Madhya Pradesh High Court
Deepak Natkar vs Smt. Deepali Natkar on 27 April, 1992
Equivalent citations: AIR1992MP278, II(1992)DMC401, AIR 1992 MADHYA PRADESH 278, (1992) 2 DMC 401
JUDGMENT S.K. Dubey, J.
1. This appeal under Section 28 of the Hindu Marriage Act, 1955 (for short, the 'Act') has been preferred by the husband against the refusal of grant of a decree of dissolution of marriage by divorce.
2. The husband/appellant/petitioner (for short, the 'petitioner') presented a petition under Section 13(1)(ia) and (ib) of the Act on 1-12-1987 in the Court of District Judge, Shajapur, averring therein that the petitioner who is employed in M. P. Electricity Board at Shajapur, was married to the respondent according to Hindu rites in the year 1980 and from the wedlock they have a daughter. Two years after the marriage, the respondent got an employment in Education Department near Ujjain and was living since then at her parents' house. Because of the employment the respondent was not discharging her duties towards petitioner, who asked her to get herself transferred to Shajapur or to relinquish the job. The petitioner complained of the respondent's cruel ill-treatment with . petitioner's parents, and with him in not allowing him to cohabit with her and in mentally torturing him by not following his wishes and not living with him. At occasions the respondent quarrelled with the petitioner, levelled against him the charge of adultery and threatened to commit suicide, once the respondent mixed poisonous material with the food and gave it to the petitioner. Besides, it was alleged that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition without reasonable cause and without his consent and against his wishes. The respondent denied all the allegations and submitted that the petitioner wants to marry one Anju Gupte and, therefore, presented the petition on false and made up grounds; the respondent got the employment in Education Department at the instance and with the consent of the petitioner only as the financial condition of the family of the petitioner was not sound. As regards her posting the petitioner insisted not to get her transferred to Shajapur, as he was likely to be transferred; she used to go on holidays and Summer vacations to Shajapur to live with her husband and never refused to cohabit. During conciliation proceeding, the trial Court ordered the respondent to stay in her matrimonial home for 15 days so as to resolve the differences, if any, amicably, which the respondent complied, but the petitioner at his residence even refused to talk to her.
3. The trial Court after appreciating the evidence adduced by parties found none of the charges proved, dismissed the petition for grant of decree of divorce, which has been challenged in this appeal.
4. Shri K.L. Sethi, counsel for the appellant, and Ku. K. K. Wagh, counsel for the respondent, were heard.
5. Shri Sethi, counsel for the appellant, placing reliance on a decision of the apex Court in Dr. N.G. Dastane v. Mrs, S. Dastane, AIR 1975 SC 1534, contended that the trial Court has erred in not deciding the c'ase on balance of probabilities, as in matrimonial matters proof beyond reasonable doubt, which generally governs criminal trials or trials involving inquiry into issues of a-quasi criminal nature, is not applicable. The conduct of the respondent clearly demonstrates that she is not living with the petitioner in the matrimonial home to deny him the right of cohabitation, which is mental cruelty and falls within the ambit of 'cruelty' used in Clause (ia) of Sub-section (1) of Section 13 of the Act; in the circumstances, therefore, living of the two together has become incompatible with the relationship of which the foundation is that one spouse must give the other physical support and mental happiness, as sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfilment. Counsel also placed reliance on a short-noted decision of this Court in Umadevi v. Naresh-chandra 1988 (ii) MPWN 18, wherein this Court has held that 'cruelty' used in Clause (ia) of Section 13(1) of the Act includes cruelty of the type as would embrance the concept of mental cruelty resulting from denial to the husband the right of cohabitation.
6. After hearing counsel and on a close examination of the evidence, in my opinion, the view taken by the trial Court does not call for any interference, as none of the two charges, which 1 deal with one by one below, are not proved on evidence.
7. Coming to the charge of 'cruelty'; the word 'cruelty' has not been defined in the Act, which came up for consideration before the apex Court in case of Shobha Rani v. Madhukar Reddi, AIR 1988 SC 121, where in paras 4 and 5 it was observed thus:--
4. Section 13(1)(ia) 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 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 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 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 of change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions in life. We may 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 precedents. Because as Lord Denning said in Sheldon v. Sheldon, (1966) 2 All ER 257 (259) "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."
8. So far as the first allegation that the respondent has treated the petitioner with cruelty in not allowing him to cohabit with her, is .concerned, the respondent in her written statement has denied the allegation and stated on oath that after she got the job in Education Department, she used to go to her husband's place of residence on holidays, lived with him and performed all the duties as a faithful Hindu wife, to the best of her ability. The letter (Ext. D/1) written by the petitioner to the respondent, shows that the petitioner had admired the financial assistance given by the respondent to his family; the petitioner did not make any complaint of non-fulfilment of duties and obligations of a faithful wife, and asked her to come on Saturday informing her that he will reach Ujjain on the next Sunday. This all proves that the petitioner and the respondent were staying under one roof as and when they got opportunities on holidays and vacations.
9. Not only this, after suffering mental agony on presentation of the petition, the respondent went to the petitioner's residence to resolve the dispute raised but it was the petitioner who adopted a stubborn attitude of even not to talk to her for the reasons best known to him.
10. The next allegation against the respondent is of her ill-treatment with her in laws. Suffice it to say, the parents of the petitioner having not entered the witness box, the mere allegation and bald statement of the petitioner cannot be taken to be sufficient to prove that the respondent ill-treated her in laws. On the other hand, the respondent's statement shows that her relations with her in laws were very cordial, her behaviour with them was gentle and courteous and she treated them with respects. The other allegation of preparation of food for petitioner by mixing some poisonous material has also not been found proved, as the said food was not got examined by some expert. Besides, there is no mention of this allegation in the notice (Ext. P/1). Similarly, the allegation of rubbing some ointment on the boil in the petitioner's leg, which according to him was poisonous, was also not found proved, as the petitioner, though stated in his statement that he got himself treated by two doctors, namely, Dr. Trivedi and Dr. Soni, has not examined them to prove the allegation.
11. As regards the threat of committing suicide by the respondent, the respondent has specifically denied on oath that she ever gave any threat. On the other hand, she only objected to her husband's company with one Anju Gupte. Therefore, if on this count there was any misunderstanding or bickering in the mind of the respondent, it was the petitioner who was bound to resolve it amicably.
12. Another allegation of cruelty is that the respondent did not attend the marriage of petitioner's younger brother, which the respondent has rightly explained that prior to the marriage of the petitioner's brother, the petitioner had already served on her the notice, Ext. P/1, for proceeding against her in the Court for dissolution of marriage.
13. Coming to the allegation of desertion:
It is trite that "desertion" within the meaning of Clause (ib) of Section 13(1) does not imply only a separate residence and separate living, but it is necessary that there must be a determination to put an end to marital relation and cohabitation. Therefore, to prove the charge of "desertion" it is essential not only to prove the factum of desertion but also animus deserendi. See Smt. Rohini Kumari v. Narendra Singh, AIR 1972 SC 459, and a decision of this Court in case of Subhashchand Telang v. Smt. Rajlaxmi Telang, 1991 (1) MPWN 128.
14. Now, the facts of the present case have to be considered to find out whether the petitioner has proved "desertion" or not. The plea of desertion is mainly based on the ground that since the respondent has taken up the employment, she is living separately. It is clear from the evidence adduced that the respondent opted for the employment in Education Department at the instance and with the consent of the petitioner, as the father of the petitioner was retired and two younger brothers of the petitioner were studying therefore, to give financial assistance to the family the respondent applied for job; before her posting vide Ext. P/ 3 she asked the petitioner where should she get her posting
--either at Shajapur or at a place nearby Ujjain. From the respondent's statement, which remains unrebutted, it is clear that it was the petitioner who had asked her not to take the posting at Shajapur, as he was likely to be transferred to Jabalpur, and if she is posted at Shajapur, it would be difficult to get her transferred from there. It is also proved that after getting the employment, she used to go on holidays and summer and Winter vacations to live with her husband at Shajapur and the petitioner also used to come to Ujjain. From Ext. D/1 dated 22-7-1985 it is clear that the relationship between the two was cordial and the petitioner was happy with the financial assistance being rendered by the respondent. In this letter the petitioner had not complained of any act of desertion much less cruelty, but, on the other hand, asked her to come in the afternoon of coming Saturday proposing that on the next Sunday he will come to Ujjain. It is for the first time that the allegation of desertion was made as a ground in the notice, Ext. P/l. The conduct and circumstances show that the respondent had no intention to put an end to marital relationship between the two. In the circumstances, on overall picture of the evidence and weighing the probabilities of the case, the mere fact of living at a different place because of the employment does not prove that the respondent had an intention to put an end to matrimonial relationship. On the other hand, there is enough material on record to show that the respondent always remained ready and willing to perform her duties and obligations as a faithful wife. Hence, the petitioner is not entitled to the decree. See Dr. Bhallabha Das Shah v. Smt. Sushila Bai, AIR 1988 SC 2089.
15. Therefore, considering the overall evidence, the cumulative effect of all the circumstances and the conduct of the parties, the petitioner has not proved the acts complained of. As rightly contended by the counsel for the respondent, relying on the apex Court's decision in Madhusudandas v. Narayani Bai, AIR 1983 SC 114, on preponderance of probabilities the charges of "cruelty" and "desertion" have not been made out for dissolution of the marriage by a decree of divorce and, therefore, no interference is called for in appeal, as the findings are not unreasonable or perverse.
16. In the result, the appeal has no merit and is dismissed with costs. Counsel's fee Rs. 500/- if precertified.