Punjab-Haryana High Court
Vipin Sharma vs Monika on 22 December, 2014
Equivalent citations: AIR 2015 (NOC) 408 (P.&H.)
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
FAO-M-459 of 2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO-M-459 of 2014 (O&M)
Date of Decision: 22.12.2014
Vipin Sharma
....Appellant.
Versus
Monika
...Respondent.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MRS. JUSTICE SNEH PRASHAR.
PRESENT: Mr. Raman Goklaney, Advocate for the appellant.
AJAY KUMAR MITTAL, J.
1. This appeal has been preferred by the husband against the judgment and decree dated 19.9.2013 passed by the Additional District Judge, Ferozepur whereby the petition filed by him under Section 13 of the Hindu Marriage Act, 1955 (In short "the Act") for dissolution of marriage by a decree of divorce, was dismissed.
2. A few facts necessary for disposal of the instant appeal as narrated therein may be noticed. The marriage of the parties was solemnized on 15.2.1988 at Ferozepur City as per Hindu rites and ceremonies. After the marriage, the parties cohabited with each other as husband and wife and out of the said wedlock, two male children, namely, Karan Sharma and Arjun Sharma were born. The father of the GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -2- appellant died in the year 1967 leaving behind two sons and two daughters and his mother brought up the family. From the very beginning, the respondent started pressurizing the appellant to live separate from the joint family. Earlier, the appellant was living with his family in a rented house but from 2002 onwards, they have shifted to House No. 264, Kundan Nagar, Ferozepur City. The respondent doubted about the character of the appellant as well as younger brother's wife who was quite young to him and was just like a daughter. This act and conduct of the respondent also caused harassment and mental torture to the appellant. According to the appellant, from the beginning of the marriage, the respondent never tried to cook meals for any member of the family including the appellant. She never washed the clothes. When the demand of the respondent for a separate house was not fulfilled, she started keeping distance from the appellant and there was no cohabitation between the parties from 2002. The respondent also tried to commit suicide by consuming some pesticide but she was saved. All the acts and conduct of the respondent were informed to her parents a number of times but they instead of making her understand, instigated her for separate mess. She even left the company of the appellant on 18.9.2010 and had not returned to the matrimonial home. The marriage between the parties was a dead marriage for all intents and purposes. Since, the appellant could not condone the act of cruelty of the respondent, he filed a petition under Section 13 of the Act for divorce. The said petition was resisted by the respondent by filing a written statement. Besides raising various preliminary objections, it was pleaded that the marriage between the parties took place on 15.2.1989 and not on 15.2.1988 and at the time of filing of the petition, the GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -3- respondent was residing at Amritsar and not at Gobindgarh as alleged by the appellant. The appellant was working as Superintendent Grade I, in the office of Deputy Commissioner, Ferozepur and was very proud and adamant nature. She was not allowed to go to the Kitchen for preparation of meals by the mother of the appellant and she was provided food which was left by the family members of the appellant. Even the respondent was turned out from the matrimonial home on 28.9.2010 in three wearing clothes and the appellant never inquired about her whereabouts. In fact, the appellant and his family members were not satisfied with the dowry given by the parents of the respondent and on this account they started misbehaving with her and she was not allowed to go to her parents' house even during the pleasure or sorrow days. The other averments made in the petition were denied and a prayer for dismissal of the same was made. The appellant filed rejoinder controverting the averments made in the written statement and reiterating that made in the petition. From the pleadings of the parties, the trial court framed the following issues:-
1. Whether the petitioner is entitled to decree of divorce as prayed for? OPP
2. Whether the respondent has treated the petitioner with cruelty? OPP
3. Whether the petition is not maintainable? OPR
4. Relief.
3. The appellant in support of his case examined himself as PW1, Neel Rattan Sharma as PW2, his son Arjun Sharma as PW3 and Manjit Singh as PW4. On the other hand, the respondent rebutted the claim of the appellant by examining herself as RW1 and her uncle GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -4- Kasturi Lal as RW2.
4. The trial court first of all took issue No.2 and on appreciation of the evidence led by the parties, decided the same against the appellant holding that the appellant had failed to prove that he was treated with cruelty by the respondent. In view of the findings recorded by the trial court on issue No.2, issue No.1 was decided against the appellant holding him not entitled to a decree of divorce. Issue No.3 was waived off being not pressed at the time of arguments. Accordingly, the trial court vide judgment and decree dated 19.9.2013 dismissed the divorce petition. Hence, the present appeal.
4. Learned counsel for the appellant submitted that the behaviour of the respondent towards the appellant and his family members was not good. He further submitted that the respondent never tried to cook meals for the appellant and his family members nor she washed the clothes. It was urged that the respondent used to leave the matrimonial house without the consent of the appellant and used to quarrel on petty matters. With these contentions, learned counsel prayed for dissolution of marriage by a decree of divorce.
5. After hearing learned counsel for the appellant, we do not find any merit in the appeal.
6. Cruelty has not been defined under the Act but various pronouncements of the Apex Court and other High Courts have outlined the scope of the term 'cruelty'. 'Cruelty' is evident where one spouse treats the other and manifests such feelings towards him or her as to cause reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.
7. The Apex Court in Parveen Mehta v. Inderjit Mehta 2002 GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -5- (3) RCR (Civil) 529 had very elaborately analyzed the expression 'cruelty' as a ground of divorce under the Act. The relevant portion thereof reads thus:-
"Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been 'conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger.
XX XX XX
XX XX XX
21. Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behaviour by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioural pattern by the other. Unlike the case of physical GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -6- cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other."
8. Further, setting out illustrative cases of mental cruelty, the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 had held as under:-
"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 GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -7- 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 GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -8- very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -9- 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."
9. In the present case, the instances of the appellant were merely the result of wear and tear of the married life and could not be treated as cruelty of such a degree that the parties could not live together or their marriage needs to be dissolved. Further, the averments made in the petition and the evidence led in support thereof only show the sensitivity of the appellant with respect to the conduct of the respondent which could not be termed more than ordinary wear and tear GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -10- of the family life. There are no concrete instances and evidence to show the conduct of the respondent-wife to be cruel. In such circumstances, the appellant had failed to prove that he was treated with cruelty by the respondent. The relevant findings recorded by the trial court read thus:-
"16. Further more, even if, the instances highlighted by the petitioner are assumed to be correct, these are merely the result of wear and tear of the wedded life and cannot be treated as cruelty of such a degree that the parties cannot live together or their marriage needs to be dissolved as held by the Hon'ble Punjab and Haryana High Court in case bearing titled Birender Singh vs. Rekha Devi AIR 2013 Punjab and Haryana 87.
17. Cruelty has not been defined under the Hindu Marriage Act, but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb and health. Cruelty for the purposes of the act means where one spouse has so treated the other and manifested such feeling 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. Cruelty may be a physical or mental. Mental cruelty is the conduct of the other spouse which causes mental suffering or fear to the matrimonial life of the other. 'Cruelty' therefore, GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -11- postulates a treatment of the petitioner with such cruelty as to cause 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 sensitivity of the petitioner and has to be adjudged on the basis of course of conduct which would, in general be dangerous for a spouse to live with the other. In this regard, I find support from the law laid down by the Hon'ble Supreme Court in case titled as Savitri Pandey Vs. Prem Chandra Pandey cited in AIR 2002 page 591. The averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the petitioner with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life."
10. Learned counsel for the appellant was unable to demonstrate that there was any error or perversity in the findings recorded by the trial court being based on misappreciation or misreading of evidence which may warrant interference by this Court. Accordingly, finding no merit in the appeal, the same is hereby dismissed.
11. There is a delay of 325 days in refiling the appeal. CM No. 28684-CII of 2014 has been filed for condonation of 325 days' delay in refiling the appeal. Since the appeal has been dismissed on merits, no GURBACHAN SINGH 2015.01.28 11:30 I attest to the accuracy and authenticity of this document High Court Chandigarh FAO-M-459 of 2014 -12- further orders are required to be passed in the application for condonation of delay in refiling the appeal and the same is disposed of as such.
(AJAY KUMAR MITTAL)
JUDGE
December 22, 2014 (SNEH PRASHAR)
gbs JUDGE
GURBACHAN SINGH
2015.01.28 11:30
I attest to the accuracy and
authenticity of this document
High Court Chandigarh