Orissa High Court
Sonali Samal vs Vikrant Parida on 19 April, 2016
Equivalent citations: AIR 2016 ORISSA 90, (2016) 4 CIVILCOURTC 685, (2016) 3 HINDULR 319, (2016) 3 DMC 197
Author: Biswanath Rath
Bench: Vinod Prasad, Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
MATA No.63 of 2012
An application under Section 19(I) of the Family Court Act, 1984
read with Section-28 of the Hindu Marriage Act,1955.
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Sonali Samal ... Appellant
Versus
Vikrant Parida ... Respondent
For Appellant : Mr. S.D. Das,
Senior Advocate,
With
M/s. Prabodh Kumar Patnaik,
A.K. Dwivedy, S.K. Patnaik,
A.K. Mohanty, A.K. Mishra,
G.M. Rath, R. Mohanty
For Respondent : M/s. Sidhartha Mishra,
Bhaktadas Mohanty
PRESENT :
THE HONOURABLE MR. JUSTICE VINOD PRASAD
AND
THE HONOURABLE MR. JUSTICE BISWANATH RATH
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Date of hearing :: 25.02.2016 & Date of Judgment :: 19.04.2016
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Biswanath Rath, J.The opposite party-wife is the appellant assailing here the judgment passed by the Judge, Family Court, Cuttack in Civil Proceeding No.04 of 2012 whereby, allowing the application for divorce in favour of the husband/petitioner-the present respondent while considering his application under Section 13(i)(a) of the Hindu 2 Marriage Act, 1955 vide impugned judgment and order dated 7.05.2012, the marital status between contesting spouses has been snapped.
2. Brief facts of the case are that the respondent/husband filed an application under Section 13(i)(a) of the Hindu Marriage Act, 1955 for grant of divorce with pleadings that the respondent married the appellant/wife on 5.12.2007 following the Hindu rites and customs. The respondent was working in N.S.N Company as HR Executive at Bhubaneswar. Their marriage had taken place on 5.12.2007 and after the marriage both the respondent and the appellant were staying in respondent's house at Bhubaneswar. The respondent claimed to be the only child of his parents. The respondent alleged that Miss Ayesha Jamal was his distant relation. She was also close to his wife and his wife used to talk with her over mobile for long spell. When both the respondent and appellant were in their honeymoon trip to Thailand on 22.12.2007, his wife talked with Miss Ayesha Jamal for long time resulting his mobile bill up to Rs.17,000/- (Rupees Seventeen thousand only). The respondent then alleged in the application that on their return from honeymoon, the appellant behaved with his family as well as with him abnormally and used to leave the bed late. The appellant was also spending most of her times in bathrooms remaining busy in talking with her friends over telephone closing the door of the bathroom from inside, even at times the appellant was sleeping at nights inside the bathroom while taking on mobile phones. It is also alleged that the appellant was treating the respondent as unfit, impotent and a low paid company employee. The appellant was 3 resisting the foods prepared in his house by cook and also used to make baseless complaints against respondent before her parents and his visitors. On 16.01.2008 she stayed at Cuttack for a month and in every week the appellant used to visit the house of her parents without the consent of either the husband or his parents. Saddening with the behaviour of the appellant her mother breathed her last on 9.04.2008 suffering from severe heart attack. Frustrating with her activities her younger brother also attempted to commit suicide by taking poison. On 9.06.2008 the appellant went to Cuttack with her elder mother and brother taking her clothes and ornaments threatening not to return to respondent's house any further. She stayed at Cuttack for almost five months and on being forced by her father and brother, the appellant joined the respondent ultimately on 10.11.2008. On 23.09.2009, the appellant gave birth to a male child at Kar Clinic in Bhubaneswar and on 24.10.2009 she went away to Cuttack with the small baby of about a month without consent of her husband or the consent of his family members and from that time the appellant did not return to the house of the husband. While refusing to join the respondent, the appellant lodged a complaint before a NGO namely "Maa Ghara" at Bhubaneswar against her husband and his family members. Following development, in the said matter Mrs. Rutupurna Mohanty of Maa Ghara visited the wife's house at Cuttack and asked her father to have her treated by a Psychiatrist. It is alleged that the appellant was not only abusing her husband and his mother in obscene languages but also giving threaten to them to put the respondent and his family members behind the Bar by committing suicide or by burning herself. On failure in all his attempts to convince the appellant and following 4 her threatening the respondent on 21.02.2010 made a Station Diary bearing Entry No.512 in Lingaraj Police Station. The husband sent copy of the report to Human Rights Commission, State Commission for Women and Police Commissioner. The respondent further alleged that in the meantime, the appellant started selling her ornaments and gave the money so earned to Ayesha. Even the appellant did not hesitate to sell the mobile phone of the respondent. The respondent further alleged that on 5.12.2009 on the eve of marriage anniversary, he along with his parents went to the house of appellant making an effort to convince her to return to their house, which attempt had failed as the appellant did not even come close to the husband and his family members. On 1.1.2010 again the respondent and his family members went to the residence of the appellant and they also waited for an hour there but the appellant refused to meet even the respondent and in laws and finally the respondent and his family members returned back. On 11.02.2010 the appellant jumped with her four months old child from the 1st floor of her house at Cuttack and then went to Mahila Police Station with injured condition to lodge a complaint against the respondent and his father for their forcing her to come back to her husband's house. She was then rescued by one Saila Behera attached with a N.G.O. namely Basundhara, Cuttack from Mahila Police Station and handed over to her father on being instructed by the Mahila Police who were very much aware of her condition.
After some time and in the month of March, the appellant again lodged an F.I.R. in the Mahila Police Station, Cuttack making allegation of torture. The Mahila Police did not take any action on the 5 same being aware of her conduct. Being aggrieved, the wife made a complaint before the State Commissioner for Women and also sent a copy to the Police Commissioner. On the same day she lodged a complaint before the High Court of Orissa. While the matter stood thus, on 25.11.2010 the appellant asked him to send an application for divorce by mutual consent immediately on the plea that she was not willing to stay with the respondent.
3. It is on the allegation of cruelty; the respondent filed an application bearing C.P. No.354 of 2011 asking the Family Court to pass the following :
"Prayer It is therefore prayed that your honour may graciously be pleased to a. Pass an order of decree of dissolution of marriage dt.-5.12.2007 in favour of the petitioner. b. Cost of the suit be awarded in favour of the petitioner."
4. On receipt of notice, the present appellant on her appearance filed a written statement indicating therein that it is a fact that said Ayesha is a distant relation of the respondent and she came to know her because of such relationship only. Appellant denied the allegation that she used to talk with Ayesha for two to three hours. Appellant also refuted the allegation about the telephone bill of Rs.17,000/- (Rupees Seventeen thousand) on account of her talking with Ayesha. The appellant further alleged that the respondent has made out a false story with an intention to hide his mischievs and negligence towards her.
6The appellant claimed that her trip to Bangkok was measurable and torturous for unwanted interference of parents in laws through phone. The appellant also denied the allegations made against her in paragraph No.6, 7 & 8 of the C.P. application. The appellant rather claimed that she remained cooperative despite difficulties / restrictions created by the respondent's parents as well as her husband, she had never conveyed any displeasure or sorrow to anybody during her stay in her in laws house. In response to the allegation made in paragraph No.9, the appellant submitted that the averments made therein are shocking more over reflecting the mischievous attitude of the respondent and his parents. The appellant on the other hand, alleged that her mother died due to physical and mental torture meted out to her in the in-laws house. The appellant further alleged that the allegations made in paragraph No.10 of the application are intended to avoid the accountability on misappropriation of the appellant's valuable things presented to her during marriage. The appellant next contended that the allegation of making an attempt to bring peace in the home by the husband and his parents are all false and have been made only to make out a case against the wife. While denying all the allegations, the wife on the other hand, contended that she was forced to leave the house of the husband along with her minor child by the respondent and his parents and they allthrough refused her to reinduct her to their home despite her all efforts along with her father, brother as well as the well wishers.
The appellant next contended that she had never abused the respondent or his mother in filthy language over telephone. She on the other hand, alleged that the respondent and his mother used to threaten 7 her with dare consequence, in the event, she does not agree for divorce. She claimed that the allegation that the wife was threatening the husband and his family members for putting them behind the bars by committing suicide or by burning herself are all false and concocted with oblique motive.
The appellant-wife further contended that filing of the writ petition in High Court, was an attempt at the instance of the respondent taking assistance of Ayesha Jamal obtaining signature of the appellant on falsehood and with intention to create misunderstanding between the appellant and her father. She also denied to have done anything to either humiliate the respondent or his parents. She also denied the allegation that she had sent a police team to the working place of the husband on 18.3.2010 based on false allegations. The assertions with regard to the NGO and the IIC Mahila P.S were all flatly denied by the wife. Claiming to be innocent, peace loving girl and based with all sorts of good attitude, appellant disclosed her willingness to join the husband thereby requesting the Family Court to decline the prayer for divorce at the instance of the husband with a rider from the Court that their normal marital life should be without any interference from any quarter.
5. Upon completion of pleadings, both the parties led their oral and documentary evidence before the Family Court. In the process, the respondent examined four witnesses whereas the appellant examined three witnesses including herself. The respondent exhibited as many as nine documents i.e. Exts.1 to 9 whereas the appellant exhibited three documents i.e. Exts.A, A/1 and A/2.
8Parties also relied on certain decisions taken note of by the Judge, Family Court in the impugned judgment. Considering the rival contentions of the parties, materials available from the evidence as well as the documents filed by both parties, the Judge, Family Court, Bhubaneswar by his judgment dated 07.5.2012 allowed the Civil Proceeding No.4 of 2012 with the following order:
"The petition is allowed on contest without costs. The marriage solemnized on 05.12.2007 between petitioner-Vikrant Parida and O.P-Sopnal8i Samal is hereby dissolved by a decree of divorce subject to payment by petitioner a sum of Rs.6,00000/- (Rupees Six Lakhs) as permanent alimony to O.P-Sonali Samal and Rs.1,00000/-(Ruypees One Lakh) to Sonali Samal for the maintenance and education of her child, within three months of this order."
6. In assailing the impugned order, the appellant-wife apart from relying on a written note submitted on her behalf through Sri S.D. Das, Senior Counsel contended that from the entire pleading and the evidence on behalf of the respondent, the allegation of cruelty has not been established. Present case does not fall within the ambit of Section 13(1)(ia) of the Hindu Marriage Act. The Judge, Family Court, Bhubaneswar has failed in appreciating the requirement of conditions for grant of divorce on the ground of cruelty and further relying on decisions reported in AIR 2011 SC 114 as well as (2007) 4 SCC-511 and AIR 2006 SC-1675, Mr.S.D. Das, learned Senior counsel appearing for the appellant contended that the impugned judgment is bad in law and thus needs to be interfered and set aside.
7. Mr.Sidhartha Mishra, learned counsel appearing for the respondent-husband though very fairly contended that many of the allegations made against the wife does not fall within the ambit of the cruelty requiring a declaration of divorce but taking into the sum 9 totality of allegations, the conduct and behavior of the wife all through and based on the formula fixed by the Hon'ble Apex Court in the case of Samar Ghosh-vrs-Jaya Ghosh reported in (2007)4 SCC- 511 in para-101 of the judgment as well as the decision of the Hon'ble Apex Court as reported in AIR 1964 SC 40 and another decision in the case of Vinita Saxena-vrs-Pankaj Pandit reported in (2006) 34 OCR (SC) 159 contended that the respondent has clearly made out a case attracting the provision of Section 13 (1) (ia) of the Hindu Marriage Act and therefore claimed that the trial Court did no wrong in passing the impugned judgment which is valid and cannot be interfered with.
8. From the pleadings of the parties, it appears that the respondent in order to bring home the charge of cruelty under the provision of Section 13(1)(ia) of the Hindu Marriage Act through his pleadings, brought the following allegations:
"(i) While he and his wife were on a honeymoon trip to Thailand, the wife always remained busy on telephone with Ayesha Jamal instead of enjoying the trip, resulting the ISD call on respondent mobile at Rs.17,000/.
(ii) After coming back from honeymoon trip, appellant started behaving the husband and his parents in a very abnormal manner. In the process, she used to get up at 9 A.M in the morning and asking for breakfast at 10 A.M while respondent was leaving for Office.
(iii) Appellant used to spend maximum time in the bath room by closing the door from inside and remaining busy telephoning to her friend with intention that nobody can listen her conversation with the particular girl and many times she used to sleep inside bath room in the night while talking over mobile.10
(iv) Appellant misbehaved with the husband treating him to be an unfit husband, impotent, low paid company servant.
(v) Appellant used to object the food prepared by the cook in the house claiming to be unfit for her consumption.
(vi) Appellant used to belittle the respondent before his friends and relatives.
(vii) Appellant used to visit her parent's home every week without taking permission either of the husband or parents of the husband
(viii) Appellant left the husband's premises with the small child of hardly 31 days on 24.10.2009 on her own volition and despite several attempts by the husband as well as his parents, did not chose to return back to the house of the husband."
9. In course of argument, Mr. Mishra, learned counsel appearing for the husband taking us to different orders passed by this Court in the very proceeding, claimed that attempt of this Court for reunion of the parties having failed and there being a gap of almost seven years from the separation of the parties, there is no possibility of reunion any further and this is a clear case for divorce.
10. The provision dealing with divorce on account of cruelty as contained in the Hindu Marriage Act at Section 13(1)(ia), reads as follows;
"Section 13-Divorce-any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented either by the husband or the wife, be dissolved by a decree of divorce on the ground that the other party.
xxx xxx xxx 11 (ia) As after the solemnization of the marriage, treated the petitioner with cruelty."
11. Before we critically examine the impugned judgment in the light of settled law and taking into consideration the provision of law in the Act, it has become imperative to understand and comprehend the concept of cruelty.
The Shorter Oxford Dictionary defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness'. The term "mental cruelty" has been defined in the Black's Law Dictionary [8th Edition, 2004] as under: "Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse."
The concept of cruelty has been summarized in Halsbury's Laws of England [Vol.13, 4th Edition Para 1269] as under:
"The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant's capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits."12
In 24 American Jurisprudence 2d, the term "mental cruelty" has been defined as under:
"Mental Cruelty as a course of unprovoked conduct toward one's spouse which causes embarrassment, humiliation, and anguish so as to render the spouse's life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse."
In the instant case, our main endeavour would be to define broad parameters of the concept of 'mental cruelty'. Thereafter, we would strive to determine whether the instances of mental cruelty enumerated in this case by the appellant would cumulatively be adequate to grant a decree of divorce on the ground of mental cruelty according to the settled legal position as crystallized by a number of cases of this Court and other Courts.
The concept of cruelty has been explained as an intentional and malicious infliction of physical suffering upon living creatures, particularly human beings; or, as applied to the latter, the wanton, maliciously, and unnecessary infliction of pain upon the body, or the feelings and emotions; abusive treatment; inhumanity and outrage. It has been also described such as "cruel and abusive treatment, "cruel and barbarous treatment, or "cruel and inhuman treatment". These explanation concept can be found in various court's decisions such as see May v. May, 62 Pa. 206; Waldron v. Waldron, 85 Cal. 251, 24 Pac. 049, 9 L.r.A. 48T; Ring v. Ring, 118 Ga. 183, 44S.E. 801, 62 L.R.A. 878; Sharp v. Sharp, 16 111. App. 348; Myrick v. Myrick, 67 Ga. 771; Shell v. Shell, 2 Sneed (Tenn.) 716; Vignos v. Vignos, 15III. 180; Poor v. Poor, 8 N. II. 307, 29 Am. Dec. 604; Goodrich v. Goodrich, 44 Ala. 670; Bailey v. Baiey, 97 Mass. 373; Close v. Close, 25N.J.Eq. 520; Cole v. Cole, 23 Iowa. 433; Turner v. turner. 122 Iowa, 113.97 N.W. 13 997; Levin v. Levin, 68 S.C. 123, 40 S.E. 945. Those acts which affects life, health, or even the comfort of the party aggrieved and give a reasonable apprehension of bodily hurt, are called "cruelty." What merely wounds the feelings is seldom admitted to be cruelty, unless the act be accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, want of civil attention and accommodation or even occasional sallies of passion will not amount to legal cruelty. A fortiori, the denial of little indulgences and particular accommodations, which the delicacy of the world is apt to number among its necessaries is not cruelty. The negative descriptions of cruelty are perhaps the best, under the infinite variety of cases that may occur, by showing what is not cruelty. Cruelty includes both willfulness and malicious temper of mind with which an act is done, as well as a high degree of pain inflicted. Acts merely accidental, though they inflict great pain, are not "cruel," in the sense of the word as used in statues against cruelty.
12. From the pleadings of the parties, it appears that the marriage was solemnized on 05.10.2007.The parties were blessed with a child on 23.9.2009 and the separation between the parties took place on 24.10.2009. The respondent alleged that the wife suo-motu deserted the husband on 23.9.09 voluntarily leaving the house of the respondent with the minor child on her own volition whereas the appellant claims that she gave birth to the male child in the company of the husband in Kar hospital at Bhubaneswar on 23.9.2010. She was very much residing along with the minor child in the house of the 14 husband upto 24.10.2009 on which date she along with 31 days baby were forcefully driven out from the house of the husband.
At the same time, from reading of the entire evidence led by both the sides, the wife as D.W.1 in para-13,14 and 15 discloses as follows:
"13. That under such predicament, I gave birth to a male child at Bhubaneswar and remains uncared for and hence my father brought me and my son to Cuttack for better nourishment of both.
14. That after lapse of some times, I found that neither my husband nor in-laws showed any interest to take me and my son back to my matrimonial home in spite of several requests by my parents and other relations.
15. That I am eager to restitute my conjugal rights with my husband, yet it appears that he has no love and affdinity towards me and my son, dashing my dreams of living a comfortable marital life."
Further in para-30 of her deposition she discloses as follows:
"On 24.10.2009 I finally left petitioner's house. It is not a fact that thereafter I had not gone to petitioner's house at any point of time. But I cannot say that dates of those visits. It is not a fact that from 24.10.2009 I have voluntarily deserted the petitioner and that I did not meet petitioner in my house on 5.12.2009 and 1.1.2010 when he had come to my house."
13. From the facts narrated hereinabove and the evidence so recorded by the Family Court, there is no doubt that there appears some level of misunderstanding in between the spouses. But then the questions arises can the above be construed to be so cruel a behavior so as to attract an order for divorce. Considering the period of 15 disturbance and level of disturbance, we also tried to reconcile them in the Court and we observed that the appellant -wife appears to be very lenient to go back to the matrimonial home and start life afresh, but the respondent-husband remain adamant and sticks to his position of not accepting the wife any further. Position of law is verymuch clear to the effect that the married life should be reviewed as a whole and a few isolated instances at the very early of start of married life that too over a period of 1 and ½ years should not be snapped especially when the spouses have been blessed with a child and such frivolities of life cannot amount to cruelty. We find that Family court has measurably failed in appreciating the above legal aspect and has thus arrived at wrong decision for granting divorce.
14. Public interest demands not only that the married status should, whenever as far as and as long as possible should be maintained in the particular facts of the case taking into account the length of cruelty alleged. In the present case it can in no remote sense even be imagined that the marriage between the spouses has been wrecked beyond the hope of salvage. Even though there were some allegations and counter allegations by the other spouse, yet there has been some holy moment between the spouses yielded in blessing them with a child. From the pleadings by the wife, the evidence at the instance of the wife and the attempts made by this Court in the pendency of the current proceeding, it appears that even though the wife is very much inclined to join the husband, yet the husband remain adamant not to reconcile the matter and refuse to re-start the conjugal life afresh. The husband, as appears, has even forgotten his responsibility in the upcoming of 16 the minor child (son). It is strange to perceive that the husband is making an attempt to buy separation on payment of permanent alimony.
15. The husband and his relations should have understood that the wife has come to their residence from a different atmosphere and they ought to have created an atmosphere having little leniency towards her. A little attempt by both the spouses could have made their lives wonderful.
Looking to the definition of cruelty in different dictionaries and through different pronounciation at international level referred to hereinabove, by no stretch of imagination the present case false within the ambit of cruelty.
16. In the case N.G. Dastane v. S. Dastane reported in (1975) 3 SCR 967 the Hon'ble Apex Court has observed:-
"The Court has to deal not with an ideal husband and an ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near ideal one will probably have no occasion to go to a matrimonial Court for even if they may not be able to drown their differences, their ideal attitudes may help them over look or gloss over mutual faults and failures."
Similarly in another case Vishwonath S/o Sitaram Agrawal v. Sau Sarla vishwanath Agrawal reported in [2012] 7 S.C.R 607 Hon'ble Apex Court has observed that expression "Cruelty" has an inseparable nexus with human conduct or human behavior. It is always dependant upon the social strata or the milieu to which the 17 parties belong, their ways of life, relationship, temperaments and emotions that have been considered by their social status.
Examining the matter from the angle of decisions rendered by the Hon'ble Apex Court, we are of the view that looking to the facts and circumstances involved in the case, the position of law indicated herein above, all the findings in the judgment impugned are far from satisfactory. From the further perusal of the impugned judgment, we also observes that even though the trial court has taken note of the decision of the Hon'ble Apex Court in the case of Samar Ghosh v. Jaya Ghosh, (2007) 4 Supreme Court Cases 511 while recording his finding, it has not at all followed the principle laid down by the Hon'ble Apex Court. There is even no endeavour to bring the case within the fold of any of the items/grounds indicated in the said judgment. In the said judgment, the Hon'ble Apex Court in Paragraphs-x, xiv and xv has held as follows:
"(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(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 may amount to cruelty. (Not in Supreme Court decision)
(xv) 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 18 emotions of the parties. In such like situations, it may lead to mental cruelty."
In the case of Vinita Saxena v. Pankaj Pundit, (2006) 34 OCR (SCV)- 159- Paragraph-18 and 20 it has been laid down:-
18. It was submitted that in order to make out a ground for divorce under Section 13(1) (i-a) of the Act, the conduct complained of should be grave and weighty so as to come to the conclusion that the appellant spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". For this proposition, he relied on the judgment of this Court in A. Jayachandra vs. Aneel Kaur (supra). Para 13 of the aforementioned judgment is as under:
"13....but before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it...."
20. Answering the contention raised by the counsel for the appellant that the parties have not lived together for a long time and therefore, this is a fit case to pass a decree of divorce, learned counsel for the respondent, submitted that this is a wholly untenable argument and has to be rejected by this Court. For this, he relied on the ruling of this Court in the case of A. Jayachandra vs. Aneel Kaur (supra).
In the case of Vishwanath S/o Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, (2012) 7 S.C.R.607 it has been held in;
Paragraph-17 as under :-
17. The expression 'cruelty' has an inseparable nexus with human conduct or human behaviour. It is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. In Sirajmohamedkhan Janmohamadkhan v.
Hafizunnisa Yasinkhan and another, a two-
19Judge Bench approved the concept of legal cruelty as expounded in Sm. Pancho v. Ram Prasad, wherein it was stated thus:-
"Conception of legal cruelty undergoes changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition that a second marriage is a sufficient ground for separate residence and separate maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, Cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which may undermine the health of a wife."
It is apt to note here that the said observations were made while dealing with the Hindu Married Women's Right to Separate Residence and Maintenance Act (19 of 1946). This Court, after reproducing the passage, has observed that the learned Judge has put his finger on the correct aspect and object of mental cruelty."
17. From reading of the guideline set out by Hon'ble Apex Court as noted hereinabove, we do not find that the case of the husband satisfies either of the clauses adopted by the Hon'ble Apex Court for granting a decree of divorce.
Under the circumstances, the impugned judgment is unsustainable and, therefore, while setting aside the same, we allow present matrimonial Appeal No.63 of 2012. Respondent is directed to embrace the appellant-wife and his child in his fold of family relationship and is directed to maintain them as they are entitled to. Appellant and her child will have untraveled right to stay with 20 respondent-husband who is directed to maintain them taking care all their needs.
18. The Matrimonial Appeal stands allowed, however there is no order as to cost.
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Biswanath Rath, J.
I agree.
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Vinod Prasad, J.
Orissa High Court, Cuttack.
The 19th day of April, 2016.//Ayas/BKB