Karnataka High Court
Smt. Nalini Sunder vs Sri G.V. Sunder on 21 September, 2002
Equivalent citations: AIR2003KANT86, I(2003)DMC254, ILR2002KAR4734, AIR 2003 KARNATAKA 86, 2002 AIR - KANT. H. C. R. 3100, (2002) ILR (KANT) (3) 4734, (2003) 1 DMC 254, (2003) 2 MARRILJ 389, (2003) 1 RECCIVR 706, (2003) 1 ICC 257, (2003) 1 KCCR 48, (2003) 1 CIVLJ 356
Author: Tirath S. Thakur
Bench: Tirath S. Thakur, D.V. Shylendra Kumar
JUDGMENT Tirath S. Thakur, J.
1. This appeal by the wife calls in question the correctness of a Judgment and Decree passed by the Prl. Judge, Family Court, Bangalore in M. C. No. 419/1988 whereby the said Court has allowed the husband's petition Under Section 13(1)(ia) of the Hindu Marriage Act and dissolved the marriage between the parties by a decree of divorce.
2. The parties are Hindus by faith, they were married at Bangalore on 2-5-1985. Out of the wedlock, the couple had begotten a child who is presently living with the appellant. Differences having arisen between the couple, they have been living separately since 1988. M.C. No. 419/1988 was in the above background filed by the husband before the Family Court at Bangalore for dissolution of the marriage on the ground that the appellant wife treated the husband with cruelty. The petition enumerated the alleged acts of omission and commission which according to the husband constituted cruelty and entitled him to the relief prayed for. He inter alia alleged that after their honeymoon, when the couple returned to Bangalore, the wife started a quarrel with the petitioner on the ground that sufficient water was not stored in the house. The husband's version was that water supply during the relevant period was generally scant in Bangalore but instead of adjusting herself to the quantity available, the wife unnecessarily made a fuss over the same and continued quarrelling with the husband right past midnight. It was alleged that the husband had provided all conforts to the wife and used to give her the freedom to run the house. Even the aged mother of the husband who was living with them shifted to the house of her elder son in order to leave the parties to themselves. She was even advised to keep herself busy in some activity or the other during her leisure hours. The wife all the same continued her abnormal behavior and was in the habit of getting violent on the flimsiest of reasons. It was during this period of their matrimonial turbulence that the wife conceived which renewed the husband's hope that she would mend her ways once the responsibility and the joys of motherhood fell on her. The hope did not however come true for after the delivery of the child at Bombay, the wife returned to Bangalore without any behavioral change for the better in her. On the contrary, she according to the petitioner started using the child as a tool to inflict misery upon the husband. Of the various methods adopted by the wife to incite the husband, the one she used more than once was by threatening to kill herself so as to implicate him. The attempts of the husband to pacify her would increase her violence and make her more aggressive. She could according to the petitioner be brought back to normal behavior only if the husband out-shouted her. Often the husband had to leave the house and return home hours later to avoid such undersirable situations, She would even terrorize the child and abuse her. The child also suffered in the process of the bouts of violence and shouting that would ensue. The husband's further case was that something appeared pathologically wrong with her psyche. Even when the matter was brought to the notice of her parents, they showed little or no concern at all saying that things would work out by themselves. Psychiatric consultations advised by the husband was also brushed off by the wife and her parents. The conduct of the wife according to the averments made in the petition resulted in continuous physical and mental tension for the husband. The result was that the husband had developed a serious apprehension that she might harm the husband, herself or the child. The wife having left her matrimonial home in April, 1988 never to return had left no alternative to the husband but to file a petition for dissolution of the marriage on the ground of cruelty.
3. The wife appeared before the Family Court to file objections in which she refuted the allegations made by the husband. It was denied that she had created a scene on the day the couple returned from the honeymoon because of insufficiency of water at the home. According to the wife, the husband was aloof, unsociable and non-co operative towards the wife in all respects. She was not even allowed to talk to him freely ever since they got married. He would exhibit his dominant attitude without any reason in presence of all the members of the family. Even the husband's mother contributed to the tension between the couple and nourished the husband's ill feelings towards the wife. The objections further stated that the husband's mother was practicing what is described as 'madi' and freed the wife to go to her aunt's place one or two days before her menstrual period and come back after the fifth day bath, This made the wife a laughing stock in and around her aunt's place who would tease her by saying that she had come on french leave. The husband's mother would constantly complain about the wife and insist that the couple should not close their bed room door as she may require assistance on account of her old age and ill health. She would insist that the husband could have got more beautiful and younger girls for marriage and even when sufficient dowry in terms of various articles, gold, jewels etc., had been given, she was not satisfied with the same. The wife's further case was that she used to do all household work and even look after the young baby. Neither the petitioner nor his mother used to touch the baby. She also made allegations against the relatives of the husband who were accused of insulting her by asking her husband how his Bombay wife was. The behavior of the husband's brother was also described as indecent. The objections went on to state that the husband would never care for the wife except during the visits of his friends and his clients who would come to stay with them. The clients were according to the wife allowed to stay at home and have free access to their bedroom. They used to talk irrelevant things, and even puff cigarette smoke on her face in the kitchen. If she complained, the husband would turn serious and stop talking to her for months. To add insult to injury, the advice tendered to the husband by his elder brother was to kick and beat his wife from time to time and to make sure that the husband remained a terror for the wife. The allegation that the wife had gone away to Bombay on her own was denied and it was alleged that the wife and child had been sent away with a view to enable the husband to file a petition for divorce on the advice of his friends and close relatives. Suffice it to say that the allegations made in the petition by the husband were all denied and the wife's version about what happened in the matrimonial home set out in great detail. An allegation to the effect that the husband had developed friendship with one R. Madhavi, a divorcee working as a lecturer was also made. It was alleged that the husband had already married Madhavi and that the divorce petition was filed only to ensure that the wife and her child are removed from the scene so that they do not claim any share in the wealth acquired by him.
4. In support of his version, the husband stepped into the witness box apart from examining one other witness and placing reliance upon documents marked as Exhibit. P1 to P39. The appellant-wife did not however adduce any evidence. The Court framed the following three issues for consideration :
"1) Whether the petitioner proves that he was treated with cruelty by the respondent?
2) Whether the petitioner proves that the respondent was suffering continuously or intermittently from mental disorder of such a kind that the petitioner cannot be expected to live with the respondent?
3) Whether the petitioner is entitled for a decree of divorce?"
5. By the Judgment impugned in this appeal, the Court below held that the charge of cruelty levelled by the husband against the wife stood established. The Court has however rejected the version of the husband that the wife suffered from any mental disorder either continuously or intermittently. It has accordingly decreed the petition and dissolved the marriage between the parties aggrieved whereof the wife has appealed to this Court as already indicated above.
6. We have heard Learned Counsel for the parties and perused the records. The only question that falls for consideration is whether the husband made out a case for dissolution of marriage on the ground that appellant-wife had treated him with cruelty. That is because Learned Counsel for the respondent did not make any attempt to support the impugned Judgment on the ground that the wife suffered from any mental disorder. We shall therefore examine the material placed on record only from the point of view whether the same establishes the charge of cruelty levelled against the appellant.
7. That 'cruelty' can be both physical as also mental is clearly well established. The decisions of the Supreme Court in "Dastane v. Dastane", , "Shobha Rani v. Madhukar Reddi", and "V. Bhagat v. Mrs. Bhagat", have examined the meaning to be attributed to the term 'Cruelty' as a matrimonial ground for judicial separation or dissolution of marriage and the approach which the Courts dealing with matrimonial disputes have to adopt in determining such disputes. The broad meaning assigned to the term 'mental cruelty' is that the conduct of the other spouse ought to be such as would inflict mental pain and suffering upon the spouse seeking relief making it impossible for him/ her to live with the offending spouse. The mental cruelty must be of a nature that the parties cannot reasonably be expected to live together and the situation must be such that the parties cannot reasoably be asked to put up with such conduct and continue to live with the other party. What is equally important is that while arriving at a conclusion as to whether the conduct tantamounts to cruelty, the Court must keep in view the social status, educational level of the parties as also the society they move in. That is because what may amount to cruelty in one case may not be so in another. If it is a case of accusations and allegations, the Court must have regard to the context in which the same are made.
8. With the above introductory remarks, let us now examine the precise grounds on which the husband seeks to establish his charge of cruelty against the wife. It was argued by the Learned Counsel for the respondent-husband that the charge stood proved on account of three distinct incidents which according to him sufficiently made out a case for dissolution of the marriage. The first of these incidents upon which the husband places reliance and to which our attention was drawn by the Learned Counsel appearing for him is the quarrel that allegedly started between the couple shortly after their return from the honeymoon. The genesis of the quarrel it appears lay in the shortage of water in the matrimonial home of the couple. According to the husband, the wife was unreasonable in her attitude in making a fuss over a matter so trivial as shortage of water which was not because of any neglect on the part of the husband but on account of the genuine scarcity which Bangalore was facing during the relevant period. It was submitted that the wife had no justification to make an issue out of shortage of water and continue quarrelling over the same. The incident is no doubt disputed by the appellant-wife according to whom the question of scarcity of water being made an issue so soon after the couple returning from their honeymoon and settling down in Bangalore did not arise. Having given our anxious consideration to the submissions made at the Bar and the evidence on record, we are of the opinion that the so-called quarrel between the couple over the scarcity of water could hardly be made a basis for dissolution of the marriage in a petition filed three years after the incident. Although there is no independent corroboration to the statement made by the husband that there was a real quarrel between the couple over shortage of water, yet even if one were to assume that some unpleasantness had taken place on account of the scarcity of water in the house, the same could not be called in aid to provide a ground for dissolution of the wedlock years later. The alleged incident notwithstanding the couple had admittedly continued cohabitation. The same could and ought to be ignored as an ordinary wear and tear of marital life especially when the matter could hardly be termed or viewed as a deliberate conduct intended to cause mental torture or harassment to the husband so as to give him the cause of action to seek dissolution of the marriage.
9. The second incident to which our attention was drawn by the Learned Counsel for the husband was that on one of the occasions when the husband asked for a cup of coffee, the wife retorted that she need not be told about her duties as a wife. This according to the husband caused mental anguish to him. Significantly, there is no allegation made in the divorce petition to that effect. The incident is narrated by the husband only in his deposition before the Court. If the incident had actually taken place and had caused any mental anguish to the husband so as to be made a basis for a decree for dissolution, there is no reason why the same ought not to have been accurately described in the petition filed before the Court below. A party cannot make out a case on the basis of evidence for which he /she has laid no foundation in the pleadings. It is fairly well settled that no amount of evidence can prove a case for a party who has not set up the same in his/her pleadings. That apart, the incident does not prove a persistent course of conduct on the part of the wife so as to make it difficult for the husband to live with the wife. There is even otherwise, no corroboration forthcoming to support the allegation made by the husband. Much cannot therefore be made out of the incident nor can the same by itself support a plea for dissolution of the wedlock.
10. The only other aspect in regard to which Learned Counsel appearing for the respondent made submissions at length are those relating to the alleged threats given by the appellant-wife to the husband that she will commit suicide and implicate him. It was argued that the repeated threats given by the wife to take her own life caused mental anguish to the husband. These threats it was urged were made once when the appellant had picked up a knife to stab herself and on two other occasions without the help of any such weapon or instrument. Threats to take her own life by consuming sleeping pills were also allegedly given by the wife. Relying upon the decision of the Supreme Court in 'Dastane v. Dastane'. , it was argued that the above conduct of the wife would tantamount to treating the husband with cruelty so as to entitle him to the decree for dissolution prayed for.
11. On behalf of the appellant-wife it was per contra argued that the allegations regarding threat and suicide with or without the use of pills or other weapons like knives had been refuted by the wife not only in the objections but also in her deposition before the Court. It was submitted that no incident like the one alleged by the husband had taken place nor was the testimony of the husband supported by any other corroborating evidence. It was also contended that the alleged incident had not been properly set out in the petition nor were any particulars regarding the same given and that any threats given by a spouse out of his / her desperation on account of the conduct of the other spouse cannot by itself constitute cruelty.
12. The husband has in Para-8 of his petition made the following allegation in so far as the alleged threats to commit suicide is concerned :
"One of the favourite methods adopted by the respondent to incite the petitioner was to show a knife and say that she would kill herself and by doing so she would implicate him; if the petitioner tried to pacify her she would become more violent and aggressive. The only way she could be brought to normalcy was to be outshouted."
13. It is evident that the allegation is bereft of any particulars as regards the date on which the alleged incidents had taken place. It is also evident that according to the case set up by the husband, the threatened suicide was with the show of a knife. The petition does not contain any averments to the effect that any attempt was made or any threat given by the wife to commit suicide by consuming pills. The husband's version as given in his deposition that the wife had threatened to commit suicide by, consuming sleeping pills is therefore beyond the pleading on that point. That apart while according to the petition the alleged threats to commit suicide were by the show of a knife the deposition of the husband suggests as though it was only on one occasion that the wife had picked up a knife to take her own life. The other threats were even according to the statement made by the husband without the show of any knife or other weapon. It is common ground that the wife had at no stage hurt herself in any manner whatsoever in the alleged attempt to take her own life. The pleadings on the contrary show that the alleged threat to take her own life was a part of a quarrel in which the parties may have been shouting at each other. Even according to the husband's own version, he used to out-shout the wife on such occasions. If that be so, it is difficult to see how anything said in the heat of the moment, when both the spouses are quarrelling with each other can possibly be relied upon by the husband to argue that the wife had crossed the limits of tolearable conduct by threatening to kill herself. The least that can be said is that unless the entire genesis of the quarrel in the course of which one of the spouses holds out a threat to take his or her life is placed before the Court, the very fact that some threat in the course of a quarrel is held out cannot be viewed in isolation or construed as mental cruelty to the other spouse. It is not difficult to conceive of situations where the spouse which is at the receiving end of an intolerable, aggressive and obnoxious conduct of the other spouse threatens to commit suicide out of desperation. Any such threat in such cases would be the result of what the spouse suffers at the hands of the other party and not because the spouse intends to mentally agonize or torture the other party by extending such threats. Suffice it to say that a distinction shall have to be borne in mind between cases where a spouse without any provocation and for the flimsiest of reasons persistently keeps threatening the commission of suicide on the one hand and cases in which such threats represent the desperation of the suffering spouse who may find it difficult to bear any further torture at the lands of the offending spouse on the other. If threats to commit suicide given in the latter situations are also treated as constituting cruelty, it may tantamount to permitting the offending spouse to take the benefit of his/her own fault by subjecting the other spouse to physical or mental torture and misery and provoking a statement that he /she would prefer to die rather than to suffer any more. To state it differently unless the threats given by a spouse to take his/her life are shown to have been given without any provocation persistently and for the flimsiest of the reasons with or without the intention to harass or mentally torture the other party, the mere fact that a threat was extended would not in itself constitute cruelty. The Court shall have in each case to examine the incident in which the alleged threat to commit suicide was extended and determine whether or not it was provoked by the conduct of the spouse who seeks to make such threats a basis for getting relief from the Court. It is in that view difficult to state as a broad principle of law that wherever the spouse extends to threat his/her life the same would without any further proof constitute mental cruelty so as to entitle the other spouse to a decree for dissolution of marriage.
14. In 'Dastane v. Dastane', , the conduct of the wife which formed a basis for the Court to dissolve the marriage was persistent. The wife had threatened to take her own life, to set the house' on fire, to make the husband lose his job and have the matter published in the newspapers, abused and insulted the husband and his parents, tore her Mangal Sutra, locked the husband out when he is due to return from the office, rubbed chillies powder on the tongue of an infant child, beat the child merecilessly while in high fever and nagged the husband the whole night by sitting by his bedside with lights on. It was this persistent behavior of the wife which the Court considered grossly aggressive tantamounting to cruelty within the meaning of the Act. That is not however the position in the instant case, apart from the fact that the deposition of the husband supporting the theory of threats allegedly given by the wife remain uncorroborated. In the circumstances, therefore, we do not consider this to be a case where the conduct of the wife could be said to have been such as would constitute cruelty towards the husband.
15. In the light of what we have indicated above, we do not consider it necessary to dilate on the version of the wife that it was the husband who had betrayed her confidence and made her life miserable. It is also in that view unnecessary for us to examine whether the wife's version that she had suffered serious humiliation and mental torture on account of her being asked to leave her matrimonial home every month for a period of five days during her monthly cycle since her monter-in-law was following 'madi' who did not allow her to stay at home during her monthly cycle let alone to enter the kitchen. So also the allegation of the wife that the husband's friends and clients had free access to their bedroom and would even occasionally take advantage of her by blowing cigarette smoke into her fact need not be commented upon. It is indeed regrettable that the husband's friends who are said to have been a source of discomfiture of the wife by reason of their frequent visits to the house of the parties and by staying on till late hours included none other than the lawyers who appeared for the husband in the course of these proceedings before the Court below as also in this Court. We do not consider it necessary to pronounce upon the veracity of the rival versions urged before us in this regard. That is because the husband's case for grant of divorce had to succeed on its own strength. All that we need say is that we consider it highly regrettable that the names of the Members of the Bar who are supposed to be independent Officers of the Court committed to lending assistance for discovering the truth, should have got dragged into the maze of allegations in a matrimonial dispute. Beyond that it is neither necessary nor proper for us to make any observation.
16. In the result, this appeal is allowed. We set aside the judgment and decree of the Court below and dismiss the Petition Under Section 131(ia) & (ib) Parties to bear their own costs.