Bombay High Court
Avinash Eknath Nikalje vs Sou. Leela Avinash Nikalje on 24 October, 2002
Equivalent citations: AIR2003BOM244, 2003(3)MHLJ450, AIR 2003 BOMBAY 244, 2004 BOMCRSUP 90, (2003) 2 HINDULR 726, (2003) 3 MAH LJ 450, (2004) 1 MARRILJ 156
Author: V.C. Daga
Bench: V.C. Daga, J.P. Devadhar
JUDGMENT V.C. Daga, J.
1. This appeal is by the original petitioner/husband against the judgment and decree dated 6th March, 2000 passed by the learned Family Court, Pune in P. A. No. 262 of 1993 refusing to grant decree of divorce sought by the appellant/ husband on the ground of cruelty as contemplated by Clause (d) of Sub-section (1) of Section 27 of the Special Marriage Act, 1954 ("Act" for short).
2. When this matter was initially called out we enquired with the parties to the appeal as to whether it was possible to reconcile their differences and start living together. However, we were informed that number of attempts were made by different benches from time to time but they could not bring about any settlement between the parties, with the result, we were left with no other alternative but to proceed with the hearing and decide the same in accordance with law.
Factual Score
3. The factual score depicts that the parties to the petition got married on 31st October, 1979 under Special Marriage Act, 1954. The appellant is a Hindu whereas respondent is Christian by religion. Parties to the appeal have two sons from this wedlock. Elder son Vishal was born to them in the year 1981, and younger one Vipul was born in the year 1984. Both spouses are financially independent. Both of them are in service.
4. Both of them after marriage happily lived together. But after some time bickering started raising their head which ultimately, resulted in matrimonial litigation between the parties. The appellant/husband had filed petition for restitution of conjugal rights under the Hindu Marriage Act. The said petition; which was registered as P. A. No. 1069/1989; came to be withdrawn as the respondent/wife had furnished undertaking cum compromise admitting her mistake in filing false complaint with police, against appellant/husband on the advice of her sister, brother-in-law and sister-in-law alleging misbehaviour on his part and upon expressing her regrets for an act of threatening to commit suicide and thereby attempting to falsely implicate the appellant/ husband. The copy of the said undertaking cum compromise (Exh. 35) is on record.
5. It appears that after aforesaid compromise in the year 1989 the relationships between the parties had started showing some improvements but after some time it took a bad turn. The relations between the spouses became sour, which resulted in shooting allegations and counter allegations with character assassination of each other and went on to the extent of physical assault resulting in police complaints.
6. The appellant/husband initiated another matrimonial litigation and filed petition for divorce under Section 27(1)(d) of the Special Marriage Act being P. A. No. 262 of 1993 which came to be filed in the Family Court, Pune. On being noticed, the respondent/wife appeared in Family Court, filed her written statement. The parties were permitted to file their respective documents. They were asked to lead their oral evidence and examine their respective witnesses. The Family Court after full trial of the matrimonial dispute was pleased to refuse to grant divorce as sought by the appellant/husband.
Being aggrieved by the aforesaid verdict of the Family Court, Pune, the original petitioner/husband preferred this appeal. That is how this appeal was placed before us for final hearing.
The parties to the appeal were heard at length. Both of them took us through the rival pleadings including the evidence of the respective parties and tried their best to focus our attention to the misbehaviour of each other and tried to throw blame on each other for creating situation in which both of them are finding themselves in.
7. The law on the cruelty is now well-settled that though the word 'cruelty' has not been defined in the Act. 'Cruelty' contemplated under Clause (d) of Section 27(1) of the Special Marriage Act does not attract the old English doctrine of physical danger. It is similar to that as contemplated in Section 13(1)(ia) of the Hindu Marriage Act. 1955, After the amendment of 1976, 'cruelty' contemplated by Section 13(1)(ia) of the Hindu Marriage Act is a conduct of such type that the petitioner cannot reasonably be expected to live with the respondent or that it has become impossible for the spouses to live together. Similar is a concept of 'cruelty' in the Special Marriage Act. The concept of cruelty in both these legislations is identical, as such ruling available under the Hindu Marriage Act can be the good guide to decide cases arising out of the Special Marriage Act. This is now clear in view of the recent decision of the Supreme Court in the case of V. Bhagat v. D. Bhagat, . On a review of the earlier Supreme Court decisions, right from the case of Dr. N. G. Dastane v. Mrs. S. Dastane, , the Supreme Court has laid down the legal position which now obtains after the amendment of 1976 to the Hindu Marriage Act. In N. Bhagat v. D. S. Bhagat (supra), the Supreme Court has observed, thus at page 437 (of JT (SC)), (at p. 717 of AIR) :
"17. Mental cruelty in Section 13(1)(ia) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such ,a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable, to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. It is a case of accusations and allegations, regard must also be had to the context in which they were made."
8. The Apex Court recently in the case of S. Hanumantha Rao v. S. Ramani, laid down what would constitute cruelty. The Apex Court again in the case of G. V. N. Kameswara Rao v. G. Jabilli, 2002 AIR SCW 162 held that to constitute cruelty it need not be of such nature as causing reasonable apprehension that it would be harmful to the party to live with other party. The Apex Court held that having regard to the sanctity and importance of marriage in a community life, the Court should consider whether the conduct of the counter petitioner is such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the Court can find that there is a cruelty of the counter petitioner. The Apex Court in another judgment in Chetan Das v. Kamala Devi, has taken a view that to constitute cruelty there must be evidence in support of the averments made in the petition.
9. On the above canvas of law, it would be necessary to examine the averments made in the petition including the reply thereto. In the light of rival pleadings, the evidence of the parties will have to be appreciated so as to find out whether or not the husband has made out the case sought to be canvassed.
Alleged act of cruelty :
10. The appellant/husband, amongst others, alleged following acts of cruelty in the petition, which need serious consideration.
(i) The respondent/wife did not take proper care of the children or mother-in-law and used to abuse both of them. On being questioned about her behaviour, she used to reply that she did not want to stay with mother in law and wanted to have a separate residence.
(ii) The respondent/wife always used to threaten with lodging false police complaints and tried to commit suicide on 28th February, 1998 by pouring kerosene on her person. On one another occasion she attempted to strangulate herself with her saree.
11. Apart from the aforesaid grounds, the appellant/husband also brought subsequent events on record alleged to have occurred during the pendency of the petition so as to highlight indecent abuses showered by the respondent/wife together with her act of filing false police complaints against him followed by various other acts constituting indifferent behaviour with the appellant/ husband, his mother and children. The subsequent events having bearing on the matter are reproduced hereinbelow,
(a) The acts of respondent/wife staying with her brother-in-law and moving with him on mother cycle which were admitted by her in her application dated 5th September 1993.
(b) The act of respondent/wife and her brother-in-law who had chased the appellant/husband on 18th May 1993 on motorcycle and thrashed him in public. The act of respondent/wife running away from the scene and lodging a false complaint to the concerned police immediately thereafter.
(c) The act of respondent/wife calling the appellant/husband on telephone and threatening him with police complaints and to prosecute him under Section 498-A of I.P.C.
(d) The act of respondent/wife coming to the residence of appellant/husband and abusing him in vulgar language in a most indecent manner and threatening him with dire consequences which compelled appellant to file an application to bring it to the notice of the Family Court on 4th July 1993.
(e) The act of respondent/wife visiting the younger son in school on 3rd July 1993 and injuring him and also visiting elder son in school during the school hours by disobeying rules of the school.
(f) The act of respondent/wife visiting the residence of appellant/husband on 8th November 1993, 10th November 1993, and 12th November 1993 and act of abusing him and his mother.
(g) The act of respondent wife again coming to the residence of appellant/husband on 10th March 1994 and abusing him in a provocative and indecent language with her behaviour of respondent/wife with children during pendency of petition by exploiting the right of access granted by the Family Court.
Counter attack by wife :
12. The respondent/wife filed her written statement followed by additional written statement and denied all the allegations levelled against her. She had also filed applications (Exh. 63 and Exh. 67) for amendment of written statement and tried to make out a new case alleging illicit relationship with one Miss Aruna Balgude. At this juncture, it will be curious to note that she conveniently avoided to incorporate following two sentences while incorporating the text of the amendment in her written statement. Those two sentences were reading as under:
^^o fn- 13-8-95 jksth lnjgw v:.kk vtZnkj ;kapsp lkscr gksrh-** ^^frFks xsY;kuarj tko.ksnk ghus vtZnkj o lnj v:.kk ;kauk udks R;k vojFkar ikfgys-** The deletered sentences had an effect of suggesting not only the illicit relationship but the sexual relationship between the petitioner and said Aruna. We propose to deal with this act of the respondent/wife independently, in the later part of the judgment.
The Argument :
13. The learned counsel appearing for the appellant/husband contended that ample material is on record to prove number of the acts committed by the respondent/wife which are sufficient to prove his case. It is pertinent to note that the undertaking cum compromise is signed at two different places on the same page, wherein, correction was made by wife in her own handwriting. This evidence is sufficient to falsify her case that her signatures were obtained on blank papers by the appellant/husband and the same were used for filing the said undertaking cum compromise. Having seen the said document filed on record, it is clear that one sentence was added by her in her own handwriting in the nature of undertaking from the appellant/husband that he shall not act in revengeful manner. The said sentence is initialled by both parties. The respondent/wife has changed her version about the same and put different versions in her written statement and oral evidence alleging that the appellant/husband had obtained her signatures on some blank papers and such papers were used for filing the undertaking, whereas in oral evidence she stated that the appellant/husband had obtained the said undertaking under pressure. In his submission, both these versions would be unacceptable to any prudent person.
14. The learned counsel for the appellant further submitted that the Family Court has improperly read the documents on record. The report of the counsellor produced on record by the appellant/husband does not show that even at the time of filing of the earlier petition, the respondent/wife was residing with the appellant/husband. The case of the appellant was that respondent/wife left matrimonial home as such petition for restitution of conjugal rights was required to be filed. During the pendency of the said proceeding a compromise was arrived at between the parties and the respondent/wife came to reside with the appellant/husband after filing of the undertaking cum compromise on record. The petition was kept pending, for some time and thereafter, after some months the parties reported to the Counsellor about the compromise. The learned counsel for the petitioner urged that if the facts are viewed in its proper perspective, the finding of the Court below that the petition for restitution of conjugal rights was filed during her stay with her husband is wrong.
15. The learned counsel for the appellant/husband, with respect to the finding of the Family Court that the appellant/husband was confused about leaving of the residence by the respondent/wife and that he was not sure as to when she left him, submitted that this finding is also wrong as it was a specific case of the appellant that the respondent used to leave him abruptly and used to return back without reasons. He urged that the respondent/wife lastly left the appellant/husband after filing of the petition No. A-262 of 1993. At the time of filing of this petition, though the respondent/wife was staying with the appellant/husband but she was treating him with cruelty.
16. The learned counsel for the appellant submitted that the Family Court unnecessarily branded the witnesses examined by the appellant as interested and tutored witnesses. The evidence of his son cannot be said to be tutored one. At the time of his evidence, he was eighteen years old. He was aware about the reality, facts and circumstances prevailing in the family. He was not a small child so as to talk something rubbish against his mother. He submitted that had it been so, many instances narrated by the appellant/husband could have been stated by him. However, since those instances did not take place in his presence, he did not depose in that behalf. He deposed everything as per his own memory and the same can clearly be seen from his deposition.
17. The learned counsel for the appellant/husband in order to show falsity of the stand taken in the written statement pressed into service the pleadings pleaded by the respondent/wife, wherein it was alleged that on many occasions when the appellant/husband used to beat respondent/wife, son Vishal used to intervene and request the appellant/husband not to beat his mother and thereupon the appellant/husband used to beat Vishal mercilessly. The learned counsel urged that this aspect of the matter has not been proved by the respondent/wife through her evidence. She did not depose any thing in this behalf in her oral testimony nor any such suggestion was ever given to Vishal in his cross-examination. Had it been a fact, son Vishal would not have deposed in favour of the appellant/husband, particularly, when the respondent is also capable of providing everything needed for his education. He submitted that no son would make allegations against his own mother about her indecent behaviour, about her moving on motorbike with some other persons unless he himself is a witness of it.
18. As regards evidence of PW-2, Subhadrabai is concerned, the learned counsel for the appellant urged to look at her age when she deposed before the Court. There was no reason for her to depose against the respondent/wife, particularly, when their initial relations were cordial. He submitted that it is but natural, in a matrimonial dispute, to have the witnesses from the family only. Outsiders always avoid to come before the Court. He submits that she being a mother her evidence needs to be considered with a pinch of salt but cannot be rejected outrightly only because she happened to be a mother of the appellant/husband.
19. The learned counsel further submitted that finding of the Family Court that subsequent events cannot be considered while deciding the present petition is also legally wrong. On the contrary, the legal position is quite otherwise. The law is now well settled on this question. There are various decisions of the Apex Court as well as of this Court which state that the subsequent events are required to be considered so as to avoid multiplicity of proceedings between the parties and to mould the relief.
20. The learned counsel for the appellant further submitted that apart from proving earlier undertaking admitting mistakes by respondent/wife in earlier petition, the appellant sought to rely on few other acts of cruelty.
21. It is submitted that the incident dated 18th May, 1993 about following the appellant by respondent/wife with her brother-in-law on motorcycle which ultimately resulted in thrashing the appellant by her brother-in-law and the act of respondent/ wife laughing at time and then running away from the scene has been proved by the appellant/husband, as the said portion of deposition has gone unchallenged. The appellant was not cross-examined on this aspect of the matter. She did not deny the said incident nor did she state anything about the said incident either denying or explaining her conduct in her deposition. This incident was brought to the notice of the trial Court when the appellant had filed application on record in this behalf. Apart from making counter allegation in the written statement, the respondent/wife claimed to have lodged complaint to the police against the appellant/husband in this behalf. However, the respondent has neither proved her case by deposing it on oath nor did she make any attempt to deny said incident as alleged by the appellant. Thus it is submitted that the appellant has proved that the respondent filed false complaint with police against him which in his submission constituted on act of cruelty.
22. It is submitted that the conduct of the respondent/wife constituting an act of cruelty with her own children has also been proved. The respondent/wife during the period during which she was exercising her right of access used to talk with some other children, but deliberately used to avoid talking to her own children. She was using her legal right of access as a tool to harass the appellant/husband and children. The learned counsel for the appellant relied upon the admission of the respondent/wife in her cross examination, wherein, she admitted that she never used to enquire with the children about their education or about their health. She never enquired as to whether the children were being properly looked after by the appellant and his mother. She never used to invite her children at her residence. It is thus submitted that all these admissions coupled with her reply to the application of appellant, in the light of evidence of the elder son Vishal read with deposition of appellant and his mother, if put together, are sufficient to prove cruelty practised by the respondent/wife. As such it was submitted that the conduct of indifferent behaviour with her own sons and impact of her conduct on the mind of the appellant/ husband was sufficient to constitute an act of mental cruelty.
23. It is further submitted that the appellant has proved that the respondent/wife was not only treating the appellant/husband improperly but used to shower abuses on him. By not providing proper and sufficient food to children, by not playing with children and by not looking after their studies, she had committed an act of negligence constituting an act of mental cruelty vis-a-via her husband. The learned counsel for the appellant further submitted that apart from above, travelling on the motorbike, scooters with third persons on pillion seat by putting hand on their shoulders was also an act constituting cruelty and the same stands proved on the basis of evidence of Vishal, who was major and was able to understand the abnormal behaviour of his mother. In his submission, such a behaviour definitely constitutes an act of mental cruelty.
24. It is submitted that the appellant has also proved threats administered by the respondent/wife to commit suicide and thereby tried to involve the appellant/husband in a false case. The appellant also claimed to have proved earlier act dated 28th February 1993 constituting an attempt to commit suicide by the respondent/wife by pouring kerosene on her person and sought to rely upon the evidence of the appellant/ husband as well as of son Vishal in the light of the fact that there is nothing on record to discard their testimony in this behalf.
25. It is also urged that the appellant has proved the threats administered by the respondent/wife and her brother-in-law to the children sometimes in the presence of the appellant/husband and at times in his absence. Apart from the above, wild and baseless allegations levelled by the respondent/wife in her amendment application as well as in the written statement about alleged unchaste life of the appellant/husband and alleged illicit relationship of appellant alleged to be with one Aruna Balgude, though material part of it has not been incorporated while carrying out amendment in the written statement. The allegations were never supported by any oral evidence. In the circumstances, the submission is that the allegations levelled by the respondent/ wife against the appellant/husband being absolutely false caused mental torture amounting to cruelty.
26. The learned counsel for the appellant while concluding his submissions urged that earlier acts of cruelty and misbehavior of the respondent/wife, after admission of her guilt in the undertaking cum compromise filed in the earlier proceeding meant for restitution of conjugal rights, coupled with above other numerous acts constituting cruelty have been duly proved by the appellant and the same are sufficient to grant decree of divorce in favour of the appellant. He criticized the judgment of the trial Court contending that the trial Court recorded adverse findings without assigning proper reasons and even without discussing the evidence on record. He thus urged for reversal of the findings including the findings of fact recorded by the trial Court and prayed for decree of divorce.
27. The learned counsel appearing for the appellant relied upon various judgments of the Apex Court including that of Dr. N.G. Dastane v. Mrs. S. Dastane, (supra) placed reliance on the observation made in para 57 of the said judgment, which reads as under, "57. But condonation of matrimonial offence is not to be likened to a full Presidential Pardon under Article 72 of the Constitution which, once granted, wipes out the guilt beyond the possibility of revival. Condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. "No matrimonial offence is erased by the condonation. It is obscured but not obliterated.".................."
28. He also placed reliance on the judgment of this Court in the case of Rajan Vasant Revankar v. Mrs. Shobha Rajan Revankar, to contend that the subsequent events and conduct even during the pendency of the appeal can be taken into account for granting relief to the petitioner. He in support of his submission relied upon the judgment in the case of Parihar (Priti) v. Parihar (Kailash Singh), to contend that the relief can be granted on the basis of the events that (had) taken place subsequent to the suit. In order to mould relief even the appellate Court can take into account the facts that came into existence even after the decree by a trial Court.
29. The learned counsel for the appellant submitted that latter conduct of the respondent/wife has resulted in reviving the cruelty and further went on to contend that irresponsible insinuations and allegations made during the course of evidence against the husband and his family members could not have been casually brushed aside by the Family Court by saying, these were the acts of normal wear and tear of the married life.
30. He also pressed into service the submission that there is irretrievable break down of the marriage of the parties considering the serious allegations made by the respondent/wife throwing mud on the character of the appellant/husband and looking to their age, it is not possible for them to reconcile. Even the children are not ready to stay with their mother and, therefore in the submission of the learned counsel for the appellant this is a fit case not only for granting divorce on the ground of cruelty but also dissolving the marriage which is dead for all practical purposes.
31. Per contra, the learned counsel appearing for the respondent/wife tried to support the judgment of the trial Court and submitted that no sufficient material is available on record to justify grant of decree of divorce on the ground of cruelty in favour of the respondent/husband. All the while the respondent/wife wanted to be with her husband. The respondent claimed to have taken reversion to the lower post only because she wanted to be with her family at Pune and she always had a desire to have good relations with the appellant/husband and children.
32. The learned counsel for the respondent urged that the respondent/wife was reluctant to live at Tingarenagar because there was no regular water supply, no good roads, her office was 8 km. away and that she had no vehicle, she had to walk down for about 1 km. to take bus to go to her office. The respondent/wife was also suffering from spondylitis. It is further pointed out that in the year 1988 the appellant/husband was transferred from Satara to Pune. The appellant/husband used to drop and collect respondent at her office. He always used to taunt her on her going to office or sometimes outside the house. At that time respondent/wife was not in a position to ask any question. After coming back home whenever respondent/wife used to ask about the same the appellant/husband used to pick up the quarrels. It is further pointed out by her counsel that when her elder son was suffering from hernia and was required to be operated, the respondent had taken earned leave from office. When respondent's father was admitted in hospital and was serious, the appellant/husband did not allow her to go to her parents place. Thereafter respondent's father expired. Both of them had gone for last ritual ceremony. The respondent/wife stayed at her parents residence with the consent of the appellant. After three days the respondent/wife came back to her house and the appellant/husband abused her by alleging that she overstayed at her parents place because she wanted to sleep with her brother. It became intolerable for her to digest such wild allegations, therefore, she left the house again. When she returned back with her brother, sister-in-law and sister, the appellant/husband picked up quarrel with the brother and other family members of the respondent/ wife which ultimately resulted in a police complaint at Vishrant Wadi Police Station. At that time, the appellant had admitted his mistake before the police officer. On the next day, he tendered his apology to the police, in turn, the police officer advised the respondent to go back with her husband, the appellant. Accordingly, she went back to her husband's home.
33. The respondent further pointed out that the appellant sent legal notice through his Advocate. The said notice was sent on the office address of the respondent. After receiving the notice the respondent went to the office of the appellant but he immediately snatched the notice from the respondent and asked her to go to her office. Appellant also sent notice to the respondent's brother. After four months, when the respondent received phone call of Counsellor, she for the first time came to know that the appellant had filed petition against the respondent for restitution of conjugal rights. In the petition (Exh. 1), the address of the respondent/with was given with a note that summons be served on respondent's office a'ddress. In the said petition it was written that the respondent was living at the residence of her sister-in-law. On 21st December 1989 application was submitted before the Family Court reporting compromise. On 21st December 1989 itself the Counsellor submitted report before the trial Court that parties were staying together. On 27th January 1990, an application was given by the appellant/husband stating therein that the respondent/wife was residing with the appellant/husband as his wife and there was no quarrel of any type between them. That is how the said P. A. No. 1069 of 1989 came to be withdrawn by the appellant. On 15th April 1993 appellant filed present petition for divorce wherein; appellant's own address was shown as address of respondent together with her office address. From all these circumstances, she tried to contend that she did not commit any act constituting cruelty, as such appeal is liable to be rejected.
THE ISSUE
34. Heard the parties at length. Perused record and proceedings. Examined rival contentions. The crux of the issue which needs consideration is as under :--
Whether or not the appellant/husband has made out the case that after solemnization of marriage the respondent wife has treated him with cruelty?
CONSIDERATION AND FINDINGS
35. Having heard the parties and having appreciated the dispute between the parties in the light of various allegations made by the appellant/husband in his petition as also the counter allegations made by the respondent/wife in her written statement, it appears that the Family Court has not taken into account some glaring facts which need to be noted in this appeal. The married life of the appellant and respondent started in the year 1979, and immediately, after 2 years the parties were under severe mental stress. Both the parties mutually tried to put blame on each other and, ultimately, both were driven to Matrimonial Court. The first matrimonial dispute was compromised between the parties wherein respondent admitted her misconduct and prayed for one more chance. An opportunity was given by the appellant/husband to the respondent/wife to prove her undertaking which, ultimately, proved to be futile, The appellant was forced to initiate another matrimonial litigation.
36. Section 27(1)(d) of the Special Marriage Act reads as under.
"27. Divorce.--(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent-
(a) to (c) ... ... ...
(d) has since the solemnization of the marriage treated the petitioner with cruelty;"
Under the above Section 27(1)(d), in a petition presented either by the husband or the wife, the marriage could be dissolved by a decree of divorce on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. Cruelty is not defined in the Act. Similar was a position under the Hindu Marriage Act-Some of the provisions of the Hindu Marriage Act were amended by the Hindu Marriage Laws (Amendment) Act, 1976. Prior to the amendment, 'cruelty' was one of the grounds for judicial separation under Section 10 of the Hindu Marriage Act. Under that section, "cruelty" was given an extended meaning by using an adjectival phrase viz. "as to cause reasonable (apprehension) in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". By the Amendment Act of 1976, 'cruelty' was made one of the grounds for divorce under Section 13, and the relevant provision reads as under, "Divorce--(a) Any marriage solemnized, whether before or after the commencement of the 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-
(i) .........
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty, or (ib) ...........
(ii)--(ix) ...............
The comparison of the above section with that of Section 27(1)(d) of the Special Marriage Act will show that now both provisions are brought at par with each other.
37. The omission of the words, which prescribed 'cruelty' in the unamended Section 10 of Hindu Marriage Act, has some significance in the sense that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful to the petitioner to live with the other party. English Courts in some of the earlier decisions had attempted to define, 'cruelty' as an act which involves conduct of such a nature as to have caused damage to life, limb or health or to give reasonable apprehension of such danger. But we do not think that such degree of cruelty is required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed with the intention to cause suffering to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct.
38. 'Cruelty' is a relative term. It varies from person to person, and case to case. The allegation and conduct does not amount to cruelty in every case. It depends on the status of the spouses and the atmosphere in which they live. That has to be understood by seeing neatly the background behind it and effect which is likely to be caused by such allegations and conduct. In this case, after marriage the respondent's behaviour in the matrimonial home was not cordial. She never cared to do household chores. She was disrespectful towards her mother-in-law and was insisting for separate residence. 'Cruelty' implies and means harsh conduct of such intensity and persistence, which would make It impossible for the spouse to operate the marriage. Cruelty though not defined in the Act, it is to be determined on the basis of proved facts and circumstances of the case. No fixed formula can be had for cruelty. In the case in hand, the above conduct in the matrimonial home coupled with her threats and attempts to commit suicide, her act of lodging false complaint against her husband and her threats to initiate proceeding under Section 498-A I.P.C. are the instances of cruel behaviour towards the appellant/husband. With this conduct, it was impossible for the appellant/husband to live peacefully with the respondent/wife in the conjugal home.
39. As already observed hereinabove, it is not necessary that cruelty must be of such magnitude that would cause reasonable apprehension that it would be harmful or injurious to the appellant. Cruelty must be of such a type which will satisfy the conscience of the Court that the relationship between the parties has deteriorated to such an extent that it has become impossible for them to live together without mental agony. Cruelty generally does not consist of a single isolated act but consists of a series of acts spread over a period of time. The cruelty practised may be in many forms and it must be productive of an apprehension in the mind of the other spouse that it is dangerous to live with the erring party. In the case at hand, false and wild allegations were made by the respondent herself against her husband in the written statement without any basis or foundation which were sufficient to cause mental agony to the appellant-husband. Making false allegations in the written statement and then in the open Court about the character of the husband and the family members so as to injure the reputation of the husband amounts to cruelty. In this case, reckless allegations in the pleadings of the respondent/wife furnishes a ground to grant a decree of divorce in favour of appellant/husband on the ground of cruelty.
40. The standard of proof required is a preponderance of probability and not "beyond all reasonable doubts" as in the criminal proceedings. The first step in this process is to fix the probabilities. The second is to weigh them, though the two may vary often mix up and intermingle. The impossible Is, therefore, eliminated at the earliest and Improbable at the next. In this case, wife lodged false report against her husband. He was required to attend police station with his mother and a guest which was at his residence, causing severe harassment. As already found hereinabove, the respondent/ wife attempted to commit suicide by pouring kerosene on her person and tried to strangulate herself. All these instances are bound to cause mental agony to the husband.
41. Ample material is on record to show that even the children were not properly treated. No act of love was ever shown towards the children and all the while she was staying with her brother-in-law. She was also seen moving with him on motorcycle. She had threatened the appellant/husband with police complaints. Evidence is also on record to show that she used to abuse her husband with vulgar language in most indecent manner and threatened him with dire consequences on number of occasions. Respondent/wife went to the extent of making false allegations not only of illicit relationships but also of sexual relationship between the appellant and one Aruna Balgude.
42. Thus, taking overall view of the matter and considering cultural difference between the two spouses, coming from two different religious background, a case sought to be made out by the appellant/ husband could not have been rejected by the Family Court. The case of the appellant that he has been subjected to cruelty by the respondent/wife is not based only on the one or two instances, but after their marriage in 1979, after some years, both of them found it difficult to live together any longer period as a happy married couple. The appellant succeeded in proving that the attitude of the respondent/wife was not cor--dial. It is not difficult to reach to the conclusion that the married life was not happy and cheerful. The way in which the appellant/husband was treated by the respondent/wife after initiation of the first litigation and the fact that the appellant on one occasion was physically assaulted by her brother-in-law is sufficient to put an end to the matrimonial life of the appellant/husband.
43. At this juncture it will not be out of place to mention that undertaking given by the respondent/wife was genuine and out of her free will. The condonation of matrimonial offence as observed by the Apex Court cannot be likened to a full presidential pardon under Article 72 of the Constitution of India, which once granted, wipes out the guilt beyond the possibility of revival. Condonation is always subject to the implied condition that the offending spouse will not commit a fretsh matrimoriial offence, either of the same variety as the one condoned or of any other variety. In view of this legal position, the appellant husband can rely upon the instances of cruelty committed by the respondent/wife and admitted in the first round of litigation.
44. Thus, taking over all survey of the evidence and facts and circumstances brought on record, the material produced and the findings recorded by the Courts below, we do not think that this is a case where appellant should be denied relief under Section 27(1)(d) of the Special Marriage Act. The other various circumstances brought on record show that relationship between the parties were irretrievably broken and because of non-co-operation and hostile attitude of the respondent/wife, the appellant/husband was subjected to serious traumatic experience which can safely be termed as 'cruelty' coming within the purview of Section 27(1)(d) of the Special Marriage Act. Therefore, we are constrained to hold that the appellant is entitled to a decree for dissolution of marriage under Section 27(1)(d) of the Special Marriage Act.
45. Let us now turn to the conduct of the respondent/wife who played with the record of the Court proceedings. She moved an application for amendment of her written statement so as to incorporate allegations leading to the character assassination of her husband, the present appellant. Application for amendment was allowed by the Family Court. While incorporating the text of amendment in her written statement, she chose to delete certain portion therefrom as indicated in para-12 supra.
46. Had it been a bona fide error, we would have overlooked this lapse granting some latitude in favour of the respondent/ wife, but finding no attempt on her part to correct the record of the Court in spite of bringing this fact to her notice leads us to draw an inference that it was a deliberate act on her part to play with the record of the Court, while considering the conduct of the respondent/wife in the above backdrop, we cannot overlook important observations of the Apex Court made in the case of S.P. Chengalvaraya Naidu v. Jagannath, reiterated in the case of Chandra Shashi v. Anil Kumr Verma, . In the said judgment it is observed that:
"The stream of administration of justice has to remain unpolluted so that purity of Court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of Court's environment, so also to enable it to administer justice fairly and to the satisfaction of all concerned.
2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings, or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of Justice."
Considering the entire background, facts and circumstances, in order to express our displeasure for the manner in which the respondent/wife played with the record of the Court, we are constrained to impose costs on the respondent.
47. Since both the parties to the appeal are economically independent and are standing on their own legs, we do not think, any order directing maintenance to the respondent/wife would be justified. Accordingly we set aside the impugned Judgment and decree passed by the Family Court. In the result, appeal is allowed with cost quantified in the sum of Rs. 3,000/-.