Himachal Pradesh High Court
Major Ajay Bhardwaj vs Major (Ms) Poonam Bhardwaj on 18 May, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No. 138 of 2015.
Decided on: 18.05.2015.
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Major Ajay Bhardwaj ......Appellant.
Versus
Major (Ms) Poonam Bhardwaj .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?
For the appellant: Mr. C.N.Singh, Advocate.
For the respondent: Nemo.
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Justice Rajiv Sharma, J (oral).
This FAO is directed against the judgment dated 16.3.2015, passed by the learned Addl. District Judge-I, Solan, H.P., in H.M. Petition No. 16-S/3 of 2010.
2. Key facts, necessary for the adjudication of this appeal are that the appellant-petitioner (hereinafter referred to as the appellant) has instituted a petition under Section 13 of the Hindu Marriage Act, 1955, against the respondent for dissolution of marriage by decree of divorce. The marriage between the parties was solemnized on 2.10.2006 according to Hindu rites and customs at Hotel Prashant Inn, Sector 10, Panchkula, Haryana. One daughter, namely, Aasma Bhardwaj was born on 22.2.2008, who is in the custody of the respondent. The petitioner has given the instances of treating him with cruelty by the respondent as per details given in para 3 of the judgment. According to the appellant, these instances have put him under pressure leading to stress. The respondent had also filed complaint before the President AWWA Army Headquarter, New Delhi, whereby she has leveled false allegations of having illicit relations with ::: Downloaded on - 15/04/2017 18:12:20 :::HCHP 2 Captain Mary Joy. These allegations have been leveled by the respondent against the petitioner to socially humiliate and cause mental and physical .
harassment.
3. The petition was contested by the respondent. She specifically denied the averments made in the petition. According to her, the appellant and his parents have never visited the respondent at the time of birth of girl child. The petition has been filed to cover up his extra-marital affairs with Christian lady Mary Joy, during posting at Aizwl (Mizoram). She was humiliated by the parents of the appellant for bringing insufficient dowry.
They had restricted her entry in their house. The major portion of the salary of the petitioner used to remain in the accounts of the parents and the remaining was being spent by the appellant on Mary Joy.
4. The rejoinder was filed by the appellant. The issues were framed by the learned Addl. District Judge-I, Solan, on 3.10.2012. The learned Addl. District Judge-I, Solan, dismissed the petition on 16.3.2015.
5. I have heard Mr. C.N.Singh, Advocate for the appellant at length and gone through the impugned judgment very carefully.
6. PW-1 Pankaj Doharoo has no personal knowledge about the relations between the parties. He was told by someone about the strained relationship between the parties. Thus, the evidence of PW-1 is hearsay and cannot be given any credence. Similarly, PW-2 Jai Dev has no personal knowledge about the relationship between the parties even though, he was regular visitor to the house of the appellant. PW-3 Ashok Bhardwaj is the brother of the appellant. According to him, the respondent has stayed in the matrimonial house only for 8 to 10 days. He alongwith his parents had to ::: Downloaded on - 15/04/2017 18:12:20 :::HCHP 3 file an application for anticipatory bail. He also admitted that the respondent has filed a complaint with Army Authorities to the effect that the .
appellant was having extra-marital affairs. He further testified that whenever the parties used to come to Solan, he used to come to Solan from Shimla and the relations between the parties, as per him, were cordial. PW-
5 R.L.Bhardwaj is the father of the appellant. He has not given any specific instance as to on what occasion, he or his wife were abused or harassed by the respondent. He further stated that he and his wife were abused on telephone. He went to the house of the respondent but the house was found locked. The appellant has appeared as PW-6. According to him, on the very first day of marriage, the respondent started abusing his parents and forced him time and again to leave his aged parents and stay with his in-laws house. According to him, his father and mother suffered humiliation when they went to the house of respondent and the door was found locked.
7. There is no evidence led by the appellant that the family of the respondent was informed in advance of their visit to Panchkula. PW-3 Ashok Bhardwaj stated that the respondent has stayed in the matrimonial house for few days and the relations between the parties were cordial. Thus, the version of the appellant that the relations were not cordial is not supported by the brother of the appellant. The appellant has also admitted in his cross-examination that there was no specific allegation to the effect that respondent started abusing him from the first date of marriage. There is no specific date of the alleged misbehavior of the respondent with the appellant or his parents in paras 4(d) to 4(k) of the petition. The appellant ::: Downloaded on - 15/04/2017 18:12:20 :::HCHP 4 has admitted that the complaint filed against him by the respondent was closed after giving him counselling.
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8. The respondent, while appearing as RW-1 has admitted about the complaint but deposed that the same was closed after giving counselling to the appellant. Mr. C.N.Singh, Advocate, for the appellant has referred to the judgment of the Hon'ble High Court of Gauhati, rendered vide Ext. PW-
6/C. The issue before the Hon'ble High Court of Gauhati was whether Military Authority could convene a Court of Inquiry in respect of complaint lodged against the petitioner for which he has already been counselled/reproved. Consequently, the Gauhati High Court has quashed the order dated 20.12.2011. Thus, it stands proved on record that the petitioner was given counselling on the basis of a complaint filed by the respondent. The General Officer Commanding, made the inquiry and thereafter issued the counselling letter dated 11.8.2010, advising the petitioner to avoid interacting with Captain Mary Joy. Since the appellant was having relations with Capt. Mary Joy, he has rightly been issued counselling letter by the General Officer Commanding on 11.8.2010. This complaint can not form ground of divorce.
9. Now, as far as the filing of case against the family members of the appellant under Section 498 A of IPC is concerned, the same is pending adjudication. The appellant cannot be permitted to take advantage of his own wrongs. The family of the appellant has not visited the respondent even at the time of birth of girl child. He has been issued counselling letter by the General Officer Commanding. PW-3 Ashok Bhardwaj has not supported the case of the appellant. PW-1 Pankaj Doharoo and PW-2 Jai Dev have no ::: Downloaded on - 15/04/2017 18:12:20 :::HCHP 5 knowledge about the personal relationship of the parties. The instances given in para 3(e) to 3(k) of the judgment are vague and sketchy, as noticed .
hereinabove even without giving the dates of alleged misbehavior.
10. Their Lordships of the Hon'ble Supreme Court in the case of Shobha Rani v. Madhukar Reddi reported in AIR 1988 SC 121 have explained the term "cruelty" as under:
"4. Section 13(1)(i-a) uses the words "treated the petitioner with cruelty". The word "cruelty" has not been defined. Indeed it could not have been defined. It has been used in elation to human conduct or human behaviour. It is the conduct in relation to or in respect of matrimonial duties and obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical the court will have no problem to determine it. It is a question of fact and degree.
If it is mental the problem presents difficulty. First, the enquiry must begin as to the nature of the cruel treatment. Second, the impact of such treatment in the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other. Ultimately, it is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
5. It will be necessary to bear in mind that there has been marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties. It ::: Downloaded on - 15/04/2017 18:12:20 :::HCHP 6 would be better if we keep aside our customs and manners. It would be also better if we less depend upon precedents. Because as Lord Denning said in Sheldon v. Sheldon, [1966] 2 All E.R. 257 (259) "the categories of cruelty are not closed."
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Each case may be different. We deal with the conduct of human beings who are not generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful/realm of cruelty."
11. Their Lordships of the Hon'ble Supreme Court in Samar Ghosh vs. Jaya Ghosh reported in (2007) 4 SCC 511, have enumerated some instances of human behaviour, which may be important in dealing with the cases of mental cruelty, as under:
"98. On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of 'mental cruelty' within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.
99. Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.
100. Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.::: Downloaded on - 15/04/2017 18:12:20 :::HCHP 7
101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the .
succeeding paragraphs are only illustrative and not exhaustive.
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a rdegree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not ::: Downloaded on - 15/04/2017 18:12:20 :::HCHP 8 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.
(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous rseparation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."
12. Their Lordships of the Hon'ble Supreme Court have held in Manisha Tyagi vs. Deepak Kumar reported in 2010(1) Divorce & Matrimonial Cases 451, as under:
"24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonable be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that would be harmful or injurious to continue the cohabitation with the other spouse. Therefore, to establish cruelty it is not necessary that physical violence should be used. However, continued ill- treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However, in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not ::: Downloaded on - 15/04/2017 18:12:20 :::HCHP 9 amount to cruelty of such a nature to enable the husband to obtain a decree of divorce."
13. Their Lordships of the Hon'ble Supreme Court have held in .
Ravi Kumar vs. Julumidevi reported in (2010) 4 SCC 476, as under:
"19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.
20. Therefore, cruelty in matrimonial behaviour defies rany definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial case can be of infinite variety - it may be subtle or even brutal and may be by gestures and word. That possible explains why Lord Denning in Sheldon v. Sheldon held that categories of cruelty in matrimonial case are never closed.
21. This Court is reminded of what was said by Lord Reid in Gollins v. Gollins about judging cruelty in matrimonial cases. The pertinent observations are (AC p.660) ".. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."
22. " About the changing perception of cruelty in matrimonial cases, this Court observed in Shobha Rani v. Madhukar Reddi at AIR p. 123, para 5 of the report: (SCC p.108, para 5) "5. It will be necessary to bear in mind that there has been (a) marked change in the life around us. In matrimonial duties and responsibilities in particular, we find a sea change. They are of varying ::: Downloaded on - 15/04/2017 18:12:20 :::HCHP 10 degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the court should not search for standard .
in life. A set of facts stigmatized as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. We, the Judges and lawyers, therefore, should not import our own notions of life. We may not go in parallel with them. There may be a generation gap between us and the parties."
14. Their Lordships of the Hon'ble Supreme Court have held in Pankaj Mahajan vs. Dimple Alias Kajal reported in (2011) 12 SCC 1, as under:-
"36. From the pleadings and evidence, the following instances of cruelty are specifically pleaded and stated. They are:
i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace.
ii. Pushing the appellant from the staircase resulting into fracture of his right forearm.
iii. Slapping the appellant and assaulting him. iv. Misbehaving with the colleagues and relatives of the appellant causing humiliation and embarrassment to him. v. Not attending to household chores and not even making food for the appellant, leaving him to fend for himself. vi. Not taking care of the baby.
vii. Insulting the parents of the appellant and misbehaving with them.
viii. Forcing the appellant to live separately from his parents. ix. Causing nuisance to the landlord's family of the appellant, causing the said landlord to force the appellant to vacate the premises.
x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the appellant.
xi. Always quarreling with the appellant and abusing him. xii. Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the appellant."::: Downloaded on - 15/04/2017 18:12:20 :::HCHP 11
15. Their Lordships of the Hon'ble Supreme Court have held in Vishwanath Agrawal vs. Sarla Vishwanath Agrawal reported in (2012) 7 .
SCC 288 as under:
"22. 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.
28. In Praveen Mehta v. Inderjit Mehta, AIR 2002 SC 2582 it has been held that mental cruelty is a state of mind and feeling with one of the spouses due to behaviour or behavioural pattern by the other. Mental cruelty cannot be established by direct evidence and it is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment, and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The facts and circumstances are to be assessed emerging from the evidence on record and thereafter, a fair inference has to be drawn whether the petitioner in the divorce petition has been subjected to mental cruelty due to the conduct of the other."
16. The appellant has not led any medical evidence to prove that he has suffered any ailment due to stress except a bald assertion that he has suffered still's decease.
17. Consequently, there is no merit in this appeal, the same is dismissed. Pending application(s), if any, shall stand dismissed.
May 18, 2015, ( Rajiv Sharma ),
(karan) Judge.
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