Delhi High Court
Shri Prabhash Saxena vs Smt. Ranjana Saxena on 1 June, 2001
Equivalent citations: II(2001)DMC365, 2001(60)DRJ200
Author: Arijit Pasayat
Bench: Arijit Pasayat, D.K. Jain
ORDER Arijit Pasayat, C.J.
1. Marriage and sonship constitute some of the unique chapters in the litera legis of ancient Hindu law. As early as the time of Rig-Veda, marriage had assumed a sacred character of a sacrament and sanction of religion had heightened the character and importance of the institutional marriage. The basal thought was that marriage was a prime necessity for that alone could enable a person to discharge properly his religious and secular obligations. The smritis deal with the subject of marriage with meticulous care and make fascinating study. Manu expounded the subject so also many other smritikaras and commentators. Marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. The importance and imperative character of the institution of marriage needs no comment. In Hindu Law, marriage is treated as a smaskara or a sacrament. It is the last of ten sacraments, enjoined by the Hindu religion for re-generation of men and obligatory in case of every Hindu, who does not desire to adopt the life of a sanyasi. These lofty ideals and principles have been highlighted in Mullah's Hindu Law (See the Seventeenth Edition).
2. Divorce, however, is a thorny question. Hindu law, strictly so called, did not allow divorce except in certain communities, in the lower social strata, where it was permitted by custom; and there was deep-rooted sentiment against any provision for divorce in the new legislation, which was being forged. It may be of some interest to note that some of the smritikars although they did not deal with divorce in the sense, it is now understood did declare that a woman could take a second husband in certain events. The celebrated test of Narada is "if the husband be missing, or dead, or retired from the world, or impotent, or degraded, in these five calamities a woman may take another husband." But the Hindu Marriage Act, 1955 (in short, 'the Act') statutorily provides for divorce, on nine grounds enumerated in sub-Section 13(1), and two more grounds are also provided in sub-Section 13(1A). These grounds are available to both the parties to the marriage. In addition, a wife has been given four other grounds on which dissolution of marriage by a decree of divorce can be sought for. One of the grounds available to both parties to a marriage is 'cruelty'. That is the ground on which the appellant herein, the husband, had filed an application for a decree of divorce. The same was resisted by the respondent wife. While the Trial Court accepted the plea for divorce, the same was upset by learned Single Judge. Challenging the order of learned Single Judge, this appeal under the Letters Patent has been filed.
3. The husband alleged cruelty both physical and mental. It is to be noted that cruelty per se was not a ground for relief by way of divorce prior to the amendment of Section 13 by the Amending Act of 1976, but was only a ground for relief of judicial separation under clause (b) of Section 10(1) of the Act. The legal conception of cruelty and the question of decree of divorce on the ground of cruelty necessary to constitute matrimonial offence has not been defined by any Statute. The danger of any attempt at giving a comprehensive definition that may cover all cases has been noted by various courts. The expression 'cruelty' is rather difficult to define, but broadly speaking, it is stated to be a 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 danger. (See Russell v. Russell, (1897). AC 395).
4. Coming to the factual background in which the petition was filed is essentially as follows:-
Both the husband and wife belonging to lower-middle class families entered into a marital knot on 21.10.1990 at New Delhi according to Hindu rites. On 27.03.1992, the husband filed a petition for dissolution of the marriage by a decree of divorce on the ground of 'cruelty'. According to the pleadings, wife's behavior and attitude towards him and members of his family had been very uncooperative and even cruel from the very inception of their marital life, because the wife was quarrel some in nature and used to pick up quarrel with him and other members of the family for no rhyme or reason. She even used to run away to his parental home. Immediately after the marriage when she came to the husband's house, she complained about her feelings of suffocation in the matrimonial home as a result of which, marriage could not be consummated. To highlight the misconduct and cruel behavior, husband had given five specific instances, in addition to the general conduct, and they are as follows:-
(1) On 25.12.1990, wife picked up a quarrel with him and his mother and asked him to live separately from his mother. On that day, she threw a thali containing food at the face of her mother.
(2) On 26.12.1990, she assaulted him, caught hold of his testicles and pressed with great force and she also threatened to kill the husband, if he tried to make her pregnant. Often she willfully and unjustifiably refused to have sexual intercourse with the husband.
(3) On 18.06.1991, wife, without his consent and knowledge of the husband, underwent abortion at J.P.N. Hospital.
(4) On 10.08.1991, she wrongfully took away the entire jewellery of her mother-in-law and went to her parent's house.
(5) On 24.03.1992, she came to his house accompanied by two men and two women and belaboured him and his mother.
These acts amounted to cruelty within the meaning of Section 13(1) of the Act and entitled him to a decree of divorce.
5. The prayer was resisted by the wife stating that the allegations of misconduct and misbehavior were not factually correct. The marriage was consummated on the night of 22/23rd October, 1990 in Hotel Janpath, where the parties, soon after marriage, stayed together. Contrary to what has happened is averred in the petition, it was she, who had been subjected to humilation and ill-treatment at the hands of the husband and members of his family right from the inception of marriage. In particular, it was stated that on 01.03.1991 on the occasion of Holi, her Devrani, Smt. Pooja insulted her by saying that her parents did not give sufficient presents to the husband on his visit to her parent's home on the occasion of "Rangpaashi". Her Devrani used to taunt her that she was a "Sarak Chap' woman. According to her, her Devrani was responsible for creating disharmony in matrimonial relations of the parties by inciting ill-feelings. Her mother-in-law was superstitious and had blind faith in her family 'Guru'. It was this Guru, who had told her mother-in-law that since the 'bidai' did not take place at an auspicious hour, her late arrival at the matrimonial home became inauspicious. Unfortunately, the husband's uncle died of cancer after 4-5 months of her marriage and she was held to be the reason for the mishap, and was cursed and condemned for his death. On one occasion, she was reprimanded by her mother-in-law for her refusal to take liquor. She alleged that her husband and his family members are addicted to alcohol. It was also indicated in the written statement that because of dissatisfaction over the dowry brought by her, she was maltreated. It was specifically stated that on 17.06.1991, the husband beat her up on account of her refusal to take liquor for celebrating her pregnancy. On 18.06.1991, she was admitted in the Emergency Ward of J.P.N. Hospital and after her medical check up, the doctor advised her for immediate abortion to save her life. Consequently, on medical advice, she underwent abortion without prior consent of her husband. On 19.06.1991, her husband took her back to matrimonial home and thereafter, they had gone to Goa for bringing her back to normally and to get over the mental trauma of the abortion. On 09.08.1991, at the night, the husband belaboured her and on 10.08.1991, she was kicked out of her matrimonial home by her husband.
6. It is to be noted that there were some developments in the stand of the husband from time to time. It was stated that on 26.12.1990, she caught hold of his neck and pressed with great force. It was also stated that on 09.04.1991, wife's brother called him and asked him to live separately and on his refusal to do so, he was severely assaulted and as a result he sustained an injury on his head and became unconscious. Thereafter, he was admitted to the R.M.L. Hospital for treatment.
7. While the learned Trial Judge granted the decree of divorce, the same was, as noted above, set aside by the learned Single judge. Learned Trial Judge took specific note of the statements made in the written statement to the effect that the husband and the members of his family wee drunkards as alleged in the written statement and this amounted to mental cruelty entitling the husband to a decree of divorce on that ground. Learned Single Judge analysed the evidence on record and held that the husband has failed to prove the allegation of cruelty against the wife and there was complete distortion of the factual position and a highly exaggerated and untruthful version was presented.
8. In support of the appeal, learned counsel for the appellant submitted that the approach of learned Single Judge was erroneous and he has misread the evidence and has drawn conclusion, which are contrary to the factual set up and materials-on-record. Certain unimportant aspects have been highlighted, ignoring the material aspects. It was submitted that the gravity of making unfounded allegations about the husband and his family members being drunkards has been completely lost sight of. According to him, this is a fit case where decree of divorce was to be granted.
9. On the other hand, learned counsel for the respondent submitted that the exaggerated and fanciful projection of the alleged background facts has rightly been discarded by learned Single Judge. Acceptability of the evidence has been clearly analysed and it has been held that the allegations are unfounded and a case for a decree of divorce has not been made out.
10. The expression 'cruelty', as noted above, has not been defined. It has been used in relation to human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. IF it is mental, the problem presents difficulties. first, the enquiry must being as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. (See Sobh Rani v. Madhukar Reddi ).
11. To constitute cruelty, the conduct complained of should be "grave and weight" so as to come to the conclusion that the petitioner's spouse cannot be reasonable 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 backgrounds 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 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. Cruelty must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the parties to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of the Section 13(1)(i)(a) 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.
12. The Court dealing with the petition for divorce on the ground of cruelty aha to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct has to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling 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 has to be inexcusable, unpardonable, unforgivable or grossly excessive and willful and unjustified act inflicting pain and misery. 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.
13. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. A too technical and hyper-sensitive approach would be counter-productive to the institution of marriage. For coming to a conclusion of cruelty, the Judge must consider the impact of the personality and the conduct of one's spouse in view of the other and all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keep in view the physical and mental conditions of the parties, their character and social status. The courts to do not have to deal with ideal husbands and ideal wives. It has to deal with particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to matrimonial court.
(See Dastane v. Dastane ).
14. One of the major grounds highlighted by the appellant husband is the alleged refusal to inter-course and effort to consummation of the marriage by intercourse. As was observed by Lord Denning, M.R. in Sheldon v. Sheldon (1996) 2 All ER 257, it may be said that if refusal to sexual intercourse is to be regarded as cruelty, it would be opening far too wide a door to divorce. No spouse could have any chance of obtaining a divorce on such ground except after persistent refusal for long period. Failure to comply with one of the essential obligations of the marital life by a spouse would amount to subjecting the other to cruelty. It is one of the essential and principal obligations on the part of the spouse to satisfy the sexual urge of the other, which is natural instinct. Married life without a sexual life will be a curse. Normal sexual life cannot be deserted from a happy marital life. As said by Lord Denning in Kalest Sky v. Kalest Sky 1950 (2)All ER 398 :-
"The willful and unjustifiable refusal of sexual intercourse is destructive of marriage, more destructive, perhaps, than anything else. Just as normal sexual intercourse is the normal bond of marriage, so the willful refusal of its causes a marriage to disintegrate. It gives rise to irritability an discord, to nervousness and manifestations of temper, and hence to the break down of marriage."
On the background facts, learned Single Judge has highlighted as to how the allegation of non-consumation of a marriage or aversion to sex was not established.
He noted that the averments made in para 5 of the plaint clearly establish that it was a desire of the wife to go Mount Abu for honeymoon. It was observed as follows:-
"This clearly shows that it was the appellant who desired to go to Mount Abu for hone mooning. This circumstance alone is sufficient to contradict the respondent's statement about the alleged willful refusal of the appellant to have sexual intercourse with him. On the contrary, respondent (PW1) wants us to believe that he had persuaded the appellant for this trip. Respondent (PW1) has also admitted that in May, 1991, the appellant became pregnant. There is no scope for imaging that the conception of the child could be the result of single act of sexual intercourse and that such an act could be stark animal act unaccompanied by the nobler graces of marital life. In this view of the matter, it is not possible to hold that often the appellant willfully and unjustifiably refuse to have sexual intercourse with the respondent."
15. Great stress is laid on some averments made in the written statements about the drinking habits of the husband and his family members. It was submitted by learned counsel for the appellant that by making such reckless allegations that cruelty has been perpetuated and it has affected the mental health of the husband and his family members. It has to be noted that the averments must be read in the context with which they are made. Over-reacting to an allegation may not in all cases amount to cruelty. Protestation of an injured wife may not amount to cruelty in all cases. Learned Single Judge has looked it at from that angle as is evident from the following observations:-
"... respondent (PW1) has unequivocally admitted in his cross-examination that he and his mother used to take liquor. Viewing the said admission of the respondent (PW1), it cannot be held that the aforesaid assertions are totally unfounded and as such they constitute mental cruelty of such a nature that respondent, situated as he is and in the context of the several relevant circumstances, cannot reasonably be asked to live with the appellant."
16. Though learned counsel for the appellant was vehement in his submission that an unfounded allegation touching basic character of a person, more particularly a lady, is nothing but an act of utmost cruelty. We find that the position is somewhat peculiar here. Statements in the written statement were to the effect that the husband and his family members drink regularly. The husband in his cross-examination as said as follows:-
"Smt Sharda Kanojia is my first cousin. It is correct that Sharda Kanojia along with the husband were invited for dinner at my house. They were invited 2/3 days of my marriage. It is correct that whisky was served in the party. It is incorrect to suggest that respondent was offered whisky at that party. It is further incorrect that my mother, my uncle, Shri Rattan Lal told the respondent that by doing so she had insulted the petitioner's Jija. It is correct that myself and other male members of my family took whisky. It is incorrect to say that my brother's wife Smt. Pooja taken whisky. In our family ladies do not take whisky. However, if somebody is keen to have, there is no objection for that."
In other words, it is accepted that the husband takes liquor and other male members of the family also take liquor. The question was whether the ladies took liquor. Statement of the wife was to the effect that they took liquor regularly. Reply in this regard has been given by the husband to the effect that, in his family, ladies do not take whisky, but if somebody is keen to have it, there is no objection to that. That means, there was an admission that ladies did take liquor. There need not be hairsplitting in such matters, as to whether somebody took liquor regularly or occasionally. Such statements made cannot be said to have the effect of causing mental cruelty on the husband.
17. So far as alleged acts of physical violence are concerned, learned Single Judge has dealt with this matter in great detail analyzing the evidence of the parties. Two incidents alleged to have taken place in quick succession are on 25.12.1990 and 26.12.1990. On the first date, the wife is supposed to have thrown a thali at his mother. In cross-examination, it has been accepted by the husband that he cannot say as to when respondent wife threw thali on his mother. So far as alleged incident on 26.12.1990 is concerned, the allegation seems to have developed and the stand changed at different stages. First it was catching hold of the testicles and pressing it very hard; though in the plaint, a different picture altogether was given and no reason was indicated as to what was the reason for the wife to flare off in that manner without any rhyme or reason. In the evidence, however, it was stated that on the concerned date, his wife went to her parents home and said that they had married her with 'Kanjara' and when he tried to pacify her and at night wanted to have sex, she flared up and caught hold of his neck and pressed with great force; and thereafter she got hold of his testicles and pressed it very hard and said that she would kill him; he saved himself with great difficulty. As has been rightly noted by learned Single Judge, this was an attempt to improve the story with regard to the alleged incident. In the plaint, there was no averment to the effect that wife got angry when the husband tried to have sexual intercourse with her and tried to strangle him. In cross-examination, the husband had stated that during assault, he raised an alarm, which brought her mother to the spot and on her knocking at the door the wife relieved him from her grip. Significantly, it was admitted that both husband and wife slept in the same room after that incident. Learned Single Judge has found it rather unusual that after all these assaults on him, the husband calmly slept in the same room with his wife. The allegations have been rightly characterized to be most unnatural and improbable by learned Single Judge.
18. So far as the abortion aspect is concerned, great emphasis has been laid on the admission of the wife to the effect that the same was done without the husband's consent. In her statement in the Court and in the written statement as well, the reason as to why it had to be done suddenly have been highlighted. It has been specifically stated that on medical advice, the pregnancy was terminated. There is no cross-examination on these aspects and this is of great significance. In addition to that, the admitted position is that the husband got the wife discharged from the hospital and took her to Goa to please her. We, therefore, find no substance in the plea of the learned counsel for the appellant. As has been rightly pointed out by the learned Single Judge, visit to Goa was intended to make the wife forger the trauma of loosing a child prematurely. The effort seems to have been made to bring her back to normalcy both physically and mentally. Some of the photographs exhibited bear testimony to these conclusions.
19. So far as the alleged removal of jewellery is concerned, the learned Single Judge has noted that there was no information lodged with the police and it is not clear as to why the same was not done if the relationship was so strained.
20. As regards the alleged assault on 24.03.1992 is concerned, stand of the husband was that he and other members of his family were beaten by the wife and the others, who accompanied her to his house. A positive stand was taken that because of assault, mother of the husband became unconscious. Here again no report was lodged with the police and there is no evidence to show that she was even medically treated. The falsity of the ground and the attempt to bring in false material on record gets amply established because of a statement made to the effect that brothers of the wife had beaten up, the husband on 09.04.1991. In order to establish that the husband was hospitalized, a document has been filed. A bare look at the same shows that there is no reference to any external injury and on the contrary, it reflects that the husband was taken to the hospital in an unconscious stage and the same was found to have been caused due to "hysteria".
21. In the above background, the inevitable conclusion is that a case for divorce has not been made out and learned Single Judge has rightly held the prayer to be not acceptable. We find no merit in the appeal and it is accordingly dismissed.