Gujarat High Court
Pramodkumar C Shah vs Rajulaben Pramodkumar on 22 April, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
PRAMODKUMAR C SHAH....Appellant(s)V/SRAJULABEN PRAMODKUMAR SHAH....Defendant(s) C/FA/1399/2009 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL NO. 1399 of 2009 With CIVIL APPLICATION NO.
4232 of 2009 In FIRST APPEAL NO. 1399 of 2009 With MISC.CIVIL APPLICATION NO. 2551 of 2009 In FIRST APPEAL NO. 1399 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
============================================================= PRAMODKUMAR C SHAH....Appellant(s) Versus RAJULABEN PRAMODKUMAR SHAH....Defendant(s) ============================================================= Appearance:
MR MB GOHIL, ADVOCATE for the Appellant(s) No. 1 MR SURESH S PATEL, ADVOCATE for the Defendant(s) No. 1 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :22/04/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This appeal under Section 19 of the Family Courts Act, 1984, is at the instance of a unsuccessful plaintiff-Husband in a suit for divorce under the Hindu Marriage Act and is directed against the judgment and decree dated 27.02.2009, passed by the Family Court, Ahmedabad, in Family Suit No.437 of 2000 by which the Family Court dismissed the suit.
2. At the outset, we may state that first in point of time the present appeal was taken up for hearing by a Division Bench of this High Court on 11th September, 2009. The Division Bench took the view that the parties had married in the Year-1982 and were estranged from each other since 1991. The Division Bench took the view that the marriage between the parties solemnized on 15.02.1982 had broken beyond repairs and it was the case of irretrievable break down of marriage. The Court also took the view that there was no possibility of reconciliation after nearly 20 years of separation and in such circumstances the Family Court ought to have passed a decree for divorce. The Court, in the circumstances, awarded monthly maintenance of Rs.10,000/- in favour of the wife and passed a decree dissolving the marriage between the parties.
The respondent herein i.e. the wife feeling dissatisfied, challenged the judgment and decree passed by the Division Bench of this Court by filing a Special Leave Petition No.13420 of 2010 in the Supreme Court. The Supreme Court after hearing the parties was of the opinion that the view taken by the High Court might appear to be quite reasonable but, unfortunately irretrievable breakdown of marriage was not a ground for dissolution of marriage under the Hindu Marriage Act. According to the Supreme Court, the finding recorded by the High Court that, the marriage between the parties had broken down beyond repairs could not have been made a ground for the decree of dissolution of marriage. Accordingly, the Supreme Court set aside the judgment and decree passed by this Court. The Supreme Court also held that since the High Court had proceeded to give direction for the dissolution of marriage on the ground of irretrievable break down of marriage alone, had thereby failed to examine the findings recorded by the Trial Court on the pleas of cruelty and desertion taken by the husband as grounds for dissolution of marriage. In such circumstances, the Supreme Court thought fit to remit the matter to this High Court to consider the husband s appeal on merits. The Supreme Court accordingly restored the present appeal preferred by the husband to its original file and directed the High Court to hear and dispose off the appeal in accordance with law after hearing the parties.
It is in the aforesaid background that the appeal has been placed once again before us for hearing and the same is being disposed of by this judgment.
The case made out by the husband (herein after referred to as the appellant ) in the petition for divorce may be enumerated, rather in detail in order to appreciate the allegations of cruelty in proper perspective.
5.1 The parties were married according to the Hindu rites and rituals on 15.02.1982 at Anand (Dist:Kheda) and during the said wedlock, two sons were born.
According to the appellant, he lived with the respondent as husband and wife till 13.05.1991. During this period, the appellant purchased a Flat No.40 in Mayuri Flats situated near Novelty Cinema, Ahmedabad for the respondent in her name out of love and affection towards her. The appellant also bought furniture and other items like T.V., V.C.R., Refrigerator and few household articles.
During this period, on the request of the respondent, the appellant permitted the mother of the respondent to stay along with them in the said flat. According to the appellant, his wife- the respondent was completely under the influence of her mother and her mother interfered in all matters as a result of which, the respondent started quarreling with the appellant on one pretext or the other. According to the appellant, such frequent quarrels used to cause him a lot of mental pain and agony. According to the appellant, the respondent and her mother started demanding money and the appellant used to give money to the respondent and her mother as and when they exerted undue pressure. After the delivery of the first child, the respondent left the matrimonial home and started residing with her mother. The respondent had stayed at her parental house for a period of four years and the appellant had taken lot of pains and efforts to persuade her to return to her matrimonial house but, there was no change in her behaviour and attitude towards the appellant. The appellant out of sheer love for the respondent and the children kept on tolerating her acts of cruelty and continued to live under one roof although the parents of the appellant had to stay separately in a different house.
On 13.05.1991, the respondent and her mother compelled the appellant to leave the house. On that fateful day, the respondent and her mother came at the business place of the appellant and created a ruckus which was witnessed by many people in the locality.
The appellant tried his best to convince the respondent to live a normal married life but, as the respondent was completely under the influence of her mother, the respondent refused to live with the appellant and discharge her marital obligations.
In such circumstances, the appellant was left with no other option but, to file a petition under Section 13 of the Hindu Marriage Act for divorce on the ground that the respondent had deserted him past more than two years from the date of petition and also on the ground of mental cruelty and harassment.
It may not be out of place to state that the appellant filed Hindu Marriage Petition NO.165/95 under Section 13 of the Hindu Marriage Act, 1956, for dissolution of marriage, in the City Civil Court, Ahmedabad. On establishment of the Family Court, Ahmedabad, the suit was transferred to the Family Court, Ahmedabad and was renumbered as Family Suit No.437 of 2000.
The suit was contested by the respondent by filing a written statement at Exh:28 and the defence taken by the respondent may be summed up thus:-
7.1 There was no cause of action for filing the suit, which was a misconceived and harassing one, and containing false, fabricated, perverse and manufactured story purposely designed with ulterior motive.
7.2. According to the respondent, she fell in love with the appellant and got married on 15.08.1982, amidst lot of opposition from the parents of the appellant. The family of the appellant refused to accept the respondent, and therefore, in such circumstances, the appellant started residing with the respondent in a rented premises situated at Shahpur in Ahmedabad. The grand-mother of the respondent, owned a Flat No.40 situated in Mayuri cooperative Housing Society Ltd. near old Novelty Cinema, Ahmedabad. The grand mother of the respondent passed away on 11.04.1986. The grand mother bequeathed the aforesaid flat in favour of the respondent by a Will and on the strength of such Will the name of the respondent was entered, as the owner of the flat by the executive committee of the Cooperative Housing Society vide resolution dated 29.04.1986. Accordingly, the respondent acquired possession and occupation of the said flat. The respondent started residing in the said flat along with the appellant and her two children. They all stayed together till 13.05.1991. The appellant left the house on his own on 13.05.1991 and never returned despite best of the efforts made by the respondent.
7.3 According to the respondent, the appellant was in the habit of consuming liquor and was also having illicit relations with other women. Due to such vices, the appellant used to frequently quarrel with the respondent.
7.4 On 13.05.1991 i.e. the date on which the appellant had left the house, the respondent and her mother received a notice from the appellant sent through an advocate levelling allegations of physical and mental torture. In the said notice, the appellant had not stated anything about the Flat No.40 situated in Mayuri Cooperative Housing Society.
7.5 Since all the efforts to persuade the appellant failed, the respondent was constrained to file an application for restitution of conjugal rights being H.M.P.No.218/91. Thereafter, in the Year-1995, the appellant filed an application before the City Civil Court, Ahmedabad, for divorce under Section 13(1) of the Hindu Marriage Act being HMP No. 165 of 1995 on the ground of crelty and harassment by the respondent and her mother.
7.6 According to the respondent, in view of the pendency of the HMP No.165 of 1995 filed by the appellant for divorce, the respondent withdrew HMP No. 218 of 1991 filed by her for restitution of conjugal rights with the consent of the Court and after obtaining endorsement of the learned advocate for the appellant.
The Family Court framed the following issues for determination vide Exh.33:-
Whether the plaintiff proves that the defendant is guilty of deserting the plaintiff past two years without any just and reasonable reasons.
Whether plaintiff proves that the defendant is guilty of causing mental and physical cruelty to the plaintiff.
Whether there are any grounds available for rejecting the application taking into consideration Section 23 of the Hindu Marriage Act.
Whether the plaintiff is entitled to any of the reliefs prayed for what should be the final order and decree.
The learned Trial Judge on consideration of the materials on record came to the conclusion that the plaintiff had failed to prove that the defendant had deserted him past two years without any justifiable reasons and answered the issue no.1 accordingly in the negative.
The learned Trial Court also held that the plaintiff had failed to prove that the defendant was causing mental and physical cruelty so as to entitle the plaintiff to a decree for divorce and accordingly, answered the issue no.2 in negative.
The learned Trial Court also held that the decree of divorce under the Hindu Marriage Act is apart from proof of existence of one of the ground contemplated in the Section 13 of the Act subject to the parameters of Section 23 and held that the plaintiff was guilty of conduct which disentitled him from the relief claimed. Accordingly, the issue no.3 was answered in the affirmative.
In the final conclusion, the learned Trial Judge held that no case was made out by the plaintiff for a decree of divorce and accordingly, dismissed the suit.
Being dissatisfied, the husband has come up with this appeal.
Submissions on behalf of the appellant:-
Mr.M.B.Gohil, the learned advocate for the appellant, vehemently submitted that the Family Court committed a serious error in dismissing the suit praying for a decree of divorce on the ground of cruelty and desertion as enumerated in Section 13(1) of the Hindu Marriage Act, 1956.
Mr.M.B.Gohil, the learned advocate for the appellant, also submitted that the Court below failed to appreciate the evidence of the parties in its true perspective resulting in a failure of justice. It was submitted by Mr.Gohil that his client was always ready and willing to discharge his part of the marital obligations but, due to obstinate attitude of the respondent and constant harassment, the appellant was left with no other option but, to leave the house. The appellant had requested the respondent on number of occasions to return to her matrimonial home after the delivery of first child, but, the respondent refused to return and it is only after a period of more than four years that the appellant was able to persuade the respondent to return to her matrimonial home.
Mr.M.B.Gohil, submitted that the Court below ought to have considered the cumulative effect of the circumstances emerging from the record of the case and the failure on the part of the Court below in not taking into consideration such circumstance has resulted into gross injustice.
The Sum and substance of the submission of Mr.Gohil, is that his client resided last with the respondent in the Year-1991 and since then they are leaving separately. According to Mr.M.B.Gohil, the two sons are now grown up and settled in life but have not maintained any relations with the appellant.
Mr.Gohil, submitted that the respondent has leveled false, baseless and reckless allegations against the appellant, as regards his character. According to Mr.Gohil, the allegations leveled by the respondent that the appellant was having illicit relations with other women including the sister in law are sufficient to constitute cruelty.
Mr.Gohil, submitted that his client is entitled to get a decree for divorce on the ground of making such baseless allegations. In such circumstances, Mr.M.B.Gohil, prays to allow this appeal and passed order for dissolution of the marriage.
Submissions on behalf of the respondent:-
Mr.Suresh S. Patel, the learned advocate for the respondent, submitted that, no error, not to speak of any error of law could be said to have been committed by the learned Trial Judge in dismissing the suit filed by the appellant.
Mr.Patel, also submitted that there is absolutely no evidence of mental or physical cruelty at the end of her client, as alleged by the appellant and the Family Court has rightly answered the Issue No.2 in the negative.
Mr.Patel, also, submitted that her client, even as on today, is ready and willing to discharge her part of the marital obligations and is very much willing to stay with the appellant along with her two sons.
Mr.Suresh S. Patel, the learned advocate for the respondent, in such circumstances, prays that there being no merit in the appeal of the appellant, the same deserves to be dismissed.
11. ANALYSIS:-
11.1 Before adverting to the rival submissions made on either side, we deem fit and proper to look into the oral evidence on record led by the parties.
11.2 The appellant examined himself vide Exh.34. In his examination-in-chief, he has reiterated the averments made in the plaint. The appellant has deposed about the incident which had occurred on 13.05.1991, which according to him was the turning point of his life. He has deposed that the ruckus which was created by his wife and his mother in law was so humiliating as a crowd of around 200 people had got together to witness the ruckus. The appellant has further deposed that in the invitation card of the marriage of his nephew inadvertently the name of his son could not be printed in the card. As a result of which the respondent had created a hue and cry. He has further deposed that because of constant harassment, he was forced to prefer an application with the Police Commissioner and it is only thereafter, that the respondent and her mother stopped coming at the house of the appellant to create a ruckus. The appellant also deposed that however, the respondent continued to administer threats on telephone. He has further deposed that he had filed an application Exh.56 for obtaining the custody of the two sons. He has deposed that his two sons are aged about 16 and 11 years respectively and he was in a position to take good care of both his sons. The appellant has further deposed that he was residing separately from his wife past 10 years. He denied the allegations of demand of dowry made by the respondent. In his cross-examination, the appellant denied the suggestion of being in habit of consuming liquor. He has further deposed that since 13.05.1991, he had been residing separately from the respondent. He has admitted in his cross-examination, that he never bothered to inquire about the health of his wife and his children. He further admitted that he had never visited at any point of time the school of the children.
He also admitted that he had not given any notice to his wife that he was ready and wiling to stay together. The appellant has further deposed that his wife had filed an application being HMP No. 218 of 2011 for restitution of conjugal rights in the City Civil Court, Ahmedabad. He has deposed that he did not remember whether he had given any assurance in the said proceedings to take back his wife and children and on such assurance his wife had withdrawn the application.
11.3 In his cross-examination, the appellant further admitted his acquaintance with a lady viz. Dolly (name changed) . He stated that Dolly (name changed) was serving as an Assistant Manager in a Development Credit Bank. He denied the suggestion that he got close with Dolly (name changed) with the help of a person named Sadrubhai, residing at:Dholka with whom he had business relations. The appellant denied that he had opened an account with the Development Credit Bank with a view to meet Dolly (name changed). The appellant also denied the suggestion that he used to frequently visit the house of Dolly (name changed) as a result of which few members of the Parth Society had filed an application with the police and the police had called the appellant for interrogation in that regard. The appellant also denied the suggestion that the marriage with the respondent was solemnized against the wish of his parents. He admitted that at the time of marriage one lady named Dakshaben was residing, as their neighbour. He also denied that due to Dakshaben there were frequent quarrels between him and his wife. He has stated in his cross-examination that he was not ready and wiling to stay with his wife in any circumstances even if his wife was ready to live with him.
The respondent herein examined herself at Exh.127. In her examination in chief, the respondent has deposed that her marriage was solemnized with the appellant amidst objections at the end of the family members of her husband. She has deposed that her husband was not belonging to the Jain community. She has deposed that her husband belongs to the Modi Community. They fell in love with each other and decided to get married. She has further deposed that after marriage she had started residing with her husband at Sardarkunj Society situated in Shahpur. The said house was obtained on a rent on the recommendation of her brother and the rent of the said house was also being paid by her father. After residing in the said rental premise for about nine months, her husband returned to his original house near Prakash Cinema. The respondent has deposed that at that point of time she was pregnant and the attitude and behavior of her husband was not good. She has deposed that as a result of which, she had to return to her parental house. The respondent has denied of having picked up any quarrel at the shop of her husband, as alleged by her husband. She has further deposed that her husband left the house on 13.05.1991 and sent a notice for divorce. The reply was also given to the said notice. The respondent has also deposed that she had filed an application for restitution of the conjugal rights and in those proceedings, her husband had assured to take her back with their children. She has further deposed that a pursis was passed by her husband marked 85/7 but, failed to comply with the said pursis. Even after withdrawing the application for restitution of conjugal rights, her husband refused to take her back with children. She denied the suggestion that she left the matrimonial home on her own. She has also deposed that her husband was in the habit of consuming alcohol, non-vegetarian food and was also having illicit relationship with other women. She has further deposed that her husband was having illicit relationship with her elder sister in law viz. Pravinaben. She has further deposed that her husband was having illicit relationship with a lady viz. Dolly (name changed). There is a police record, as regards Dolly (name changed). She has deposed that she was ready and willing to live with her husband unconditionally along with her two sons. She has further deposed that it was true that she didn t like few bad habits of her husband like consuming liquor, having non-vegetarian food and illicit relationship with women.
We may state that before hearing the appeal on merits, we thought fit to speak with the parties so as to ascertain as to what was the actual cause for the maladjustment in the marital life. We accordingly tried to reconcile the parties and for that purpose we asked the respondent to keep her two sons present so that we could talk to them. We had a talk with the two sons and we inquired about their intention whether they were willing to go to their father s place initially for some time so that a rapport could develop and we also suggested that for the next three weeks such process may continue so that their relation become normal. The children very willingly agreed and exhibited all respect towards their father but, the father i.e. appellant refused to even talk to his two sons. In such circumstances, we had no other option but to hear out the appeal on merits.
Therefore, the first question that arises for determination in this appeal is whether the husband has been able to prove the allegations of cruelty, as pleaded in the application for divorce.
In the petition for divorce, the first allegation is that the wife was guided by her mother, who instigated and interfered in a household matters and for that purpose, she started cruel behaviour against the husband. Secondly, the wife used to, in connivance with her mother, make undue demand of money leading the husband to financial constraints. Thirdly, after the delivery of the first child, the wife left the matrimonial home and started residing with her mother. The wife stayed at her mother s house for a period of four years and after lot of efforts, the husband was able to get back his wife at his house. Fourthly, even thereafter, the behaviour of the wife remained the same but, out of sheer love and affection towards his wife and children, the husband continued to stay in one house despite the fact that his parents had to live in another house. Fifthly, on 13.05.1991, the wife, in connivance with her mother, compelled the husband to leave the house. On that day, the mother of the wife came at the business place of the husband and created a ruckus to the extent that a crowd of about 100 to 200 people gathered to witness the ruckus. Lastly, he made allegations that the wife had deserted him past more than two years thereby causing lot of mental cruelty.
In evidence, the wife specifically denied all the allegations levelled by the husband against her. The wife in her evidence has stated that she fell in love with the appellant and got married amidst lot of opposition from the family members of the appellant. She has also stated that since the family members of the appellant refused to accept her as wife of the appellant, she resided along with the appellant in a rented premises after marriage. The first child was born in the Year-1984. The wife has also stated in her evidence that her husband used to beat her after consuming liquor in the night. She has also deposed that her husband used to force her to get money from her parents. Her husband had the habit of consuming liquor and had also illicit relations with other women. The wife has further clarified in her evidence that after the birth of the first child in the Year-1984 her husband refused to stay together and therefore, the allegations that the wife stayed back at the house of her mother for four years after the birth of the first child has proved to be false.
17. We have noticed that, in the cross-examination of the wife, a suggestion was put by the learned advocate appearing for the husband and the suggestion is of such a nature that in our opinion it amounts to admission of two facts viz. that the husband was in the habit of consuming liquor and non-vegetarian food and was maintaining relations of the nature with other women which he should not have maintained. The wife has also stated in her evidence to a question which was put to her in cross-examination as to whether the wife had made any efforts during the period of 17 years to reconcile with the husband & in reply, the wife stated that there was no question of making any attempt on her part, as her husband had left the house leaving behind, the helpless wife and her two children.
18. We have also noticed that the husband has tried to highlight a incident which had occurred on 13.05.1991, very vociferously. According to the husband, on that particular day, his wife and his mother in law had come at the shop of the husband and had created a lot of ruckus, as a result of which, a crowd of around 100-200 people had got together to witness the ruckus. This according to the husband had caused a lot of mental pain and agony and which has been tried to be projected as the main ground for divorce.
19. In our opinion, one solitary incident of such a nature, even if believed, hardly constitute a cruelty so as to grant a decree of divorce as prayed for by the husband. Apart from the above, we have also noticed that a witness viz. Manubhai Prajapati examined by the husband has altogether a different story to narrate and a close scrutiny of his evidence reveals that the wife was not present on 13.05.1991 i.e. the day on which the ruckus is alleged to have been created by the wife and her mother at the shop of the husband. The witness Manubhai Prajapati, in his examination-in-chief, being Exh.121 has deposed that, some time in the Year-1991-92, he had an occasion to visit the shop of the husband and at that point of time, he could realize that a quarrel had ensued and a mob of around 100-200 persons had gathered near the shop of the husband. He has further deposed that, at that point of time, Promodbhai i.e. the husband had told him that his mother in law had come and went away quarreling with him.
20. We may also state that the husband also examined another witness viz. Ashok Datturam. In his evidence being Exh.123 he deposed about the incident which had occurred on 13.05.1991 and did depose about presence of the wife along with her mother on that day. It appears that Ashok Datturam had some business relations with the husband and due to such relations a suggestion was also put in his cross-examination that he was deposing falsely due to close relation with the husband. He admitted in his cross-examination that before coming to the Court for giving evidence he had first visited the shop of the appellant and thereafter, he came to the Court.
21. We have also gone through the evidence of the brother of the wife named Rajendrabhai Kantilal Kothari. ajendrabhai Kantilal Kothari in his evidence at Exh.170 has deposed that the marriage of his sister with the appellant was a love marriage and was not approved by the family members. As a result of which, the appellant and the respondent had got married at Anand before the Arya Samaj. He has further deposed that there used to be quarrel between the husband and wife on petty issues. After marriage, the respondent and the appellant used to stay in a rented premises and such premises was obtained with his intervention. The rent of the premises was also being paid by his father i.e. the father of the wife. He has further deposed that at the relevant point of time when the appellant and the respondents were residing in a rented premises, the respondent was pregnant and there was no one to take care of her and due to such reason, they decided to shift in Flat No.40 of Mayuri Flats. He has further deposed that the husband had the habit of consuming liquor and was also maintaining illicit relations with other women. He has deposed that his house was very much adjoining Mayuri flats in which the appellant and the respondent used to reside. The appellant used to keep liquor bottles in the refrigerator. He has also deposed that the appellant never cared or bothered to meet his children. He has further deposed that his sister i.e. the respondent was always ready and willing even as on that day to stay together with the appellant. In his cross-examination, he has stated that he had no documentary evidence to establish that the appellant had illicit relation with other women but, he clarified that the appellant had illicit relation with a lady residing in Parth society and the members of that particular society had lodged a police complaint being Registration No. 372/03 as regard such illicit relations. He has further deposed that the police had recorded his statement in connection with the complaint which was lodged by the members of the society. He has further deposed in his cross-examination that he had seen the appellant and one lady named Floarina residing in Parth Apartment together travelling on a scooter. The appellant used to drop Dolly (name changed) at the bank where she was serving and he used to pick her up in the evening. In his cross-examination, he has deposed that the respondent used to frequently complain to her family members about the illicit relations of the appellant with other women.
22. Thus, on over all evaluation and re appreciation of the oral evidence on record, we find that the husband has failed to prove any of the allegations of cruelty pleaded in the petition for divorce.
23. Even assuming for the moment that at times the wife in the heat of exasperation may also have retaliated by itself is no ground to grant relief of divorce. If a lady finds herself in a helpless situation and is absolutely exhausted on account of everyday trouble in the house then, at times being a woman, may retaliate, but that by itself will not constitute an act of cruelty so as to entitle the husband for a relief of divorce. The expression cruelty as envisaged under Section 13 of the Act clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. Cruelty may result where the complaining spouse establishes being treated with cruelty, whether physical, mental, social or otherwise but the acts complained of must be more serious than ordinary wear and tear of marriage falling in the category of conscious acts cruel in nature as that is the underlying requirement of the provision. It is the cumulative effect of all the acts and conduct which has to be taken into consideration for finding out, whether the behaviour of the erring spouse falls within the ambit of cruelty as envisaged under Section 13(1)(ia) of the Act. What may amount to cruelty in one case may not amount to cruelty in another case. The Court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse as also the custom and the manners of the parties. Cruelty may consist of a single act or conduct of the respondent or it may consist of a series of acts, none of which by itself can be said to constitute cruelty but in their totality they may amount to cruelty. The mere fact that the erring spouse is moody, whimsical, irritable, inconsiderate, etc., will not be sufficient to amount to cruelty. Similarly, merely neglect or want of affection, expression of hatred will not be a conduct constituting cruelty. The idiosyncrasies of the wife some time may not amount to cruelty, even though they make the husband unhappy. There may be occasions where the conduct of wife may lead to unpleasantness but such unpleasantness alone will not amount to cruelty and this may reasonably fall within the ambit of ordinary wear and tear of matrimonial life which is not sufficient for establishing cruelty as envisaged under the Act. However, in matrimonial life, acts and conducts amounting to mental cruelty abound and have some times more devastating effect than the acts of physical violence.
24. In the aforesaid context we may quote with profit the decision of the Supreme Court in the case of Savitri Pandey Vs. Prem Chandra Pandey , reported in 2002(3) G.L.H. 470, the Supreme Court in Para-6 observed as under:-
Treating the petitioner with cruelty is a ground for divorce under Section 13(1) (ia) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous of life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feeling towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. Cruelty , therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the bases of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case, both the trial Court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the Courts cannot be disturbed by this Court in exercise of power under Article 136 of the Constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly shows that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life.
25. This takes us to consider the ground of desertion. It is now well settled that in so far as desertion is concerned, what is required of a spouse seeking divorce on the ground of desertion is proof that throughout the whole course of two years as contemplated by clause (ib) of sub-section (1) of Section 13 of the Act, the other spouses has without cause been in desertion. The deserting spouse must be shown to have persisted in the intention to desert throughout the whole period. In fulfilling its duty of determining whether on the evidence a case of desertion without any cause has been proved the Court ought not to leave out of account the attitude of mind of the petitioner. If on the facts it appears that a husband has made it plain to his deserting wife that he will not receive her back, or if he has repelled all the advances which she may have made towards a resumption of married life, he cannot complain that she has persisted without cause in her desertion. In other words, insofar as deserting spouse is concerned, two essential conditions must exist, namely, the factum of separation, and the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as deserted spouse is concerned, namely, the absence of consent, and absence of conduct giving reasonable cause to the spouse leaving matrimonial home to form necessary intention to bring cohabitation permanently to an end. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. These essential conditions must continue throughout the period of two years specified in clause (ib) of Sub-section (1) Section 13 of the Act. This position of law is settled by the Apex Court as back as in 1956, in Bipinchandra Jasingbai Shah Vs. Prabhawati (AIR 1957 SC 1765) which has been followed and reiterated by the Apex Court and High Courts in several judgments.
In the present case, there is no evidence worth the name to even remotely suggest that the wife ever intended to bring cohabitation permanently to an end. On the contrary, the evidence on record would suggest that it was the husband who left the house on 13.05.1991 i.e. the day on which according to the husband the wife and his mother in law created a ruckus at his shop. So far this aspect is concerned, we have taken the view that such a solitary incident even if believed is hardly constitute a cruelty so as to grant a decree of divorce in favour of the husband.
In the aforesaid context, we may refer to the decision of the Supreme Court in the case of Savitri Pandey (Supra).
In Savitri Pandey (Supra), the Supreme Court has explained what amounts to desertion as under:-
8. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one 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 host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati [AIR 1957 SC 176] held that if a spouse abandons the other in a state of temporary passions, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held:
"For the office of desertion, so far as the deserting spouse is concerned, two essential conditions must be 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 co nduct 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. Here a different between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. 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 ort it may be that 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. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus poenitentiae thus provided by law and decide to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like and other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court."
9. Following the decision in Bipinchandra's case (supra) this Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena alias Mota [AIR 1964 SC 40] by holding 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 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 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 conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
10. To prove desertion in matrimonial matter it is not always necessary that one of the spouse should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.
11. There is another aspect of the matter which disentitles the appellant from seeking the relief of divorce on the ground of desertion in this case. As desertion in matrimonial cases means the withdrawal of one party from a state of things, i.e., a marital status of the party, no party to the marriage can be permitted to allege desertion unless he or she admits that after the formal ceremonies of the marriage, the parties had recognized and discharged the common obligation of the married life which essentially requires the cohabitation between the parties for the purpose of consummating the marriage. Cohabitation by the parties is an essential of a valid marriage as the object of the marriage is to further the perpetuation of the race by permitting lawful indulgence in passions for procreation of children. In other words, there can be no desertion without previous cohabitation by the parties. The basis for this theory is built upon the recognized position of law in matrimonial matters that no-one can desert who does not actively or willfully bring to an end the existing state of cohabitation. However, such a rule is subject to just exceptions which may be found in a case on the ground of mental or physical incapacity or other peculiar circumstances of the case. However, the party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong.
27. The next question is whether the husband is entitled to get a decree for divorce simply because the wife could not prove the alleged illicit relation of the husband with other women more particularly, a lady viz. Dolly (name changed) serving with the Development Credit Bank which she pleaded in the written-statement notwithstanding the fact that the husband failed to prove the allegations made in the plaint.
28. In the aforesaid context, we quote with profit a Division Bench decision of the Calcutta High Court in the case of Smt. Anuradha Ghosh Moulick Versus. Shri.Subir Krishna Ghosh Moulick, reported in 2008(4) ICC 642 = 2008 Lawsuit (Cal) 79. One of us, Bhaskar Bhattacharya, CJ (as his lordship then was) explained the position of law as under:-
It is now settled law that in order to get a decree for divorce on the ground of making baseless allegation made in the written statement of a party, it must be clearly established that such allegation was really a baseless one. Mere fact that the party filing written statement could not prove such will not be a ground for divorce; on the other hand, if it is established from the evidence that such allegation was evidently false, a Court can pass a decree because of such false allegation in the written statements. It is preposterous to suggest that although the inability of a party to prove the cruelty alleged in the plaint will result in mere dismissal of the claim of divorce, the failure of a defendant to prove the counter-allegation in the written statement for want of sufficient evidence will automatically confer right upon the applicant to get a decree for divorce notwithstanding the fact that such plaintiff failed to prove the case made out in the plaint. The law is that the allegation concerning moral character of a party made in the written statement must be baseless. It is for the person claiming divorce to prove that the allegations so made in the written statement are baseless. Therefore, if the spouses making such allegation in the written statements fails to prove such fact by giving evidence, according to law, such fact is not proved . However, if a particular fact is not proved, the same does not become baseless unless the same is found to be false and it is for the spouses claiming divorce to lead at the least convincing evidence to disprove such allegation to evince to the Court that those allegations were false and baseless. In this connection, we may refer to the following observations of the Supreme Court in the case of A. Abdul Rashid Khan Vs. P.A.K.A. Shahul Hamid reported in (2000) 10 SC Pg.636 at paragraph 11 thereof:
There is difference between not proved and false . Merely not able to prove cannot be in all cases categorised as false. Thus, we find that even this submission for the appellants as no merits.
29. We are in respectful agreement with the proposition of law as laid down aforesaid by the Division Bench of the Calcutta High Court and apply the dictum of law in the facts of the present case more particularly the evidence on record.
30. In the present case, although the wife could not prove her allegations as regards involvement of the husband with Daxaben and other women as alleged but, there is at least some evidence to show the relation of the husband with a lady viz. Dolly (name changed) an employee of Development Credit Bank and residing in Parth Society, Ahmedabad.
31. In view of our earlier discussions, we hold that the learned Trial Judge in the facts of the present case committed no error, not to speak of any error of law in concluding that the husband was not entitled to get a decree for divorce on the ground of cruelty as alleged in the plaint and oral evidence. The husband has failed to prove the offence of desertion, like other matrimonial offence, even on preponderance of probability. The husband has also failed to prove that the wife abandoned the matrimonial home and declined to co-habit with him thus, forbearing to perform the matrimonial obligation.
32. We are thus, convinced that it is the appellant who can be said to be at fault and is trying to take advantage of his own wrong. We, accordingly, do not find any good reason to disturb the judgment of the learned Trial Judge rejecting the petition for divorce. For these reasons, the appeal fails and the same is hereby dismissed.
33. On the facts and in the circumstances of the case, there shall be no order as to costs. In view of the order passed in main appeal, all connected Civil Applications also stand disposed of.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) Girish Page 34 of 34