Rajasthan High Court - Jaipur
Smt Meeta Sharma vs Shashi Kant Bharadwaj & Ors on 24 July, 2017
Bench: Ajay Rastogi, Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Miscellaneous Appeal No. 4071/2007
Smt. Meeta Sharma W/o Shri Shashikant Bhardwaj D/o Late Shri
Laxmikant Sharma, Aged About 33 Years, R/o 1/195, Beech Ka
Mohalla, Munshi Bazar, Alwar.
----Appellant
Versus
1. Shashikant Bhardwaj S/o Late Shri Ram Sharma, by Caste
Brahmin, Aged About 37 Years, R/o House No. 414, Bharat Vihar,
10-B-Scheme, Gopalpura, Jaipur. (To Be Served Through Head
Master, Government Primary School Manpur Gate, Rainwal, Tehsil
Phagi, District Jaipur.
2. Judge, Family Court No. 2, Jaipur City, Jaipur.
----Respondents
_____________________________________________________
For Appellant(s) : Ms.Anita Agrawal, Advocate with
Mr.Laxmikant Sharma, Advocate
For Respondent(s) : Mr.Saugath Roy, Advocate with
Mr.Vineet Pareek, Advocate
_____________________________________________________
HON'BLE MR. JUSTICE AJAY RASTOGI
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
JUDGMENT
Judgment reserved on : 05/07/2017
Judgment pronounced on : 24.07.2017
By the Court : Per Hon'ble Mr. Justice Ashok Kumar Gaur] :
<><><><> The present appeal has been filed by the appellant challenging the judgment and decree dated 28.06.2007 whereby the Family Court No.2, Jaipur has allowed the application of (2 of 20) [CMA-4071/2007] respondent-husband granting him decree of divorce under Section 13(1) (i-a) and 13(1) (i-b) of the Hindu Marriage Act, 1955 and has further granted permanent alimony of Rs.2000/- per month under Section 25 of the Hindu Marriage Act.
Briefly stated facts of the case are that respondent- applicant-Shashikant Bhardwaj was married with the appellant- non-applicant- Smt.Meeta Sharma as per Hindu rites on 15.02.1996. The appellant and respondent were residing at Joshi Colony, Barkat Nagar, Jaipur though the respondent was serving as Government Teacher and was posted at Raniwal Maji, Tehsil Phagi, District Jaipur. The appellant started residing at Raniwal from the year 1999 in a rented premise and out of wedlock, a child (son) was born on 25.04.2000. The respondent-husband filed an application on 22.05.2003 in the Family Court No.2, Jaipur under Section 13(1)(i-a) & 13(1)(i-b) of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act of 1955) for seeking a decree of divorce on the grounds of cruelty and desertion. It was pleaded in the application that the appellant-wife started abusing the respondent soon after marriage. She started giving threat of lodging false criminal case for demand of dowry and not willing to work. She also threatened that she had six brothers and they will break the legs and hands of the respondent. It was alleged that the appellant-wife caused mental cruelty to the respondent- husband by various acts like not accepting the Saari from her sister-in-law (nanad); the appellant threw hot water upon the respondent on asking for serving tea to his friend; started demanding money etc. The respondent told his brother-in-laws (3 of 20) [CMA-4071/2007] about the cruelty meted to him but in turn they abused him. The respondent-husband also alleged about the misbehaviour with his sister and elder brother; frequent visits to her brother's house at Alwar; new demands and requirement of money and not fulfilling of the same threatening for lodging a false criminal case and putting him in jail. It was also stated in the application that the wife of one of brother-in-law of respondent-husband, namely, Smt. Madhu, who was also a Teacher posted at Raniwal started misguiding the other colleagues Teachers. The appellant refused to attend the Mundan ceremony and left the house by taking away Rs.4000/-, clothes and other articles. Further, after returning from her parents house on 10.7.2000, she abused the respondent- husband and also came to the school with her brothers and started demanding Rs.25,000/- and on refusal all started abusing in presence of staff of the school. The respondent was also summoned by police several times on false complaint filed by the appellant.
It was further pleaded in the application that without any reasonable cause, the appellant-wife deserted the respondent from 10.03.2000 and on 16.05.2003, the respondent came to learn about lodging of FIR by brothers of the appellant-wife on 23.04.2003. It was prayed in the application that on the ground of cruelty and desertion, the decree of divorce was liable to be granted.
Per contra, the appellant-wife filed reply to the application, and allegations with regard to cruelty and desertions were denied outrightly. It was pleaded in the reply that she made all efforts to (4 of 20) [CMA-4071/2007] maintain the happy family life and the respondent was used to drink daily and beat her regularly. It was denied that she had thrown the saari as alleged on floor and in fact, it was her sister- in-law who did it. The appellant pleaded that she did not go to her brother house out of her own wish but because on many occasions husband locked the house and she had remained in the house without any food and water. She pleaded that for 2 years she was not allowed to visit her parents place.
It was also pleaded by appellant that there was demand of Rs.21,000/- and of gas-cylinder by the husband and when she was 8 months pregnant she was alone in the house and she had no money for day to day work and the husband did not come for 10 days and she had to go to her inlaws house at Jaipur. He refused to keep her and closed the doors and as such she had to go to Alwar where she remained till the delivery of her son. She denied the fact of taking money and any articles, and alleged that the respondent-husband came to know that she is residing at Alwar but he did not make any attempt to come back. It was pleaded that she did not desert her husband but it was her husband who left her and no efforts were made by him to bring her back and in the circumstances, she had to live with her brother at Alwar.
The Family Court framed as many as 4 issues on the basis of the pleadings, which are as under:-
" 1- D;k vizkfFkZ;k us izkFkhZ ds lkFk ;kfpdk esa of.kZr Øwjrkiw.kZ O;ogkj fd;k ftlls izkFkhZ fookg foPNsn dh fMØh izkIr djus dk vf/kdkjh gS \ (5 of 20) [CMA-4071/2007] 2- D;k vizkFkhZ;k us fnuakd 10-03-2000 ls fujUrj fcuk fdlh ;qfDr;qDr dkj.k ds izkFkhZ dk ifjR;kx dj j[kk gS ftlls Hkh og fookg foPNsn dh fMØh izkIr djus dk vf/kdkjh gS \ 3- D;k ;g vkosnu bl U;k;ky; ds Jo.kkf/kdkj dk ugha gS \ 4- vuqrks"kA"
The respondent-husband in support of his divorce petition produced PW-1 (himself), PW-2 Jagdish Sharma (colleague of the respondent) , PW-3 Triloki Prasad (neighbour). The appellant got examined herself as DW-1, DW-2 Shivkant Sharma (brother), DW- 3 Saraswati Kant and DW-4 Ankur Sharma.
The Family Court decided the issue no.1 of cruelty in favour of respondent-husband and came to conclusion that the various acts/complained of causing cruelty were proved by the respondent. The issue no.2 with regard to desertion was also found to be proved as the appellant had admitted in her cross- examination that she was not staying with the respondent- husband since 10.03.2000.
The learned counsel for the appellant has urged before this Court that finding of the Family Court on both the issues nos. 1 & 2 is not legally sustainable as cruelty and desertion were not made out and the Family Court has committed a cross illegality in passing the decree of divorce.
The learned counsel for the appellant has made submission that in the present case, the incidents narrated are of general allegations and there are no details. It was argued by learned counsel for the appellant that Section 23(1)(b) of the Act of 1955 provides that ground of cruelty alleged in the petition for grant of divorce have been condoned and due to compromise in behaviour (6 of 20) [CMA-4071/2007] of the parties, the cruelty cannot be said to be committed under Section 13(1)(i-a) of the Act of 1955.
Learned counsel for the appellant has further argued that the Family Court below has passed the impugned judgment on the basis of surmises and conjectures as undue weightage to the question of non-lodging of FIR has been given in regard to demand of dowry and in regard to injuries meted with the brother of the appellant.
Learned counsel for the appellant has submitted that the issue no.2 with regard to desertion has also been not decided as per requirement of law as there was sufficient cause for not residing with the respondent. Learned counsel submitted that appellant after the birth of her son herself came to the house of respondent but he behaved very rudely with the appellant and as such, she had no option but to leave the matrimonial house. Learned counsel submits that since, even basic needs of the appellant were not met and even food was not provided under the compelling circumstances she had to live with her brothers. It has been submitted that basic ingredients of desertion were not proved and as such, the grant of decree of divorce is vitiated.
Learned counsel for the appellant has relied upon the judgments rendered in the case of: (i) Suman Singh Vs. Sanjay Singh, 2017(4) SCC 85, (ii) Samar Ghosh Vs. Jaya Ghosh, 2007(4) SCC 511, (iii) Neelam Kumar Vs. Dayarani, 2010(13) SCC 298, (iv) Smt. Mayadevi Vs. Jagdish Prasad, AIR 2007 SC 1426,
(v) Prabhat Vs. Swati, 2008 SCC Bombay 835, (vi) Lachman Utamchand Kirpalani Vs. Meena alias Mota, AIR 1964 SC 40 and (7 of 20) [CMA-4071/2007]
(vii) Shyam Sunder Kohli Vs. Sushma Kohli @ Satya Devi, 2004(7) SCC 747.
Per contra, learned counsel for the respondent-husband has supported the judgment and decree passed by the courts below and has urged that the court below has rightly decided both the issues of cruelty and desertion. Learned counsel submits that the various acts of causing mental cruelty were well established by leading evidence and the issue of desertion was also rightly found to be proved as the appellant had deposed that she was not living together with her husband after 10.03.2000 and the witnesses DW-3 & DW-4 also deposed in their examination-in-chief that the appellant was living separately since March, 2000.
It has been further submitted by the learned counsel for the respondent that Family court passed the judgment and decree on 28.06.2007 and present appeal has been filed on 26.09.2007 and Registry of this court had pointed out the defect that appeal had time barred by 60 days. Moreover, the respondent solemnized re- marriage with one Beena Kumari Sharma and out of this marriage, a son was also born on 30.09.2009 and this fact was brought into notice of the Court by way of filing an application. It was urged that statutory time of filing of the appeal had expired and he got re-married on 09.11.2008 after expiry of limitation period and thus, the appeal has been rendered infructuous.
Reliance is placed on the following judgments: (i) Malathi Ravi Vs. B.V.Ravi, (2014)7 SCC 640, (ii) Vishwanath Agarwal Vs. Sarla Agarwal, (2012)7 SCC 288, (iii) Alka Dadhich Vs. Ajay (8 of 20) [CMA-4071/2007] Dadhich, (2008) 1 RLW 248 and (iv) G.V.N Kameshwar Rao Vs. G.J.Abilli, AIR 2002 SC 576.
We have considered the rival submissions and perused the record.
It is settled by a catena of decisions of Apex Court that mental cruelty can cause even more serious injury than the physical harm. It is to be determined on whole facts of the case and the matrimonial relations between the spouses. To amount to cruelty, there must be such willful 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. Mental cruelty and its effect cannot be stated with arithmetical exactitude. It varies from individual to individual from society to society and also depends on the status of the persons. What would be a mental cruelty in the life of two individuals belonging to particular strata of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. The agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. The inference has to be drawn from the attending circumstances.
The Apex Court in the case of Narendra Vs. K.Meena [(2016) 9 Supreme Court Cases 455], while dealing with the issue of mental cruelty by leveling baseless allegation without foundation has found it to be a very serious nature and it has been held that such kind of baseless and false allegation surely (9 of 20) [CMA-4071/2007] can be a cause for mental cruelty. The Apex Court has held in the said judgment as under:-
"15. With regard to the allegations about an extra- marital affair with maid named Kamla, the re- appreciation of the evidence by the High Court does not appear to be correct. There is sufficient evidence to the effect that there was no maid named Kamla working at the residence of the appellant. Some averment with regard to some relative has been relied upon by the High Court to come to a conclusion that there was a lady named Kamla but the High Court has ignored the fact that the Respondent wife had levelled allegations with regard to an extra-marital affair of the appellant with the maid and not with someone else. Even if there was some relative named Kamla, who might have visited the appellant, there is nothing to substantiate the allegations levelled by the Respondent with regard to an extra-marital affair. True, it is very difficult to establish such allegations but at the same time, it is equally true that to suffer an allegation pertaining to one's character of having an extra-marital affair is quite torturous for any person - be it a husband or a wife.
16. We have carefully gone through the evidence but we could not find any reliable evidence to show that the appellant had an extra-marital affair with someone. Except for the baseless and reckless allegations, there is not even the slightest evidence that would suggest that there was something like an affair of the appellant with the maid named by the Respondent. We consider levelling of absolutely false allegations and that too, with regard to an extra- marital life to be quite serious and that can surely be a cause for metal cruelty.
17. This Court, in the case of Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, has held as under:-
"7. The question that requires to be answered first is as to whether the averments, accusations and character assassination of the wife by the appellant husband in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Act. The position of law in this regard has come to be well settled and declared that levelling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and allegations of (10 of 20) [CMA-4071/2007] extramarital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination and by way of cross- examination satisfy the requirement of law has also come to be firmly laid down by this Court. On going through the relevant portions of such allegations, we find that no exception could be taken to the findings recorded by the Family Court as well as the High Court. We find that they 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 for her to live with a husband who was taunting her like that and rendered the maintenance of matrimonial home impossible."
The word "cruelty" has not been defined in the Hindu Marriage Act and 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 Apex Court while dealing with the gamut of cruelty has laid down various instances of mental cruelty on illustrative basis and has further held that the concept of "mental cruelty" cannot remain static. It is bound to change with the passage of time. The Apex Court in the case of Samar Ghosh Vs. Jaya Gosh [(2007)4 SCC 511] has dealt with issue of mental cruelty as under:-
"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 definition of the concept of (11 of 20) [CMA-4071/2007] '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 (12 of 20) [CMA-4071/2007] 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.
(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 (13 of 20) [CMA-4071/2007] 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."
The Apex Court in the case of Ramchander Vs. Ananta [(2015)11 Supreme Court Cases 539] has reiterated that "mental cruelty" is necessarily a matter of inference to be drawn from the facts and circumstances of the case and instances of cruelty are not taken into isolation but cumulative effect of facts and circumstances emerging from evidence on record and then drawing a fair inference whether a person has been subjected to mental cruelty due to conduct of the other spouse. It has been further held that the "mental cruelty" as set out in Sammar Gosh (supra) are only illustrative and not exhaustive. The relevant para of the said judgment is reproduced as under:-
"10. The expression 'cruelty' has not been defined in the Hindu Marriage Act. 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. In the present case there is no allegation of physical cruelty alleged by the plaintiff. What is alleged is mental cruelty and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. It is settled law that the instances of cruelty are not to be taken (14 of 20) [CMA-4071/2007] in isolation but to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the plaintiff has been subjected to mental cruelty due to conduct of the other spouse. In the decision in Samar Ghosh case (supra), this Court set out illustrative cases where inference of 'mental cruelty' can be drawn and they are only illustrative and not exhaustive."
The Apex Court in the case of Malathi Ravi, M.D. Vs. B.V.Ravi, M.D., (2014)7 Supreme Court Cases 640 has laid down the law for proving the desertion. Inferences may be drawn from certain facts of those acts or by conduct, expression of intention, both anterior and subsequent to the actual acts of separation. The relevant para is quoted here under:-
"18. To appreciate the rivalised submissions raised at the Bar, we have carefully perused the petition and the evidence adduced by the parties and the judgment of the Family Court and that of the High Court. The plea that was raised for grant of divorce was under Section 13(1)(i-b) of the Act. It provides for grant of divorce on the ground of desertion for a continuous period of not less than two year immediately preceding the presentation of the petition. The aforesaid provision stipulates that a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion, as a ground for divorce, was inserted to Section 13 by Act 68 of 1976. Prior to the amendment it was only a ground for judicial separation.
19. Dealing with the concept of desertion, this Court in Savitri Pandey v. Prem Chandra Pandey has ruled thus:-
"Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one (15 of 20) [CMA-4071/2007] spouse by the other without that 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. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for example, anger [pic]or disgust without intending permanently to cease cohabitation, it will not amount to desertion."
20. In the said Savitri Pandey case, reference was also made to Lachman Utamchand Kirpalani's case wherein it has been held that desertion in its essence 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 (16 of 20) [CMA-4071/2007] 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."
While considering the aforementioned judgments, this Court has recently decided the issue of "cruelty" in D.B.Civil Misc. Appeal No.5188/2008 (Smt. Geeta Vs. Raghuveer Singh) vide judgment dated 17.07.2017, as under:-
"Cruelty, which is a ground for dissolution of marriage, is willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental or as to give rise a reasonable apprehension of such a danger. The mental cruelty falls within purview of a matrimonial wrong. The cruelty has been used in relation to human conduct and human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. Cruelty can be intentional or unintentional. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be by conduct, words, gestures, by a mere silence, violent or non-violent."
In the case at hand, the Family court on the basis of evidence brought on record has recorded a finding that the ground of cruelty was well established by pleadings and evidence. The Family Court on the basis of evidence has recorded a finding that the appellant was quarrelsome, used to leave her house on her own and on being asked about her whereabouts she used to abuse the respondent-husband and used to threaten to implicate in a criminal case. The fact of throwing hot water in presence of colleagues of the respondent is found to be proved. It has been found that the appellant along with his brother came to the school (17 of 20) [CMA-4071/2007] and threatened the respondent-husband to dire consequences, including the threat to physically harm him. The Family Court has further found that allegation of staying in a separate room by the appellant was also not proved as there was admission by the appellant herself that they used to stay in only one room.
We find that the various incidents which have been found to be proved on the basis of evidence, requires no interference by this Court.
The submission of the counsel for the appellant that the findings have been given without considering the evidence in proper perspective needs to be rejected as the Family Court has considered the evidence of both the parties and then has recorded a finding. The argument of the learned counsel for the appellant that solitary incident or all other allegations/sporadic incidents do not constitute cruelty also needs to be rejected. The Family court has not only taken one or two incidents but has considered entire incidents and then has recorded its finding. In our view, throwing of hot water in presence of colleagues of a person; misbehavior and fight at work place; threatening to lodge a false criminal case; use of force by brothers of the appellant, misbehaviour at several junctures lead to a situation where ill-treatment and mental agony as well as mental torture is indeed suffered by the respondent- husband.
The argument of the learned counsel for the appellant that cruelty was condoned as per requirement of Section 23(1)(b) of the Act of 1955 is liable to be rejected . There has been no condonation of the alleged mental cruelty by the husband. It has (18 of 20) [CMA-4071/2007] neither been pleaded nor proved that all those acts which constituted mental cruelty were condoned by the respondent- husband.
The submission of the appellant with regard to desertion not being proved, requires to be rejected. On bear reading of the statement of the appellant herself that she has not been living with her husband since March, 2000 itself prove that she was not living with her husband since long. It is apparent from the evidence on record that the appellant had not stayed with the husband without any justifiable reason. The finding of the Family court are well supported on all issues.
The reference of judgment of the Apex Court made by the learned counsel for the appellant in regard to cruelty in case of Suman Singh Vs.Sanjay Singh (supra) does not apply in the facts of the present case. The Apex Court in the said judgment has held that if there are no details of mental cruelty and solitary incident is reported without giving detail of such mental cruelty, Court cannot record finding of cruelty. The case in hand is not relating to one solitary incident of cruelty and on the contrary various incidents with details have been given and as such, the said judgment of the Apex Court is of no assistance to the appellant. The Apex Court has also held in the said case that few isolated incidents of long past and that too found to have been condoned due to compromising behaviour of the parties cannot, constitute an act of cruelty. In the instant case, there has been no condonation or compromising behaviour of the parties and as such, the judgment of the Apex Court will not cover the case of (19 of 20) [CMA-4071/2007] the appellant.
In the case of Samar Ghosh Vs. Jaya Ghosh (supra), on which the reliance was placed by learned counsel for the appellant, the Apex Court held that no uniform standard can ever be laid down for guidance to adjudge the cruelty but certain instances by way of illustrations were enumerated and in the said judgment itself in para 101, the Apex Court held that instances indicated in the judgment were only illustrative and not exhaustive.
The reliance on the judgment of Apex Court in the case of Smt. Mayadevi Vs. Jagdish Prasad (supra) has also no application in the instant case. In the said case, it is held that for constituting cruelty the conduct, complained should be grave and weighty so as to come to the conclusion that the spouse cannot be reasonably expected to live with the other spouse. The facts in the present case clearly established various acts of causing mental cruelty and as such, become impossible for the husband to stay with his wife.
The judgment relied by the learned counsel for the appellant in the case of Prabhat Vs. Swati (supra) also does not support the case of the appellant. The appellant herself has admitted that she was not staying with her husband since March, 2000 and there was no justifiable cause for her not going back to her matrimonial home. The other judgments relied by the learned counsel for the appellants in the case of Lachman Utamchand Kirpalani Vs. Meena @ Mota and Shyam Sunder Kohli Vs. Sushma Kohli @ Satya Devi are of no assistance to the learned counsel for the appellant and does not apply in the present facts of the case.
(20 of 20) [CMA-4071/2007] We are also not inclined to dwell into the issue of re- marriage of respondent, which he alleges to have solemnized during the pendency of the present appeal. We have considered the ground of cruelty and desertion being found proved, as such, the fact of re-marriage of the respondent is not relevant for deciding the present controversy.
Consequently, we do not find any legal infirmity in the impugned judgment and the present appeal deserves to be dismissed.
In the result, the present appeal is dismissed. No order as to cost.
(ASHOK KUMAR GAUR),J. (AJAY RASTOGI),J.
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