Himachal Pradesh High Court
________________________________________________ vs Neena Devi on 31 May, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Neutral Citation No. ( 2024:HHC:3067 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (FC) No. 60 of 2021 .
Reserved on: 28.05.2024 Date of decision: 31.05.2024 ________________________________________________ Arun Sharma .....Appellant.
Versus Neena Devi ......Respondent.
________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
1Whether approved for reporting? Yes.
________________________________________________ For the appellant: Mr. Vinay Thakur, Advocate. For the respondent: Mr. Romesh Verma, Senior Advocate, with Mr. Sumit Sharma, Advocate.
Sushil Kukreja, Judge.
The appellant, who was the petitioner before the learned District Judge (Family Court) Shimla, District Shimla, H.P. (hereinafter referred to as the "learned Court below") has maintained the instant appeal under Section 19 of the Family Court Act, against the order dated 09.09.2021, passed by the learned Court below, in HMA Petition No. 262- S/3 of 2019/16, with a prayer to set-aside the same by allowing the instant petition.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 31/05/2024 20:37:14 :::CIS 22(a). The brief facts of the case are that the petitioner maintained a petition under Section 13 of the Hindu Marriage .
Act, 1955 (for short "the Act") seeking dissolution of marriage with the respondent, who is his wife, by a decree of divorce on the ground of cruelty. As per the petitioner, he solemnized marriage on 26.09.2014 with the respondent as per the Hindu rites and ceremonies. The petitioner averred that after their marriage they lived together as husband and wife and cohabited with each other for about four and a half months, but on 15.02.2015 the respondent left her matrimonial house without any intimation. On 17.08.2015, out of their wedlock, a son-Master Mihir Sharma was born.
The petitioner further averred that despite his repeated requests the respondent did not join his company.
2(b). As per the petitioner, he is the only son, his father died long back, he has two married sisters and his mother is suffering from disc problem. The petitioner is serving in police department and due to his work profile he has to remain outside. The petitioner also averred that for promotional course of Head Constable, he was deputed at Pandoh/Daroh on 27.02.2016 for about five and a half months. As per the petitioner, the respondent, after the ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 3 marriage, was unwilling to live in her matrimonial house and also did not like to share responsibility of household chores .
with the mother of the petitioner, this germinated into trifles on many occasions. The respondent started misbehaving with the mother of the petitioner and also insisted to live separately, for which the petitioner refused. Ultimately, on 15.02.2015, without any intimation, the respondent left her matrimonial house and subsequently the petitioner, personally as well as through his relatives, tried to bring her back, but she refused.
2(c). On 17.08.2015 a son was born to them, but he was informed about this after about two weeks. The respondent named the son without consulting the petitioner and when the petitioner and his mother tried to visit the respondent to see the infant, she declined. The respondent also made a false complaint against the petitioner to Chairman Women Commission and in sequel thereto the petitioner had to go to the office Superintendent of Police, Shimla, where for the first time he saw his son. Ultimately, the matter was compromised, however, such a complaint was filed by the respondent only to malign the image of the petitioner, which amounts to cruelty. Lastly, the petitioner ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 4 prayed that his petition be allowed and a decree of divorce by dissolution of marriage be passed.
.
3(a). The respondent contested the petition by filing reply, wherein she raised preliminary objections of maintainability, cause of action, estoppel and misrepresentation of facts etc. On merits, she admitted the marriage with the petitioner and birth of the son. As per the respondent, the petitioner had wrongly claimed that she (respondent) left the company of the petitioner on 15.02.2015. The respondent further contended that on 25.12.2014 the petitioner asked her to go to her parents' house and also that he was not interested to have a child out of their wedlock. The respondent also contended that at the time of their marriage she was working as Postman in the Postal Department and on 28.12.2014 the petitioner along with his mother and uncles S/Shri Sukh Ram and Rama Nand, came to the house of the respondent and complained that respondent did not work at home, even on holidays.
The petitioner further complained that the respondent was not interested in family affairs. As per the respondent, she never refused to live with the petitioner and on 28.12.2014 she told in the Panchayat that she used to take interest in ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 5 family affairs. On 28.12.2014, after conclusion of the discussion, the respondent accompanied the petitioner and .
they lived together happily till 15.02.2015.
3(b). The respondent contended that mother of the petitioner used to say that she was not the lady of her choice and suddenly on 15.02.2015 petitioner's mother planned to visit Mumbai and she (respondent) was told to go to her parents' house. The respondent further contended that the petitioner also accompanied his mother and when she said that she also wanted to accompany them, they refused and she was compelled to go to her parents' house.
Subsequently, the petitioner did not come to take her back and bother to know about her well being. The petitioner stopped attending the calls of the respondent and when the respondent informed him about the birth of a son, he did not come to see her. The respondent remained on maternity leave for about one year, but the petitioner did not come to see her and their son.
3(c). On 29.02.2016 mother of respondent expired, but the petitioner had not even condoled her death. Under these compelling circumstances, the respondent lodged a complaint with Women Commission on 08.04.2016 and she ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 6 was called at Women Police Station, Shimla, on 18.04.2016, and advised to visit the office of Superintendent of Police .
Shimla, under whom the petitioner was working. On 19.04.2016 the Superintendent of Police, Shimla, had counseling meeting with the parties and the petitioner agreed to take her back after completion of his training at Pandoh.
Subsequently, they started talking over phone and on 01.10.2016, during counseling at Women Police Station, the petitioner agreed to take her and minor son with him and the respondent was asked to withdraw her complaint, which was withdrawn by her. However, the petitioner did not come to take her and minor son back and stopped attending the calls of the respondent.
3(d). On 28.10.2016 the parties again met at Rani Jhansi Park Shimla and the petitioner leveled false and scandalous allegations against her. The Superintendent of Police Shimla again intervened, but the petitioner refused to take the respondent back to her matrimonial house. As per the respondent, the petitioner was unwilling to take her back and had kept her 'Istridhan' with him. The respondent further averred that the petitioner and his mother always said that the respondent was a curse and she was not a good match ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 7 for the petitioner. She was deserted without any reasonable cause and she never asked the petitioner to live separately, .
in fact, the respondent is willing to join the company of the petitioner. The petitioner did not contribute a single penny for the maintenance of the minor son. Lastly, the respondent prayed for dismissal of the petition.
4. The petitioner filed rejoinder to the reply filed by the respondent, wherein he denied the stand taken by the respondent and reiterated the averments made in the petition.
5. On 22.11.2019, the learned Court below framed the following issues:
"1. Whether the respondent has treated the petitioner with cruelty, as alleged? OPP
2. Whether the petition is not maintainable as alleged? OPR
3. Whether the petitioner is estopped from filing the present petition on account of his own acts, deeds etc.? OPR
4. Whether the petitioner has concealed and misrepresented the material facts as alleged? OPR
5. Relief."
After deciding issue No. 1 against the petitioner, issue No. 2 in favour of the respondent, issues No. 3 and 4 against the ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 8 respondent, the petition was dismissed.
6. Feeling aggrieved, the petitioner filed the instant .
appeal under Section 19 of the Family Court Act, 1984, against the impugned judgment with a prayer for setting-
aside the same by allowing the instant petition.
7. We have heard the learned Counsel for the appellant, learned Senior Counsel for the respondent and carefully examined the entire record.
8. The learned counsel for the petitioner contended that the petitioner has duly proved on record that respondent has treated him with cruelty. He further contended that the respondent had leveled false allegations against him which caused him immense mental cruelty, as such the learned Court below has gravely erred in dismissing his petition.
9. On the other hand, learned counsel for the respondent contended that the petitioner has failed to prove on record that the respondent had treated him with cruelty and the ground of cruelty is not made-out from the petition as well as the evidence led before the learned Court below.
10. The petitioner has filed the instant petition on the ground of cruelty. Admittedly, the petitioner had solemnized marriage with the respondent on 26.09.2014 and a male ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 9 child was born out of their wed-lock on 17.08.2015.
11. The expression "cruelty" is not defined in the Act.
.
The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial wrong has not been defined under the Hindu Marriage Act. It has been used in Section 13(1) (i-a) of the Act 1955 in the context of human conduct or behavior in relation to or in respect to matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical. It may be intentional or unintentional.
If it is physical, it is question of fact and degree. If it is mental, the inquiry must begin as to the nature of cruel treatment and then as to the impact of such treatment on the mind of the spouse as to whether it caused reasonable apprehension that it would be harmful or injurious to live with other. It is a matter of inference to be drawn by considering the nature of the conduct and its effect on the complaining spouse. These principles find mention in the law laid down by Hon'ble Supreme Court in the case of Shobha Rani Vs. Madhukar Reddi (1988) 1 SCC 105 as under:
"4. Section 13(1) (i-a) uses the words "treated the petitioner with cruelty".
The word "cruelty" has not been ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 10 defined. Indeed it could not have been defined. It has been used in relation to human conduct or human behaviour. It is the conduct in relation to or in respect of .
matrimonial duties and obligations.
It is a course of 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 to determine it. It is a question of fact and degree. If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment.
Second, the impact of such treatment on the mind of the spouse. Whether it caused r 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. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the 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.
5. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change.
They are of varying degrees from house to house or person to person.
Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard in life. A set of facts stigmatised as cruelty in one ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 11 case may not be so in another case.
The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It .
may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them.
There may be a generation gap between us and the parties. It would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon [(1966) 2 All ER 257, 259)] "the categories of cruelty are not r closed". Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behavior, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.
6. These preliminary observations are intended to emphasize that the court in matrimonial cases is not concerned with ideals in family life.
The court has only to understand the spouses concerned as nature made them, and consider their parciular grievance. As Lord Reid observed in Gollins vs. Gollins [(1963) 2 All ER 966, 972)]:
In matrimonial affairs we are not dealing with objective standards, it is not a matrimonial offence to fall below the standard of the reasonable man (or the ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 12 reasonable woman). We are dealing with this man or this woman.
7. Chandrachud, J. (as he then was) in .
N.G. Daatane v. S Dastane[(1975) 2 SCC 326 said: (SCC p. 338, para 32) The Court has to deal, not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to drown their differences, their ideal attitudes may held them overlook or gloss over mutual r faults and failures.
...... ... ... ... ...
18. ... ... ... Section 13(1)(i-a)
of the Hindu Marriage Act provides that the party has after solemnization of the marriage treated the petitioner with cruelty. What do these words mean?
What should be the nature of cruelty?
Should it be only intentional, willful or deliberate? Is it necessary to prove the intention in matrimonial offence? We think not. We have earlier said that cruelty may be of any kind and any variety. It may be different in different cases. It is in relation to the conduct of parties to a marriage. That conduct which is complained of as cruelty by one spouse may not be so far the other spouse. There may be instances of cruelty by the unintentional but inexcusable conduct of any party. The cruel treatment may also result by the cultural conflict of the spouse. In such cases, even if the act of cruelty is established, the intention to commit suicide cannot be established. The aggrieved party may not get relief. We do ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 13 not think that that was the intention with which the Parliament enacted Section 13(1)(i-a) of the Hindu Marriage Act. The context and the set up in which the word 'cruelty' has been used in the section, .
seems to us, that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty." ... ...
12. Expressing similar view as aforesaid and following the decision in the case of Shobha Rani (supra), Hon'ble Supreme Court in the case of V. Bhagat v D. Bhagat (1994) 1 SCC 337 (para 16) broadly defined mental cruelty, as under:
"16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 14 arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever .
living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made."
13. In Savitri Pandey Vs. Prem Chandra Pandey, (2002) 2 SCC 73, the Apex Court while dealing with cruelty in Para 6 held as under :-
"6. 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 to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings 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.::: Downloaded on - 31/05/2024 20:37:14 :::CIS 15
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 basis of the course of conduct which would, in general, r 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 powers 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."
14. The Apex Court in depth had examined the word "cruelty" in the case of Samar Ghosh Vs. Jaya Ghosh, ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 16 2007 (4) SCC 511 in Paragraph nos.38, 39, 40, 41, 42 and 43 which are as under:-
.
"38. Before we critically examine both the judgments in the light of settled law, it has become imperative to understand and comprehend the concept of cruelty.
39. The Shorter Oxford Dictionary defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness'.
40. The term "mental cruelty" has been defined in the Black's Law Dictionary [8th Edition, 2004] as under:
"Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse."
41. The concept of cruelty has been summarized in Halsbury's Laws of England [Vol.13, 4th Edition Para 1269] as under:
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 17 accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view .
to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty.
Whether one spouse has been guilty of cruelty to the other is essentially a r question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits."
42. In 24 American Jurisprudence 2d, the term "mental cruelty" has been ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 18 defined as under:
"Mental Cruelty as a course of unprovoked conduct toward one's spouse which .
causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable.
The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical r abuse."
43. In the instant case, our main endeavour would be to define broad parameters of the concept of 'mental cruelty'. Thereafter, we would strive to determine whether the instances of mental cruelty enumerated in this case by the appellant would cumulatively be adequate to grant a decree of divorce on the ground of mental cruelty according to the settled legal position as crystallized by a number of cases of this Court and other Courts."
15. Further the Apex Court in case of Samar Ghosh (supra) laid down the guidelines to enumerate some instances of human behaviour which may be relevant in dealing with the case of 'mental cruelty', paragraph No.101 of the judgment is extracted herein as under:-
"101. No uniform standard can ever be ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 19 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, r 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.
(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 ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 20 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 r 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 ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 21 consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her .
husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may r 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."
decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty."
16. Therefore, the evidence of the parties has to be scrutinized in the light of the aforesaid judgments passed by the Hon'ble Supreme Court in order to arrive at a conclusion ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 22 as to whether the respondent has treated the petitioner with cruelty as alleged.
.
17. The petitioner stepped into the witness-box as PW-1 and tendered his affidavit by way of evidence, Ex. PA.
In support of his case, the petitioner examined his maternal uncle Shri Susheel Gautam as PW-2, who tendered his affidavit by way of evidence, Ex.PB, and his mother-Smt. Roshni Sharma, as PW-3, who also tendered her affidavit by way of evidence Ex. PC. The petitioner got examined Smt. Nirmala Verma as PW-4, who is his neighbour, and she tendered her affidavit by way of evidence, Ex. PD.
18. On the other hand, the respondent herself appeared in the witness-box as RW-1 and tendered her affidavit by way of evidence, Ex. RW-1/A. In support of her case, the respondent examined her brother Shri Hardev Sharma as RW-2, who tendered his affidavit by way of evidence, Ex. RW-2/B. The respondent also examined Shri Shankar Lal Sharma as RW-3 and Shri Daulat Ram Thakur, as RW-4, who tendered their affidavits by way of evidence, Ex. RW-3/A and Ex. RW-4/A, respectively.
19. The petitioner in his affidavit, Ex. PA, deposed that the respondent was reluctant to live at her matrimonial ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 23 house shortly after the marriage and did not share the responsibilities as that of a wife and used to tell him that she .
was a working lady and was in a position to earn money. He also deposed that the respondent was not keeping good terms with his mother and used to misbehave with her and she used to insist to live separately from his mother, which was not possible. He further deposed that the respondent had lodged number of false and frivolous complaints against him before his superior officers time and again and was being humiliated by her by leveling false allegations due to which his reputation was lowered in the eyes of his colleagues as well as the society. However, no specific allegations of cruelty have been spelt-out by the petitioner in his petition as well as in his affidavit, Ex.PA. During his cross-examination, the petitioner admitted that when the meeting was convened in the Panchayat to reconcile the differences, he disclosed that their marriage was within the prohibited degree, as such he did not want to keep the respondent with him. But, he has nowhere pleaded in his petition that their marriage was within the prohibited degree.
20. The petitions under the Hindu Marriage Act are required to be drafted and framed in ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 24 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. In Parvati vs. Shiv Ram & another, 1988 (2) Shimla Law Cases 204, it has been held by this court that Acts of "cruelty" have to be specifically pleaded as in absence of such pleadings it would be impossible for the answering spouse to effectively meet the allegations. The relevant portion of the aforesaid judgment is reproduced as under:
"13. Acts of "cruelty" have to be specifically pleaded. In absence of such pleadings it would be impossible for the answering spouse to effectively meet the allegations. If specific allegations are not made with sufficient details no amount of evidence can cure ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 25 the defect for it cannot be looked into See Smt. Maya v. Brij Nath, AIR 1982 Del 240; Om Parkash v. Smt. Rajni, AIR 1988 Del 107. The cruelty as a ground for divorce contemplated in section 13(1)(i-
.
a) is a conduct of such nature that the petitioner cannot reasonably be expected to live with the respondent.
See Dr. Keshaorao Krishnaj Londhe v. Mrs. Nisha Londhe, AIR 1984 Bom 413 (FB); Varinder v. Major Ranjit Singh, ILR 1985 HP 807.
14. If the grant of a decree of divorce on the ground of cruelty depends upon a conclusion of this nature, it is obvious that the pleadings in that regard should be clear and specific so that the answering spouse may be in a position to meet the case of the petitioner."
22. In Tarun Mahant vs. Surabhi Mahant (FAO No. 340 of 2010), decided on 07.05.2018, it has been reiterated by this Court that the petitioner is required to plead the specific instances of cruelty. The relevant portion of the aforesaid judgment reads as under:
"18. Evidently, the para-4 of the petitioner as reproduced above, clearly shows that no specific instances of cruelty have been spelt out. 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 ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 26 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."
23. In the instant case, as observed earlier, the petitioner has failed to specify the specific instances of cruelty. A careful perusal of the pleadings and the evidence on record would reveal that the allegations with regard to cruelty as set out by the petitioner are nothing but the normal wear and tear in married life. The allegations that the respondent was reluctant to live at her matrimonial house shortly after the marriage and did not share the responsibilities as that of a wife and used to tell him that she was a working lady and was in a position to earn money, that she was not keeping good terms with his mother and used to misbehave with her and she used to insist to live separately from his mother, in our considered view are not sufficient to form any opinion that the petitioner is undergoing such ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 27 mental pain, agony, suffering and frustration that it is not possible for him to live in the company of the respondent. All .
the allegations levelled by the petitioner are general and omnibus in nature
24. Regarding mental cruelty, the petitioner had pleaded that on 08.04.2016 the respondent made a complaint before the Women Commission and the petitioner was called in the office of Superintendent of Police, Shimla, and the said complaint was filed with a view to malign his image in the department and also to harass him. He further pleaded that a false complaint was filed by the respondent, against him and his mother on 08.04.2016, which was addressed to Chairman, Women Commission with copies endorsed to Director General of Police and Superintendent of Police, Shimla, by name with a view to malign the image of the petitioner in his department and to harass the petitioner and his mother. As per the petitioner, the aforesaid complaint was sent to Women Police Station, BCS Chowk, Shimla, where ultimately a compromise was arrived at between the parties, in which the respondent admitted that she had filed a false complaint and made false allegations and such false complaint resulted in harassment and ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 28 maligning the image of the petitioner and his mother, which amounts to cruelty. The petitioner has also proved on record .
compromise as aforesaid, Ex. PW-1/A, perusal of which shows that the compromise was arrived at on 01.10.2016 and the petitioner had agreed to give due respect to the respondent and to look after her and his son properly in future. Its perusal further shows that respondent wanted to settle at her matrimonial house and she did not want any further action in her complaint. The compromise nowhere indicates that the respondent had filed a false complaint, as she always wanted to accompany the petitioner and to settle at her matrimonial house. Thus, it cannot be said that the complaint, Ex. PD, was filed by the respondent with an intention to malign the reputation of the petitioner or tarnish his image in front of his department as well as in the society.
No material has been placed on the record by the petitioner and no witness has been examined by him to show that on account of complaint, Ex. PD, his image was tarnished in front of his colleagues or in the society.
24. As observed earlier, the petitioner could not bring on record specific instances of cruelty to enable this Court to adjudicate the case in his favour. On the contrary, the ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 29 instances of mental harassment, as pleaded and proved by the respondent, are on the better footing than the petitioner.
.
It has come on record that when the respondent was pregnant, she was sent to her parents' house by the petitioner and his mother at the time when she required more love and affection as well as care. Moreover, when the couple was blessed with a son, the petitioner did not prefer to see his wife i.e. the respondent as well as his son, which fact has been admitted by him during his cross-examination.
Even at the time of death of the mother of the respondent, the petitioner did not visit to condole her death. From the closer scrutiny of the entire evidence on record, it has become clear that the petitioner was not interested from the very beginning, to keep the respondent with him.
25. In view of the aforesaid reasons, the petitioner had failed to establish his case with respect to the allegation of cruelty, on which ground he had sought the decree of divorce. Therefore, the findings of the learned Court below, in our considered view, do not suffer from any perversity or illegality.
26. Therefore, as a sequel to our aforesaid discussion, we are of the firm opinion that no case is made ::: Downloaded on - 31/05/2024 20:37:14 :::CIS 30 out by the petitioner to disturb the well reasoned findings of the learned Court below. The appeal thus being devoid of .
merits deserves to be dismissed and is accordingly dismissed.
Pending applications, if any, shall also stand(s) disposed of. The parties are left to bear their own costs.
( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 31st May, 2024 (virender) ::: Downloaded on - 31/05/2024 20:37:14 :::CIS