Karnataka High Court
Smt.J.H.Veronica @ J.H. Manila vs Mr.D.Anil Kumar Son Of Late Doreraja on 24 March, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
AND
THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
MFA No.103466 OF 2017(FC)
BETWEEN:
SMT. J.H. VERONICA @ J.H. MANILA
W/O. D. ANIL KUMAR, AGED 25 YEARS,
PRESENTLY RESIDING AT SBI COLONY,
NEAR WATER TANK, GANDHINAGAR,
MOKA ROAD, BALLARI.
....APPELLANT
(BY SMT. ARUNA R. DESHPANDE, ADVOCATE)
AND:
MR. D. ANIL KUMAR S/O. DORERAJA,
AGED 26 YEARS, R/O. LIG-340, KHB COLONY,
MOKA ROAD, BALLARI MB:9620933245.
....RESPONDENT
(SERVED)
THIS MFA IS FILED UNDER SECTION 55 OF DIVORCE
ACT, 1869 READ WITH ORDER 41 OF THE CPC, AGAINST THE
JUDGMENT AND ORDER DATED 18.08.2017 PASSED IN
MATRIMONIAL CASE NO.163/2016 ON THE FILE OF THE
PRINCIPAL JUDGE, FAMILY COURT, BALLARI, DISMISSING THE
PETITION FILED U/SECTION 10(x) OF THE DIVORCE ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
09.03.2022 COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, K.S. HEMALEKHA J., DELIVERED THE FOLLOWING:
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JUDGMENT
'Right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessity of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing, expressing oneself in diverse forms, freely moving out and mixing and co-mingling with fellow human beings'. This is what Hon'ble Apex Court had said in the case of Francis Colaria Mullin V/s. Administrator, Union Territory of Delhi, reported in AIR 1981 SC 746.
2. The present appeal is filed by the estranged wife assailing the judgment and decree dated 18.08.2017 passed in MC No.163/2016 on the file of learned Principal Judge, Family Court, Ballari ('Family Court', for short), whereby the learned Judge dismissed the petition filed by the wife under Section 10(x) of the Divorce Act, 1869 (for short, 'Act').
2. Parties herein are referred to as wife and husband for the sake of convenience.
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3. The wife has filed petition under Section 10(x) of the Act, seeking divorce on the ground of cruelty meted out by the husband and that it would be harmful for the wife and injurious to her life to stay with the husband. It is averred in the petition that their marriage was solemnized on 08.02.2011 and it was a love marriage, from their wedlock, a son by name Nikil Kumar was born. It is stated that the relationship between the husband and wife was stable for sometime and that the husband was doing painting work prior to the marriage. But, however, after the marriage he has restrained himself from working and for one or the other reason has failed to provide necessary amenities of life to the wife and the son. It is stated that due to the rude behavior of the husband and his bad habits of drinking alcohol heavily, eating gutka and playing Matka had made the life of the wife miserable and the behavior of the husband went on becoming worst day by day and it went to the extent of husband having beaten up the wife and caused grievous injuries and due to which, she was admitted in the hospital and had to under go treatment. It 4 is stated that the living with the husband has become intolerable as the husband was frequently torturing and harassing the wife and with no alternative remedy, the wife had left the matrimonial house on 13.06.2014 and also the subsequent dates.
4. The husband appeared and filed his objections admitting the marriage and the birth of the child. It is however contended that the wife herself is avoiding the marital relationship with the husband without any reasonable cause and though the husband is providing all the luxuries of the matrimonial home, wife is refusing to stay with the husband. It is further contended that the matrimonial dispute between the husband and wife arose due to the instigation of her parents, who were not allowing her to live with her husband and for one or the other reason always took the wife to their house. It is further averred that the wife is not happy with her husband as he was doing coolie job and the status between them did not match. It is further averred that 5 inspite of all this, husband is ready to take back his wife and the child and live happy marital life.
5. The Family Court on the basis of the pleadings framed following points for consideration;
POINTS
1. Whether the petitioner/ wife proves that the respondent/ husband has treated her with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with respondent ?
2. Whether the petitioner is entitled for decree of divorce as prayed for?
3. What Order ?
6. The wife in order to substantiate her case examined herself as PW.1 and one witness as PW.2 and got marked 22 documents at Ex.P.1 to 22. On the other hand, the respondent examined himself as RW.1 and one witness as RW.2 and got marked Ex.R.1.
7. The Family Court by its judgment held that the wife has failed to prove that the husband assaulted her 6 and caused grievous injuries to her and the ground of cruelty urged by the wife to seek divorce is not proved by the wife, accordingly, the Family Court dismissed the petition filed by the wife under Section 10(X) of the Act. Aggrieved by the dismissal of the petition, the wife has preferred this appeal.
8. Though the respondent-husband was served with the notice in this appeal, he has remained absent and unrepresented.
9. Hence, heard the learned counsel for the appellant Smt. Aruna Deshpande and perused the original records.
10. In addition to the various contentions urged in the appeal, the learned counsel for the appellant would submit that during the pendency of this appeal, the husband has repeatedly assaulted the wife and the complaint was also registered before the Women's Police Station, Ballari and on such complainant, the Jurisdictional Police has warned the husband and he has given an undertaking that he will not harm or cause any injury to 7 the wife. On this ground, the learned counsel for the appellant has filed an application under Order XLI Rule 27 of CPC seeking to produce certain additional documents in order to substantiate that the wife is subjected to cruelty by the husband even during the pendency of the appeal. The affidavit accompanying the application for production of documents reads as under;
1. I state that, believing he giving the undertaking, I went back to stay with him but, unfortunately it was repeated and on 08.01.2016 he assaulted me and tried to kill me by throttling my neck.
2. I state that, in the apprehension of the acts being repeated myself on 09/01/2016 I filed complaint (File No.2147) against my husband D. Anil Kumar at Santvana Mahila Sahayavani Kendra at Ballari. Since it was a matter which could not be settled at the centre, I had to approach the Family Court. The copy of the letter given by the centre is herewith attached.
3. I state that, I filed a M.C. Petition No.163/2016 at Family Court, Ballari on 22.09.2016.
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4. I state that, on 15.11.2017 while I was returning home at around 7:30 P.M from my work place, my husband came near my vehicle and without any reasons slapped me on the public road and abused me filthy language.
11. Having heard the learned counsel for the appellant the points that arises for consideration are;
POINTS
1. Whether the application I.A. No.2/2019 seeking for additional documents needs to be considered in the light of the contentions of the parties ?
2. Whether the judgment and decree passed by the Family Court warrants any interference ? Point No.1:
12. Before adverting to the merits of the case, it is necessary to consider I.A. No.2/2019 filed by the appellant under Order 41 Rule 27 of CPC seeking to produce documents by way of additional evidence which are pertaining to the incidence that occurred during the pendency of this appeal. Keeping in mind the provisions under Order 41 Rule 27 it is well settled that the additional 9 evidence can be permitted if it is necessary to enable the Court to pronounce the judgment or any other substantial cause of similar nature. Admittedly though the respondent was issued with notice by this Court at the time of admission the respondent though served remained unrepresented. It appears from the order sheet that the application I.A. No.2/2019 was filed by the appellant on 01.07.2019 and this Court vide order dated 01.08.2018 noting the absence of the respondent directed I.A.No.2/2019 to be heard along with the main. The order sheet further depicts that on 14.10.2019 emergent notice was ordered again on I.A.No.2/2019 and this Court vide order dated 09.08.2021 directed the matter to be listed for final hearing. Inspite of notice being ordered on IA No.2/2019 by this Court the respondent though served with the notice has remained absent. However, this Court looking into the dispute between the parties again ordered for notice to the respondent on 23.09.2021 and directed the matter to be listed on 05.10.2021, on the said date there was no representation on behalf of the respondent.10
Therefore we are of the considered view, that inspite of several notices issued by this Court, the respondent has willfully remained absent and has not chosen to represent himself and as the matter is of the year 2016 and the respondent willfully is avoiding the Court proceedings we have taken up the matter for final hearing.
12. Perusal of I.A. No.2/2019 filed by the appellant would show that on 09.01.2016, the appellant had given a complaint against her husband to 'SANTVANA MAHILA SAHAYAVANI KENDRA, BALLARI' as the matter could not be settled before the 'MAHILA KENDRA' the appellant-wife decided to approach the Family Court. The appellant has also sought to produce the complaint given to the Women's Police Inspector, Women's Police Station, Devinagar, Ballari, complaining that the husband has been harassing her in the public and without any reason tried to assault the wife on 15.11.2017. In view of the complaint filed by the wife the Police authorities had called the husband and in presence of the both, the Police has warned the husband not to misbehave with the wife and 11 harass at the public places. These documents sought to be produced are undisputed documents and the same is not rebutted by the respondent. The document sought to be produced are relevant bearing in mind the issue involved in this proceedings. In the result point No.1 framed for consideration is answered in the affirmative and exercising our power under Order XLI Rule 28 of CPC, I.A No.2/2019 is taken on record and the same is allowed.
Point No.2:
13. Section 10 of the Act which reads as under;
"III -Dissolution of Marriage
10. Grounds for dissolution of marriage.- (1) Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent-.
(i) has committed adultery; or
(ii) xxx
(iii) xxx
(iv) xxx
(v) xxx
(vi) xxx
(vii) xxx
(viii) xxx
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(ix) xxx
(x) has treated the petitioner with such cruelty as
to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent."
14. The Indian Divorce bill having been passed by the legislature received its assent on 26.02.1869. It came on The statute book as the Indian Divorce Act, 1869 (4 of 1869). By Section 2 of the Indian Divorce Act, (Amendment) Act, 2001, the nomenclature of the Act has been changed and now its stands as THE DIVORCE ACT, 1869 (4 of 1869) (came into force on 01.04.1869). The Indian Divorce (Amendment Act, 2001) (51 of 2001) (with effect from 03.10.2001).
15. The Divorce Act (4 of 1869) Section 10 as stood earlier, required the husband only to prove adultery simplicitor whereas requiring wife to prove adultery with one or other aggravating: provision is sex discriminatory. The full bench of the Bombay High court in the case of Mrs. Pragati Varghese and etc., V/s. Cyril George Varghese reported in AIR 1997 Bom 349 held that 13 denial of right to divorce also constitute violation of right to life and held that the discrimination under Section 10 as stood earlier under the Divorce Act (4 of 1869) was quashed as ultra virus held at para No.51, 52 and 56 which reads as under;
51. We have not, in the instant case, sought to redraft Section 10 by comparison of provisions of similar statutes as suggested by Mr. Shah. We have merely struck down portions of Section 10 which we have found to be offending Articles 14, 15 and 21 of the Constitution.
52. As far as the provisions of Section 16 are concerned, the same provide that decree of a dissolution of marriage made b a High Court shall, in the first instance, be a decree nisi and the same can be made absolute only after a period of not less than six months from the pronouncement thereof.
56. In the result, we hold that the indicated portions of Section 10 of the Act are ultra vires Articles 14, 15 and 21 of the Constitution and the same are accordingly struck down. We further find the provisions of Sections 16, 17 and 20 of the Act are also arbitrary and unreasonable. We suggest that the legislature should intervene and carry out 14 suitable amendments to 'the Act' at the earliest. We direct that a copy of this order may be forwarded forthwith to the Ministry of law and Justice for such action as they may deem fit to take.
16. Whereby the full bench suggested the legislature should carry out suitable amendments to the Act. It is in this regard that amendment to Section 10 of the Divorce Act (4 of 1869) was amended with effect from 2001. In the light of this the view expressed by the Court in Pragati Varghese V/s. Cyril George Varghese case stated Supra at para No.9 and page No.353, 9, 34 which comes up to human rights and page No.363 para No.21.a.
17. It is contended that Section 10 of 'the Act, to the extent that it requires adultery to be coupled with cruelty as a ground for divorce is violative of Articles 14 and 21 of the Constitution. The right to life under Article 21 takes in its sweep a right to life with dignity, without cruelty, mental or physical, and without constant fear of torture and violence. The right to life guaranteed by the Constitution includes the right to seek dissolution of marriage if its existence is an unbearable suffering. Section 10 denies the Christian woman the right to get dissolution of marriage on the grounds of cruelty 15 even when the marital relationship has been broken. Such a law that compels her to live with a person who is her tormentor till death is oppressive, arbitrary and violative of Articles 14 and 21 of the Constitution. It will be a sub-human life without dignity. It will be a life without freedom and personal liberty. To uphold the dignity of the individual in all respects as ensured by the preamble of the Constitution is the need of the hour. 'The Act' is a pre-constitutional legislation and in the present time is antiquated and contrary to the mandate underlying the Constitution. In the grounds allowed by the laws of dissolution of marriage, there is a discriminatory treatment meted out to Christian spouses. The discrimination is based solely on religion and hence is violative of Article 15.
34. Moreover, we find that Government of India is a party to the Vienna Declaration on the 'Elimination of All Forms of Discrimination against Women'. The declaration was ratified by the United Nations Organization of 18th December, 1979 and by Government of India on 19th June, 1993 and acceded to on 8th August, 1993. Article 2 of the Declaration on the 'Elimination of All Forms of Discrimination against Women' is as follows:
" Article 2: Violence against women shall be understood to encompass, but not be limited to, the following:16
Physical, sexual and psychological violence occurring the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women. . .'' In the case of, "Valsamma Paul v. Cochin University", (1996) 3 SCC 545: (AIR 1996 SC 1011), the Supreme Court, in its recent decision, has held, as under (atp. 1020 of AIR):
" Human Rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are inter dependent and have mutual reinforcement. The human rights for women including girl child are, therefore, inalienable, integral and individual part of the universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social and economic and cultural life are concomitants for national development, social and family stability and growth - cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights.17
24.A. Being a matter relating to dissolution of marriage among Christians in India, it may be useful to understand how marriage is generally understood in the Christian world. The classical definition of Christian marriage given by Lord Stewell, the most eminent ecclesiastical Judges in England is thus:
"..... It is a contract according to the law of nature, antecedent to civil institution, which may take place to all intents and purposes wherever two persons of different sexes engage, by mutual contracts, to live together. . . A more casual commence, without the intention of cohabitation, and bringing up of children, would not constitute marriage under any supposition. But when two persons agree to have that commence for the procreation and bringing up of children, and for such lasting cohabitation, that in a State of nature would be a marriage...."
The definition in fact brings out neatly the essential attributes of marriage relationship.
18. On amendment to The Divorce Act, 1869 (4 of 1869) with effect from 01.03.2019, Section 10(1)(x) of Act clearly states that the cruelty must be such, as to cause reasonable apprehension in the mind of the petitioner spouse that it would be harmful and injurious for the 18 petitioner to live with the respondent. It is also clear, the expression harmful or injurious cannot be limited to physical harm or injury. Keeping in view the said provision of law under the Divorce Act, the facts and circumstances in the present case needs to be considered.
19. It is an undisputed fact that the appellant and the respondent are the husband and wife and the marriage was solemnized on 08.02.2011 as per the Hindu customs and the appellant got converted herself into Christianity after being baptized on 26.05.2011 and got married as per the Christian tradition and from their wedlock, a male child was born. It is the specific allegation of the wife that the marital life of the appellant and the respondent was short lived and due to the addiction to bad vices by the husband including drinking of alcohol, eating gutka and playing Matka (gambling) was a reason for the wife to get herself separated from the husband. It is also averred by the wife that she was subjected to cruelty not only mentally due to the addiction of bad vices but also physically by way of assault at different point of time. In spite of mental torture 19 and physical assault, it is the contention of the wife that she tried to have matrimonial bliss between them but however, all the efforts made by the wife went in vain and the acts of the husband in assaulting the wife has reached a stage where the wife is unbearable to live with the husband and with a fear in mind that it would be harmful and injurious to her. It is also contended by the wife that she has been earning and maintaining the family, since the date of the marriage and fulfilling the basic need of the family. She also contends that the husband was neglecting in providing basic amenities to her and her son and due to which she had to face financial difficulty from time to time. It could be seen from the records that in the year 2013, for the first time, the wife left the matrimonial home due to the mental and physical cruelty by the husband. It could also be seen from the records that on 13.06.2014 the husband assaulted the wife and forced the wife to leave the matrimonial home with her child Nikil Kumar. It appears that in spite of all this, the wife went back to the matrimonial home with a hope that the difference between 20 the husband and wife would be solved and the husband would mend his ways. Subsequently, the wife rejoined the matrimonial home in the year 2016. In between 2013 to 2016, on 11.06.2014, the husband had physically assaulted the wife which could be clear from an undertaking affidavit filed by the husband at Ex.P.1 and the same was submitted before the Police authority which reads as under;
1. I admit that my wife namely Smt. J.H Veronica @ Manila is a Hindu and I am a Christian and we both have been fell in love and married on 08.02.2011 at Gavisiddeswara Temple, Hirehal Mandal, Rayadurga Taluk, Ananthapur district without the acquiescence from parents of my wife. And out of said wedlock, we have been blessed with a male child born on 22.12.2011 by name BALA NIKHAL. The child is aged 2 years 6 months.
2. I admit that after the said marriage a very minute period I led happy married life with my wife and there after I was not cordial with my wife and I used torture my wife without any reason. I have been consuming alcohol and gutka and I an in the habit of plying Matka and 21 that I was demanding money from my wife to purchase the motor bike.
3. I admit that I failed to provide basis needs and neglected to maintain the family and my wife under forced circumstances went to work for earning livelihood. My wife studied up-to PUC and worked in General insurance work in TATA Motors and was earning Rs.5,000/- per month and was paying house rent and bringing ration for the maintenance of family.
4. I admit that I used to beat her till late night and it is true that she got operated me in Thirumala Nursing home when I suffered appendicitis and withstand with torture given by me and it is true that my family was supported by my wife's parents.
5. I admit that on 13.06.2014 I beat my wife and injured her over her face and body and left her in front her parent's house in the late night and my wife took treatment in VIMS Bellary and MLC was registered and I beat several times.
6. Now I wanted to take my wife to my house from her parent's house and intended to lead happy married lie with my wife and I undertake following;
a. I have realized my fault and I undertake not to commit the same once again.
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b. I shall not consume alcohol, gutka and I shall not pay mutka.
c. I shall not come in the later nights and I shall not harass my wife.
d. I shall work and earn for the maintenance of the family and I provide them food and shelter and I will not neglect them.
e. I am voluntarily come forward to take my wife and child.
f. I shall not give any trouble to my in-law's and I not come to their house for any purpose unnecessarily.
g. If I violate any of the above conditions, my in-law's and my wife are at liberty to take action against me in accordance with law.
h. I am swearing to this affidavit for the purpose of giving undertaking to my in-law's and my wife so as to enable them to sent my wife to my house.
20. A perusal of Ex.P.1 clearly depicts that the husband has stated that he was consuming alcohol and eating gutka and also playing matka and it clearly depicts that on 13.06.2014, he had assaulted his wife due to which she had sustained injury over her face and body and hence, she was forced to leave the matrimonial home. 23 Ex.P.1 when confronted to the respondent/ husband at the time of cross examination has clearly admitted in an unequivocal term about the execution of the said undertaking affidavit. The relevant portion of the cross examination reads as under;
5. £À£U À É C¥ÉArPïì D¥ÀgÃÉ µÀ£ï DVzÉ CAvÀ ºÉüÀªÀÅzÀÄ ¸Àj. £À£Àß D¸ÀàvA Éæ iÀÄ RZÀð£ÀÄß £À£Àß ºÉAqÀw ªÀÄvÀÄÛ CªÀ¼À vÁ¬Ä PÀnÖzÁÝgÉ J£ÀÄߪÀ ¥À± æ ÉßUÉ ¸ÁQóAiÀÄÄ CªÀgÀÄ ºÀt PÉÆnÖzÁÝgÉ £À£Àß PÀqA É iÀÄĪÀgÀÆ ¸ÀºÀ ºÀt PÀnÖzÁÝgÉ JAzÀÄ GvÀj Û ¹gÀÄvÁÛg.É £À£Àß ºÉAqÀwAiÀÄ ºÉjUÉAiÀÄ RZÀð£ÀÄß ¸ÀºÀ £À£Àß ºÉAqÀw ªÀÄvÀÄÛ CªÀ¼À vÁ¬Ä PÀnÖzÁÝgÉ CAvÀ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è.
6. £Á£ÀÄ ¥ÀAZÁAiÀÄw ªÀiÁqÀ®Ä £Á£ÀÄ PÉ®¸À ªÀiÁqÀĪÀ ªÉÄÃ¹Û gÁdÄ gÀªg À £ À ÀÄß PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃVzÉÝãÀÄ. £Á£ÀÄ ¥ÀAZÁAiÀÄw ªÀiÁqÀ®Ä gÁdÄ E£ÀÄߪÀg£ À ÀÄß PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃUÀzÃÉ EzÀÝgÀÆ ¸ÀºÀ ¥ÀAZÁAiÀÄw PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃVzÉà JAzÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É CAvÀ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. £À£U À É FUÀ vÉÆÃj¹zÀ ¤.¦. 1 CAqÀgï mÉÃQAUï ¥Àvz Àæ ° À è ¸À» £À£ÀßzÉà ¸ÁQóAiÀÄÄ vÀ£Àß ¸À»AiÀÄ£ÀÄß M¦àgÀĪÀÅzÀjAzÀ CzÀ£ÀÄß ¤ ¦ 1J JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ.
21. The careful perusal of Ex.P.2 to P.18 would show that the husband was oftenly hospitalized due to his drinking habit, he was playing matka and the wife was subjected to grievous injury due to the assault by the husband which are as under;
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(i) Ex.P.2: The letter written by the father of the Church discloses that the husband was hospitalized and efforts were made by the father of the Church to provide the financial aid to the family.
(ii) Ex.P3: The Matka Chit of 3 sheets which shows that the husband was addicted to gambling.
(iii) Ex.P.4: The medical bills to show that the husband was frequently hospitalized due to his drinking habit and utmost care was taken by the wife by providing medical assistance.
(iv) Ex.P.5: The treatment taken by the wife on 13.06.2014 and the perusal of the receipt issued by the Vijayanagar Institute of Medical College and Hospital, would show that due to assault, the wife was admitted on 13.06.2014 to the hospital and the said documents at Ex.P.5 and P.6 would show the injuries 25 sustained by the wife on her neck, face and right arm.
(v) Ex.P7: The complaint lodged by the wife
for the assault sustained by her on
13.06.2014.
(vi) Exs.P.9 to P.17: The photographs
produced by the wife to show the physical assault sustained by her.
(vii) Ex.P.18: The legal notice issued by the wife dated 29.02.2016.
22. The Family Court at para Nos.21 to 28 though takes note of Ex.P.1-the undertaking letter by the husband, the evidence of PW.2 and the evidence of RW.1 but comes to the conclusion that the wife has failed to prove that she was subjected to physical and mental cruelty and goes on an assumption that the wife is educated more than the husband and having good income, as such there is superiority and inferiority complex between the husband and wife, which was not the relevant issue to be dealt with by the Family Court. The Family 26 Court holds that in view of the undertaking letter at Ex.P.1 and the legal notice issued by the wife at Ex.P.18 dated 29.02.2016, the act/assault by the husband has been condoned and the wife has failed to prove that even after the undertaking given by the husband at Ex.P.1, the wife was subjected to cruelty so as to endanger the life of the wife which reasoning of the trial Court is not acceptable for the reason that, as careful perusal of Exs.P1 to P.18 would clearly establish the fact that the husband has subjected his wife to mental and physical cruelty and the family Court without considering the evidence and materials on record dismissed the petition for divorce filed by the wife on the ground that she has failed to prove that she was subjected to physical or mental cruelty. It is also relevant to note here that during the pendency of the appeal, the husband has gone to the extent of assaulting the wife whereby she was forced to again lodging of complaint against her husband. As a result, looking into the materials and the evidence on record, it would clearly establish the fact that the wife was subjected to mental and physical 27 cruelty by the husband and the divorce sought by the wife is justifiable. Consistently the Hon'ble Apex Court has held that cruelty is not been defined anywhere, however, the cruelty may be physical or mental. The Apex Court in the case of Samar Ghosh V/s. Jaya Ghosh reported in 2007 (4) SCC 511 held as under;
"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior 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 Mat.
Appeal. No.617 of 2012 the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount ot cruelty, frequent rudeness of language, 28 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 halth 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 Mat.Appeal. No.617 of 2012 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- 29 to-day life would not be adequate for garnt 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 resistant for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior 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 Mat. Appeal. No.617 of 2012 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.
(xix) Where there has been a long period of continuous separation, It may fairly be concluded that the matrimonial bond is beyond repair. The 30 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."
23. The Apex Court held that 'mental cruelty' is so deep that it will create deep anguish, disappointment, frustration in one spouse caused by the conduct of the other for a long time and may lead to mental cruelty and also held that the cruelty differs from person to person and concept of mental cruelty there is no uniform standard. In another judgment by the Apex Court in the case of Dr. N. G. Dastane V/s. Mrs. S. Dastane reported in 1975 (2) SCC 326 at para No.32 held as under;
"32. One other matter which needs to be clarified is that though under Section 10(1)(b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a 31 reasonable man as known to the law of negligence for judging of matrimonial relations. Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a court inquiring into a charge of cruelty to philosophies on the modalities of married life. Some one may want to keep late hours to finish the day's work and some one may want to get up early for a morning round of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion. "The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and 32 what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.
The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures. As said by Lord Reid in his speech in Collins v. Gollins [1963] 2 A E.R. 966, 970.
In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both 33 the spouses think and behave as reasonable people."
24. The Apex Court in A. Jayachandra V/s. Aneel Kaur reported in 2005(2) SCC page No.22 at para No.11 head as under;
"11. The expression 'cruelty' has been used in relation human conduct or human behavior. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the Court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must 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 34 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." (Emphasis supplied)
25. In the present case, the cruelty is not only mental but also physical making the life of the wife miserable to live with the husband and there being very rare chances of reunion. On over all re-appreciation of the pleadings, evidence and the materials on record and in view of the dictum of the Hon'ble Apex Court, we are of the considered view that the appellant-wife has proved that the respondent-husband has treated her with cruelty, accordingly, the wife has made out a case for grant of decree of divorce on the ground of cruelty under Section 10(1)(x) of the Act.
26. In the result, we pass the following:
ORDER
i) The appeal filed by the wife is hereby allowed.
ii) The judgment and decree dated 18.08.2017 passed in MC No.163/2016 35 on the file of learned Principal Judge, Family Court, is hereby set aside.
iii) Petition filed under Section 10(1)(x) of the Divorce Act is hereby allowed and the marriage solemnized on 08.02.2011 is dissolved.
No order as to costs.
SD/-
JUDGE SD/-
JUDGE PJ