Calcutta High Court (Appellete Side)
Pranay Kumar Kundu vs Smt. Rupanjana Kundu on 15 February, 2019
Author: I. P. Mukerji
Bench: Subhasis Dasgupta, I. P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Justice Subhasis Dasgupta
FA 60 of 2018
Pranay Kumar Kundu
Vs.
Smt. Rupanjana Kundu
For the Appellant :- Mr. Asit Barun Raut,
Mr. Tuhin Subhro Raut,
Ms. Ishita Raut, Adv.
For the Respondent :- Mr. Swagata Datta,
Mr. Rajib Lochan Chakraborty, Mrs. Vaswati Chakraborty, Ms. Sneha Chatterjee, Mr. Subhadip Chakraborty, Adv.
Judgment On :- 15.02.2019 I.P. MUKERJI, J.:-
I have had the privilege of reading the draft judgment prepared by my brother, Mr. Justice Subhasis Dasgupta. I am in full agreement with the conclusions his lordship has reached. However, I would like to add a few words of my own. This marriage between the parties which seemingly started on a happy note ended for all practical purposes within three months of marriage. The marriage took place on 3rd February, 2013 by registration under the Special Marriage Act, 1954. The marriage according to religious and social rites was arranged on 4th March, 2013. Why I say that this marriage started on a seemingly very happy note is because this couple had two honeymoons shortly after the marriage. On and from 19th to 25th March, 2013 the parties were holidaying in Puri. Not even a month passed. On 19th April, they were off to Shimla on a tour of Himachal Pradesh. It appears that trouble started between them during this holiday. Not a week passed after the return of the couple from their second honeymoon. On 3rd May, 2013 the respondent/wife lodged a First Information Report with the Officer-in-Charge of Uttarpara Police Station which was registered and a case under Section 498A of the Indian Penal code started against the appellant/husband. What was stated by the respondent in the First Information Report was that immediately after the ceremonial marriage on 4th March, 2013 her husband, father-in-law and mother-in-law started torturing her demanding Rs.2 lakhs as dowry which allegedly was demanded from her parents at the time of her marriage. It seems that immediately after their return from Himachal Pradesh the parties started residing in a flat in Uttarpara. The respondent stated in the First Information Report that the night before the First Information Report was prepared, the appellant had asked her to call her parents by telephone to deliver Rs.1 lakh immediately. As the respondent refused to telephone, she was physically assaulted and threatened with death. The gold jewellery and other items of furniture that were made over by her parents to the appellant's parents were itemized below the First Information Report. Later it transpired that the holiday in Puri was incident free. Discord between the couple started in Shimla. According to the evidence of the respondent, she was kept confined by her husband in a hotel in Shimla called Pitter Hoff for 2 to 3 days and was not provided proper food. The husband kept on demanding Rs.2 lakhs as the unpaid dowry amount. The matrimonial home was the Uttarpara flat. There, she was repeatedly physically assaulted which she bore in silence. There is some discrepancy in the testimony of the wife. The evidence given by the husband reveals that the couple only stayed for one night in Pitter Hoff Hotel in Shimla. The phone call details of the wife's mobile phone reveal that she made several calls to her parents.
It also appears from the evidence of the husband (Paragraph 39) that the wife ceased to live with him after 3rd May, 2013.
Now, the only question which falls for consideration is whether in this brief marriage between the parties, the respondent/wife was subjected to mental torture so as to entitle her to obtain divorce under Section 27(1)(d) of the Special Marriage Act, 1954. There is no dispute whatsoever that cruelty includes within its ambit mental cruelty. The allegation of the wife is that she was subjected to great mental cruelty in these three months of marriage. The Concise Oxford English Dictionary defines cruelty as cruel behaviour or attitudes. It also signifies behaviour which causes physical or mental harm to another whether intentional or not. Cruel according to that dictionary is described as disregarding or taking the pleasure in the pain or suffering of others or causing pain or suffering. In my opinion, any action, conduct or behaviour of a person causing pain or suffering to his spouse in his or her mind or affecting a person psychologically or psychiatrically is mental cruelty. An intention to cause it must be involved. In V. Bhagat Vs. D. Bhagat reported in AIR 1994 SC 710 (Paragraph 17), while defining mental cruelty the Supreme Court has remarked "what is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case." (As per Justice B.P. Jeevan Reddy). In my view, whether a person has subjected his spouse to mental torture is an assessment to be made by the Court in a subjective manner. The incidents of mental torture do not form a closed category. It would depend from case to case on the subjective satisfaction of the learned Judge trying the case. When the Court finds that a spouse has been subjected to mental torture it will relieve him or her from the cause of it, i.e. marriage. It grants dissolution of the marriage by pronouncing divorce. In this case the marriage lasted just 3 months from 3rd February to 3rd May, 2013. There is ample evidence that even during their honeymoon in Shimla the wife was very unhappy. That she was detained for 3 days in a hotel room may not have been proved but it is quite certain that the husband made dowry demands on her to bring Rs.2 lakhs from her parents, during the honeymoon. Otherwise, why would the wife, immediately on her return lodge a First Information Report with the police accusing the husband of demanding dowry. By treating marriage as a transaction or sale of a commodity, a person can reach the greatest mental pain to his spouse. This is manifested in our society by demand for dowry, as if the wife's family has to pay for the stay of their daughter in the husband's house and compensate him for accepting that liability. A sense of insecurity, pain and suffering is even more likely if this kind of conduct is shown by the husband during the honeymoon. The wife also deposed that immediately on their return from Shimla the husband started renewing that demand for Rs.2 lakhs and physically beat her up. In my view, the learned Judge of the Court below has very rightly appreciated the facts and held that the respondent/wife was subjected to mental cruelty and granted a decree of dissolution of marriage on this ground. For the reasons given above, I would affirm the judgment of the Court below and dismiss the appeal.
The respondent is given liberty to make an application for permanent alimony under Section 37 of the Special Marriage Act, 1954.
(I. P. MUKERJI, J.) Subhasis Dasgupta, J. :-
This appeal is against the judgment and decree dated 29th August, 2017 passed by the learned Additional District Judge, Fast Track Court-1, Sealdha in Matrimonial Suit No. 20 of 2015 granting dissolution of marriage by decree of divorce.
The Trial Court perceived that acts of appellant/husband as a complete reflection of attitude towards commissioning mental cruelty upon wife/respondent, spread over couple of months after the marriage, the justifiability of which, is a subject matter of assail in this case.
This is a very unfortunate case, where admittedly marital life lasted for short spell i.e for a couple of months. The appellant/husband working as System Analyst tied his knot with respondent/wife by getting their marriage registered on 3.2.2013 under the provisions of Special Marriage Act 1954. It was subsequently celebrated socially on 4.3.2013. Though marriage was registered under Special Marriage Act, guardian of both parties in course of negotiation visited each other's house for a good number of times prior to its social celebration. In the petition for divorce filed before the Trial Judge, it was averred that respondent/wife was taken to appellant/husband's house on 5.3.2013 for leading a peaceful marital life. During continuance of conjugal life both parties admittedly visited together Puri from 19.03.2013 to 25.03.2013 and further departed to Shimla from 19.04.2013 to 28.04.2013.
Marital discord and total non-compatibility cropped up in course of their visit to Shimla. It was pleaded that when they left for Shimla basically for honeymoon, the appellant/husband subjected wife/respondent to cruelty by keeping the wife confined in the hotel under lock and key, and by not providing any food to her and also by attempting to push her down from one of the hills top. The cause of cruelty, as set forth, was ascribed to be post marital demand by husband to the tune of Rs. 2,00,000/-, and non- satisfaction thereof. The respondent/wife had to receive and sustain physical assault, abuses in the hands of her in-law's members including appellant/husband over such issues for days together in her matrimonial home. All efforts of wife to get in touch with her parents from matrimonial home went in vain, as she was not allowed to make contact with her parents from her matrimonial home. The wife/respondent on 3.5.2013 found an opportunity of contacting her parents for a mistake of the appellant/husband and in law's members, as they forgot to lock the door of her room. She made contact with her parents after leaving the matrimonial home under a compelling circumstances making full utilisation of opportunity. Her parents then rescued the respondent/wife from her matrimonial home, and saved her from the wrath of her in law's members including appellant/husband. Subsequently, a criminal case under Section 498A/323/406 IPC was lodged against the appellant/husband and in law's members, which is still pending. The appellant/husband, as pleaded in his written statement, denied the allegations of having committed any cruelty over a demand of money. The specific defence raised was that a few days after marriage the wife/respondent turned to be very much rude, cruel, annoying and reluctant to show any kind of affection, and when enquired about reason, the behaviour exposed to appellant/husband by the wife caused very much annoyance to appellant/husband. The wife/respondent persuaded husband/appellant to become domesticated son-in-law, and insisted on staying together in the paternal home, which the appellant/husband refused to concede. The appellant/husband, however, started living with his wife in a separate flat at Uttarpara with his wife. Since he was willing to continue his conjugal relationship with wife/husband, he filed a separate proceeding for restitution of his conjugal right, which was subsequently withdrawn. He wanted to get back his wife to continue their conjugal relationship upon cancellation of decree of divorce, already granted by Trial Court.
Learned advocate for the appellant/husband argued that the factum of cruelty having not been proved beyond reasonable doubt to the satisfaction of the Court, the onus cast upon wife/respondent could not be said to be have been discharged. Adverting to receipt of hotel of Himachal Pradesh Tourism Development Corporation and in particular Peterhof (Exhibit-B), argument was raised that since the parties together stayed in the hotel Peterhof, Shimla for 18 hours only (approx), the unfounded allegation of subjecting the wife/respondent to mental cruelty by keeping her confined and without providing her foods in hotel Piterhof and attempting to push her down from one of the hills top for the non-satisfaction of the post marital demand of Rs.2,00,000/- were all afterthought, concocted and devoid of any substance. It was contended in course of argument that the oral testimony of respondent/wife, examined as PW1, was not at all believable, trustworthy, as she spoke in her evidence that she had been denied of making any contact with her parents from her matrimonial home, but the call list of mobile phone of wife/respondent (exhibit-C) would reveal that on 3.5.2013 she made call to appellant/husband at about 8:19:06 hours with a duration of 6.50 minutes, which alone was sufficient to reveal that wife herself had a separate mobile phone of her own, which she strategically kept concealed in the interest of the case, and the Trial Court thus made a mistake in not discarding her testimony and in coming to an interference of causing cruelty upon wife, perceptible from the acts and conducts of the appellant. It was further focused with emphasis during argument that acts and incidents, complained of were not at all grave and weighty, something more serious than ordinary wear and tear of marriage life, and as such the decree of divorce on the ground of perceptible cruelty could not be allowed to sustain.
Learned advocate for the respondent/wife supporting the decree of divorce of Trial Court submitted that mental cruelty could cause even more serious injury than the physical harm, and create in the mind of injured such apprehension, as is contemplated in the Section. Thus according to respondent/wife that wilful treatment meted out to wife by husband caused suffering in her mind by way of such apprehension in such a manner as to render the continued living together of complaining spouse/ harmful or injurious having regard to the circumstances involved in the case. For appreciation of rivalised submissions raised at the Bar, I carefully considered the petition, written statement, evidence adduced by the parties, both oral and documentary, and the judgment of Trial Court. In this case the respondent/wife examined herself as PW1, and her father as PW 2 in her corroboration. The appellant, however, chose to examine one witness only by examining himself as DW1. The Court below formulated following points for the purpose of decision in this case.
1. Whether the suit is maintainable in its present form and prayer?
2. Whether the plaintiff has any cause of action for filing of this case?
3. Whether the plaintiff was subjected to physical and mental torture, cruelty by the respondent without any sufficient cause?
4. Whether the plaintiff has any cause of action for filing of this case is entitled to have any relief, as prayed for?
5. Whether the relief or reliefs, if any the plaintiff is entitled to get as prayed for?
The seminal question required to be addressed by us, is whether the decree of divorce granted by the Trial Court should be interfered with or not. At the very threshold of this case it is to be put on record that the chance of reconciliation and mediation thereafter for more than once turned to be futile exercise. Even before this Court in the midst of hearing, I persuaded both the parties through their learned advocates to forget their matrimonial differences, irrespective of whatsoever had happened with a noble approach to reconcile their differences, when it was revealed that the parties were not even prepared to go for a settlement aiming at rejoining their conjugal life. In this view of the matter, the complaining spouse (wife) cannot be expected to be compelled to live together in violation of her personal liberty.
As regards, the first point raised by appellant pertaining to not proving the factum of cruelty in discharge of the onus, it appears that learned Trial Court proceeded to hold that the contention set forth in the petition for divorce could not be supposed to be proved with mathematical precision, or to the extent of proof of reasonable doubt to the satisfaction of the Court. The question, therefore, left to be decided is whether principle of law adhered to by the Trial Court, while determining the case for divorce in a matrimonial proceeding is with the sanction of law or not? The wife, examined as PW1, testified her averments contained in the petition for divorce by adducing evidence, which was ratified by the version of PW2, the father of wife. The oral testimony of witnesses was attempted to be ratified by document, marked as Exhibit-2, FIR. Upon consideration of the oral testimony of witnesses, examined by the respondent/wife together with the exhibited documents, the Trial Court proceeded to draw inference pertaining to commission of mental cruelty upon the respondent/wife by the appellant/husband adhering to the principle of preponderance of probability under Section 3 of the Evidence Act. The argument of appellant was replied by respondent submitting that the concept of proof of beyond reasonable doubt to the satisfaction of the case would be applicable in a case of conducting criminal trial, where the standard of decree of proof would be much more higher than the standard of proof required in the instant case.
It would be profitable here to refer the relevant paragraphs of a decision Dr. N. G Dastane v. Mrs. S. Dastane reported in AIR 1575 SC 1534, wherein it was decided that the matrimonial proceedings are essentially of civil nature, in which satisfaction of the Court has to be reached upon determination of a fact on preponderance of probabilities, and not under the principle of beyond reasonable doubt to the satisfaction of the Court, what is strictly applicable in criminal cases.
The relevant paragraphs are as follows:-
"24.The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Sec. 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this of process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. Blyth v Blyth, 1966-1 ALL ER 524 at p.536." But whether the issue is one of cruelty or of a loan on a pro-note, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged.
25. Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials or trials involving inquiry into issues of a quasi-criminal nature. A criminal trial involves the liberty of the subject which may not be taken away on a mere preponderance of probabilities. If the probabilities are so nicely balanced that a reasonable, not a vacillating, mind cannot find where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature."
The findings thus reached by the Trial Court, while making appreciation of the evidence, as regards proof of cruelty in any form so as to discharge the due onus of wife/respondent, under the principle of preponderance of probabilities, would thus go unaltered.
Several questions surfaced at the instance of appellant pertaining to the allegation of subjecting the wife/respondent to mental cruelty in course of her visit to Shimla by keeping her confined hotel without supplying her any food, making attempt to push her down form one of the hills top and putting wife to suffer and sustain cruelty in any form in closed door room of matrimonial home over the issue of demand of money and its non-satisfaction thereof, on the basis of a unfounded and concocted allegation which are supposed to be addressed and answered by us accordingly, it appears that learned advocate for appellant persuaded us to believe relying on hotel receipt, marked as Exhibit-B, issued by the hotel Piterhof, Shimla, Himachal Pradesh that when stay in hotel was for brief period i.e. for 18 hours (approx), there left no sufficient occasions to cause any cruelty in any manner whatsoever, and it was, thus, manufactured subsequently to serve out the purpose of the wife/respondent. Exhibit-B, the receipt issued by the hotel Piterhof, under the Himachal Pradesh Tourism Development Corporation, according to the appellant is a sheet anchor, which itself is sufficient to controvert the allegation of causing cruelty upon respondent/wife in any manner whatsoever in course of visit to Shimla, Himachal Pradesh. Upon perusal of such hotel receipt, it appears that parties together boarded hotel on 21.04.2013 at about 13:53 hours and had their departure from Piterhof hotel on the following date i.e. on 22.4.2013 at about 09.04.02 hours.
The evidence of wife PW1 left materials to show that she had been confined without providing her any food at Piterhof hotel, Shimla only and not in any other hotels of Himachal Pradesh. The evidence was there that the wife did not complain of such abnormal behaviour of her husband, indicative of commissioning mental cruelty, to any hotel boys, or any people of the hotel. The abnormal treatment, the wife received, was admittedly not brought to the attention of any police personnel of Shimla or Air-Port police personnel immediately. Though the appellant/husband endeavoured sincerely to controvert the allegation of causing cruelty in any manner whatsoever upon the respondent/wife by producing hotel receipt, collected during the course of visit to Himachal Prodesh, but there was nothing to show about providing or supplying food, on purchase from anywhere, to wife/respondent during her stay in hotel Piterhof, though for brief period.
The cause of putting the wife to cruelty in any form, as testified in evidence of respondent/wife, was the post marital demand of Rs.2,00,000/- by husband and non-satisfaction thereof. Admittedly the wife/husband came to her matrimonial home on 5th March, 2013 for leading a peaceful conjugal life. Besides the date of 'Asthamangala', popularly observed after marriage when married couple would visit together in the paternal house of wife, parties to this case visited together outside on two occasions, one for visit to Puri for the period from 19.03.2013 to 25.03.2013 i.e. for 7 days, and another for visit to Shimla for honeymoon purpose for the period from 19.4.2013 to 28.4.2013 i.e. for 10 days. The FIR lodged by the wife/respondent on 4th May, 2013 after she was compelled to live matrimonial home receiving mental cruelty for days together, left materials to show that wife was put to face cruelty in any form at least in her matrimonial home by her in law's members including the appellant/husband over the issue of non-satisfaction of post marital demand to the tune of Rs.2,00,000/-. Evidence was transpired specifically in the cross-examination of PW1/wife, that she was severely tortured by her husband, and in consequence thereof, she became a mental patient for her mental equanimity having lost. The cause of cruelty, as testified by PW1, received substantial support from the FIR lodged by wife, marked as Exhibit-
2. There was categorical evidence in the cross-examination of PW1/wife, that she would usually sought, when she was put to face torture and cruelty in the hands of her husband in a closed door of her room, and as there was no neighbours around her matrimonial home, so none could hear her shouting. It was categorical evidence of PW1/wife that she was not willing to go with her husband in her matrimonial home, as there was some life risk to her. The testimony of wife/respondent may be discredited upon proof of circumstances, contrary to those already transpired, at the instance of husband/appellant upon pleading specific averment in written statement followed by proof of the same. The evidence of the husband, DW-1 however, failed to fetch sufficient materials to reveal that the room in which the petitioner was put to face cruelty was surrounded by several houses, occupied by close neighbours having had their opportunity to know about the incident complained of. In the absence of such stand having established in the testimony of evidence pursuant to the specific averment having taken to that effect, it would be very difficult to disbelieve the testimony of PW1/wife, that the cruelty, if any, inflicted upon the wife/respondent, was supposed to be experienced by many adjoining neighbours of the matrimonial home for having had their opportunity to know to that effect. It was not the case of appellant also. Though, the appellant/husband stated in his version that he was willing to take back his wife for rejoining again to his matrimonial life with respondent/wife, but surprisingly the prayer for restitution of conjugal life, filed by the appellant/husband, subsequent to the institution case under Section 498A/406/323 I.P.C., was withdrawn by the appellant/husband for the reasons best known to the appellant. The withdrawal of the proceeding for restitution of conjugal right by appellant/respondent voluntarily was highly suggestive to reveal the true intention, contrary to that already pleaded and endeavoured to establish during the trial of this case. It was not the case of appellant that subsequently a proceeding for restitution of conjugal right was again instituted at least to give effect to his intention, matching with the defence of the case attempted to be established.
A notice dated 29.5.13 through advocate was, however, seen to have been served upon the respondent/wife, after the wife had left the matrimonial home on 3.5.13 under compelling circumstances. It was not a single occasion, when the appellant/husband made phone call to wife/respondent assuring her to give all security of life to her, that she, according to her own assessment, felt short of. Mere oral assertion claiming that husband was willing to take back his wife giving all security to her, which she needed for her survival on this earth, without translating his true intention into physical and positive action would not be sufficient enough for the purpose, contemplated by husband, and such assertion appears to be far from satisfactory.
The stand developed in the written statement as well as evidence adduced by the appellant/husband was that since appellant/husband refused to concede to the proposal of respondent/wife to become a domesticated son-in-law, the behavioural pattern of wife suddenly got changed, as she preferred to stay in her parental house leaving matrimonial home in exercise of her own choice without discharging the marital obligation to appellant/husband. My attention was drawn to the FIR marked as Exhibit-2, where according to appellant, there was material suppression of facts pertaining to the visit of Himachal Pradesh and the treatment, alleged to have been meted out to her by her husband, causing her to suffer cruelty in any form remained omitted, and it was omitted presumably on the ground that nothing serious happened there besides wear and tear of marital life in course of visit to Shimla. True it is that such episode pertaining to the visit of Himachal Pradesh remained omitted in the FIR. It is not the settled principle of law that each and every details including all episode of marital life have to be necessarily put in the FIR, initiated basically to start a prosecution under Section 498A/323/406 I.P.C. In that view of the matter the reasoning offered by the appellant regarding suppression of material facts in the FIR deserves no acceptance. The appellant/husband further challenged the version of respondent/wife, basically founded upon the allegation of causing cruelty, banking upon the certified copy of chargesheet, marked as Exhibit-A, wherein the investigating officer observed that no external injury could be found on the person of the respondent/wife in course of submission of his chargesheet. Thus, according to appellant in the absence of any proven injury on the person of the respondent/wife, the allegation of causing cruelty over a demand of money for a continuous period of time was without any substance.
From the findings reached by the Trial Court, it appears that the case having its substratum rested upon the allegation of causing physical cruelty could not be successfully proved, and however, upon evaluation of the entire marital life in the context of the abnormal treatment, that she/wife, received and had to sustain for days together and its consequent impact left on the mind of the wife, learned Court below proceeded to draw an inference that such nature of conduct and its effect on the complaining spouse caused reasonable apprehension on her mind that would be harmful and injurious to live with the other (the husband).
Had it been a pure case of causing physical cruelty, question of fact and the degree of causing physical cruelty would have been a matter of consideration, but in case of mental cruelty such standard of assessment cannot be made with arithmetical precision and exactitude, and its is matter of inference that has to be drawn upon viewing the entire episode of marital life of the parties. In his sincerest effort of appellant to challenge the decree of divorce granted on ground of mental cruelty, my attention was further drawn to a piece of entry made in the diary, maintained by the wife/respondent, dated 29.4.2013, (Exhibit-E), wherefrom it would appear that the respondent/wife was thought of requisitioning some household items for the use of matrimonial home, and adverting to such unilateral entry of diary, dated 29.4.2013 of wife, learned advocate for the appellant persuaded us to believe that there had been no matrimonial discord between them at least till 29.4.2013, the day after the visit of Shimla, Himachal Pradesh.
The argument raised by the appellant was thus spearheaded to suggest that the incompatibility of the parties, the wear and tear of the matrimonial life, for any reason whatsoever was not at all weighty and grave with a dimension of very serious in nature, such wear and tear of the conjugal life, if any, was condoned by respondent/wife herself, otherwise she would not have contemplated to make any requisition for household items for the use of matrimonial home. It is, therefore, for us to decide whether the respondent/wife virtually condoned the acts and conducts of her husband, now complained of, when she at least on 29.04.2013 contemplated to make requisition for household items by doing an entry in her diary. Admittedly the respondent/wife being accompanied by husband returned from Shimla, Himachal Pradesh trip on 28.4.2013 i.e. day before making such requisition for household items. Condonation connotes forgiveness of the matrimonial offence and the restoration of offending spouse to the same position, as he or she occupied before the commencement of matrimonial discord. Condonation is always subject to an implied condition that the offending spouse will not make recurrence of such acts and conducts, not akin to peaceful enjoyment of conjugal life, either of the same variety, as the one condoned, or any other variety. The evidence of wife PW1 indicated that on the day before she had left her matrimonial home under compelling circumstances, she was subjected to physical assault, abuses in a closed door room by her appellant/husband, the impact of which was even noticed by the father of the wife/PW-2 on the person of the injured wife, when the father rushed to matrimonial home of his daughter following receipt of intimation form his daughter seeking rescue. Even on assumption, as per argument advanced by the appellant, that respondent wife had already condoned the preparation of cruelty on her in any form, the appellant/husband by his subsequent conduct, manifested through the acts and conducts, complained of again on 2.5.2013 forfeited the condition of forgiveness thereby reviving the original cause of action for dissolution of marriage on the ground of cruelty.
It was arduously argued by appellant with all emphasis that testimony of PW1, which was relied upon by the Trial Court, would not inspire any confidence on the sole premise that the wife/respondent purposefully made suppression of fact with regard to possession of her own mobile phone in this case with cooked up materials alleging that the wife/respondent was not allowed to communicate with anybody else from her matrimonial home. To facilitate the stand appellant made reference to call register of mobile phone, issued by Airtel mobile services, Exhibit-C, and certified copy of deposition of wife/PW1 (Exhibit-D), said to be adduced in connection with a proceeding under Section 498A I. P.C. initiated at the instance of wife. Banking upon those two exhibited documents, argument was forwarded contending that the wife respondent was not true to her version and Trial Court below committed a serious mistake in attaching confidence on her testimony. The call register revealed that on 3.5.13 the wife at about 8.19 hours called to her husband/appellant for a duration of 6.50 minutes, and suggested accordingly that it was itself sufficient to reveal that respondent/wife had a mobile phone in her possession, prior to she left her matrimonial home, and what she exactly stated in her evidence, adduced in connection with a 498A I.P.C. proceeding. The evidence of wife, adduced in connection with a 498A I.P.C. proceeding, is not complete one, as wife is yet to face further cross-examination. The entry of call register of mobile phone together with, the testimony of wife adduced in a 498A I.P.C. proceeding would not attract one and only conclusion that at the material point of time, when she continued to stay in her matrimonial home, she had a mobile phone in her possession and that too in working or operative condition, when there are several other probabilities with regard to the availability of mobile phone, conducive atmosphere in the matrimonial home suggestive to make calls, and the soundness of the mobile phone having sufficient connectivity/coverage, charging condition of the battery and further the financial capacity of the person, said to be possessing mobile phone in full working and operative condition. In the absence of any such evidence having transpired in elimination such other probabilities, the argument advanced pertaining to the conclusion that the wife/respondent had a mobile phone in her possession in the matrimonial home and that too in operative condition deserves no acceptance, particularly when it was the evidence of wife/appellant that she was not allowed to communicate with her parents from her matrimonial home.
Reference was made by appellant in his move against the decree of divorce, to decision of Apex Court rendered in the case of Dr. N. G Dastane v. Mrs. S. Dastane (supra) that the acts and conducts complained of on the part of the appellant/husband were simple trivialities, synonymous with reasonable wear and tear of marital life, plain and simple incompatibility in their mental understanding, and same could not be described to have constituted mental cruelty, and further such acts were not something more serious than ordinary wear and tear of marital life, not at all grave and weighty. Reliance was thus placed on para 34 of the said judgment of Apex Court which may be quoted as follows:
"34. We do not propose to spend time on the trifles of their married life. Numerous incidents have been cited by the appellant as constituting cruelty but the simple trivialities which can truly be described as the reasonable wear and tear of married life have to be ignored. It is in the context of such trivialities that one says that spouses take each other for better or worse. In many marriages each party can, if it so wills, discover many a cause for Complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage. We will therefore have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvas."
Reliance was further placed by appellant on the decisions of the Apex Court rendered in the case of A. Jayachandra V. Aneel Kaur reported in AIR 2005 SC 534, Naveen Kohli V. Neelu Kohli reported in AIR 2006 SC 1675, Smt. Mayadevi V. Jagdish Prasad reported in AIR 2007 SC 1426 to make the stand more strengthened that acts complained of without being grave and weighty could not be said to constitute mental cruelty. Those decisions referred above dealt with by the Apex Court described the mode, manner and extent, when the mental cruelty could be effectively construed in a given circumstances of the case, which necessarily has to be grave and weighty and something more serious than ordinary wear and tear of marital life. The learned advocate for the appellant having taken refute to such decision of Apex Court sincerely made his efforts to establish that the decree of divorce granted by the Trial Court was contrary to the law, as the conduct complained of on the part of the appellant/husband was nothing more than wear and tear, incompatibility in their understanding, not something more serious than ordinary wear and tear of marital life and it was not at all grave and weighty. To throw challenge against the decisions, referred above the appellant shelter was taken by respondent /wife on a decision rendered by Apex Court in the case V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337 in support of the stand that the mental cruelty caused to be suffered by wife/respondent was of such mature and dimension that the parties cannot be reasonably expected to live together, even to endure such extent of undesirable and abnormal treatment of husband. It would be relevant her to refer the relevant excerpt of para 16 of the said judgment which may be quoted as hereunder:-
"16. 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. In other words, 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 is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, 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 which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.
Argument was advanced at the instance of respondent/wife that personal life and liberty of a person cannot be subjected to deprivation, except according to the procedure established by law under Article 21 of the Constitution. Thus referring to Article 21 of the Constitution of India, it was submitted that when the complaining spouse (wife) felt insecured and apprehended reasonably that her life might be at stake in the event she was compelled to join her matrimonial home, because the essence of life, what is called heart/sole having considerably deteriorated and degenerated to such an extent following receipt of abnormal behaviour/treatment of husband, indicative of commissioning mental cruelty, for days together on the ground of non-
satisfaction of post marital demand, the complaining spouse (wife) cannot be reasonably expected to live together with her husband at the cost of her live.
The extent of mental cruelty, as argued by respondent/wife cannot be assessed with all exactitude, and it is act and conduct and abnormal treatment extended to wife by husband, complained of and the consequent effect on the mind of the complaining spouse, would be of highest significance.
The Apex Court in the case of Dr. N.G. Dastane v. Mrs. S. Dastane (supra) as referred by appellant, observed as follows:
"The Enquiry therefore has to be made whether the conduct of charges as cruelty is of such character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for her to live with husband".
The apex Court further observed in the case of A. Jayachandra V. Aneel Kaur reported in (2005) 2 SCC 22, the relevant text of which may be mentioned hereunder:-
"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".
The question whether act complained of was a perpetration of cruelty ,is to be determined from the facts asserted by both the parties, and the matrimonial relation held between the parties. While determining such cruelty particularly the mental cruelty, the culture, upbringing, educational status in life level of sensitivity of complaining spouse and many other matters are of great concern.
The apex Court has given certain illustrative examples in the case of Samar Ghosh v. Jaya Ghosh in connection with appeal (civil) 151 of 2004 decided on 26.3.2007 reported in (2007) 4 SCC 511 wherefrom inference of mental cruelty can be drawn. The Apex Court itself observed that those examples are illustrative and not at all exhaustive. The Apex Court further considered several decisions, already rendered and operative in the field of mental cruelty, while exemplifying some illustrations. The case of Dr. N.G. Dastane v. Mrs. S. Dastane (supra) , as referred by appellant, was also noticed by the Apex Court including the case of V. Bhagat v. D. Bhagat (Mrs.) (supra), as referred by the respondent with many other cases.
Before identifying such illustrative examples, the Apex Court in the case of Samar Ghosh v. Jaya Ghosh (supra) made some observations which may be delineated as follows:
"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 noticed 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 of secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party."
In my considered view, I thought it appropriate to reproduce some of the illustrations set out in the case of Samar Ghosh v. Jaya Ghosh (supra) for the purpose of decision of this appeal.
"(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.
(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.
(xiv) Whether there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bound is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to server 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."
The trial Court in the case in hand evaluated the entire episode of marital life of instant fighting couple in context with the acts and conducts complained of and its consequent effect/impact likely to occur in the mind of complaining spouse/wife. Regard being had to the upbringing of the parties, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system, finally an inference was drawn that the treatment meted out to wife/respondent by her husband/appellant was not only abnormal, but it was quite just and sufficient to cause reasonable apprehension in the mind of complaining spouse (wife) about her mental welfare, and what she exactly categorically revealed in her cross-examination that she felt insecured as there was reasonable apprehension of her life to be endangered in the event she was made to reunite with her erring husband. It was in this background Trial Court held upon viewing the entire marital episode that it would be harmful and injurious to live by the complaining spouse (wife) with other. The enquiry contemplated in the decision of the Apex Court, as referred hereinabove, presumably was prerequisite on the part of the Trial Court, to be had from the consideration of entire marital life of the fighting couple, without which inference that was reached here by the trial Court would not have been made possible.
Indubitably the marital life of the instant fighting couple lasted for small spell i.e. for a couple of months. The complaining spouse (wife) with a high hope for having a peaceful conjugal life visited her matrimonial home on 5.3.13. The wife undenyingly left her matrimonial home on 3.5.13. Submission was candidly made at the instance of appellant that since the marital life of the complaining spouse was for very brief period, the wife could have reasonably tolerated it, as it was not so much grave and weighty. It was thus suggested that as the wife had predilection towards staying in her parental house leaving the matrimonial home, so deliberately she left the matrimonial home without caring for a very short spell of her marital life.
The wife, in the instant case, was taken to Shimla on 19.4.13 for honeymoon purpose when, she was put to suffer cruelty, already discussed. Such type of treatment, extended to wife, was not only abnormal, but contrary to ordinary course human conduct, being reprehensible and censored, because during honeymoon period, may be for brief period, a married couple will be expected to carry all vibrancy of life with full blossom and enthusiasm. The subsequent conduct of appellant/husband meted out to wife after she was brought to her Uttarpara residence was not only abnormal but unbecoming also. The Apex Court while setting out certain illustrative examples of mental cruelty in the case of Samar Ghosh v. Jaya Ghosh (supra) noticed also the case Vinita Sexena v. Pankaj Pandit reported in (2006)3 SCC 778. In the case of Vinita Sexena v. Pankaj Pandit(supra), it was observed by the Supreme Court, which may be referred as hereunder:
"As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home".
The act complained of by the spouse (wife) herein this case demonstrating abnormal treatment of husband with high gravity, intensity, and its consequent stigmatic effect left on the mind of the injured wife, meted out to her, would be of highest significance, irrespective of the numerical count of such incidents or only on the continuous course of such conduct. The spell of marital life may be one of the attending circumstances, but it is not always crucial and alone determinative in a case, like the instant one, where deleterious effect on the mental welfare of injured wife assumes a critical dimension of reasonable apprehension of her life by reason of abnormal treatment meted out to her, that it would be harmful and injurious for wife to live with the other (husband). It is of such a magnitude that it paves the way to infer inevitably that deleterious effect caused on the mind of wife is an outcome of subjecting the wife to suffer mental cruelty, meted out to her by husband from his acts and conducts.
In the background of the case, abandonment of individual responsibility by not discharging the marital obligation of wife to her husband for the sake of protection of her personal life and liberty, guaranteed under Article 21 of Constitution of India, cannot be construed to have offended the age old notion, conceived and conceptualised regarding a marriage, as a social institution, is an affirmance of civilised social order, where two individuals have pledged themselves to the institutional norms and values and promised mutually to each other for creating a very strong bound to sustain and maintain marital obligation. The argument advanced by respondent/wife adverting to Article 21 of Constitution of India on this score has a strong force to sustain. Feeling of anger, disappointment and frustration, reasonably developed in the mind of wife/respondent, caused by the undesirable conduct of appellant/husband will not necessarily call upon wife/respondent to endure such conduct as a part of normal human life.
In the given circumstances of the case, the evidence adduced by the appellant/husband did not inspire any confidence to Trial Court presumably on the premise that a married wife would not leave apart from her husband forgoing the protection and shelter of her husband, had there not been a just reason compelling her to stay away from her husband.
It is discernible from the facts and circumstances involved in this case that the appellant/husband never spent one (1) minute together, far to speak of bringing her back physically after the wife/respondent had left her matrimonial home. The subsequent conduct of the appellant/husband paved the way for widening the rift between them. By this time the vibrancy of life of this fighting couple can be irresistibly concluded to have been disappeared. The complaining spouse has been residing in her parental house, since 3.5.13, for bitterness of their matrimonial relation which was not only grave and weighty, but something serious than original wear and tear of marital life and beyond repair.
In my studied and critical appreciation of the evidence adduced by this parties to this case, I am of the considered view, that marital bond had already been ruptured beyond repair, because of mental cruelty caused by the appellant/husband. The irresistible conclusion is that the inference reached by the Court below while granting decree of divorce on mental cruelty would remain uninterfered with. I would not have painstakingly reappreciated the evidence including the exhibited documents, as court of first appeal, had there been required and sufficient discussion of the Trial Court with reference to exhibited documents, relied upon by the appellant.
In the result the appeal fails, and accordingly dismissed. Urgent certified photo copy of this judgment and order, if applied for, be furnished to the appearing parties on priority basis upon compliance of necessary formalities.
(Subhasis Dasgupta, J.)