Patna High Court
Krishna Murari Sharan vs Pushpagandha Sinha on 18 January, 2012
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh, Shivaji Pandey
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.672 of 2009
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Pushpagandha Sinha, Daughter of Sri Ram Laulin, resident of Anisabad, opposite
Shalimar Cold Storage, PS Gardanibagh, Town & District Patna . .... Appellant
Versus
Krishna Murari Sharan son of Sri Kamta Prasad, resident of Subash Nagar, PS
Kotwali, Munger District Munger .... .... Respondent
With
Miscellaneous Appeal No. 677 of 2009
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Krishna Murari Sharan son of Sri Kamta Prasad, resident of Subash Nagar, PS
Kotwali, Munger District Munger .... .... Appellant
Versus
Pushpagandha Sinha @ Sharan Daughter of Late Ram Laulin Prasad, resident of
Anisabad, opposite Shalimar Cold Storage, PS Gardanibagh, Town & District
Patna ... .... Respondent
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Appearance:
For the Appellant : Mr. Rajiv Kumar Verma, Sr. advocate
Meeta Sinha, advocate
Mr. Rajneesh, advocate
For the Respondent: Ms. Sushmita Mishra, advocate
Mr. A. B. Sharan, advocate
Mr. Surya Narayan Sah, advocate
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CORAM: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH
And
HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH) Both the appeals arise out of same judgement and order of the Additional Principal Judge, Family Court, Patna dated 2-12-2006 in Title Suit (Matrimonial) no. 37/1998. Since the application for divorce u/s 13 of the 2 Hindu Marriage Act preferred by the husband Krishna Murari Sharan was allowed, the main appeal bearing M.A. no. 672/2009 is by the wife Pushpagandha Sinha. The other matter is by way of cross appeal by the husband against the part of the judgement granting custody of minor son to the wife till the child attains the age of 15 years and alimony of Rs. 5,000/- per month for the wife and Rs. 2,000/- per month for the child.
2. Earlier both the appeals were heard and were dismissed by judgement and order dated 16-3-2010. That order was summary in nature passed at the stage of Order 41 Rule 11 of the Civil Procedure Code and the view for dismissing the appeals was largely on account of failure of efforts for amicable settlement of dispute between the spouses and materials which showed that the marriage had failed irrevocably. That order was challenged by the wife before the Apex Court through Civil Appeal nos. 38073- 74/ 2011. By order dated 2-5-2011 the appeals were allowed, the judgement of this Court passed earlier on 16-3-2010 was set aside and the matter was remitted to this court for fresh disposal of appeal filed by the 3 appellant, that is, M.A. no. 672/2009. The observations of the Supreme Court in order dated 2-5-2011 require this court to hear that appeal like a First Appeal and decide the matter after examining the pleadings and evidence of the parties and after recording detailed reasons for approving or disapproving the findings of the Family Court on the issues framed by it.
3. The Supreme Court enhanced the alimony from Rs. 7,000/- to 15,000/- per month towards maintenance of the wife and son w.e.f. 1-5-2011 and hence it directed only for fresh disposal of the appeal filed by the wife. In that view of the matter, M.A. no. 677/2009 preferred by the husband by way of cross appeal will be deemed to have been disposed of finally by the judgement and order dated 2-5-2011 of the Apex Court noticed earlier.
4. So far as main appeal bearing M.A. no. 672 of 2009 is concerned, it will be relevant first to notice that the decree of divorce was granted by the Family Court on the prayer made by the respondent husband on the ground of mental torture and cruelty. In paragraph 2 of the 4 judgement under appeal the learned Additional Principal Judge, Family Court, Patna has noted the case of the respondent husband. The same is recapitulated for the purpose of this appeal.
5. The marriage was solemnized as per Hindu rights and customs on 19-5-1996 at Patna where the father of the appellant, then a Bank employee, was residing. The respondent is in judicial service in Bihar and at the time of marriage he was posted as Judicial Magistrate at Tenughat from where he was transferred to Samastipur in April, 1997. His father, a resident of Munger in Bihar, as per plaint filed in the year 1998, was aged about 83 years and mother was 75 years old. They were suffering with hyper tension, cardiac disorder and had grown weak and incapacitated due to old age and required care and help. He belongs to a joint family consisting of seven brothers and three sisters. The brothers were posted outside Munger and used to come there with their family quite often invariably during festivals and long holidays. The father of the wife at the relevant time was an officer in State Bank of India, Patna. He has three daughters, the appellant is eldest and 5 the two others were also of marriageable age. He also has three sons. Eldest of them was employed in a medical firm at Delhi. The other two were then unemployed. After marriage the wife came to respondent‟s house at Munger on 20-5-1996. After nine days she returned to her Naihar, as per customs with her younger brother. She again came back to Munger in middle of June, 1996 and stayed there for about two months leading a normal and happy life with the husband and his family members. She returned to Munger in November, 1996 and went with the husband to Tenughat in January, 1997. All through this period their life was happy. In the 1st week of February, 1997 the mother and brother of appellant visited Tenughat. The respondent found them talking for hours and at one occasion he overheard appellant‟s mother demanding some money for the marriage of her second daughter to which the appellant agreed. Thereafter the appellant‟s mother and brother exerted pressure on the respondent to hand over his entire salary to the appellant every month and not to go to Munger during holidays but to go to his Sasural. They pressurized him to go to club and cinema 6 instead of spending time at home and in studies. They again came to respondent‟s house at Tenughat in 1st week of March 1997 and again exerted pressure on the respondent to do "Pairvi" for the appointment of appellant‟s brother in Civil Court. On respondent‟s refusal they were infuriated and refuted him for acting as an idealist. The mother of the appellant made several comments and such taunts were relished by the appellant resulting in humiliation of the respondent. The surrender of the appellant to the dictates of her mother marred the happy conjugal life of the respondent.
6. Further case of the respondent/ applicant is that during Holi festival he with his wife who was in family way came to Munger in March, 1997. In the last week of March, 1997 the eldest brother of the appellant, Pritam Kumar Sinha came to Munger. He also humiliated the respondent in presence of his wife and younger brothers by dubbing him, amongst others, as "Kuan ka Medhak" and "Thappamar Officer". His wife, instead of opposing her brother took delight in such humiliation of the respondent causing extreme mental pain and agony to 7 him. The appellant was cared for at Munger but on account of repeated requests of her mother and on account of availability of better medical facilities during pregnancy, she went to her Naihar at Patna in June 1997 with her younger brother Sri Prafull Kumar Sinha. A male child was born on 24-11-1997. During all these times the respondent used to send money to his wife regularly and also gave her money when he personally visited her at Patna but still her parents came to his residence at Samastipur for demanding more money which he always gave.
7. It is further case of the plaintiff/ respondent herein that his joy and happiness on account of birth of a son was short lived because after the birth, the evil designs of appellant, her parents and brothers begun to surface systematically in a planned manner. The "Chatthi" ceremony of the newly born son was postponed inspite of several requests from the respondent and his parents. He visited the appellant and her parents during Xmas holidays and December, 1997 and pressed for performing the "Chatthi" of his son and also for "Roksadi" of the 8 appellant and son. He was shocked on being confronted with a demand of Rs. 50,000/- from the parents of the appellant for marriage of their second daughter and to hand over his entire salary to the appellant every month or else there would be no "Chatthi" or "Roksadi". Such demand and denial caused mental pain and agony to the respondent. He again went to bring back the appellant on 12-1-1998 along with his younger brother but the parents of the appellant with her connivance harshly told the respondent that they would not allow him even to touch the child unless the demands were met. Inspite of some heated arguments they did not yield. In the course of arguments their oblique motive became clear when they stated that the child would be kept and brought up at their place so that the respondent would be compelled to live at their place as "Ghar Jamai". The appellant, on that account, refused to sleep with the husband causing mental agony and pain. On 13-1-1998 while returning, the respondent again requested the appellant to accompany him to Samastipur where he was posted but she refused and stated that she would do whatever her mother, father 9 and brother would ask her to do and would stay with them at her Naihar only. The decision of the appellant to live and settle at her Naihar in disregard of her matrimonial duties and obligations caused great mental tension to the appellant. Deprivation of company of the newly born son also amounted to gravest form of cruelty against the respondent. The appellant‟s decision not to come to Munger was also cruel as it frustrated the desire of respondent‟s old and ailing parents to see and live with their grand son at the fag end of their lives. This also caused mental pain to the respondent.
8. According to pleadings of the respondent husband, the appellant‟s parents and brothers in her connivance visited his residence frequently at Samastipur to pressurize him to meet their demands at the threat of implication in false cases and maligned him in the eyes of his colleagues and senior officers and office staff. On 21-1-1998 the father of the appellant and her two brothers Pritam Kumar Sinha and Pankaj Kumar Sinha came to respondent‟s house at Samastipur and extended such threats. On 23-3-1998 appellant‟s mother and her three 10 brothers again came at Samastipur at respondent‟s house and started abusing him in a pre planned manner in high pitch so as to malign him and his reputation in the locality. On hearing the said noise some persons of the locality assembled near the respondent‟s quarter. This caused great humiliation, annoyance and mental torture to the respondent. The respondent contacted the appellant to express his sufferings but she told him to accept the demands of her parents and pay the money and she remained cool and indifferent to respondent‟s sufferings and openly supported her parents and brothers in blackmailing of the respondent who was shocked by such behaviour.
9. It is further case of the plaintiff/ respondent that marriage of his younger brother, Navneet Sharan was fixed for 4-6-1998 and his father requested the father of the appellant for her "Roksadi" with the child so that they could attend the marriage ceremony and "Mundan" of the child could also be performed as per customs but the father of the appellant refused his request until their demands indicated earlier were met. The respondent thereafter 11 requested the appellant himself but she also refused and did not attend the marriage ceremony which caused great discomfiture, embarrassment and humiliation to the respondent in the eyes of his family, guests and other members of the society.
10. As per plaint, in the morning of 8-7-1998 when the respondent was getting ready to go to court at Samastipur, appellant‟s mother and brother, Pravin Kumar Sinha, came there and again demanded Rs. 50,000/-. On his refusal they threatened him in presence of court staff that they would malign him amongst his friends, relatives and staff and would implicate him and his family members in false cases. They further told him that the child would not be sent to him unless the demands were met. They also met the District and Sessions Judge, Samastipur and other senior officers in their Chambers and levelled unfounded allegations against the respondent and his family members.
11. It is further case of the plaintiff/ respondent that on 14-7-1998 the appellant‟s mother and her brother Pritam Kumar Sinha and also the appellant levelled 12 baseless, false and slanderous allegations against him and his family members before some senior officers and the District and Sessions Judge, Samastipur in the latter‟s Chamber at Samastipur court. They propagated slanderous allegations against him by meeting office staff of the court also and, thus, subjected him to great humiliation, ridicule, disgrace and loss of reputation. On coming out of Chambers of the District and Sessions Judge they threatened the respondent in presence of advocates and staff that they would spoil his career and reputation. This also caused great mental tension to the respondent. They met some persons in the locality in the evening and carried out a slanderous propaganda alleging beating and ill treatment to the appellant by the respondent and his family members to cover up their misdeeds and for creating an excuse for the appellant‟s settling at her Naihar. On the basis of aforesaid facts mentioned in the plaint the respondent claimed that the various acts of cruelty committed by the appellant with provocation and support of her parents and brothers have completely wrecked the respondent both mentally and physically and it would be 13 harmful and injurious for him to live with the appellant. He claimed that the marriage had broken down irretrievably and on account of various acts of cruelty he was entitled to a decree of divorce on ground permissible u/s 13 (1) (i a) of the Hindu Marriage Act.
12. After written statement was filed in the court on 23-11-2000 on behalf of the appellant, an amendment petition dated 12-12-2001 for amendment of the plaint was filed and the same was allowed for bringing on record certain events and developments. By way of amendment a new paragraph 41A was added to the plaint. As per that paragraph, the appellant in order to harm the respondent filed a petition in the High Court, Patna containing various baseless and slanderous allegations against him and his family members. She had inter alia alleged that he and his family members had tortured and assaulted her and even tried to strangulate her and snatched all her ornaments. She also alleged that eldest brother of the husband gave her medicines to terminate her pregnancy and that younger brother of the respondent used to misbehave with her. At that time the respondent was posted at Samastipur and 14 under orders of the High Court the District and Sessions Judge, Samastipur enquired into the allegations with assistance of a committee of three Additional District Judges. The respondent as well as the appellant and her parents were called and they participated on two dates but since the allegations were found to be false, they absented themselves on the final date. The respondent pleaded that the false allegations were made by the appellant not only with a view to mentally torture him which he actually suffered but also with a motive to create service risk and get his service terminated. Such conduct of the appellant constituted worst type of cruelty and the respondent suffered untold mental pain and agony on account of humiliation and ridicule. After such amendment of plaint an additional written statement dated 25-4-2003 was filed on behalf of the appellant.
13. The case of the appellant as per written statement is that her husband‟s parents are not sick, rather, they are in good health and well capable of performing their daily chores. She further submitted that all sisters of her husband are married and he willfully did not take her 15 with him to the place of his posting for which she requested on the ground that she was not getting conducive environment to live at Munger in the absence of the plaintiff mainly after an incident of 15-12-1996 when the youngest brother of the plaintiff Mr. Sanjay @ Sanju gravely misbehaved with her and the respondent though fully aware about the cruel acts of his family members did not take any steps to stop such acts but supported them. She claimed that at Munger she had no opportunity to write letter or make any call because her conversation was heard on the intercom. She alleged that she was getting continuous threat from the husband and his family members that if she would make any complaint or disclose the truth to her parents, she would be divorced as was done by the eldest brother of her husband to his wife. She alleged that while living with her in-laws she was much harassed and before taking her with him to the place of posting, her husband extorted all the Stridhan such as ornaments in two stages in presence of Mr. Harish and his all family on 16-1-1997 and 20-1-1997. The details of the ornaments valued at Rs. 1, 03,861.85/- was furnished in 16 paragraph 10 of the written statement.
14. The appellant in her written statement denied that her mother and brother had visited her any time at Tenughat and also denied all conversations amounting to demand for money, threat and coercion. She also denied pressure for providing service to her brother and any insulting remark by her brother Pritam Kumar Sinha. She claimed that she was not properly cared for during pregnancy and heavy work was being taken from her. She alleged that respondent‟s elder brother Mr. Awadh Bihari Sharan is not a doctor but he forcefully administered different kinds of medicines with an intention to cause abortion. Therefore she made request and the respondent herein sent her to Patna for medical check up. She denied visits by her husband during pregnancy or sending of sufficient money but also stated that she gave all documents like doctor‟s prescription, medical bill etc. regularly to her husband. She further alleged that her husband did not come at the time of delivery or thereafter to take care of her and her child.
15. In paragraph 22 of the written statement the 17 appellant alleged demand of "Palang", and furniture etc. inspite of money and articles provided at the time of marriage. In paragraph 23 of the written statement it was alleged that appellant‟s parents asked the respondent to perform "Chatthi" of the newly born son but he did not agree for the same. She claimed that she was always ready to join her husband at the place of his posting but it was difficult for her to live in Munger. She alleged that her husband was under the control of his brothers and mother and they jeopardized her marital life. In paragraph 28 she alleged that the plaintiff had willfully and deliberately neglected her and also the child and caused cruelty and harassment to her in association with his parents, brothers and one Mr. Harish, a friend of his eldest brother. In paragraph 30 she alleged that her husband‟s youngest brother Mr. Sanjay misbehaved with her on 15-12-1996 and, therefore, she could not think of living at Munger without her husband. In paragraph 33 she alleged that on 8-4-1998 her husband along with his three elder brothers, and youngest brother-in-law, Mr. Bajrang Sharan @ Billu came to her residence at Patna with intention to fight and 18 assault and taking away custody of her child. The plaintiff himself attempted to cause grievous hurt to her father but this was avoided by the intervention of her mother. She denied receipt of any intimation for attending her husband‟s brother‟s marriage at Munger on 4-6-1998. She also denied in general terms the alleged high handed acts of her brother and mother at Samastipur on 8-7-1998 and 14-7-1998. In paragraph 38 of the written statement she alleged assault by her husband had at Tenughat and that his elder brother had given her medicines to destroy the foetus.
16. In the written statement it was claimed that the plaintiff had no cause of action and no case u/s 13 of the Hindu Marriage Act.
17. In the additional written statement dated 25-4-2003 the appellant claimed that statements in paragraph 41 A are vague, incomplete and malafide. The fact that a complaint was made to the High Court and was enquired by the District and Sessions Judge, Samastipur was not disputed but in paragraph 6 of additional written statement the appellant denied any notice to her for a 19 meeting at Samastipur. It was also asserted that there was never any risk to the service of plaintiff and that no cruelty was committed by the appellant so as to cause mental pain, agony and humiliation to the plaintiff.
18. The original suit for divorce bearing Matrimonial case no. 37/98 before the District Judge, Munger was transferred under the orders of this court on 9-12-1999 to Family Court, Patna and was renumbered as 37 of 1998/ 20 of 2000. After the pleadings were completed the Family Court framed the following 8 issues for adjudication.
(i) Is the suit as framed maintainable?
(ii) Has the petitioner got valid cause of action for the case?
(iii) Whether the respondent has caused mental agony by filing petition before the Hon‟ble High Court levelling false allegation of torture, assault, attempt to strangulate her and snatching of her article against the petitioner?
(iv) Is the respondent guilty of attributing mental torture to the petitioner as well as to his family members 20 by unfounded allegation and also by threatening to the petitioner and his family members with dire consequences?
(v) Has the petitioner been deserted by the respondent since January 1998 as alleged?
(vi) Did the respondent‟s demand of money from the petitioner as a pre-condition to resume the relationship with the petitioner?
(vii) Is the petitioner entitled to decree of divorce as prayed for?
(viii) To what other relief or reliefs, if any the plaintiff is entitled for?
19. Altogether 7 witnesses were examined on behalf of respondent husband. PW 1 Kailash Bihari Sharan and PW 2 Saket Bihari Sharan are his elder and younger brothers respectively. PW 3 Sitaram Prasad is a court staff of Samastipur. PW 4 Ghanshyam Choudhary is an advocate of Samastipur. PW 5 is the respondent himself. PW 6 Shailendra Prasad and PW7 Vinay Kumar Sharma are formal witnesses. The appellant who was defendant in 21 the court below examined her brother Pritam Kumar Sinha as OW 1 and herself as OW 2.
20. Ten sets of documents have been marked as exhibits on behalf of plaintiff/ respondent which include several letters referred to by the Family Court marked as exhibits 2 series, counter foil of bank receipts marked as exhibit 3 series, postal receipts marked as exhibit 4 series, doctor‟s prescription marked as exhibit 5 series, two informatory petitions and a certificate by District and Sessions Judge, Bokaro dated 21-3-2005, exhibit 10.
21. It is relevant to point out at this stage only that another document being report of District & Sessions Judge, Samastipur dated 7-9-1998 addressed to the Registrar Vigilance of High Court at Patna has also been erroneously marked as exhibit 10 and referred to as such by the Family Court although it was decided earlier by the Family Court as appears from order dated 21-6-2004 that this report was called for by the Family Court from Samastipur District Judge and after it was received the plaintiff wanted the same to be formally proved through a witness. But the court held that it appeared to be a 22 confidential communication between the District Judge and High Court and, therefore, the evidence of witness Shailendra Kumar for formally proving the report was not allowed. The court further held that the report shall be kept on record and shall be used by the court if found necessary in the interest of justice but there was no necessity for the plaintiff to prove it formally as an exhibit. That order shows that it was passed in presence of counsel of both the parties and the same was never challenged. In such circumstances, the report dated 7-9-1998 from District & Sessions Judge, Samastipur to Registrar Vigilance of Patna High Court could be used by the court in the interest of justice but it should not have been marked or treated as exhibit. However, such procedural mistake, in our view, is not of much significance.
22. On behalf of appellant also 11 photographs have been exhibited as exhibit A series. Three cash memos and two statements of accounts have been exhibited as exhibits B and C series respectively. Eight letters are exhibit D series. Two applications are exhibits E and E1. A statement of liability is exhibit F and one written note is 23 exhibit- G.
23. On behalf of appellant detailed arguments were advanced on the basis of oral evidence adduced by both the parties and on the basis of a photograph showing infant son in the lap of his father, respondent herein, in support of the main contention that the plaintiff respondent has not been able to prove mental cruelty and, therefore, no case for divorce is made out u/s 13 of the Hindu Marriage Act.
24. On the other hand learned counsel for the respondent has placed reliance upon pleadings and oral evidence as well as upon some letters contained in exhibit 2 series as well as report of the District and Sessions Judge, Samastipur dated 7-9-1998 in support of the submission that not only various specific instances of cruelty have been proved but the entire circumstances support the plea for divorce on ground of mental cruelty and torture.
25. Thus, the main issue to be considered is whether the plaintiff respondent has been able to prove his case for divorce on the ground of mental torture and 24 cruelty or not.
26. It may be noticed that the main criticism of the judgement and order under appeal is on the ground that the learned court below did not deal with the various issues independently with reference to oral and documentary evidence available on record. According to learned counsel for the appellant, the learned court below has attached undue importance to the report of District & Sessions Judge, Samastipur dated 7-9-1998 which has been wrongly marked as exhibit 10 at the fag end of the trial when the actual exhibit 10 is report of District Judge, Bokaro dated 21-3-2005. In this regard, it has already been noticed that the report of the District & Sessions Judge, Samastipur was not permitted to be formally proved as an exhibit on the ground that it was confidential in nature but at the same time it was made clear to the parties that the same will be on record to be used in the interest of justice as per requirement. Such attack on the judgement under appeal has been noticed and kept in mind so that a proper approach may be taken by this court for appreciating different aspects of alleged cruelty and torture in the light 25 of relevant oral and documentary evidence for coming to a just and proper conclusion on the main controversy noted above, i.e. whether case for divorce on the ground of mental torture and cruelty has been made out or not.
27. Coming to the eight issues formally framed by the court below, from the submissions advanced by the parties it is apparent that issue nos.1 and 2 relating to maintainability of the suit and cause of action are not material because nothing was pointed out so as to make the suit not maintainable or to establish lack of cause of action for the case. Issue nos. 3, 4 and 6 are in fact related to the main issue as to whether a case of mental torture and cruelty on the basis of various allegations and instances has been made out and proved or not. Issue nos. 7 and 8 are dependant upon the deliberation and outcome of the aforesaid main issue. So far as issue no.5 is concerned, it was argued on behalf of the appellant that no desertion could have been pleaded as a ground for divorce in view of the fact that marriage was solemnized on 19-5-1996 and the suit was filed on 4-6-1998 with pleadings showing that the appellant had admittedly resided with the plaintiff 26 respondent till she left for her Naihar at Patna in June, 1997 when she was in family way. In reply learned counsel for the respondent fairly submitted that the only ground for divorce raised on behalf of respondent is of mental torture and cruelty and not of desertion which requires willful desertion without any valid and justified reasons for more than two years. However, it was submitted that refusal of the appellant to come back to the plaintiff respondent with the child has been loosely described as desertion as an instance of cruelty inflicted without any good reasons.
28. Before coming to the various instances alleged in the plaint for showing mental cruelty and torture and before considering the reply to such allegations in the written statement and the relevant oral and documentary evidences, it would be useful to have a view of oral evidence adduced on behalf of the parties.
29. PW 1 Kailash Bihari Sharan is elder brother of the plaintiff working in a Bank at Patna. He has deposed that during holidays and festivals all the brothers used to assemble at Munger. Plaintiff‟s marriage was solemnized 27 on 19-5-1996 as per Hindu rites at Patna and till the defendant stayed at Munger there was peace in the family. A son was born to the defendant on 24-11-1997 in Kurji Hospital at Patna. He along with his wife went to see the child and mother at the hospital. On 18-1-1998 the defendant and her parents came to his residence and told him to persuade the plaintiff to give them Rs. 50,000/-. On his protest they retorted that they would not send the defendant and shall not organize "Chatthi" if money was not given to them. He got the impression that they wanted the plaintiff to become a "Ghar Jamai". He has further deposed that his younger brother Navneet Sharan was to get married on 4-6-1998. His parents and the plaintiff requested the parents of defendant for attending the marriage but they did not come. This caused loss of prestige in the estimate of others and the plaintiff suffered mental torture. His parents could never see the newly born son of the plaintiff and it made them and the plaintiff unhappy and mentally tensed. He denied to have gone to the house of the defendant on 8-4-1998 with anyone and also denied the allegation that attempt was made to assault 28 the father of the defendant and take forceful custody of the child. In cross examination it was taken that he and his family members had no grievance against the defendant or her parents till one year of the marriage.
30. PW 2 Saket Bihari Sharan is younger brother of the plaintiff/ respondent. He is an advocate at Munger. He has deposed to the following effect. So long as the defendant stayed at Munger she was happy. In March 1997 Pritam Kumar Sinha, elder brother of the defendant had come to Munger and on his face he had insulted the plaintiff by calling him "Kuan ka Medhak" and "Thappamar Officer". The defendant instead of forbidding his brother started supporting him and it caused mental torture to the plaintiff. A son was born to the defendant on 24-11-1997 in her Naihar but "Chatthi" was not organized. On 12-1-1998 he accompanied the plaintiff to Patna for "Roksadi" but the request was denied. A demand for Rs. 50,000/- was made for marriage of younger sister of the defendant and also for handing over entire salary of the plaintiff to the defendant. It was explicitly the stand of the defendant and her family that so long as their demand 29 would not be accepted the defendant would not accept "Roksadi" nor would allow the plaintiff to touch the child and no "Chhathi" will be organized. Inspite of some heated arguments they remained adamant on the demands. On the next date, that is, on 13-1-1998 the plaintiff and the witness requested the defendant to come with them to Samastipur but the defendant refused by saying that she would do whatever her parents and brother would ask her to do and would remain in Naihar. Quite annoyed with such stand, he and the plaintiff came back. His brother Navneet Sharan was married in June, 1998 and inspite of requests by his father and the plaintiff, the defendant did not come to participate in the marriage and as a result "Mundan" of the child could not be organized. This lowered down the prestige of his family and he found the plaintiff very unhappy and under mental tension. He has deposed that his parents are old and sick and they have not been able to see the child of the plaintiff due to which they are very worried and unhappy. This has made the plaintiff quite sad. He denied that there was any ill treatment meted to the defendant.
30
31. PW 3 Sitaram Prasad has deposed that at the relevant time he was posted as Orderly of the respondent at Samastipur. On 8-7-1998 mother and brother of appellant had come when the respondent was ready for going to court. They demanded Rs. 50,000/- in connection with marriage of their daughter. The respondent refused the request and on this they threatened him with public humiliation and implication in false case. They also stated that till their demand is met they would not send the child to the respondent. On that day they met the District Judge in his Chambers and levelled various allegations against the respondent. On 14-7-1998 they again came to Samastipur with the appellant and made allegations against him in the Chambers of District Judge. Many advocates and staff collected there. The witness had also joined the crowd. On account of open allegations against the respondent and his family members, the respondent appeared to be quite perturbed. Coming out of Chambers of the District Judge the appellant and his family members again threatened the respondent that they would finish his service and prestige. This caused mental tension and insult 31 to the respondent. Nothing material has been elicited from this witness in cross examination.
32. PW 4 Ghanshyam Choudhary is an advocate at Samastipur. He has claimed that he knows both the parties. According to him on 14-7-1998 the appellant, along with her mother and brother came to Samastipur court to meet the District Judge in his Chambers. The respondent was also there. He was also near the Chambers. Allegation of assault was levelled against the respondent and there was sufficient noise being made in the Chambers of the District Judge. The advocates and staff had assembled there in large number. On coming out of the Chambers the appellant, her mother and brother threatened the respondent that they would destroy his prestige and service. The respondent was insulted and subjected to great mental torture. Nothing material has been elicited in cross examination of this witness also.
33. The last material witness on behalf of plaintiff is the plaintiff respondent himself. He has fully supported the allegations made by him in the plaint. He has supported the allegation of demand of Rs. 50,000/- in 32 December, 1997 and again at Samastipur on 20-1-1998 and 23-3-98. According to him his entire family and he himself felt humiliated when the appellant did not come on the occasion of marriage of his younger brother due to which "Mundan" of the child could also not take place. He has also narrated the incidents which took place at Samastipur on 8-7-1998 and 14-7-1998 including levelling of false allegations before the District Judge in his Chambers due to which he was insulted before the advocates and court staff. He has also deposed that he was subjected to mental torture on account of levelling of false allegations against him and his family members that they had assaulted or tortured the appellant, had tried to cause abortion and taken away her ornaments as alleged in a complaint made to the Patna High Court. According to him on the orders of Patna High Court the District Judge, Samastipur along with three Additional District Judges enquired into the matter. On two dates the family members of appellant attended the enquiry but on the last date they did not come and instead a letter was left to him in which demand for money was reiterated. That letter written by 33 father of the appellant dated 3-9-1998 has been specifically proved in paragraph 26 of his deposition. He has claimed that he was put to great mental torture when attempt was made to get his service in peril. According to him such wrong was committed with him only to grab his salary and to make him a "Ghar Jamai" and this cruelty was caused by the appellant. According to him he fears threat to his life and the marriage has totally broken down. His parents are old and disabled and they are always unhappy on account of not being able to see his son. This has also caused mental pain to him. He denied that any kind of misbehaviour was committed by his younger brother Sanjay with the appellant on 15-12-1996. Her letters dated 27-1-1997 and 4-3-1997 are sufficient to show that the allegations are fabricated. He has proved those letters in paragraph 33. He has further deposed that allegations of snatching ornaments on 16-1-1997 and 20-1-1997 are also apparently false in view of letter dated 31-10-1996 because as per his request a locker was taken by the appellant in State Bank of India, branch Anisabad (Patna). He has also denied several other claims made in 34 the written statement. He deposed that letter dated 15-7- 1997 written by Pritam Kumar Sinha, brother of the appellant would show that he had no respect for Judicial officer as was claimed in the written statement. Letter of the appellant dated 30-6-1997 was proved to contradict the claim in the written statement that appellant was not looked after properly by the parents and family members of the plaintiff respondent or that she was made to do arduous house hold work. He denied that his brother had administered any medicine to the appellant and has claimed that she was got examined by the best gynaecologist of Munger, Dr. Smt. Asha Prasad as well as Dr. Shanti Rai of Patna. Photo copies of the prescriptions were also filed. He also denied that he had not visited during pregnancy at Patna and had not given her money. After denying all material allegations in the written statement, he proved several other letters and documents. The only material statement in his cross examination, highlighted by the counsel for the appellant is his admission that till June, 1997 he lived with the appellant peacefully except for one or two minor incidents and he 35 had no grievance against her till then. But for one or two incidents during that period he had no grievance against her relations also. He has also claimed that he came to know about the allegations made in the complaint to Patna High Court in course of talks with the District Judge.
34. Out of two witnesses examined on behalf of defendant/ appellant, OPW 1, Pritam Kumar Sinha, is elder brother of the appellant. He has stated that at the time of marriage his father was Deputy Manager in State Bank of India and later he died in harness. He has alleged that behaviour of in-laws of the appellant was cruel. Contrary to written statement he has alleged that they were demanding Rs. 50,000/-. According to him his sister, the appellant, is still ready to live with her husband. He has denied that Rs. 50,000/- was demanded from the respondent for marriage of his sister. According to him the case for divorce was filed by the respondent under pressure of his family members. According to him his sister never filed any case of torture against her husband. He has stated that he had gone to Samastipur on 17-3-1998 but could not meet the respondent and, therefore, he left a 36 letter informing him to come to Patna for solving the problems. He has denied to have gone to Samastipur on 14-7-1998 and has claimed that no talks took place before the District Judge. He has denied to have used objectionable words against the respondent or to have insulted them. He has also denied that he and his family members did not allow the plaintiff respondent to meet his son. He has also denied that inspite of request by the plaintiff respondent the appellant was not allowed to go with him. According to him 12-1-1998 was not fixed for "Roksadi". He has also denied to have pressurized the plaintiff respondent for service or to have gone with his mother to Tenughat. He has claimed that he or his mother never pressurized the respondent to hand over his salary to the appellant or to become a "Ghar Jamai". He disclosed that the plaintiff respondent had submitted an informatory petition before the Chief Judicial Magistrate at Munger and another to Subdivisional Magistrate, Samastipur. On getting knowledge of such developments he along with his mother had gone to meet the District Judge and thereafter this case was filed. The District Judge asked them to give a 37 complaint in writing. He claimed that clothes and ornaments of his sister are at her "Sasural" and there is no ground for divorce. He also claimed that they were ready to accept every demand of the plaintiff respondent. In cross examination he has disclosed that he has two more brothers and three sisters and he is the eldest amongst brothers. His two other brothers have completed their studies and were in search of service. His two other sisters were unmarried and were living with him. His father died on 2-2-2004 on the post of Deputy Manager in State Bank of India, Jehanabad. His father had taken housing loan from the Bank. He did not know how much was the loan amount. He has denied to have knowledge that at the time of death his father‟s total salary was Rs. 13, 800/- and out of that there used to be deduction of Rs. 5862/- and that amount become Rs. 10,000/- after incurring housing loan. He admitted that his sister had a bank locker but claimed that she never operated the same. He denied that after opening the locker on 11-9-1998 all the ornaments were kept there. According to him, relation between the wife and husband was good till the child was born and it is still 38 good. No money was demanded from him. He could not say when money was demanded from his father. He does not know whether there was any money in the account of his father. He has denied that any money was demanded by him or his family members for marriage of his sisters and the plaintiff respondent had shown his inability to meet such demand. According to him he was not at Patna on 12-1-1998, therefore, he could not say whether plaintiff respondent had come to his house for "Roksadi" of his sister or not. He has admitted that he went to Samastipur on 17-3-1998 along with his brother and mother. He has denied visit to Samastipur on 8-7-1998 and 14-7-1998 by him or his family members. He has admitted that on the asking of District Judge they gave a complaint in writing and a copy was also sent to Patna High Court and enquiry was held on that complaint.
35. OPW 2 is the defendant appellant herself. She has given details of the marriage and has claimed that after marriage when she went to her "Sasural", behaviour of her husband was good but later on he came under influence of his family members and his behaviour became 39 bad. The behaviour of other family members was not good. She has raised a grievance that she had to come to her parents‟ house with her brothers and her husband did not accompany her. Her husband‟s other brothers used to keep their wives with them at places of their service. The parents of her husband were able to take care of their chores. She had gone with her husband to Tenughat because she insisted that she should be taken to the place of his posting. Her jewellery was kept by her husband. After taking the ornaments her husband told him that she had no money or jewellery to fight a case and hence, he would divorce her on some pretext. Her „Devar‟ Sanjay misbehaved with her on 15-12-1996 and thereafter her husband took her to Tenughat. Till then behaviour of her husband was good. Her husband sent her to Patna for better treatment and her son was born there in hospital. His "Chatthi" was celebrated but her husband did not come for that. After the "Chatthi" no date was fixed for her going to Munger. She has denied the allegation that Rs. 50,000/- was demanded from her husband and he was prevented from touching his son. She has stated that her brother and 40 mother went to Samastipur for effecting compromise but they could not meet her husband and hence, they left a letter for him but her husband did not come to Patna inspite of letter. In April 1998 her husband filed informatory petition before the Subdivisional Magistrate and on getting the information her mother and brother again went to meet her husband at Samastipur. The District Judge and other Judicial officers tried to persuade her husband for compromise but he was not agreeable and then District Judge asked her to give her complaint in writing which she did and sent a copy to High Court also. She has stated that she is prepared to live with her husband in any condition and there was no interference in her matrimonial life either by her brother or mother. She has denied that there was any pressure put on her husband for arranging service for her brother. According to her, the claim for divorce was without any basis. In cross examination she stated that ornaments which she was wearing were not genuine but imitation. She has denied any knowledge about salary of her father. She has denied that locker taken by her on 6-11-1996 was closed and 41 surrendered on 11-9-1998 after she took out the ornaments. She has admitted that she had written letters to her husband. She has admitted her signatures on the letters which are exhibit 2 series. She has stated that her father-in- law died in January, 2004 but has denied that she was invited in the „Shradh‟ but she did not go. She has stated in cross examination that although she did not mention regarding misbehaviour of her „Devar‟ Sanjay in any of the letters but she had told this incident to her husband and his father and mother. In paragraph 34 of the cross examination she has made a categorical statement that she has no grievance against her husband and she is still ready to live with him. She has admitted that during pregnancy her husband used to send her money by cheque and she got the money by depositing the cheques in her father‟s account. He used to send Rs. 1000/-1500/- per month. She does not remember whether he had sent Rs. 5,000/- by draft on one occasion before the pregnancy. She admitted that she used to demand money but for her treatment. She denied that her husband had come with his brother to take her on 14-1-1998. According to her he had come after 42 "Chatthi" in January, 1998 only to see the child. She denied to have gone to Samastipur ever. She had never met the District Judge, Samastipur but her parents had gone to meet him there on one or two occasions. She had never instructed her family members to demand any money from her husband nor had they made any such demand. She denied that her father had mentioned in the letter that her demand for money will remain as in the past. She has asserted that by filing complaint petition to the High Court she had tried to make her marital life peaceful. Her husband had filed an informatory petition in January, 1998 at Munger but had not lodged any case. She never received any notice nor obtained any copy. She denied that her allegations were enquired by the District Judge and on enquiry they were found false. She denied that she had lodged complaint with the High Court in reaction to the informatory petition given by her husband. She denied that her brother Pankaj or her mother had gone to Tenughat in February, 1997 and they pressurized him for arranging service for her brother. She has claimed that she never received any notice from the District Judge, Samastipur. 43 She has accepted that photographs of her son filed in the court were on the occasion of "Chatthi" and in those photographs there is no one from the family of her husband. She does not remember the date on which the photographs were taken.
36. For coming to a just and proper conclusion on the issue of mental torture and cruelty as alleged by the plaintiff respondent, it is necessary to keep in mind the broad features and the totality of the circumstances in mind. From the oral evidence adduced on behalf of parties, it appears that there was no problem in the matrimonial life of the parties till 12-1-1998 when the plaintiff respondent was allegedly denied his request to take his wife and child back with him. The minor incidents of Tenughat have been denied by the appellant in her deposition and even if they are accepted as truth, expectation of some help for marriage of younger sister of the appellant and of help in arranging service to her unemployed brother was admittedly of not any significance because the plaintiff respondent has admitted that inspite of such happenings his relationship with his 44 wife remained cordial. Problems between the parties definitely developed sometime in January, 1998 leading to informatory petition dated 28-1-1998 filed by the plaintiff respondent. That was followed by a letter from elder brother of the appellant dated 17-3-1998 (exhibit 2/G). That was followed by second informatory petition before the Subdivisional Magistrate, Samastipur on 24-3-1998. Thereafter, younger brother of the plaintiff respondent got married on 4-6-98 and admittedly the appellant did not attend that marriage and "Mundan" of the child could not take place. Thereafter, allegedly, demand of money was again made on 8-7-1998 at Samastipur followed by unpleasant scenes in the Chambers of District Judge on 14-7-1998. Soon thereafter divorce suit was filed on 18-8-1998. In respect of dispute over "Roksadi" on 12-1-1998, necessary averments are in paragraphs 22, 24 and 26 of the plaint. These averments have been denied in toto in the written statement. While denying the allegations in paragraph 22, counter allegation of demand for bed, mattress and other furnitures has been made in the written statement and in reply of paragraph 26 along with denial in 45 general a clear statement has been made that the appellant was always agreed to join her husband at the place of his posting because it was difficult for her to live in Munger. In her deposition the appellant or her brother have not supported the allegation of further demand of „palang‟, bed, furniture etc. but they have taken the stand that she was facing difficulty in living at Munger and, therefore, she was agreeable only to go with him to the place of his posting. That appears to be the truth and the basic difference between the spouses. The plaintiff respondent, as per deposition of appellant, was quite attached to his parents and other family members and the proposal of "Roksadi" was evidently for taking her to Munger along with the child. There was nothing wrong in such proposal and demand and when this proposal was turned down as appears from the evidence of the plaintiff respondent in paragraphs 15 and 16 and that of PW 2 in paragraphs 12, 13 and 14, the relationship between the spouses took a nose dive and worsened with passage of time. The informatory petitions which are exhibit 8 and 8 A, highlight unjustified demand of Rs. 50,000/- as well as 46 refusal of "Roksadi" along with the child and non performance of "Chhathi" even when the child was two months old. In support of allegation of demand of money made in the informatory petitions, reliance has been placed upon exhibit 2/C, a letter dated 3-9-1998 by father of the appellant to one Additional District Judge, Mr. M. P. Tiwari. In that letter it is written that meeting for talks could not take place because residence of Mr. Tiwari was locked. Thereafter, the sentence is as follows:- " our stand on money with my daughter‟s, Pushpagandha Sharan consent is the same and she likes to get it". Clearly this letter has to be understood in a different context as it was written in the context of re-conciliation just prior to or after the suit for divorce was filed on 18-8-1998 at Munger. The context of this letter could be understood in the light of stand of father of the appellant during enquiry by District Judge, Samastipur or only by examining Mr. Tiwari but he has not been examined either by the plaintiff respondent or by the other party. It is very difficult to accept the allegation of demand of Rs. 50,000/- from son- in-law and still more difficult is to accept the allegation 47 that for realizing such a demand from son-in-law, father of the appellant and other members of his family including the appellant would go to the extent of putting at risk the married life of the appellant specially after she had given birth to a child. In such circumstances, the denial of such allegation by the witness examined on behalf of appellant merits acceptance. The reason for dispute between the parties is on account of appellant being not agreeable to go to live at Munger, as deposed by her also. We are of the view that fearing that such behaviour of the appellant may not appear to be cruel enough and sufficient for breaking relationship with her, the allegation of demand of Rs. 50,000/- has been super imposed in the informatory petitions and adopted as a ground for divorce.
37. But it is evident that inspite of request made by the husband the appellant did not agree to go with him to Munger with her child. There was nothing wrong on the part of the husband for asking the appellant to go with him to Munger along with the child. Denial of such request was bound to cause mental torture to the plaintiff respondent. He had been sending money to the wife for her 48 maintenance as well as for care and treatment during pregnancy and that shows that he was quite attached to his wife. Deprivation of her company as well as that of newly born son, in the facts of case, was bound to cause mental torture. Such incident alone, however, cannot constitute cruelty as a ground for divorce. Hence, other developments and allegations need to be examined with care.
38. After the knowledge about the informatory petitions, the parents and relations of appellant were bound to approach the plaintiff respondent at Samastipur for reconciliation. The alleged visits by her brother or parents at Samastipur was definitely for that purpose and not for the purpose of extorting Rs. 50,000/-, the allegation which has been disbelieved earlier. Although oral evidence has been led in respect of allegation by way of evidence by the plaintiff and that of his orderly, PW, 3 this allegation does not inspire confidence.
39. Only definite conclusion possible is to hold that in the light of allegations in the informatory petitions filed by the plaintiff respondent, the appellant and her 49 family members took counter measures by approaching the District Judge at Samastipur and by filing a petition to the High Court which was sent for enquiry to the District Judge. In that connection, the family members of the appellant or may be she also herself went to Samastipur but the effort did not materialize into any amicable settlement. There may have been utterances made by some of the family members of the appellant against the respondent sufficient to cause anxiety and mental torture to the respondent but a close scrutiny of the evidence of PWs 3 and 5 does not show that appellant herself made any derogatory or insulting remarks against her husband either at Samastipur or at her parents‟ house at Patna.
40. From the pleadings in the written statement, oral evidence of the defendant appellant and her letter dated 30-6-1997 included in exhibit 2 series, it is evident that the defendant appellant was reluctant to stay at Munger with her husband and always wanted to live with him at the place of his posting. Even if the allegation made by the defendant appellant against her „Devar‟ that he misbehaved with her on 15-12-1996 and that she was 50 made to work hard by her in-laws even during pregnancy are disbelieved, there is nothing wrong in her desiring to stay with her husband. In the present days, an educated lady whose husband is well employed would definitely like to live with her husband. The report of the District Judge Samastipur dated 7-9-1998 which has been wrongly treated as exhibit 10 shows that the plaintiff respondent and other side initially agreed that the appellant shall not be taken to Munger again against her wishes. The plaintiff also agreed to bring a box kept in lock and key of the appellant at Munger and hand over the same to her. It was on account of insistence of her family members for return of Rs. two lacs allegedly given for purchase of a car which led to failure of talks for amicable settlement between the parties. The report shows that family members of the appellant were rather harsh and intemperate in course of enquiry by the District Judge. As discussed earlier the said report has been kept on record for use as and when required in the interest of justice. We have used that report only to look to the stand of the parties during the enquiry and not for putting blame on one or the other party. 51
41. It was argued on behalf of the respondent that filing of the complaint to the High Court as alleged in paragraph 41 of the plaint was itself an act of cruelty aimed at destroying the service of the respondent. The District Judge at the first instance tried to resolve the differences after hearing the counter version but when the attempts failed, he asked or advised for filing her grievance in writing. In any case mere filing of petitions before the District Judge and the High Court, in the facts and circumstances of the case, do not amount to an act of cruelty especially when such moves came subsequent to filing of informatory petitions by the plaintiff respondent in which he made several allegations. Copy of the actual complaint has not been brought on record and the stand of the appellant is that she had approached the higher authorities with a view to seek their intervention for a peaceful matrimonial life. When the respondent had himself approached the Chief Judicial Magistrate, Munger and Subdivisional Magistrate, Samastipur for placing on record certain allegations, it cannot be expected that the defendant appellant who never filed any criminal or civil 52 case, shall not take appropriate defence by communicating her grievances to concerned authorities. No doubt in the written statement she has incorporated certain allegations which are not supported by her letters in exhibit 2 series and clearly the written statement contains some exaggerations and incorrect allegation of attempt to assault at Tenughat, but she has not gone to the extremes so as to cause any injury to the plaintiff respondent by either filing a criminal case or even by deposing against him on the point of assault at Tenughat. She has supported most of her defences but has finally expressed her desire to live with the husband on any terms and conditions, at his place of posting. The allegation of depriving of her ornaments has been supported by her but it has been denied by the plaintiff respondent. It is quite possible that the ornaments may still be with her or in her box kept at Munger because it is not the case of the plaintiff respondent that appellant left Munger with entire bag and baggage. So far as allegation of administering medicine by elder brother of the plaintiff is concerned, this appears to be an exaggeration and hence, she has not deposed in support of 53 such allegation. Similarly she has not supported the allegation that the plaintiff attempted to cause hurt to her father and snatched the child on 8-4-1998. She has also not supported the allegation that there was any further demand of furniture and bed etc.
42. On behalf of plaintiff respondent it was submitted that levelling of unsupported baseless allegations in written statement noticed above would itself amount to an act of cruelty entitling the respondent for divorce on the ground of mental torture and cruelty. Some cruel acts like filing of criminal case on false and vexatious allegations may amount to serious cruelty entitling the other side for divorce. Similar may be the case where highly objectionable and immoral behaviour is alleged in the written statement and carried to the extent of attempting to prove the same but without success. That is also not the case at hand. It is common knowledge that while preparing the defence at the time of filing of written statement parties do not object to certain exaggerations and allegations in the draft which are at times on account of daunting and overpowering legal advice rendered 54 without responsibility. The present case appears to fall in that category. Some of the allegations have not been reiterated in the deposition of the defendant appellant and the allegations are not of extreme nature so as to indicate a determined effort to paint the other side black in the eyes of others. They may cause pain to the other side requiring compensation by words or deeds. In the present case, the wife has paid it by complementing the husband with desire to live with him without any conditions.
43. As a result of aforesaid discussion, this court comes to the finding that there was some wrong committed by the appellant in refusing to go with her husband along with her child when he came for that purpose in January, 1998 but she had her own reasons which were not wholly unjustified. She wanted to go to the place of his posting or an assurance for the same which was not forthcoming at that time. Subsequently, in course of enquiry before the District Judge, Samastipur the respondent appears to have agreed for such a course of action, however, her parents appear to be at fault in insisting for return of Rs. 2 lac which was probably towards the gift of a car and it was 55 their adamant attitude which resulted in deterioration of relationship and filing of divorce suit in August, 1998. The events which took place between January and August, 1998 do not show any such extreme or harsh action by the defendant appellant which entitled the plaintiff respondent for divorce on the ground of mental torture and cruelty. A careful perusal of the plaint and deposition of the plaintiff also disclose that allegations are mostly against her family members and she has been blamed for not opposing her family members. She has only been described as collaborator or abettor without any specific role.
44. In the social milieu of the present times divorce is becoming quite common in this country also but still for a girl from a middle class family and, particularly, for a lady with a child it is one of the biggest personal disaster and unless one of the partners of marriage has acted in a clear and explicit cruel manner so as to create a threat to peaceful and safe life for the other partner, it is difficult to accept one or two instances of wrong actions/ decisions as sufficient proof of cruelty for the purpose of divorce. In the present case we find that the defendant 56 appellant is not guilty of any such persistent cruel acts towards her husband which can entitle him for decree of divorce.
45. Relevant to the issue of cruelty, out of several judgements cited, the following were relied upon on behalf of plaintiff respondent:- 1. AIR 1994 SC 710 (V. Bhagat versus D. Bhagat), 2. AIR 2002 SC 2582 (Praveen Mehta versus Inderjit Mehta) and 3.AIR 2003 SC 2462 (Vijaykumar Ramchandra Bhate versus Neela Vijaykumar Bhate).
46. In the case of V. Bhagat (Supra) the Supreme Court pointed out that cruelty must be of such nature that parties cannot be reasonably expected to live together. It has to be determined in the facts and circumstances of the case. Accusations and allegations must be seen in the context in which they are made.
47. In the case of Praveen Mehta (Supra) it was explained in paragraph 21 that 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 57 him or her to continue the matrimonial relationship with the other. Mental cruelty is generally difficult to establish by direct evidence as it is a matter of inference to be drawn from the facts and circumstances of the case.
48. In the case of Vijaykumar Ramchandra Bhate (Supra) it was emphasized that cruel treatment is not necessary for any particular duration or period and the court is required to go by intensity, gravity and stigmatic impact of cruel treatment when meted out even once.
49. No exception can be taken to the aforesaid principles of law but in the facts and circumstances of the case, as noted above, we are of the considered view that behaviour of the defendant appellant towards her husband as proved by the evidence on record does not constitute such mental cruelty so as to justify dissolution of marriage by a decree of divorce. In our considered view the marriage cannot be said to have broken down irretrievably. Father of the appellant as well as of respondent are said to have died. There is no real impediment in the way of both spouses in living together with their child if they are guided by good intentions and desire to bestow required 58 love and care upon their only child who is now 13 years old, a sensitive age requiring care of both father and mother. We can only hope and wish for better sense to prevail upon both the parties.
50. In the final analysis we must record that for the reasons as discussed above, we do not agree with the view of the learned Family Court that a case of cruelty has been made out by the plaintiff respondent for grant of divorce. The learned court below considered the materials on record in a superficial manner without analyzing the entire evidence in proper perspective. Hence, the impugned judgement and order granting divorce is set aside. The suit for divorce is dismissed. As a result the appeal stands allowed.
In the facts of the case, the parties shall bear their own cost throughout.
(Shiva Kirti Singh, J.) Shivaji Pandey, J I agree (Shivaji Pandey, J.) Patna High Court The18th January, 2012 AFR/BKS