Punjab-Haryana High Court
Santosh Kumar Madhele vs Sangeeta Madhele on 4 October, 2013
Author: Jaspal Singh
Bench: Ajay Kumar Mittal, Jaspal Singh
FAO No.2219 of 2013 (O&M) -1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
FAO No.2219 of 2013 (O&M)
Date of Decision:04.10.2013
Santosh Kumar Madhele
... Appellant
Versus
Sangeeta Madhele
... Respondent
CORAM : HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE JASPAL SINGH
Present: Mr. Hitesh Ghai, Advocate for the appellant.
Ms. Neeru Bansal, Advocate for the respondent.
1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest?
Jaspal Singh, J.
1. The present appeal has been filed by the husband-appellant against judgment and decree dated December 7, 2012 passed by the learned District Judge, Family Court, Faridabad, whereby his petition under Section 13 (1) (ia) of the Hindu Marriage Act 1955 (for short "the Act") as amended upto date, for dissolution of marriage by way of a decree of divorce, was dismissed.
2. Briefly stated the facts contained in the petition are that the marriage of the petitioner was solemnized with the respondent on November 21, 1999 according to Hindu rites and ceremonies. They were blessed with two sons namely Jayant Kumar and Master Karan Kumar who are minor and in care and custody of the respondent. Allegations unfolded by the petitioner are that respondent-wife used to humiliate him in the presence of relatives, friends and neighbourers and also used to pick up quarrel on trivial matters. She was not performing house-hold chores during her stay Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2013 (O&M) -2- with him and even stopped to cook meals and to serve him. Even she avoided sexual relations with him which caused mental and physical cruelty. The respondent has deserted the petitioner due to regular interference and instigation by her parents. Though, he made lot of efforts to make her understand yet she remained adament and aggressive. In the month of April 2007, she left the matrimonial home without his permission and knowledge alongwith both the sons. It has further been alleged by him that on October 22, 2007, she tried to hit him but he managed to escape and reached in the Police Station. The matter was patched up and at that time, she agreed to receive Rs.1000/- per month from him as maintenance allowance which is regularly being paid by him to her. Even, she initiated other litigation including a petition under Section 125 of the Code of Criminal Procedure and in those proceedings, he is paying Rs.1000/- per month.
3. Upon notice, the respondent contested the petition. She filed the written statement denying all the allegations levelled by the petitioner and submitted that she faced cruelties from time to time and ultimately, she was shunted out from her matrimonial home in wearing apparels. She was ready and is still ready to live with the petitioner but he does not want to keep and maintain her without any reasonable cause and rhyme. She further alleged that the petitioner was a drunkard man and a womanizer. Even he was caught red handed by her with one lady in compromising position in the matrimonial home regarding which she lodged a complaint before SHO, Police Station NIT Faridabad. All the allegations levelled by the petitioner against her were strongly denied by her. Rather, she raised counter allegations against petitioner-husband that as and when the children fell ill Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2013 (O&M) -3- and the money was demanded for their treatment, he clearly used to refuse to pay any money. He used to spend money in drinking, gambling and other activities. It has further been alleged by her that she was given beatings by the petitioner but she did not take any action with the hope that everything would be all right with the passage of time. He never discharged his husbandry duties either towards her or the minor children. She is ready for natural co-habitation with him and is also ready to lead peaceful life with him. She, accordingly, prayed for dismissal of the divorce petition.
4. On going through the pleadings of the parties, following issues were culled out in order to adjudicate upon the matter in controversy:
"1. Whether the respondent has treated the petitioner with cruelty, as alleged? OPP
2. Relief."
5. Both the parties were afforded ample opportunity to adduce and produce their evidence in support of their respective pleadings and they led oral as well as documentary evidence. In order to substantiate his case, the petitioner himself stepped into the witness box as PW-1 and examined Hanman Sahai Meena as PW-2, Anil Kashyap as PW-3 and thereafter, closed his evidence.
6. To rebut the evidence adduced by the petitioner-husband, respondent examined herself as RW-1 and thereafter, she closed her evidence.
7. After hearing the learned counsel for the parties and appraisal of the evidence adduced by the parties in support of their respective pleadings, issue No.1 was decided in favour of the respondent-wife and against the petitioner-husband holding that the ground of cruelty as well as desertion stood unproved. It was observed that the respondent was subjected Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2013 (O&M) -4- to cruelty in the matrimonial home but still she expressed her desire to reside with the appellant-petitioner. Resultantly, the petition was dismissed.
8. Feeling disheartened, the appellant-husband preferred the instant appeal. Notice of motion was issued and the respondent-wife was represented by Ms. Neeru Bansal, Advocate.
9. We have heard the learned counsel for the parties at length and have perused the case file minutely.
10. While assailing the findings returned by the learned lower Court with regard to cruelty as well as the impugned judgment and decree dated December 7, 2012, it has been vehemently argued by the learned counsel for the appellant that the misinterpretation and mis-appreciation of the evidence brought on record by the appellant-petitioner has resulted into miscarriage of justice. The cogent, convincing and trustworthy evidence adduced by the appellant-petitioner before the learned lower Court has been discarded and disbelieved without assigning plausible reason by the learned lower Court. The marriage of the parties was solemnized on November 21, 1999 according to Hindu rites and ceremonies and two sons were born out of their wedlock. In fact, after the marriage when the respondent-wife was brought at her matrimonial home, she was given very warm welcome, love and affection by the petitioner and his family members but unfortunately, her conduct and behaviour was in-different and abnormal. It was a simple marriage and no demand of dowry was put forth by the petitioner-appellant at the time of marriage and even thereafter and whatever was given, it was as per wish and desire of the parents of the respondent. During the initial days of his marriage, everything was quite well but after some time, the behaviour of the respondent became abnormal and in different. She Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2013 (O&M) -5- frequently used to abuse him in the presence of his parents and neighbourers which caused harassment and cruelty to him. Even she used to pick-up quarrels on trivial issues not only with her husband/petitioner but also with other family members. Due to the misconduct and misbehaviour of the respondent-wife, the atmosphere at home always remained tense. Even she did not cook meals and serve the petitioner-appellant and also denied sexual relationship. It is well settled that the denial of sexual relationship is not only a physical cruelty but mental as well. The in-laws of the appellant- petitioner used to frequently visit, interfere and instigate the respondent- wife which also caused lot of harassment to the appellant. She also used to extend threats to involve the appellant in false criminal cases. Even she also became so violent and aggressive that she started manhandling and used to utter vulgar and abusive language. Due to such acts of the respondent-wife, the appellant-petitioner suffered a great humiliation, mental and physical torture. The version of the petitioner-appellant who appeared in the witness box as PW-1 also stands corroborated by PW-2-Hanman Sahai Meena- Assistant posted in the office where the appellant-petitioner is employed and his friend PW-3-Anil Kashyap. So, all the circumstances coupled with each other constitute cruelty. As such, the findings returned by the learned lower Court are absolutely against the evidence available on file and the settled cannons of law and the same are not sustainable. The impugned judgment and decree is liable to be set aside by way of acceptance of the instant appeal and the divorce petition deserves to be accepted.
11. These arguments have been controverted by learned counsel for the respondent that there is no illegality, infirmity or impropriety in the impugned judgment as well as the findings recorded by the learned lower Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2013 (O&M) -6- Court on the issue of cruelty. Rather, the same are absolutely in consonance with the evidence available on file. Learned counsel for the respondent has supported the impugned judgment and decree submitting that the same is elaborative and well reasoned. She, accordingly, prayed for the dismissal of the appeal with costs.
12. We have given an anxious thought to the aforesaid submissions made by the learned counsel for the parties besides going through the impugned judgment.
13. Under Section 13(1)(i-a) of the Act, on a petition preferred either by the husband or the wife, the marriage could be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty. "Cruelty" is not defined in the Act. The instances of cruelty depend upon case to case and no straight jacket formula can be laid.
14. In case of "Samar Ghosh v. Jaya Ghosh; 2007(4) SCC 511", Hon'ble the Supreme Court has observed that the prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking certain factors in consideration. Para 70 is relevant which is reproduced and it runs as under:
"70. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instance 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 Thakral Rajeev 2013.12.12 10:27 come within the broad parameters of mental cruelty.I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2013 (O&M) -7-
(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 spuse 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, sustained and weighty.
(vii) Sustained reprehensible conduct, studied neglect in difference 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 thant 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 Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2013 (O&M) -8- that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party and longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent of knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent of 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. "Applying the said principles to the facts of the case, were are of the opinion that the respondent has not made out a case for both mental and physical cruelty."
15. Now in the light of the aforesaid observations, it is to be seen whether the appellant-petitioner is successful to make out a case or circumstances which constitute cruelty. The circumstances or the allegations levelled by the appellant-petitioner have been reflected in para 10 of this judgment and it would be of no use to reproduce the same. There are no serious or specific allegations which are otherwise vague, indefinite and general. No date, month or year of any of the alleged incident has been Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2013 (O&M) -9- unfolded by the appellant-petitioner either in the pleadings or in the statement. Rather, during his cross examination, it has been stated by the petitioner-appellant that the divorce petition was filed by him with an intention to concile with the respondent. During the proceedings of settlement, two conditions were put forth by the respondent-wife that there should not be any restriction or curtailment on her independence and that he would pay Rs.5000/- per month as maintenance but even he was not ready for the same. Such conditions cannot be said to be harsh. Rather, in normal course, a woman requires maintenance and independence. Moreover, the respondent-wife is willing to reside with the appellant-petitioner and to discharge the matrimonial obligations but it was the appellant-petitioner who refused to it. The appellant-petitioner while appearing in the witness box as PW-1 has also categorically stated that he did not want to keep the respondent-wife with him under any condition. Act attributed to the respondent-wife by the appellant-petitioner which are otherwise not proved can only be termed to be normal wear and tear of marriage and do not amount to cruelty. It is well settled that mere trivial irritations quarrels, lack of affection, frequent rudeness of language and petulance of manner do not amount to cruelty and cannot be made basis for dissolution of marriage.
16. In this context, the judgment of Madras High Court in the case of R. Sudha v. V. Senthil; 2010 (3) MLJ 91 can be referred to. Similar observation was made in cases of Bhavna Sharma v. Devendra Kumar Sharma; 2008(1) R.C.R. (Civil) 893; Chaitali Dey v. Shri Badal Kumar Dey; 2005 AIR (Jharkhand) 83 and Arunjyoti Dutta v. Rupali Buragohain; 2012(7) R.C.R. (Civil) 2671.
17. Apparently from the evidence available on record, it appears Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.2219 of 2013 (O&M) -10- that there were some quarrels between the appellant-husband and respondent-wife coupled with some allegations and counter allegations between themselves which are not more than normal wear and tear of family life and are not sufficient to grant a decree of divorce. The learned lower Court has rightly concluded that the appellant-petitioner has failed to prove that he was treated with cruelty by the respondent wife.
18. In the light of the above discussion, we find no ground for disagreeing with the decision of the learned lower Court. Accordingly, the judgment and decree of the learned lower Court dated December 7, 2012 is affirmed and the appeal is dismissed but with no order as to costs.
(JASPAL SINGH) JUDGE (AJAY KUMAR MITTAL) JUDGE 04.10.2013 rajeev Thakral Rajeev 2013.12.12 10:27 I attest to the accuracy and integrity of this document High Court Chandigarh