Rajasthan High Court - Jodhpur
Gopal Sharma @ Ram Gopal @ Gopal Chand vs Smt.Anusuiya on 24 August, 2012
Author: R.S. Chauhan
Bench: R.S. Chauhan
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
Gopal Sharma Vs. Smt. Ansuya Shamra
S.B. CIVIL MISC. APPEAL NO.1096/2006
Misc. Appeal filed under Section 28 of
the Hindu Marriage Act against the
judgment and decree dated
20.04.2006 passed by Addl. District
Judge-1, Bikaner.
Date of Judgment: 24.8.2012
HON'BLE MR. JUSTICE R.S. CHAUHAN
Reportable Mr. Haider Agha, for the appellant.
Mr. Rajesh Joshi, for the respondent.
The appellant, Gopal Sharma, is aggrieved by the judgment dated 20.04.2006 passed by the Additional District Judge, No.1, Bikaner, whereby the learned Judge has dismissed the appellant's petition under Section 13 of the Hindu Marriage Act, ('the Act', for short), and has declined to grant divorce in his favour.
Briefly, the facts of the case are that the appellant, Gopal Sharma and the respondent, Smt. Ansuya Sharma were married in 1987 according to the Hindu rites and customs. Out of their wedlock, two children were born 2 in the years 1991 and 1993. However, due to the cruelties inflicted by the wife, subsequently differences arose between the parties. Consequently, the appellant filed a divorce petition on the grounds of cruelty and insanity of the wife.
In order to buttress his case, the appellant examined five witnesses including his daughter, Swati Sharma (A.W.4). After going through the oral and documentary evidence, vide judgment dated 20.04.2006, the learned Judge dismissed the petition under Section 13 of the Hindu Marriage Act. Hence, this appeal before this Court.
Mr. Haider Agha, the learned counsel for the appellant, has vehemently contended that the appellant had filed the divorce petition on the ground of cruelty committed by his wife, and on the ground of her insanity. Although he could not prove the insanity, but he had produced sufficient evidence to prove the ground of cruelty. The appellant's testimony was corroborated by Swati Sharma (A.W.4). However, despite the overwhelming evidence, the learned Judge has concluded that such acts of cruelty were not sufficient for granting a divorce. But, according to learned counsel, such acts, which have made the life of the appellant difficult, and which have vitiated the family atmosphere even for the children, are, indeed, 3 sufficient to grant divorce on the ground of cruelty.
On the other hand, Mr. Rajesh Joshi, the learned counsel for the respondent, has strenuously contended that as far as the testimony of the appellant is concerned, he has merely narrated a few incidents in a married life spanning over twelve years. Therefore, these are isolated instances, which do not add up to "cruelty". Moreover, the facts narrated by him are vague. Further, even if the testimony of Swati Sharma (A.W.4) were to be read, the child does not say that there was a constant fight between her parents. Thus, the learned Judge was certainly justified in concluding that the appellant had not established the ground of cruelty.
In rejoinder, the learned counsel for the appellant has contended that the approach of the learned Judge is certainly misplaced. The learned Judge expects the plaintiff to establish his case beyond a reasonable doubt. However, in a civil suit the burden of proof is only to the extent of preponderance of the evidence, and not beyond a reasonable doubt.
Heard the learned counsel for the parties, examined the record, and perused the impugned judgment.
The word "cruelty" has not been defined in the Act. However in the case of A.Jayachandra V. Aneel Kaur [(2005) 2 SCC 22], the Apex Court opined as under: 4
10. The expression "cruelty" has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger.
The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of his spouse same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept, proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.
11. The expression 'cruelty' has been used in 5 relation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. Cruelty is a course or conduct of one, which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, the court will have no problem in determining it. It is a question of fact and degree. If it is mental, the problem presents difficulties. First, the enquiry must begin as to the nature of cruel treatment, second the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. However, there may be a case where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
12. To constitute cruelty, the conduct complained of should be "grave and weighty"
so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct, taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such an extent due to the conduct of the other 6 spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.
13. The court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse's conduct have to be borne in mind before disposing of the petition for divorce. However insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.
14. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences should not be exaggerated and magnified to destroy what is said to have been made in heaven. All quarrels must be weighed from that point of view in determining what constitutes cruelty in each 7 particular case and as noted above, always keeping in view the physical and mental conditions of the parties, their character and social status. A too technical and hyper-
sensitive approach would be counter- productive to the institution of marriage. The courts do not have to deal with ideal husbands and ideal wives. It has to deal with a particular man and woman before it. The ideal couple or a mere ideal one will probably have no occasion to go to Matrimonial Court. A bare perusal of the testimony of the appellant, Gopal Sharma (P.W.1), clearly reveals that he has given instances of acts committed by the respondent-wife. These instances cannot be termed as vague. For, he has given specific dates for these instances. In para three of his affidavit he has clearly stated that his wife was short tampered and adamant. He has alleged that while he was studying for M. Com., his wife interfered with his studies:
she would either throw away the books, or hide them. Thus, she created an obstacle in his study for a degree. From the very beginning, her beheaviour towards his mother, father, and brothers was not cordial, as she would lose her tamper with his family members. According to him on 2.7.1987, when his elder brother's in-law came to visit the family, she refused to cook for them. On 16.8.87, she threatened the family members that she would commit suicide by sprinkling kerosene on herself. On 21.9.1997, while the appellant was suffering from malaria, she jumped 8 into a water-tank, in order to commit suicide. He further claims that in July, 1988 when he was employed in Delhi, although his wife stayed with her in-laws, she refused to do the household works. He further claimed that in 1988, when he would visit his family, his wife would ask him, how many women were working in his office as she suspected his character. She also claimed that the appellant had illicit affairs with his own sister-in-law. He further alleged that on 20.6.1989, his wife levelled allegation of impotency upon him. In the month of September, 1990, he discovered that his wife was pregnant. Despite his pleas, she aborted the child. He further claimed that in February, 1991, he was informed that she had separated the kitchen from the rest of the family; she used to beat his daughters whenever his parents gave them something to eat. He further goes to describe the fact that when he shifted to Delhi with his wife and children, his wife asked the children to make false calls to his office and would ask him to rush home because of dire emergency. But when he would reach home, he would find everything as normal. Thus, according to him he was harassed in the home and in the office. These incidences according to him continued till 1999. Further, his wife was mentally examined at Vidhyasagar Institute of Mental Health & Neurosciences. It was discovered that his wife was suffering from mental problems. But after 21.4.99 his wife 9 refused to take any medicine. He further alleged that on 14.1.2000, his wife threatened him that she would kill both the children. Lastly, he claimed that at times his wife would assault him in front of the children. Thus, the appellant has presented the acts of cruelties that he was subjected to.
Even Swati Sharma (P.W.4), a child witness of thirteen years, has claimed in her testimony that her parents used to fight constantly; her mother used to force the children to make false call to her father's office. According to her, when her father would untie the shoe laces, upon returning from office, her mother used to verbally abuse her father. According to her, on the day her mother left the house, she had fought with her father. Interestingly, when this child witness was specifically asked that she was giving this deposition as a tutored witness, she denied the fact. In categorical terms, she claimed that "her deposition is based on what she had personally observed in her house." Hence, she has corroborated the appellant's testimony.
Surprisingly, despite the availability of the overwhelming evidence, the learned Judge has concluded that the appellant has failed to establish his case. Moreover, the learned Judge has concluded that such acts of cruelties are not to the extent that the appellant can be 10 granted a divorce on the basis of cruelty.
A bare perusal of the evidence narrated above would clearly reveal that the appellant was subjected to constant fight, and to threats given by the respondent that she would commit suicide. She equally subjected the appellant to harassment in his office when he was asked to rush back home due to false calls that were made to his office. Hence, he was at peace neither at home, nor in his office. Obviously, the appellant could not be expected to live in such a tense and agitated environment.
In the case of Pankaj Mahajan V. Dimple Alias Kajal [(2011) 12 SCC 1], the Apex Court dealt with a similar set of facts. The Apex Court opined that acts of giving repeated threats of committing suicide, of slapping and assaulting the husband, of repeatedly misbehaving with the relatives of the husband, of not attending to household chores, of quarrelling with and abusing the husband, these acts amount to cruelty. The Apex Court granted divorce.
The fact that the respondent-wife would threaten that she would commit suicide, the fact that she had levelled allegation against the appellant-husband of impotency, and sexual promiscuity, the fact that she had assaulted him in front of children, clearly reveal that her acts were sufficient to tantamount to cruelty. It is, indeed, 11 trite to state that cruelty is not limited only to physical assault, but also extends to mental harassment. In the evidence produced by the appellant, especially corroborated by Swati Sharma (P.W.4), the acts of the wife were sufficient to tantamount to cruelty. Hence, the appellant is entitled to grant of divorce on the said ground alone.
For the reasons stated, this appeal is, hereby, allowed. The appellant is entitled to divorce on the ground of cruelty. The decree of divorce be drawn up accordingly.
[R.S.CHAUHAN] J arti sr.no.2