Andhra HC (Pre-Telangana)
Popuri Sunita Lakshmi vs Poppuri Srinivas on 25 July, 2003
Equivalent citations: AIR2004AP187, II(2004)DMC283, AIR 2004 ANDHRA PRADESH 187, (2004) 2 ANDH LT 296, (2004) 1 ANDHWR 386, (2004) 2 DMC 283, (2004) 2 MARRILJ 174
JUDGMENT T. MEENA KUMARI, J.
1. This appeal is directed against the order of the Senior Civil Judge, Kothagudem dated 29-7-2000 made in O.P. No. 122 of 1996 allowing the O.P.
2. The appellant herein is the wife. The respondent filed the above O.P. under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (for short, the Act) for dissolution of the marriage by a decree of divorce on the ground of cruelty. The marriage between the appellant and the respondent took place on 15-12-1991 and thereafter they lived together at Kothagudem and out of the said wed lock they were pleased with a daughter. It is stated that thereafter the appellant started quarrelling with him to put up a separate residence. It is stated that the appellant used to leave the house without informing him and he used to bring her back from her parents' house. The respondent further stated that as he refused to set up a separate residence, the appellant developed ill-will and started quarrelling with his parents and used to scold them in foul and filthy language. The respondent further stated that she was also adamant and on several occasions she removed her 'mangalasutram' and threw it on his face stating that he is importent. It is also stated by the respondent that she even threatened him to commit suicide if he does not put up a separate family.
3. The respondent further stated that on the advise of the elders, he put up a separate residence in May 1993 and began to live with the appellant. According to him, the appellant began to spend money lavishly affecting his economic position and whenever he tried to advise her to change her behaviour, she used to scold in foul and filthy language. He further stated that in July 1993 she raised a dispute with him by raising hue and cry and caused disrepute to him. She left the matrimonial house with her belongings, when he was in the office and in spite of his best efforts to bring her back, she refused to join him. According to him, thereafter he issued a notice dated 28-11-1993 to her which was returned unserved. According to him, thereafter she filed M.C. No. 100 of 1993 for maintenance. According to the respondent, all the above acts of the appellant constitute 'cruelty' within the meaning of that term In Section 13(1)(ia) of the Act and as the appellant left his comply without any reasonable cause he is constrained to file the above O.P. for divorce.
4. The appellant herein contested the above O.P. by filing a counter-affidavit denying and disputing the allegations made against her by the respondent in the O.P. It is stated that the respondent is a sadist, he never treated her as his wife, but as a maid servant. It is also stated that he forced her to attend to all the house hold work and serve his parents. It is also stated by her that all the family members of the respondent are Asthma patients, they used to keep plastic buckets at their cots and used to spit, and she was forced to clean those buckets every day, which she could not bear. She also stated that the parents of the respondent also harassed her on one pretext or the other. She further stated that the respondent used to express his feelings about his fiancee and perform pujas on her name at temples in her presence. She further stated that the respondent never used to send her to her parents house or to her brothers. She also stated that he wanted to get rid of her and marry his fiancee. It is also stated that though he put up a separate residence, he used to stay in his parents' house leaving her alone. She further stated that to get rid of her, the respondent did not pay the rent to the premises and the owner of the house had thrown out the samans and thus the respondent failed to provide minimum necessities to her. It is also stated that while leaving the rented premises, she was 6th month pregnant and as she was not allowed into the house by the respondent, she had to take shelter in her parent's house. Thereafter, the respondent filed O.P. No. 9 of 1994 for restitution of conjugal rights, which was dismissed as not present. It is stated that even now she is ready and willing to join the respondent and lead a marital life.
5. Before the Court below, the respondent examined himself as P.W. 1, his father as P.Ws. 2, and 3 others as P.Ws. 3 to 5 and marked Exs. P. 1 on his behalf. The appellant examined herself as R.W. 1 and her brother as R.W. 2 and not document were marked on her behalf.
6. The Court below, on a consideration of the entire material placed before it and after hearing the learned counsel for the parties, allowed the O.P. granting a decree of divorce. Hence, this appeal by the aggrieved appellant.
7. The learned counsel for the appellant, assailing the validity of the impugned order, contended that the Court below committed a serious error in considering only the evidence led by the respondent and in not considering the evidence led by the appellant. The learned counsel further contended that the Court below did not consider the entire evidence in the proper perspective and misdirected itself to the facts of the case and arrived at erroneous conclusions not based on evidence and hence the impugned order is liable to be set aside.
8. On the other hand, the learned counsel for the Respondent supported the order of the Court below.
9. From the above rival contentions, it has to be seen whether the respondent was able to prove satisfactorily that the alleged acts committed by the appellant amounts to 'cruelty' and hence entitled for a decree of divorce under Section 13(1)(ia) of the Act.
10. The word 'cruelty' has not been defined in the Act. It is contemplated as a conduct of such type, which endangers the living of the petitioner with the respondent. Cruelty consists of acts, which are dangerous to life, limb or health. Cruelty, for the purposes of the Act, may be physical or mental. It means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. 'Cruelty', therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. However, cruelty has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of sensitivity of the petitioner and has to be adjudged on the basis of course of conduct which would, in general, be dangerous for a spouse to live with the other (see for the proposition, Savitri Pandey v. Prem Chandra Pandey, . Further, the Supreme Court in V. Bhagat v. Mrs. D. Bhagat, had an occasion to consider the question, what is 'mental cruelty'? Dealing with the said question, the Supreme Court held as follows :
"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 cruelty in one case may not amount to cruelty in another case and it is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
The Supreme Court also held therein that irretrievable break down of a marriage Itself is not a ground for dissolving the marriage by a decree of divorce, as it is not one of the grounds contemplated under the Act.
11. In the background of the above settled legal position, we have to consider the facts and circumstances of this case, whether the respondent was able to prove that the appellant subjected him to mental cruelty so as to entitle him to a decree of divorce on that ground.
12. The evidence of P.W. 1 goes to show that the appellant was not allowed to enter into his house when she was pregnant. During his cross-examination he also admitted that he refused to take back the appellant due to the threat made by her that she would commit suicide. P.W. 1 stated in his evidence that the appellant used to pick up quarrels to set up a separate family and used to shout hysterically, that she was abusing his parents and once she threw away her thali also. His evidence also would go to show that she used to go to her parents' house without informing him. What is more, he has stated in the cross-examination as follows :
".......It is not true to say that I was harassing the respondent to get rid of her with a view to marry another lady. It is not true to say that I was not allowing my wife to go to her parents house, that I was neglecting her in the separate house taken by me and that she was forced to vacate when I did not pay the rents. It is true that the respondent was pregnant at the time of vacating the house and that she was forced to go to her parents house when she was not allowed to enter my house. ..........It is true that in conciliation before Lok Adalat I refused to take her. The witness says that it is due to the suicide threat of the respondent. I have not given notice or pleaded the same in the petition. I did not give maintenance to the respondent and my daughter while she was in her parents house."
Thus, except stating that the appellant used to pick up quarrels with him regarding setting up of a separate family, there is nothing on record to show that the appellant was ever cruel to him or caused him such mental agony so as to cause a reasonable apprehension in his mind that it would be harmful or injurious to live with her. On the other hand, the above evidence of P.W. 1 clearly goes to show that, in fact, he treated the appellant with cruelty in not allowing her to enter into his house when she was pregnant.
13. P.W. 2 is the father of P.W. 1 and he corroborated the evidence of P.W. 1 in all material particulars and there is nothing in his evidence also regarding the alleged cruelty meted out by the appellant to the respondent.
14. The evidence of P.Ws. 3 to 5 also shows that when they visited the house of the respondent, they saw both the parties quarrelling with each other. The Court below, believing the above evidence, came to the conclusion that the acts alleged by the respondent constitute 'cruelty'. The above conclusion of the Court below cannot be sustained in the absence of any positive material. The Court below committed a serious error in not considering the evidence of the R.Ws., and totally disbelieving their evidence. There is absolutely no evidence whatsoever to say that the appellant ever treated the respondent with cruelty or committed any acts, which constitute 'cruelty'. In the absence of such evidence, it cannot be said that the alleged acts of the appellant constitute 'cruelty' within the meaning of that term occurring in Section 13(1)(ia) of the Act.
15. The other conclusion arrived at by the Court below that since the parties are living separately and as the appellant has filed an application under Section 125, Cr. P.C. for maintenance, the respondent is entitled to a decree of divorce on that ground above, cannot be sustained in view of the settled position in law. It is well settled that the fact the parties are living separately for long and that there is irretrievable break down of the marriage itself is not a ground for dissolution of the marriage by a decree of divorce (See V. Bhagat's case (supra). It is also well settled that strict standard of proof as required under the Evidence Act is not necessary and it is sufficient if the Judge trying the matter is satisfied that a matrimonial offence has been committed. Therefore, on facts and in the circumstances of this case, it has to be held that the respondent has utterly failed to establish satisfactorily that the acts of the appellant alleged by him amounts to cruelty. Judged in any view of the matter, the order of the Court below cannot be sustained.
16. In the result and for the foregoing reasons, the C.M.A. is allowed and the impugned order of the Court below dated 29-7-2000 made in O.P. No. 122 of 1996 is set aside and the O.P. is dismissed. No costs.