Rajasthan High Court - Jaipur
Ashok Kumar vs Smt Jyoti on 31 January, 2017
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 2347 / 2014
Ashok Kumar S/o Shri Mahendra Prasad, Age 31 years, Caste Koli,
R/o H.No.553/32, Jawahar Jadugar, Ajmer.
---- Appellant
Versus
Smt Jyoti W/o Shri Ashok Kumar, D/o Shri Govind Prasad, Caste
Koli, R/o 1290/32, Rambagh, Bhagwangunj, Ajmer.
---- Respondent
_____________________________________________________ For Appellant(s) : Mr. Rahul Agarwal For Respondent(s) : Mr. Jai Prakash Gupta _____________________________________________________ HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Order on Board Per Hon'ble The Chief Justice 31/01/2017 The Appellant assails order dated 19.05.2014 of the Family Judge, Ajmer dismissing Matrimonial Case No.480/2011 declining to grant divorce on grounds of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').
Learned Counsel for the Appellant submits that it was a marriage by mutual choice on 08.08.2007. A girl child was born on 06.01.2009 who is presently residing with the Respondent. The cruel conduct of the Respondent is apparent from her behaviour on 03.04.2011 when she misbehaved with the Appellant and his mother after they returned at 10.00 pm having met their sister for (2 of 14) [CMA-2347/2014] which the Appellant had also lodged a report before the Alwar Gate Police and matters were pacified only after their intervention. The Respondent permanently left the matrimonial home on 21.04.2011. The divorce case was filed by the Appellant on 25.08.2011. The Respondent in retaliation filed a criminal complaint under Section 498A IPC against the Appellant and his parents. While the latter were granted anticipatory bail the Appellant had to undergo imprisonment for approximately one week. The trial is still pending which the Respondent actively pursues. The Family Judge had completely erred in appreciation of evidence and connotation of the word "cruelty" in a matrimonial relationship by holding that the behaviour of the Respondent merely constituted normal skirmish of any married life. The threat of committing suicide and deliberate consumption of phenyl are but proof of cruelty. Merely because there may have been no direct evidence in support of the allegations for consumption of phenyl, was not sufficient ground to disbelieve it especially when it was pleaded and stated in his examination-in-chief but no question was asked in cross examination in this regard. The institution of a false criminal case also constitutes cruelty for which reliance was placed on K. Srinivas Rao Vs. D A Deepa, (2013) 5 SCC 226.
The Respondent had levelled wild allegations of the Appellant having illicit relations with an office colleague Nirmala. This allegation per se casting a slur on the character, integrity and morality of a married man constitutes cruelty without further more. The Family Judge committed an error of record in holding (3 of 14) [CMA-2347/2014] that no name of the female colleague had been mentioned by the Appellant even though the Respondent had disclosed the name in her additional pleas. Forcing the Appellant to have his separate hearth, home and kitchen from his other family members while living in the same house is further evidence of cruelty. The Respondent in her written statement alleges that the occurrence of 03.04.2011 was a figment of imagination while in her evidence she admits the occurrence and wishes it away as normal ups and downs of a married life. The Respondent in her examination-in- chief has herself deposed that relations between them soured as far back as 2010 on account of the allegations of suspected relations between the said Nirmala and the Appellant. The Family Judge erred in not appreciating that it is the quality of evidence and not quantity which matters. If the evidence led by the Appellant and AW-2, Pavnesh established cruelty, the fact that the Appellant may not have examined his mother and brother was irrelevant. The presumption by the Family Judge that they would have been the best evidence is completely fallacious. The Family Judge has himself observed that there were inherent contradictions in the evidence of the Respondent yet holds the Appellant cannot derive any advantage from the same. If the Appellant had established cruelty in behaviour, the contradictions in the evidence of the Respondent became important. In support of the submission that threats to commit suicide and allegations of having illicit relations outside the marriage also constituted cruelty reliance was placed on Narendra Vs. K. Meena, (2016) 9 SCC 455.
(4 of 14) [CMA-2347/2014] Learned Counsel for the Respondent did not dispute the fact that pursuant to the criminal prosecution, the Appellant was taken into custody but for one or two days only. The Respondent never made any allegations of illicit relations or adulterous behaviour against the Appellant. Her allegations that the Appellant would have long conversations with the office colleague Nirmala may be suggestive of possessive behaviour but cannot constitute cruelty. It was denied that the Appellant was ever pressed to live separately from his parents. The Family Judge has rightly disbelieved the allegations of the Respondent having consumed phenyl, vomited and refused to go for medical treatment as there was no evidence in support of the same. The parties had married of their own choice. The marriage worked well from 2007 to 2011. The first occurrence was on 03.04.2011. The Appellant alleges that the Respondent left the matrimonial home on 21.04.2011 but it is his own case that on 15.04.2011 he had approached the local police with a complaint. It is indeed surprising that he was complaining to the police against his own wife who was still living with him till then, which on the contrary constitutes cruelty towards the Respondent.
It was lastly submitted that if demands for dowry had been made and a criminal case under 498A IPC had been lodged which is still pending trial, it cannot be said at this stage per se that lodging of the case constituted cruelty. Whether it would amount to cruelty or not would depend upon the ultimate outcome of the trial. If the Appellant and his family members are honorably acquitted, the matter would be different from a case of acquittal (5 of 14) [CMA-2347/2014] on grounds of benefit of doubt.
We have considered the submissions on behalf of the parties, perused the materials and evidence on record.
The marriage between the Appellant and the Respondent was solemnized as per their own individual choice for each other on 08.08.2007. The evidence also reveals that there was some opposition to it from the Respondent's mother. The relationship and behaviour of the Appellant and the Respondent naturally had to be different when they were courting and wooing each other as undoubtedly both of them would have been on their best behaviour to impress the other that they were the ideal life partner. Both the Appellant and the Respondent are Postgraduates. After matrimony, the relationship and behaviour undergoes a complete metamorphosis as the parties start to live under one roof. At this stage, as part of normal human behaviour, individual choices and expectations start surfacing involuntarily as a reflection and manifestation of the individual personality.
A marriage has to worked upon to make it successful and neither spouse can take the other for granted. But it is not every conduct in a matrimonial relationship which will constitute cruelty. There may be instances of incompatibility, need for adjustment with each other and at times there may also be need to overlook the faults of each other for an enduring long term relationship. Differences in thinking and behaviour by itself cannot be said to constitute cruelty. Likewise the expectation of a spouse that the other alone must show accommodation and adjustment also cannot constitute cruelty by itself.
(6 of 14) [CMA-2347/2014] Cruelty finds no definition in the Act. Its meaning and connotation cannot be decided and considered in the abstract but will have to be deciphered in the facts of each case. Cruelty in behaviour essentially means a conduct of a nature in personal relations which is of such a character, magnitude and recurrence making it not merely difficult but impossible for one spouse to live day to day with the other. In other words, it not only creates a fear of harm physically but causes such mental stress and agony that it shatters the personality morale and humanity of the other spouse. It has its impact on the mental state of the other spouse creating a sense of abhorrence, fear and not simply an inability to co-exist with each other. Any marriage would have differences of opinion, thinking and behaviour. Such conduct would not by itself tantamount to cruelty. While a single instance of cruelty may be sufficient in certain situations, in others, it may be a course of conduct which creates and constitutes cruelty. It is therefore not possible to give it a precise definition. In (1975) 2 SCC 326 (N.G.Dastane (Dr.) v. S.Dastane), it was observed:-
"34......In many marriages each party can, if it so wills, discover many a cause for complaint but such grievances arise mostly from temperamental disharmony. Such disharmony or incompatibility is not cruelty and will not furnish a cause for the dissolution of marriage. We will therefore have regard only to grave and weighty incidents and consider these to find what place they occupy on the marriage canvas......"
In (2007) 4 SCC 511 : Samar Ghosh Vs. Jaya Ghosh dealing with the term mental cruelty it was observed as follows:-
"98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive (7 of 14) [CMA-2347/2014] definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.
99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to (8 of 14) [CMA-2347/2014] mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
(9 of 14) [CMA-2347/2014] The Appellant alleged that the everyday behaviour of the Respondent was cruel with a tendency to pick up fights for no rhyme or reason. She leveled unsubstantiated allegations of extramarital affair against the Appellant. It is difficult to accept it as simply possessive behaviour. The impact of the allegation and its manner made has to be considered not from others point of view but as understood by the aggrieved spouse dependent on the kind of society and strata that they belonged to. In a normal Indian society if one spouse were to allege that the other spouse appeared unnecessarily close another member of the opposite sex, it naturally has connotations of infidelity in the marriage. On one occasion the Respondent had attempted to cut her veins and commit suicide which caused gross fear and apprehension in the mind of the Appellant. She would threaten to implicate him and his family in false cases and ruin their lives. The Respondent would pressurise him to separate in hearth and home from his family. The allegation of misbehaviour on 03.04.2011 at about 10.00 pm was made compelling the Appellant to approach the Alwar Gate Police when matters were pacified. The Respondent on one occasion after abusing and threatening to commit suicide, consumed phenyl and her life was saved by forcing her to vomit.
In his evidence in chief, the Appellant deposed that she would invariably threaten to involve them in a dowry case as also the phenyl incident. While returning from the Ganesh Temple, she tried to jump off a motorcycle. She would vent her anger at the minor child. On 03.04.2011 she had banged her head on the wall (10 of 14) [CMA-2347/2014] at 10.00 pm and because of the commotion people of the locality assembled which finds corroboration from the evidence of AW-2, Pavnesh. The Respondent then left the matrimonial home with Pintu, the son of the uncle of the Appellant. In cross examination, the Respondent did not ask any questions with regard to the phenyl incident, her banging her head on the wall, threats to commit suicide and implicate them in false cases much less give any suggestion that the Appellant was deposing falsely.
The Respondent in her examination-in-chief acknowledged that it was a marriage by individual preference for each other and that relations between them did see normal skirmishes after the marriage. The birth of the daughter on 06.01.2009 and the function in respect of the same on 09.02.2009 was not disputed. Relations between them got soured the same day but they continued to live as man and wife. According to the Respondent the relationship really got soured in 2010 when the Appellant's office colleague started to frequently call him. Despite her allegation that she would be beaten up, neither in her pleadings nor evidence was there any material with regard to any specific date of occurrence or manner of assault and by whom it was except omnibus statements. She acknowledges that she did not complain to anyone or lodge a police case when the Appellant's younger brother Pappu had allegedly beaten her. Reiterating that she was desirous to revive the matrimonial relationship she acknowledged that the function of 09.02.2009 was organized by the Appellant and his family members when her father had chided the Appellant that he should have been hosting (11 of 14) [CMA-2347/2014] the function with his own money rather than that of his parents.
If the parties were married in 2007 on account of love for each other, it is difficult to understand and appreciate how demands for dowry surfaced four years later suddenly and that too after the Appellant lodged the divorce case. There is no material on record with regard to any event or occurrence concerning dowry prior to the same except omnibus allegations. If the allegations were true the Respondent could undoubtedly have led the evidence of her own family members in support of the same. In cross examination she acknowledged in general terms that the mother of the Appellant assaulted her only on 03.04.2011 but without any further details of the same.
The question that arises for our consideration is if the conduct of the Respondent will constitute the daily skirmish of a married life with differences of opinion and individuality requiring compromise and adjustment between the spouses or does it go beyond the realm of the same to constitute cruelty as defined by judicial precedents in a matrimonial relationship. There can be no two opinions that for a spouse to cast aspersions of infidelity on the other spouse and a slur on his integrity suggesting he was having an extramarital affairs outside the marriage will undoubtedly constitute cruelty. Similarly to threaten suicide, cut her own vein, consume phenyl and ask the Appellant to separate in hearth and home from his parents will undoubtedly constitute cruelty. The act of banging her head on the wall at night leading to the neighbours assembling are all but evidence of cruelty. It is the cumulative effect of the behaviour which will form the test and not (12 of 14) [CMA-2347/2014] as isolated incidents. We have therefore no hesitation in holding that the conduct of the Respondent undoubtedly constituted cruelty as it had the effect of tarnishing not only the Appellant's own self esteem, devotion to the family but also could have ruined his reputation in public.
We regret our inability to concur with the submission that so long as the criminal trial is pending and the matter is subjudice, it would not constitute cruelty. The manner and time when the allegations came to be made combined with the parents of the Appellant having to take anticipatory bail and the Appellant having had to undergo custody do constitute acts of cruelty.
In K. Srinivas Rao (supra), relied upon by the Appellant, the following observations are considered relevant in the facts of the present case:-
"14. in Vijay kumar Bhate disgusting accusations of unchastity and indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous to live with her husband.
16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news item which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.
(13 of 14) [CMA-2347/2014] In Narendra Vs. K. Meena (supra), allowing the appeal it was held that threats of suicide by the wife would definitely constitute cruelty ruining the sanity, peace of mind, career of the other spouse with its attendant legal consequences causing tremendous stress which itself was distressing.
Likewise any pressure to live separate in her hearth and home from the family upon the husband would also constitute cruelty. Similarly, the allegations of an extramarital affair unsubstantiated pertaining to one's character was torturous and did constitute cruelty.
The Family Judge grossly erred in appreciation of evidence and without proper analysis of the case put forth by the Appellant posed to himself a wrong question with regard to withholding of best evidence by failure to lead evidence of the mother and brother of the Appellant to arrive at a faulty conclusion of unsubstantiated allegations. The conclusion that the contradictions in the evidence of the Respondent were inconsequential is clearly unsustainable in the facts and circumstance of the case. The finding that the behaviour of the Respondent constituted only normal skirmish and ups and downs of a married life is also clearly unsustainable in law.
The application under Section 24 of the Act filed during the pendency of the appeal looses its relevance now without prejudice to the rights of the Respondent in accordance with law.
(14 of 14) [CMA-2347/2014] Resultantly, the order under appeal dated 19.05.2014 is set aside and the appeal is allowed.
(VIJAY KUMAR VYAS)J. (NAVIN SINHA)C.J. KKC/6 AFR