Bombay High Court
Mr. Siddharth S/O Saoji Urkude vs Mrs. Sheetal Siddharth Urkude on 21 October, 2022
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
J.FCA .48.18.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FAMILY COURT APPEAL NO.48 OF 2018
Mr. Siddharth s/o Saoji Urkude
Aged about 30 years,
Occupation - Private work,
R/o Flat No.5, C Wing,
Survey No.89/9A/2,
Sarvesh Sankul Apartment,
Behind Kadam Dairy, Jail Road,
Nasik Road, Nasik - 422101
...APPELLANT
VERSUS
Mrs. Sheetal Siddharth Urkude
Aged about 28 years,
Occupation - Private work/tailoring
R/o C/o Ratnakar Thul, Gorewada,
Juni Basti, Near Gorewada Water
Filter plant, Gorewada, Katol Road,
Nagpur
...RESPONDENT
_______________________________________________________
Shri C.B. Dharmadhikari, Advocate for the appellant.
Shri R.N. Sen, Advocate for the respondent.
________________________________________________________________
CORAM : A.S. CHANDURKAR AND
URMILA JOSHI-PHALKE, JJ.
RESERVED ON : OCTOBER 06, 2022.
PRONOUNCED ON : OCTOBER 21, 2022.
JUDGMENT (Per Urmila Joshi-Phalke, J.)
Heard learned counsel for the parties.
J.FCA .48.18.odt 2
2. Alleging cruelty against the wife, the appellant/husband approached to this Court by filing an appeal against the judgment and decree passed by the Family Court, Nagpur dismissing the petition bearing No.A-1039/2014 and allowing the maintenance application of the respondent/wife by granting maintenance of Rs.4000/- per month to the respondent/wife and Rs.2000/- per month to each children.
3. The facts of the case giving rise to the dispute are as follows:
A] The marriage of the appellant/husband and the respondent/wife was solemnized on 01/05/2009 as per Buddhists rites and rituals at Nagpur. After marriage, the respondent/wife resumed cohabitation at the house of the appellant/husband at Nasik. The appellant/husband was serving in a private firm at the relevant time at Nasik.
B] As per the contention of the appellant/husband, the respondent/wife could not adjust properly with the appellant/husband and used to pick up the quarrels on trifle issues. As it was the inception of the marriage he thought that she would adjust herself gradually in the new surrounding. However, the respondent/wife started arrogantly with him as well as his family members. He further contended that the family members of the respondent/wife by keeping him in dark performed the J.FCA .48.18.odt 3 said marriage without disclosing that the respondent/wife does not belong to a sophisticated family. After five months of marriage, the respondent/wife was pregnant. He sent the respondent/wife to her parents house for delivering the child and also incurred expenses towards her delivery. The appellant/husband had narrated the following incidence to show the cruelty on the part of the respondent/wife :
(i) That on 24/09/2010, there was a death in the family of the appellant's aunt at Nagpur, therefore, he called the respondent/wife who was in Nagpur and asked her to remain present in the last rites but she refused to attend the last rites. She picked up the quarrel with him and abused him in filthy language.
(ii) On 25/09/2010, the respondent/wife along with her parents quarreled with the appellant/husband on trifle issues and abused him in a filthy language due to which the appellant/husband got furious. The respondent/wife under the influence of her parents left the house of the appellant/husband. He never asked her to leave the house.
(iii) The appellant's friend Yogesh Ghedakade and Manoj Thool brought the respondent/wife at Nasik at the house of the appellant/husband and again they started residing together but there was no change in the behaviour of the J.FCA .48.18.odt 4 respondent/wife. She used to create problems by picking up the quarrels. To protect the marriage, the appellant/husband tried at his level best and made all efforts but the efforts resulted futile.
(iv) In the month of August, 2011, the respondent/wife asked the appellant/husband to send her at Mumbai at her brother's house for Rakhi festival. Though the appellant's father was not well as a paralytic patient thereafter also the appellant/husband consented her to visit at her brother's house.
(v) The appellant/husband never stopped the respondent/wife to go to her parents house thereafter also the conduct of the respondent/wife was not good with him.
The respondent/wife asked the appellant/husband that she is coming to Nasik, therefore, the appellant/husband informed her to communicate the arrival time of the train at Nasik but she had not communicated and not returned to Nasik. Therefore, he asked her about the same, she became furious and abused him.
(vi) On 22/08/2011, the respondent/wife under the influence of her younger sister and brother, lodged false report at Upnagar police station against the J.FCA .48.18.odt 5 appellant/husband on an allegation that the appellant/husband had demanded the amount from her. In presence of the police, the respondent/wife admitted that the appellant/husband never harassed her at any point of time.
(vii) On 29/06/2012, again she had lodged the false report against the appellant/husband. The appellant/ husband was called at Upnagar police station.
(viii) On 08/07/2012, again police called the respondent/wife and the appellant/husband to settle the matter. The respondent/wife was not ready to give undertaking as she was under the influence of her parents and other family members, therefore, the matter could not be settled. So the respondent/wife along with the daughter went to Mumbai with her parents. Even after lodging of the report by the respondent/wife in Upnagar police station, the appellant/husband had taken the respondent/wife to Dr. Kumbhar for counseling.
4. As per the allegation of the appellant/husband he had lodged report on 14/07/2012 against the parents of the respondent/wife but the police authority did not take any cognizance against the parents of the respondent/wife. He further contended that prior to his marriage J.FCA .48.18.odt 6 his father was suffering from paralysis. The respondent/wife never taken any care of him. His friend Shri Raju Mishra and others also took efforts to settle the matrimonial dispute. Due to their intervention, the respondent/wife joined his company but after some days again she started behaving adamantly. In the meanwhile, his father expired on 23/12/2012. The respondent/wife was in habit of picking up quarrels with him. He tried to give understanding but there was no change in the behaviour. From the said wedlock the respondent/wife gave birth to another child on 15/02/2014. After birth of the child also there was no change in the behaviour of the respondent/wife. She refused to cook food for the appellant/husband. He alleged that the respondent/wife told him that the appellant/husband is not of her standard and she dislikes him. He tried at his level best to protect the marriage but due to the behaviour of the respondent/wife he could not. The respondent/wife left his company and started residing with her parents house, therefore, he issued a notice of divorce to the respondent/wife and constrained to file the application for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.
5. In response to the notice, the respondent/wife appeared and opposed the petition. She denied all averments and allegations. As per her contention it was the appellant/husband who was treating her with cruelty. She was abused and assaulted by him. She has not disputed J.FCA .48.18.odt 7 that there was a death in the family of the appellant's aunt on 24/09/2010. The appellant/husband had called her and asked her to remain present but she told him that as her child is small, her father is on duty and, therefore, she is unable to remain present to attend the last rites but the appellant/husband did not listen her request and abused her in a filthy language. She submitted that after this incident, she requested her parents to send her at Nasik at her matrimonial house. She along with her parents and aunt Mrs. Chhaya Thool came at her matrimonial house on 25/09/2010 but as soon as the respondent/wife reached with her parents and aunt, the appellant/husband came there, quarreled with her and threw chappal towards her aunt. He was not in mood to listen anything, therefore, her father intervened but he had assaulted her father also with hand by saying that her father is not taking interest in arranging the marriage of his younger sister and drove the respondent/wife out of the house. She admitted that the appellant's friend Shri Yogesh Ghedakade and Manoj Thool had dropped her at the appellant's house and she cohabited with him but she was not treated well by the appellant/husband. As per her contention, the appellant/husband quarreled with her on 29/06/2012 on domestic reason by assigning reason that she is not taking care of his sister's mother-in-law. He assaulted her by belt on her head. She became unconscious and, therefore, admitted at Jairam Hospital at Nasik. J.FCA .48.18.odt 8 Thereafter she again admitted in Sujata Hospital at Nasik. When she was admitted in the hospital she narrated the incident to her father. Her parents and brother came at Nasik and lodged the report at police station. When the appellant/husband was called to the police station he refused to settle the dispute and take her back at his house, therefore, she went to Mumbai on 08/07//2012 and thereafter went at Nagpur. On 15/07/2012, she had been to the house of the appellant's friend namely Raju Mishra for requesting him to give some understanding the appellant/husband on mobile phone. The appellant/husband suddenly came there and behaved badly with her. As per the contention of the respondent/wife that the appellant/husband has demanded Rs.3,00,000/- (Rs. Three lacs) from her father to purchase a flat. As the demand was not fulfilled he was disappointed and abused her in a filthy language. Due to the behaviour of the appellant/husband she constrained to leave matrimonial house. It is the contention of the respondent/wife that it is the appellant/husband who treated her with cruelty.
6. The respondent/wife had also filed petition bearing No.34/2015 for grant of maintenance under Section 125 of the Code of Criminal Procedure, 1973 to herself and for her children. The appellant/husband appeared in the said maintenance petition and opposed the claim of the maintenance.
J.FCA .48.18.odt 9
7. The appellant/husband as well as the respondent/wife had led their evidence in both the petitions. After recording the evidence and after hearing both the sides the learned trial Court pleased to dismiss the petition of dissolution of marriage and allowed the maintenance petition.
8. Being aggrieved and dissatisfied with the said judgment and decree, present appeal is preferred by the appellant/husband on the ground that the learned trial Court had not considered and it was the respondent/wife who treated the appellant/husband with cruelty. She was habitual in picking up the quarrels. Learned trial Court has not appreciated the evidence which clearly indicate that the appellant/husband was treated with cruelty by the respondent/wife and wrongly and erroneously dismissed the prayer of dissolution of marriage.
9. Heard Shri C.B. Dharmadhikari, learned Counsel for the appellant. He submitted that the marriage between the appellant/husband and the respondent/wife was solemnized on 01/05/2009. The daughter was born on 05/06/2010 and son was born on 15/02/2014. The respondent/wife is residing separately since March, 2015. The evidence adduced by the appellant/husband shows that he was treated with cruelty. He narrated several incidence which shows J.FCA .48.18.odt 10 that the respondent/wife treated him with cruelty and left the matrimonial house. The appellant/husband has not challenged the aspect of maintenance. Learned trial Court had not considered that the appellant/husband has proved the cruelty at the hands of the respondent/wife and wrongly dismissed the prayer of the appellant/husband for dissolution of marriage. Learned Counsel for the appellant also invited our attention towards the police complaint filed by the appellant/husband and submitted that the allegations made in the complaint are similar to the pleading of the appellant/husband in the petition. He submitted that the various incidences narrated by the appellant/husband are sufficient to show that the appellant/husband was treated with cruelty and said incidences are proved by the appellant/husband. But the learned trial Court had not considered the evidence and erroneously dismissed his petition for dissolution of marriage. In fact, learned trial Court had not considered that it was the appellant/husband who had made several efforts to protect the marriage life but without sufficient reason the respondent/wife left his house, therefore, the judgment and decree passed by the trial Court deserves to be set aside by allowing the dissolution of marriage.
10. In support of his contention learned Counsel relied upon Dr. (Mrs.) Malathi Ravi Vs. Dr. B.V. Ravi (2014) 6 ALL MR 400 (S.C.) and J.FCA .48.18.odt 11 Mrs. Christine lazarus Menezes Vs. Mr. lazarus Peter Menezes 2017 (2) DMC 363 and submitted that the marriage is a social institution. A husband or wife would be entitled to dissolution of marriage by decree of divorce if the cruelty is proved. The mental cruelty and its effect varies from individual to individual, from society to society and also depends on the status of the persons. Here in the present case, the wife had irritated the husband by her conduct i.e. by picking up frequent quarrels which is the mental cruelty to him. The respondent/wife had not made an attempt to protect the married life.
11. On the other had, Shri R.N. Sen, learned Counsel for the respondent submitted that it was the appellant/husband who treated the respondent/wife with cruelty. The complaint filed by the appellant/husband at the police station itself is sufficient to show that he had not only assaulted the wife but her parents also. His complaint given to the police station itself shows that he had assaulted her parents and her aunt when they came with the respondent/wife at the matrimonial house of the respondent/wife. He further submitted that regarding the incident of non-attending the last rites of aunt's son, the wife has given explanation that her child was only three months old and, therefore, she is unable to attend the last rites as there is nobody to look after the child. Said genuine ground is not accepted by the J.FCA .48.18.odt 12 appellant/husband and quarreled with her. It was the appellant/husband who used to assault the wife mercilessly, abused her in filthy language, used to threaten her also demanded money from her and on non-fulfillment of money drove her out of the house. Thus, it is the appellant/husband who driven her out of the house and she constrained to leave matrimonial house. Learned trial Court has rightly considered this fact and dismissed the petition for dissolution of marriage.
12. In support of his contention he relied upon Mansi Mohan Chandarkar Vs. Mohan Vishnu Chandarkar 2016 (5) ABR 39 and Manisha Tyagi Vs. Deepak Kumar (2010) 4 SCC 339 wherein it is held that to constitute cruelty it is enough that conduct of one party is so abnormal and below expected norm that other spouse could not reasonably be accepted to put up with it. He also relied upon Rajkumar T. s/o Bhaskaran Vs. Moljimol K.S. d/o K.P. Sasidharan 2017 (5) ALL MR (JOURNAL) 57 wherein it is held that the divorce on the ground of cruelty - when cruelty is alleged as a ground for divorce, petitioner must have specific pleadings with reference to instances of cruelty meted out by respondent and those have to be established by cogent and reliable evidence. He further relied upon Latesh Subhash Kadam Vs. Neesha Latesh Kadam 2010 (3) AIR Bom R 423 wherein it is held that ordinary wear and tear of matrimonial life no ground to grant divorce. On the J.FCA .48.18.odt 13 basis of above catena of decisions he prayed that appeal has no merit and, therefore, it deserves to be dismissed.
13. After hearing both the sides following points arise for our consideration and we answer the same accordingly :
i) Whether the petition for dissolution of marriage is liable to be allowed on the ground of cruelty as pleaded in the petition?
ii) Whether the judgment and decree of the restitution of conjugal rights passed by the trial Court and dismissal of the divorce petition calls for any interference?
14. Point Nos.(i) to (ii) - It is always said that the marriages are settled in heaven. The parties to marriage tying knot are supposed to bring about the union of souls. It creates a new relationship of love and affection, concern between the husband and wife. According to Hindu Vedic it is 'Sanskar'. The two human being pledged themselves. Despite the pledge and promises sometimes said relationship becomes complex.
15. Present case is also one more example of the complex relationship between the husband and wife. There is no dispute about matrimonial relationship between the appellant/husband and the respondent/wife.
J.FCA .48.18.odt 14
16. The appellant/husband had filed petition for seeking dissolution of marriage mainly on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. The petition for dissolution of marriage is preferred mainly on the allegation that the respondent/wife had treated him with cruelty after marriage. As per the allegation of the appellant/husband the respondent/wife has not adjusted herself in the family of the appellant/husband. She used to pick up the quarrels and was behaving arrogantly with him as well as his family members. Admittedly, from the said wedlock two children are begotten. The matrimonial life between them was started after tying the knot on 01/05/2009. They stayed together up to 2014. As per the allegation of the appellant/husband it was the respondent/wife who was in habit of picking up the quarrels, not looking after his paralytic father, has refused to attend the last rites of the nearest relative, filed various complaints against him by assigning the false reasons, after several efforts though she resumed cohabitation but her adamant behaviour does not change and she was harassing him repeatedly. She had lodged complaints at Upnagar police station. He was called by the police to settle the dispute. Accordingly, he brought her at the house and resumed the cohabitation but there was no change in her behaviour and finally she left the matrimonial house. He further contended that all efforts J.FCA .48.18.odt 15 taken by him are went futile and, therefore, he constrained to issue notice of dissolution of marriage on 16/06/2014.
17. To substantiate the contention, the appellant/husband has adduced the evidence and reiterated the contention. In support of his contention he entered into witness box and reiterated as per his pleading. The appellant/husband has cross-examined at length. He admitted during cross-examination that he had married with the respondent/wife as per his own wish. At the time of marriage he was staying with his paralyzed father and younger sister. He further admitted that from the said wedlock he had one son and one daughter. He denied that till the birth of his elder daughter the relation between him and the respondent/wife were cordial. He also denied that he assaulted the father and relatives of the respondent/wife. He also denied that he had mentioned in his police complaint that he had assaulted them. He further denied that they had lodged the report as they were assaulted by him. He further denied that he assaulted the respondent/wife also. He denied that due to assault the respondent/wife was admitted in the hospital and he caused physical and mental harassment to the respondent/wife. He admitted that he has not issued any notice to the respondent/wife for restitution of conjugal rights.
J.FCA .48.18.odt 16
18. To support the contention PW-2 - Mirza Arif Beg is examined by the appellant/husband to show that due to the intervention of the said witness he tried to cohabit with the respondent/wife but there was no change in her behaviour. The evidence of PW-2-Mirza Arif Beg is to the extent that on 15/07/2012, the respondent/wife Sheetal had been to his office to meet him and to complain against the appellant/husband, therefore, he arranged the meeting of the appellant/husband the respondent/wife at his house to find out some way. He talked with them and settled the matter by asking them to behave properly but after some days the appellant/husband made him phone call and informed him that the respondent/wife is not behaving with him properly and had filed the report against him in police station. During his cross-examination he stated that he is not aware about the children of the appellant/husband. He denied that they had visited at any time along with children at their house. His only evidence which was reiterated during the cross- examination that he gave understanding to the appellant/husband to behave properly with the respondent/wife. After 15/02/2014, he had not received any call from the appellant/husband raising complaints against the respondent/wife. On the same point he had examined PW-3
- Raju Jyotiprasad Mishra. He reiterated the contention as per PW-2 that they have made attempts to settled the dispute. Accordingly they have J.FCA .48.18.odt 17 settled the dispute by holding the meeting in July, 2014. He admitted during cross-examination that in July 2014, the respondent/wife had two children. He also admitted that after second delivery, the respondent/wife had not joined the company of the appellant/husband. Thus, the evidence of PW-2 and PW-3 is regarding the efforts of settlement and the relationship of the appellant/husband and the respondent/wife.
19. The respondent/wife has also adduced the evidence in both the petition and she had reiterated the contentions as per her written statement. The sum and substance of her evidence is that it was the appellant/husband who had not treated her well. He used to quarrel with her on the domestic matter. He used to assault and beat her. He has also assaulted her parents and her aunt. She also explained that she could not attend the last rites of the appellant's aunt's son as her child was small. But she was abused by the appellant/husband on that count also. As she was assaulted by the appellant/husband she was admitted in the hospital at Nasik. She was mercilessly beaten by the appellant/husband and thereafter she was admitted in the hospital. She called her parents and thereafter she lodged the report. She further stated that Police Officer of Upnagar police station called the appellant/husband and gave him understanding and thereafter he took J.FCA .48.18.odt 18 her but there was no change in his behaviour and thereafter she constrained to leave the matrimonial house. She is cross-examined at length. During her cross-examination she admitted that prior to her marriage the father of the appellant/husband was suffering from Paralysis. The appellant/husband was having unmarried sister at the time of her marriage. She has admitted that the appellant/husband had been to Nagpur in March, 2010 along with his paralyzed father. The appellant/husband had also attended the function prior to her delivery at her parents house but she denied that the appellant/husband had incurred the medical expenses. She admitted that she had undergone the beauty parlor course as well as tailoring course but she had denied that she is earning some amount from the said work. She further admitted that the friends of the appellant/husband i.e. Shri Raju Mishra and Shri Mirza Arif Beg settled the dispute between her and her husband by giving her as well as her husband an understanding to live happily. She also admitted that she lodged report at Upnagar police station against the appellant/husband. She further admitted that the appellant/husband used to take her to the doctor regularly for medical treatment. Thus sum and substance of her evidence shows that it was the appellant/husband who treated her with cruelty. Due to the assault she was admitted in the hospital and thereafter she lodged the report. She also examined her father as a witness. He reiterated the contentions J.FCA .48.18.odt 19 that the respondent who is his daughter was ill-treated by the appellant by demanding the money. She was assaulted mercilessly, therefore, she was admitted in the hospital and hence she lodged the report. Though he is cross-examined nothing incriminating came on record.
20. Besides the oral evidence, the appellant/husband relied upon the complaint filed by him with Police Commissioner, Nasik as well as notice issued by him to the respondent/wife.
21. Admittedly, both the appellant/husband and the respondent/wife alleged against each other that there were abuses and assault on them by each other. Admittedly two children are begotten from the said marriage and both resided together till 2014. The appellant/husband has quoted several incidents to show that he was treated with cruelty. As per his evidence, after marriage there was death in the family that is his aunt's son was dead and he requested the respondent/wife to attend the last rites and the respondent/wife was at Nagpur. The respondent/wife has assigned the reason that her child was only three months old and there was nobody to look after, therefore, she informed the appellant/husband that she is unable to attend the last rites but the appellant/husband had ignored the same and abused her in a filthy language. The second incident quoted by the appellant/husband is J.FCA .48.18.odt 20 that on 25/09/2010 the respondent/wife along with her parents quarreled with him on trifle issues and abused him in a filthy language.
22. The complaint on which the appellant/husband has relied upon shows that when the respondent/wife along with her parents came at the matrimonial house, her aunt was also along with her and he abused her and also assaulted her as well as in-laws. The fourth incident he quoted is that on 22/08/2011 under the influence of younger sister and brother, the respondent/wife lodged report against him. On 29/06/2012 also she lodged the report against him. He was called by the police and by the intervention of police he brought the respondent/wife at the home for cohabitation. The allegations made by him is that the respondent/wife was not cooking food, not taking care of his paralyzed father and picking up quarrels with him. Likewise, the respondent/wife had also made allegations that it was the appellant/husband who repeatedly quarreling with her, abusing her and her parents and also assaulted her and her parents.
23. Now on the basis of the evidence it is to be ascertained whether the contention of the appellant/husband that the respondent/wife was harassing him and ill-treating him by abusing and by filing complaints against him. In relation to matrimonial matters, it is J.FCA .48.18.odt 21 contemplated that a conduct of such type which endangers the living of the other amounts to cruelty. Cruelty consists of acts which are dangerous to life, limb or 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 however, has to be distinguished from the ordinary wear and tear of the family life. The question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations between the parties. In Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511 the Hon'ble Apex Court given certain illustrative examples wherefrom inference of mental cruelty can be drawn. The Hon'ble Apex Court reproduced some of the illustrations:-
"(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.
xxx xxx xxx
(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.
xxx xxx xxx J.FCA .48.18.odt 22
(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.
xxx xxx xxx
(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."
24. After adverting to material on record it is not disputed that the matrimonial relationship between the husband and wife was not cordial. It is evident from the evidence of the appellant/husband that he had a grievance that his wife has not attended the last rites of his relative though she was asked to attend. Hence there was quarrel between them. It is pertinent to note that admittedly the respondent/wife had delivered a child prior to the said incident that is prior to 24/09/2010. The pleading of the appellant/husband itself shows that prior to 24/09/2010 the respondent/wife had delivered a child. The respondent/wife had assigned the reason that as her child was small, there was nobody to look after the child and, therefore, she shown her inability to attend the last rites. The reason assigned by the respondent/wife appears to be genuine one as it is certainly difficult for a woman to attend such last J.FCA .48.18.odt 23 rites when her child is so small and there is nobody to look after the child. She specifically stated that her father was on his duty and there was nobody to look after the child and, therefore, she could not attend the last rites. According to the appellant/husband, the respondent/wife and her parents started quarreling with him on trifle issues on 25/09/2010, therefore, he asked to her parents to leave the matrimonial house. He further testified that the respondent/wife was under the influence of her parents. He has lodged the report with the Commissioner of Police, Nasik. Said complaint is filed on record. If the contents of the complaint are perused he himself stated that he saw the respondent/wife and her parents as well as aunt in his house at Nasik. There was quarrel between them. He got annoyed and beat the parents and the aunt of the respondent/wife with a chappal. In his own complaint he had admitted the incident by narrating it in detail. Thus, from the said complaint it is clear that it was the appellant/husband who beat the parents and aunt of the respondent/wife. If these circumstances are considered, certainly the respondent/wife would not be in a position to stay with the appellant/husband who got annoyed on trifle issues and lose the control and assaults in-laws who are of his parents age. The next incident narrated by him is regarding the incident which took place in the police station. He narrated that his wife was not ready to give undertaking in writing and, therefore, the matter was not settled. As far J.FCA .48.18.odt 24 as the complaint lodged by the respondent/wife is concerned the copy of the same is not filed on record either by the appellant or by the respondent. Admittedly, when the respondent/wife went for the delivery of second child she did not return back and join the company of the appellant/husband. The incidents narrated by her show that she was admitted in the hospital due to the assault and thereafter she lodged the report. Admittedly, no evidence is adduced by her to show that she was beaten by the appellant/husband mercilessly and she was admitted in the hospital. But the incident narrated by her that not only she but her parents and her aunt was also assaulted by the appellant/husband which is also reflected from complaint filed by the appellant with police itself sufficient to show the behaviour of the appellant/husband. The recitals of his complaint shows the nature that what type of allegations he had made against in-laws as well as against the siblings of the respondent/wife. The appellant/husband is Mechanical Engineering Diploma holder and not illiterate person. The recitals of the said complaint shows that he has used a filthy language to describe his in-laws as well as siblings of the respondent/wife and the relatives. The recitals of the complaint further shows that when the respondent/wife refused to attend the last rites of his aunt's son he had abused her. As already observed that he himself admitted in the complaint that he assaulted his in-laws as well as aunt of the respondent/wife when they J.FCA .48.18.odt 25 had been to his house. While lodging the complaint with the Commissioner of Police, he used unparliamentary words regarding his wife as well as her relatives. These facts are sufficient to show the conduct of the appellant/husband.
25. After adverting to the material on record it is apparent that it was the appellant/husband who was of abusive nature. Said abusive nature is reflected from the complaint on which he relied upon. He alleged about the cruelty by the respondent/wife. The allegations of cruelty cannot be considered on trifle issues. The allegation should have the origin with reference to time, place and manner of cruelty. General allegation of cruelty do not constitute cruelty in the eyes of law so as to grant decree of dissolution of marriage on that premise. It is observed by the Hon'ble Apex Court in A. Jayachandra Vs. Aneel Kaur 2005 (5) ALL MR 313 (S.C.) that mere annoyance or irritation may not constitute cruelty, rather it is a spontaneous change in human behavior which restricts the other side to live with the spouse under the fear of endangering life or bodily injuries. Though, the word 'cruelty' has not been defined strictly, but it has to be gathered from attending circumstances of each case. The allegations should be specific with regard to time, place and manner of committing such cruelty. The cruelty should be such in which it is not reasonably expected to live J.FCA .48.18.odt 26 together. It is observed by the Hon'ble Apex Court in Gurbux Singh Vs. Harminder Kaur AIR 2011 SC 114 that the aggrieved party has to make a specific case that the conduct of which exception is taken amounts to cruelty. It is true that even a single act of violence which is of grievous and inexcusable nature satisfies the test of cruelty. The marital life should be access as a whole and few isolated instances over a certain period will not amounts to cruelty.
26. Here in the present case, the evidence on record shows that it was the appellant/husband who was in habit of using the abusive language against the respondent/wife. Though he has alleged cruelty, the nature or behaviour by which he has suffered the cruelty is not described by him. The appellant/husband has not adduced evidence regarding the manner in which he has been harassed. The allegations made by him falls under routine wear and tear in the nature. It is well settled that a Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified therein.
27. The appellant/husband had relied upon on the decision of Dr. (Mrs.) Malathi Ravi Vs. Dr. B.V. Ravi (supra) the facts of the cited case shows that the wife had filed objections that when she was residing in the matrimonial house the sister and brother-in-law of the husband were J.FCA .48.18.odt 27 the frequent visitors and their visit affected the normal life of that couple. The facts further shows that the conduct of the wife caused immense mental hurt and trauma, therefore, the Hon'ble Apex Court observed that considering the factual matrix of the case by referring the catena of the decisions observed that the wife has made allegations that brother and sister of the husband used to interfere in the day to day affairs but said aspect had really not proved. She also alleged that sister and brother-in-law of the husband were pressurizing her for higher studies which is also not proved. The Hon'ble Apex Court had observed that the inference of cruelty has to be drawn for attending circumstances and also observed that the husband has reasons to feel that he has been humiliated, for allegations have been made against him which are not correct. Thus facts of the present case and facts of the cited case are not identical. Another case law on which he relied upon is Mrs. Christine lazarus Menezes Vs. Mr. lazarus Peter Menezes (supra) the facts of the case shows that the wife alleged that her husband was having illicit relations with our maid servant. She also admitted that she had lodged false F.I.R. and this Court has observed that there is no justification for setting aside the decree for dissolution of marriage by the Family Court. Thus, the facts of this case and the present case are also not identical.
28. On the contrary, Shri Sen, learned Counsel for the respondents rightly relied upon Manisha Tyagi Vs. Deepak Kumar J.FCA .48.18.odt 28 (supra) wherein it is held that to constitute cruelty it is enough that conduct of one party is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The Hon'ble Apex Court in the said judgment held that cruelty was made a ground for divorce and the words which have been omitted from Section 10 are "as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party". The word "cruelty" has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. He further relied upon the another judgment of Kerala High Court in the case of Rajkumar T. s/o Bhaskaran Vs. Moljimol K.S. d/o K.P. Sasidharan (supra) wherein also it is held that the petitioner must have specific pleadings with reference to instances of cruelty meted out by the respondent and those have to be established by cogent and reliable evidence.
29. After giving thoughtful consideration to the controversy, we are of the view that the appellant/husband failed to prove the ground of cruelty to obtain a decree of dissolution of marriage. The manner in which the appellant/husband faced the cruelty is not proved. Mere J.FCA .48.18.odt 29 annoyance or irritation or normal wear or tear differences does not constitute cruelty. The cruelty should be such in which it is not reasonably expected for the couple to live together. The appellant/husband has not proved the cruelty by the respondent/wife, merely because the respondent/wife staying separately an inference cannot be drawn. The marriage between the parties cannot be dissolved on the averments made by one of the party that the marriage between them has broken down. The irretrievable breakdown of the marriage is not a ground by itself to dissolve it. The allegations made by the appellant/husband are not proved. As observed earlier except the norms enumerated under Section 13 of the Hindu Marriage Act, 1955, the marriage solemnized under the Act cannot be dissolved on any other ground.
30. In the light of the above discussion, we are unable to accept the contentions of the appellant/husband, hence no ground is made out to interfere with the findings of the Family Court. Accordingly, point nos.(i) and (ii) are answered in negative. We accept the conclusion derived by the trial Court. Therefore, the appeal fails and is dismissed. There will be no order as to costs.
Signed By:DIVYA SONU BALDWA Personal Assistant Signing Date:21.10.2022 16:26 (URMILA JOSHI-PHALKE, J.) (A.S. CHANDURKAR, J.) *Divya