Uttarakhand High Court
Satish Kumar vs Smt. Poonam on 20 December, 2017
Equivalent citations: AIR 2018 UTTARAKHAND 21, (2018) 3 DMC 703 (2018) 1 HINDULR 741, (2018) 1 HINDULR 741
Bench: Rajiv Sharma, Sharad Kumar Sharma
Reserved
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
First Appeal No. 47 of 2016
Satish Kumar ....... Appellant
Versus
Smt. Poonam ....... Respondent
Present: Mr. Arvind Vashisth, Senior Advocate assisted by Mr.
Ashish Sinha, Advocate for the appellant.
Mr. Siddhartha Bisht, Advocate for the respondent.
Coram:- Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on 10.07.2017 Delivered on : 20.12.2017 Per - Hon'ble Sharad Kumar Sharma, J.
The appellant-husband questioning the judgment dated 16.04.2016 passed by the learned Additional Judge, Family Court, Roorkee, District Haridwar in OS. No. 397 of 2014 "Satish Kumar Vs. Smt. Poonam", where the learned family Court Roorkee, had disposed of the petition by rejecting the relief claimed by the appellant- husband under Section 13(1)(i-a) of the Hindu Marriage Act, seeking a relief for dissolution of marriage.
2. The relief as claimed by the appellant in the instant appeal, while questioning the veracity of the judgment dated 16.04.2016 is that apart from the judgment being contrary to the pleadings and the material placed before the Court below, the learned family Court has not considered the evidence and the pleading in its correct 2 perspective and has recorded a perverse finding while rejecting the plea taken under Section 13 of the Hindu Marriage Act. Learned counsel for the appellant submits that since the dissolution of marriage was simpliciter on the ground of cruelty and he submits that the factum of cruelty was established by him but the same was not rightly appreciated in its true spirit by the learned family Court, and also as in accordance with the material placed by him.
3. For the purposes of establishment of cruelty, the appellant tried to submit that as per the Rules framed under the Hindu Marriage Act, it necessarily requires that each and every incidence of the cruelty should be pleaded by giving full details of the cruelty while filing of a petition under Section 13 of the Hindu Marriage Act. Learned counsel for the appellant submits that since each incident of cruelty was pleaded by him and was proved during the trial of the matter but despite of the same having been settled has not been considered by the learned Court below, thus Court below had failed to appreciate the case placed by the appellant, thus the judgment impugned is perverse.
4. He in the Memorandum of Appeal has pleaded by taking ground that the finding of cruelty on issue Nos. 1 and 2 with regard to other relief which the appellant could have been entitled has been wrongfully decided as the 3 vital issues of inflection of cruelty has not been considered or dealt with after considering the evidence on record. His contention is that the learned trial Court has not discussed the material evidence led by the parties and has merely quoted the pleadings and evidences of the parties without appreciating it by application of mind in various paragraphs of the judgment and has not weighed or appreciated the evidences so as to arrive at a reasonable conclusion.
5. He submits that though he was married with the respondent but right from the inception of the marriage, he was not treated in the manner in which a husband would expect to have and an extreme cruelty was exercised against him and sometimes he was forced to act de horse to his own will and even was forced to function and spend his life under the threat of dire consequences, if the husband failed to fulfill the illegitimate demands of the respondent-wife. The appellant submitted that the respondent-wife is more dominated by superstition and supernatural powers, because she was a strong believer in it, that in case if the supernatural powers or superstition often results into spoiling the relationship and hence according to her all precautions are required to be taken in for a period of allegedly so-called by her as "black month".
6. The husband further contended that under the pretext of there being doctrine of unnatural super elements which play dominant role during the period of black month, 4 she, under that pretext used to pressurize the husband to take her to tantrik to adopt means of worship as per her wishes and to satisfy appellant's deceased mother's soul. As according to the husband she often contended that the deceased mother is responsible for the ill fate of the defendant as her soul is still wandering and has not yet been laid in peace.
7. The husband's case was that he belongs to an extremely poor family belonging to a lower income strata and there was always a dearth in routine life even to meet the bare necessities of life. Even so much so, he submitted that he was forced to quit his job and become a teacher so as to make the matrimonial life more compatible and peaceful. He in the grounds taken in the Memorandum of Appeal further submitted that the allegations levelled by the wife so as to bring it within the ambit of cruelty, from the view point that the fetus was aborted, it was not because of any untoward act of the appellant but rather according to the appellant it was due to inappropriate/underdeveloped growth of fetus.
8. The husband further submitted that further a pressure was being exercised by the wife along with her parents to visit tantrik who take care of appellant's deceased mother. But none of these aspects of cruelty as pleaded by the husband was taken care of or considered by the learned Court below while dismissing of his petition 5 for dissolution of marriage. The husband further submitted that the wife has gone to such an extent that she also pressurized that if the husband and his family members refused to visit her tantrik living in Himachal Pradesh, she would file frivolous petitions under the Dowry Prohibition Act or other law for the purposes of adopting a retrogressive attitude and mental cruelty.
9. There had been some biological complications of child in the conception and after conceiving in the womb too as there was a gland by way of growth and under the pretext of getting it cured, the wife has gone to her parents home at Delhi where his son Dhairya was born and her atrocities has gone to such an extent that she has never permit the husband to meet his son.
10. In the grounds further taken by the husband he had submitted that the mother-in-law often used to threaten of filing of frivolous concocted case against the appellant in the Women Cell at Srinivaspuri, Delhi. On the complaint being filed, the Women Cell conducted the counseling on 05.01.2012 and despite of the instructions given by the Counselor to both the husband and wife to live their life peacefully and spend their matrimonial life in harmony at Roorkee and to resolve their differences therein. Accordingly, the Women Cell submitted a report on 21.12.2012 but despite of the efforts made by the Women Cell, nothing positive happened.
611. The appellant further submitted that once there was a complete break down of relationship and it was becoming practically impossible to live further together as husband and wife and to discharge the harmonious relationship of husband and wife, the appellant was constrained to file a divorce proceeding in Saket Court, Delhi, where both the parties were called for mediation on 21.01.2014. During the mediation the parties entered into a compromise, but later on it resulted into failure due to non satisfaction of the terms of the compromise Despite of assurances given in the compromise before the Mediation on 21.01.2014, the respondent-wife did not withdrew the proceeding as instituted against the appellant under the Dowry Prohibition Act. Despite the fact that the husband agreed to pay the amount as directed by the Mediation and he fulfilled all the conditions of the settlement dated 21.01.2014.
12. The husband further contended that he was made to believe by the wife in the Mediation dated 21.01.2014 about the resolution of their disputes and as a result of which he withdrew the divorce petition. It is the case of the appellant that in pursuance to the settlement dated 21.01.2014 in the Matrimonial Case he has taken a loan of Rs. 2 lakh from Punjab National Bank and Rs. 1 lakh from HDFC Bank to provide all comfort and luxuries to 7 the respondent as argued to. But ultimately all efforts made by him failed.
13. Left with no other recourse of redressal of his apathy, the husband-appellant instituted the proceedings under Section 13(1)(i-a) of the Hindu Marriage Act seeking dissolution of marriage as held between them on 02.12.2009.
14. Brief facts leading to the filing of the petition was that since both were the followers of the Hindu religion and thus they got married as per the Hindu rites and rituals at Delhi. The appellant's case was that the mediator who got the marriage settled had created an impression that the family member of the wife were highly educated family and are reputed in the society and the respondent-wife has taken her education from IGNOU and since they being qualified they are not interested in any dowry, but they were only interested to have an educated girl and a girl who is with full of ethics. It was the husband's case that even at the time of marriage, it was informed to the family of the wife that they are a middle class family and the husband is working in a company called as "Infotech Enterprises" and from where he is getting only is salary of Rs. 10,300/- per month.
15. The husband further submitted that it was also informed that the father of the plaintiff has got a tailoring 8 shop from which family has a very low income. He submitted that looking to the family, its strength and coupled with the dependency of the younger brother. At this stage of the settlement of the marriage when the family members of the respondent visited the family of the appellant they expressed their desire that the appellant's family should come to Delhi to solemnize marriage. But since there was the financial crisis with the husband's family they decline to come to Delhi as they were not economically sound.
16. According to the husband, the family members of the respondent-wife even before marriage became so adamant with regards to the choice of the place of marriage that they had even gone to an extend that the marriage should be held in Delhi or they will not extend their consent for the marriage to be held at any other place and they would rather prefer to decline to solemnize the marriage.
17. The husband submitted in his pleadings that whatsoever the information which was provided by the mediator about the qualification of the family of the wife, all proved to be false for the reason that they were highly superstitious and on small issues they often use to have doubt for various reasons. According to the husband immediately after the marriage when the wife join back the husband's family immediately she started submitting that 9 she is not happy with the marriage and she further submitted by humiliating the husband that she didn't wanted to get married. There had been various occasions where both the parties were not in agreement on small issues and sometimes the mother of the respondent-wife also threatened that if the appellant's family declines to marry her daughter, she will ever remain as spinster. The mother of the respondent-wife further threatened that if due to non solemnization of marriage if anything untoward happens to her daughter, she will take all the revenge from the husband and his family members.
18. The husband submitted that the wife was so much under the influence of her mother, that whatsoever her mother used to advise her she used to blindly accepted the same and as a result of which the mother of the respondent-wife acted as a catalyst in increasing the misunderstanding between the husband and wife. The superstitious aptitude of the mother of the wife and the wife was so grievous that he even suggested the wife to not to live with the husband during the black month and she has even left the husband and gone to Delhi to reside with her parents, she alleged that if they live together during black month it will have affect on the family. Under these unavoidable reasons, he was forced to send her to her parent's home at Delhi.
1019. After the expiry of the alleged black month the husband made efforts to bring back his wife, so that she may discharge her matrimonial obligations but the wife expressed her inability to join back the husband and suggested that he should rather come his in-law's place and to complete his studies from there. The reason assigned by the wife behind it was that she was doing her graduation from IGNOU. The husband's case was that all these stories which was developed by the wife was absolutely false because the information which was imparted to him at the time of marriage by the mediator that she is pursuing her graduation from IGNOU was false because according to the husband he has been informed that the respondent is not even 10th pass.
20. This fact was extremely shocking to the husband and he felt cheated and felt that the marriage was consequence of a fraud, said to have been committed by his in-laws. Husband submitted that under the aforesaid backdrops of cruelty and the belief which the wife had over supernatural powers, her visits to tantrik, he made various efforts with the friends and other relatives to bring his wife back from her parent's home. On reaching Roorkee every time she used to misbehave and leave the matrimonial home along with her son, without any prior information, for consent of the appellant/husband. The husband submitted that he extremely felt humiliated when the respondent-wife and her family members had lodged a false complaint on 11 28.05.2012 and the criminal proceedings were initiated against the appellant, his father and the brother under the Domestic Violence Act which is pending before the Delhi Court.
21. The husband submitted that despite of the aforesaid backdrop, where it is apparent that the marriage has been completely broken down, wife was venturing to reasons not to live with the husband. He made efforts to bring his wife back but all his efforts to make her understand failed. Husband submitted that on 06.12.2012, the case which was filed by the wife i.e. the matrimonial case before the learned family Court, Saket, Delhi and on the decision of the Mediation it was compromised, the respondent-wife had expressed her willingness to join her husband after the completion of her class 10th standard examination.
22. Husband further contended that when he heard that she is not even class 10th pass, he advised her to complete her studies. Wife informed this to her mother. Her mother got angry and said - "don't humiliating her, irrespective of the fact that no matter how much she has studied, threatened not to harass her for this reason. Since you have married, she is now your responsibility, its' your duty to maintain her."
1223. She often used to pass sarcastic remark alleging that husband has a service from where he earns much less amount, and is related to an extremely poor family often use to pressurize him to change his job and become a teacher by which she contended that he would given more time to her, for outing.
24. To ensure peace in family, husband's case is that even he joined in B.Ed after leaving the job and deposited all the fees for B.Ed. It was further the case of the husband that in 2010, few days before Rakshabandhan festival, a girl child was born in the family of the cousin sister of wife. Husband took respondent/wife and left her to her parent's house. On return, he would learn about the ploy of the wife when he found that locker was empty and there was no ornaments left in it, on query at later stage, she informed on phone that she has carried all ornaments to Delhi.
25. Husband further submitted before the Court below that on return from Delhi, respondent/wife informed the appellant/husband that there is a good news, on which as per husband he told her that he will take her to Govt. Hospital next morning for the check-up, according to him, after conducting of ultra sound on her, the doctors informed that the child is not having any growth in the womb, husband submitted that this information was given to the mother of the respondent/wife. Also informed that 13 doctor had advised for abortion. He submitted that he had to give his B.Ed paper at Almora, he left for that place, and since in the meantime the mother of the respondent/wife and her uncle had arrived both of them with the help of neighbours took respondent to the hospital and abortion was done.
26. Under the pretext of rest mother of respondent took her to Delhi and used filthy language to the husband on telephone from there, alleging had he agreed for taking her to her tantrik this would not have happened, warned that she will not send her back till the departed soul of mother of husband, which is yet to reach to salvation and peace is not cured by her tantrik. Husband alleges that he tried to make understand his wife that her mother is wrongly interfering in his family matters which is the reason for aggravated misunderstanding.
27. Wife got pregnant for second time in 2011, some complications developed, later on diagnosis it revealed that she is having "Rasoli", (a disease prevalent in females), yet a son Dhairya was born on 10.10.2011. But she never permitted the husband or his family members to meet the newly born son. As per husband not only this, she lodged a complaint against the husband and his family members before Crime Against Women Cell, Shrinivaspuri, New Delhi, sorted out and sent to Roorkee with son of the appellant on 20.02.2012. They live for 14 about few months together. Later on 28.05.2012, she again lodged a complaint against the appellant/husband, his father and brother, which is pending before Delhi Court. Faced with these precarious situation, husband filed under Section 13 for dissolution of marriage before the learned Family Court, Saket, New Delhi on 06.12.2012.
28. The husband's case was further that in the settlement which was held before Mediation, an agreement was executed in which she expressed that she would go back on completing her class 10th exam in April 2014 and withdraw the Domestic Violence proceedings after receiving a sum of Rs. 20,000/- no such withdrawal of the Domestic Violence case was done by the wife as assured to be withdrawn on 28.01.2014 in the settlement of 21.01.2014 and is still pending before the Delhi Court which itself is a constant harassment to him and his family members.
29. Based on the aforesaid settlement it was also assured by the husband that he will withdraw his family Court proceedings filed by him before the Saket Court, Delhi the appellant alleges that he has withdrawn under Section 13. One of the conditions of the settlement of 21.01.2014 was that it would be open for the husband to visit his in-laws at Delhi whenever he feels and both the families respect to one another and the elderly persons of the family.
1530. The husband submitted that in terms of the settlement dated 28.01.2014, he has remitted a sum of Rs. 20,000/- before the Saket Court, New Delhi on 28.01.2014 and has withdrawn his divorce petition filed by him before the Saket Court, Delhi.
31. He further submitted that based on the compromise he has provided all the amenities to the wife after taking loan from the banks. On completion of paper of the wife, it is the case of the husband that on 22.04.2014, he brought his wife and son and they lived together and the husband and the appellant as a husband discharged all his responsibilities attached to the matrimonial life. The parents of the wife after revival of the relationship on the basis of compromise dated 21.01.2014 when they stood satisfied and they returned back to their home at Delhi.
32. There are various stands taken by the husband that every month the wife goes to her parent's home at Delhi to meet them and this action of the wife was never objected by the husband and he never imposed any restrictions on her movement as per her wishes. The husband's case was that whenever he tried to express his affection and concerns towards the wife and showed his expression to accompany him to any other place, she used to refuse. He further submitted that the mother of the wife in August 2014 had given a phone call after conspiring 16 with respondent and informing that dated fixed is not 30.09.2014 but rather 30.08.2014 is the date fixed whereas actually the date fixed in the Matrimonial Case was 30.09.2014. Under the belief on the information by the mother-in-law to be 30.08.2014, the husband's case is that he went to Delhi on the date fixed and found date fixed was 30.09.2014 and not 30.08.2014 as informed by the mother-in-law.
33. Under the aforesaid information, it is the case of the husband that he visited the Delhi Court along with the wife and son to attend proceedings as informed to be 30.08.2014 and there he could learn that actually the case was fixed for 30.09.2014. It has also come to the knowledge of the husband later that when she had gone to the Delhi to attend the Court proceedings allegedly informed for 30.08.2014, she has taken all the valuables from the matrimonial home and when on being asked to join back the matrimonial home at Roorkee, she took an excuse that since there was a Ganpati Puja at her parent's home and deity Ganpati is to be installed she expressed her unwillingness to join the matrimonial home at Roorkee.
34. The husband even while requesting her informed that he has got the returned reservation and on the husband having been made consisted request to the wife that they have to get their children admitted in the play school, but none of the hue and cry of the husband was 17 heard and by forced the mother of the wife had taken the respondent and her son to her residence at Delhi from the Court premises itself. The husband submitted that all the settlements which were arrived at before the Saket Court, Delhi was not honoured by the respondent wife nor she has withdrawn her case and thus she has committed a contempt of Court and liable to be punished.
35. It has also come on record that when the plaintiff has given a phone calls to the respondent's home, the uncle of the defendant has threatened the plaintiff- husband that if he ever gives a call he would be dealt with severely against which the husband has lodged a complaint and has also recorded the voice of the uncle on the telephone. And it was due to this threat the family is always living under a threat perception given by the members of the wife's family.
36. The husband submitted that he made all efforts to make the wife understand to join back the matrimonial home, the wife given all lame excuse that she has no enough money to travel, the husband supplied the money for travel to the wife by depositing the amount in her account but despite of it according to the husband she has not returned to the matrimonial home. On the other hand, he being a Hindu husband, and strong believer of the social customs and restrictions, continued to discharge his matrimonial obligations.
1837. Under these backdrops husband has submitted that the wife ever since 30.08.2014 is residing separately and the situation inter se between them has reached to such an stage that it was practically not safe for him to live together as husband with her because there was a possibility of anything untoward can happen because of the threat perception and the misunderstandings which has reached beyond control by now. Hence husband filed a petition under Section 13 of the Hindu Marriage Act.
38. The wife filed her written statement as paper No. 12-A. She denied the allegations raised in the plaint except the fact that she was married and she submitted that the husband resided with the wife for considerable time for last 4 years in Delhi. She submitted that because of the fact that they had resided together lastly in Delhi the Roorkee Family Court has no jurisdiction to entertain the suit.
39. The defendant's case was also that by filing of the proceedings in the Roorkee Court, since she being placed in Delhi she will not be able to avail all the facilities because it would be impossible for her to travel from Delhi to Roorkee on each date along with her child who was 3 years of age only, which would deprive her from actively participating in the proceedings and putting her defense.
1940. She submitted in her written statement that after the marriage, immediately thereafter the attitude of the appellant-husband was atrocious towards the respondent- wife, due to which she was forced to lodge a proceedings under Domestic Violence Act in Delhi Court in 2014. Though it was compromised and they both have started living together but she submitted that since there was no change in the attitude and behaviour of the husband hence she decided to leave the husband and live separately. She denied the fact that after the wife being left for Delhi the husband has never came back to Delhi to take her back after August 2014, and thus she submitted that the plaint is based on false assertion and deserves to be dismissed because rather it's a deliberate desertion at the behest of the husband himself and having not made any efforts to bring back wife after August 2014.
41. While denying the allegation of para 13 and 14 of the plaint, the wife submitted that the allegations of threat as leveled by the husband against the wife are absolutely false as she has never given any threat and submitted that since he himself is engaged in service and for getting a better job perspective he wants to pursue his studies further it was his choice; and not because of any pressure exerted by the wife. She submitted that the husband used to raise demand from in-laws. While denying para 17 of the plaint with regards to the facts of desertion the wife in her written statement submitted that 20 in the year of 2010 on the occasion of Raksha Bandhan, the husband has left the wife to her parent's home and thereafter the husband has never visited the in-laws to bring her back. In response to the pleading of para 19, 20 and 21 of the plaint, the respondent-wife while partly admitting the contents submitted that she had aborted at Ramnagar, and the husband has not discharged any of the responsibilities when the wife was in her family way. And it was rather after the persuasion of the father of the appellant and with his consent that the defendant was sent to Delhi for treatment.
42. The respondent submitted that she on number of occasions tried to contact the plaintiff-husband but neither plaintiff-husband nor his father had received the call deliberately. She submitted that she always lived with the husband peacefully and discharged her all matrimonial obligations.
43. While denying paras 24 and 26 of the plaint, she submitted that apart from the fact that all reasons of cruelty, which have been pleaded by the husband are concocted but still she unequivocally wants to live with the husband and she wants to discharge her matrimonial obligations. She submitted that all the misunderstandings have aggravated because the atrocious attitude of the plaintiff-husband, which she endured for considerable long time. She submitted that the pleadings raised by the 21 husband that all the expenditure of delivery was met by him was absolutely false.
44. On an overall scrutiny of the defense taken by the wife in her written statement, it is rather allegation against the husband/appellant aptitude towards her from time to time, she in a nutshell wanted to submit that the husband was an escapist who wanted to shy away from his domestic responsibilities, apart from the fact all bunch of allegation developed by husband for the purposes of filing petition for dissolution of marriage are based on facts pleaded but not proved only any cogent and independent evidence.
45. Based upon the aforesaid, learned Trial Court framed two major issues :
(i) As to whether the defendant-wife has commissioned any cruelty against the plaintiff- husband and its effect;
(ii) Other relief the plaintiff is entitled to receive.
46. Thus husband appeared in the witness box and recorded his statement as PW-1 and produced Mr. Heeralal as PW-2 filed some documents with plaint. On the other hand, the respondent-wife appeared in the witness box and recorded her statement as DW-1. Both the parties to the dispute had filed their respective affidavit in examination in chief.
2247. On overall pleadings as raised, it seems that primarily dispute between the parties was in relation to the cruelty and partially also with some element of desertion as pleaded by wife after August 2014. To bring the case within the ambit of cruelty, the husband submitted that when the marriage was settled, the mediator, Raj Kumar alias Raju, who was the cousin brother (Mausi's son) of the husband had wrongfully informed that the defendant- respondent is a graduate from IGNOU whereas as a matter of fact according to husband it later revealed that she was not a graduate. Secondly, the plaintiff submitted that although the mediator has informed the in-laws about the income of the husband but still they pressed upon him to get the marriage functions performed in Delhi, to which the husband's family expressed their inability due to shortage of funds and their financial condition which was not very sound.
48. Plaintiff argued that it was a cruelty exerted by the entire family members because the mother of the defendant-respondent rather never wanted the marriage to be settled with the appellant but on threat/pressure being given by the respondent to her mother that she wants to marry with the appellant only and no one else, and if the said marriage is not settled, she will never marry with any other male, due to which the mother of the respondent got the marriage settled between them. Thirdly, the husband's case to bring the divorce petition within the ambit of 23 Section 13 was that the belief of the wife in supernatural powers and the belief in dauntless tantrik, was also creating a cruelty on the husband because she has taken the said ground as to be the ground for leaving away from her husband as husband used to obstruct her from taking to tantrik made of prayer, as it was spoiling family situation.
49. The husband's case was that due to massive concealment made by wife and her family members, for the purposes of marriage and to its subsequent revelations has created and aggravated the misunderstanding and it was impossible for the husband to live anymore together as husband and wife. It was also specific case of the husband that in the year 2010, on the occasion of Raksha Bandhan, few days prior to it the cousin sister of the respondent-wife had given birth to a daughter and under the pretext to see her she has gone to Delhi and asked the husband to take her back after a week. But after going there she expressed her unwillingness to join back and wanted to continue to reside with her parent's home.
50. According to the husband, the attitude of the respondent-wife was unpredictable. She was neither conclusive and rather she used to act on her whims and fancies. She after her return, about couple of days before the festival of Karva Chauth she came to force upon the husband to visit to Tantrik Baba but when he refused she 24 became too angry and threatened the husband. According to the husband, after first abortion, when she conceived again in January 2011 and the in-laws of the appellant- husband took her to Delhi, where it was found that there was a growth of gland in her womb. After some treatments though she was able to deliver the child on 10.10.2011, a male child named 'Dhairya' but being the father of the child, he was not provided the status of being a father and all efforts were made by the respondent-wife to increase the distance between the child and the appellant-father as according to husband, though not proved by him he was never permitted to meet his son.
51. The husband submitted that when he returned from his official work in the afternoon he found that the wife along with his son was missing. He rang the mother of the wife and she informed that she has left his place and gone to Delhi. On being objected by the husband quite obviously he was misbehaved and the family members of the wife used abusive languages against him.
52. According to the husband he has lodged the police complaints. The husband submitted that it was an extreme cruelty and emotional blackmail when the son was born on 10.10.2011 no information of any nature whatsoever about the birth of the child was given to the father and he could for the first time learnt about the birth of the child from an information which was imparted to him 25 from the cousin of the husband. Further he submitted that the pleading of the wife to the effect that he was informed by Poonam (respondent-wife) about the birth of the child on 10.10.2011 from the Hospital itself on telephone and the pleadings to the effect that he was informed about the date of christening of the son is absolutely false because no such information or telephone call was ever received by him and this would amount to be a cruelty because at least a father is expected to be informed about the birth of a son and about the function of his sons christening.
53. In any given case when husband pleads that he expressed his desire to meet the child by visiting Delhi as a plea to prove cruelty and he was threatened, that he should not endeavour to meet him at Delhi and he submitted that it is absolutely a false story which has been developed by him rather there is no independent evidence that he had ever made any efforts to meet his son. Rather to the contrary after receiving the information when he alleges to have expressed his willingness he was threatened thus in itself will not amount to be a mental cruelty, entitling the husband for dissolution of marriage because if there was threat, the appellant ought to have a recourse of taking appropriate legal remedy available to him under law. There is nothing on record to show that he had ever taken any such action, hence the theory of threat never stood proved.
2654. He submitted rather admitted that it is true that he could not meet the expenses of the birth of the child because the birth has taken place at Delhi on 10.10.2011 yet again the pleading lack any effort which appellant could be said to have made to perform his responsibilities as a father. But he submitted that when the counseling was done at Delhi on 21.01.2014, she has gone back to Roorkee and started residing in her matrimonial home. But all of a sudden she left the matrimonial home and went to Delhi and this act of leaving the matrimonial home would absolute be a cruelty and would amount to be a withdrawal from the society of the husband without his consent. This story rationally could not be believed with, in this advance era of awareness, it is prime responsibility of the husband to have made a sustainable effort to know about the whereabouts of his wife when she was found missing from home. Except pleading that wife left the home, there is no substantiate plea of steps taken by the appellant/husband to know about her whereabouts. Thus this story cannot be believed with for the purposes of satisfying the ingredients required for dissolution of marriage by invoking under Section 13 of the Hindu Marriage Act.
55. The husband submitted that in the proceedings under the Protection of Women from Domestic Violence Act, 2005, he had moved an application to permit him to meet his son which was deprived by the wife wherein she has posed number of conditions before permission could 27 be granted to the husband. Learned trial Court, while considering the statements of PW-2, Hiralal who is the father of the plaintiff, who was since an interested witness was bound to support the version of the husband and submitted that looking to the economical condition of the PW-2, it is practically difficult for them to accept the conditions as forced upon by the wife's family pertaining to the controversy for getting the marriage performed from Delhi and with regards to the exchange of money which took place during the course of the marriage. All seems to be hearsay and concocted story for the purposes of decree of divorce.
56. PW-2 Hiralal further submitted that whatsoever money has exchanged hand was an amount towards the 'Shagun' and not a dowry hence this will not be an atrocious act on the part of the in-laws of the respondent- wife. On scrutiny of statement of PW-2 about exchange of gift by terming it as 'shagun' was a clever plea as revealed from scrutiny of statement, by change of its nomenclature. The learned trial Court while considering the cross examination of Poonam (respondent-wife) that the mediator of the marriage namely Raju has given all the true information about the family conditions of the defendant-wife to the family members of the plaintiff- husband because all the terms and conditions of the marriage were settled in the home of Satish (appellant- husband) and it was witnessed by all. Since Raju was not 28 produced in the witness box, the alleged mediator, who was the cousin of appellant/husband an adverse inference would be drawn against him that he had the knowledge of all the facts of respondent/wife's family and her background. It was also settled as number of persons who would accompany the marriage procession. Respondent- wife raised and allegation that after the settlement of the marriage and when the cards had already been distributed, the husband and his family members started raising demands for dowry.
57. On perusal of the oral scrutiny and pleadings and cross examination, what is projected is that the disputes between the parties to the appeal was nothing but was a dispute of misunderstanding and the nature of the cruelty which the husband was pleading for the purposes of making it as a ground for divorce undoubtedly was required to be proved by him by leading evidence. On overall scrutiny of the statements and the affidavit in examination in chief as filed by the husband, it was the only document on which he has placed reliance. Apart from it, there is no other documentary evidence placed on record by him.
58. On perusal of the affidavit in examination in chief and the statement recorded by him before the learned Court below cannot be treated as to be a strict proof of any cruelty, said to have been committed by the wife. What is 29 relevant further is that merely because a wife for the purposes of pursuing her studies or for undergoing the delivery visits her parent's place will not amount to be a cruelty because it is quite a natural phenomena when the wife normally goes to her parent's home to have more care and attention when she is in a family way. Being a believer of certain superstitions, for example; believing the separation during the black month itself is not a cruelty because the perception of cruelty merely because a statement of the wife that - it is a black month and they should live separately, will not amount to be a cruelty. Apart from it to bring the cruelty under the Hindu Marriage Act, it is absolutely a vague term and it is not specifically defined under the Act. It is only the aid of the judgment which has come forward as to which circumstances could be attributed to be a cruelty which would depend upon the circumstances from case to case. The factum of cruelty has to be established, which, in the instant case, the husband has failed to discharge and thus the cruelty was not established.
59. In a judgment rendered by the coordinate Bench of this Court in Mohan Singh Mawri Vs. Haripriya, 2017 (1) U.D., 34 has held as under:
"13. Their Lordships of the Hon'ble Supreme Court in the case of Shobha Rani v. Madhukar Reddi reported in AIR 1988 SC 121 have explained the term "cruelty" as under:30
"4. Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been 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 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. 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 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 E.R. 257 (259) "the categories of cruelty are not 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 behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful/realm of cruelty."
14. Their Lordships of the Hon'ble Supreme Court in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511, have enumerated some instances of human behaviour, which may be important in dealing with the cases of mental cruelty, as under:
"98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.31
99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.32
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without 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 being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
15. Their Lordships of the Hon'ble Supreme Court in Ashok Kumar Jain vs. Sumati Jain, AIR 2013 SC 2916 have held that it is always open to the Court to examine whether the person seeking divorce "is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief." On such examination if it is so found that the person is taking advantage of his or her wrong or disability it is open to the Court to refuse to grant relief."
60. Thus, as a matter of fact, what would be the level of cruelty which would go to an extent that it would be falling within the parameters of cruelty as laid down by the Hon'ble Apex Court in the case of K. Srinivas Vs. K. Sunita reported in (2014) 16 SCC 34. Para 5 of the judgment is quoted hereunder :-
"5 The Respondent-Wife has admitted in her cross-examination that she did not mention all the incidents on which her Complaint is predicated, in her statement under Section 161 of the Cr.P.C. It is not her case that she had actually narrated all these facts to the Investigating Officer, but that he had neglected to mention them. This, it seems to us, is clearly indicative of the fact that the criminal complaint was a contrived afterthought. We affirm the view of the High Court that 33 the criminal complaint was "ill advised". Adding thereto is the factor that the High Court had been informed of the acquittal of the Appellant- Husband and members of his family. In these circumstances, the High Court ought to have concluded that the Respondent-Wife knowingly and intentionally filed a false complaint, calculated to embarrass and incarcerate the Appellant and seven members of his family and that such conduct unquestionably constitutes cruelty as postulated in Section 13(1)(i-a) of the Hindu Marriage Act."
61. What is relevant is that an effect of cruelty which undoubtedly is required to be proved has to be a ground pleaded and has to be a ground which has to be proved by either of the party, seeking dissolution of marriage. Amongst Hindu since marriage is a sacrament, slight deviations in ideologies and thoughts should not be taken as base for severing the pious relationship of well recognized system of sat padi, more particularly, when it is not proved as per law. In the instant case, there is not even a single evidence, which has been brought on record or established by the husband in consonance to the pleadings to attract the concept of cruelty and thus the petition has rightly been dismissed by a cogent and justified reasons by the learned Court below. Thus the Appeal fails and is hereby dismissed.
62. No order as to costs.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 20.12.2017 Mahinder/