Kapil Sharma vs Babita Sharma on 7 December, 2015

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Himachal Pradesh High Court

Kapil Sharma vs Babita Sharma on 7 December, 2015

Bench: Rajiv Sharma

            IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                           FAO(HMA) No. 625/2008
                                             Reserved on: 4.12.2015
                                              Decided on. 7.12.2015




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    _________________________________________________________________





    Kapil Sharma                                           ..Appellant

                                                 Versus





    Babita Sharma                                   ..........Respondent
    _________________________________________________________________
    Coram:




                                                        of
    Hon'ble Mr. Justice Rajiv Sharma, Judge.

    Whether approved for reporting? 1 yes.

    For the Appellant
                            rt             :      Mr. Rahul Verma, vice Counsel.

    For the Respondent       :    Mr. Balbir Singh, vice Counsel.

    _________________________________________________________________

    Rajiv Sharma, Judge:

This appeal has been instituted against Judgment dated 20.10.2008 rendered by learned Additional District Judge, Fast Track Court, Chamba, District Chamba, Himachal Pradesh in HMA No. 20/08/07.

2. "Key facts" necessary for the adjudication of the present appeal are that the appellant-petitioner (hereinafter referred to as 'appellant'' for convenience sake) filed a petition under Section 13 of the Hindu Marriage Act against the respondent for dissolution of marriage on the grounds of cruelty and desertion. Marriage between the parties was solemnised on 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes.

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9.8.2002 according to the Hindu rites. Parties lived together as husband-wife. Respondent from the first day started compelling the appellant to handover entire salary to her and to live .

separately from the parents of appellant. Appellant refused to do.

Respondent started insulting and mis-behaving with him.

Respondent, in order to create panic, had locked herself in the room and did not open the same despite repeated requests. She of told the appellant to leave her at her parents' house. A case under Section 498-A IPC was registered against the appellant and his family members for demanding a sum of `2.50 Lakh to purchase rt car. Complaint was filed after a period of one year. Appellant and his family members had to obtain anticipatory bail. Learned Chief Judicial Magistrate acquitted them on 25.11.2006. She has not allowed the appellant to perform sexual intercourse deliberately and intentionally just to cause mental torture to him. She remained indifferent towards him. Family members of the respondent did not inform him about the delivery. She used to pick up quarrels with him and his family members. Respondent is an M.A. and B.Ed., whereas appellant is simply a JBT Teacher.

Father of the appellant was working as Peon, whereas, father of the respondent had retired as Superintendent from NHPC. She has deserted him without there being any reasonable cause for more than four years. He has not condoned the acts of cruelty and desertion committed by respondent.

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3. Petition was contested by the respondent. She has not deserted the appellant. She has never treated the appellant with cruelty. Appellant and his family members started harassing her .

for bringing insufficient dowry. She has been deprived of food and clothing. Appellant used to beat her and used filthy language.

Appellant left her at Bus Stand Kiyani in June 2003 and threatened her to arrange for a sum of `2.50 Lakh from her of parents. He wanted to purchase a car. Appellant never visited her at the time of delivery.

4. Issues were framed by the learned Additional District rt Judge on 6.12.2007. He dismissed the petition on 20.10.2008.

Hence, this appeal.

5. Mr. Rahul Verma, Advocate, has vehemently argued that the acts of respondent have caused mental and physical cruelty to his client. She has deserted him without any reasonable cause.

6. Mr. Balbir Singh, Advocate, has supported judgment dated 20.10.2008.

7. I have heard the learned counsel for the parties and also gone through the record carefully.

8. Smt. Naramdeshwari PW-1 has proved the copy of FIR No. 50/04 dated 26.2.2004 under Sections 498-A and 506 IPC registered by Police Station Sadar, District Chamba, Himachal Pradesh.

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9. According to HC Ramesh Kumar, PW-2 chargesheet was put up in the Court on 13.4.2004 on the basis of FIR No. 50/04 dated 26.2.2004.

10. Anil Kumar, Criminal Ahlmad PW-3 has proved statement of Babita Ext. PW-3/A and Jagdish Sharma, Ext. PW-

3/B recorded in the Court of Chief Judicial Magistrate, Chamba in case titled State versus Kapil Sharma.

11. Appellant has appeared as PW-4. He has led his evidence by way of filing an affidavit Ext. PW-4/A. In his cross-

examination he testified that respondent used to quarrel with him.

rt He has further specifically admitted that he had left the respondent at her parents' house at Kiyani in June 2003. He also admitted that he has not met the respondent after June 2003 and did not meet her in the hospital. He has proved on record the copy of judgment dated 25.11.2006 rendered by Chief Judicial Magistrate, Chamba vide Ext. PA.

12. Respondent has appeared as RW-1. She has led her evidence by filing affidavit Ext. RW-1/A. She was living separately from the appellant for the last five years. She has denied the suggestion that she has treated the appellant with cruelty.

13. Jagdish RW-2 has led his evidence by filing affidavit Ext. RW-2/A. He has supported the version of RW-1.

14. Manoj Kumar RW-3 has led his evidence by filing affidavit Ext. RW-3/A. According to him, appellant left the ::: Downloaded on - 15/04/2017 19:26:56 :::HCHP 5 respondent at Bus Stand Kiyani. Respondent gave birth to still twins. He has gone to the house of the appellant to inform about the delivery. However, neither the appellant nor any of his family .

members came to attend the burial.

15. The marriage between the parties was solemnised on 9.8.2002. They have remained together till June 2003. Allegations with respect to mental and physical cruelty levelled by appellant of are vague and sketchy. It is the appellant who has left the respondent at her parents' place. He has never visited her again.

He has not even gone to see his wife at the time of delivery. He rt has not even attended the burial of the twins though informed specifically by RW-3 Manoj Kumar. Case of the appellant was that the respondent used to misbehave with him and his family members. Appellant has not produced any of his family members as witnesses in the case. Statement made by the appellant that the respondent used to misbehave with him and his family members is a self-serving statement. He has not even examined any neighbourer to substantiate the allegations made in the petition against the respondent. Appellant has also not produced any witness from neighbourhood to prove that respondent locked herself in the room and threatened to commit suicide. Mere request by the respondent to live separately from his parents will not amount to cruelty. It is true that the FIR was registered against appellant and his family member. They were acquitted on ::: Downloaded on - 15/04/2017 19:26:56 :::HCHP 6 25.11.2006 vide Ext. PA by the Chief Judicial Magistrate.

Appellant has not led any evidence to prove that complaint filed against them was in any manner, false. Respondent, in her .

affidavit has categorically denied that false report was lodged against the members of the appellant's family. Allegations leveled by the appellant against respondent that she did not allow appellant to perform sexual intercourse, are false. However, fact of of the matter is that the respondent gave birth to twins. They have lived together upto June 2003. Appellant can not be permitted to take advantage of his own wrongs. It is appellant who has deserted rt the respondent. Appellant has also failed to prove that the respondent after solemnisation of marriage has treated him with physical and mental cruelty.

16. Their Lordships of the Hon'ble Supreme Court in case Shobha Rani v. Madhukar Reddi reported in AIR 1988 SC 121 have explained the term "cruelty" as under:

"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 elation 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 ::: Downloaded on - 15/04/2017 19:26:56 :::HCHP 7 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 of 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.

rt It will be necessary to bear there has been marked change in the life in mind that 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) ::: Downloaded on - 15/04/2017 19:26:56 :::HCHP 8 "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."

17. Their Lordships of the Hon'ble Supreme Court in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511, of have enumerated some instances of human behaviour, which may be important in dealing with the cases of mental cruelty, as rt 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.

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.

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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 of aforementioned factors in consideration.

101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate rt 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.

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(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 of 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.

(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 ::: Downloaded on - 15/04/2017 19:26:56 :::HCHP 11 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 of may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there rtbeing any physical amount to mental cruelty.

incapacity or valid reason may

(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.

18. Their Lordships of the Hon'ble Supreme Court in Manisha Tyagi vs. Deepak Kumar reported in 2010(1) ::: Downloaded on - 15/04/2017 19:26:56 :::HCHP 12 Divorce & Matrimonial Cases 451, have explained the term 'cruelty' as under:

"24. This is no longer the required standard. Now it .

would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonable be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that would be harmful or injurious to continue the cohabitation with of the other spouse. Therefore, to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment cessation of marital rtintercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However, in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce."

19. Their Lordships of the Hon'ble Supreme Court in Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC 476, have explained the term 'cruelty' as under:

"19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it ma be just an attitude or ::: Downloaded on - 15/04/2017 19:26:56 :::HCHP 13 an approach. Silence in some situations may amount to cruelty.

20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be .

closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial case can be of infinite variety - it may be subtle or even brutal and may be by gestures and word. That of possible explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial case are never closed.

21. This Court is reminded of what was said by Lord rt Reid in Gollins v. Gollins about judging cruelty in matrimonial cases. The pertinent observations are (AC p.660) ".. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."

22. " About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi at AIR p. 123, para 5 of the report: (SCC p.108, para 5) "5. It will be necessary to bear in mind that there has been (a) 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 ::: Downloaded on - 15/04/2017 19:26:56 :::HCHP 14 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 stigmatized 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 of 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."

20. In view of the discussion and analysis made herein above, there is no merit in the appeal and the same is dismissed.

Pending application(s), if any, also stand disposed of. No costs.

(Rajiv Sharma) Judge December 7, 2015 (vikrant) ::: Downloaded on - 15/04/2017 19:26:56 :::HCHP

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