Himachal Pradesh High Court
Sunil Dutt Sharma vs Sangeeta Sharma on 18 August, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO(HMA) No. 415/2007
Reserved on: 17.8.2015
Decided on. 18.8.2015
.
_________________________________________________________________
Sunil Dutt Sharma ..Appellant
Versus
Sangeeta Sharma ..........Respondent
_________________________________________________________________
Coram:
of
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 yes.
For the Appellant
rt : Mr. Neeraj Gupta, Advocate.
For the Respondent : Mr. Vinay Thakur, Advocate.
_________________________________________________________________
Rajiv Sharma, Judge:
This appeal has been instituted against Judgment dated 11.7.2007 rendered by learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, Himachal Pradesh in HMP No. 18-P/04/01.
2. "Key facts" necessary for the adjudication of the present appeal are marriage between the parties was solemnised on 19.10.1994 at Amritsar, Punjab. Parties lived together at Dharamshala and Thakurdwara District Kangra after marriage. A daughter was born on 11.6.1996. Parties lived happily at Dharamshala till 24.12.1996 lastly at Thakurdwara at Kangra.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 2Respondent joined government service as a teacher in Government High School Ghar, Tehsil Palampur at 19.8.1996. Appellant was posted in State Bank of Patiala Dharamshala since 19.6.1995.
.
Respondent started insisting the appellant to get himself transferred to Amritsar so that parents of the respondent could be looked after. He showed his reluctance. She threatened to commit suicide in order to get her request conceded to. She also wrote a of letter dated 15.10.1995. Respondent started leveling false allegations against the appellant that he and his family members were demanding dowry from the respondent. Appellant, in order to rt bring the child and the respondent, went to Amritsar on 5.1.1997.
Respondent refused to accompany the appellant. Till 24.12.1996, respondent and her parents have never complained of the ill-
treatment of the respondent. He again went to Amritsar on 15.4.1997. He came to know that respondent got herself aborted.
Respondent filed a complaint dated 30.8.1997 to the Senior Superintendent of Police, Kangra at Dharamshala. Complaint was also referred to Chief General Manager, State Bank of Patiala. She also filed a false complaint against him, his parents and his sisters under Section 406, 498A IPC in the Court of Chief Judicial Magistrate, Amritsar. Matter was got transferred from Amritsar to Gurdaspur. Summoning orders of few of accused were also quashed by Punjab & Haryana High Court. Appellant was maligned by the respondent. Police used to call him to the police ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 3 station. Respondent was transferred to Government High School Aund, Tehsil Nurpur in 1998. He remained under Depression.
Respondent has deserted the appellant for more than 2 years .
before filing the petition without reasonable cause. Petition was contested by the respondent. According to the averments made in the reply, appellant has earlier filed a petition for divorce under Section 13 of the Hindu Marriage Act on 18.3.1998. It was decided of on 11.12.2000. It was specifically averred that neither respondent nor her parents were desirous of the appellant getting himself transferred to Amritsar. The appellant has never come to the rt respondent's house at Amritsar on 5.1.1997. She never refused to accompany him. It is also denied that appellant visited the house of the respondent on 15.4.1997. Complaint to the Superintendent of Police was based on true facts. Complaint filed before Chief Judicial Magistrate was pending. She has never deserted the appellant. Rather it was appellant who has deserted the respondent. Appellant filed rejoinder to the petition.
3. Issues were framed by learned Court on 12.11.2002.
Petition was dismissed by the learned Additional District Judge on 11.7.2007. Hence, this appeal.
4. Mr. Neeraj Gupta, Advocate, has vehemently argued that his client was subjected to physical and mental cruelty by the respondent. He further contended that the respondent has deserted the appellant without any sufficient cause.
::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 45. Mr. Vinay Thakur, Advocate, has supported the judgment passed by learned Court below.
6. I have heard the learned senior counsel for the .
appellant and also gone through the record carefully.
7. PW-1 Sanjay Malik deposed that the parties resided together till 24.12.1996 at Thakurdwara. Her father has taken her during Christmas holidays to Amritsar and thereafter never came of back. He and appellant had gone to Amritsar on 15.4.1997 to bring back the respondent. They met her parents but respondent refused to accompany appellant. In his cross-examination, he has rt admitted that he could not say whether a petition for divorce was filed. He was not aware of the proceedings pending at Gurdaspur.
8. PW-2 Satish Chander is father of the appellant.
According to him, marriage was solemnised on 19.10.1994.
Daughter was born on 11.6.1996. They lived together till 24.12.1996 at Dharamshala and Thakurdwara. Appellant was posted at State Bank of Patiala Dharamshala at the time of marriage. Respondent used to insist that he should get himself transferred to Amritsar. Appellant used to insist that he has to look after his aged parents thus he could not get himself transferred to Amritsar. Respondent started fighting. She filed a complaint with Senior Superintendent of Police Kangra at Dharamshala. Respondent has gone to Amritsar during Christmas holidays. Appellant went to the house of respondent on 15.4.1997 ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 5 with PW-1. Appellant also sent to bring her back on 1.6.1997.
Complaint was also filed before Chief Judicial Magistrate Amritsar under Sections 406 and 498A IPC. Matter was transferred to .
Gurdaspur. Case was pending before the Court at Gurdaspur.
Acts of the respondent have caused physical and mental cruelty to the appellant. In his cross-examination, he has admitted that respondent was employed in a private school and at their instance, of she left the job. He also admitted that in the year 1995, miscarriage of his daughter-in-law has taken place.
9. PW-3 Mast Ram has proved the record of HMA Case rt No. 14-P/98.
10. Appellant has appeared as PW-4. According to him, marriage was solamnised between the parties on 19.10.1994. His wife and his in-laws used to insist that he should get himself transferred to Amritsar. Respondent has threatened to commit suicide vide letter dated 15.10.1995 (Ext. PW-3/A). Her father has taken her to Amritsar. He went to Amritsar on 5.1.1997. However, his wife refused to come with him. He again went to Amritsar on 15.4.1997 to get his wife back. His wife has filed a false complaint against him and his parents and also his sisters in the court of Chief Judicial Magistrate Amritsar. Complaint was dismissed by Senior Superintendent of Police. In his cross-examination, he has admitted that earlier he has filed a petition for divorce in the month of March, 1998. It was decided in December. He admitted ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 6 in his cross-examination that PW-1 Sanjay Malik was not a witness in earlier petition. He admitted that his wife left the job at Amritsar at his instance. He also admitted that against complaint .
filed against him under Sections 406 and 498A IPC, he approached Hon'ble High Court of Punjab & Haryana. Complaint was not quashed by the Punjab & Haryana High Court. In the complaint, it was stated that he used to beat respondent and of harassed her for bringing insufficient dowry. Daughter was born in 1996. He also admitted that he has not paid any maintenance to his wife and daughter. He has also admitted in his cross-
rt examination that in reply to legal notice, his wife has shown her willingness to stay with him with a condition that he would stop beating her and would not raise any demand for dowry. He also admitted categorically in his cross-examination that his wife has undertaken to quit job in case he agrees to look after her.
11. Respondent has appeared as RW-1. She has categorically deposed that appellant used to state that she has brought insufficient dowry. He used to demand for money. He used to give her physical and mental torture. She has got herself aborted at PGI Chandigarh. She left job at Amritsar at the instance of the appellant. She paid her husband ` 25,000/- from her GPF.
Daughter was born at Palampur. She and her daughter were staying together after she was thrown out of matrimonial house.
She joined government job at Government School Ghar in 1996.
::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 7She insisted to go to her parental house. Appellant got angry and they were thrown out of her house. She was in family way at that time. She was admitted in hospital. neither the appellant, nor his .
parents visited her. She remained in hospital for five months without salary. Her parents went to the parents of appellant but no compromise could take place. Appellant has never visited respondent and her daughter. She was ready and willing to stay of with the appellant if appellant would keep her and her daughter with respect. In her cross-examination, she has denied the suggestion that rt she insisted her husband to get himself transferred to Amritsar. She denied that she has lodged false FIR.
12. What emerges from the evidence produced on record is that marriage between the parties was solemnised on 19-10- 1994. Parties remain together for some time. Respondent was working as a teacher at Amritsar. She left the job at the instance of the appellant. Respondent was admitted in PGI hospital at Chandigarh. The appellant has never visited her at Chandigarh.
Girl was also born but the appellant has neither paid any maintenance to the respondent nor to her child. Respondent was always ready and willing to live with the appellant has admitted that in the reply to the legal notice respondent has shown her willingness to stay with him in case she was accorded respect by the appellant and maintenance was paid to her. Appellant has admitted as noticed above that he has never paid maintenance ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 8 to his wife or daughter. He has never visited respondent and her daughter. PW-1 has deposed that he had gone with the appellant to bring back the respondent. However, fact of the matter is that in .
the earlier proceedings instituted by the appellant, PW-1 Sanjay Malik was never cited as a witness. In case, he had gone with the appellant, he would have been cited as a witness. PW-1 Sanjay Malik does not inspire confidence. PW-2 father of the appellant of has admitted that in reply to the legal notice, it was specifically mentioned about harassment caused to the respondent. He has also admitted in the cross examination that his statement was rt earlier recorded in the earlier divorce petition and he has not stated that the respondent and her family members wanted his son to be a Ghar Jamai. Appellant in his statement has also admitted that he has not seen his daughter for six and half years.
Respondent has gone to the extent that she was ready and willing to quit government job if she was given respect by the appellant and appellant looks after her and her daughter properly.
Respondent in her statement has categorically deposed that appellant and his family members used to harass her for bringing insufficient dowry. She has even paid Rs. 25,000 from GPF to the appellant. Respondent remained admitted in PGI for 5 months and appellant has not cared to look after her. He has not paid any money towards the treatment of the respondent. Respondent was constrained to file complaint against the appellant about ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 9 harassment meted out to her. It was her legal right to file complaint before the senior superintendent of police. Now, as far as proceedings under section 406 and 498A IPC are concerned, .
she was within her legal right to file the same. Appellant has filed proceedings before Punjab and Haryana High Court for quashing the proceedings, however High Court Punjab and Haryana has not quashed the proceedings instituted against him initially at of Amritsar, which was transferred to Gurdaspur. These proceedings as per the record are still pending. Onus was on the appellant to prove that he was subjected to cruelty by the respondent.
rt Averments made in petition are vague and sketchy. No tangible evidence has been led by appellant to prove that he was subjected to cruelty by the respondent. Respondent has never deserted the appellant rather the respondent has been thrown out by the appellant from the matrimonial house. She has also left the job at Amritsar. She joined government job thereafter. Appellant has forced the respondent to leave the matrimonial house. He can not be permitted to take advantage of his own wrongs. In order to prove desertion, it is necessary to prove animus deserendi. It is reiterated that appellant has admitted that in reply to legal notice, respondent was ready and willing to stay with him. Respondent, while appearing as RW-1 has also stated that she was ready and willing to live with the appellant if he gives her respect and look after her and her child.
::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 1013. Their Lordships of the Hon'ble Supreme Court in case Shobha Rani v. Madhukar Reddi reported in AIR 1988 SC 121 have explained the term "cruelty" as under:
.
"4. Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in elation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties of and 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 the court will have no rt problem to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
5. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person.::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 11
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 import our own notions of life. We may of not go in parallel with them. There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners.
It would be also better if we less depend upon
rtprecedents. Because
Sheldon v. Sheldon,
as Lord
[1966] 2 All
Denning
E.R.
said
257 (259)
in
"the categories of cruelty are not closed." Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful/realm of cruelty."
14. Their Lordships of the Hon'ble Supreme Court in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511, have enumerated some instances of human behaviour, which may be important in dealing with the cases of mental cruelty, as under:
"98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 12 any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a .
comprehensive definition of mental cruelty.
99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, rt traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 13
(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 of party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, rt petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of 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 ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 14 injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than .
jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day of 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 rt and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 15(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 of and emotions of the parties. In such like situations, it may lead to mental cruelty.
15. rt Their Lordships of the Hon'ble Supreme Court in Manisha Tyagi vs. Deepak Kumar reported in 2010(1) Divorce & Matrimonial Cases 451, have explained the term 'cruelty' as under:
"24. 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 reasonable 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 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 ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 16 amount to cruelty of such a nature to enable the husband to obtain a decree of divorce."
16. Their Lordships of the Hon'ble Supreme Court in .
Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC 476, have explained the term 'cruelty' 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 of 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. rtSometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it ma 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 categories can never be closed. Whether the 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 predetermined rigid formula. Cruelty in matrimonial case can be of infinite variety - it may be subtle or even brutal and may be by gestures and word. That possible explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial case are never closed.
21. This Court is reminded of what was said by Lord Reid in Gollins v. Gollins about judging cruelty in matrimonial cases. The pertinent observations are (AC p.660) ".. In matrimonial cases we are not concerned with the reasonable man as we are in cases of ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 17 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 even 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."
22. " About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha of Rani v. Madhukar Reddi at AIR p. 123, para 5 of the report: (SCC p.108, para 5) "5. It will be necessary to bear in mind that there has been (a) marked change in the life rt around us. In matrimonial duties responsibilities in particular, we find a sea and 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 stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties."
::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 1817. Their Lordships of the Hon'ble Supreme Court in Pankaj Mahajan vs. Dimple Alias Kajal reported in (2011) 12 SCC 1, have explained the term 'cruelty' as under
.
"36. From the pleadings and evidence, the following instances of cruelty are specifically pleaded and stated. They are:
i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace.
of ii. Pushing the appellant from the staircase resulting into fracture of his right forearm. iii. Slapping the appellant and assaulting him. iv. Misbehaving with the colleagues and rt relatives of the appellant causing humiliation and embarrassment to him.
v. Not attending to household chores and not even making food for the appellant, leaving him to fend for himself.
vi. Not taking care of the baby.
vii. Insulting the parents of the appellant and misbehaving with them.
viii. Forcing the appellant to live separately from his parents.
ix. Causing nuisance to the landlord's family of the appellant, causing the said landlord to force the appellant to vacate the premises. x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the appellant.
xi. Always quarreling with the appellant and abusing him.
xii. Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the appellant.::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 19
18. Their Lordships of the Hon'ble Supreme Court in Vishwanath Agrawal vs. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288, have explained the term 'cruelty' as .
under:
"22. The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have of been conditioned by their social status.
28. In Praveen Mehta v. Inderjit Mehta, AIR 2002 rtSC 2582 it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other.
Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment, and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other."
19. Their Lordships of the Hon'ble Supreme Court in Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 20 1957 SC 176 have held that two essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end .
(animus deserendi). Their Lordships have held that desertion is a matter of interference to be drawn from the facts and circumstances of each case. Their Lordships have held as under:
of "What is desertion? "Rayden on Divorce" which is a standard work on the subject at p.128 (6th Edn.) has summarized the case-law on the subject in these rtterms:-
"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".
The legal position has been admirably summarized in paras 453 and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd Edn.), VoL 12, in the following words:-
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 21 common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been .
consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.
The offence of desertion is a course of conduct which exists independently of its duration, but as a ground of for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs rt from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence".
Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (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. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. Here a difference between the English law and the law as enacted by the Bombay Legislature ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 22 may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, .
the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. Desertion is a matter of inference to be drawn from the facts and circumstances to each case. The of 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 rt by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co- exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the (animus deserendi) coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express or implied of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 23 that period, unless proceedings for divorce have been commenced, desertion comes to an end, and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence .
it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable.
It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable of doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court. In this rtconnection the following observations Goddard CJ. in the case of Lawson v. Lawson, 1955-1 of Lord All E R 341 at p. 342(A), may be referred to :-
"These cases are not cases in which corroboration is required as a matter of law. It is required as a matter of precaution....... "
With these preliminary observations we now proceed to examine the evidence led on behalf of the parties to find out whether desertion has been proved in this case and, if so, whether there was a bona fide offer by the wife to return to her matrimonial home with a view to discharging marital duties and, if so, whether there was an unreasonable refusal on the part of the husband to take her back.
20. Their Lordships of the Hon'ble Supreme Court in Lachman Utamchand Kirpalani versus Meena alias Mota, AIR 1964 SC 40 have held that in its essence desertion means the intentional permanent forsaking and ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 24 abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. Their Lordships .
have further held that the burden of proving desertion - the 'factum' as well as the 'animus deserendi' is on the petitioner and he or she has to establish beyond reasonable doubt to the satisfaction of the Court, the desertion throughout the of entire period of two years before the petition as well as that such desertion was without just cause. Their Lordships have held as under:
rt "The question as to what precisely constitutes "desertion" came up for consideration before this Court in an appeal for Bombay where the Court had to consider the provisions of S. 3(1) of the Bombay Hindu Divorce Act, 1947 whose language is in pari materia with that of S. 10(1) of the Act. In the judgment of this Court in Bipin Chandra v. Prabhavati, 1956 SCR 838; ((S) AIR 1957 SC 176) there is an elaborate consideration of the several English decisions in which the question of the ingredients of desertion were considered and the following summary of the law in Halsbury's Laws of England (3rd Edn.) Vol. 12 was cited with approval :
"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the order without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 25 defining desertion, there being no general principle applicable to all cases." The position was thus further explained by this Court. "If a spouse abandons the other spouse in a state of temporary passion, for .
example, anger or disgust, without intending permanently the cease cohabitation, it will not amount to desertion. 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 of bring cohabitation permanently to an end (animus deserndi). Similarly of 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 rt necessary intention aforesaid.. . . . . Desertion is a matter of inference to be drawn from the facts and circumstances of each case. 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. If, in fact, there has been a separation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi coexist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time." Two more matters which have a bearing on the points in dispute in this appeal might also be mentioned. The first relates to the burden of proof in these cases, and this is a point to which we have already made a ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 26 passing reference. It is settled Law that the burden of proving desertion -
the "factum" as well as the "animus deserendi" - is on the petitioner; and he or she has to establish beyond .
reasonable doubt, to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was of without just cause. As Dunning, L. observed : (Dunn v. Dunn (1948) 2 All ER 822 at p. 823) :
"The burden he (Counsel for the husband) said was on rt her to prove argument just cause (for living apart). The contains a fallacy which has been put forward from time to time in many branches of the law. The fallacy lies in a failure to distinguish between a legal burden of proof laid down by law and a provisional, burden raised by the state of the evidence . . . . . . . . . . . The legal burden throughout this case is on the husband, as petitioner, to prove that this wife deserted him without cause. To discharge that burden, he relies on the fact that he asked her to join him and she refused. That is a fact from which the court may infer that she deserted him without cause, but it is not bound to do so. Once he proves the fact of refusal, she may seek to rebut the inference of desertion by proving that she had just cause for her refusal; and, indeed, it is usually wise for her to do so, but there is no legal burden on her to do so. Even if she does not affirmatively prove just cause, the Court has still, at the end of the case, to ask itself: Is the legal burden discharged? Has the husband proved that she deserted him without cause? Take this case. The wife was very deaf, and for that reason could not explain to ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 27 the Court her reasons for refusal. The judge thereupon considered reasons for her refusal which appeared from the facts in evidence, though she had not herself stated that they operated on her mind. Counsel for .
the husband says that the judge ought not to have done that. If there were a legal burden on the wife he would be right, but there was none. The legal burden was on the husband to prove desertion without cause, and the judge was right to ask himself at the end of the case: Has that burden been discharged?"
of
21. Their Lordships of the Hon'ble Supreme Court in Smt. Rohini Kumari versus Narendra Singh, AIR 1972 SC 459 have explained the expression 'desertion' to mean the rt desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage.
"Under Section 10 (1) (a) a decree for judicial separation can be granted on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. According to the Explanation the expression "desertion" with its grammatical variation and cognate expression means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage. The argument raised on behalf of the wife is that the husband had contracted a second marriage on May 17, 1955. The petition for judicial separation was filed on ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 28 August 8, 1955 under the Act which came into force on May 18, 1955. The burden under the section was on the husband to establish that the wife had deserted him for a continuous period of not less than two years .
immediately preceding the presentation of the petition. In the presence of the Explanation it could not be said on the date on which the petition was filed that the wife had deserted the husband without reasonable cause because the latter had married Countess Rita and that must be regarded as a reasonable cause for her staying away from him. Our of attention has been invited to the statement in Rayden on Divorce, 11th Edn. Page 223 with regard to the elements of desertion According to that statement for the offence of desertion there must be two elements rt present on the side of the deserting spouse namely, the factum, i.e. physical separation and the animus deserendi i.e. the intention to bring cohabitation permanently to an end. The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of "constructive desertion" is discussed at page 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 29 intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him."
.
22. Their Lordships of the Hon'ble Supreme Court in Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi reported in (2002) 1 SCC 308, have held that the essential ingredients of the desertion are i) separation in fact and ii) animus of deserendi. Their Lordships have held as under:
7. 'Desertion' in the context of matrimonial law represents a legal conception. It is difficult to give a rtcomprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:
1. The factum of separation
2. The intention to bring cohabitation permanently to an end - animus deserendi;
3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;
The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include 'wilful neglect' of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 30 which includes wilful neglect of the petitioner by the other party to the marriage. Therefore, for the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, .
namely, (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 of aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively and their continuance throughout the statutory period.
23. rt Their Lordships of the Hon'ble Supreme Court in Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73, have held that desertion may be constructive, which can be inferred from attending circumstances. Their Lordships have held as under:
"10. To prove desertion in matrimonial matter, it is not always necessary that one of the spouses should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.
24. Their Lordships of the Hon'ble Supreme Court in Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706, ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 31 have held that mental cruelty is the state of things. Therefore, it is necessarily a matter of inference to be drawn of facts and circumstances. A proper approach requires assessment of the .
cumulative facts and attending circumstances and established evidence on record. Their Lordships have held as under:
"14 As noted earlier, the learned single judge granted the respondent's prayer for dissolution of the marriage on the ground of 'cruelty.' Therefore, the of question arises whether in the facts and circumstances of the case a case for divorce under S. 13(1)(ia) of the Hindu Marriage Act, 1955 (for short 'the Act') has been made out. The answer to this rt question depends on determination of the question formulated earlier. In S. 13(1) it is laid down that :
"Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
xxx xxx xxx xxx xxx xxx (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty;"
Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been 'conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 32 reasonable apprehension of such danger' (Russel v. Russel (1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II, page 87). The provision in Cl. (ia) of S. 13(1), which was introduced by the Marriage .
Laws (Amendment) Act 68 of 1976, simply states that 'treated the petitioner with cruelty.' The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct and not fail in some circumstances. By the amendment the Legislature must, therefore, be understood to have left to the Courts to determine on of the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which rt could be exhaustive and not fail in some cases. It seems permissible, therefore, to enter a caveat against any judicial attempt in that direction (Mulla Hindu Law, 17th Edition, Volume II, page 87).."
19. Clause (ia) of sub-section (1) of S. 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence.
That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91).
::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 3321. Cruelty for the purpose of S. 13(1)(ia) is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue .
the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A of feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of rtmatrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.
25. Their Lordships of the Hon'ble Supreme Court in Vinay Kumar Ramchandra Bhate v. Neela Vijaykumar Bhate reported in (2003) 6 SCC 334, have held as under:
"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 34 cruelty for sustaining the claim for divorce under Section 13(1)(ia) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and .
indecent familiarity with a person outside wedlock and allegations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to of worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of rt examination and by way of cross examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible.
11. That apart, in our view, even the fact that the application for amendment seeking for deletion of the accusations made in the written statement was ordered and amendments carried out subsequently does not absolve the husband in this case, from being held liable for having treated the wife with cruelty by making earlier such injurious reproaches and statements, due to their impact when made and ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 35 continued to remain on record. To satisfy the requirement of clause (i-a) of sub-section (1) of Section 13 of the Act, it is not as though the cruel treatment for any particular duration or period has been .
statutorily stipulated to be necessary. As to what constitute the required mental cruelty for purposes of the said provision. In our view, 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 of on the mental attitude, necessary for maintaining a conducive matrimonial home. If the taunts, complaints and reproaches are of ordinary nature only, the Courts perhaps need consider the further rt question as to whether their continuance persistence over a period time render, what normally or would, otherwise, not be a so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer. A conscious and deliberate statement levelled with pungency and that too placed on record, through the written statement, cannot so lightly be ignored or brushed aside, to be of no consequence merely because it came to be removed from the record only. The allegations levelled and the incidents enumerated in the case on hand, apart from they being per se cruel in nature, on their own also constitute an admission of the fact that for quite some time past the husband had been persistently indulging in them, unrelented and unmindful of its impact. That the husband in this case has treated the wife with intense cruelty is a fact, which became a fait accompli the day they were made in the written statement. They continued on record at any rate till 5-10-1988 and the indelible impact and scar it initially should have created, cannot be said to have got ipso facto ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 36 dissolved, with the amendments ordered. Therefore, no exception could be taken to the courts below placing reliance on the said conduct of the appellant, in this regard, to record a finding against him."
.
26. Their Lordships of the Hon'ble Supreme Court in A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, have held that mental cruelty is to be considered in view of the social status of parties, their customs and traditions. Their Lordships of have held as under:
[10] The expression 'cruelty' has not been defined in rt the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, a proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 37 husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because .
of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that of are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes. [11] The expression 'cruelty' has been used in relation to human conduct or human behaviour. It is the rt 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 begin 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 a case 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 Sobha Rani v. Madhukar Reddi, AIR 1989 SC121).::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 38
[12] To constitute cruelty, the conduct complained of should be 'grave and weighty' so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It .
must be something more serious than 'ordinary wear and tear of married life'. The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such of 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 rt 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 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 complaining spouse 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 Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
[13] The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 39 touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate. It 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 of can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent. [14] The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to rt 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. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hypersensitive approach would be counterproductive to the institution of marriage. The courts do not have to deal with ideal husbands and ideal wives. It has to deal with a particular man and woman before it. The ideal couple or a merely ideal one will probably have no occasion to go to the Matrimonial Court. (See. N.G. Dastane (Dr.) v. S. Dastane.)
27. Their Lordships of the Hon'ble Supreme Court in Vinita Saxena v. Pankaj Pandit reported in (2006) 3 SCC 778, have held that the concept of cruelty has varied from time to time, ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 40 from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. Their Lordships have .
held as under:
32. The word 'cruelty' has not been defined and it has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct and one which is adversely of affecting the other. The cruelty may be mental or physical, intentional or unintentional. There may be cases where the conduct complained of itself is bad rt enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
33. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance:
Judged by standard of modern civilization in the background of the cultural heritage and traditions of our society, a young and well educated woman like the appellant herein is not expected to endure the harassment in domestic life whether mental, physical, intentional or unintentional. Her sentiments have to be respected, her ambition and aspiration taken into account in making adjustment and her basic needs provided, though grievances arising from temperamental disharmony. This view was taken by the Kerala high Court in the case reported in AIR 1991 kerala 1.
35. Each case depends on its own facts and must be judged on these facts. The concept of cruelty has ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 41 varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. The .
question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In this connection, the culture, temperament and status in life and many other things are the factors which have to be considered.
36. The legal concept of cruelty which is not defined of by statute is generally described as conduct of such character as to have caused danger to life, limb or health (bodily and mental) or to give rise to reasonable apprehension of such danger. The general rule in all rt question of cruelty is that the whole matrimonial relations must be considered, that rule is of a special value when the cruelty consists not of violent act but of injurious reproaches, complains accusations or taunts. It may be mental such as indifference and frigidity towards wife, denial of a company to her, hatred and abhorrence for wife or physical, like acts of violence and abstinence from sexual intercourse without reasonable cause. It must be proved that one partner in the marriage however mindless of the consequences has behaved in a way which the other spouse could not in the circumstances be called upon to endure, and that misconduct has caused injury to health or a reasonable apprehension of such injury.
There are two sides to be considered in case of cruelty. From the appellant's side, ought this appellant to be called on to endure the conduct? From the respondent's side, was this conduct excusable? The court has then to decide whether the sum total of the reprehensible conduct was cruel. That depends on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view after a consideration of any excuse which the ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 42 respondent might have in the circumstances, the conduct is such that the petitioner ought not be called upon to endure.
.
45. Spouses owe rights and duties each to the other and in their relationship they must act reasonably. In every case where cruelty exists it is possible to say that the spouse at fault has been unreasonable. The list of cruelty, therefore, should be breach of the duty to act reasonably, whether in omission or commission, causing injury to health. Such a list of avoids imputing on intention where in fact none may exist. Further all such matters are foresight, desires, wishes, intention, motives, perception, obtuseness, persistence and indifference would remain relevant rt but merely as matter of evidence bearing upon the requirement to act reasonably or as aggravation of the matters charged
28. Their Lordships of the Hon'ble Supreme Court in Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511, have held that there cannot be any comprehensive definition of the concept of "mental cruelty" within which all kinds of cases of mental cruelty can be covered. No court should even attempt to give a comprehensive definition of mental cruelty. Their Lordships have held as under:
"On a proper analysis and scrutiny of the judgments of the Supreme Court and other courts it is clear that there cannot be any comprehensive definition of the concept of "mental cruelty" within which all kinds of cases of mental cruelty can be covered. No court should even attempt to give a comprehensive definition of mental cruelty.::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 43
The human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has not bound, therefore, to assimilate the entire human behaviour in one definition is almost .
impossible. What is cruelty in one case may not amount to cruelty in another case. The concept of cruelty differs from person to person depending upon the upbringing, level of sensitivity, educational family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and the value system.
of Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may rt be mental cruelty now may not remain a mental cruelty after a passage of time or ice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking the aforementioned factors into consideration. No uniform standard can ever be laid down for guidance, yet it is deemed 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 ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 44 put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of .
language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the of conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, rt discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 45 adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a .
period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to of mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge rt 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 of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
::: Downloaded on - 15/04/2017 18:46:19 :::HCHP 4629. Their Lordships of the Hon'ble Supreme Court in Jagdish Singh v. Madhuri Devi reported in (2008)10 SCC 497, have held that before an appellate Court reverses findings of trial .
Court, it has to look into following instances:
(i) it applies its mind to reasons given by the trial court;
(ii) it has no advantage of seeing and hearing the witnesses;
and
(iii) it records cogent and convincing reasons for disagreeing with the trial court.
of
30. Mr. Neeraj Gupta, has placed strong reliance upon Shri Chand Prakash Sharma v. Smt. Kaushlya Devi reported in rt [2008(1) Shimla Law Cases, 198. However, in the instance case, respondent has made complaint before the Senior Superintendent of Police and a copy thereof only has been sent to the General Manager of the Bank. The substance of the allegation is to be seen in totality and merely that complaint has been made against the conduct of the either of the parties, would not constitute cruelty.
Moreover, as noticed by this Court, case under Section 406 and 498 IPC are still under adjudication.
31. In view of the discussion and analysis made herein above, there is no merit in the appeal and the same is dismissed.
Pending application(s), if any, also stand disposed of. No costs.
(Rajiv Sharma) Judge August 18, 2015 (vikrant) ::: Downloaded on - 15/04/2017 18:46:19 :::HCHP