Patna High Court
Savita Mandal vs Nakshtra Kumar Mandal on 25 August, 2023
Author: Jitendra Kumar
Bench: P. B. Bajanthri, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.114 of 2017
======================================================
Savita Mandal wife of Nakshtra Kumar Mandal, daughter of Patal Sahni
resident of Police Line, Katihar, P.S. and District Katihar.
... ... Appellant/Plaintiff
Versus
Nakshtra Kumar Mandal son of Dwarika Prasad Singh resident of village
Vashupur, Majdiya, P.O. Devipur, P.S. Kursela, District Katihar.
... ... Respondent/Defendant
======================================================
Appearance :
For the Appellant/s : Mr. Mukesh Kumar Jha, Advocate
For the Respondent/s : Mr. Jibendra Mishra, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)
Date : 25-08-2023
The present appeal has been filed impugning the
judgment dated 12.01.2017, passed by learned Additional
Principal Judge, Family Court, Katihar, in Matrimonial
(Divorce) Case No. 413 of 2013. This petition was filed under
Section 13 (1)(I-B) of the Hindu Marriage Act, 1955 praying for
divorce and custody of two minor children born out of wedlock.
However, the petition was dismissed on contest.
2. The case of the Appellant-Plaintiff, as per the
pleadings is that the marriage between the Appellant-Plaintiff
and the Respondent-Defendant was solemnized on 25.09.1998
as per the Hindu rites and customs. After marriage, the
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Appellant-wife joined the matrimonial home of the Respondent-
husband. It is further pleaded that at the time of marriage, lavish
gifts besides cash of ₹1.5 lacs towards expenses of the marriage
were given to the Respondent-husband. After the marriage, the
conjugal life between the parties was cordial and two male
children, namely, Priyansu Kumar and Saket Kumar were born
out of the wedlock, who were 12 years and 10 years old
respectively at the time filing of the divorce petition. It is further
pleaded that after the birth of younger child, the Respondent-
husband developed intimacy with another lady of the same
village and he was living adulterous life with her. It is further
pleaded that while she was living with her husband, there was
complaint of insufficient payment of dowry and ornaments by
the husband and his relatives, for which, she was subjected to
physical and mental cruelty. Ultimately, she was driven out from
the matrimonial home after keeping her belongings and
ornaments. It is further pleaded that on account of ill treatment
and adulterous life of the Respondent-husband, the Appellant-
Plaintiff felt uncomfortable to live with Respondent-husband
along with his family members and children. It is further
pleaded that the Appellant-Plaintiff joined District Police on
monthly salary and she scarcely spared time to meet the
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Respondent-husband at his parental home on account of his
posting at different places. It is further pleaded that at the end of
every month, the Respondent-husband used to visit her place of
posting to take her salary under threat and coercion, leaving the
Appellant-wife hand to mouth. It is further pleaded that both the
minor sons are living with the Respondent-husband on the
pretext of better guardianship and academic career, but reliably
it is learnt that they are subjected to ill treatment by the
Respondent-husband. As the Appellant-Plaintiff has got
government quarter for her residence, she is capable to maintain
the academic career of her children. The Appellant-Plaintiff has
strong apprehension of untoward incident at the instance of the
Respondent-husband. Hence the Appellant-Plaintiff is no longer
willing and ready to proceed further with her matrimonial
relationship with the Respondent-husband. It is further pleaded
that on account of ill treatment at the hands of the Respondent-
husband and his family members, the Appellant-Plaintiff has
lodged criminal case, bearing Complaint Case No. 203 of 2013
before the Ld. S.D.J.M., Katihar. It is further pleaded that in
view of the above facts and circumstances, the matrimonial life
of the Appellant-Plaintiff with the Respondent-husband was
very tense and no reliance can be placed by the Respondent-
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husband to continue the matrimonial relationship further and
hence, she has filed the present petition with a prayer for
divorce under Section 13(1)(1-B) of the Hindu Marriage Act,
1955.
3. On notice, the Respondent-Defendant-husband
appeared and filed his written statement, wherein he has claimed
that the matrimonial suit as framed was not maintainable. He
further claimed that the Appellant-Plaintiff did not plead any
lawful ground for decree of divorce. He has admitted the
marriage with Appellant-Plaintiff, but he denied the allegation
of demand of dowry. It is also claimed by the Respondent-
husband that the matrimonial life was harmonious and two
children were born out of the wedlock. It is further claimed that
the Respondent-husband made the Appellant-wife well educated
and also made her eligible to be selected in Bihar Police on the
post of Lady Constable. He has denied all the allegations
regarding cruelty and demand of dowry or living adulterous life.
It is further claimed by the Respondent-husband that after being
selected in Bihar Police, the Appellant-wife became financially
independent and developed disregard for the Respondent-
husband and his family members. He has further stated that by
availing different kind of leave, she could have met the children
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and her husband to maintain matrimonial and family life in
proper way. He has denied that he ever snatched the salary of
the Appellant-wife. It is also claimed by the Respondent-
husband that the Appellant-wife is selfish and she has no regard
and love for her children and she never takes care of her
children and spends any money on them or on their education
and well being. It is the Respondent-husband, who is taking care
of the children and taking all efforts for their proper education.
It is further claimed that on account of earning money
independently, the Appellant-Plaintiff-wife wants to get rid of
the Respondent-husband. It is also claimed that by filing false
criminal case, she is collecting false evidence for decree of
divorce.
4. On the basis of pleadings of the parties, the learned
Family Court framed the following issues:-
i. Whether the suit as framed is maintainable.
ii. Whether the petitioner has valid cause of
action to file the suit.
iii. Whether there is reasonable excuse for the
Petitioner to leave the society of her husband
(Respondent).
iv. Whether the petitioner was subjected to ill
treatment and cruelty due to non-fulfillment of
dowry demand.
v. Whether the petitioner is entitled to custody
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of two sons, who are presently living with
Respondent-Defendant.
vi. Whether the Petitioner is entitled to the
decree of divorce.
vii. Whether the Petitioner is also entitled to
any other relief or reliefs.
5. During trial, the Appellant-Plaintiff has examined
the following witnesses:-
i. P.W.-1, Savita Mandal, the Appellant.
ii. P.W.-2, Sheela Devi, mother of the
Appellant.
iii. P.W.-3, Patel Sahani, father of the
Appellant.
6. However, no document has been exhibited by the
Appellant-Plaintiff.
7. (i) Savita Devi, the Appellant-Plaintiff has been
examined as P.W.-1. In her examination-in-chief, she has
reiterated the statement as made in her petition filed for divorce.
In her cross-examination, she has deposed that she was taking
care of her children along with her husband. She further
deposed that her first child was born after two years of marriage
and the second son was born after four years of marriage. She
has further deposed that she did not want to live with her
husband because he used to beat her. She has also lodged a
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criminal case against her husband for the offence punishable
under Section 498A of the IPC.
7(ii). Sheela Devi, who is the mother of Appellant-
Plaintiff has been examined as P.W.-2. She, in her examination-
in-chief, has reiterated the statement as made by the Appellant-
Plaintiff in the petition filed for divorce. During her cross-
examination, she has deposed that the Appellant-Plaintiff got
selected in Bihar Police in the year 2007 and her first posting
was at Supaul, where her children used to stay with her. She
further deposed that at Supaul, the Appellant-Plaintiff and
Respondent-Defendant used to quarrel, however, she cannot tell
about the exact date of incident. She further deposed that both
the children of the Appellant-Plaintiff are living with their father
and now the the Appellant-Plaintiff has also applied for custody
of the children. She has also deposed that she does not know
with whom the Respondent-Defendant has illicit relationship.
7(iii). Patel Sahani, who is the father of the Appellant-
Plaintiff has been examined as P.W.-3. He, in his examination-
in-chief, has reiterated the statement as made by the Appellant-
Plaintiff in her petition filed for divorce, though, nothing else
significant has been deposed during cross-examination by this
witness.
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7(iv). Dharmendra Kumar, who is acquainted with
both the parties, has been examined as P.W.-4. In his
examination-in-chief, he has also reiterated the statement as
made by the Appellant-Plaintiff in her petition filed for divorce,
but nothing significant has been deposed by this witness during
cross-examination.
8. The Respondent-Defendant has examined the
following four witnesses:-
i. D.W.-1, Saket Kumar, son of the
Respondent-Defendant.
ii. D.W.-2, Priyanshu Kumar, son of the
Respondent-Defendant.
iii. D.W.-3, Pramod Kumar, villager of the
Respondent-Defendant.
iv. D.W.-4, Nakshatra Kumar, the
Respondent-Defendant.
9. However, no document has been exhibited on his
behalf also.
10(i). Mr. Saket Kumar, who is the elder son of the
Respondent-Defendant, has been examined as D.W.-1, who, in
his examination-in-chief, has deposed that he was ousted by his
mother and since then he has been living with his father. Her
mother is in government service and since she is in government
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service, her behaviour towards him and his brother and father
got changed and she started looking down upon them. She used
to torture them and after making false allegation, she got herself
separated from them. Initially, after getting Appellant-Plaintiff
employed in Bihar Police, he along with his brother and father
used to live with his mother, but for one year thereafter, he
along with his brother and father are living separately from the
Appellant-Plaintiff. Prior to that, whenever his father used to
visit his mother, he was abused by his mother with the
assistance of other police constables. He further deposed that his
father has no landed property and he maintains them by doing
labour work and his mother is earning ₹30,000/- per month. He
has also deposed that his mother does not want to live with him,
whereas his father along with him and his brother wants to live
with his mother. He has further deposed that when her mother
will get divorce, they will become orphan and his future will be
ruined. The statement of his mother is completely false. In his
cross examination, he has further deposed that his father looks
after him and his brother very well with love and affection and
he caters to their all needs including educational fee. However,
nothing else significant has been deposed by this witness.
10(ii). Priyanshu Kumar, who is the younger son of
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Respondent-Defendant, has been examined as D.W.-2, who, in
examination-in-chief, has reiterated the statement as made by
his brother, Saket Kumar. In his cross-examination, he has
deposed that his father is unemployed and he used to give
tuition to some students and his mother is earning ₹30,000/- per
months. He has further deposed that even if his mother gets
ready to keep him, he will not go with her because her nature
and behaviour is very bad. He has also deposed that her mother
is living with someone else.
10(iii). Pramod Kumar Singh, who is a villager of
Respondent-Defendant and also acquainted with both the
parties, has been examined as D.W.-3, who, in his examination-
in-chief has reiterated the statement as made by the Respondent-
Defendant in his written statement. During his cross-
examination, nothing significant has been deposed by this
witness.
10(iv). Nakshatra Kumar, the Respondent-Defendant
has been examined as D.W.-4, who, in his examination-in-chief,
has reiterated the statement as made by him in his written
statement. During his cross-examination, he has deposed that he
has no landed property and he is unemployed. He further
deposed that his marriage was solemnized with Appellant-
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Plaintiff on 27.07.1996 and not on 25.08.1998. He further
deposed that he wants to keep his wife, but his wife is not
willing to live with him, but he has admitted that he has not filed
any petition under Section 9 of the Hindu Marriage Act for
restitution of conjugal life. He has further deposed that his wife
has filed a criminal case against him with the allegation of
demand of dowry. He has further deposed that for about 15-16
years, the relationship between them was very cordial and two
sons were born out of the wedlock. He further deposed that
when he was married with the Appellant-Plaintiff, she was 20-
21 years old and was studying in 9 th Class. It is the Respondent-
Defendant, who helped the Appellant-Plaintiff to pass
matriculation examination and also get her selected as constable
in Bihar Police. He has also deposed that he is keeping the
children with him and also bears all their expenses. He further
deposed that if the children get ready to live with their mother,
he will allow them to go with their mother. He has further
deposed that the Appellant-wife got selected as a constable in
Bihar Police on 10th March, 2007 and after the employment, he
also used to live with her in the government quarter allotted to
her for two years. However, nothing else significant has been
deposed by this witness.
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11. After considering the materials on record and
submission advanced on behalf of both the parties, the Family
Court had decided all the framed issues against the Plaintiff-
Appellant and in favour of the Respondent-Defendant. In regard
to issue nos. 1 and 2, related with maintainability of suit as
framed and valid cause of action to file the suit, the Family
Court has decided that in view of the finding in regard to the
issue nos. 3 to 6, the petition as framed is not maintainable and
the Appellant-Plaintiff had no valid cause of action to file the
suit.
12. Ld. counsel for the Appellant-Plaintiff submits
that Family Court has failed to properly appreciate the pleadings
and evidence on record and erroneously found that the
Appellant-Plaintiff had no cause of action to file the petition and
the petition as framed was not maintainable. He further submits
that the Appellant-Plaintiff has clearly proved the cruelty
committed by the Respondent-Defendant against the Appellant-
Plaintiff. He also submits that the appellant has also proved that
Respondent-Defendant had deserted the Appellant-Plaintiff and
hence she is entitled to get decree of divorce on the ground of
cruelty and desertion. He also submits that as per evidence on
record, the Appellant-Plaintiff is also entitled to get the custody
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of both the minor sons, namely, Priyansu Kumar and Saket
Kumar, who are presently in the custody of the Respondent-
Defendant.
13. However, learned counsel for the Respondent-
Defendant-husband defends the finding of the Ld. Court below
and submits that the Appellant-Plaintiff had no cause of action
to file petition, nor the petition as framed was maintainable. He
also submits that the Appellant-Plaintiff has failed to prove the
alleged ground of cruelty and desertion against him. She has
also failed to prove her entitlement to get the custody of two
minor sons born out of the wedlock.
14. In view of the aforesaid submission and the facts
and circumstances of the case, following points arise for
consideration of this Court:-
(i) Whether the appellant had valid cause of
action to file the divorce petition.
(ii) Whether the divorce petition as framed is
maintainable.
(iii) Whether the Appellant-Plaintiff had
proved the ground of cruelty to get decree of
divorce.
(iv) Whether the Appellant-Plaintiff had
proved the ground of desertion to get decree
of divorce.
(v) Whether the Appellant-Plaintiff is entitled
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to custody of two minor children, namely,
Saket Kumar and Priyanshu Kumar, who are
aged about 12 years and 10 years respectively
at the time of presentation of the petition
before the Family Court.
15. Let us consider the points one by one.
Point No.1
16. Before we consider this point, it is imperative to
know what is cause of action. It is relevant to point out that the
word "cause of action" is nowhere defined by the Civil
Procedure Code. However, it has been described by Hon'ble
Supreme Court on various occasions as a bundle of essential
facts which are required to be proved for obtaining relief as
sought for. It is also settled position of law that to see whether
the plaint discloses any cause of action, the Court is only
required to look into the averment made in the plaint and the
document, if any, filed in support of the plaint. It is also settled
position of law that reading of the plaint should be meaningful
and not formal. Clever drafting creating illusion of cause of
action can not be permitted. A clear right to sue must be shown
in the plaint. Reliance is placed on the following judgments of
Hon'ble Supreme Court:
1. Mayar (H.K.) Ltd. & Ors Vs. Owners &
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Parties, Vessel M.V. Fortune as reported in
(2006) 3 SCC 100.
2. I.T.C. Ltd, Vs. Debts Recovery
Appellate Tribunal, as reported in (1998) 2
SCC 70.
3. T. Arivandanadam Vs. T.V. Satyapal
and Anr. As reported in (1997) 4 SCC 467.
17. Hon'ble Supreme Court, in para 11 of Mayar
(H.K.) Ltd. case (supra) has observed- "Under Order VII Rule
11 of the Code, the court has jurisdiction to reject the plaint
where it does not disclose a cause of action............." In para
12 of Mayar (H.K.) Ltd. case (supra), Hon'ble Apex Court
has further observed that plaint cannot be rejected on the basis
of the allegations made by the defendant in his written statement
or in an application for rejection of the plaint. The court has to
read the entire plaint as a whole to find out whether it discloses
a cause of action and if it does, then the plaint cannot be rejected
by the court exercising the powers under Order VII Rule 11 of
the Code. Essentially, whether the plaint discloses a cause of
action, is a question of fact which has to be gathered on the
basis of the averments made in the plaint in its entirety taking
those averments to be correct. A cause of action is a bundle of
facts which are required to be proved for obtaining relief and for
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the said purpose, the material facts are required to be stated but
not the evidence except in certain cases where the pleadings
relied on are in regard to misrepresentation, fraud, wilful
default, undue influence or of the same nature. So long as the
plaint discloses some cause of action which requires
determination by the court, the mere fact that in the opinion of
the Judge the plaintiff may not succeed cannot be a ground for
rejection of the plaint.
18. In para 16 of I.T.C. Limited Vs. Debts Recovery
Appellate Tribunal as reported in (1998) 2 SCC 70, Hon'ble
Supreme Court, after referring to T. Arvindandam case
(supra), has observed that the question is whether a real cause of
action has been set out in the plaint or something purely illusory
has been stated with a view to get out of Order 7 Rule 11 Civil
Procedure Code. clever drafting creating illusions of cause of
action are not permitted in law and a clear right to sue should be
shown in the plaint.
19. In para 5 of T. Arvindandam case (supra),
Hon'ble Supreme Court has observed that the Ld. Munsif
must remember that if on a meaningful -- not formal -- reading
of the plaint it is manifestly vexatious, and meritless, in the
sense of not disclosing a clear right to sue, he should exercise
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his power under Order VII, Rule 11 Civil Procedure Code
taking care to see that the ground mentioned therein is fulfilled.
And, if clever drafting has created the illusion of a cause of
action, nip it in the bud at the first hearing by examining the
party searchingly under Order X, Civil Procedure Code.
20. Now the question is what are the essential facts
which constitute cause of action for the petitioner to file divorce
petition under Section 13 of the Hindu Marriage Act for
dissolution of his marriage with Respondent-Defendant and
seek custody of minor children born out of the wedlock. To
know the essential facts constituting cause of action to file
petition for divorce and custody of minor children, it is
imperative to examine the relevant statutory provisions. Now let
us see what are statutory provisions regarding the subject.
21. Section 13 of the Hindu Marriage Act provides
for dissolution of marriage on a petition presented by either of
husband or the wife by a decree of divorce on the ground as
enumerated thereunder. The grounds as provided in Section 13
of the Hindu Marriage Act are exhaustive in nature. Cruelty and
desertion are also provided as grounds for dissolution of
marriage under Sections 13(I)(ia) and (ib) respectively of the
Hindu Marriage Act. For ready reference Section 13 of the
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Hindu Marriage Act reads as follows:-
"13. Divorce. - (1) Any marriage solemnised,
whether before or after the commencement of this
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) has, after the solemnisation of the
marriage, had voluntary sexual intercourse
with any person other than his or her
spouse; or
(ia) has, after the solemnisation of the
marriage, treated the petitioner with cruelty;
or
(ib) has deserted the petitioner for a
continuous period of not less than two years
immediately preceding the presentation of
the petition; or
(ii) has ceased to be a Hindu by conversion
to another religion; or
(iii) has been incurably of unsound mind,
or has been suffering continuously or
intermittently from mental disorder of such
a kind and to such an extent that the
petitioner cannot reasonably be expected to
live with the respondent.
Explanation.- In this clause, -
(a) the expression mental disorder
means mental illness, arrested or
incomplete development of mind,
psychopathic disorder or any other
disorder or disability of mind and includes
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schizophrenia;
(b) the expression psychopathic
disorder means a persistent disorder or
disability of mind (whether or not
including sub-normality of intelligence)
which results in abnormally aggressive or
seriously irresponsible conduct on the part
of the other party, and whether or not it
requires or is susceptible to medical
treatment; or
(iv) 3 Omitted
(v) has been suffering from venereal
disease in a communicable form; or
(vi) has renounced the world by entering
any religious order; or
(vii) has not been heard of as being alive
for a period of seven years or more by
those persons who would naturally have
heard of it, had that party been alive;
Explanation. In this sub-section, the
expression desertion means the desertion
of the petitioner by the other party to the
marriage without reasonable cause and
without the consent or against the wish of
such party, and includes the wilful neglect
of the petitioner by the other party to the
marriage, and its grammatical variations
and cognate expressions shall be
construed accordingly.
(1A) Either party to a marriage, whether solemnised
before or after the commencement of this Act, may
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also present a petition for the dissolution of the
marriage by a decree of divorce on the ground-
(i) that there has been no resumption of
cohabitation as between the parties to
the marriage for a period of 22 [one
year] or upwards after the passing of a
decree for judicial separation in a
proceeding to which they were parties;
or
(ii) that there has been no restitution of
conjugal rights as between the parties to
the marriage for a period of 22 [one
year] or upwards after the passing of a
decree for restitution of conjugal rights
in a proceeding to which they were
parties.
(2) A wife may also present a petition for the
dissolution of her marriage by a decree of divorce
on the ground,-
(i) in the case of any marriage
solemnised before the
commencement of this Act, that the
husband had married again before
such commencement or that any
other wife of the husband married
before such commencement was
alive at the time of the solemnisation
of the marriage of the petitioner:
Provided that in either case the other
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wife is alive at the time of the
presentation of the petition; or
(ii) that the husband has, since the
solemnisation of the marriage, been
guilty of rape, sodomy or 23
[bestiality; or]
(iii) that in a suit under section 18 of
the Hindu Adoptions and
Maintenance Act, 1956 (78 of 1956),
or in a proceeding under section 125
of the Code of Criminal Procedure,
1973 (2 of 1974) [or under the
corresponding section 488 of the
Code of Criminal Procedure, 1898 (5
of 1898)], a decree or order, as the
case may be, has been passed against
the husband awarding maintenance
to the wife notwithstanding that she
was living apart and that since the
passing of such decree or order,
cohabitation between the parties has
not been resumed for one year or
upwards; or
(iv) that her marriage (whether
consummated or not) was solemnised
before she attained the age of fifteen
years and she has repudiated the
marriage after attaining that age but
before attaining the age of eighteen
years.
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Explanation. This clause applies whether the
marriage was solemnised before or after the
commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976)"
22. Regarding custody of child, the relevant statutory
provisions may be found in Section 7(1)(a) of the Guardians
and Wards Act, 1890, as per which, the court is empowered to
make order as to guardianship. It provides that if the court is
satisfied that for the welfare of a minor, an order should be
made appointing a guardian of his person, the court may make
order accordingly.
23. Again Section 13 of the Hindu Minority and
Guardianship Act, 1956, provides that in the appointment or
declaration of any person as guardian of a Hindu minor boy by a
Court, the welfare of the minor shall be the paramount
consideration. It is also provided that no persons shall be
entitled to the guardianship by virtue of the provisions of this
Act or of any law relating to guardianship in marriage among
Hindus, if the court is of opinion that his or her guardianship
will not be for the welfare of the minor.
24. Section 26 of the Hindu Marriage Act, 1955
provides that the court may, from time to time, pass such interim
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orders and make such provisions in the decree as it may deem
just and proper with respect to the custody, maintenance and
education of minor children, consistently with their wishes,
wherever possible.
25. Now let us examine whether the Plaintiff-
Appellant has pleaded essential facts disclosing cause of action
for divorce and custody of minor children.
26. After perusal of the petition filed by the Appellant-
Plaintiff before the Ld. Court below under the Hindu Marriage
Act, it appears that there is averment in regard to alleged cruelty
committed by the Respondent-Defendant against the Appellant-
Plaintiff and desertion of the Appellant-Plaintiff by the
Respondent-Defendant. Averment has been also made in regard
to entitlement to the custody of two minor children. Hence, the
Family Court has wrongly found that the Appellant-Plaintiff had
failed to plead the cause of action to file the petition seeking
divorce and custody of the minor children. Perhaps such
erroneous finding has been given by the Ld. Court below under
wrong impression that cause of action and proof to get the relief
as prayed for is the same. Having cause of action by the
petitioner to file the petition does not mean that the petitioner is
bound to succeed to get the relief as prayed for. For succeeding
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and getting relief, the petitioner is required to prove his or her
case as claimed and only having cause of action bereft of any
evidence to prove the grounds does not entitle the petitioner to
get the relief. Hence it is wrong to say that once there is finding
against the petitioner in regard to relief as prayed for, she has no
cause of action to file the divorce petition. Hence, this point is
decided in favour of the Appellant.
Point no.2
27. Here again, it appears that Ld. Court below is
under impression that maintainability of a petition and grant of
relief as prayed for are same, whereas the fact is that both are
different concepts. The maintainability of a petition is decided
with reference to Order VII Rule 10 and 11 of the Civil
Procedure Code. If the petition filed is not liable for return or
rejection under any provisions of Order VII Rule 10 and 11 of
the Civil Procedure Code, the petition is maintainable. Whether
the petitioner is entitled to get relief as prayed for is altogether
different thing. A petition may be maintainable, but the
petitioner ultimately may not get relief after trial. Grant of relief
depends upon whether the petitioner has proved his case or
required facts for entitlement to relief. But in the case at hand,
the Court has nowhere pointed out under which provisions of
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law, the suit is not maintainable. Order VII, Rule 10 of the Civil
Procedure Code, provides for return of the plaint if the court has
no jurisdiction. Rule 10 of Order VII of the Civil Procedure
Code reads as follows:-
"10. Return of plaint.- (1) Subject to the
provisions of rule 10A, the plaint shall at any
stage of the suit be returned to be presented to
the Court in which the suit should have been
instituted.
Explanation: For the removal of doubts, it is
hereby declared that a Court of appeal or revision
may direct, after setting aside the decree passed
in a suit, the return of the plaint, under this sub-
rule.
(2) Procedure on returning plaint--On
returning a plaint, the Judge shall endorse thereon
the date of its presentation and return, the name
of the party presenting it, and a brief statement of
the reasons for returning it."
28. The suit is also liable to be rejected if any of the
grounds as provided in Rule 11 of Order VII of the Civil
Procedure Code is available.
29. Order VII, Rule 11 of the Civil Procedure Code reads
as follows :
" 11. Rejection of plaint.- The plaint shall be rejected in
the following cases:--
(a) where it does not disclose a cause of action;
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(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the court to correct the valuation
within a time to be fixed by the court, fails to do so;ly stamped,
and the plaintiff, on being required by the court to supply the
requisite stamp paper within a time to be fixed by the Court,
fails to do so;
(d) where the suit appears from the statement in the plaint
to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of
Rule 9, provided that the time fixed by the Court for the
correction of the valuation or supplying of the requisite stamp
papers shall not be extended unless the court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by any
cause of an exceptional nature for correcting the valuation or
supplying the requisite stamp papers, as the case may be within
the time fixed by the court and that refusal to extend such time
would cause grave injustice to the plaintiff."
30. Non-disclosure of cause of action is one of
grounds for rejection of plaint as provided under Order VII, Rule
11 of the Civil Procedure Code . We have already found that the
plaint has disclosed cause of action. No other ground for
rejection of the plaint has been found in the judgment. Without
such finding the Court cannot say that the petition is not
maintainable. Hence, such finding of the Court below cannot be
sustained. The petition is very much maintainable for absence of
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any ground as provided under Order VII Rule 10 and 11 of the
Civil Procedure Code.
31. Before we proceed to discuss the next points
arising for consideration, it is imperative to see case laws or
authoritative Judicial Pronouncements regarding Burden of
Proof and Standard of Proof in matrimonial cases.
32. Hon'ble Supreme Court has elaborately
discussed the nature of burden of proof in matrimonial cases in
Dr. Narayan Ganesh Dastane Vs. Sucheta Narayan Dastane
as reported in 1975 (2) SCC 326 and law laid down herein is
still holding the field. In para 23 of the case, the Hon'ble Apex
Court has observed that, doubtless, the burden must lie on the
petitioner to establish his or her case for, ordinarily, the burden
lies on the party which affirms a fact, not on the party which
denies it. This principle accords with commonsense as it is so
much easier to prove a positive than a negative. The petitioner
must therefore prove that the respondent has treated him with
cruelty.
33. Coming to the Standard of Proof, we find that
some misconception had arisen on account of the use of the
words "Matrimonial Offences" to describe the misconducts of
Defendants under the Hindu Marriage Act. That is why before
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authoritative decision of Hon'ble Full Bench of the Supreme
Court in Dr. Narayan Ganesh Dastane Vs. Sucheta Narayan
Dastane as reported in 1975 (2) SCC 326, there were
conflicting views. As per one view, matrimonial cases are of
civil nature and hence standard of proof in such cases would be
preponderance of probabilities whereas, as per the another view,
proof beyond reasonable doubt should be standard of proof in
matrimonial cases in view of the use of word "matrimonial
offences" in Hindu Marriage Act. However, in Dr. Narayan
Ganesh Dastane case (supra), Hon'ble Full Bench of the
Supreme Court clearly held that matrimonial cases are civil in
nature and preponderance of probabilities will be standard of
proof in trial of Matrimonial cases under the Hindu Marriage
Act, and not proof beyond reasonable doubt which is applicable
in criminal trials. Hon'ble Supreme Court, in para 24 of Dr.
Narayan Ganesh Dastane case (supra) observed that the
normal rule which governs civil proceedings is that a fact can be
said to be established if it is proved by a preponderance of
probabilities. This is for the reason that under the Evidence Act,
Section 3, a fact is said to be proved when the court either
believes it to exist or considers its existence so probable that a
prudent man ought, under the circumstances of the particular
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case, to act upon the supposition that it exists. The belief
regarding the existence of a fact may thus be founded on a
balance of probabilities. A prudent man faced with conflicting
probabilities concerning a fact-situation will act on the
supposition that the fact exists, if on weighing the various
probabilities he finds that the preponderance is in favour of the
existence of the particular fact. As a prudent man, so the court
applies this test for finding whether a fact in issue can be said to
be proved. The first step in this process is to fix the
probabilities, the second to weigh them, though the two may
often intermingle. The impossible is weeded out at the first
stage, the improbable at the second. Within the wide range of
probabilities the court has often a difficult choice to make but it
is this choice which ultimately determines where the
preponderance of probabilities lies. But whether the issue is one
of cruelty or of a loan on a pronote, the test to apply is whether
on a preponderance of probabilities the relevant fact is proved.
In civil cases this, normally, is the standard of proof to apply for
finding whether the burden of proof is discharged.
34. Ruling out application of "proof beyond
reasonable doubt" in matrimonial cases, Hon'ble Supreme
Court, in para 25 of Dr. Narayan Ganesh Dastane case
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(supra) has observed that the proof beyond reasonable doubt is
proof by a higher standard which generally governs criminal
trials or trials involving inquiry into issues of a quasi-criminal
nature. A criminal trial involves the liberty of the subject which
may not be taken away on a mere preponderance of
probabilities. If the probabilities are so nicely balanced that a
reasonable, not a vascillating, mind cannot find where the
preponderance lies, a doubt arises regarding the existence of the
fact to be proved and the benefit of such reasonable doubt goes
to the accused. It is wrong to import such considerations in trials
of a purely civil nature. In para 26 of Dr. Narayan Ganesh
Dastane case (supra), Hon'ble Apex Court has further
observed that under the Hindu Marriage Act, nowhere it is
required that the petitioner must prove his case beyond
reasonable doubt. Section 23 confers on the court the power to
pass a decree if it is "satisfied" on matters mentioned in clauses
(a) to (e) of its sub-section of (1). Considering that proceedings
under the Act are essentially of a civil nature, the word
"satisfied" must mean "satisfied on a preponderance of
probabilities" and not "satisfied beyond a reasonable doubt".
Section 23 does not alter the standard of proof in civil cases.
35. Hon'ble Supreme Court, in para 27 of Dr.
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Narayan Ganesh Dastane case (supra) has further observed
that the misconception regarding the standard of proof in
matrimonial cases arises perhaps from a loose description of the
respondent's conduct in such cases as constituting a
"matrimonial offence". Acts of a spouse which are calculated to
impair the integrity of a marital union have a social significance.
To marry or not to marry and if so whom, may well be a private
affair but the freedom to break a matrimonial tie is not. The
society has a stake in the institution of marriage and therefore
the erring spouse is treated not as a mere defaulter but as an
offender. But this social philosophy, though it may have a
bearing on the need to have the clearest proof of an allegation
before it is accepted as a ground for the dissolution of a
marriage, has no bearing on the standard of proof in
matrimonial cases.
36. Hon'ble Apex Court in para 10 of Shobha Rani
Vs. Madhukar Reddi as reported in AIR 1988 SC 121 has also
observed that considering that proceedings under the Hindu
Marriage Act is essentially of a civil nature, the word 'satisfied'
must mean 'satisfied on a preponderance of probabilities' and
not 'satisfied beyond a reasonable doubt'. Section 23 of the Act
does not alter the standard of proof in civil cases.
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37. Hon'ble Supreme Court in para 10 of A.
Jayachandra Vs. Aneel Kaur as reported in 2005(2) SCC 22
has observed that in a delicate human relationship like
matrimony, one has to see the probabilities of the case. The
concept, proof beyond the shadow of doubt, is to be applied to
criminal trials and not to civil matters and certainly not to
matters of such delicate personal relationship as those of
husband and wife. Therefore, one has to see what are the
probabilities in a case and legal cruelty has to be found out, not
merely as a matter of fact, but as the effect on the mind of the
complainant spouse because of the acts or omissions of the
other. Cruelty may be physical or corporeal or may be mental.
In physical cruelty, there can be tangible and direct evidence,
but in the case of mental cruelty there may not at the same time
be direct evidence. In cases where there is no direct evidence,
courts are required to probe into the mental process and mental
effect of incidents that are brought out in evidence. It is in this
view that one has to consider the evidence in matrimonial
disputes.
38. Hon'ble Kerala High Court, after referring to A.
Jayachandra case (supra), in para 19 of Mohandas Panicker
Vs. Dakshayani as reported in 2013 SCC Online Ker 24493
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has observed that the principles laid down in the above
decisions reiterate that in civil cases, preponderance of
probabilities is the standard to be adopted to prove the case. No
doubt, matrimonial cases are civil proceedings and the Court
can act upon preponderance of probabilities, especially in
adultery cases, since it is difficult to get direct evidence.
39. Now let us consider the next point.
Point No.3.
40. Before considering whether the Respondent/Wife
has committed cruelty against the Appellant or not, it would be
imperative to see what is the statutory provisions and case laws
regarding cruelty.
41. Cruelty has been provided as one of the grounds
for divorce under Section 13(1)(ia) of Hindu Marriage Act. As
per the provisions, the marriage can be dissolved by decree of
divorce on a petition presented by either of the parties, if the
other party has treated the petitioner with cruelty.
42. However, the word 'cruelty' used in Section 13(1)
(ia) of Hindu Marriage Act has not been defined under the
Hindu Marriage Act. But the word has been interpreted by
Hon'ble Supreme Court on several occasions.
43. The Hon'ble Supreme Court, in para 4 of Sobha
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Rani Vs. Madhukar Reddi as reported in AIR 1988 SC 121,
has observed that 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.
44. The Hon'ble Apex Court in para 5 of Shobha
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Rani case (supra) has further observed that 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 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.
The Judges and lawyers, therefore, should not import their own
notions of life. They may not go in parallel with them. There
may be a generation gap between them and the parties. It would
be better if they keep aside their customs and manners. It would
be also better if they less depend upon precedents. Each case
may be different. They 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
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conduct complained of. Such is the wonderful realm of cruelty.
45. The Hon'ble Supreme Court, in para 17 of the
Shobha Rani case (supra) has also observed that the context
and the set up in which the word 'cruelty' has been used in the
section, it appears that intention is not a necessary element in
cruelty. That word has to be understood in the ordinary sense of
the term in matrimonial affairs. If the intention to harm, harass
or hurt could be inferred by the nature of the conduct or brutal
act complained of, cruelty could be easily established. But the
absence of intention should not make any difference in the case,
if by ordinary sense in human affairs, that act complained of
could otherwise be regarded as cruelty. The relief to the party
cannot be denied on the ground that there has been no deliberate
or wilful ill-treatment.
46. The Hon'ble Apex Court in Gananath Pattnaik
Vs. State of Orissa as reported in 2002(2) SCC 619 has
observed that the concept of cruelty and its effect varies from
individual to individual, also depending upon the social and
economic status to which such person belongs. "Cruelty" for the
purposes of constituting the offence under the aforesaid section
need not be physical. Even mental torture or abnormal
behaviour may amount to cruelty and harassment in a given
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case.
47. The Hon'ble Supreme Court in para 10 of A.
Jayachandra Vs. Aneel Kaur as reported in 2005(2) SCC 22
has observed that cruelty which is a ground for dissolution of
marriage may be defined as wilful and unjustifiable conduct of
such character as to cause danger to life, limb or health, bodily
or mental, or as to give rise to a reasonable apprehension of
such a danger. The question of mental cruelty has to be
considered in the light of the norms of marital ties of the
particular society to which the parties belong, their social
values, status, environment in which they live. Cruelty, includes
mental cruelty, which falls within the purview of a matrimonial
wrong. Cruelty need not be physical. If from the conduct of his
spouse same is established and/or an inference can be
legitimately drawn that the treatment of the spouse is such that it
causes an apprehension in the mind of the other spouse, about
his or her mental welfare then this conduct amounts to cruelty.
48. The Supreme Court in para 12 of A.
Jayachandra case (supra) has further observed that to
constitute cruelty, the conduct complained of should be "grave
and weighty" so as to come to the conclusion that the petitioner
spouse cannot be reasonably expected to live with the other
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spouse. It must be something more serious than "ordinary wear
and tear of married life". The conduct, taking into consideration
the circumstances and background, has to be examined to reach
the conclusion whether the conduct complained of amounts to
cruelty in the matrimonial law. Conduct has to be considered, as
noted above, in the background of several factors such as social
status of parties, their education, physical and mental
conditions, customs and traditions. It is difficult to lay down a
precise definition or to give exhaustive description of the
circumstances, which would constitute cruelty. It must be of the
type as to satisfy the conscience of the court that the relationship
between the parties had deteriorated to such an extent due to the
conduct of the other spouse that it would be impossible for them
to live together without mental agony, torture or distress, to
entitle the complaining spouse to secure divorce. Physical
violence is not absolutely essential to constitute cruelty and a
consistent course of conduct inflicting immeasurable mental
agony and torture may well constitute cruelty within the
meaning of Section 10 of the Act. Mental cruelty may consist of
verbal abuses and insults by using filthy and abusive language
leading to constant disturbance of mental peace of the other
party.
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49. The Supreme Court in para 13 of A.
Jayachandra case (supra) has further observed that the court
dealing with the petition for divorce on the ground of cruelty
has to bear in mind that the problems before it are those of
human beings and the psychological changes in a spouse's
conduct have to be borne in mind before disposing of the
petition for divorce. However insignificant or trifling, such
conduct may cause pain in the mind of another. But before the
conduct can be called cruelty, it must touch a certain pitch of
severity. It is for the court to weigh the gravity. It has to be seen
whether the conduct was such that no reasonable person would
tolerate it. It has to be considered whether the complainant
should be called upon a endure as a part of normal human life.
Every matrimonial conduct, which may cause annoyance to the
other, may not amount to cruelty. Mere trivial irritations,
quarrels between spouses, which happen in day-to-day married
life, may also not amount to cruelty. Cruelty in matrimonial life
may be of unfounded variety, which can be subtle or brutal. It
may be words, gestures or by mere silence, violent or non-
violent.
50. In Harbhajan Singh Monga Vs. Amarjeet Kaur
as reported in 1985 SCC OnLine MP 83, Hon'ble Madhya
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Pradesh High Court has held that even threat to commit
suicide to falsely implicate the other spouse and his/her family
members in criminal case also amounts to cruelty.
51. In Smt. Uma Wanti v. Arjan Dev as reported in
1995 SCC OnLine P & H 56, Hon'ble Punjab and Haryan
High Court has held that even peculiar behaviour of spouse on
account of unsoundness of of mind or otherwise also amounts to
cruelty. Hon'ble Court had held that day to day behaviour of
the appellant was such as to disturb the mental peace and
harmony of the respondent which definitely amounted to legal
cruelty. She may not be of the unsound mind, but her peculiar
ways of behaviour proved by the respondent are sufficient to
constitute that legal cruelty. The husband could not live with
peace in the company of the appellant. Peace was always
disturbed due to her peculiar ways of behaviour, and thus he
cannot be disbelieved that her behaviour was cruel to him.
52. In Mrs. Rita Nijhawan Vs. Mr. Bal Krishna
Nijhawan as reported in ILR (1973) I Delhi 944 , Hon'ble
Delhi High Court has held that denial of sexual intercourse
either on account of impotence or otherwise amounts to cruelty
to the aggrieved spouse. Hon'ble Court also observed that sex
is the foundation of marriage and without a vigorous and
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harmonious sexual activity it would be impossible for any
marriage to continue for long. It cannot be denied that the sexual
activity in marriage has an extremely favourable influence on a
woman's mind and body. The result being that if she does not
get proper sexual satisfaction it will lead to depression and
frustration. It has been said that the sexual relations when happy
and harmonious vivifies woman's brain, develops her character
and trebles her vitality. It must be recognised that nothing is
more fatal to marriage than disappointments in sexual
intercourse.
53. Hon'ble Court in Mrs. Rita Nijhawan case
(supra) further observed that the law is well settled that if either
of the party to a marriage being of healthy physical capacity
refuse to have sexual intercourse, the same would amount to
cruelty entitling the other party to a decree. In our opinion it
would not make any difference in law whether denial of sexual
intercourse is the result of sexual weakness of the respondent
disabling him from having a sexual union with the appellant, or
it is because of any wilful refusal by the respondent; this is
because in either case the result is the same namely frustration
and misery to the appellant due to denial of normal sexual life
and hence cruelty.
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54. The Hon'ble Supreme Court, in para 99 of the
Samar Ghosh Vs. Jaya Ghosh as reported in (2007) 4 SCC
511, has observed, after referring to and discussing several
judgments on the point of cruelty, that 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.
55. The Hon'ble Supreme Court has further
observed in Samar Ghosh case (supra) that there cannot be any
comprehensive definition of the concept of mental cruelty
within which all kinds of cases of mental cruelty can be
covered. The Hon'ble Court in para 100 has further observed
that 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
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mental cruelty after a passage of time or vice versa. There can
never be any straitjacket 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.
56. It has been further observed by Hon'ble Supreme
Court in para 101 of the Samar Ghosh case (supra) that no
uniform standard can ever be laid down for guidance. However,
Hon'ble Court thought it appropriate to enumerate some
instances of human behaviour which may be relevant in dealing
with the cases of "mental cruelty" with caution that such
instances are only illustrative and not exhaustive. The instances
enumerated by Hon'ble Apex Court are as follows :
" (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,
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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 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.
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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 sterilisation
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."
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57. The Hon'ble Supreme Court, in para 18 of
Ravi Kumar Vs. Jumla Devi as reported in 2010 SCCR 265,
observed that in matrimonial relationship, cruelty would
obviously mean absence of mutual respect and understanding
between the spouses which embitters the relationship and
often leads to various outbursts of behaviour which can be
termed as cruelty. Sometime cruelty in a matrimonial
relationship may take the form of violence, sometime it may
take a different form. At times, it may be just an attitude or an
approach. Silence in some situations may amount to cruelty.
Therefore, cruelty in matrimonial behaviour defies any
definition and its category can never be closed. Whether
husband is cruel to his wife or the wife is cruel to her husband
has to be ascertained and judged by taking into account the
entire facts and circumstances of the given case and not by any
pre-determined rigid formula. Cruelty in matrimonial cases
can be of infinite variety. It may be subtle or even brutal and
may be by gestures and words.
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58. In para 10 of Ramchander Vs. Ananta as
reported in 2015(11)SCC 539, Hon'ble Supreme Court has
observed that cruelty for the purpose of Section 13(1)(i-a) is to
be taken as a behaviour by one spouse towards the other,
which causes a reasonable apprehension in the mind of the
latter that it is not safe for him or her to continue the
matrimonial relationship with the other. Cruelty can be
physical or mental.
59. It has further been observed by Hon'ble Apex
Court in Ramchander case (Supra) that instances of cruelty
are not to be taken in isolation. It is the cumulative effect of
the facts and circumstances emerging from the evidence on
record which should be taken into consideration to draw a fair
inference whether the plaintiff has been subjected to mental
cruelty due to conduct of the other spouse.
60. In Vinita Saxena v. Pankaj Pandit, as
reported in (2006) 3 SCC 778 Hon'ble Supreme Court has
observed in para 31 that it is settled by a catena of decisions
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that mental cruelty can cause even more serious injury than the
physical harm and create in the mind of the injured appellant
such apprehension as is contemplated in the section. It is to be
determined on the whole facts of the case and the matrimonial
relations between the spouses. To amount to cruelty, there
must be such wilful treatment of the party which caused
suffering in body or mind either as an actual fact or by way of
apprehension in such a manner as to render the continued
living together of spouses harmful or injurious having regard
to the circumstances of the case.
61. Hon'ble Supreme Court has further observed
in Para-32 of Vinita Saxena case (supra) that the word
"cruelty" has not been defined and 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 and one which is adversely affecting
the other. The cruelty may be mental or physical, intentional or
unintentional. There may be cases where the conduct
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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.
62. Hon'ble Supreme Court has further
observed in Para-36 of the Vinita Saxena case (supra) that the
legal concept of cruelty which is not defined by the statute is
generally described as conduct of such character as to have
caused danger to life, limb or health (bodily and mental) or to
give rise to reasonable apprehension of such danger. The
general rule in all questions of cruelty is that the whole
matrimonial relation must be considered, that rule is of a
special value when the cruelty consists not of violent act but of
injurious reproaches, complaints. accusations or taunts. It may
be mental such as indifference and frigidity towards the wife,
denial of a company to her, hatred and abhorrence for the wife,
or physical, like acts of violence and abstinence from sexual
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intercourse without reasonable cause. It must be proved that
one partner in the marriage, however mindless of the
consequences, has behaved in a way which the other spouse
could not in the circumstances be called upon to endure, and
that misconduct has caused injury to health or a reasonable
apprehension of such injury. There are two sides to be
considered in case of cruelty. From the appellant's side, ought
this appellant to be called on to endure the conduct? From the
respondent's side, was this conduct excusable? The court has
then to decide whether the sum total of the reprehensible
conduct was cruel. That depends on whether the cumulative
conduct was sufficiently serious to say that from a reasonable
person's point of view after a consideration of any excuse
which the respondent might have in the circumstances, the
conduct is such that the petitioner ought not be called upon to
endure.
63. Hon'ble Supreme Court has further
observed in Para-37 of the Vinita Saxena case (supra) what
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constitutes the required mental cruelty for the purposes of the
said provision, will not depend upon the numerical count of
such incidents or only on the continuous course of such
conduct but really go by the intensity, gravity and stigmatic
impact of it when meted out even once and the deleterious
effect of it on the mental attitude, necessary for maintaining a
conducive matrimonial home.
64. Hon'ble Supreme Court has further
observed in Para-38 of the Vinita Saxena case (supra) that if
the taunts, complaints and reproaches are of ordinary nature
only, the court perhaps need consider the further question as to
whether their continuance or persistence over a period of time
render, what normally would, otherwise, not be so serious an
act to be so injurious and painful as to make the spouse
charged with them genuinely and reasonably conclude that the
maintenance of matrimonial home is not possible any longer.
65. Now, let us examine point no. 3, whether the
Appellant-Plaintiff has proved the ground of cruelty to get
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decree of divorce.
Point No.3
66. In the case on hand we find that in regard to
cruelty, the Plaintiff-Appellant/Wife has pleaded in her plaint
that she was subjected to physical and mental cruelty on
account of insufficient dowry and ornaments at the hands of
the Respondent-Husband and his relatives and she was
ultimately driven out from her matrimonial home after keeping
her belongings and ornaments and she has also lodged a
criminal case bearing complaint case no. 203 of 2013, pending
consideration in the Court of Ld. S.D.J.M. Katihar. It is also
pleaded that the salary was taken by the Husband/Respondent
under threat and coercion leaving her hand to mouth.
However, in his written statement, the Respondent/Husband
has denied all the allegations of cruelty and he has claimed
that after getting employed as a police constable, her
behaviour changed towards him and the children born out of
the wdlock and she developed disregard for him and his family
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mmbers and she never took care of the children, nor spent any
money on them. He has further claimed that she has filed false
case only with the intent to make out grounds to get decree of
divorce. After perusal of the evidence on record, we find that
allegation of cruelty against the Respondent/Husband is
omnibus and general in nature and no date or place has been
given in his evidence in regard to the alleged instances of
cruelty. We further find that the marriage was solemnized in
the year 1998 and the Appellant-Wife got employed as police
constable on the 10th March, 2007 and divorce has been filed
on 19.08.2013 and out of the wedlock two sons are born and
both are examined as D.W.-1 and D.W.-2. The criminal case
lodged by the Appellant-Wife is still under consideration of the
Court. On the other hand, the Respondent/Husband has
deposed that false allegation of cruelty has been levelled only
with the intent to get rid of him by decree of divorce. D.W.-1
and 2, Saket Kumar and Priyanshu Kumar who are sons of the
parties to the marriage have deposed that the allegation made
by his mother against his father is false and she does not want
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to live with them. The evidence of the Respondent-Husband
and the sons of the parties to the marriage gets credence in
view of the fact that before her joining as a police constable,
there was no allegation of any sort against the husband and it
is further found that after joining as police constable in the
year 2007, she was living at her place of posting and her
husband and children have lived with her only for about two
years at her government quarter i.e up to the year of 2009 and
thereafter, there is no occasion for the Respondent/Husband to
commit cruelty against her because thereafter, she did not
allow them to live with her and during this period of two years
when both the parties lived together, there is no allegation of
any specific instance of cruelty either in the pleadings or in the
evidence.
67. As such, in totality of the evidence on record,
we find that no instance has been proved by the
Plaintiff/Appellant-Wife, which may be construed as cruelty in
the strict sense of the term as provided under Section 13 of the
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Hindu Marriage Act, as we have already seen what the cruelty
under the Act means. The wife/Plaintiff, who is Appellant
herein, has failed to prove any misconduct on the part of
Respondent/Husband which could be considered grave and
weighty giving reasonable apprehension to him of such a
danger which could make it unsafe for her to continue the
matrimonial life with the Respondent/Husband. There may
have been ordinary wear and tear in the matrimonial life of the
parties, but certainly no cruelty is found to have been
committed by the Respondent/Husband towards the
Appellant/Wife. Hence, this point is decided against the
Respondent-Plaintiff and in favour of the Appellant-
Defendant.
Point No.4
68. Now, let us examine the point. Before
considering this point related with Desertion, it would be
again imperative to see what is the statutory provisions and
case laws on the subject.
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69. Desertion has been provided as a ground for
divorce under Section 13(1)(ib) of Hindu Marriage Act. As per
the provisions, marriage may be dissolved by decree of divorce
on a petition presented by either the husband or the wife if the
other party has deserted the petitioner for a continuous period of
not less than two years immediately preceding the presentation
of the petition. As per the Explanation, the expression
"desertion" means the desertion of the petitioner by the other
party to the marriage without reasonable cause and without the
consent or against the wish of such party, and includes the wilful
neglect of the petitioner by the other party to the marriage, and
its grammatical variations and cognate expressions shall be
construed accordingly.
70. In Bipinchandra Jaisinghbai Shah v.
Prabhavati as reported in AIR 1957 SC 176, Hon'ble
Supreme Court has observed that the quality of permanence is
one of the essential elements which differentiates desertion from
wilful separation. If a spouse abandons the other spouse in a
state of temporary passion, for example, anger or disgust,
without intending permanently to cease cohabitation, it will not
amount to desertion. For the offence of desertion, so far as the
deserting spouse is concerned, two essential conditions must be
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there, namely, (1) the factum of separation, and (2) the intention
to bring cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted
spouse is concerned : (1) the absence of consent, and (2)
absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention
aforesaid. The petitioner for divorce bears the burden of proving
those elements in the two spouses respectively. In the same
paragrpah Hon'ble Supreme Court has further observed that
Desertion is a matter of inference to be drawn from the facts and
circumstances of each case. The inference may be drawn from
certain facts which may not in another case be capable of
leading to the same inference; that is to say, the facts have to be
viewed as to the purpose which is revealed by those acts or by
conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If, in fact, there has
been a separation, the essential question always is whether that
act could be attributable to an animus deserendi. The offence of
desertion commences when the fact of separation and the
animus deserendi co-exist. But it is not necessary that they
should commence at the same time. The de facto separation may
have commenced without the necessary animus or it may be that
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the separation and the animus deserendi coincide in point of
time; for example, when the separating spouse abandons the
marital home with the intention, express or implied, of bringing
cohabitation permanently to a close.
71. Following Bipinchandra Jaisinghbai Shah
case (supra), Hon'ble Supreme Court in Lachman
Utamchand Kirpalani Vs. Meena as reported in AIR 1964 SC
40 held that in its essence desertion means the intentional
permanent forsaking and abandonment of one spouse by the
other without that other's consent, and without reasonable cause.
For the offence of desertion so far as the deserting spouse is
concerned, two essential conditions must be there (1) the factum
of separation, and (2) the intention to bring cohabitation
permanently to an end (animus deserendi). Similarly two
elements are essential so far as the deserted spouse is
concerned : (1) the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid. For
holding desertion as proved the inference may be drawn from
certain facts which may not in another case be capable of
leading to the same inference; that is to say the facts have to be
viewed as to the purpose which is revealed by those acts or by
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conduct and expression of intention, both anterior and
subsequent to the actual acts of separation.
72. Hon'ble Apex Court in para 8 of Savitri
Pandey Vs. Prem Chandra Pandey as reported in 2002(2)
SCC 73, has observed that "desertion", for the purpose of
seeking divorce under the Act, means intentional permanent
forsaking and abandonment of one spouse by the other without
other's consent and without reasonable cause. In other words it
is a total repudiation of the obligations of marriage. Desertion is
not the withdrawal from a place but from a state of things.
Desertion, therefore, means withdrawing from the matrimonial
obligations i.e. not permitting or allowing and facilitating the
cohabitation between the parties. The proof of desertion has to
be considered by taking into consideration the concept of
marriage which in law legalises the sexual relationship between
man and woman in the society for the perpetuation of race,
permitting lawful indulgence in passion to prevent
licentiousness and for procreation of children. Desertion is not a
single act complete in itself, it is a continuous course of conduct
to be determined under the facts and circumstances of each case.
73. Hon'ble Supreme Court, in para 7 of Debananda
Tamuli Vs. Kakumoni Kataky as reported in (2022) 5 SCC
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459 has observed that the law consistently laid down by this
Court is that desertion means the intentional abandonment of
one spouse by the other without the consent of the other and
without a reasonable cause. The deserted spouse must prove that
there is a factum of separation and there is an intention on the
part of deserting spouse to bring the cohabitation to a permanent
end. In other words, there should be animus deserendi on the
part of the deserting spouse. There must be an absence of
consent on the part of the deserted spouse and the conduct of the
deserted spouse should not give a reasonable cause to the
deserting spouse to leave the matrimonial home. The view taken
by this Court has been incorporated in the Explanation added to
sub-section (1) of Section 13 by Act 68 of 1976.
74. Now, coming to the case on hand, we find that in
regard to desertion, the Appellant-Wife has pleaded in her plaint
that she was subjected to cruelty on account of insufficient
dowry and ultimately, she was ousted from the matrimonial
home. It is also pleaded that she has strong apprehension of
untoward instance at the instance of the Respondent/Husband
and she is no longer willing to proceed with her matrimonial
relationship with the Respondent/Husband. The allegation has
been strongly denied by the Respondent/Husband in his written
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statement.
75. Coming to the evidence of the parties we find that in
her examination-in-chief she has reiterated her statement as
made in her plaint and even during the cross examination
nothing significant has been deposed by her regarding desertion.
76. After perusal of the evidence of both the parties, we
find that the divorce petition has been filed on 19.08.2013.
Prior to divorce petition, she had got appointed as police
constable in the year 2007 and since then she has been living in
her government quarter and as per the evidence on record we
find that she did not allow the husband and children after two
years of her service in the government quarter.
77. On the other hand, the Respondent/Husband has all
along maintained that he wants to live with her but on account
of financial independence after getting government job, she has
changed and she wants to get rid of him. Hence, she has made
false allegation to get divorce. The Appellant/Wife has also not
filed any matrimonial petition under section 9 of the Hindu
Marriage Act for restitution of conjugal rights. This instance
also goes against her and gives credence to the case of the
Respondent/Husband that she does not want to continue with
the marriage and she has made false allegation for the sake of
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getting decree of divorce against him. We also find that there is
no specific statement either in the pleading or in the evidence on
the part of the Appellant/Wife regarding when the Respondent-
Husband abandoned her without her consent and without any
reasonable cause with intent to bring cohabitation to a
permanent end. As such, the Plaintiff/Appellant has failed to
prove the ground of desertion to get decree of divorce.
78. Hence, this point is also decided against the
Appellant/Wife and in favour of the Respondent/Husband.
Point No.5
79. Now, let us examine the point no. 5 regarding
entitlement of the Appellant-Plaintiff to the custody of two
minor children born out of the wedlock between the parties.
80. Here it is relevant to point out that the suit was filed
by the Appellant-Plaintiff before the Family Court on
19.08.2013as transpires from the Family Court records and at that time, the minor children, namely Saket Kumar and Priyanshu Kumar were aged about 12 years and 10 years respectively. However, at present, both the children have grown up as major. Saket Kumar is about 22 years and Priyanshu Kumar is about 20 years of age. Hence, neither of the parties is entitled to custody of the children because question of custody Patna High Court MA No.114 of 2017 dt 25-08-2023 63/63 of children arises only when the children are minor, but they have already become major. Hence, the question regarding custody of children becomes infructuous. Major children are at liberty to decide where and with whom to live.
81. As such, we find that there is no merit in the present appeal warranting any interference in the impugned judgment. The Family Court has rightly dismissed the matrimonial case of the appellant. The present appeal is dismissed, accordingly, upholding the impugned judgment. Both the parties shall bear their own costs. Let the decree be drawn accordingly.
82. The Registrar General is directed to circulate a copy of this judgment amongst all the Presiding Officers of the Family Courts and send a copy to the Director of Bihar Judicial Academy for needful.
(Jitendra Kumar, J) (P. B. Bajanthri, J) Amrendra/Chan dan/-
AFR/NAFR AFR CAV DATE 11.07.2023 Uploading Date 25.08.2023 Transmission Date