Himachal Pradesh High Court
Tarun Mahant vs Surabhi Mahant on 7 May, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 340 of 2010.
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Judgment reserved on: 25.4.2018 Date of decision: 07.05.2018 Tarun Mahant ...... Appellant/petitioner Versus Surabhi Mahant Coram r to The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
..... Respondent Whether approved for reporting? No 1 For the appellant : Mr. Ajay Kumar, Senior Advocate with Mr. Gautam Sood, Advocate.
For the respondent : Kr. Virender Singh, Advocate.
Tarlok Singh Chauhan, Judge This appeal is filed by the husband, who has been denied a decree of divorce by the learned Court below.
2. The appellant/petitioner filed a petition for dissolution of the marriage under Section 13 (1) (a) of the Hindu Marriage Act, (for short 'Act') against the respondent on the allegation that the marriage was solemnized on 19.1.2001 and out of the said wedlock, one daughter was born. It was averred by the petitioner that after the marriage, the conduct of the respondent was cruel towards him and his family members and she otherwise had deserted him without any reasonable cause and had left the matrimonial home. The petitioner elaborated the act of cruelty by stating that the respondent used to threaten him and his family members Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 08/05/2018 23:08:45 :::HCHP ...2...
that she would implicate them in a criminal case and once she had even consumed poisonous substance. All these acts, according to the .
petitioner had raised a reasonable apprehension in the mind of the petitioner that it would be injurious and harmful to live with the respondent. Not only this, the respondent had lodged a false complaint against the petitioner and his parents under Section 498-A IPC, wherein the petitioner was taken into custody and remained as such for more than a fortnight. Lastly, it was averred that the respondent without any reasonable and plausible cause had deserted the petitioner on 3.2.2003.
3. On notice, the respondent contested the petition by filing reply wherein the factual position regarding marriage, its consummation and birth of daughter were not disputed. However, the other facts as mentioned in the petition were emphatically denied and it was averred that it was the petitioner as well as his other family members, who had compelled and forced her to consume poisonous substance. However, she was saved by the doctor at Zonal Hospital, Kullu. She further averred that no complaint was lodged by her against the family members with the pious hope that good sense will be prevailed upon them and they may change their behaviour towards the respondent. She admitted that she lodged FIR against the petitioner and her parents, but the same was lodged on the basis of facts. The respondent asserted that she had been forced to leave the house of the petitioner on 9.3.2003 when the petitioner gave her severe beatings.
4. The petitioner filed the rejoinder wherein the contents of the reply were denied and those of the petition were reiterated.
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5. On 4.12.2006, the learned trial Court framed the following issues:
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1. Whether the respondent has withdrawn herself from the company of the petitioner without any justifiable cause and thereby deserted him as well as treated with mental cruelty, if so, to what effect? OPP
2. Relief.
6. After recording the evidence and evaluating the same, the learned trial Court dismissed the petition and aggrieved thereby, the appellant has filed the instant appeal on the ground that the findings with regard to cruelty and desertion as recorded by the learned Court below are absolutely perverse and therefore, deserves to be set-aside.
I have heard learned counsel for the parties and gone through the records of the case carefully.
7. It is vehemently argued by Mr. Ajay Kumar, learned Senior Counsel for the appellant/petitioner that there can be no better proof of cruelty when it has come on record that the respondent at one stage had consumed poisonous substance and had lodged a false complaint against the petitioner and his parents under Section 498-A IPC wherein the petitioner was initially taken into custody, but lateron acquitted of the offence. In support of his submission, he would place strong reliance on the following judgments:
(i) Dr. N.G. Dastane vs. Mrs. S. Dastane AIR 1975 SC 1534 ;
(ii) Shobha Rani vs. Madhukar Reddi AIR 1988 SC 121;
(iii) Surjeet Singh vs. Smt. Paramjit Kaur AIR 2009 Uttarakhand 10 ;
(iv) Major Singh vs. Chhinderpal Kaur All India Hindu Law Reporter 2011 (1), 40.
(v) K. Srinivas vs. K. Sunita (2014) 16 SCC 34.::: Downloaded on - 08/05/2018 23:08:45 :::HCHP
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8. On the other hand, Kr. Virender Singh, learned counsel for the respondent would contend that the mere filing of the complaints at .
the instance of the respondent does not amount to cruelty if there are justifiable reasons to file the complaints and merely because no action has been taken on the complaint or after trial the accused is acquitted, may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Act and would place strong reliance upon the judgment of the Hon'ble Supreme Court in Raj Talreja vs. Kavita Talreja AIR 2017 SC 2138.
9. The first and foremost question that arises for consideration is whether lodging of a criminal case by the wife against the husband and his family members in which they have been acquitted would amount to cruelty.
10. Cruelty has not been defined under the Act and actually such a definition is not possible. Cruelty in fact can never be defined with exactitude and would depend upon the facts and circumstances of each case. 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. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. This is the entirety of the facts and circumstances of a given case that would determine whether there has been cruelty or not.
11. Bearing in mind the aforesaid, there can be no quarrel with what has been decided in the cases relied upon by either side, but then it ::: Downloaded on - 08/05/2018 23:08:45 :::HCHP ...5...
has to be remembered that the said decisions have been rendered in the given facts and circumstances of those cases.
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12. A Constitution Bench of the Hon'ble Supreme Court in Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some instances where from the inference of mental cruelty can be drawn and such instances are reproduced as under:
"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.::: Downloaded on - 08/05/2018 23:08:45 :::HCHP
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(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 ::: Downloaded on - 08/05/2018 23:08:45 :::HCHP ...7...
the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
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(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.
13. In a fairly recent judgment rendered by the Hon'ble Supreme Court in Raj Talreja's case (Supra), the Hon'ble Supreme Court observed that mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. It has further held that merely because no action has been taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Act.
14. Adverting to the facts of the case, it is not in dispute that the respondent had lodged an FIR under Section 498-A of IPC. It is also not in dispute that the case registered on the basis of the FIR ended in acquittal of the appellant and his family members, but such acquittal was not an honourable acquittal but was on account of failure of the prosecution to have proved its case beyond reasonable doubt. That being the fact situation in the present case, no benefit whatsoever can ::: Downloaded on - 08/05/2018 23:08:45 :::HCHP ...8...
be derived by the appellant on account of the so called acquittal in the aforesaid case.
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15. It is then vehemently argued by Mr. Ajay Kumar, learned Senior Counsel for the appellant that the respondent has suicidal tendencies and at one stage even consumed poisonous substance which created a reasonable apprehension in the mind of the appellant that it would be injurious and harmful to live with the respondent. To my mind, even this submission is without any substance. If the appellant and his family members have created circumstances which may difficult or rather impossible for the respondent to reside with the appellant, then in such circumstances, permitting the appellant to take benefit of the fact that the respondent had at one stage consumed poisonous substance would virtually amount to permitting the appellant to take an advantage of his own wrong.
16. The respondent while appearing as RW-1 has clearly disclosed the circumstances created by the appellant and his family members constraining her to take extreme step. It has specifically come in the statement of the respondent that the appellant had in fact been an accused of having committed an offence under Section 376 IPC and also remained in custody.
17. Apart from the above, now in case the pleadings of the appellant with respect to cruelty are perused, then it would be evidently clear that the appellant does not contend any specific act of cruelty and only general allegations have been levelled. Indubitably, the allegations ::: Downloaded on - 08/05/2018 23:08:45 :::HCHP ...9...
of cruelty are only contended in paras 4-5 of the petition which read thus:
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"4. That after the marriage between the parties, the conduct of the respondent amounted to mental cruelty on the petitioner and she treated the petitioner with cruelty, deserted the petitioner without reasonable cause and without the consent and without any care taking to petitioner left matrimonial home and also is guilty of willful neglect of petitioner. She was insisting upon the petitioner to take separate residence, she has been adopting intolerable attitude. She has been insulting the elders and everyone in the family.
5. That she has been threatening to take drastic step towards herself and implicate the family members of the petitioner also. Once she had consumed poisonous substance. On this petitioner has raised a reasonable apprehension in his mind that it would be injurious and harmful for him to live with respondent. She has lodged a false complaint under Section 498-A IPC against the petitioner, his father Ram Krishan Mahant and mother Smt. Bimla Mahant with the PS Kullu in which the petitioner was detained by police in the said case by the police. Petitioner and his parents had to seek bail from the Hon'ble Court. The behaviour of the respondent has been causing harassment, torture and her conduct towards petitioner and family members is cruel, intolerable, distrustful and of criminal intermediation and the respondent deserted the petitioner and has withdrawn from his company without any reasonable or lawful excuse on 3.2.2003 and started living separately from the petitioner in the house of her parents."
18. Evidently, the para-4 of the petitioner as reproduced above, clearly shows that no specific instances of cruelty have been spelt out.
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The petitioner has not even set-forth generally what to talk specifically or with sufficient particulars i.e. time and place of the acts of the alleged .
cruelty. The petitioner was required to specify the specific acts of cruelty and occasion when and how and the place where such acts had been committed.
19. As regards the allegations as levelled in para-5 of the petition (supra), the same have already been dealt with in the earlier part of the judgment.
20. The petitions under the Hindu Marriage Act are required to be drafted and framed in accordance with the Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982. Sub-rule (g) of Rule 5 thereof reads as under:-
"5 Contents of the petition.- In addition to the particulars required to be given under Order VII, Rule 1 of the Code and section 20(1) of the Act, all petitions under sections 9 to 14 of the Act shall state:-
"(a) to (f) .... .... .... ....
(g) (iv) In the case of cruelty the specific acts of cruelty and the occasion when and the place where such acts were committed and that the petitioner has not in any manner condoned such acts of the respondent."
21. This court in Parvati vs. Shiv Ram and another 1988 (2) Sim.L.C. 204 while construing the aforesaid rules, observed as under:-
"7. This Court has framed the 'Hindu Marriage and Divorce (Himachal Pradesh) Rules, 1982' in exercise of powers under sections 14 and 21 of the Act Rule 5, which deals with the contents of the petition, says that in addition to the particulars required to be given under Order VII, Rule 1 of the Code of Civil ::: Downloaded on - 08/05/2018 23:08:45 :::HCHP ...11...
Procedure and section 20 (i) of the Act, in a petition for divorce on the ground of adulterous sexual intercourse with any other .
person other than the spouse, the petitioner shall, amongst other things, mention the name, occupation and place of residence of such person or persons so far as they can be ascertained, the specific act of sexual intercourse and the occasion when and the place where such acts were committed ; in the case of desertion it shall state the date and circumstances in which it began ; and in the case of cruelty, the specific acts of cruelty and the occasion when and the place where such acts were committed Rule 7 casts an obligation upon the petitioner to implead the alleged adulterer as a co-respondent."
22. Now, insofar as the allegations of desertion are concerned, the same in fact have not at all been proved. What in fact stands proved on record from the testimony of PW-1 Dr. Kamal Kapoor, who medico legally examined the respondent on 12.3.2003 vide MLC Ex.PW-1/A coupled with the statement of PW-4 Incharge, Women Cell, it is evident that the respondent was in fact compelled to leave the matrimonial home because of the circumstances created by the petitioner. Once the respondent had valid and justifiable reasons to leave the matrimonial home, she obviously cannot be held to have deserted the appellant/petitioner without a valid or reasonable cause.
23. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.
May 7th, 2018. (Tarlok Singh Chauhan),
(GR) Judge
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