Himachal Pradesh High Court
______________________________________________________________________ vs Sh. Bhupender Singh on 7 July, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO (HMA) No. 362 of 2014
Reserved on : 02.07.2015
.
Date of decision: 07.07.2015
______________________________________________________________________
Smt. Reema
......Appellant.
Vs.
Sh. Bhupender Singh
.....Respondents.
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Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting?1 Yes.
For the appellant:
r Mr. Ramakant Sharma, Advocate.
For the respondent: Mr. G.D. Verma, Senior Advocate, with
Mr. B.C. Verma, Advocate.
Rajiv Sharma, J.:
This FAO (HMA) has been instituted against the judgment and decree, dated 23.08.2014, rendered by the learned Additional District Judge-II, Solan, H.P. in Petition No. 3-AK/3 of 2013/2010.
2. Key facts necessary for the adjudication of this appeal are that the marriage between the parties was solemnized on 12.03.2009 according to the Hindu rites and customs at the native village of the respondent. Parties stayed at the native village of the respondent for few days and thereafter left for Delhi, where the father of the respondent used to reside in a Government accommodation allotted to him. The Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 2elder brother of the respondent was also residing there with his family.
The respondent preferred a Petition under Section 13 of the Hindu Marriage Act, 1955, seeking a decree of divorce on the grounds of .
cruelty and desertion. According to the averments made in the petition, the appellant (respondent) has not behaved properly with him and his family members. She used to pick up quarrels on petty matters with him. The respondent has shown his financial incapacity to arrange separate accommodation to the appellant, since he was getting only `4500/- per month. On 18.04.2010, he received a telephonic call from his mother. On this, the appellant got furious and threw his mobile phone outside the room. She threatened to commit suicide, if he did not stop talking to his parents. She set herself on fire and proclaimed that she would die and implicate him and his family members in a false case. On 19.04.2010, he dropped the appellant with her parents. The appellant lodged a false complaint against him and his family members on 19.10.2010. He has not condoned the misbehavior of the appellant.
3. The petition was contested by the appellant. According to her, the respondent and the family members of the respondent started putting pressure upon her to bring money from her father to enable the respondent to buy a flat at Delhi. The family of the respondent knew that the father of the appellant had valuable piece of land at Kunihar adjacent to the road. She had never misbehaved with the respondent and his family members. On 18.04.2010, the respondent in collusion with his parents and his other family members, tried to set her on fire.
::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 3The respondent left her with her parents on 19.04.2010. Her parents have given household articles, jewellery worth `2,24,000/- including gold chain and ring to the respondent. The meetings were convened on .
23.05.2010 and 05.08.2010 to settle the matter. A meeting was also convened on 10.10.2010 at Rest House, Arki. However, the respondent and his family members have flatly refused to take her to matrimonial home. A rejoinder was filed by the respondent. The issues were framed by the learned Additional District Judge-II, Solan, H.P. on 28.09.2011.
The petition was allowed on 23.08.2014. Hence this appeal.
4. Mr. Ramakant Sharma, learned counsel for the appellant has vehemently argued that the respondent has failed to prove cruelty and desertion.
5. Mr. G.D. Verma, learned Senior Advocate has supported the judgment, dated 23.08.2014.
6. I have heard the learned counsel for the parties and gone through the judgment and records carefully.
7. PW-1 LC Pushpa Devi has proved the FIR No. 116/10, dated 10.11.2010, registered under Section 498-A and 506 read with Section 34 of the Indian Penal Code. Respondent has appeared as PW-
2. He has led his evidence by way of an affidavit. According to him, he was earning `4500/- per month. He received a telephonic call on 18.04.2010. The appellant got furious about this call. She sprinkled kerosene oil on her and put her on fire. He put off the fire. Appellant used to abuse him. He went to the house of appellant on 20.04.2010.
::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 4He narrated the incident to his parents. In the month of October, 2010, his family members went to see the family of the appellant to settle the matter. However, the matter could not be settled. A false case has been .
registered against him and his family members at Police Station, Arki.
The appellant has also filed a complaint under The Protection of Women from Domestic Violence Act, 2005. In his cross-examination, he has categorically stated that even if the appellant was ready and willing to go with him at Delhi, he would not take her with him.
8. PW-3 Dharam Singh Chauhan has also led his evidence by way of an affidavit. He has testified that in the month of October, 2010, he attended the proceedings in the Panchayat. Jai Singh told the parents of the girl that their daughter has tried to commit suicide by sprinkling kerosene oil on herself and she used to quarrel with the family members.
9. PW-4 Ajit Singh Rohal has also led his evidence by way of an affidavit. He had married his daughter with eldest son of Sh. Jai Singh. His daughter has told him that the appellant used to advance threats to the family members of the respondent and also used to threat that she would commit suicide and implicate the family members of the respondent. She had tried to commit suicide by sprinkling kerosene oil on her. However, in his cross-examination, he admitted that the incident pertaining to sprinkling of kerosene oil was told to him by Shri Jai Singh.
::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 510. PW-5 Nirmla is the mother of respondent. She has also led her evidence by way of an affidavit. Appellant used to take up quarrels and proclaim that she would not live in the joint family. The respondent .
has received a telephone on 18.04.2010. The appellant tried to commit suicide by sprinkling kerosene oil on her. She received minor injuries.
In her cross-examination, she has categorically stated that they were not ready and willing to take the appellant with them, even if she was prepared to go.
11. PW-6 Devi Ram has also led his evidence by way of an affidavit. He received a telephone call from his brother on 18.04.2010, who told him that the appellant had sprinkled the kerosene oil on her and tried to commit suicide. He told his brother to inform the parents of the appellant and thereafter the respondent took her to her parents house. In his cross-examination, he could not narrate the nature of injuries and the place where she was treated.
12. RW-1, Rajender Thakur has led his evidence by way of an affidavit. He was asked to join the proceedings before the Panchayat.
The appellant's parents told him that the husband of their daughter and her in-laws were demanding money. In-laws of their daughter were not ready and willing to take Reema (appellant) with them.
13. The appellant has appeared as RW-2. She has also led her evidence by way of an affidavit. She deposed that for few days she stayed at Tukana. She has never misbehaved with the respondent or his family members. Respondent and his family members used to ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 6 pressurize her to bring money and to demand her share from her parents. She has also taken `10,000/- from her parents. On 18.04.2010, her husband and the wife of the elder brother of her .
husband, had also tried to set her on fire by sprinkling kerosene oil.
She saved herself by running out of the room. She received minor injuries. She was not taken to hospital.
14. RW-3 is the father of appellant. He also led his evidence by filing an affidavit. It is averred in the affidavit that his daughter stayed with respondent at village Tukana for some time and thereafter, she went to Delhi. The respondent and his family members used to misbehave with his daughter and also used to administer beatings to her. She was pressurized to bring money from her parents. She was also pressurized to seek her share of the land situated adjacent to the road at Kunihar. His daughter told him that on 18.04.2010, the respondent and her sister-in-law have tried to put her on fire.
15. RW-4 Raj Kumar has also led his evidence by filing an affidavit. It is averred in the affidavit that Reema (appellant) told them that her in-laws had tried to put her on fire. The copy of FIR is Ex.
PW1/A, which was duly proved by PW-1 LC Pushpa.
16. What emerges from the analysis of the statements discussed hereinabove, is that the marriage between the parties was solemnized on 12.03.2009 according to the Hindu rites and customs.
PW-2 Sh. Bhupender has deposed that on 18.04.2010, when he received a telephonic call from his mother, the appellant got furious and ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 7 she tried to put her on fire by sprinkling kerosene oil. He tried to put out the fire. He took the appellant to her parents house. If the appellant had tried to put her on fire by sprinkling kerosene oil to commit suicide, .
it was a serious incident. The matter should have been reported to the police. There is no tangible evidence on record to establish that the respondent and his family members had lodged a complaint with the police about the alleged incident. He also testified that the FIR was registered against him and his family members and they had to seek bail. A case is also pending against them under The Protection of Women from Domestic Violence Act, 2005. He has categorically testified that even if the appellant was ready and willing to go with them, he would not take her to Delhi. Similarly, respondent's mother clearly deposed that even if the appellant was ready and willing to go with them to Delhi, she would not take her to Delhi. Thus, it proves that the appellant was always ready and willing to go with her husband and in-
laws, but they were not ready and willing to take her back to Delhi. PW-
4 Ajit Singh deposed that he was told by his daughter that the appellant has tried to put her on fire. However, in his cross-
examination, he has admitted that it was Jai Singh, who told him about the incident during the Panchayat. Neither the respondent nor his father has stated in their affidavits that PW-4 Ajit Singh was informed about the incident of fire.
17. RW-1 Rajinder Thakur, RW-3 Dalbir Singh and RW-4 Raj Kumar have categorically stated that the respondent and his family ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 8 members used to pressurize DW-2 Smt. Reema to bring more money and also to claim her share in the land situated adjacent to the road at Kunihar. DW-2 Smt. Reema has deposed that she has to ask for .
`10,000/- from her father to pay the same to the respondent and his family members. Her parents had spent `2,24,000/- on her marriage.
PW-2 Sh. Bhupender, PW-5 Nirmala have stated that on 18.04.2010, the appellant has tried to put her on fire by sprinkling the kerosene oil.
18. The genesis of the incident is that PW-2 Sh. Bhupender had received a telephonic call from PW-5 Nirmala and thereafter the appellant became furious and tried to put her on fire by sprinkling kerosene oil. It cannot be believed merely that the respondent has received a telephonic call from his mother would have infuriated the appellant to sprinkle kerosene oil on her to end her life. The conduct of the respondent and his family members was also strange. She should have been taken to the hospital for treatment. The adverse circumstances were created by the respondent and his family members, which have led to the burning incident on 18.04.2010. No sensible person would ever commit suicide by ending her life on trivial matters howsoever sensitive he or she may be. The human conduct is to preserve the life and not to destroy it. The respondent cannot be permitted to take advantage of his wrongs to seek divorce on flimsy grounds. The respondent was required to prove conclusively that the acts of the appellant have caused mental or physical cruelty. The ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 9 instances narrated by him are minor in nature and bound to happen during married life.
19. Mr. G.D. Verma, learned Senior Advocate for the .
respondent has vehemently argued that the appellant has lodged a false complaint against his client and his family members bearing FIR No. 116/2010, dated 10.11.2010.
20. The Court has already noticed that the copy of FIR Ex.
PW1/A has been proved by PW-1 LC Pushpa. It is true that there is delay in lodging the FIR, whereby the incident of putting the appellant on fire has also been mentioned. But, the FIR has to be read as a whole.
The Court can take judicial notice of the fact that in the Indian Society, going to the Police Station to lodge an FIR is the last resort. Generally, the tendency of the parties is to avoid going to the Police Station. It is also mentioned in the FIR that the respondent and his family members used to raise demand for dowry from the appellant and they used to harass and administer beatings to her. The FIR cannot be said to be false.
21. Mr. G.D. Verma, learned Senior Advocate for the respondent has also argued that a case has been filed against the respondent and his family members under The Protection of Women from Domestic Violence Act, 2005. It is the appellant's independent right to seek recourse to legal remedies provided under the Act. Merely filing of FIR and institution of a case under The Protection of Women from Domestic Violence Act, 2005 will not amount to cruelty per se. The ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 10 entire facts and circumstances of the case leading to registration of FIR and institution of a petition under The Protection of Women from Domestic Violence Act, 2005, have to be seen before coming to the .
conclusion that this would amount to physical or mental cruelty.
22. Mr. G.D. Verma, learned Senior Advocate has also argued that the appellant has deserted the respondent. However, the fact of the matter is that the respondent has himself created the circumstance, which compelled the appellant to live with her parents after the incident, dated 18.04.2010. In order to prove the desertion, the parties have to prove conclusively animus deserendi
23. Their Lordships of the Hon'ble Supreme Court in Shobha Rani Vs. Madhukar Reddi, AIR 1988 Supreme Court 121 have held that the demand for dowry is prohibited under law. It amounts to cruelty. Their Lordships have held as under:
"14. The High Court also went on the same lines. The High Court said that the wife appears to be hypersensitive and she imagines too much and too unnatural things. The High Court then observed :
"Though one would not justify demands for money it has to be viewed in the circumstances from a proper angle. The respondent is a doctor, if he asks his rich wife to spare some money, there is nothing wrong or unusual."
18. Bearing in mind the proper approach to matrimonial offence, we are satisfied that the facts and circumstances brought out by the appellant in this case do justify an inference that there was demand for dowry. The ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 11 demand for dowry is prohibited under law. That by itself is bad enough. That, in our opinion, amounts to cruelty entitling the wife to get a decree for dissolution of marriage."
.
24. The learned Single Judge in Smt. Suresh Sharma Vs. Dr. Sukhdev Sharma 2005(2) Shim. LC 399 has held as under:
"31. Mark-A is a letter written to the wife by the husband's brother. He has written that God should grant her the strength to bear the extreme pain inflicted on her by her husband. Mark-B and Mark-C are letters written by Kamlesh Kumar nephew of the husband to his Aunt (Mami) i.e., the wife. In these letters also the nephew of the husband has expressed anguish at the treatment being meted out to the wife by the husband. Mark-D is a letter in the handwriting of the husband addressed to the wife. The allegations in this letter makes sad reading. The husband suspected that the wife was not virgin at the time of the marriage. Without going into the allegations in the letters which are sordid in nature it is quite obvious that the husband was very annoyed with the wife since she did not have sex with him on the wedding night. For this reason and no other, he suspected that she was not a virgin and that she was suffering from some venereal disease. It appears that the husband was suffering from some sort of delusion that since the wife was reluctant to have sex on the wedding night she was not a virgin and was suffering from some sexually transmitted disease. The husband has given no other reason for suspecting the fidelity of the wife. However, a reading of this letter clearly indicates that the marriage between the parties had been consummated. This letter though not signed by the husband has been produced by the wife and is in the same handwriting as in Ext. P-1 copy of the letter written by the ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 12 husband to the SDM, Arki and produced by the husband. Both the letters are undoubtedly in the same handwriting. There are various other money order receipts on record .
which show that the wife had been sending money to her in-
laws."
25. Their Lordships of the Hon'ble Supreme Court in Samar Ghosh Vs. Jaya Ghosh (2007) 4 Supreme Court Cases 511 have explained the mental cruelty as under:
"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; but frequent rudeness of language, petulance of manner, indifference and neglect may ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 13 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 musch more than jealousy, selfishness, possessiveness which cause unhappiness and dissatisfaction and emotional upset, but 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 ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 14 be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged .
party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty;
(xii) Unilateral decision or 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."
26. Their Lordships of the Hon'ble Supreme Court in Manisha Tyagi Vs. Deepak Kumar (2010) 4 Supreme Court Cases 339 have held ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 15 that in order to constitute "cruelty" it is enough that conduct of one of parties is so abnormal and below accepted norm that other spouse could not reasonably be expected to put up with it. Their Lordships .
have held as under:
"26. At this stage we may notice the observations made by this Court in the case of Naveen Kohli vs. Neelu Kohli, 2006 4 SCC 558. In this case the Court examined the development and evolution of the concept of mental cruelty in matrimonial causes. In paragraph 35 it is observed as follows:
"35. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to 1976 amendment in the Hindu Marriage Act, 1955 cruelly was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By the 1976 amendment, cruelty was made a ground for divorce and the words which have been omitted from Section 10 are "as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". Therefore, it is not necessary for a party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension-reasonable apprehension - that it will be harmful or injurious for him or her to live with the other party."
27. The classic example of the definition of cruelty in the pre-1976 era is given in the well known decision of this Court in the case of N.G. Dastane vs. S. Dastane, 1975 2 SCC 326, wherein it is observed as follows:
"30. The enquiry has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner as reasonable apprehension that it would be harmful or injurious for him to live with the respondent".::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 16
This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other .
spouse could not reasonably be expected to put up with it.
The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce.
28. We may notice here the observations made by this Court in the case of Shobha Rani vs. Madhukar Reddi, 1988 1 SCC 105 wherein the concept of cruelty has been stated as under:
"4. The word "cruelty" has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other.
The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. It if it mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, 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.::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 17
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. The absence of intention should not make any difference in the case, .
if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot b e denied on the ground that there has been no deliberate or willful ill-
treatment."
27. Their Lordships of the Hon'ble Supreme Court in Ravi Kumar Vs. Julmidevi (2010) 4 Supreme Court Cases 476 have held as under:
"19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, some time it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial, behaviour defies any definition and its category can never be closed. Whether husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any pre-determined rigid formula. Cruelty in matrimonial cases can be of infinite variety - it may be subtle or even brutal and may be by gestures and words. That ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 18 possibly explains why Lord Denning in Sheldon v. Sheldon, 1966 2 AllER 257 held that categories of cruelty in matrimonial cases are never closed.
.
21. This Court is reminded of what was said by Lord Reid in Gollins v. Gollins, 1963 2 AllER 966 about judging cruelty in matrimonial cases. "The pertinent observations are:
"....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 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.
The aforesaid passage was quoted with approval by this Court in Dastane v. Dastane, 1975 2 SCC 326.
22. About changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v.
Madhukar Reddi, 1988 AIR(SC) 121 at page 123 of the report:
"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 ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 19 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.
.
28. Their Lordships of the Hon'ble Supreme Court in Neelam Kumar Vs. Dayarani (2010) 13 Supreme Court Cases 298 have held that one single instance in isolation is not sufficient for dissolution of marriage on ground of cruelty. Their Lordships have further held that the burden lies on person alleging cruelty. Their Lordships have held as under:
"7. Against the judgment and decree passed by the trial court, the respondent filed an appeal in the High Court under Section 28 of the Act. Before the High Court, the appellant strongly defended the judgment of the trial court and pointed out that the respondent had not even led any evidence in support of her case. The High Court, however, took the view, and we think quite rightly, that even though the respondent did not produce any evidence, no decree of divorce could be granted unless the appellant was able to prove on the basis of the pleadings and the evidences produced by him that his case was covered by Section 13(1)(ia) of the Hindu Marriage Act. On a consideration of the materials on record, the High Court found and held that no case of cruelty could be made out against the respondent and hence, the appellant was not entitled to the decree of dissolution of marriage on that ground.
9. The High Court then took up the other allegation that the respondent did not come to attend and take care of the appellant when he was undergoing medical treatment in a hospital for the injuries caused in an accident. The High Court found that this allegation was not part of the ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 20 appellant's pleadings and the matter was introduced in course of evidence. The court observed that not being stated in the pleadings, the allegation could not be taken into .
consideration. Even otherwise, apart from the oral statement made before the trial court, there was no material to support the allegation. The appellant did not examine any doctor or produce the medical records in connection with his treatment. In any event, one single instance, in isolation, was hardly sufficient for the dissolution of marriage on the ground that the respondent treated the appellant with cruelty."
29. Their Lordships of the Hon'ble Supreme Court in Gurbux Singh Vs. Harminder Kaur AIR 2011 Supreme Court 114 have held that it is quite possible that a particular conduct may amount to cruelty in one case, but the same conduct necessarily may not amount to cruelty due to change of various factors in different set of circumstances. Therefore, it is essential for the appellant who claims relief to prove that a particular, part of conduct or behavior resulted in cruelty to him. Their Lordships have held as under:
"11. A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified therein.
We have already pointed out that in the petition for dissolution of marriage, the appellant has merely mentioned Section 13 of the Act and in the body of the petition he highlighted certain instances amounting to cruelty by the respondent-wife. Cruelty has not been defined under the Act. It is quite possible that a particular conduct may amount to cruelty in one case but the same conduct necessarily may not amount to cruelty due to change of various factors, in ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 21 different set of circumstances. Therefore, it is essential for the appellant, who claims relief, to prove that a particular/part of conduct or behaviour resulted in cruelty to .
him. No prior assumptions can be made in such matters.
Meaning thereby that it cannot be assumed that a particular conduct will, under all circumstances, amount to cruelty, vis- a-vis the other party. The aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty. It is true that even a single act of violence which is of grievous and inexcusable nature satisfies the test of cruelty. Persistence in inordinate sexual demands or malpractices by either spouse can be cruelty if it injures the other spouse. There is no such complaint by the appellant. In the case on hand, as stated earlier, the appellant has projected few instances in which, according to him, the respondent abused his parents. We have verified all the averments in the petitions, reply statement, written submissions as well as the evidence of both parties. We are satisfied that on the basis of such instances, marriage cannot be dissolved."
30. Their Lordships of the Hon'ble Supreme Court in K. Srinivas Rao Vs. D.A. Deepa (2013) 5 Supreme Court cases 226 have added more illustrations conclusively in the judgment given in Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511. Their Lordships have held as under:
"10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 22 cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term 'cruelty'. Cruelty is evident where one spouse has so treated .
the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.
11. In Samar Ghosh this Court set out illustrative cases where inference of 'mental cruelty' can be drawn. This list is obviously not exhaustive because each case presents it's own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh.
We have reproduced only the instances which are relevant to the present case.
"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) xxx xxx xxx ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 23
(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.
r (vii) xxx xxx xxx
(viii) xxx xxx xxx
(ix) xxx xxx xxx
(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) xxx xxx xxx
(xii) xxx xxx xxx
(xiii) xxx xxx xxx
(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 ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 24 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. It is pertinent to note that in this case the husband and wife had lived separately for more than sixteen and a half years. This fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife.
Similar view was taken in Naveen Kohli.
13. In V. Bhagat v. D. Bhagat, 1994 1 SCC 337 in the divorce petition filed by the husband the wife filed written statement stating 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'. In cross-examination her counsel put several questions to the husband suggesting that several members of his family including his grandfather were lunatics. This court held that these assertions cannot but constitute mental cruelty of such a nature that the husband cannot be asked to live with the wife thereafter.
Such pleadings and questions it was held, are bound to cause immense mental pain and anguish to the husband.
14. In Vijaykumar Bhate disgusting accusations of unchastity and indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations 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 ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 25 to feel deeply hurt and reasonably apprehend that it would be dangerous to live with her husband.
15. In Naveen Kohli the respondent-wife got an .
advertisement issued in a national newspaper that her husband was her employee. She got another news item issued cautioning his business associates to avoid dealing with him. This was treated as causing mental cruelty to the husband.
[82..... The findings of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable."
16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse."
31. Their Lordships of the Hon'ble Supreme Court in Malathi Ravi, M.D. Vs. B.V. Ravi, M.D. (2014) 7 Supreme Court Cases 640 have held that in order to prove desertion, two essential conditions must be there: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held as under:
"20. In the said case, reference was also made to Lachman Utamchand Kirpalani's case wherein it has been ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP 26 held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable .
cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. For holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation."
In the instant case, the respondent himself has left the appellant with her parents and has refused to take her back to Delhi. Thus, he has failed to prove desertion."
32. Accordingly, the appeal is allowed and the judgment and decree, dated 23.08.2014, passed by the learned Additional District Judge-II, Solan, H.P. in Petition No. 3-AK/3 of 2013/2010 is set aside.
The miscellaneous application(s), if any, also stand(s), disposed of. No costs.
(Rajiv Sharma) Judge June 07, 2015 (bhupender) ::: Downloaded on - 15/04/2017 18:31:28 :::HCHP