the amount of Rs.2,000/- was being paid towards her maintenance. The appellant has at no point of time sought any amount of maintenance, as she herself is a Professor.
4. This Court issued the notice on 24.6.2015 and on couple of adjournments, while notifying the appeal, the attempts have been made to serve the respondent. It was also taken note by this Court on 19.1.2022 that though served duly, the respondent has chosen not to appear.
The order of 19.1.2022 reads as under;
"In the present appeal, the Court had an occasion to pass following order on 07th December, 2021.
"In this First Appeal, the appellant- wife has challenged judgment and order dated 12.1.2015, dismissing the Family Suit No.239 of 2011 by learned Principal Judge, Family Court, Surat, which was suit for decree of divorce under Section 13 (1) (i-a) (i-b) of the Hindu Marriage Act, 1955.
2. Learned advocate for the appellant stated that the Page 3 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 marriage between the appellant and respondent was solemnized on 3.7.2003 and within three months of marriage, the appellant was deserted. A daughter was born on 15.4.2004. Presently the appellant and daughter have been staying separately since last eighteen years.
3. Status of this appeal shows that the respondent is served by Registered Post A.D. While nobody appears, the record of the appeal witnesses the communication dated 29.7.2021 by the respondent.
4. We deem it fit to issue fresh Notice, returnable on 22.12.2021 to the respondent expecting him to remain present either personally or through advocate to facilitate proceedings of the Court.
5. Notice shall be issued at the address which figures in the letter of the respondent aforementioned to be : B - 05, Vaibhav Society, Palanpur patiya, Rander road, Surat- 09.
6. Direct service is permitted.
7. This order shall be forwarded to the respondent to the mode of e-mail at <[email protected]>which is mentioned by the respondent in his said letter."
2. After the above order, the appeal was posted on 22nd December, 2021, on which date learned advocate for the appellant had tendered copy of notice of service evidencing service of the First Appeal and the intimation about the next date on the respondent. The respondent-husband has not been appearing.
3. In the totality of circumstances, having regard to the subject matter involved in the appeal and in order to give an additional and final opportunity to Page 4 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 the respondent to appear before the Court and put forth his case, we deem it fit to direct the Registry to issue notice to the respondent herein.
4. Notice in addition to the usual format, shall furthermore contain an intimation to the respondent that if on the next date respondent fails to appear or cause appearance, the Court may proceed to hear the appeal on merits.
5. The notice as above to the respondent shall made returnable on 17th February, 2022."
5. We have taken up the appeal after about 7 years for final hearing, where learned advocate Mr. K.V. Shelat appearing for the appellant has argued along the line of appeal memo and has urged that the daughter also has turned major and husband has never bother to see the child nor has taken any care for the family. A notice once was issued by him alleging that he was not permitted to contact the daughter and he was desirous of conjugal rights. However, no follow up action, thereafter, had been taken. He has chosen to rely on the following decisions to substantiate his version that the decree of divorce in favour of the appellant requires to be given. Following Page 5 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 are the decisions on which, the learned advocate for the appellant, has relied upon;
1. Vijay Kumar Ramchandra Bhate vs. Neela Vijay Kumar Bhate reported in (2003) 6 SCC 334.
2.Vishwanath Agrawal S/o Sitaram Agrawal vs. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288.
3. Samar Ghosh vs. Jaya Ghosh reported in (2007) SCC 511.
6. Having heard learned advocate for the appellant and on perusal of the record, it appears that the marriage took place between the parties on 3.7.2003. They both are Ph.D.. The wife is professor in the engineering college and the husband is share-broker and also doing liaisoning work. On October 2003, the wife was on a family way at that stage, according to her, she was deserted. The child was born on 15.4.2004, who is now major from April 2022.
7. In the year 2008, after the father of appellant passed away, she had asked for the maintenance of the daughter.
The sum of Rs.2,000/- per month had been directed by the Court on 29.4.2008. On 13.8.2009, husband had also given a notice for restitution of conjugal rights and also made allegation that he was not allowed the visitation Page 6 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 right. On 13.6.2011, the appellant filed the suit for decree of divorce, wherein, in examination-in-chief she has spoken of abusive language used by the husband and his reckless allegations against the appellant, on her character. The cruelty and desertion since October 2003 are the essential grounds on which, she had requested for divorce. The evidence of maternal Uncle of the appellant
- Jagdishbhai Gheewala supported the version of the appellant.
7.1 It appears that the respondent husband has given the evidence vide exh.43 and the cross examination also is extensively done. He is working as a share-broker and also doing the liaisoning work. He has alleged that the appellant never liked him and she had her own way of dealing with the situation. She had desired the life to be lived in her own way and therefore, soon after the marriage, she had chosen to desert the husband and she had also taken away the belongings which can be called the 'Shridhan'. She also is getting the monthly salary of Rs.1,00,000/-. She chose to go and stay with her parents and that had seriously jeopardized his conjugal rights.
Page 7 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022C/FA/994/2015 JUDGMENT DATED: 11/07/2022 The daughter also had been taken away without any rhyme or reason. He has alleged against her of having the extramarital relations with others. He has not specified any particular person but has alleged indiscriminately. He has maintained that the complaint was field being C.R. No. 73 of 2010 under Section 498(A) of the I.P.C. where the chargesheet has been filed in Criminal Case No. 33258 of 2010. She has failed to prove that there was any cruelty. It is further his say that he has very meager salary of 2.5 lakhs yearly. His detailed cross examination also includes the questions with regard to the death of parents of appellant, he had no clue. He also agreed that he was not aware as to how much is salary of hers. For treatment of mother of hers, whether she had to incur any liability also was not known to this person. The daughter is studying in the city school. It was agreed that the entire expenses are being borne by the appellant. He also categorically agreed that he has not seen any male member with whom the appellant could be moving out at night or in the party. The daughter, according to him, once had telephonically complained of some harassment Page 8 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 on the part of the mother about which, at no point time, he has given in writing to the Court. He does not pay income-tax and he agreed that the appellant stayed with him for about three months and during that period, he hardly remembers of any dispute between the two of them. It is agreed that N.S.C. and K.V.P. envelops were not with him, which were given during the wedding. The family is well settled and his brother is in U.S., since last five to six years. His father was serving at P.T. Science College, as Lecturer and he had retired, who also earns pension from 2008. According to the respondent, he stayed all by himself.
8. He has agreed that, at no point of time, after issuing the notice for restitution of conjugal rights, he has preferred any suit and for custody of the child also, he has never moved any Court. He also has not made any arrangements for the daughter's maintenance. He gets permission from the government for and on behalf of the doctors, for disposing of the human organs. He came to know about the daughter's birth on 15.4.2004 but he did not go to meet the daughter. He was aware of the Page 9 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 appellant being pregnant. He was aware that the appellant was pursuing the Ph.D. and obtained the degree in 2007. He is also not aware whether any debt has been incurred for the treatment. He also is not aware as to whether the place where the appellant's parents were residing at the time of engagement and the marriage, is the place, where she is presently residing.
9. As against that the appellant has stated, as to how, soon after the marriage, she realized that he was very obstinate in his approach. Even at the time of her pregnancy, she was harassed a lot. When she gave deposition, their daughter was 8 years old. The daughter continued to be with the mother because, in about 3 months' time, she was compelled to leave the matrimonial home. The mental attitude on the part of the respondent is that he would be very happy to be housed at his in-laws place because the wife is earning. He was impudent enough to express himself that there is no need for the husband to earn, if the wife is sufficiently earning. She had tolerated for a long time. He also asked for the divorce in the year 2004, but, in the year 2008, when her Page 10 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 father passed away, the husband never attended even last rites. He, after 10 days had come once for one minute. He also did not express his condolence nor spent any time.
Even during such traumatic period, he used to send messages which were totally unpalatable. She lamented his demands for restitution of conjugal rights in public places and during the public functions and on the other hand he never missed a chance to insult her bodily. She had also complaint against him by way of C.R. No. 73 of 2010. He had also clearly and without any demur declared that he would not fulfill his obligations of looking after the appellant and his daughter. The amount of maintenance of Rs.2,000/- towards the daughter on 29.4.2008 has been directed by the Family Court. She has insisted that she was deserted all along and without any rhyme or reason, this had happened from October 2003.
In her detailed cross examination, she had agreed that she had moved the suit for divorce after 7 years of joining her parents. She completed her Ph.D in 2007 and in 1999 she was an adhoc lecturer and in 2007 she was a visiting lecturer. She also gives tuition of Maths. She is a lecturer Page 11 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 in Sarvjanik College of Engineering and Technology. The maternal uncle Jagdishbhai Gheewala has given evidence, supporting the appellant. According to him, the family waited for a sufficiently long time, thinking that every issue can end with the passage of time. However, nothing had happened and noticing that this conduct on the part of the respondent was gradually affecting the mind of young daughter and also of the appellant herself, more particularly, after the demise of father of the appellant, he had chosen to prefer this appeal for divorce.
10. We notice that in the cross examination there is nothing with regard to the allegations made against the appellant of her having the extra marital relations or her having been deserted the respondent. With this evidence, the Court had not believed that the grounds enumerated under Section 13 of the Act would entitle the appellant to get the decree. According to the family Court, to get a decree of divorce on the ground of desertion, there are two conditions needed to be fulfilled, one is a factum of separation and, two the intention to bring cohabitation permanently to an end. The second condition, according Page 12 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 to the Court, was not proved by the petitioner. The notice in the year 2009 given by the respondent for restitution of conjugal rights is the ground which had weighed with Court by holding that he was ready and willing to keep the wife and the daughter with him. He has also expressed his willingness to stay at the parental house of the appellant as 'Ghar-Jamai' and if that be the case, it cannot be said that he has deserted the respondent and there was an intention to bring the cohabitation permanently to an end. The Court also has noticed that this Court in case of Binaben w/o Kulinbhai Shah vs. Kulinbhai Chandravadan Shah reported in 2014 (2) GLR 1223 has held that where the marriage has broken down beyond repair and state of affairs has reached a point of no return, the refusal by spouse to sever tie for the sake of refusal only amounts to cruelty. Yet, by holding that the evidence adduced by the appellant wife would not lead to the Court holding that the marriage has broken down beyond repair or it has reached to the point of no return, has chosen to dismiss the suit.
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11. In our opinion, there is a total fallacy in the reasoning of the family Court. Not only the consistent conduct on the part of the respondent unequivocally reveal his intention of not to continue with the marital life but his subsequent conduct of not remaining present before this Court despite the due service also is further vindicating this aspect. Apt would be to refer to the depositions of the parties, which have been discussed herein before, wherein in the contentions raised in the written statement, the serious allegations have been made of the character of appellant of not only her having extra marital affairs, but, going for parties at midnight with different male members and in the cross examination, the respondent had been categorical that he at no point of time, had seen anything nor he has any semblance of proof in this regard. Very short period of cohabitation of three months though had led to the birth of girl child, the subsequent period is a testimony as to how he has chosen not only to desert but to ensure never to care for either the wife or daughter (who was surely not at all contributing to any of this marital disputes).
Page 14 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022C/FA/994/2015 JUDGMENT DATED: 11/07/2022 What has weighed with the Trial Court sadly is his solemn notice of restitution of conjugal right without any further steps having been taken by the respondent at any stage.
This was possibly given because in the year 2008 itself there was an order of maintenance passed by the Court for the daughter. Possibly to ensure that he does not need to fulfill even that responsibility, such a notice appears to have been given. According to us, there is a serious error committed by the Court in not appreciating the evidence in a manner it was required to be. Therefore, there is a need for this Court to interfere with the impugned judgment and order and grant the decree of divorce on the ground of cruelty.
12. Chronological events when viewed dispassionately are unequivocally leading to the single most conclusion of the failure on the part of the respondent to exhibit basic respect and warmth in relationship. The worst trauma or cruelty any women would suffer at the hands of her close relation and particularly the spouse is the assassination of character and that too, when it is a result of assumption and presumption reflecting upon his own deep prejudices.
Page 15 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022C/FA/994/2015 JUDGMENT DATED: 11/07/2022 Apart from that, the cohabitation period being minimal of 3 months and responsibility of daughter all throughout having been shouldered by mother with a compulsive contribution of meager sum of Rs.2,000/- are contributing factor which would add to this trauma of cruelty.
13. Much water has flown and life has taken both of them to two different shares where meeting and staying under the same roof has become an impossibility. During this legal relationship further without realizing this stark truth would amount to further foundering the lives of appellant and her daughter. Such relationship also indirectly create huge suffering for the family member around without further delving upon the events of cruelty along the years, we deem it appropriate to interfere with the judgment of Trial Court, having been passed without appreciating the evidence with requisite concern and on applying aptly the law to the glaring facts.
14. At this stage, reference would be necessary to the decisions, which are relied upon.
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15. In case of Vijay Kumar Ramchandra Bhate (supra), the Court has held that the character assassination during subsistence of marriage and the divorce proceedings would amount to cruelty and the same would substantiate wife's petition for divorce on the ground of cruelty. In the matter before the Apex Court when such a request of divorce for dissolution of marriage on the ground of cruelty was made by wife under Section 13(1) (i-a) of the Hindu Marriage Act ("Act" for short), the husband had alleged against the wife of unchastity, indecent familiarity with another person and extra marital relationship. By way of suggestions in the cross examination the husband attempted rude.
The Apex Court held that even if those allegations were later on withdrawn by seeking amendment of the written statements, which were allowed by carrying out those amendments that would be of no consequence.
Judged in Indian conditions, such false allegations amount to worst insult, a grave assault on character, honour, reputation and status of the party.
Page 17 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022C/FA/994/2015 JUDGMENT DATED: 11/07/2022 The Court also further held that the question of the cruelty meted out to the wife, when is considered, the aspersions allegations and reproaches which are per-se cruel in nature, when deliberately made against the wife, the same would have deleterious effect on mental attitude of the wife, which are very difficult to be erased, even if later on unilaterally withdrawn. In the words of the Apex Court:
"5. In Dr. N.G. Dastane v. Mrs. S. Dastane this Court observed that normally the burden lies on the petitioner to establish his or her plea that the respondent had meted out cruelty to the petitioner and that the standard of proof required in matrimonial cases under the Act is not to establish the charge of cruelty beyond reasonable doubt but merely one of weighing the various probabilities to find out whether the preponderance is in favour of the existence of the said fact alleged. As to what is the nature of cruelty that is necessary to be substantiated also, it has been pointed out that unlike the requirement under English law which must be of such a character as to cause danger to life, limb or health so as to give rise to a reasonable apprehension of such a danger, the courts under the Act in question has to only see whether the petitioner proved that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in mind that it Page 18 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 will be harmful or injurious to live together, keeping into consideration the resultant possibilities of harm or injury to health, reputation,, the working-career or the like.
6. In V. Bhagat v. D. Bhagat (Mrs.) it was observed that mental cruelty in Section 13(1) (i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other and the parties cannot reasonably also be expected to live together or that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It was also considered to be not necessary to prove that the mental cruelty is such as to cause injury to the health of the wronged party. That was a case wherein the husband filed a petition against the wife for divorce on the ground of adultery. In the written statement filed by the wife in the said proceedings, she alleged that the husband was "suffering from mental hallucination', that his was a "morbid mind .... for which he needs expert psychiatric treatment", and that he was "suffering from paranoid disorder" etc., and that during cross- examination several questions were put to him that the petitioner and several members of his family including his grandfather were lunatics and that the streak of insanity was running in the entire family. It is in the said context this Court though held the allegations leveled against the wife were not proved the counter allegations made by Page 19 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 the wife against the husband certainly constituted mental cruelty of such a nature that the husband cannot reasonably be asked to live with the wife thereafter. The husband, it was also held, would be justified to say that it is not possible for him to live with the wife. In rejecting the stand of the wife that she wants to live with her husband, this Court observed that she was deliberately feigning a posture, wholly unnatural and beyond comprehension of a reasonable person and held that in such circumstances the obvious conclusion has to be that she has resolved to live in agony only to make life a miserable hell for the husband, as well.
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 leveling 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 Page 20 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 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."
16. In case of Vishwanath Agrawal (supra), the Court has examined cruelty under Section 13(1)(i-a) of the Act to hold that the cruelty has an inseparable nexus with human conduct and is always depended on social strata or milieu to which the parties belong, their ways of life, relationship, temperament and emotions that are conditions by their social status.
17. Here was the case where conduct of the wife in publicizing the newspapers that her husband was a Page 21 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 womanizer and a drunkard as also allegations about an extramarital relationship had been made and efforts were made to prosecute him in criminal litigation under Sections 494 and 498-A IPC, which eventually resulted in acquittal and caused deep mental pain, agony, suffering and frustration. This, according to the Court had made out the grounds for divorce. The relevant paragraph of the judgment of the Apex Court reads as follow:
"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.
23. In Sirajmohamedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan and another, a two-Judge Bench approved the concept of legal cruelty as expounded in Sm. Pancho v. Ram Prasad wherein it was stated thus:
(Pancho case, AIR p. 43, para 3) "3...Conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition that a second Page 22 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 marriage is a sufficient ground for separate residence and separate maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used.
Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife."
It is apt to note here that the said observations were made while dealing with the Hindu Married Women's Right to Separate Residence and Maintenance Act (19 of 1946). This Court, after reproducing the passage, has observed that the learned Judge has put his finger on the correct aspect and object of mental cruelty.
24. In Shobha Rani v. Madhukar Reddi[3], while dealing with 'cruelty' under Section 13(1)(ia) of the Act, this Court observed that the said provision does not define 'cruelty' and the same could not be defined. 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. Thereafter, the Bench proceeded to state as follows: (SCC p. 108 para 4) "4....First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be Page 23 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 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."
25. After so stating, this Court observed about the marked change in life in modern times and the sea change in matrimonial duties and responsibilities. It has been observed that: (SCC p. 108, para 5) "5... when a spouse makes a complaint about treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatized 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."
26.Their Lordships in Shobha Rani case referred to the observations made in Sheldon v. Sheldon wherein Lord Denning stated, "the categories of cruelty are not Page 24 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 closed". Thereafter, the Bench proceeded to state thus:
(Shobha Rani case, SCC p.109, paras 5-6) "5... 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.
6. These preliminary observations are intended to emphasise that the court in matrimonial cases is not concerned with ideals in family life. The court has only to understand the spouses concerned as nature made them, and consider their particular grievance. As Lord Ried observed in Gollins v.
Gollins (ALL ER p. 972 G-H) "....In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the reasonable woman). We are dealing with this man or this woman." (emphasis in original)
27. In V. Bhagat v. D. Bhagat, a two-Judge Bench referred to the amendment that had taken place in Sections 10 and 13(1)(ia) after the (Hindu) Marriage Laws (Amendment) Act, 1976 and proceeded to hold Page 25 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 that the earlier requirement that such cruelty has caused a reasonable apprehension in the mind of a spouse that it would be harmful or injurious for him/her to live with the other one is no longer the requirement. Thereafter, this Court proceeded to deal with what constitutes mental cruelty as contemplated in Section 13(1)(ia) and observed that mental cruelty in the said provision 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. To put it differently, the 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 was further observed, while arriving at such conclusion, that 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. What is cruelty in one case may not amount to cruelty in another case and it has to be determined in each case keeping in view the facts and circumstances of that case. That apart, the accusations and allegations have to be scrutinized in the context in which they are made. Be it noted, in the said case, this Court quoted extensively from the allegations made in the written statement and the evidence brought on record and came to hold that the said allegations and Page 26 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 counter allegations were not in the realm of ordinary plea of defence and did amount to mental cruelty.
28. In Praveen Mehta v. Inderjit Mehta, it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be established by direct evidence and 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. (Parveen Mehta case, SCC p. 716, para 21). The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other.
29. In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, it has been opined that a conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot be so lightly ignored or brushed aside.
30. In A. Jayachandra v. Aneel Kaur, it has been ruled that the question of mental cruelty has to be considered Page 27 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status and environment in which they live. If from the conduct of the spouse, it is established and/or an inference can legitimately be 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 the same would amount to cruelty. While dealing with the concept of mental cruelty, enquiry must begin as to the nature of cruel treatment and the impact of such treatment in the mind of the spouse. It has to be seen whether the conduct is such that no reasonable person would tolerate it.
31. In Vinita Saxena v. Pankaj Pandit, it has been ruled that as to what constitutes mental cruelty for the purposes of Section 13(1)(ia) will not depend upon the numerical count of such incident or only on the continuous course of such conduct but one has to 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.
32. In Samar Ghosh v. Jaya Ghosh, this Court, after surveying the previous decisions and referring to the concept of cruelty, which includes mental cruelty, in English, American, Canadian and Australian cases, has observed that: (SCC pp. 545-546, paras 99-100) Page 28 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 "99.... The 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 the 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 belief, 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 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."
33. In Suman Kapur v. Sudhir Kapur, after referring to various decisions in the field, this Court took note of the fact that the wife had neglected to carry out the matrimonial obligations and further, during the pendency of the mediation proceeding, had sent a notice Page 29 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 to the husband through her advocate alleging that he had another wife in USA whose identity was concealed. The said allegation was based on the fact that in his income-tax return, the husband mentioned the "Social Security Number" of his wife which did not belong to the wife, but to an American lady. The husband offered an explanation that it was merely a typographical error and nothing else. The High Court had observed that taking undue advantage of the error in the "Social Security Number", the wife had gone to the extent of making serious allegation that the husband had married an American woman whose "Social Security Number" was wrongly typed in the income-tax return of the husband. This fact also weighed with this Court and was treated that the entire conduct of the wife did tantamount to mental cruelty.
34. Keeping in view the aforesaid enunciation of law pertaining to mental cruelty, it is to be scrutinized whether in the case at hand, there has been real mental cruelty or not, but, a significant one, the said scrutiny can only be done if the findings are perverse, unreasonable, against the material record or based on non-consideration of relevant materials. We may note here that the High Court has, in a singular line, declined to interfere with the judgment and decree of the courts below stating that they are based on concurrent findings of fact. The plea of perversity of approach though raised was not adverted to.
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35. It is worth noting that this Court, in Kulwant Kaur v. Gurdial Singh Mann has held that while it is true that in a second appeal, a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. An issue pertaining to perversity comes within the ambit of substantial question of law. Similar view has been stated in Govindaraju v. Mariamman.
36. In Major Singh v. Rattan Singh it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure.
37. In Vidhyadhar v. Manikrao it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the Page 31 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 decision of this Court in Abdul Raheem v. Karnataka Electricity Board"
39. Presently, to the core issue, viz, whether the appellant-husband had made out a case for mental cruelty to entitle him to get a decree for divorce. At this juncture, we may unhesitantly state that the trial court as well as the first appellate court have disbelieved the evidence of most of the witnesses cited on behalf of the husband on the ground that they are interested witnesses. In a matrimonial dispute, it would be inappropriate to expect outsiders to come and depose. The family members and sometimes the relatives, friends and neighbours are the most natural witnesses. The veracity of the testimony is to be tested on objective parameters and not to be thrown overboard on the ground that the witnesses are related to either of the spouse. Exception has been taken by the courts below that the servants of the house should have been examined and that amounts to suppression of the best possible evidence.
40. That apart, the allegations made in the written statement, the dismissal of the case instituted by the wife under Section 494 of the Indian Penal Code, the non-judging of the material regard being had to the social status, the mental make-up, the milieu and the rejection of subsequent events on the count that they are subsequent to the filing of the petition for divorce and also giving flimsy reasons not to place reliance on Page 32 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 the same, we are disposed to think, deserve to be tested on the anvil of "perversity of approach". Quite apart from the above, a significant question that emerges is whether the reasons ascribed by the courts below that the allegations made in the written statement alleging extra marital affair of the appellant-husband with Neeta Gujarathi has been established and, therefore, it would not constitute mental cruelty are perverse and unacceptable or justified on the basis of the evidence brought on record. These are the aspects which need to be scrutinized and appositely delved into."
18. In case of Samar Ghosh (supra) the Court held that it was a case of irretrievable breakdown of marriage, one of parties refused to sever the ties despite the breakdown of marriage. The Court noticed a long period of continuous separation, to hold that it can be concluded fairly that the matrimonial bond was beyond repairs. The marriage becomes a fiction though supported by a legal tie. By refusing to sever the tie, the law in such case would not serve the sanctity of the marriage, on the contrary it shows scant regard for the feeling and emotions of the parties and that would also lead to mental cruelty. The Court endorsed the order of Trial Court which concluded that the various instances in the Page 33 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 matrimonial life had led to grave mental cruelty to the appellant-husband. The Court also gave instances of mental cruelty to hold that there are certain illustrative instances though they are not exhaustive of the conduct that may amount to mental cruelty in matrimonial context. It would be appropriate to refer to the relevant findings and observations of the Apex Court in this connection, which read as follow:-
"38. Before we critically examine both the judgments in the light of settled law, it has become imperative to understand and comprehend the concept of cruelty.
39.The 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 the Black's Law Dictionary [8th Edition, 2004] 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."Page 34 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022
C/FA/994/2015 JUDGMENT DATED: 11/07/2022
41. The concept of cruelty has been summarized in Halsbury's Laws of England [Vol.13, 4th Edition Para 1269] 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 Page 35 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 not essential to cruelty but it is an important element where it exits."
42. In 24 American Jurisprudence 2d, the term "mental cruelty" has been defined as under:
"Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse."
52. The mental cruelty has also been examined by this Court in Parveen Mehta v. Inderjit Mehta SCC at pp.716-17 para 21 which reads as under:
"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 Page 36 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 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."
53. In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably.
54. In A. Jayachandra v. Aneel Kaur the Court observed as under: (SCC pp. 29-30,paras 10 & 12-13) "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 Page 37 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 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 Page 38 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 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.
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 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 Page 39 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 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."
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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 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 Page 41 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 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 Page 42 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 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 Page 43 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 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."
19. Here is a case where parties had been admittedly living separately for more than 16 ½ years. The Court therefore drew the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the respondent and hence, the Court upheld the decision of the Additional District Judge which had decreed the appellant's suit for divorce.
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20. In a matter on hand, as can be quite apparently visible from the evidence which has been adduced and discussed herein above that the character assassination has been rampantly made by the husband. Although, he has admitted in his cross-examination that he does not have semblance of evidence for alleging wildly against the wife, who was respectably earning her livelihood and also looking after the only daughter born out of the said wedlock. This attitude coupled with his absolute coldness at the time when the wife and the daughter needed him the most, when she lost her own parents, are also some of the examples which have left deep anguish, disappointment and frustration in the mind of the appellant. This sustained course of abuse and humiliation and a complete self centerdness which has been exhibited in his conduct had been overlooked by the Court concerned while rejecting the request for severing the ties. Nothing has been left in the relationship, she has been isolated and they have been residing separately for more than 19 years. Therefore, irresistible conclusion Page 45 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022 C/FA/994/2015 JUDGMENT DATED: 11/07/2022 that can be drawn is that the matrimonial bond does not exist and only conclusion that can be drawn as of judgment and order deserves interference.
21. Resultantly, present First Appeal is allowed. The judgment and decree of the Principal Judge, Family Court, Surat dated 12.1.2013 in Family Suit 239 of 2013 quashed and set aside on the ground of the cruelty under Section 13 (1) (i-a) of the Act. The marital ties are severed dissolving the marriage solemnized on 3.7.2003.
22. The daughter who has already completed 18 years and therefore, there is no requirement for any direction for her custody. She is an independent girl, who can choose her own course of life.
Sd/-
(SONIA GOKANI, J) Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 46 of 46 Downloaded on : Sat Dec 24 20:50:20 IST 2022